1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, AP, INDIA

PROJECT TITLE

CASTE AND LAW

SUBJECT

SOCIOLOGY

NAME OF THE FACULTY

Dr. LAKSHMIPATI RAJU

NAME OF THE STUDENT

ALLAKA M

ROLL NO: 2018006

SEMESTER- I

SECTION- A
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ACKNOWLEDGEMENT

I am highly indebted to my Hon‘ ble Sociology professor, Mr. Lakshmipati Raju, for giving me a
wonderful opportunity to work on the topic: ―CASTE AND LAW‖, and it is because of his
excellent knowledge, experience and guidance, this project is made with great interest and effort.
I would also like to thank my seniors who have guided my novice knowledge of doing research
on such significant topic. I would also take this as an opportunity to thank my parents for their
support at all times. I have no words to express my gratitude to each and every person who have
guided and suggested me while conducting my research work.
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PROJECT SYNOPSIS

Topic of the project: Caste and Law

Aim of project: The aim of this project is to analyze the concept of Caste and Law especially in
India and to study the origin of both and the influence of law on caste as an institution.

Type of review: Here the method followed is secondary review as all sorts of information have
been collected from secondary sources.

Literature review: The Primary Literature that has been reviewed while doing the research in
books and web sources.

Scope of the project: The scope of the project is to understand the concept of law and caste in
detail and it is limited to the evolution of both in Modern India.

Significance of the project: In this research the researcher mainly focus on evolution of both
law and caste independently and together. The researcher focuses on how the legal system
recognizes and regulates caste and it suggests the ways in which these legal conceptions and rules may
influence caste as an institution.

Research methodology: Doctrinal method of research is followed.

Hypothesis: The different ways adopted by the legal system to reduce the caste system and
various social problems related to it taking place in the society and to understand the significant
role played by the same.
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ABSTRACT

While there is in modern India no single nation-wide system of caste, there is what might be
called an all-India legal culture. This project is concerned with "caste" as an aspect of this
culture. It describes the ways in which the legal system recognizes and regulates caste and it
suggests the ways in which these legal conceptions and rules may influence caste as an
institution. The legal culture has many levels; the developments described here are at the higher
and more authoritative levels. Description of the development and application of doctrine by
legislatures and higher courts is not intended to imply any one-to-one relation between the
pronouncements of these higher authorities and the day-to-day operations of magistrates,
officials, and lawyers, and much less the lay public. In the long run, however, the higher courts'
pronouncements not only tend to reflect what the police and magistrates are doing but are
uniquely influential; first, by disseminating "official" conceptions of caste which have an impact
on the caste system; and second, by persistently deflecting behavior toward conformity with the
doctrines they promulgate.

In order to provide a background against which the relation of law and caste in post-
Independence India can be appreciated, it is necessary to sketch roughly their relation in the
latter part of the British period. The period from the founding of the modern legal system, which
can be dated around 1880, to the beginning of the attempts at extensive statutory modification of
caste in the 1930's will be used as a base line. Against this background, new developments in the
legal attitude toward caste, which are part of the attempt to transform Indian society by law will
be discussed, in particular, the status of caste under the 1950 Constitution will be examined.

Here in this project the researcher mainly focuses on the legal view of caste which may be
considered under three general headings which, although they overlap at times, classify the
subject conveniently. They are (1) personal law; (2) caste autonomy; (3) precedence and
disabilities.
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TABLE OF CONTENTS
1. Introduction……………………………………………………………………06
2. Personal law………………………………………………………………....…07
3. Caste autonomy…………………………………………..……………………09
4. Precedence and disabilities…………………………………………………....11
 The constitutional scheme……………………………………..…….…..….13
 Personal law………………………………………………………………...13
 Precedence and disabilities…………………………………………………14
 Caste autonomy………………………………………………………...…...19
5. Law and caste today………………………………………………….…….….22
 Progress till yet……………………………………...………………………25
 Recognition…………………………………………..………………...…...26
 Mandal Commission………………………………….………………….....26
 Other Backward Classes……………………………….…………………...27
 Effects of government aid………………………………..……………...….28
6. Cases……………………………………………………………………...…….30
7. Legislations……………………………………………………………………..34
8. References……………………………….……………………………..……….36
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Introduction
The caste system in India is the paradigmatic ethnographic example of caste. It has origins
in ancient India, and was transformed by various ruling elites in medieval, early-modern, and
modern India, especially the Mughal Empire and the British Raj. It is today the basis
of educational and job reservations in India.[5] It consists of two different
concepts, varna and jati, which may be regarded as different levels of analysis of this system.

The caste system as it exists today is thought to be the result of developments during the collapse
of the Mughal era and the British colonial regime in India. The collapse of the Mughal era saw
the rise of powerful men who associated themselves with kings, priests and ascetics, affirming
the regal and martial form of the caste ideal, and it also reshaped many apparently casteless
social groups into differentiated caste communities. The British Raj furthered this development,
making rigid caste organisation a central mechanism of administration. Between 1860 and 1920,
the British segregated Indians by caste, granting administrative jobs and senior appointments
only to the upper castes. Social unrest during the 1920s led to a change in this policy. From then
on, the colonial administration began a policy of positive discrimination by reserving a certain
percentage of government jobs for the lower castes.

Caste-based differences have also been practised in other regions and religions in the Indian
subcontinent like Nepalese Buddhism, Christianity, Islam, Judaism and Sikhism. It has been
challenged by many reformist Hindu movements, Islam, Sikhism, Christianity, and also by
present-day Indian Buddhism.

New developments took place after India achieved independence, when the policy of caste-based
reservation of jobs was formalised with lists of Scheduled Castes and Scheduled Tribes. Since
1950, the country has enacted many laws and social initiatives to protect and improve the
socioeconomic conditions of its lower caste population. These caste classifications for college
admission quotas, job reservations and other affirmative action initiatives, according to
the Supreme Court of India, are based on heredity and are not changeable. Discrimination against
lower castes is illegal in India under Article 15 of its constitution, and India
tracks violence against Dalits nationwide.

The Indian Caste System is historically one of the main dimensions where people in India are
socially differentiated through class, religion, region, tribe, gender, and language. Although this
 7

or other forms of differentiation exist in all human societies, it becomes a problem when one or
more of these dimensions overlap each other and become the sole basis of systematic ranking
and unequal access to valued resources like wealth, income, power and prestige. The Indian
Caste System is considered a closed system of stratification, which means that a person‘s social
status is obligated to which caste they were born into. There are limits on interaction and
behavior with people from another social status . Its history is massively related to one of the
prominent religions in India, Hinduism, and has been altered in many ways during the Buddhist
revolution and under British rule. This paper will be exploring the various aspects of the Indian
caste system related to its hierarchy, its history, and its effects on India today.

In order to provide a background against which the relation of law and caste in post-
Independence India can be appreciated, it is necessary to sketch roughly their relation in the
latter part of the British period. The period from the founding of the modern legal system, which
can be dated around 1880, to the beginning of the attempts at extensive statutory modification of
caste in the 1930's will be used as a base line. Against this background, new developments in the
legal attitude toward caste, which are part of the attempt to transform Indian society by law will
be discussed, in particular, the status of caste under the 1950 Constitution will be examined

The legal view of caste may be considered under three general headings which, although they
overlap at times, classify the subject conveniently. They are

(1) personal law;

(2) caste autonomy;

(3) precedence and disabilities.

