UNIT II COMMUNITY RELIGION AND THE LAW

CASTE AS DIVERSE FACTOR

NON-DISCRIMINATION ON THE GROUNDS OF CASTE
ACCEPTANCE OF CASTE AS A FACTOR TO UNDO INJUSTICES.

CASTE AS A DIVERSE FACTOR:

The system of caste is said to have originated in India though the exact origin
of caste system cannot be traced. The records of Indo Aryan Culture contain
its first mention. According to Dr. Muzumdar, the caste system took its birth
after the arrival of Aryans in India. In order to maintain their separate
existence the Indo-Aryans used for certain groups and orders of people the
favourite word ‘Varna’ and ‘Colour’. Of the relations subsisting between four
classes —Brahmin, Kshatriya, Vaishay and Shudra.

Brahmin is definitely said to be superior to Kshatriya.

In fact the entire Hindu social organisation is based on two fundamental

notions—one regarding the natural endowment of man and the other
regarding his nature and upbringing. These two are called Varma Ashram
Vyavastha, the organisation based on differences in caste and differences in
stages of life.

According to Ashrama Dharma, a man has to go through four stages of life –

(i) The Brahmacharya—student stage when he acquires knowledge and

prepare himself of future duties,
(ii) Grihastha Ashram—householder stage in which he marries and brings up
his family and takes up an occupation in order to fulfill his economic
obligations to his family as well as to society,

(iii) Vanprastha Ashrama—when he gives up his household duties, occupation

and retires into a forest hermitage to devote time for the development of his
personality,

(iv) Sanyasa Ashrama – when he renounces the world and devotes himself
fully to the achievement of final aim of his existence — Moksha or liberation.

The other aspect of Hindu social organisation consists of the concept of

natural endowment that fixes the position of man in the society of Varna
Dharma. According to Varnadharma, there are some people who devote
themselves to the performance of sacrificial rites, study and teaching. They
are Brahmins who constitute the intellectual elite. Secondly there are
Kshatriyas whose duty is to protect the people. These are the rulers and
warriors of the olden days and statesmen and politicians of modern days.

The third group is those people who have a peculiar endowment to produce
wealth and to engage themselves in trade, commerce, banking etc. Right from
agriculturists to the industrialists and bankers all the people who are engaged
in the task of production and distribution of wealth constitute the third group,
the Vaishya. Finally, all the rest of the members of the society who are
workers constitute the Sudra group.

The first three groups are the elite groups—the intellectual, the political
and production groups and the fourth group comprises the working
class. In this way the origin of the caste system can be found in the nature
and quality of social work performed by the various groups of people. Those
professions which were regarded as better and respectable made the persons
who performed them superior to those who were engaged in dirty professions.
According to the Evolutionary theory, the caste system did not come into
existence all of a sudden or at a particular date. It is the result of a long
process of social evolution. A number of factors played their part in the
development of the present caste system.

Some of the important factors are as under:

1. Hereditary occupations

2. The desire of the Brahmin to keep themselves pure

3. The lack of rigid unitary control of the state.

4. The unwilling of rulers to enforce a uniform standard of law and

customs and their readiness to recognise the varying customs of
different groups as valid.

5. Beliefs in re-incarnation and the doctrine of Karma.

6. Clash of races, colour prejudices and conquest.

7. Deliberate economic and administrative policies followed by the

various conquerors particularly by the British.

8. Geographical isolation of Indiana peninsula.

9. Static nature of Hindu society.

10. Foreign invasions.

11. Rural social structure.

All the above factors conspired to encourage the formation of small groups
based on petty distinctions from time to time which promoted the spirit of
solidarity and community feeling in every group. Caste system is not a
monopoly of India. It existed and still exists in many parts of the world. The
feudal system of mediaeval Europe was a species of caste system. Certain
ethnic groups such as Jews and Negroes are still treated as castes in many
civilised countries including the U. S. A. What is unique in Hindu caste system
is that it alone classified some groups as untouchables and unapproachable.

Caste is a voluntary association of persons for certain purposes.It is a well

defined yet fluctuating group of persons governed by their own rules and
regulations for certain internal purposes (Cooppooswami Chethy vs
Duraiswami Chethy,(1910) ILR 33 Mad 6, Barte Subrayalu v. Robert
Mariadasson,1987 Cr.L.J.272.)

How caste is formed depends not only on the community of the region but
also on the community of functions.

Supreme Court observed in M. Nagaraj, “Under the Indian Constitution, basic

liberties are guaranteed and individual initiative is encouraged. In ancient
times, society was divided on the basis of caste. The high caste people used
to discriminate with the low caste people. Untouchability was practised 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.

