CONSTITUTIONALLY permissible reservations in education and for jobs have been the subject matter of much debate and litigation. Interest in this issue has gained ground following the submission of the Sachar Committee Report (SCR) in 2006. This article examines the manner in which the Constitution and the courts have dealt with group differences and how notions of backwardness and minorities have been interpreted and the consequent implications for the insights generated by the SCR.

The Constituent Assembly had, over a three year period, considered the manner in which differences were to be accommodated in the new Indian state and Constitution.¹ Initially clubbing Scheduled Castes (SC), Scheduled Tribes (ST), Anglo-Indians, Muslims, Christians and Parsis together in its Advisory Committee on Fundamental Rights of Citizens and Minorities, the Constitution as finally adopted chose not to adopt a uniform strategy to deal with various groups. Instead, it adopted a variety of means to deal with difference – special provisions for socially and educationally backward classes (SEBC) (art. 15(4)); reservation in posts for SC and ST and backward classes (art. 16(4)); reservation in electoral seats (arts. 330, 332); protection of sections of the population having a distinct language script or culture (art. 29); rights to religious and linguistic minorities to establish and administer educational institutions of their choice (art. 30) and directives to promote educational and economic interests of SC, ST and other weaker sections; the fifth and sixth schedules to deal with scheduled and tribal areas; and, later, provisions to deal with panchayats and municipalities.

Not only are there multiple provisions creating layered protections and rights in the Constitution, the language used would indicate the need to fashion different tests for identification of these specified groups. For instance, the test to determine ‘socially and educationally backward classes of persons’ is a qualitative one, while the test for determining ‘religious and linguistic minorities’ would appear to be a numerical test. Courts have interpreted and refined these tests over time, and this has implications for the extent to which findings of the SCR could be utilised in judicial proceedings.

 

The Constitution-makers took the position that the identification of SC and ST was to be done by the President or Parliament (arts. 341 and 342). Courts allow unilateral determination by the President (read: central executive) of the composition of SC and ST groups, and these lists are considered to be outside the pale of judicial scrutiny. In contrast, the identification of beneficiaries of those designated ‘backward’ (this would include OBCs, which in some states include nomadic tribes, denotified tribes, Latin Catholics, Anglo Indians, Scheduled Caste converts to Christianity, Muslims per se) and ‘minorities’ have from the very beginning been subject to judicial scrutiny.

Why is there greater judicial deference to the executive in matters pertaining to SC/ST identification in contrast to the ‘juridification’ of the OBC/minority issue permitted by the courts? The courts appear to have accepted the power of the President to determine these lists and the special provisions in the Constitution for SC/ST as historical recompense and, therefore, forming a fixed, predetermined group, to warrant a judicial hands-off approach in reviewing the lists of SC and ST. For example, the courts recently invalidated the micro-classification of SCs in Andhra Pradesh on the ground that SCs as a group were homogenous and that identification was to be determined exclusively by the President.² (The courts do, however, entertain cases of a limited nature such as whether a particular individual was wrongly classified as an SC.)

 

The reluctance of the courts to exercise judicial review in the case of identification of SC/ST is rather difficult to sustain in the light of a broadening of judicial review in other matters. In recent years the courts have permitted greater judicial review of other presidential proclamations such as those relating to imposition of president’s rule in states (the Bihar dissolution case, and the SR Bommai cases being examples in point). Even where scrutiny by the courts has been expressly prohibited as in the case of interstate river waters dispute, the courts have found a way to entertain limited judicial scrutiny although the Supreme Court is expressly barred jurisdiction over such disputes.

The judicial deference over the notification of lists of SC and ST is unusual given creeping ‘juridification’ of disputes, following the identification of judicial review as a basic feature of the Constitution. The demand by Dalit Christians and Muslims for inclusion on the grounds of violation of the principle of equal treatment of those similarly placed, poses a serious challenge to the courts to justify why the mode of identification of SEBC/OBC/ minorities alone is subject to judicial scrutiny.

It would appear that the implicit reasoning of the court is that the category of ‘backward’ is not historically fixed, but a fluid and evolving one which needs to be judicially reviewed. The jurisprudence of the courts reflects this. Since groups such as the OBC could vary as social and educational backwardness changes over time, there have been repeated calls by the judiciary to review OBC lists.³ This would imply that non-review of these lists on a periodic basis could lead to the courts striking them down as being inaccurate reflections of backward groups. The call to revise these lists would also indicate that contemporary data needs to be used to understand who is ‘backward’ at any point of time: historical categories or perceptions would be inadequate for this purpose. I come back to this point after examining how the courts have developed the tests relating to backwardness in the next section.

