Caste and Upliftment of Backwards in India

Electronic copy available at: http://ssrn.com/abstract=1703363

CASTE AND UPLIFTMENT OF BACKWARDS IN INDIA

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INTRODUCTION

India is most often labeled as the world‟s largest democracy; with a

controlling, protective and progressive constitution; a legal system designed to tackle, punish and control the discriminatory acts on the basis of caste; programs based on affirmative action that include mandate for reservations an overabundance of caste conscious measures designed to ensure upliftment of the backwards; and a campaign to fuel India‟s economic growth through the means of aggressive economic liberalization. Class is prevalent in every society but the caste system found in India is unique.

Socially, politically as well as academically, caste is as much significant in

India as race is in the United States, class is in Britain and faction is in Italy. It is the paramount fact of life in the Indian sub-continent, as well as the very core or essence of south Asian civilization.

The founding fathers of the Constitution of India were very much

concerned for the secularism. No single religion has been declared as a national faith constitutionally, as they were not willing to let India go on the path of Ireland and Pakistan in the matter of religion.

The constitution of India has no reference to sacred scripture, Brahmans,

shudras, gods, or concepts of purity. Yet ironically, the Constitution provides such provisions regarding the advancements of tribals, SCs and backward classes, so as to make the state agencies to recognize the existence of caste. Historically, there has been some castes and classes in the Indian society which were really deprived of equal opportunities for education and social development, just on fake concept of Varna system prevalent in the ancient times. So in order to bring equality of status and opportunity in the society, it was required to provide some privileges to the backwards.

This apparently or prima-facie foolproof master plan could not achieve any

substantial progress in the matter of attaining equality and to eradicate oppression and exclusion faced by over 167 million Dalits in India.1

1 Census of India, Census Data 2001, available at http://www.censusindia.gov.in/ Census_Data_2001/India_at_glance/scst.aspx.

Electronic copy available at: http://ssrn.com/abstract=1703363


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DEFINITION OF CASTE:

The word caste originated from the Spanish word ‘casta’ meaning „race‟ or

„a group having hereditary quality‟. The term was applied to people of India by the Portuguese to denote ‘Jati’. Mostly the word caste used to denote both ‘Varna’ and ‘Jati’. There are four „Varnas‟ (Brahmin, Kshatriya, Vaishya, Shudra) and about 4000 „Jati‟.The researcher has used the term caste here to denote ‘Jati’.

Caste can be defined as hereditary endogamous group, having a common

name common traditional occupation, common culture, relatively rigid in matters of mobility, distinctiveness of status and forming a single homogenous community. A caste is a horizontal segmental division of society spread over a district or region or the whole State and also sometimes outside it.2

But it is not appropriate to term caste as purely a horizontal segmental

division society in the context of India, because various caste found in India are equal. There is an element of inequality prevalent in caste system in India. And it would be apt to say that caste system originated particularly on the basis of inequality concept of Varna system. That‟s why it would be apt to term caste system in India as vertical segmental division of the society.

Difference between Caste and Class :

The caste and class are the two forms of social stratification in India and western society. Caste is a hierarchical division of the society. A sense of highness and low-ness is associated with this gradation or ranking. A class system allows both exogamy and endogamy, permits mobility either up or down the system. Caste system is based on ritual criterion whereas, class is based on secular. Ritual criterion means it is based on religious myths, secular means non-religious criterion like economic, political and social criterion. While a caste is hereditary, a class is non-hereditary in nature. Though caste and class are not identical; but caste can be an important ingredient to identify the backward class.

2 I.P. Desai, Should „caste‟ be the Basis for Recognising Backwardness (1985); D.A. Desai adopts this definition in K.C.

Vasanth Kumar v. State of Karnataka, 1985 Supp (1) SCC 714; According to E.S. Venkataramiah, J., “A caste is an association of

families which practices the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only…. A caste is based on various factors, sometimes it may be a class, a race or racial unit at p.786, para 110 Vasanth Kumar case.


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INDIAN CASTE SYSTEM

Caste is the basic pillar of the Indian social system. Caste in India may be

taken as an example of social hierarchical system which has been longest serving and most rigorously enforce in the whole world. However traces of caste were found in ancient Egypt, Japan, Rome, Burma and Persia. Almost 250 million people only in Asia and Africa are affected by this caste-based discrimination.3 But caste system which we understand today is prevalent in India alone. Like South Africa, actually, the people who are sitting at top of this caste pyramid constitute minority in number as compared to those lying in bottom. The total population of scheduled castes, scheduled tribes, other backward classes, lower caste people and religious minorities far outnumbers the population those uppercaste” Hindus.

