COMMUNICATION – MANDAL CASE JUDGMENT QUOTED
This has ref. to the DV Edit of June 16, “Bahujan’s ready to face Manu wadi MCPs’ caste war on women’s’ quota Bile’.
The best and the most important contribution to the Debate on the Bill would be to discuss the Bill in the light of the various (six) judgments delivered by the nine-judge Bench of Supreme Court of India, in the historic Mandal Commission Case 1992. These judgments cover exhaustively and authoritatively almost all the principles and constitutional points involved in relation to this Bill, and could, therefore, help serve as an authoritative and reliable guide to the crucial points involved in the debate.
Mandal report on Aryan hegemony: The judgment quoted below are quite comprehensive and self-explanatory. The Mandal Commission Report had inter alia stated that the upper castes (Brahmins, Kshatriyas and Vaishyas), who constituted about 18% of the total population of India, had for a period over 3000 years, been maintaining stranglehold on the rest of the population, in various spheres of activity. Consequently, majority of the population suffered from social, educational, economic and political backwardness. Now selected quotes from the judgments of the nine-judge bench of the Supreme Court in the Mandal Commission Report Caste of 1992:
Supreme Court on Hinduism: The founding fathers of the Constitution were conscious of the fact that the Hindu religion as it was being practised, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (Chatur varna) were the outcastes (Panchama’s), the lowliest. They did not even belong to the caste system – ugly as its face was. The fourth, Shudras, were no better, though certainly better than the Panchama’s. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these cases, was unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their karma they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been and there is – in every country. But none had the misfortune of having this social division – or as same call it, degradation – superimposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted – and do still constitute – vicious circle. The Founding Fathers were aware of all this – and more.”
“The concept of inequality is unknown in the kingdom of God who creates all beings equal, but the “created” of the creator has created the artificial inequality in the name of casteism with selfish motive and vested interest. “There are various Constitutional provisions such as Articles 14,15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries-old grievances of the Scheduled Castes and Scheduled Tribes as well as the Backward Classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment.”
Deprived 75% Indians: “One of the major causes of the backwardness of the country in all walks of life is the denial to more than 75% of the population, of an opportunity to participate in the running of the affairs of the country. Democracy does not mean mere elections. It also means equal and effective participation in shaping the destiny of the country. Neediness to say that where a majority of the population is denied its share in actual power, there exists no real democracy. It is a harsh reality. It can be mended not by running away from it or by ignoring it, but by taking effective workable remedial measures. Those who point to the past achievements and the present progress of the country, forget that these achievements and the progress are by a tiny section of the society who got an opportunity to use their talent… Intelligence, perception, character, scholarship and talent are not a monopoly of any section of the society. Given opportunity, those who are condemned to the lowliest stations in life can rise to the loftiest status in society.”
“What should further not be forgotten is that hitherto for centuries, there have been cent percent reservations in practice in all fields, in favour of the high castes and classes, to the total exclusion of others. It was purely caste and class-based reservation.”
“After a thorough survey of the population”, the Mandal held that “scheduled castes and scheduled Tribes, Other Backward Classes colatitude nearly 52 per cent of the Indian population.”
Unequal’s must be treated unequally: “it is no long-Necessary to emphasise that equality contemplated J Article 14 and other cognate articles … is secured plainly when equals are treated equally but also when sequels are treated unequally. Conversely, when annuals are treated equally, the mandate of equality be- l pie law is breached.”
The word backward is very wide bringing within its fold The social backwardness, educational backwardness, bionomic backwardness, political backwardness and Bien physical backwardness.” The expression, “backward class of citizens”… “includes in its fold any community Hindu, Muslim, Christian, Sikh, Buddhist or Jain etc.
The principle of identification has to be of universal Applications so as to extend to every community and to only to those who are either converts from Hinduism or some who carry on the same occupation as some pine Hindus.”
Caste among Muslims: “Caste system which is peculiar to Hindus infiltrated even amongst Muslims, Chrislyn’s, Sikhs or others although it has no place in their gillion.”
Occupation can be the best starting point Constitutionally permissible and legally valid for determination of backwardness.”
Priests “cannot be considered to be backward in any Community, not because of their religion but the nature loft occupation. Similarly, the Untouchables became outcaste due to the nature of the job they performed, on lower level whether it is barber or tailor, washerman or milkman, agricultural class or artisan, they are a group petal who can be identified in any community”…
‘If the yardstick of occupation is applied to every community the identification would be uniform without exclusion of any. For instance, weavers or washerman… It would be unfair to include Hindu washerman and exclude Muslim washerman.”
“Backwardness under Article 15 (4) is not either social or educational, but it is both social and educational.”
After applying these tests, the economic criteria or the next test should be applied. Poverty is the prime cause of backwardness. It generates social and educational ‘backwardness
“Any reservation for any other class would be as already explained, contrary to constitutional objective thus invalid.”
“No provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”. Benign discrimination or protection cannot under any Constitutional system become the principal clause. Equality is the rule. Protection is the exception. Exception cannot exhaust the rule itself.”
“Only those classes of citizens who are incapable of uplifting themselves in order to join the main-stream of upward mobility in society are intended to be protected. The wealthy and the powerful, how- ever socially and educationally backward they may be by reason of their ignorance, do not require to be protected, for they have the necessary strength to uplift themselves out of backwardness.”
The rich and the powerful are not the special favourites of the Constitution. Backward they may be socially and educationally, but that is a shame which they have the steam to remove and Constitution does not extend to them the special protection of reservation. it is not sufficient that the persons meant to be protected are backward merely by reason of illiteracy, ignorance, social backwardness. If they have, in spite of such handicaps, the necessary financial strength to raise themselves, the constitution does not extend to them the protection of reservation.
Who need reservation: The chosen classes of persons for whom reservation is meant are those who are totally unable to join the mainstream of upward mobility because of their utter helplessness arising from social and educational backwardness and aggravated by economic disability.
“Any state action resulting in reservation must, therefore, be so tailored as to weed out and exclude all persons who have attained a certain pre-determined economic level. Only persons falling below that level must qualify for reservation.” Reservation is meant exclusively for the Harijans, the Gorjian’s, the Adivasis, the Dalits or other like “depressed” classes or races or tribes most unfortunately referred to in the past as the Untouchables or the “outcastes” by reason of their being born in what was wrongly regarded as low castes and associated with what was equally wrongly treated as demeaning occupation, or any other class of citizens afflicted by like degree of poverty and degradation caused by prior and continuing discrimination and exploitation, whatever be their professed faith, religion or caste.
These classes of citizens, segregated in slums and ghettos and afflicted by grinding poverty, disease, ignorance, ill-health and backwardness and haunted by fear and anxiety, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupations which are merely incidental facts of history, but because of their backwardness and disabilities stemming from identified past or continuing inequities and discrimination.” “No person whose means exceed a predetermined economic level should be entitled to the protection of reservation, however backward he may be socially and educationally.”
