PROTECTIVE DISCRIMINATION AND EDUCATIONAL PLANNING T. S. Rama Rao

The term "protective discrimination" was coined by Professor C.H. Alexandrowicz to indicate the measures of protection including re­servation of seats in colleges and posts in government service sanctioned by the Indian Constitution, by way of exception to the general principle of equality and non-discrimination embodied in articles 14, 15 (1), 16 (1) and 16 (2) of the Constitution, and in favour of the scheduled castes, scheduled tribes and backward classes.1 The problem of balancing the general principle of equality with these special protective measures has proved a ticklish constitutional and sociological issue in independent India. We may briefly make a survey of the problem in its historical perspective for a proper understanding of it.

PRE-CONSTITUTION POSITION

Hindu society has always been riven in various castes and sub-castes, but prior to the twentieth century, due to its general immobility and its being rooted in villages, the different castes accommodated them­selves to a peaceful coexistence without much scope for exhibition of rivalries. But increased communications, literacy and circulation of journals and books, particularly in the regional languages had the effect of increasing the solidarity of the people belonging to the same castes but spread over large distances and this in turn led to conflict and competi­tion between the different castes, in the economic and political spheres. In north India, the bitter animosity and rivalry between the Hindu and the Muslim communities softened and subdued the scope for inter-caste quarrels, but in the south where Muslims were a tiny minority, the early half of the twentieth century witnessed an open and full-fledged tussle between the tiny Brahmin community which had taken to English education at an early date after consolidation of British power in India and thus en­joyed a mutual monopoly of the jobs under the services, and the non-Brahmin communities which woke up to the opportunities available under such education rather late in the day. Unlike the land-owning non-Brahmin elite which was well entrenched economically in the rural areas, and had thus no immediate incentive to join service under the English

1. See Alexandrowicz, Constitutional Developments in India 56 (1958). For general literaiure on the problem of protective discrimination and reservation in favour of backward classes, see Marc Galanter, "Protective Discrimination for Back­ward Classes in India," 3 J.I.L.I. 38 (1961) ; N. Radhakrishnan, "Reservation to Back­ward Classes," 13 Indian Year Book of International Affairs 293 (1964); N. Radhakrishnan^ "Units of Social and Economic and Educational Backwardness : Caste and Individual," 7 J.I.L.I. 262 (1965); Smith, India as a Secular State 304-26 ; Harrison, India—The Most Dangerous Decades (1960), especially the chapter on "The New Caste Lobbies".

T. S. Rama Rao 73

East India Company and later under the English Government, the tradi­tionally poorer Brahmin community whose only asset was the hereditarily-acquired propensity for learning naturally jumped at the opportunity of switching over from traditional scholastic pursuits to English education and thereby cornering the Company jobs. This resulted in the organiza­tion of the non-Brahmin movement under the banner of the Justice Party in Madras, which was later supplanted by the Dravida Kazahgam and the Dravida Munnetra Kazahagam, aimed at putting an end to the alleged Brahmin domination. The Brahmin intellectual elite also took a leading part in the activities of the Congress Party. In contrast, the Justice Party was completely loyal, its spokesman once pointing out : "When India was seething with sedition,...the non-Brahmins of our province came to the rescue of the Government... . It is the non-Brahmins who fought the non-cooperation, and it is the non-Brahmins who helped the Government with men and money to fight the enemies."8 Such extreme loyalty could not go unrewarded and the Governor of Madras, Lord Willingdon "went out of the way and choose a purely communal ministry"3 formed by the Justice Party, after the 1920 elections, when a limited autonomy permit­ting formation of ministries was conferred on the provinces under the Montagu Chelmsford reforms. The ministry initiated several measures for curtailing Brahmin representation in the services as well as educational institutions, and the policy of communal reservation was actively pursued by the Madras Government ever since then. There was a similar non-Brahmin movement in Maharashtra headed by some leaders of the Maratha community, like the Raja of Kolhapur, and, in fact, Kaka Kalelkar points out that "the movement travelled south4 from Maharashtra and thus originated in that area. The movement achieved considerable success in Mysore also. The types of communal reservation adopted in these different areas, however, took different forms. In Mysore all commu­nities, Hindu and non-Hindu, excluding the Brahmins and thus constitut­ing 97 per cent of the population were listed as early as 1918 as backward