Personal Law:

"Personal law" refers to caste as it determines the legal rights and obligations of persons - i.e.,
instances in which the rule of law applicable to a particular person is determined by the identity
of the caste group to which he belongs.
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Under the legal system which the British established in India all persons in the territory of India
are subject to the same law in criminal, civil, and commercial matters. During the British period -
at least the part under discussion - caste was little used to determine the incidence of legal
regulation; for the most part, all castes had the same legal rights and duties. The legal system was
based on law which was territorial rather than personal in its application. There were some local
and piece- meal exceptions to this: e.g., restriction of rights of purchase land to certain
"agricultural" castes; special police regulations and punitive levies might be applied to particular
caste groups. However, from the early days of the "British"' legal system a group of matters that
might roughly be described as family law - marriage and divorce, adoption, joint family,
guardianship, minority, legitimacy, inheritance, and succession, religious endowments - were set
aside and left subject to the laws of the various religious communities; i.e., the applicable law in
these fields was "personal" rather than territorial.

In these family and religious matters Hindus were ruled by dharmasastra not by the ancient texts
as such, but as interpreted by the commentators accepted in the locality. At first the courts relied
on Brahmin pundits or sastris to advise them on the applicable rules and their interpretation, but
this institution was abolished entirely by 1864. Common law judges took 'over the job of
deciding which rules were applicable and applying them to the cases.

The doctrine that "clear proof of usage will outweight the written text of the law" was early
accepted as part of the Hindu law. Thus the courts undertook to apply the locally accepted
commentaries as modified by prevailing custom -the custom could be that of a locality or even a
family, but the usual unit was the caste group. The diversity engendered by this rule was limited
by the application of stringent common law requirements for proving a valid custom. All of this
made it rather difficult to prove variation from the rules of the lawbooks and had the effect,
apparently, of extending the rules of the classical lawbooks to sections of the population which
had previously been strangers to them.

Aside from variations introduced by caste customs, the Hindu law applied by the courts
contained a number of instances in which the different rules were to be applied to members of
different castes -in most cases one rule to the three twice-born Varnas and a different rule for
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Sudras.1 The most notable of these differences were in the law of succession, the law of
adoption, and the law of marriage. Again, marriages between members of different varnas were
not valid at all -with the limited exception of Bombay and the capacity to adopt a child of
another varna was unknown.

In order to apply these rules which differed according to varna, it was necessary to determine
which castes and individuals were included within which varna. To determine whether a given
group was twice-born or sitdras, the courts evolved lists of diagnostic customs; e.g., admission of
illegitimate sons to commensality and marriage within the group, the prevalence of second
marriages for widows, marked the group as sudras. Another line of cases developed an
alternative approach of testing the standing of a caste group by its consciousness as to its status
and by the acceptance of this self-estimate by other castes in the locality.

Hindu law did not address itself to the multitude of actual caste groups, but recognized only the
four varnas (and occasionally the intermediate classes of classical legal theory.) In application of
personal law, Sudra was treated as a residual category including all those who were not twice-
born. This included not only untouchables, but such marginals as the daughter of an outcaste,
converts to Hinduism, etc. But in discussing status to determine the extent of customary
disabilities the courts often did recognize groups as being below Sudras or outside the four
varnas.

Caste Autonomy

Administration of Hindu personal law involved the courts in assigning places in the four-varna
system to actual castes - this presented an opportunity, often availed of, for eliciting legal recog-
nition of the ceremonial status of the group and certification of its claims for higher status. This
formed an exception to the over-all policy of non-interference in matters concerning caste. As
early as 1827 a Bombay regulation withdrew from the civil courts jurisdiction over cases

1
'In the sequel 'var7na' is used to refer to the four-fold division of the classical lawbooks; 'caste' refers to the jati or
local endogamous social group.
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involving caste questions.2 This was paralleled later in other provinces and extended throughout
British India by the Civil Procedure Code in 1859. It is still law today.3

Castes were early recognized as juridical entities with the power to sue and be sued, to sue on
behalf of their members, to acquire, hold, and manage property. The core of caste autonomy
consisted in the power of a caste to make rules for itself and to constitute tribunals to enforce
these rules; the decisions of these tribunals would not be disturbed by the government. Caste
power was limited by confining jurisdiction over certain matters -e.g., criminal law or the
validity of marriages-to the civil courts. But on most matters the caste could make, revoke, and
modify its rules. The majority or the established authorities within a caste could not be overruled
by the civil courts on these "caste questions." Caste questions were said to include all matters
affecting the internal autonomy and social relations of a caste. The right to have a fellow caste
member accept one's food, gifts, or invitations; the right to receive invitations from him; the right
to have precedence in leading one's bullock in a procession - in all of these cases of dignity,
acceptance or precedence within the caste, the civil courts would not entertain a suit. Again,
claims to leadership of a caste, claims to a caste office, claims to enjoy privileges as priest, were
held to be caste questions. Even if the dispute resulted in the expulsion of one person or faction,
the courts would take no cognizance in such cases - a policy readily understandable in terms of
the drastic difficulties of enforcing a decree and supported by judicial respect for caste
disciplinary power as a useful moral surveillance.

A caste might then make whatever rules it wished about these matters and might enforce them by
social sanctions.4 It might forbid the wearing of European clothing or departure from customary
headdress; it might prohibit intercourse with members who participated in widow re-marriage.
Publication of a sentence of excommunication to other caste members was privileged - i.e.,
immune from a claim for defamation - so long as it was not more extensive than necessary to
effect the purpose of informing the caste.

2
Bombay Regulation II of 1827, Se
3
Civil Procedure Code, Sec. 9.
4
' The only legislation bearing directly on caste autonomy was the Caste Disabilities Removal Act (Act XXI of
1850), (also known as the Freedom of Religion Act) which provided that there was to be no forfeiture of civil or
property rights, by reason of renouncing or being excluded from a caste or a religious group.
 11

But the courts were willing to take jurisdiction where they found that the claim was not merely
for social acceptance or dignities, but involved enforceable civil or property rights -these
included rights in caste property, rights to offices with pecuniary emoluments and the right to
reputation. Even here, the courts were wary about the extent of intervention and set up a series of
standards that emphasized procedural rather than substantive supervision. The courts would
entertain claims only: (1) that the decision of a caste tribunal had not been arrived at bona fides;
(2) that the decision was taken under a mistaken belief; (3) that the decision was actually
contrary to the rules or usage of the caste; or, (4) that it was contrary to natural justice. The latter
was the most important of these rules-violations of natural justice included omission of proper
notice to the accused and the denial of an opportunity to be heard and to defend himself.