According to the 2001 Census, in the total India‟s population the scheduled

castes constitute 16.2%, scheduled tribes constitute 8.2%, Sikhs constitute 1.9%, Janis constitute 0.4%, Buddhist constitute 0.8%, Christians constitute 2.3%, Muslims constitute 13.4%, and others constitute 0.6 percent.4 If we compare the population of people belonging to lower castes with the population of United States then we find that they are outnumbering the half of the total population of the United States. The total population of the United States is around 304 million, while there are almost 167 million people in India belonging to lower castes.5

There is a very close connection of caste with the Hindu philosophy,

religion, custom, family morals, traditions, manners, habits, occupations, food and dress habits. It is a deep rooted and long lasting social institution in India and withstood the onslaughts of time. In the Bhagavad Gita, Lord Krishna proclaims: “the four castes have been created by Me;”6 similarly, according to the Manu-Smriti, there are some of the main castes which have been created by the God from his different parts or forms, and codifies the respective Godgiven duties of each of these castes.7 However, the discrimination based on caste is also prevalent in Muslims, Sikhs and Christians against the lower caste people who have converted to these faiths so as to escape their systematic mistreatment. While the social cleavages among Muslims, are endogamous and social interaction across them has been extremely low, there have been studies to demonstrate that there has been enhanced interaction between „biradiris‟ closest

3 SMITA NARULA, CASTE DISCRIMINATION: A GLOBAL CONCERN (Human Rights Watch, 2001) [hereinafter A

GLOBAL CONCERN]. 4 See, supra, note 1.

5 U.S. Census Bureau, available at: http://www.census.gov/population/www/popclockus.html. 6 Bhagavad Gita 4.13.

7 THE LAWS OF MANU I, 87 (George Bühler trans., 1969).


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to one‟s own among Muslims that has led to encompassing identities, particularly at the higher levels of the social hierarchy.8 Syed Ali‟s study of Muslims in Hyderabad suggests that while was important in matrimonial alliances, often income, education, occupation and general social status could override caste considerations.9

In India the caste is criticized on the basis that it is based on vertical

hierarchy; which has created the biggest divide in the society. The whole concept of caste has been based on inequality than how can one expect justice to each and every person. The most vicious element in the Indian caste system is that caste is imposed on a person by his birth. Caste in India based on the descent of a person. It is

hereditary in nature. It is an irony that a person is free to convert his religion of his own choice; but he has no choice in case of his caste. The great divide in Indian society on the basis of caste can be understood with the fact that in ancient India, mostly the people belonging to high castes used to speak in Sanskrit; and the low caste people used to speak in Prakrit. Sanskrit was considered as a language meant for high class people.

The research focuses on Indian policies for eradicating the

discrimination based on caste against low caste people, for example the people belonging to scheduled castes, scheduled tribes and backward class communities and make an overview of constitutional provisions, various statutes and legislation aimed at abolishing inequality and promoting their socio-economic development. It takes an account of the India‟s policies, wherein seats are constitutionally reserved for scheduled castes, scheduled tribes and backward classes to ensure their proportional representation in government jobs, educational institutes, state and local legislative bodies, and the lower house of parliament.

India has laid down the foundation for real social transformation by

affirming legally Dalits‟ rights. Even after the introduction of various protective legislations for the lower caste people, the caste-based discrimination remains as an endemic and hierarchical social evil, which are reinforced most often through violent means.

8 S. JAPHET CHANDAN GOWDA, Caste Census Towards an Inclusive India(1st Edn. 2010), at p. 75

9 Syed Ali, “Collective and Elective Ethnicity: Caste Among Urban Muslims in India”, Sociological Forum, Vol. 17, No. 4,

December 2002.


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ORIGIN OF CASTE SYSTEM IN INDIA

There are various theories behind the establishment of the caste

system like religious-mystical theories, biological theories and socio-historical theories.