 

Perhaps the most abiding contribution of the courts has been in indicating to the executive what the permissible criteria for identifying beneficiaries are and which ones would be constitutionally invalid. While the criteria for defining backwardness is the prerogative of the executive, the courts, using their judicial review power of veto, have struck down methods of identification which are seen to be constitutionally impermissible. Thus, we have the early judgments indicating that caste could not be the sole basis for identification of backwardness, to later judgments permitting caste to be a starting point coupled with other indicators of social and educational backwardness.⁴ 

 

If caste could be a starting point for identification, could religion also pass the test of constitutionality for identification of backwardness? Evidently, yes. States such as Kerala and Karnataka have identified all Muslims as members of the OBC, presumably because the group as a whole fulfils all the other criteria of social and educational backwardness warranted by articles 15(5) and 16(4). The creamy layer filter (aimed at identifying individuals, not groups) removes those persons who can no longer be designated backward. Related to this is the question of intersectionality and overlap between those castes (for instance, occupational groups cutting across religions) identified as backward and members of a religious group who are also identified as backward, and how double enumeration can be prevented.

The Andhra Pradesh High Court recently determined the constitutionality of the Andhra Pradesh reservation of seats in the Educational Institutions and of Appointments/posts in the Public Services under the State to Muslim Community Ordinance, 2005 and corresponding Act of 2005. An initial five-judge bench of the high court had noted that the identification of a group as backward was a matter of empirical investigation by a commission and not a political assertion, an assessment to be based on objective criteria and not a question of subjective satisfaction.⁵ It struck down the 1994 notification identifying Muslims since this had not been based on a recommendation of a commission. The state’s backward class commission’s subsequent report led to the promulgation of the 2005 ordinance and subsequent law.

 

A subsequent five-judge bench of the high court, however, faulted the ordinance since the A.P. State Commission for Backward Classes could not satisfy the court that it had employed sufficiently objective criteria to determine why Muslims as a group were to be identified as socially and educationally backward.⁶ The court unanimously held that the criteria adopted by the commission for identifying the backwardness of Muslims were irrelevant. It noted that the commission considered the

‘higher unemployment rate; the lower share in salaried employment; predominant self-employment in petty trades and as rickshaw pullers, push-cart traders and labourers; the relatively lower monthly expenditure; marginal land ownership, pervasive malnutrition coupled with restricted affordability of medical facilities and the consequent lower life expectancy; inaccessibility to governmental welfare programmes are factors which determine the social backwardness of the Muslims…involvement of a significant section of the community in traditional begging; engagement of women and children in beedi-rolling with meagre incomes; habitation in semi-permanent temporary shelters mostly in huts and tiled roofs; inadequate access to water supply, toilets and bathroom facilities in houses and unhygienic living.’⁷ 

All the judges concurred in rejecting the criteria evolved by the commission. One of the judges indicated that preponderance of employment in occupations such as rickshaw pulling or street hawking could be poverty-driven occupational choices, and noted that ‘they are not inheritances of the social variety’, that these misfortunes were caste and religion neutral, and that there was no causal link between the pursuit of these occupations and religion, implying that they did not indicate social backwardness but merely poverty – a ground already deemed impermissible for identification of beneficiaries in the Mandal judgment of the apex court. The judge held that the commission erred in assuming Muslims were a homogenous class and in assuming that all Muslims were engaged in these low paid occupations to establish their social backwardness.

 

This aspect of the judgment has considerable implications because the SCR uses precisely such criteria of preponderant self-employment and low-paying employment as indications of the backwardness of the Muslim community. The high court emphasised that backwardness should not be merely economic but must also indicate that pursuing such occupations was a reflection of social backwardness. The Mandal Commission had taken the view (subsequently accepted in the Mandal decision) that such backwardness would mean, interalia, performing manual labour or work considered socially backward by others. It is obviously far easier for traditionally ‘backward’ occupations to be counted as having the necessary social stigma/burden of backwardness, rather than those occupations arising out of newer forms of work.

That the tests validated by the Mandal judgement are to some extent dated and ‘backward-looking’ can be seen in another criteria used by it to determine social backwardness, namely, that a higher work participation rate by women was a sign of social backwardness of the group. Given the newly emerging forms of work, large numbers of urban women are compelled to engage in very low paying forms of home-based work due to reasons of patriarchy combined with lack of access to child-care or availability of wage work. These forms of work are often not recognized as ‘work’ and so such groups may then not be included as socially backward by the criteria currently in use. Home-based work in the clothing or embroidery sector, beedi-rolling, motor repair, petty trading would surely not fit into this judicially determined rubric of a traditional, socially backward occupation.

 

The tests as adopted by the courts in India fail to recognize the newer kinds of survival activity pursued by persons as markers of social backwardness. The judicial test in its present form is not capable of dealing with newer forms of occupations and work which have low social value. The view of the high court in this case that there is no prohibition to declare Muslims, as a community, socially and educationally backward for the purposes of articles 15(4) and 16(4), provided they satisfy the test of social backwardness would then require future commissions to formulate criteria distinct from those brought out by the SCR to indicate social backwardness.