2. Speech of Dr. C. Natesa Mudaliar, in the Madras Legislature on March 15, 1923, quoted in R.V. Krishna Iyer, In the Legislature of Those Days 13. Evidently, the speaker is wrong in identifying all the non-Brahmins with the Justice Party, as there were several patriotic non-Brahmins who took a notable part in the freedom struggle and in Congress activities. It is interesting to note that reservation of even territorial constituencies for non-Brahmins was effected in these days. See id. at 4.

3. Id. at 12. Mr. Krishna Iyer refers to two reasons for the hostility of the English rulers in Madras towards Brahmins, first that the Brahmins were becoming as poli­ticians a very troublesome thorn on the side of the British bureaucracy and, secondly, that they were "as officials, rival claimants with ever increasing right on their side to higher posts in Government service as against the Europeans." Id. at 11.

4. Kaka Kalelkar's letter to the President, Report of the Backward Classes Commissions XXIII (1956) (hereinafter cited as RBCC).

74 Protective Discrimination and Educational Plann ing

communities, entitled to perpetual treatment.5 In Madras, however, the list of backward classes was presumably prepared by a non-Justicete and while the list (applicable to the composite Madras Province including large areas of the present Andhra State and the Malabar District) is extensive, we find that it contains only the really backward sections of the community and that the forward non-Brahmin communities like Mudaliars, Naidus, Gounders, Pillais, Kammas and Reddis (the last two belonging to the present Andhra State) were excluded from it. This, however, did not prevent reservation of jobs, etc., for the forward non-Brahmin communities, but only it had to be done in an open manner and not under the more neutral secular guise of "backward classes." Thus the communal government order quashed by the Supreme Court in State of Madras v. Sm. Champakam Dorairajan6 as violative of article 15 (1) of the Constitution, provides for reservation of six out of every fourteen posts and seats for "forward non-Brahmins" and only two cut of fourteen for "backward Hindus." Besides the ingenious device of taking away the power of selection of students in all government colleges, includ­ing medical and engineering ones, from the principals and conferring on ad hoc committees, consisting of local non-official nominees of the govern­ment, was begun, I understand, in 1927 and is being religiously pursued even now in Madras. Such vesting of powers of selection in non-official and non-academic as well as local celebrities had the intended effect of reducing drastically the proportion of Brahmin students. The caste of the applicants was also required to be mentioned in all application forms to academic institutions as well as for governmsnt jobs, and also in the S.S.L.C. books at the high school stage. While, after independence, the government has felt bound to abandon requirement of information of caste in application forms, the S.S.L.C. books are being maintained as previously offering an unfailing clue about the caste of all candidates, and all applicants for jobs and seats in colleges are usually required to furnish together with their applications certified copies of the first sheet of the S.S.L.C. book, giving the information about caste, together with other in­formation on date of birth, etc.

In north India and at the level of the Central Government, the Muslims were the chief beneficiaries of the system of reservation. Thus the system was first adopted by the Government of India under a Home Department Resolution of 1934 of the Government of India, the rules of recruitment required reservation of 25 per cent of all vacancies to be filled by direct recruitment to Muslims and 8 1/3 per cent for other minority

5. See Havanur, Specifying the Backward Classes without the Caste Basis 40. 6. A.I.R. 1951 S.C. 226.

T. S. Rama Rao 75

communities, with no reservation for the depressed classes.7 The Congress Party was opposed to statutory and formal reservation of jobs on a communal basis "as this would mean a rigid compartmental state structure, which will impede progress and development" but was in favour of a "fair and adequate" distribution of state appointments between the different communities "by convention and agreement."8