According to the religious theories, social division on the basis of

profession and race was laid down in Purushsukta, the Rig Vedic hymn, giving rise to four castes: kshatriyas (warriors), brahmanas (priests), vaishyas (prosperous landlords and traders) and shudras (cultivators).10 The idea that different castes were born from different parts of the same social body suggested about existence of organic links amidst them and about their equal importance. Religious stamp was given by tracing castes to God‟s acknowledgement that he formulated them on the basis of their character and action. 11 Continuance of caste system was facilitated by accommodating numerous sub-castes (jati) in each caste (varna).12

10 Romila Thapar, History of India, Vol.1 (Penguin Books, New Delhi 1966, 1981) at pp.37-41

11 “Chaturvarnyam maya srishtam guna karma vibhagashah…” The four orders of castes were created by Me classifying

them according to their qualities and actions andapportioning corresponding duties to them. Bhagvadgita, 4th -13. 12 B Kuppuswamy, Social Change in India (5th Edn., S. Chand, New Delhi 1970) at p. 160.


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CASTE AS A DIVISIVE FACTOR: Supreme Court observed in M. Nagaraj, “Under the Indian Constitution,

while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not his but social.”13

In the ancient times, the society was divided on the basis of caste. The high caste people used to discriminate with the low caste people. Untouchability was practiced on a large scale among the people. After the independence and the constitution coming into force, the situation has not undergone much change. Now there has begun a lot of caste-based politics in India. The clever politicians are not willing to lose even a single opportunity to politicize the caste. The position has created a phase where the ruling government is ready to provide more and more reservation facilities to the SC, ST and OBC people, in order to attract their votes. But such reservation criterion has again divided the society to a great extent. Because the members from general category, who are deprived of any reservation facility, are of the view that this reservation provision has been an infringement of their right to equality for status and opportunity enshrined under the fundamental rights of the constitution. This has created a divide among the people of the society creating various clashes in the form of riots and protests against or in favor of reservation. Opposed to the orthodox practice is the intellectual and rational exposition of spiritual equality reflected in social movements, religious literature and attempts of social reforms. Buddha rejected caste system, and preached Eight-Fold Path of leading moral life without causing pain to others. He instructed his disciples, “Go into all lands and preach this gospel. Tell them that the poor and the lowly, the rich and the the rich and the high, are all one, and that all castes unite in this religion as do the rivers in the sea.”14 Jainism was also a non-caste sect.15 The Bhakti saints of medieval period, especially Kabir and Nanak, preached to devotees social equality and castelessness, quite convincingly.16The caste system was also attacked by various social reformers like Raja Ram Mohan Rai. M.G. Ranade, Swamy Dayanand Saraswati and Jyoti Rao Phule etc., through various reform movements like- the Bhramasamaj founded by Raja Ram Mohan Roy, the Prarthana Samaj founded by Justice Ranade, the Arya Samaj founded by Swamy Dayanand Saraswati, and the Rama Krishna Mission started by Swamy Vivekananda. However these reform movements could not succeed in removing the rigidity of the caste system in this period17.

13 M. Nagaraj v. Union of India, (2006) 8 SCC 212.

14 V.D. Mahajan, Ancient India (5th Edn., S. Chand, New Delhi 1970) at p. 160.

15 Romila Thapar, supra, n. 2 at p.68. 16 Ibid, at p.311.

17 Ram Ahuja page 277.


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CONSTITUTIONAL PROVISIONS (MEASURES TO ENSURE EQUALITY):

Indian constitutionalism attempts, however imperfectly, to balance liberty and equality interests and in so doing foreshadows the delicate balance between formal and substantive conceptions of equality in international human rights law.18 According to ancient history, there has been a lot of discrimination based upon caste and religion in India. So the constitution makers were having an aim in their mind to constitute such a constitution which could infuse equality among all the people irrespective of caste, religion, race, etc. The constitution makers wanted to make a casteless society. The constitution was drafted and it assured “Liberty, Equality and Fraternity” which could cut the very root of caste system. These ideals were further elaborated in the Directive Principles of the State Policy. So how did the Constitution come to this ambivalent position recognizing the logic of caste in its undertaking to fight „social injustice‟ and advance the „weak‟, while otherwise denying its relevance to the citizens of a democratic nation-state?19 The influence of Ambedkar was the critical factor here, who was the main hand behind the drafting of the 1950 Constitution, particularly the provisions covering untouchability and uplift for the „weak‟. The very language of the Indian Constitution borrows heavily from the U.S. Constitution.20 During his time at Columbia University, Dr. B.R. Ambedkar was motivated by the provision made in the Fourteenth Amendment of the American constitution. Baba Saheb Dr Ambedkar Foundation was established in March 1992. It has been responsible to manage, administer and carry on the schemes and programmes which were taken into account during the celebrations of Dr B.R. Ambedkar. Some of these are Dr. Ambedkar National Award for Social Understanding and uplift of Weaker Sections; Dr Ambedkar International Award for social change or transformation, human dignity, harmony, equity and justice for the discriminated, exploited and the under privileged; and putting up Memorial for Dr Ambedkar.