Precedence and Disabilities

Some instances of regulation of intercourse between members of different castes have already
been noted -the enforcement of endogamy in the field of personal law; and, in the area of caste
autonomy, the unwillingness of the courts to interfere with the enforcement of caste rules
regulating relations with other castes. Precedence and 'disabilities refer to legal intervention
explicitly regulating the relations between castes. Prior to British rule, some Indian regimes had
actively enforced the privileges and disabilities of various castes- and there is some of this to be
found in the earlier days of British rule. However, by 1860 - the beginning of our base-line
period - the prerogatives and dignities of castes were not supported by active government
sanctions. But, as part of the policy of non-interference with social and religious matters, there
was little effort to interfere with such usages. Caste groups did enjoy the support of the courts in
upholding their claims for preference and exclusiveness with respect to the use of religious
institutions. Courts granted injunctions to restrain members of particular castes from entering
temples - even those which were publicly supported and dedicated to the entire Hindu
community. Damages were awarded for purificatory ceremonies necessitated by the pollution
caused by the presence of lower castes; such pollution was actionable as a trespass to the person
of the higher caste worshippers. It was a criminal offense for a member of an excluded caste to
knowingly pollute a temple by his presence. These rights to exclusiveness were vindicated by the
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courts not only where polluting persons were "untouchables" but against such "touchables" as
Palshe Brahmins and Lingayats whose presence in the particular temple was polluting.

In regard to "secular" public facilities such as roads. schools. and wells, exclusionary practices
did not enjoy such judicial support. The courts declared that no rights to exclude others from the
use of streets and roads could be maintained. Similarly, the courts refused to intervene to prevent
the usc of wells and tanks by untouchables, though it was conceded that proven immemorial
custom might support such a right. The courts refused to penalize such defiance of customary
disabilities as failure to dismount from a wedding palanquin or failure to concede to another
caste an exclusive right to ceremonial deference. (The courts were equally unwilling to intervene
to protect claims for higher position; where Brahmins tore the sacred thread from the neck of an
Ahir who had lately taken to wearing it, the court ruled that since he was a Sudra, the wearing of
it was not part of his religion and therefore the injury was not to his religious susceptibilities - an
offense - but only to his dignity.)

The prevailing notion was that purely social and religious matters did not give rise to legal rights
unless the right was the sort of thing that could be possessed and made use of. There is a
gradation from the temple cases, where exclusionary rights were readily enforced, to water-
sources, where (it seems) they would be enforced if difficult technical requirements were met, to
customs that were in no way connected with the use of property, where there was no
enforcement at all. Where the courts could not visualize the claim to precedence or custom as
consisting in rights to use certain property in particular ways, they were unwilling to enforce it.
(Note the parallel to the caste autonomy field where judicial intervention was available only to
vindicate rights in caste property or paying offices.

In the reported cases it can be observed that the local officials were almost uniformly
unsympathetic to the claims of the lower castes -even where these claims were subsequently
vindicated by the High Court. Though it is impossible to say how typical were these lower court
proceedings, they suggest that at the level of the magistrates' courts, assertion of rights by groups
suffering customary exclusion or disabilities met with little encouragement if not active hostility.
The cases show widespread acquiescence by local authorities in the enforcement of these
disabilities and suggest that active governmental support of these practices at a local level was at
least not uncommon. It should be emphasized. however, that these prescriptive rights and
 13

disabilities received their greatest govern- mental support not from direct judicial enforcement
but from the recognition of caste autonomy -i.e., from the refusal of the courts to interfere with
the right of caste groups to apply sanctions against those who defied these usages. Members of a
caste could be outlasted and outsiders could be boycotted for violations of customary privileges
and disabilities. The broad sphere of autonomy enjoyed by caste groups permitted them effective
enforcement without resort to the courts and immune from governmental interference.

The Constitutional Scheme

The Constitution of 1950 envisages a new order both as to the place of caste in Indian life and
the role of law in regulating it.5 This new dispensation did not arrive on the scene suddenly; it
represents the culmination of more than half a century of increasing anti-caste sentiment among
reformers, the gradual acceptance by politicians of the need for reform of caste, the enactment of
a variety of provincial anti-disabilities and temple-entry legislation and the growing conviction
that caste was inimical to democracy and progress and should I)lay a restricted role in the new
India. The implications of the new constitutional scheme may be traced in the three areas
discussed previously.

1. Personal Law

5
The relevant articles of the Constitution are:
(Fundamental Rights)
14-equality before the law.
15-no caste discrimination by government or by private persons in regard to use of public facilities; special
provisions in favor of untouchables and 'back- ward classes' permissible.
16-no caste discrimination in government service; reservation of places per- mitted for untouchables and 'backward
classes.'
17-untouchability abolished and enforcement an offense. 23-forced labor abolished; no caste discrimination in
regard to compulsory public service.
25 (2)b-freedom of religion qualified to save temple-entry laws and state power to legislate for social welfare and
reform.
29-no caste discrimination in admission to state-aide( educational institutions.
(D)irective Principles)
44-personal law to be replaced by 'uniform civil code.'
46-State shall protect and promote interests of 'weaker sections of the people,' ( specially untouchables.
(Otlher Provisions)
325-no caste electorates.
330,332-reservation of seats for Scheduled Castes in Parliament and State Legislatures. 334--ten year limit on latter,
extended another 10 years by the Constitution ( Eighth Amendment) Act, 1959. 335-claimis, of untouchalbles to be
considered in appointments to government Service.
338-special officer to investigate and report on safeguards to Scheduled Castes. 340-provision for appointment of a
backward classes commission. 311-provision for specification of Scheduled Castes.
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The Constitution contains a commitment to replace the system of separate personal law with a
"uniform civil code." But in spite of its strictures against discrimination on the ground of
religion, the Constitution has been interpreted to permit the continuing application of their
personal laws to Hindus and Muslims. The constitutional ban on caste discrimination has not
been read as abolishing differences in personal law between Hindus of different castes. Although
legal enforcement of disabilities against lower castes was occasionally rationalized in varna
terms, the use of varna distinctions in the personal law is not included within the constitutional
abolition of untouchability. The Hindu Code bills in 1955-56 largely abandoned the sastric basis
of Hindu law and established a more or less uniform law for Hindus of all regions and castes.
The new legislation severely curtails the opportunities for invoking caste custom in order to vary
the generally applicable Hindu law. The new law creates the hitherto unknown capacity to marry
and adopt across varna lines and with a few minor exceptions, eliminates all of the distinctions
along varna lines embodied in the old law. Varna has virtually been eliminated as an operative
legal concept -although for the present the courts may still have to apply it.

2. Precedence and Disabilities

When the Constitution was enacted, customary exclusion of lower castes from temples and
secular facilities, previously recognized and to some extent enforceable at law, had been
transformed into statutory offenses throughout most of India. The Constitution broadened the
prohibition of this conduct and entrenched freedom from such discrimination as an enforceable
fundamental right. Caste discrimination with regard to access to facilities such as wells, tanks,
shops, restaurants, schools, is prohibited. Untouchability is abolished and its practice in any form
is forbidden. The guarantee of freedom of religion is explicitly qualified to save temple-entry
legislation.

The Untouchability Offenses Act (UOA) of 19556 outlaws the im- position of disabilities "on
grounds of untouchability" in virtually all fields of activity excepting home life, private religious
ceremonies, and private employment. Enforcement of disabilities is made a crime, punish- able
by fine or imprisonment, and the power of civil courts to recognize any custom, usage, or right
which would result in the enforcement of any disability is withdrawn. The previous provincial

6
8 Act of XXII of 195
 15

enactments, which had also withdrawn any government sanction for these usages, did not
venture into the area of caste autonomy. But the OUA punishes not only the direct enforcement
of disabilities but also indirect social support of untouchability. The use of social boycotts
against persons who exercise rights under the Act, the use of sanctions, including
excommunication, against persons who refuse to practice untouchability, the instigation of the
practice of untouchability in any form - all of these are prohibited and penalized. The Act
contains one further novel and notable feature - it provides that where any of the forbidden
practices is committed in relation to a member of a Scheduled Caste, the court shall presume,
unless the contrary is proven, that such act was committed "on ground of 'untouchability.'