DEVELOPMENTS IN THE CONSTITUENT ASSEMBLY

After partition, the feeling in the mind of the Congress leaders was that the canker of communalism was removed from the Indian body-politic, with the secession of the Muslim communalists and that India would therefore progress on secular, non-communal lines on the basis of democratic and egalitarian principles. Thus in the Constituent Assembly, Sardar Patel, the Chairman of the Advisory Committee on Minorities and Fundamental Rights, dismissed a proposal for communal reserva­tion in the services as "a dangerous innovation." Under the new secular climate, the minorities like Christians voluntarily agreed to renounce claims for reservation, and the general understanding was that only the scheduled castes and the scheduled tribes and for limited period, the Anglo-Indian community, were in need of protection by way of reser­vation. Sardar Patel proudly proclaimed that "this Constitution of India, of free India, of a secular state, will not hereafter be disfigured by any provision on a communal basis."9

But even before these words were proclaimed, a quiet unpublicised back-bench revolt on the part of the non-Brahmin members from the south in the Congress seems to have occurred in favour of a constitu­tional recognition of the scheme of reservations in operation in the south. Evidently to placate these elements, the Congress leadership agreed to insert an exception to the principle of equality of opportunity in services enunciated in article 16 (2), by way of reservation in favour, not only of scheduled castes and tribes but also of "backward classes" under clause (4) of the article. Unfortunately, we do not have any record of the discussion in the Congress Legislature Party in the -Constituent Assembly to know the circumstance under which this deviation from the erstwhile policy

7. See for a careful collection of details on such questions as well as for a survey of the developments in the field of reservation at different periods, N. Radha-krishnan, "Reservation to the Backward Classes," 13 Indian Year Book of International Affairs 293, 294 et seq. (1964).

8. Mr. Nehru's letter to Mr. M.A. Jinnah, dated April 6, 1938, quoted in id. at 296.

9. Id. at 299.

76 Protective Discrimination and Educational Planning

of complete secularism was effected.10 It is significant, however, to note that the qualifying word "backward" before the term "class of citizens which, in the opinion of the State, is not adequately represented in the services under the State" in the present article 16 (4) of the Constitution, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly. Dr. Ambedkar explained in the Constituent Assembly that in the absence of such a qualifying word, "the exception made in favour of reservation will ultimately eat up the rule itself" and that is the justification why the r'rafting committee undertook on its own shoulders the responsibility of introducing the word "back­ward."11 A shrewd political observer like Dr. Ambedkar could not have failed to see the threat even to the position of the scheduled castes by the possibility of the dominant non-Brahmin castes monopolizing the government services, on the pretext of their inadequate representation in those services, and hence it is understandable that the initiative for adding the qualifying adjective "backward" came from, the drafting com­mittee headed by him. Dr. K. M. Munshi also emphasized that the clause was intended to benefit "classes who are really backward."12

The other major feature about the debates in the Constituent As­sembly on the present article 16, is the categorical declaration of Dr. Ambedkar that "the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, [i.e. the pre­sent article 16 (2)] must be confined to a minority of seats."13 He perti­nently raised the question: "Supposing, for instance, reservations were made for a community or collection of communities the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved, could anybody say that the reservation of 30 per cent as open to general competition would be satis­factory from the point of view of giving effect to the first principle, namely that there shall be equality of opportunity ? " "

This principle has now been adopted by the judiciary, though initially the Mysore High Court held such reservation over 50 per cent as constitutionally permissible in Kesava v. State of Mysore.15

Dr. Ambedkar also expressed the view in the Constituent Assembly, that personally he thought that the question what is a backward community "would be a justiciable matter" and that the Supreme Court could go into the question, whether in making reservation the

10. The only evidence is a reference by Dr. Ambedkar in the Constituent Assembly to the demand made by certain communities for reservation in government services. See 7 CAD. 701.

11. Id. at 702. An amendment to drop the qualifying word "backward" was also negatived by the Assembly. Id. at 7C4.

12. Id. at 697. 13. Id. at 701-02. 14. Ibid. 15. A.I.R. 1956 Mys. 20.

T. S. Rama Rao 77

state government has acted in a reasonable and prudent manner.10 Dr. Ambedkar also spoke in terms of backward communities only when re­ferring to article 16 (4) thus implicitly interpreting the word "class" in "backward class" as referring to castes and communities—a matter which has now become controversial.