This was therefore an area of constitutional provision which told Indians

that caste was real, and that the modern state has an obligation to protect its citizens from forms of disability which were unique to caste as a „system‟.21Even today, though, law and public policy are anything but „casteless‟. The Indian Arm has fought off attempts to abolish its pre-independence Sikh, Jat, Rajput and Dogra regiments, and in most so-called „mixed-class‟ regiments it has refused to

18

MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984)

(analyzing treatment of Dalits under Indian Constitution). 19 SUSAN BAYLY, Caste, society and politics in India (1st Edn. 1999 Cambridge University Press) at p. 270 20 PRATAP KUMAR GHOSH, The Constitution Of India: How It Has Been Framed 70 (1966). 21 Department of Social Welfare 1969 Report of the Committee on Untouchability: 42-81


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mix recruits of different caste within the individual companies that comprise a battalion. 22What remains of the prerogative previously enjoyed by the caste groups? The caste retains the right to manage and own property and to sue in courts. Section 9 of the Civil Procedure Code with its bar on judicial cognizance of the caste questions are still in force. And the courts still refuse to entertain the cases involving the caste questions and the caste retains the disciplinary powers over their members. The caste retains its power of excommunication. 23.

To the extent that its religious distinctiveness can be construed as giving it

a distinct culture of its own the caste group may merit the protection afforded by Article 29(1) which provides that „ any section of the citizens having a distinct language , script or culture of its own shall have the right to maintain the same. And Article 29 is mentioned by the courts in its assertions of the rights under Article 30(1). Apparently every religious denomination or section thereof may qualify as a cultural group. The right to conserve their culture clearly included the right to transmit their culture. The court in the case of Rev Sidhrajbhai Shabbji Vs State of Gujarat24 invalidated a government order withdrawing the aid and recognition from a teacher training institution which refused to reserve 80 percent of its places for the government appointees. The governmental regulation of the minority institution should not only be reasonable, but conducive to the minority community. Presumable then, any group which can characterize itself as either a minority based upon religion or a section of the citizens with a distinct culture may qualify for wide range of protection.

Article 17 of the Constitution abolishes Untouchability and forbids its

practice in any form. The Untouchability (Offences) Act was passed in 1955. Its scope was enlarged and its penal provisions were made more stringent by amending it in 1976. It was renamed as Protection of Civil Right Act. In 1989, another Act called Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) was passed. While Article 17 of Fundamental Rights abolishes Untouchability, Articles 14, 15 and 16 establish principles of equality and social justice. Article 14 proclaims equality before law and equal protection of law for all. Article 15(1) prohibits discrimination on grounds of race, caste, sex, religion or place of birth. Article 16(1) further provides equality of opportunity to all. These two articles apart from proclaiming every one equal also provides that that the State can make special provisions for SCs and STs. Articles 38 and 46 specifically aim at securing social justice to the deprived sections of the population.

22 Supra, Susan Bayly, at p. 273 23 Varadiah Vs Parthasarathy. 1964 Mad 417

24 AIR 1963 SC 540


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PROTECTIVE DISCRIMINATION:

The word „protective discrimination‟ may sound paradoxical, but in our society where inequality abounds, equality of all cannot be a reality without discrimination to level up inequality. For the purpose of securing equality, the government is empowered to make certain special provisions so as to favor the untouchables, the tribal and the backward classes. After the enactment of the first constitutional amendment in 1951, Balaji25 was the first case which came up before the Supreme Court in which it struck down a scheme of reservation in college for the backward classes on the ground that they were selected solely on the ground of caste. It seems, by the decision of this case, that the highest judiciary of the country was not really willing to provide any special treatment to the uplifment of backwards on the basis of caste. The main reason for rejected the Mysore order was that it was based solely on caste. After Balaji, an order in which a family with income less than Rs.1,200 per year, and which practiced such occupations as crafts, agriculture, petty business, inferior services etc. were declared to be treated as „backward‟ by the State Government, was held to be valid in Chitralekha Vs State of Mysore 26. Here two factors-economic condition and profession-were taken into account to define backwardness, but caste was ignored for the purpose. This clearly confirms the Balaji view that caste caste cannot be considered as a basis of backwardness.