In order to appreciate the scope of the UOA, it is necessary to determine the meaning of
"untouchability." Neither the Constitution nor the Act defines it. It is yet unclear what constitutes
a "disability arising out of untouchability" or its "enforcement."

Three possible meanings suggest themselves. In its broadest sense "untouchability" would
include all instances in which one person treated another as ritually unclean and polluting. In this
sense women at child- birth, persons with contagious diseases, mourners, etc., might be
considered untouchables. It is clear that Art. 17 does not seek to prohibit the observance of such
temporary untouchability. The untouchability which follows upon expulsion or
excommunication from caste, like temporary and expiable states of ritual uncleanliness,
apparently falls outside the prohibition of Art. 17, which does not deprive caste groups of the
power of outcasting. Thus, the "untouchability" banned by Art. 17 is confined to that ascribed by
birth rather than that attained in life.

A second, somewhat narrower, sense of the term would include all instances in which a person is
treated as unclean and polluting not because of personal history, but because of his origin or
membership in a particular group - i.e., where he is treated as "untouchable" because of a
difference in religion or membership in a lower or different caste. This view has been rejected.
Thus for Jains to regard non-Jains as untouchable in certain respects is not within the scope of
the untouchability forbidden by Art. 17.

There remains a third and still narrower sense of the term "untouchability." In the words of the
first High Court which considered the questions, it includes only practices directed at "those
 16

regarded as 'untouchables' in the course of historic development" -i.e., those relegated "beyond
the pale of the caste system on grounds of birth in a particular class."7 This narrower sense does
not include practices based on avoidance due to a difference of religion or caste, except insofar
as the caste was traditionally considered "untouchable" and "outside the pale of the caste
system." Thus disabilities imposed by Brahmins upon non-Brahmins, by one Brahmin caste on
another, or by "right-hand" on "left-hand" castes, would all fall outside the prohibition of Art. 17.

The meaning of untouchability then is to be determined by reference to those who have

traditionally been considered "untouchables." But it is no easier to define untouchables than it is
to define untouchability." "Beyond the pale of the caste system" is a misleading and unworkable
formulation. Even the lowest castes are within the system of reciprocal rights and duties; the
disabilities and prerogatives are articulated to those of other castes. Presumably the court - and
here it is interesting to note that it is a Mysore court - means by this phrase, outside the four
varnas of the classical lawbooks. In reference to their customary rights, untouch- ables have
sometimes, particularly in southern India, been referred to as a fifth varna, below the Sudras. But
in other places they were regarded as Sudras. For purposes of personal law, the courts have never
attempted to distinguish untouchables from Sudras; all Hindus other than the twice- born have
been lumped together as Sudras. Even where untouchables are popularly regarded as Sudras,
they cannot be equated with them since there are non-touchable groups which belong to this
category. Thus, the tests used for distinguishing Sudras from the twice-born, cannot be used 'as a
satisfactory measure of untouchability.

In attempting to identify untouchable groups for the purpose of giving them benefits and
preferences the government has not tried to apply general criteria, but has adopted the device of
compiling lists of castes in each locality. Such lists derive from earlier attempts (in the 1930's) to
find a single set of criteria to measure untouchabilityy." (These included such tests as whether
the caste in question was "polluting" or "debarred" from public facilities-which may admit of no
equivocal answer - and whether they were served by "clean" Brahmins which has only a local
and comparative reference.) All attempts to set up tests based on the assumption that
"untouchables" are set off by some uniform and distinctive pattern of practices proved
inadequate to isolate the groups which local administrators felt deserving of inclusion.
Additional criteria of poverty and illiteracy had to be added. The government lists then give little
 17

guide to the meaning of untouchability. There is no adequate inclusive list of all groups
considered untouchable or any single set of criteria for identifying them.

Thus the "untouchability" forbidden by law is confined to discriminations against certain not
readily defined classes of persons. It includes not every discrimination against them, but only
those imposed because of their position in the caste system. Thus, exclusion of untouchables by
Jains is not forbidden insofar as it is on the ground that they are non- Jains rather than because of
their caste. And disabilities which apply either uniformly against all groups in a locality or
against a number of groups, some of which are not untouchable, would seem to be outside the
scope of the UOA. But refusal to serve untouchables in anticipation of reprisal or economic
detriment is refusal on grounds of untouchability and is punishable.The practice of
untouchability is not confined literally to avoidance of pollution by touch or to practice based on
such avoidance. It would seem to include any invidious treatment of a person associated with his
membership or origin in an untouchable group, even if this treatment does not involve avoidance
of pollution- e.g., imposing restrictions on the ceremonial of dress of untouchables.

The enforcement of disabilities includes more than the actual physical compulsion; it extends to
annoyance, obstruction, etc.; vulgar abuse and insult have been held to constitute enforcement of
a disability. But it is questionable whether it would be an offense to persuade an untouchable to
abide by usage voluntarily.

The small number of prosecutions under the UOA (about 600-700 a year in recent years) is not
in itself an indication of the effectiveness of the Act. Many of these cases are probably registered
by local officials anxious to make a good record in the eyes of superiors who exhort them to
enforce the Act. Most of the incidents that come to the attention of the police are probably settled
without being registered as cases. Undoubtedly the total effect of the Act as propaganda, as
threat and as leverage for securing the intervention of political and executive figures outweighs
the effect it has as an instrument for prosecution of offenders. But its effectiveness as a threat and
as a political leverage depends in part on its efficacy as a penal provision. In this respect it has
serious short- comings. The effectiveness of the Act depends upon the initiative of the local
police and the sympathy of local magistrates, both of whom have obvious reasons to be
disinclined to antagonize the dominant elements in the community. Complainants and the
witnesses they need to prove their cases are vulnerable to intimidation and reprisal. Although
 18

boycotts and reprisals are themselves offenses, they are by their very nature even more difficult
to prove than the original offense. Untouchables are often only dimly aware of their rights. There
is considerable delay in the disposition of cases; defendants usually have greater resources and
can hold out longer. The untouchables are often too poor to engage lawyers; and lawyers,
dependent on the patronage of landowners, are reluctant to take such cases. The penalties
imposed upon conviction have very often been so low as to have little deterrent effect.

Probably few cases are brought without the intervention of social workers or political leaders.
The Act seems to be more effective against conspicuous and vulnerable institutions-especially
those with public licenses, like hotels and restaurants-than it is in such matters as the use of a
village well where the excluding party consists of a large number of villagers. Social workers
suggest that the Act is useful in clearing up holdouts where majority opinion favors ending
disabilities, but is not useful in breaking down a solid barrier of opposition. Where disabilities
are supported by coherent social groups and enforced by their internal disciplinary machinery,
they are unlikely to be deterred by penalties that are so unlikely to be applied.

In many instances, the practical effect of the assertion of rights and the intervention of
government and social workers is to secure the installation of what are in effect separate
facilities.