This poses a challenge because these criteria would then necessarily fall back upon older stereotypes of backward occupations or evolve some criteria (in fact, one of the judges suggested that factors such as the plurality of wives and ease of divorce among Muslims as possible criteria),⁸ other than the aspect that Muslims are often excluded from formal employment, and lack access to land and other resources to obtain their livelihood as brought out sharply by the SCR as one of the indicators of their social backwardness.

 

While there appears to be fair unanimity among the courts that if Muslims as a group were to satisfy the tests of social and educational backwardness, they could be designated as a SEBC/OBC under articles 15 and 16 (the only debate remaining whether the criteria developed are valid, as in the Andhra Pradesh case discussed above), another aspect of special provisions for Muslims has arisen from the constitutional provisions dealing with minority educational institutions.

This aspect is interesting because conventionally the constitutional provisions dealing with reservations, at least with respect to caste, are articles 15 and 16. But in the intersectionality with religion, the provisions of article 29 and 30 come into play and the question whether there could be religion based reservation in such minority institutions, and the manner in which such reservations will play out together with reservations for backward classes, particularly with respect to the ‘50 per cent reservation rule’, remains a highly contested one. The court decisions culminating in the 2005 amendment to article 15 of the Constitution regarding the extent to which caste based reservations could be extended to minority educational institutions, is an example of this tension of overlap between caste and religion in educational institutions.

 

The 11-judge TMA Pai judgment delivered in 2002 had indicated that reservations for a religious or linguistic minority by an aided, minority educational institution would be valid, provided it was kept within reasonable limits. The court sought to balance the provisions of article 29(2) that ruled out discrimination on the basis of religion, caste or language in the case of state-aided institutions with the autonomy of minority educational institutions protected by the Constitution.

At the centre of the debate over reservations for religious minorities is the identification of what constitutes a minority educational institution. The courts have held that such an institution should be both established and administered by the minority for it to qualify for protection under article 30. The case of the Aligarh Muslin University (AMU) and whether it qualifies for such protection exemplifies the debate and the shift in the position of the central government between the time when the Azeez Basha judgement was decided by the Supreme Court (1968) and the recent judgment of the Allahabad High Court in this matter (2006).

The Supreme Court in Azeez Basha had declared that the incorporation of the university under the AMU Act of 1920 constituted its legal birth as a university, born of a legislative enactment, that subsequent amendments had made provision for appointment of Muslims and non-Muslims to the highest bodies of the university, and that AMU was therefore a non-minority college which could in no way be linked to its popularly understood previous avatar of the Mohammedan Anglo-Oriental College set up in the 1870s.

 

A subsequent amendment in 1981 inserted a provision concerning the founding of the AMU and its establishment by the Muslims to describe the university as ‘the educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University’ (section 2(1) as amended in 1981).

This amendment, together with the judgement in the TMA Pai case which took the view that minority institutions could have considerable governmental control without any diminution of their minority status, resulted in the strange spectacle of the central government which had appeared in the Azees Basha case to oppose the minority character of the AMU to argue the very opposite before the Allahabad High Court in 2006.

The government argued that the 1981 amendment indicated that the university did not have a legislative birth but in fact was originally linked to the MAO College and, further, that the role of outside regulation did not militate against its minority character. It would be useful to discuss some recent judicial pronouncements and the implications they have for the ongoing dispute.

Evidently, in order to provide for religion based reservations in an educational institution, as the AMU sought to do in 2005, it would require that an educational institution be declared as one established and administered by a minority. The demand to be declared a minority has resulted in two interesting judgements from the court in recent times. The Supreme Court in Bal Patil,⁹ while considering a petition by the Jain community to be declared a minority, took the well-established position that such identification has to be done at a state level, which would imply that the power of the central government would have to be exercised on a state-by-state basis.

But more importantly, the Supreme Court went on to state,

‘Statistical data produced to show that a community is numerically a minority cannot be the sole criterion. If it is found that a majority of the members of the community belong to the affluent class of industrialists, businessmen, professional and the propertied class, it may not be necessary to notify them under the act as such and extend any treatment or protection to them as minority.’

 

Clearly the socio-economic profile was to be as important in determining the minority status as numerical strength. The adding of a fresh socio-economic dimension is significant, because it transforms the test of determining a minority from a numerical/quantitative one to a more qualitative one and, further, leads to a greater convergence of the categories of ‘backward’ and ‘minority’. Developing on this, the court could then broaden the notion of a minority to include not just religious and linguistic minorities but caste groupings also. The court went on further to state,

‘If only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of ‘minority’ is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensue. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the state on the ground that they are backward.’