In course of time, the judicial view has undergone some change in this

respect and „caste‟ as a factor to assess backwardness has been given somewhat more importance. The Supreme court has noted the fact that there are numerous castes in the country which are backward socially and educationally and the state has to protect their interests. A caste is also a „class‟ of citizens and, therefore, if an entire caste is found to be socially and educationally backward, as a fact, on the basis of relevant data and material, then inclusion of the caste as such would not violate Article 15(1). When backwardness is defined with reference to castes, the Court wants to be satisfied that not „caste‟ alone, but other factors have also been considered for the purpose.27

25

M.R. BALAJI V. STATE OF MYSORE, AIR 1963 SC 649 26 AIR 1964 SC 1833 27

M.P. JAIN, Indian Constitutional Law, (5th Edn. 2003) at p.914


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RESERVATION AS MEANS FOR UPLIFTMENT OF BACKWARDS: The topic of reservations has become a very crucial issue in today‟s India.

Opportunities are limited in the country, that‟s why keen competition has been created and the government is pressurized to make provisions for the reservation for all kinds of groups apart from reservations for Scheduled Castes, Scheduled Tribes and backward classes. It is correct to say that any type of reservation is discriminatory, because reservation means that if two candidates are having equal merit then the candidate belonging to the reserve quota will be preferred to the seat. It creates a feeling of frustration in many deserving candidates and they seek to challenge the scheme of reservation as unconstitutional. Scholars on caste in India have focused a lot on the reservations policy. Still the reservations could not be proved to be a sufficient remedy for rehabilitating the historically discriminated Dalits. Article 15(4) provides that nothing in this article or in Article29(2) shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

The two most contentious issues in the application of Article 15(4),

which is now also the case with Article 15(5), as well as Article 16(4), have been: (1) determination of backward classes and (2) extent or quantum of reservation.28 Under Article 340, the government can appoint a Commission to investigate into the conditions of Other Backward Classes and make recommendations. It is important to note here that the Constitution does not specify which groups constitute backward classes. The Government had appointed two Backward Classes Commissions give the criteria to identify backward classes on the basis of communities or castes.

The First Backward Classes Commission was appointed in 1953 under the

Chairmanship of Kaka Saheb Kalelkar. It identified 2,399 castes and communities as Backward Classes. However, the government did not accept the recommendations of this Commission. For the first time, in Balaji29, the question was raised before the supreme court relating to the extent of special provisions which the States can make under Art. 15(4). In this case the State had argued that since Art. 15(4) does not contain any limitation on the State‟s power to make reservation, 100% reservation could be made in favor of backward classes in the higher educational institution if the problem of backwardness in a State so demanded. The court, rejecting this argument held that Art. 15(4) must be read with Art. 46, and steps ought to be taken to redress backwardness and inequality from which the backward classes, Scheduled Castes and Scheduled Tribes suffer otherwise for them political freedom and Fundamental rights would have little

28

MAHENDRA P. SINGH, V.N. Shukla’s Constitution of India, (11th Edn. 2008), at p.88. 29

M.R. BALAJI V. STATE OF MYSORE, AIR 1963 SC 649


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meaning. Art. 15(4) being a special provision cannot denude Art. 15(1) of all its significance. The special provision contemplated must be within reasonable limits. In an attempt of promoting and preserving the interests of the people who belong to the weaker sections of the society, the interest of the society as a whole cannot be ignored; and the interests of the weaker section of society have to be adjusted with the interests of the whole community. The national interest and the interest of the society as a whole shall be kept into considerations while providing for reasonable and special provisions for the weaker sections of the society under Art. 15(4). The supreme court condemned the excessive reservation, for it may affect efficiency by eliminating general competition. The general principal laid down by the court is that the maximum limit of reservation should not be more than 50%.

In the State of Kerela Vs N.M.Thomas30 , the Supreme Court held that it

was permissible to give preferential treatment to the SC‟s and ST‟s under Article 16(4). The majority held that Article 16(4) is not in the nature of exception but it is a facet of Article 16(1), which fosters and furthers the idea of equality of opportunity, with special reference to an under privileged and deprived classes of citizens. The majority thus ruled that Article 16(1) itself permits reasonable classification for attaining equality of opportunity assured by it. Thomas case thus marks a beginning of a new judicial thinking on article 16 and leads greater concession to the SC‟s, ST‟s and the OBC‟s.