The attack on discrimination is only one side of the attempt to remove the disabilities of the
lower castes. In order to secure equality, the government is authorized to depart from
indifference to caste in order to favor untouchables, trials, and backward classes.

These provisions for "protective discrimination" are the only exceptions to the constitutional ban
on the use of the communal criteria by government. As originally enacted, the Constitution
provided reserved seats in Parliament and the State Legislatures for the Scheduled Castes (i.e.,
untouchables) and the Scheduled Tribes for a ten-year period. This has been extended for another
ten-year period. Reservation of posts in government service was permitted for untouchables,
tribals, and backward classes. After the Supreme Court held unconstitutional reservation of
places in educational institutions, the Constitution was amended to permit the state to make "any
special provision for the advancement of any socially and educationally backward classes ... . "
(Art. 15(4) ). The Scheduled Castes and, to a lesser extent, "backward classes" enjoy benefits in
 19

the form of reservations in government service and on local political bodies, in educational
institutions and an array of welfare schemes, chief among which are educational benefits.

These provisions extend not only to untouchables but to other "back- ward classes"; the
Constitution does not define these favored groups but only sets up a procedure for designating
them. The Scheduled Castes are to be specified by the President in the first instance and this list
can be changed only by act of Parliament. Backward classes, however, can be desirnaLted by
slate as well as central authorities and by administrative as well as legislative organs. In spite of
persistent attempts to set up a uniform central list of backward classes, their designation has
remained with the states. Although the Constitution refers to backward classes, this has been
taken to permit the use of caste groups as the units or classes desig,,nated as backward; low
standing in the social hierarchy has been commonly taken as sufficient indication of their
backwardness. Increasing criticism of preferences on communal lines, within and without the
government, has been accompanied by an increasing willingness by the courts to subject
preferences for backward classes to close scrutiny. Selection of recipients along caste lines has
been replaced by economic and educational criteria in several states. A recent Supreme Court
decision has disallowed the use of caste standing as the primary test of backwardness.7 While
caste remains an acceptable criterion in designating Scheduled Castes, there is at least some
doubt about its continuing permissibility in designating backward classes.

3. Caste Autonomy

Notwithstanding the standard rhetoric about the casteless society, the Constitution is quite
unclear about the position of the caste group in Indian life. There is a clear commitment to
eliminate inequality of status and invidious treatment and to have a society in which government
takes minimal account of ascriptive ties. Beyond this, caste is not mentioned. While there are
guarantees to preserve the integrity of religious and linguistic groups, there are none for the caste
group- it would not seem to enjoy any constitutional protection as such. This silence may
represent an anticipation that caste will wither away and have no important place in the new
India. Or it may represent an implicit ratification of the old policy of non-interference.

7
Balaji v. State of Mysore, A.I.R. 1963 S.C
 20

It is clear that the policy of non-interference is abrogated in at least one respect - the whole range
of discriminations and disabilities is no longer immune from governmental interference. The
UOA marks the first attempt to control disabilities by restricting caste autonomy - by outlawing
the expulsion of caste fellows or the boycott of outsiders for failure to enforce disabilities.
Perhaps a more effective assault on "untouchability" would require further attention to the
internal disciplinary machinery of caste and village groups-either weakening them to the extent
that their disciplinary power is no longer effective or controlling it by group penalties and
rewards. It is quite unclear how much the Constitution would protect the caste group from such
inroads.

What is left of caste autonomy? What remains of the prerogatives previously enjoyed by the
caste group? The caste retains the right to own and manage property and to sue in court. Section
9 of the Civil Procedure Code, with its bar on judicial cognizance of caste questions is still in
force. Courts still refuse to entertain suits involving caste questions (e.g., fitness of an officer to
manage property), and castes retain their disciplinary powers over their members (e.g., the courts
refused to declare invalid the assessment of a fine for an alleged breach of caste rules.) The caste
retains its power of excommunication. It is still a good defense to a criminal action for
defamation to assert the privilege of communicating news of an excommunication to one's caste
fellows. Yet these powers are subject to some restriction-the UOA makes inroads by outlawing
any disciplinary action directed to enforcement of untouchability.

In one sense the autonomy of the caste group is enhanced by the constitutional provisions. One
of the basic themes of the Constitution is to eliminate caste as a differentia in the relationship of
government to the individuals -as subject, voter, or employee. The Constitution enshrines as
fundamental law that government must regulate individuals directly and not through the medium
of the communal group. The individual is responsible for his own conduct and cannot, by virtue
of his membership in a caste, be held accountable for the conduct of others. Thus the imposition
of severe police restrictions on specified castes in certain villages on grounds of their proclivity
to crime was struck down as unconstitutional since the regulation depended on caste membership
rather than individual propensity. Similarly, the Supreme Court held unconstitutional a punitive
levy on a communal basis since there were some law-abiding citizens in the penalized
 21

communities.8 Thus it would appear that regulative or penal measures directed at certain castes
are beyond the power of government; a caste, then, enjoys a new protection from regulation
directed at it as a corporate whole.

There are two other guarantees in the Constitution that seem to affect the position of the caste
group. The first of these is Art. 26 which guarantees every "religious denomination or section
thereof" the right to establish and maintain religious and charitable institutions, own and
administer property and manage its own affairs in matters of religion. At least some castes can
qualify as religious denominations (or sections) and are therefore protected in their exercise of
these rights. Thus the Supreme Court has found that the Gowda Saraswat Brahmin communityis
a religious denomination. A denomination's right to manage its owvn affairs in matters of
religion includes not only matters of doctrine and belief, but also practice regarded by the
community as part of its religion -even its practice of restricting entry into its temple. The
constitutional protection accorded the denomination's practices does not extend to the complete
exclusion of other groups from their temples, however; it was held that this right to manage its
own affairs in matters of religion, runs subordinate to temple-entry rights.9

In a recent and important case the Supreme Court held that the power to excommunicate for
infractions of religious discipline is part of the constitutional right of a religious denomination to
manage its own affairs in matters of religion.10 The case, involving excommunication from a
Muslim religious sect, held unconstitutional a Bombay Act making excommunication a criminal
offense. This does not imply a similar protection for caste groups as such; it would presumably
protect only those that can qualify as religious denominations. It probably would not protect
excommunication that was merely social and was not "to preserve the essentials of religion."
Even if the excommunication were a matter of religious discipline, it would not be
constitutionally protected if the breach of discipline involved failure to observe untouchability.

It has been argued that caste groups may merit protection afforded by Art. 29(1) which provides
that "Any section of . . . citizens . . . having a distinct language, script, or culture of its own shall
have a right to conserve the same."

8
State of Rajasthan v. Pratap Singh, A.I.R. 1960 S.C. 1208.
9
Sri Venzkataramnana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255
10
Saijuddin Saheb v. State of Bombay, A.I.R. 1962 S.C. 853.
 22

Are castes cultural groups? (Art. 29(1) has never been before the courts independently, but only
in the context of the assertion of rights under the Art. 30(l) which provides that "all minorities,
whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice." Apparently to qualify as a cultural group it is not
necessary that the group be a minority or that its distinctiveness be either religious or linguistic.
Presumably every religious denomination would qualify -as well as such groups as the Arya
Samaj. Their right to "conserve" their culture apparently concerns the "sphere of intellect and
culture" and "does not involve dispensation from obedience to general regulations made by the
state for promoting the common good of the community.11

It seems to include the right to transmit this culture; "the right to impart instruc- tions in their
own institutions to children of their own community in their own language," has been referred to
as the "greater part of the contents of Art. 29."12

At least some caste groups may qualify to enjoy the protection of the guarantees for religious
denominations and cultural groups. The scope of these guarantees is not yet clear -but it is
conceivable that they might present a constitutional barrier to some of the more radical anti-
caste schemes which are proposed from time to time-e.g., taxation of communal enterprise,
abolition of caste schools and charities, bans on caste names, even prohibitions of intra-caste
marriages. The contents of these constitutional protections is unclear, but they are there; and if
the climate of opinion should swing away from the present disfavor of caste, it might be possible
for the courts to erect formidable barriers against the governmental interference in caste affairs.