It is to be noted that the Constitution, as drafted by the Constituent Assembly, provided for reservation only in the case of services under article 16, and not in the case of educational institutions regarding which the principle of equality of opportunity, enshrined in article 15 (2) was allowed plenary scope. In fact, Professor K.T. Shah proposed the amend­ment of the article to provide for measures for the "advantage, safeguard or betterment" of scheduled castes or backward Iribes, by way of exception to article 15 (1) and Dr. Ambedkar successfully opposed the amendment on the ground that the amendment will lead to the scheduled castes being "segregated from the general public."17

DEVELOPMENTS IN PARLIAMENT AT THE TIME OF THE CONSTITUTION (FIRST) AMENDMENT

Soon after the commencement of the Constitution, the validity of the Madras Government's communal G.O., noted above, was challenged in the Madras High Court, on the ground that it infringed the right under article 15 (1) of the petitioner, a Brahmin student, who applied for admis­sion to the medical college, only on the ground of her caste. As noted above, the G.O. fixed the proportion in which seats and posts should be distributed among persons of different castes and communities. The High Court and later the Supreme Court had no difficulty in holding in favour of the petitioner,18 and consequently article 15 was amended adding to it clause (4) similar in terms to article 16 (4), authorizing special provi­sions to be made by the state for "the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

The debates in the Parliament on the amendment reveal that while all members were agreed on the need to protect the interests of the really back­ward sections of the people, considerable anxiety was felt about the pos­sibility of the power of reservation being abused by the state governments in favour of forward communities also. Thus, Dr. S.P. Mookerjee introdu­ced an amendment substituting the word "reasonable" for "special" as the adjective qualifying the words "provision for the advancements of... backward classes." However, he withdrew the proposal, after Mr. Nehru assured that the "Select Committee considered such a possibility"

16. 7 C.A.D. 655. 17. Id. at 661. 18. See State of Madras v. Sm. Champakam Dorairajan, A.I.R. 1951 S.C. 226.

78 Protective Discrimination and Educational Planning

and was "of the view that this provision is not likely to be, and can­not indeed be, misused by any Government for perpetuating any class discrimination or for treating non-backward classes as backward for the purpose of conferring privileges on them."19 He also assured the house that the term "socially backward" would include "economic backwardness also."20

Earlier in the debate, when introducing the amendment bill before the house, Mr. Nehru made the following surprising admission : "Although it is my amendment thinking about it, I do not particularly like the words 'backward class of citizens,' and I hope the Select Committee may find a better wording. What I mean is this : It is the backward individual citizens that we should help. Why should we brand groups and classes into backward and forward?"21 Unfortunately, the Select Committee did not find a better word. It may be noted in this connection that Mr. Nehru repeated his "dislike" of the term "backward classes" at the inaugural meeting of the Backward Classes Commission and pointedly remarked that "it was basically wrong to label any section of the people as back­ward even if they were so, particularly when 90 per cent of the people in the country were poor and backward."23

The debates on the amendment were also significant as they gave ample indication of the inevitable scramble for classification as backward classes that India was to witness soon. Thus, Dr. C D . Deshmukh pointed out that backward classes in places other than Madras also should assert their rights under the Constitution.23 And Mr. Ramalingam Chettiar wanted an extension of the privileges under article 15 (4) "to the Vaisya Caste, who may be rich, but whose caste (was) educationally very back­ward."24 The race for backwardness was really on !

POST-AMENDMENT DEVELOPMENT

The appointment of the Backward Classes Commission by the President of India in 1953 to determine the criteria of socially and educationally backward classes and to prepare a list of such classes in accordance with such criteria, was the further signal for pressure on the past of various groups to be listed as backward classes, eligible for the preferential treatment envisaged under articles 15 (4) and 16 (4). The Commission prepared a list of 2,399 backward communities excluding

19. 12 Parliamentary Debates, col. 9830 (1951). 20. Ibid. 21. Id. at col. 9084. 22. RBCC 3. 23. Supra note 19, at col. 9775. 24. Id. at col. 9041.