After these judgments, a lot of incidents happened where a wholesale

reservation were announced by the respective States. A very confusing and anarchic situation was prevalent in the country. The Second Backward Classes Commission was appointed in 1978 under the Chairmanship of B.P. Mandal and this was known as Mandal Commission. In the Commission‟s opinion backwardness was related to Caste. Accordingly, it identified 3,743 castes as backward on the basis of above mentioned indicators. Since then these castes have come to be known as Other Backward Castes (OBC‟s) meaning thereby backward castes other than Scheduled Castes. In August 1990, Government of India announced the acceptance of Mandal Commission‟s recommendations. This was the time when decision of Supreme court came in Mandal Commission Case.31 REDDY, J. in his elaborate judgment answered the several questions that emerged in the instant case.

1. Backward class of citizens in Article 16(4) can be identified on the basis of

caste and not only on economic basis. The majority held that caste can be a criteria for ascertaining the backward classes in India; because caste is

30 AIR 1976 SC SC490 : (1976) 2 SCC 310 31 Indra Sawheny v. Union of India AIR 1993 SC 477


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itself a social class in India and if the caste is socially backward then it can be considered a backward class for the purpose of Article 16(4).

2. Article 16(4) is not an exception to Article 16(1); it is an instance of classification and reservation can be made under Article 16(1).

3. The backward classes in Article 16(4) are not similar to as socially and educationally backward in Article 15(4).

4. „Creamy Layer‟ must be excluded from the Backward Classes. 5. Article 16(4) permits classification of the backward classes into backward

and more backward classes. 6. Economic condition of a person cannot be the only criteria to identify the

backwardness. 7. Reservation shall not exceed 50% and can be made by an executive order.

However there can be no reservation in promotion.

The Supreme Court‟s judgment in the Mandal commission case while

recognizing the caste as a factor of reservation laid down the exclusion of the „Creamy Layer‟ for getting the benefits of reservation meant for the OBC‟s. The implication of this judgment is, (i) Caste though a necessary condition is no longer a sufficient condition; (ii) Economic test should be applied along with the already existing identification criterion.

The judgment was welcomed by all sections of the society as it had diffused

the crisis related to the reservation on the basis of Mandal Commission‟s report. Despite the criticism the Supreme Court certain basic questions relating to the reservation issue. The important development was that the court had accepted caste as determinant of backwardness. It was viewed that at least one has to begin with some point, group, class or section. There is no recognized method to calculate the backwardness. Thus there is no wrong to begin with castes, which represented explicit identifiable social classes or groupings, more particularly when Article 16(4) sought to ameliorate social backwardness. The Constitution 77th Amendment Act, 1995 has included a new clause (4-A) which enabled the State to make provision for reservation in the matters of promotion in the services of the state in favor of the Scheduled caste and the Scheduled tribe; this is clearly intended to nullify the effect of the decision of the Mandal Commission case. The State is obliged under Art. 46 to promote the economic and educational interests of the weaker sections of the society with special care, and of the Scheduled Castes and the Scheduled Tribes in particular, and to give them protection against all forms of exploitation and social injustice. Art. 46 supplements Arts. 15(2), 15(4), 16, 17 and 19(2). The State can can separately categorize Scheduled Castes and Scheduled Tribes for the purpose of adequate representation in the services.


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WELFARE OF SCHEDULED CASTES AND SCHEDULED TRIBES: The situation of Scheduled Castes and Scheduled Tribes and their needs

were acknowledged by the framers of the Constitution themselves. Thus, on the one hand Constitution of India itself prescribed certain protective measures, safeguards and welfare measures for these sections and on the other hand successive Five-Year Plans have also regarded the welfare of SCs and STs as a major objective of development policy. In addition, both the Union and State governments have taken up specific steps and launched various schemes and programmes for their improvement. The people belonging to scheduled castes and scheduled tribes of Madhya Pradesh and Maharashtra, who have settled in Gujarat following implementation of the Sardar Sarovar project will continue status of scheduled castes and scheduled tribes through the Constitution (Scheduled Castes and Scheduled Tribes) Orders (Amendment) Bill, 2002.32

In addition to constitutional provisions, the government of India has pursued a two-pronged approach to narrowing the gap between the socio-economic status of the scheduled caste population and the national average: one prong involves regulatory measures which ensure that the various provisions to protect their rights and interests are adequately implemented, enforced and monitored; the second focuses on increasing the self-sufficiency of the scheduled caste population through financial assistance for self-employment activities through development programs to increase education and skills.

The protective component of this strategy includes the enforcement of those

legal provisions that make up the Protection of Civil Rights Act, 1955, and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; of other state and central government laws; and of “positive discrimination” through reservations in the arenas of government employment and higher education.