Law and Caste Today

In independent India, the higher castes have lost support legally for their claims for precedence
and have lost some of the immunity once enjoyed by caste action in support of these claims. The
lower castes have gained government intervention in favor of their claims for equality and
preferential treatment in the distribution of benefits.

Caste groups cannot be recognized electorally. The Constitution rules out caste-wise electorates
to Parliament and state legislatures. Communal electorates in local bodies have been held

11
12 Dipendra Nath v. State of Beliar, A.I.R. 1962 Pat. 101 at 108
12
3 State of Bombay t. Education Society, 17 Sup. Ct. J. 678 (1954).
 23

unconstitutional. Nor can caste be used as a criterion in delimiting territorial constituencies (e.g.,
by excluding from a ward "house of Rajputs in the east of the Village"). And appeals to caste
loyalty in electoral campaigning are forbidden.

Apart from these explicit restrictions on caste, there is a tendency to discourage any
arrangements which promote the coherence and integrity of the caste group as such. Thus, for
example, the Supreme Court recently struck down as unreasonable restrictions on property right
laws providing for pre-emption on the basis of vicinage. The Court held that the real purpose of
these laws was to promote communal neighbor- hoods, a purpose which could have no force as
public policy since the desire to promote such exclusiveness could no longer be considered
reasonable.13

Yet the government is not prevented from taking account of caste in certain contexts. The caste
remains a juridical entity. Just as varna distinctions are still permissible in the application of
Hindu law, so the caste group remains a relevant unit for determining the existence of customs
which vary the law. Most importantly, the caste unit can be used for the purpose of distributing
benefits and preferences to untouchables and to a lesser extent to backward classes.

The revolution in the relations between the government and caste has not been as far-reaching as
its proponents anticipated or as its opponents feared. From the point of view of the law, caste has
not been abolished or removed from the legal view of society. The British policy of non-
interference required that the law take the measure of the caste system and support certain
features of it -a policy that could not avoid fostering changes in the caste system. The present
policy of abolition of caste distinctions or levelling also involves the recognition of caste in order
to regulate it. It may be expected that the new legal categories which are used to do this will have
an impact on the caste system just as did the categories used by the British to stake out what they
were not going to interfere with.

British courts and census authorities disseminated notions of caste in terms of cultural
characteristics which indicated varna standing. The theory of varna has now declined in
prominence. It is almost displaced in the area of personal law, where it had reigned supreme. It is
no longer available, along with the notion of pollution, to rationalize government support of

13
Bhau Ram v. Raij Nath, A.I.R. 1962 S.C. 1476
 24

precedence and imposition of disabilities. Notions of ritual rank and pollution are almost, if not
quite, dead as legal categories. The caste unit is recognized by the law for the purpose of
"protective discrimi- nation" and for the purpose of exercising its autonomy. But for these
purposes, the law regards castes as groups distinguished by certain eco- nomic, educational, and
social characteristics. Its income, occupation, literacy, and representation in government services
are the crucial vari- ables. The law is now the source of new notions about caste which
emphasize its economic and educational characteristics.

So far, the only successful legal defense of traditional prerogatives has been when the caste has
successfully claimed that it is a distinct religious denomination. One might anticipate that with
increasing pressure from lower castes, those higher castes that want to assert their special rights
in temples or other religious facilities, may be inclined to stress their distinctive religious and
sectarian character.

Thus the courts present an alternative image or images of the caste group - not images of
occupational interdependence with a network of local groups or of ritual standing in an ideal all-
India system of ceremonial ranks - but images in terms of economic, educational,, and political
attainments, and of sectarian or cultural distinctiveness. These new con- ceptions of caste seem
congenial to the new opportunities for political and legal action provided by a welfare state, and
a secular democracy which guarantees freedom of religion.

The British period may be seen as one in which the legal system rational- ized the intricacies of
local customary caste relationships in terms of classical Hindu legal concepts like varna and
pollution. To borrow and slightly distort Srinivas' terms, we can think of the British period as a
period of "Sanskritization" in legal notions of caste.14 In independent India, as varna and
pollution give way to the notion of groups character- ized by economic, educational, political,
and religious characteristics, we may think of this not as the abolition of caste, but as the
"westernization" of notions of caste.

14
6 M. N. Srinivas, "A Note on Sanskritization and Westernization," The Far Eastern Quarterly, XV (1956) 481-
491.
 25

PROGRESS TILL YET

Article 15 of the Constitution of India prohibits discrimination based on caste and Article 17
declared the practice of untouchability to be illegal.In 1955, India enacted the Untouchability
(Offences) Act (renamed in 1976, as the Protection of Civil Rights Act). It extended the reach of
law, from intent to mandatory enforcement. The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act was passed in India in 1989.

 The National Commission for Scheduled Castes and Scheduled Tribes was established to
investigate, monitor, advise, and evaluate the socio-economic progress of the Scheduled
Castes and Scheduled Tribes.
 A reservation system for people classified as Scheduled Castes and Scheduled Tribes has
existed for over 50 years. The presence of privately owned free market corporations in India
is limited and public sector jobs have dominated the percentage of jobs in its economy. A
2000 report estimated that most jobs in India were in companies owned by the government
or agencies of the government. The reservation system implemented by India over 50 years,
has been partly successful, because of all jobs, nationwide, in 1995, 17.2 percent of the jobs
were held by those in the lowest castes.
 The Indian government classifies government jobs in four groups. The Group A jobs are
senior most, high paying positions in the government, while Group D are junior most, lowest
paying positions. In Group D jobs, the percentage of positions held by lowest caste classified
people is 30% greater than their demographic percentage. In all jobs classified as Group C
positions, the percentage of jobs held by lowest caste people is about the same as their
demographic population distribution. In Group A and B jobs, the percentage of positions
held by lowest caste classified people is 30% lower than their demographic percentage.
 The presence of lowest caste people in highest paying, senior-most position jobs in India has
increased by ten-fold, from 1.18 percent of all jobs in 1959 to 10.12 percent of all jobs in
1995.
 In 2007, India elected K. G. Balakrishnan, a Dalit, to the office of Chief Justice.
 26

 In 2007, Uttar Pradesh, the most populous state of India, elected Mayawati as the Chief
Minister, the highest elected office of the state. BBC claims, "Mayawati Kumari is an icon
for millions of India's Dalits, or untouchables as they used to be known."
 In 2009, the Indian parliament unanimously elected a Dalit, Meira Kumar, as the first female
speaker.