 

It was as if one had come full circle, from the Constituent Assembly which had initially treated the idea of minorities to include categories based on caste and religion, their subsequent separation in the Constitution into two separate sets of provisions, to this judicial interpretation of the overlap between the two categories. This interpretation of the expression ‘minority’ was used by the court in Bal Patil to urge the National Commission for Minorities to be cautious in declaring any group as a minority as this would result in ‘generating feelings of multinationalism in various sections of people of Bharat.’ This strand of judicial thought to observe restraint in identifying ‘minorities’ may not be a dominant or a representative one. Yet, this judgment would appear to show that the courts are mindful that the ‘benefits’ of being declared a minority should keep pace and parallel the ‘benefits’ being granted to those declared backward castes.

The TMA Pai judgement some years earlier had already indicated such a balancing perspective. Faced with numerous challenges that seemed to question why the right to establish educational institutions ought to be confined to religious and linguistic minorities alone, the landmark 11-judge bench had interpreted the right to set up educational institutions as part of the fundamental rights under article 19(1)(g) to pursue an ‘occupation’, and also held this as a right available to any religious denomination (minority or otherwise) under article 26. This has addressed to a considerable extent the perception that the right to set up educational institutions was somehow confined to minorities alone. The decision in Bal Patil, in a similar manner, appears to broaden the idea of who can or should be declared a minority.

 

It comes as no surprise that shortly after this judgement, which introduced the idea of a socio-economic profile to determine the question of a minority, a single judge of the Allahabad High Court had, in fact, declared that Muslims were not a minority in Uttar Pradesh since they were now a dominant group in that state.¹⁰ At the same time, the poor socio-economic profile of the Muslims brought out by the SCR would appear to reinforce their claim to be declared a minority.

Further, the view that the interpretation of minority status should be a contribution of both numerical and qualitative tests, and be borne out by a weaker socio-economic profile, would indicate that the tests of ‘backwardness’ should use contemporary social, educational and economic data, and move beyond the more traditional understanding of what ‘backwardness’ entails that we have discussed earlier in the cases arising out of articles 15 and 16.

 

The kind of socio-economic data generated by the SCR has several implications for future court litigation in India. As suggested above, the use of recent data to identify groups as backward would require a modification of the current tests of what constitutes social backwardness and their constant reworking. The broadening of what constitutes a minority by the courts can address the overlap between ‘backwardness’ and religion and the existence of caste communities among minority groups that the SCR brings out so sharply. The demand for reservations based on articles 15 and 16 on the one hand, and the implications this has for reservations on the basis of religion under article 30 on the other, is yet to be resolved.

The 2005 amendment to the Constitution exempting the provisions of article 15 from minority educational institutions is a clear attempt to separate the two kinds of reservations in the Constitution. The court’s decision in 2008 upholding the amendment, however, did not address the specific point of overlapping of caste and religion based reservations.¹¹ The overlap of caste and religion as markers of backwardness in India clearly requires a blurring of the distinctions created by separate provisions relating to equality and difference in the Constitution, and for the courts to incorporate newly emerging forms of backwardness and exclusion in its interpretation.

 

Footnotes:

1. See for instance, Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966) and Gurpreet Mahajan, Identities and Rights: Aspects of Liberal Democracy in India (1998).

2. E.V. Chinnaiah v. State of Andhra Pradesh (2005).

3. See for instance, Vasant Kumar v. State of Karnataka (1985), the Mandal judgement, Indra Sawhney v. Union of India (1992) and more recently, Ashok Kumar Thakur v. Union of India (2008).

4. See for instance the contrast between M.R. Balaji v. State of Mysore (1963), and A. Periakkarruppan v. State of Tamil Nadu (1971) and the Mandal judgement (1992).

5. T. Muralidhar Rao v. State of Andhra Pradesh.

6. Parenthetically, we can also note that the court held that declaring a whole community as backward would be a virtual invitation to convert and declared that ‘never in the history of our Republic has the membership of a Backward Class been so enticing, so easy or so inviting.’

7. See para 90 of the judgement of Bilal Nazki ACJ in B. Archana Reddy v. State of Andhra Pradesh (2005).

8. The judge pointed out that the indicators of social backwardness should be directly linked to the community and suggested that the unfettered power of Muslim men to divorce their wives or the practise of purdah could have been possible criteria for the commission to have examined. This was rejected by Justice N.V. Ramana in a concurring judgment, with the observation that judges need to refrain from suggesting criteria for identification of backwardness, which was within the province of the executive to determine.

9. Bal Patil v. Union of India (2005).

10. Committee of Management, Anjuman Madarsa Noorul Islam Dehra Kalan v. State of Uttar Pradesh (2007).

11. Ashok Kumar Thakur v. Union of India (2008).