These protective measures are monitored by the National Commissions for

Scheduled Castes and Scheduled Tribes (The two commissions were until recently a single National Commission for Scheduled Castes and Scheduled Tribes, set up pursuant to Article 338 of the Indian Constitution and entrusted with the responsibility to ensure the implementation of the safeguards and protections given to scheduled castes and tribes). The development measures for the educational, social, and economic “upliftment” of scheduled castes are administered by the Ministry of Social Justice and Empowerment.

32 http://indiacode.nic.in


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There have been a lot of plans made for the empowerment and development of the Scheduled Castes and the Scheduled Castes till now, but still a lot of hard work has to be done in order to imagine for the equality on the ground. Still the people are not getting proper education, employment, health, sanitation facilities. Actually the problem is not that the development plans are lacking, but they are not properly implemented.

It can be seen from the various provisions of the constitution and

subsequent constitutional amendments and legislations that the government is trying to use reservation as a tool for the upliftment of backwards. Now the question comes as to how far this tool of reservation has been successful in its aim. It may be admitted that reservations are an attempt, however imperfect, to equalize opportunity in the face of a social structure that is antithetical to equality of opportunity. But reservations alone constitute insufficient remedy to the problem of caste discrimination in India- as the reservations have in itself been subject to criticisms by various masses of people.

Reservations are an attempt, however imperfect, to provide an equalize

opportunity in the face of a social structure that is antithetical to equality of opportunity. Reservations create the possibility of a meritocracy in a system that is functionally anti-merit. Yet conversations about affirmative action stagnate around the question of whose disadvantage deserves protection and for how long, and fail to ask who stands to benefit from systematic social exclusion. Reservations alone constitute an insufficient remedy to the problem of caste discrimination in India. Controversy over the reservations scheme has also allowed the debate to predictably stagnate around the distribution of “privilege,” taking the focus away from violations of basic rights.


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CRITICISMS AGAINST CASTE-BASED IDENTIFICATION OF BACKWARDNESS:

It is ironical to say that instead of enforcing the rules of law, rules of the

caste system are being enforced by India‟s law enforcement machinery. Critics say that the strategy of caste based reservations for purposes of social „uplift‟ rests on the concepts of collective deprivation which are crude and ahistorical, and that it promotes a view of Muslims and other non-Hindus as being in some way unworthy of the state‟s protection. The system has been challenged too on the grounds that the caste-name lists and other data used in these exercises repeat many of the errors and contradictions of the old colonial ethnographic inventories. A particular complaint is that the caste designations appearing on the Scheduled Tribe and Caste lists include many which refer to broadest and most generalized regional status groupings, and certainly not to homogenous „communities‟ with an inheritance of uniform „disability‟. Furthermore, the much-debated theory of the „creamy layer‟ holds that these quota schemes do not direct aid to those who are truly needy. The debates on this topic have been all the more vehement because both before and after Independence, some campaigners have linked these apparently sound and rational ant-reservations arguments to assertions that the „depressed‟ are poor and backward by divine mandate or personal deficiency, and therefore have no claim on the state‟s limited resources. The thought that government action might in some way give credence to these views has been particularly alarming to defenders of the Nehruvian „secular‟ tradition.

Firstly, since caste is a constitutionally prohibited ground of discrimination

and has linkage with religion, use of it for ameliorative purpose is not appropriate especially when alternative and secular criteria can be used for identification of backward classes.

Secondly, caste in the present day world is not reflecting attributes of

superiority or subordination with privileges and disabilities because of the social dynamics of urbanization and education. Thirdly, determination of status of caste on the basis of caste-wise statistics of 1931 census, as is presently done by various Commissions is unscientific. Fourthly, in order to get the benefits, devious methods are adopted by false attribution of some characteristics or even by false certificates. The means test that is used to keep away Creamy layer is not foolproof in practice in checking undeserved claims.In earlier times, it may be stated that slavery was in one way institutionalized by the caste system in India. Or, the caste system is itself an institutionalized slavery.


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CONCLUSION Preamble of the constitution of India commits itself to secure to all the

citizen Justice, Social, Economic and Political, equality of status and opportunity. But merely declaring that all citizens are free and equal was not sufficient and there was need to create a mechanism of law for achieving social change.