A. Recognition

The Indian government officially recognises historically discriminated communities of India

such as the Untouchables under the designation of Scheduled Castes and Scheduled Tribes, and
certain economically backward Shudra castes as Other Backward Class. The Scheduled Castes
are sometimes referred to as Dalit in contemporary literature. In 2001, Dalits comprised 16.2
percent of India's total population. Of the one billion Hindus in India, it is estimated that
Hindu Forward caste comprises 26%, Other Backward Class comprises 43%, Hindu Scheduled
Castes (Dalits) comprises 22% and Hindu Scheduled Tribes (Adivasis) comprises 9%.

In addition to taking affirmative action for people of schedule castes and scheduled tribes, India
has expanded its effort to include people from poor, backward castes in its economic and social
mainstream. In 1990, the government reservation of 27% for Backward Classes on the basis of
the Mandal Commission's recommendations. Since then, India has reserved 27 percent of job
opportunities in government-owned enterprises and agencies for Socially and Educationally
Backward Classes (SEBCs). The 27 percent reservation is in addition to 22.5 percent set aside
for India's lowest castes for last 50 years.

B. Mandal commission

The Mandal Commission was established in 1979 to "identify the socially or educationally
backward" and to consider the question of seat reservations and quotas for people to redress caste
discrimination.[222] In 1980, the commission's report affirmed the affirmative action practice
under Indian law, whereby additional members of lower castes—the other backward classes—
were given exclusive access to another 27 percent of government jobs and slots in public
universities, in addition to the 23 percent already reserved for the Dalits and Tribals. When V. P.
Singh's administration tried to implement the recommendations of the Mandal Commission in
 27

1989, massive protests were held in the country. Many alleged that the politicians were trying to
cash in on caste-based reservations for purely pragmatic electoral purposes.

Many political parties in India have indulged in caste-based votebank politics. Parties such
as Bahujan Samaj Party (BSP), the Samajwadi Party and the Janata Dal claim that they are
representing the backward castes, and rely on OBC support, often in alliance with Dalit and
Muslim support, to win elections.

C. Other Backward Classes (OBC)

There is substantial debate over the exact number of OBCs in India; it is generally estimated to
be sizable, but many believe that it is lower than the figures quoted by either the Mandal
Commission or the National Sample Survey.

The reservation system has led to widespread protests, such as the 2006 Indian anti-reservation
protests, with many complaining of reverse discrimination against the Forward Castes (the castes
that do not qualify for the reservation.

In May 2011, the government approved a poverty, religion and caste census to identify poverty
in different social backgrounds.The census would also help the government to re-examine and
possibly undo some of the policies which were formed in haste such as the Mandal Commission
in order to bring more objectivity to the policies with respect to contemporary realities. Critics of
the reservation system believe that there is actually no social stigma at all associated with
belonging to a backward caste and that because of the huge constitutional incentives in the form
 28

of educational and job reservations, a large number of people will falsely identify with a
backward caste to receive the benefits. This would not only result in a marked inflation of the
backward castes' numbers, but also lead to enormous administrative and judicial resources being
devoted to social unrest and litigation when such dubious caste declarations are challenged.

In 20th century India, the upper-class (Ashraf) Muslims dominated the government jobs and
parliamentary representation. As a result, there have been campaigns to include the Muslim
untouchable and lower castes among the groups eligible for affirmative action in India under SC
and STs provision act and have been given additional reservation based on the Sachar
Committee report.

Effects of Government aid

In a 2008 study, Desai et al. focussed on education attainments of children and young adults aged
6–29, from lowest caste and tribal populations of India. They completed a national survey of
over 100,000 households for each of the four survey years between 1983 and 2000.They found a
 29

significant increase in lower caste children in their odds of completing primary school. The
number of dalit children who completed either middle-, high- or college-level education
increased three times faster than the national average, and the total number were statistically
same for both lower and upper castes. However, the same study found that in 2000, the
percentage of dalit males never enrolled in a school was still more than twice the percentage of
upper caste males never enrolled in schools. Moreover, only 1.67% of dalit females were college
graduates compared to 9.09% of upper caste females. The number of dalit girls in India who
attended school doubled in the same period, but still few percent less than national average.
Other poor caste groups as well as ethnic groups such as Muslims in India have also made
improvements over the 16-year period, but their improvement lagged behind that of dalits and
adivasis. The net percentage school attainment for Dalits and Muslims were statistically the same
in 1999.

A 2007 nationwide survey of India by the World Bank found that over 80 percent of children of
historically discriminated castes were attending schools. The fastest increase in school
attendance by Dalit community children occurred during the recent periods of India's economic
growth.

A study by Darshan Singh presents data on health and other indicators of socio-economic change
in India's historically discriminated castes. He claims:

 In 2001, the literacy rates in India's lowest castes was 55 percent, compared to a national
average of 63 percent.
 The childhood vaccination levels in India's lowest castes was 40 percent in 2001, compared
to a national average of 44 percent.
 Access to drinking water within household or near the household in India's lowest castes was
80 percent in 2001, compared to a national average of 83 percent.
 The poverty level in India's lowest castes dropped from 49 percent to 39 percent between
1995 and 2005, compared to a national average change from 35 to 27 percent.

The life expectancy of various caste groups in modern India has been raised; but
the International Institute for Population Sciences report suggests that poverty, not caste, is the
bigger differentiation in life expectancy in modern India
 30

CASES

1. State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525

In the case by virtue of certain orders issued prior to coming into force of the Constitution,
popularly known as ‗Communal G.O.‘ seats were apportioned in the Medical and Engineering
Colleges in the State of Madras. Even after the advent of the Constitution, the G.O. was being
acted upon which was challenged by the Respondent as violative of the fundamental rights
guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India.In the case by virtue of
certain orders issued prior to coming into force of the Constitution, popularly known as
‗Communal G.O.‘ seats were apportioned in the Medical and Engineering Colleges in the State
of Madras. Even after the advent of the Constitution, the G.O. was being acted upon which was
challenged by the Respondent as violative of the fundamental rights guaranteed to her by
Articles 15(1) and 29(2) of the Constitution of India.

A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that
the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch
as the refusal to admit the respondent notwithstanding her higher marks, was based only on the
ground of caste. The Supreme Court in the case pointed out that while in the case of employment
under the State, Article 16(4) provides for reservations in favour of backward class of citizens,
no such provision was made in Article 15.

Pursuant to Supreme Court‘s order in the case the Parliament intervened amended Article 15 by
inserting Clause (4), which reads: Nothing in this article or in clause (2) of article 29 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.

