Human resource of a country is key to its development. Irony manifests itself in superlative form when it comes to the practical analysis of situation as existing in India. Resort to fake optimism has become order of the day. Apparently India has been shining since the advent of 21st century but its lustre fails to luminate the houses of common man. Genesis of this problem lies in the whole systematic set-up adopted here. At this point I am reminded of an observation by my friend Dhawal which he made while having a casual discussion with me. It goes something like this, ‘in democracy those who deserve are mostly doomed.’ Although I am staunch supporter of democracy, this particular point forced me to rethink about my ideological orientation. In this process I found solace in Sir Winston Churchill’s opinion deeming democracy to be the worst but best available form of Government. No where have been exemplary democratic constitutional principles murdered on the altar of electoral gains as in India. Most glaring example is RESERVATION.
Casteism is an anathema which the founding fathers of Constitution sought to obliterate. Promulgation of the Constitution was an effort to eradicate the spectre of casteism which haunted the Indian society for centuries. They commendably succeeded by the providence of 22.5% reservation to extremely trampled human classes which came to be known as SC/ST. However, abrupt implementation of Mandal Commission Report by V. P. Singh led Janata Dal government resurrected the old monster again which is now breathing comfortably in every college, university, office and workplace. Society has again been divided on the basis of caste with the only difference that people are seethingly accepting it. In reality this does not ameliorate the natural feelings because an attempt of treating alike as like that too by compromising with efficiency of administration is huge price which our country is paying and may have to pay at greater scale in future.
In this direction I am hereafter reproducing the making of the present scenario and how the greatest lawyer of India, Nani A. Palkhivala opposed it. Before recounting the arguments placed before the apex court let me give you the background of the whole process. Kaka Kalelkar Commission- eponymous of its Chairman- was the first commission appointed by the government of India to ascertain the status of backward classes. Report submitted by the Commission in 1955 listing 2399 castes or communities as socially and educationally backward was not accepted by the government and hence abandoned thereafter.
In 1978 Janata Party on displacing Congress from the power riding on the goodwill generated post emergency, raised the issue of preferential treatment to backward classes. Second Backward Caste Commission under the Chairmanship of B. P. Mandal himself belonging to backward caste was constituted for this purpose. The commission worked quite expediently. It commenced working on 21 March 1979 and submitted its report on 31 December 1980. The main issues which were referred for solution to the Commission were:-
(i) to determine the criteria for defining the socially and educational backward classes (SEBCs);
(ii) to recommend steps to be taken for the advancement of the SEBCs of citizens so identified;
(iii) to recommend the desirability or otherwise of making provisions for the reservations of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the union or any state; and
(iv) to present the president a report setting out facts as found by them and making such recommendations as they think proper.
Commission submitted its report in two parts wherein it listed 3,743 castes under the category of Other Backward Classes (OBCs) based on the 1961 census. These submissions were based on eleven indicators. Following the inherent trait of in application of the reports the Mandal Commission Report also went in cold storage with the change in the power from Janata Dal to Congress.
The wheel of time turned and in 1990 V. P. Singh, the prime minister in order to mitigate dissent in Parliament very unreasonably played the ‘caste’ card. Now following are the excerpts from the book ‘Nani A. Palkhivala – A Life’ by M. V. Kamath.
‘Trouble started when the government of India issued an office memorandum (OM) on 13 August 1990 purporting to extend reservations for SEBCs in its services with effect from 2 August 1990. The OM reserved 27% seats for the SEBSs, in addition to those already reserved for SCs and STs. Reservations were to apply to direct recruitment. SEBCs recruited on merit in open competition were not to be counted in 27% quota. SEBCs were to comprise castes and communities common to the state-wise lists in the Mandal report and a state government lists…
The Mandal Commission may have intended to do good, but it did not go down well with the people. There were cases of ghastly self-immolation by young men in different parts of the country. There was damage to both private and property. Writ petitions were filed as PILs in the Supreme Court questioning the OM. A 3 judge bench of the Supreme Court comprising Chief Justice Rangnath Mishra, And Justices K. N . Singh and M. H. Kania reviewed its order of 11 September 1990, and in paragraph 8 of this judgment, refused to interfere on the ground that the matter was apolitical one. The court also made an appeal to the nation that the mater was being adjudicated upon and everybody’s rights would be worked out.
The situation not being improved, a petition on behalf of the Supreme Court Bar Association was moved and a five-judge bench of the Supreme Court, by its order dated 1 October 1990, stayed the operation of the OM dated 13 August 1990 till the final adjudication.
Unable to break the ice with agitating students and now facing another serious crisis, the V. P. Singh government sought to defend its decision to implement the Mandal report when the Supreme Court was convened on 25 October 1990. There was jubilation among students when Nani agreed to argue on behalf of the students of St. Stephen’s College, New Delhi. Apart from Nani, the anti-Mandal argument was mainly put forward by the president of the Supreme Court Bar Association, K. K. Venugopal.’
Everyone reading this entry kindly be ready to race the horses of your mind and appreciate the illustrious legal acumen displayed by legendary Nani Palkhivala. Those with sane and reasonable mind, I am sure, shall become aware of the sanctity of law process and role of lawyers in shaping the society irrespective of win or loss.