It is really a paradoxical situation that while on one hand, constitution is having a foundation of social transformation; but on the other hand India is hiding the real segregation, exploitation and other forms of abuse by not allowing further studies into the condition of backwards. Despite a large body of legislations, the laws have benefited few and still there are a large number of people who suffers from discrimination, social exclusion and oppression; the people are still besieged with the mind sets of superiority and inferiority of caste.

Growing agitations by backwards and dalits for their rights are increasingly met with large-scale violence and attempt to further remove dalits from economic self-sufficiency.

From the above study, it can be inferred that while at the social level harsh practices of caste prejudices and untouchability caused social degradation, the intellectuals, rational thinkers and reformists supplied motivating force for eradication of the evils experienced of caste system. It is significant that the innate voice of reform coming from within the society repeatedly at various stages of historical development kept alive the aspiration for justice.

It is paradoxical situation in India that it has made tremendous progress in

nearly every field, but the condition of its dalits and backward communities is still unchanged. It is doubtful to say that the road on which India is running will eventually take it to a destination where one‟s status or his claims over resources or his very human personality will not be determined by his race and caste.


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SUGGESTIONS

1. NEED OF AFFIRMATIVE ACTION POLICIES AND DEBATES:

Various mechanisms of law in the form of protective legislations and constitutional

amendments and provisions were used to create a real social transformation in India. But

they could not actually penetrate the ceiling of caste, and eradicate the caste based

inequality and exploitation. Now it is required that that some affirmative action policies

and debates are taken to further examine the conditions of the backwards.

2. TESTING OF MECHANISMS OF LAW:

Now the time has come that the formal mechanisms of law meant for bringing

social change in the society should be properly scrutinized so as to ensure they are able to

effectively redress entrenched discrimination against backwards and ensure their

substantive equality. This is the first step to test actual impact of these mechanisms.

3. TO KNOW WHO IS BEING BENEFITTED IN REALITY:

It is now real concern to know that whether the backward people for whom the

privileges are being made, are actually being benefitted, or the persons who are already in

a better position are making use of them. For this, a proper survey should be carried to

know the creamy layer people in backward classes, so that the creamy layer can be fully

implemented and needy could be benefitted.

4. RESERVATIONS SHOULD NOT BE GIVEN IN PROMOTIONS:

It is submitted that the reservations should not be given in promotions of services.

The aim of providing reservation to a backward person is to let him have an opportunity

to rise in his social and economic status. It is assumed that a person when gets a job on

the basis of reservation already comes up in his status, he can no more be deemed as

backward; so what is the requirement of giving him further reservations in promotion.

This is required so that the reservation facility can be availed only by the person who is in

real need of it.

5. HUMAN RIGHTS STRATEGIES MUST BE REFORMED:

Two goals must be set in the human rights strategies so as to first, remedying the

effects of discrimination and second, dismantling the discriminatory mindset. Without the

dismantling of discriminatory mindset, the aim of equality will by definition remain

incomplete.

6. NEED TO LOOK BEYOND THE MERE EXISTENCE OF POLICIES:

The need is to look beyond the mere existence of affirmative action policies and

protective legislation and to scrutinize the implementation of these laws.


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ANNOTATED BIBLIOGRAPHY

1. Bhagvadgita 4th Edition 2. Bayly Susan, Caste, Society and Politics in India (1st Edn. 1999), Cambridge

University Press. 3. Department of Social Welfare 1969, Report of the Committee on

Untouchability. 4. Ghosh Pratap Kumar, The Constitution of India: How It Has Been Framed 70

(1966). 5. Gowda S. Japhet Chandan, Caste Census Towards and Inclusive India, (1st

Edn. 2010), NLSIU publication, Bangalore. 6. http://www.jstor.org/stable/3023430 7. http://www.censusindia.gov.in 8. http://indiacode.nic.in 9. Jain M.P., Indian constitutional Law, (5th Edn. 2003), Lexis Nexis

Butterworths Wadhwa, Nagpur. 10. Kuppuswamy B., Social Changes in India, (5th Edn.), S. Chand. 11. Marc Galanter, Competing Equalities: Law and the Backward Classes in India

(1984) (analyzing treatment of Dalits under Indian Constitution). 12. Singh P. Mahendra, V.N. Shukla’s Constitution of India, (11th Edn. 2008).

Eastern Book Company, Lucknow. 13. Thapar Romila, History of India Vol.1; Penguin Books. 14. V.D. Mahajan, Ancient India (5th Edn., 1970), S. Chand, New Delhi.

http://www.jstor.org/stable/3023430

http://indiacode.nic.in/

Caste and Upliftment of Backwards in India

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