2. Indra Sawhney v. Union of India (AIR 1993 SC 477)

 31

This case is also commonly referred to as the Mandal Commission Case– In this case, the Nine-
Judge Bench of the Supreme Court enumerated the following essential points pertaining to
reservation in Government employment under Article 16(4) of the Constitution:

a. That Article 16(4) is exhaustive of the provision that can be made in favour of backward
classes in matters of employment.
b. That any reservation in excess of 50% for ‗backward classes‘ will not be violative of
Articles 14 and/or 16 of the Constitution. But at the same time, such reservations made
either under Article 16(4)or under Article 16(1) and (4) cannot be extended to the totality
of 100%.
c. No Reservation can be made under Article 16(4) for classes other than backward classes.
But under Article 16(1), reservation can be made for classes, not covered byArticle 16(4).
d. The expression, ‗backward class of citizens‘ occurring in Article 16(4)is neither defined
nor explained in the Constitution. However, the backward class or classes can certainly
be identified in Hindu society with reference to castes along with other criteria such as
traditional occupation, poverty, place of residence, lack of education etc. and in
communities where caste is not recognised by the above recognised and accepted criteria
except caste criterion.
e. In the process of identification of backward class of citizens and under Article
16(4)among Hindus, caste is a primary criterion or a dominant factor though it is not the
sole criterion.
f. Any provision under Article 16(4)is not necessarily to be made by the Parliament or
Legislature. Such a provision could also be made by an Executive order.
g. The power conferred on the State under Article 16(4) is one coupled with a duty and,
therefore, the State has to exercise that power for the benefit of all those, namely,
backward class for whom it is intended.
h. The provision for reservation of appointments or posts in favour of any backward class of
citizens is a matter of policy of the Government, of course subject to the constitutional
parameters and well settled principle of judicial review.
i. No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution
for reservation of appointments or posts in favour of any backward class of citizens ―in
 32

the Services under the State‖. The decisions fixing the percentage of reservation only up
to the maximum of 50% are unsustainable.

In the case, the Apex Court also recommended the Government to create a permanent machinery
either by way of a Commission or a Committee within a reasonable time for examining the
requests of inclusion or exclusion of any caste, community or group of persons on the advice of
such Commission or Committee, as the case may be, and also for examining the exclusion of any
pseudo community if smuggled into the list of OBCs.

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

Some key observations that were made by Five-Judge Bench of the Supreme Court in context of
―extent of reservation‖ are as under:

a. That the ceiling-limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16would collapse.
b. That with respect to the ―extent of reservation‖ the concerned State will have to show
in each case the existence of the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision is an enabling
provision. The State is not bound to make reservation for SC/ST in matter of
promotions. However if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public employment in addition to
compliance of Article 335.
c. That even if the State has compelling reasons, as stated above, the State will have to
see that its reservation provision does not lead to excessiveness so as to breach the
ceiling-limit of 50% or obliterate the creamy layer or extend the reservation
indefinitely.
 33

Subject to above, the Bench upheld the constitutional validity of the Constitution (Seventy-
Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the
Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth
Amendment) Act, 2001.

4. I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors. (AIR 2007 SC 861)

Some of the points concluded by the Nine-Judge Bench of the Supreme Court in the case are as
under:

a. A law that abrogates or abridges rights guaranteed by Part III of the Constitution
may violate the basic structure doctrine or it may not. If former is the
consequence of law, whether by amendment of any Article of Part III or by an
insertion in the Ninth Schedule, such law will have to be invalidated in exercise of
judicial review power of the Court. The validity or invalidity would be tested on
the principles laid down in this judgment.
b. The majority judgment in Kesavananda Bharati‘s case read with Indira Gandhi‘s
case, requires the validity of each new constitutional amendment to be judged on
its own merits. The actual effect and impact of the law on the rights guaranteed
under Part III has to be taken into account for determining whether or not it
destroys basic structure. The impact test would determine the validity of the
challenge.
c. All amendments to the Constitution made on or after 24th April, 1973 by which
the Ninth Schedule is amended by inclusion of various laws therein shall have to
be tested on the touchstone of the basic or essential features of the Constitution as
reflected in Article 21 read with Article 14, Article 19 and the principles
underlying them. To put it differently even though an Act is put in the Ninth
Schedule by a constitutional amendment, its provisions would be open to attack
on the ground that they destroy or damage the basic structure if the fundamental
right or rights taken away or abrogated pertains or pertain to the basic structure.
 34

d. Justification for conferring protection, not blanket protection, on the laws

included in the Ninth Schedule by Constitutional Amendments shall be a matter
of Constitutional adjudication by examining the nature and extent of infraction of
a Fundamental Right by a statute, sought to be Constitutionally protected, and on
the touchstone of the basic structure doctrine as reflected in Article 21 read with
Article 14and Article 19 by application of the ―rights test‖ and the ―essence of the
right‖ test taking the synoptic view of the Articles in Part III as held in Indira
Gandhi‘s case. Applying the above tests to the Ninth Schedule laws, if the
infraction affects the basic structure then such a law(s) will not get the protection
of the Ninth Schedule.
e. If the validity of any Ninth Schedule law has already been upheld by this Court, it
would not be open to challenge such law again on the principles declared by this
judgment. However, if a law held to be violative of any rights in Part III is
subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a
violation/infraction shall be open to challenge on the ground that it destroys or
damages the basic structure as indicated in Article 21 read with Article 14and
Article 19 and the principles underlying thereunder.
f. Action taken and transactions finalized as a result of the impugned Acts shall not
be open to challenge. We answer the reference in the above terms and direct that
the petitions/appeals be now placed for hearing before a Three Judge Bench for
g. decision in accordance with the principles laid down herein.

LEGISLATIONS

1. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,

1989

The SC/ST Act lists 22 offences relating to various patterns or behaviours inflicting criminal
offences and breaking the self-respect and esteem of the scheduled castes and tribes community.
This includes denial of economic, democratic and social rights, discrimination, exploitation and
abuse of the legal process.According to the SC/ST Act, the protection is provided from social
disabilities such as denial of access to certain places and to use customary passage, personal
 35

atrocities like forceful drinking or eating of inedible food sexual exploitation, injury etc,
atrocities affecting properties, malicious prosecution, political disabilities and economic
exploitation.For speedy trial, Section 14 of the SC/ST Act provides for a Court of Session to be a
Special Court to try offences under this Act in each district.

2. Atrocities Amendment act 2015

Apart from the offences already listed under the Act, the amendment Act adds that

(i) Garlanding SCs and STs with footwear

(ii) Compelling to do manual scavenging or dispose carry animal or human carcasses.
(iii) Abusing SCs/STs in in public by caste name
(iv) Disrespecting any deceased SCs/STs person held in high esteem or attempting to
promote feelings of ill-will against SCs/STs
(v) Threatening or imposing economic and social boycott.15

3. The Protection Of Civil Rights Act, 1955

THE PROTECTION OF CIVIL RIGHTS ACT, 1955 is an Act to prescribe punishment
for the preaching and practice of ―untouchability‖ for the enforcement of any disability
arising there from and for matters connected therewith.
• Article 17: "Untouchability" is abolished and its practice in any form is forbidden.

To give effect to this Article, Parliament made an enactment viz., Untouchability (Offences)
Act, 1955. To make the provisions of this Act more stringent, the Act was amended in 1976
and was also renamed as the Protection of Civil Rights Act, 1955

15 st
Atrocities-Amendment, 1 January 2016
 36

REFERENCES

Bibliography

 http://www.simplydecoded.com/wp-content/uploads/2013/01/Mandal-
commission-report.pdf
 https://www.vakilno1.com/legal-news/important-judgments-on-reservation-
in-india.html
 https://digitalcommons.calpoly.edu/cgi/viewcontent.cgi?referer=https://ww
w.google.co.in/&httpsredir=1&article=1043&context=socssp
 https://www.jstor.org/stable/3023430?seq=1#metadata_info_tab_contents

Books

 Homo Hierarchicus: Essai sur le système des castes by Louis Dumont's

 Caste and race in India Book by G. S. Ghurye
 Caste system in India, Ekta Singh