‘As hearings began on the 42 petitions challenging the government’s decision to reserve jobs for backward classes, the court listened in rapt attention to Nani’s argument that the step vitiated the very scheme of the Constitution. Nani, who was also speaking as counsel for Common Cause, a registered society, said that casteism was anathema to the makers of the Indian Constitution. They had envisaged reservations only for Scheduled Castes and Scheduled Tribes and that, that, too from time for just 10 years. But this had been extended, Nani said, from time so that the scope then stood at 50 years. ‘Instead of moving forward we are moving backward,’ Nani said.
Nani insisted that the Mandal Commission had no legal authority to recommend reservation for backward classes in government service on the basis of caste. In fact, he said, the commission had suffered from the mistaken notion that it could make recommendations under Article 16(4) of the Constitution on the paramount ground of caste or social backwardness. ‘Under Article 16(4) social backwardness is irrelevant for appointment in public service.’ said Nani. And this, he argued was the fallacy that had trapped the commission.
Justice P. B. Sawant intervened to say that Nani seemed to be arguing for reservation for the poor Brahmin. Nani replied: ‘I am against all reservations.’ he quoted the Preamble, the directive principles of state policy and Articles 14, 15, 16, 330 and 332 to emphasise that while the Constitution was totally against discrimination, it talked of equal opportunity for all. This was precisely what reservation denied.
Nani said that the Constitution was clear on the point that the efficiency of the administration could not be sacrificed even to favour SCs and STs, much less the backward classes. The Mandal report, he said, completely overlooked this vital constitutional requirement.
Nani pointed out that what the report had done was to perpetuate casteism in the country. ‘There have been scores of self-immolations over the issue and if I were young I too may have tried to immolate myself,’ said Nani.
Nani said that by emphatically ensuring a fresh lease on life to the canker of casteism for a long and indefinite future, the Mandal report had fractured the nation and violated the basic structure of the Constitution.
Nani said that the Mandal report virtually rewrote Article 16(4) by substituting caste for class. Every other test, economic or non-economic had been wholly rejected. Nani quoted from the Mandal report to say that it had observed that the substitution of caste by economic tests would amount to ignoring the genesis of backwardness in Indian society. The commission had ignored the basic point that they were not concerned with genesis of social backwardness for the purpose of Article 16(4).
The Mandal Commission, Nani held, had deliberately shut its eyes to the fact that there were crores of backward individuals in forward castes and crores of forward individuals in backward castes.
The Mandal report, he further argued, made an irrational classification by which the children of the wealthiest families, and of Mandal himself who was a rich zamindar, would be entitled to preferential treatment because they sprang from the so-called backward classes.’
This was what perhaps the brightest legal mind of the nation perceived about the reservation. He vehemently opposed the move unjustifiable from all angles. Nani pointed out the paradox that, in name of deploring casteism Mandal report instead glorified it, making people tread a retrogressive path by ascertaining it to be sole criterion for reservations in employment, admission and promotions. Moreover it created caste foes even among non-Hindus, regardless of the fact that such a non egalitarian set up was discarded by Christianity, Islam and Sikhism.
Whatsoever it be despite of perspicacious advocacy by Nani, much to his disappointment the majority judges affirmatively decided that reservations on the basis of caste were permissible under Article 16(4). The two official memoranda were held with important qualifications that
(a) the ‘creamy layer’ of backward classes should be excluded, because they would otherwise lap up all the benefits of reservations meant for that class;
(b) the inclusion or exclusion of a caste or a section of a caste would have to be periodically reviewed to take care of changing circumstances;
(c) the armed forces and higher civilian posts to be selected by the government should be outside the purview of caste reservations;
(d) reservations cannot be applied to promotions on the ground that ‘crutches cannot be provided throughout one’s career.
This is the gist of the Mandal case which is the genesis of the present date reservation scenario. The present law as it stands is result of the later case célèbre Indira Sawhney case which specifically lays down the mode and guidelines of application of the affirmative action i.e., reservation. Detailed analysis of these cases shall be made in next entries. As for now, I would aptly conclude by paying homage to Nani-saviour of our Constitutional principles for many times. His furious reactions against the judgments as published in TOI (25 and 26 November 1992) are; ‘Never before in history, and nowhere else in world today, have reservations been prescribed for the overwhelming majority of the population of any country.’
He further wrote: ‘I am sure that Mr. V. P. Singh was sincere when he said that after the Supreme Court judgment in the Mandal case he could die in peace. But his policy has ensured that the nation will not live in peace. The poisonous weed of casteism has been replanted “where it will trouble us thousand years, each age will have reconsider it”.’ While concluding Nani was of the view:
By persisting in reservations, the government will get deplorably enmeshed in unending litigations and waste the nation’s resources, time and energy on an unimaginable scale. In law, the government is entitled to say that having regard to the conditions and qualifications imposed by the Supreme Court, it is not in the national interest to persist in the system of reservations. Such a stance would require courage and statesmanship of the highest order, and would mark a turning point in the history of a country which has been too long content to run a third-class democracy under a first-class constitution.
As presciently opined by Nani, the country is not in peace the situation being aggravated by reservations in higher institutions too [Article 15(5)]. Just imagine what would have been the present situation had Nani been able to garner narrow margin of victory as in Kesavanand Bharati case!!!!!!!