T. S. Rama Rao 79

Harijans, of whom 913 of the major communities alone account for 116 million people. The Chairman of the Commission in his covering letter to the President when submitting the Commission's Report, referred the fact that the lure of preferences under the above articles led even the Christians and Muslims to claim that their society was more or less caste ridden.25 This came as a "rude shock" to the Chairman and made him doubt the utility of the Commission's recommendations in favour of denning backwardness in terms of caste. He also referred to the danger of the dominant communities, who may be educationally backward but are socially powerful ones "dominating the village scene" [with even the "upper castes like the Brahmins and the Banias having to bend before (their) will"], cornering jobs and seats at the expense of (he more backward sections in the villages, habitually "victimised by them.'"26 He also referred to the demand of some representatives of the backward classes to be given "special political representation or powers... over and above the universal adult franchise," which presumably means reservation of seats in the legislatures for the backward classes.27 Thus the attempt to confer benefits on the basis of castes, has only served to accentuate caste division and "sharpen caste consciousness on an enor­mous scale,"28 instead of promoting an egalitarian society. Professor Selig Harrison has drawn attention to another phenomenon which would seem to be a corollary of such caste-based preferences : "Where there are limited educational facilities, jobs, and promotions, it is not plans for expanding the facilities that excites men but rather how the younger sons of one caste group can elbow out another for the lion's share in the region."29 There is a danger that what begins as protective discrimi­nation of the weaker sections of society, may, if unchecked, end up in the dominant castes "elbowing" both really backward sections and the erstwhile upper classes out of all spheres of influence and power.30

Such a trend, however, seems to have been checked by two recent developments. First, the Government of India has taken a firm view against caste-based criteria for determining the backward classes and has suggested "adoption of occupational criteria of backwardness."31 It has also recently suggested that reservation for backward classes, scheduled castes and scheduled tribes may be up to 25 per cent with marginal adjustments not exceeding 10 per cent in exceptional cases. Secondly, the Supreme Court has in two recent decisions elucidated the law relating to such reservations under articles 15 (4) and

25. RBCC vi. 26. Id. at xx-xxiii. 27. Id. at xxvi. 28. Selig Harrison, op. cit. Supra note 1, at 103. 29 Id, at 104. 30. See Marc Galanter, supra note 1, at 54.

80 Protective Discrimination and Educational Planning

16 (4) of the Constitution in a manner which has removed much of the obscurity and misconceptions surrounding it and which has struck a right balance between the principles of equal opportunity on the one hand and protective discrimination on the other.

In the first of the two cases, M. R Balaji v. State of Mysore,31 the Supreme Court struck down the Mysore Government's order reserving 68 per cent of the seats in engineering and medical colleges for backward classes, more backward classes, scheduled castes and scheduled tribes on the basis of castes, as inconsistent with article 15 (4). Various legal propositions were enunciated by Mr. Justice Gajendragadkar, in his judgment, which may be dealt with briefly seriatim. First, the Court held that since article 15 (4) refers to "social and educational" backwardness, the state has to establish backwardness in both these spheres. Taking up the test of social backwardness, the learned Judge observed that

though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward.32

He further observed : [W]e are satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the consideration only of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15 (4) and that itself would introduce an infirmity which is fatal to the validity of the said classification.33

However, earlier, the Court took the following view regarding the relevance of caste, in determining backwardness, which has imparted a certain element of confusion into the question, judging by the interpreta­tions of those observations by High Courts and academic writers. It said :

In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it bscame rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations...which intro­duced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with the ques­tion as to whether any class of citizens is socially backward or not,

31~. A.I.R. 1963 S.C. 649. 32. Id. at 659. 33. Id. at 660.

T. S. Rama Rao 81

it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves.34

Taking up the question of educational backwardness, next, the Court struck down the classification of backward classes into two cate­gories, backward and more backward, based upon whether the average of student population per thousand in the particular community is above or below 50 per cent of the state average. The Court held :

If the State average is 69 per thousand, a community which satisfied the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50 per cent of the State average are obviously educationally backward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average.

In this connection, it is necessary to add that the sub-classification made by the order between Backward Classes and More Backward Classes does not appear to be justified under Art. 15 (4) The result of the method adopted by the impugned order is that nearly 90 per cent of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15 (4).35

The Court then made the significant remarks :

A special provision contemplated by Art. 15 (4) like reservation of posts and appointments contemplated by Art. 16 (4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole.... In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in

34. Id. at 659. 35. Id. at 660-61.

82 Protective Discrimination and Educational Planning

Art. 15 (4) it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed; the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations.36

Further, We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15 (4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15 (4).37

Thus the frequent use of the adjectives, "reasonable," "objective" and "rational" by the Court to indicate the manner in which reservation ought to be made by the state indicates that the Court has virtually read the word "reasonable" into article 15 (4). However, the Court was careful to bring in also the test of fraud on the Constitution, which is narrower in scope, thus giving room for some uncertainty about the extent of permissible judicial review of the state action under the section.

A certain ambivalence of attitude in demarcating the boundaries of permissible state power in such cases with sociological overtones is per­haps inevitable, and perhaps one has to wait for the gradual working out of the judicial process of exclusion and inclusion in course of time for the law on the subject to get fully settled and certain. It seems, however, clearly to follow from the present judgment that reservation of more than 50 per cent of seats or posts would generally be beyond the power of the state, and that the tests envisaged by the state for determining backward­ness, cannot rope in sections of the people just below the state average, within the net of backwardness. The Mysore Government had sought to treat the powerful Lingayat community as backward on this ground, but nullifying the decision of the government, the present decision would seem to make it difficult for the state to make reservation for any but the really backward sections of the people. On the whole, it is submitted that the judgment has given effect to the intention of the framers of the Constitution as well as of the first amendment, in interpreting articles 15 (4) and 16 (4). This would be clear when the observations of Dr. Ambedkar, Dr. S.P. Mookerjea and Dr, K.M. Munshi, noted above, are borne in mind.

36. Id. at 663, 37. Ibid.

T. S. Rama Rao 83 On the issue of social backwardness, by insisting that caste should not

be the sole basis of classification and should be supplemented by economic or other criteria, the judgment would seem to exclude the possibility of the dominant castes being classified as backward. However, the Court seems to feel, as the Backward Classes Commission did earlier, that the ritual purity and the place of a particular caste in the traditional hierarchy of castes, may not be irrelevant for purposes of determining backwardness. We would take the liberty of questioning the relevance of traditional notions of the status of a caste (strictly speaking the hierarchy applied only to varnas, not castes as such) in the modern times. Obviously, in the context of the present Indian society, ritual purity of a caste has nothing to do with social status of a community which depends upon several factors like the extent of wealth possessed by its members, the political pull it can exert, etc. A poor, orthodox, tufted Brahmin priest is more often an object of ridicule than of veneration, and at any rate, sociologists have observed, and as everyday observation of rural India will bear out, that the non-land-owning Brahmins in the villages are subservient to the members of the dominant castes. Ritual purity and traditional status under religious norms are much less operative in urban areas. I would venture to submit, therefore, that a test based on these is irrelevant for deter­mining the backwardness of a class. Similarly, it is a paradox to call the dominant castes, which have emerged as politically strong and influential groups in the different Indian states at present, as socially backward. It is a contradiction in terms to call the elite in power as backward under any test.

Chitralekha v. State of Mysore™ is the next leading case where the Supreme Court rejected the view taken by the Mysore High Court that castes should be taken into account in determining backwardness, and upheld the order of the Mysore Government, classifying backward classes on the basis of income and occupation. Mr. Justice Subba Rao, in delivering the majority judgment, however, remarked on the juxtaposition of the expression "backward classes" with "scheduled castes" in article 15 (4) and took the view that the expression "classes" is not synonymous with castes. It has been argued that this view is against the intention of the framers.39

Undoubtedly, the speeches of Dr. Ambedkar and others in the Constituent Assembly and Parliament, while debating the Constitution, seem to pro­ceed on an implicit equation of classes with "castes," but it is not seen how giving the normal grammatical construction to the word "classes" would be against the intention of the framers, especially when Mr. Justice Subba Rao concedes that caste "may have some relevance," but in determining backwardness, it cannot be "either the sole or dominant criterion" for the purpose.40

38. A.I.R. 1964 S.C. 1823. 39. See N. Radhakrishnan, "Unit of Social, Economic and Educational Back­

wardness," 7 J.I.L.l. 262 (1965). 40. Mudholkar, J., dissenting, however, denied completely the relevance of

castes for this purpose.

84 Protective Discrimination and Educational Planning

In the above decision, however, the system of holding interviews for selection of candidates for admission to medical and engineering colleges, and of allotting marks for the purpose was held not to violate the requirement of article 14. He conceded the possibility of abuse of the inter­viewing technique to favour candidates belonging to particular castes but held: "If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of award­ing marks in the written examinations."41 An educationist may perhaps be pardoned if he pleads that examinations offer much less scope for manipulation or a capricious or hurried decision than interviews, and, at any rate, offer a more reliable test of the ability of a candidate. Anyhow, it may be noted that the practice of referring the authority to elect candidates to a body of local non-officials, to which attention has been drawn earlier, is definitely susceptible to manipulations based on either individual or group bias. The limitations of the judicial process in dealing with the permissibility of such administrative techniques are understandable. It may, however, be hoped that a body like the Education Commission can go into the advisability of the continuance of such practices more thoroughly.42

Consequent on the Supreme Court decisions, all the states seem now to be in the process of re-classifying the criteria of backwardness on the basis of a combination of economic, occupational, income and caste criteria. This undoubtedly is a welcome change, but it may be an illusion to believe that in this caste-ridden country secular criteria will not be misused to favour particular communities, especially the dominant castes. The role of the judiciary as an effective check against abuse of such .sophisticated process may be circumscribed by the inherent limitation of the judicial process. It may be noted that the classification into back­ward and more backward classes is still being continued in force in Madras even after the decision in the Balaji case striking it down. One can specu­late on the reasons for affected communities not having recourse to the judiciary's protection to enforce their rights. Suffice it to say that a body like the Education Commission is eminently fitted to go into such questions, and help in effecting conformity with constitutional requirements on the part of states, by methods of unpublicised persuasion.

It is also suggested that the aid of scientists and psychologists

41. Id. at 1831, quoting James Hart, An Introduction to Administrative Law 180. 42. Mention may briefly be made of one other judicial decision, Jacob Mathew

v. State of Madras, A.I.R. 1964 Ker. 39, whsre the classification oftheEzhavas and Muslims as backward classes of Kerala was set aside, on the ground that the classifica­tion was based on old census figures which were irrelevant for determining present backwardness. The decision was, however, set aside, on appeal, on the untenable ground of the ritual status of the Ezhavas.

T. S. Rama Rao 85

should be obtained for determining the "backwardness" of particular classes in the field of education. To concede permanent reservation to particular communities would amount to accept the Tightness of the apar­theid doctrine that certain races are inherently inferior. This is scien­tifically incorrect. I feel that a dilution of standards at the high school level is probably responsible for the poor performance of students at the collegiate level, and proper steps to keep up the standards at that pre­liminary stage may eliminate the possibility of certain communities requiring reservation, because of their inability to compete with others. The American experience of tackling backward groups by methods, other than reservation, may also be carefully studied.

The temptation of reservation at present perhaps lies in its utility as an instrument in inter-caste rivalry for pre-empting of scarce communal resources in favour of one's own community. This is symptom of the wider malaise of the continuing division of India into competitive blocs of castes and communities. The problem of reservation will vanish when the individual Indian citizen regains his sovereign prerogative in a demo­cratic polity of being the decisive unit of power, in the place of caste.