(1) Caste Factor in Political Socialisation and Leadership Recruitment:

Different caste groups have their loyalties behind different political parties and

their ideologies. Right from his birth, an Indian citizen inherits a caste and

grows up as a member of a particular caste group.

He belongs either to one of the High Castes or to Scheduled Castes. In the

process of picking up his political orientations, attitude and beliefs, he naturally

comes under the influence of caste groups and casteism.

‘Caste values’ and caste interests influence his socialisation and consequently

his political thinking, awareness and participation. He banks upon caste

solidarity for occupying and performing a leadership role.

Caste influences the process of leadership recruitment. This is particularly true

of highly ‘caste conscious’ people of some states like Haryana, Bihar, UP,
Tamil Nadu and Andhra Pradesh. In Haryana, the leadership comes either
from the Jats or from the Bishnois or Brahmins. In Andhra Pradesh, the
Reddys, Kammas and Valamas provide state leaders.

2. Caste System among Religions in India:

Although caste is Hindu phenomenon, there is a group of sociologists like

Bailay, Harper, Barreman etc. which defines caste in structural terms and
believe that it has also influenced other religious groups in India.

Caste among Christians:

Christians in Kerala live within their caste framework. There is a clear cut
distinction among original Christians and converts from untouchable groups.
The stigma of untouchability is quite obvious within the Christian community.

Caste among Sikhs:

Although religious dogma of the Sikhs is categorically against caste system

still castes among Sikhs exist in the same manner as in the Hindu group. E.g.
Jats are mostly land owners/cultivators who prefer to marry within the Jat
castes only. Khatri Sikhs avoid marrying in Jats or Ramgharia (Kohar,
Tarkhans by traditional occupation) castes. Mazhabi Sikhs are the low caste
groups. Converts are often placed at the bottom of social hierarchy. Upper
and lower castes are clearly distinguished among the Sikhs.

Caste among Muslims:

The Muslims form the second largest religious community of India. Muslim
society in Bihar is divided into numerous castes like groups and has various
elements of the caste system such as endogamy, hereditary occupations,
caste names and social hierarchy. Ritual purity and pollution is also present
among Muslims. The pattern of intermingling is confined to one’s kin group or
known range within kin groups. The idea of pollution is limited to clean castes
with regard to unclean. But the notion of ritual purity and pollution is quite
weak among Muslims.

3. Caste and Elections:

The caste factor is an important factor of electoral politics in India. All political
parties give weightage to the caste factor in selecting their candidates, in
allocating constituencies to their candidates and in canvassing support for
their nominees in the elections. In constituencies predominated by Muslims,
Muslim candidates are fielded and in areas predominated by Jats, Jat
candidates are fielded. Even secularist parties like Congress, Janta Dal, CPI
and CPM take into consideration the caste fact in selecting their candidates.

In the election campaigns, votes are demanded in the names of caste. Caste
groups are tapped for committed support. N. D. Palmer has rightly observed
that “Caste considerations are given great weight in the selection of
candidates and in the appeals to voters during election campaigns.” In
elections, caste is the most important political party.

4. Caste and Organisation of Government:

Since caste is a major feature of Indian society and acts as an important factor
in various processes of politics, it also plays a basic role in the decision-
making process. Even the issue of re-organization of State was handled with
an eye upon the prevention of undue predominance of a caste group in a
particular territory. Caste factor influences the policies and decisions of the
State Governments. The party in power tries to use its decision-making power
to win the favour of major caste groups. Congress has always tried to nurture
people belonging to Scheduled Castes as its vote banks.

Regional political parties whenever they get the chance to rule their respective
states, always use political power for furthering the interests of the caste
groups which support or can support their regimes. Recruitment of political
offices is mostly done with due considerations for the caste of the persons.
The constitution of India provides for a single unified electorate and advocates
the spirit of caste free politics and administration. However, the caste factor
always acts as a determinant of people’s voting behaviour, their political
participation, the party structure and even governmental decision-making.

5. Caste Factor and Panchayati Raj:

The role of caste in the working of Panchayati Raj and other institutions of
local self-government has been a recognised reality. Caste based factionalism
in rural areas of India has been the most major hindering factor in the
organisation and effective working of Panchayati Raj.

6. Caste and Indian Constitution:

Though the spirit of factionalism stands clearly affirmed in the constitution, yet
the constitution in a limited and indirect way recognises the caste system in
the form of providing for the reservation of seats for Scheduled Castes and
Scheduled Tribes in the Union Parliament and the State Legislative
Assemblies. It also provides for the office of commissioner of Scheduled
Castes and Scheduled Tribes with the responsibility to investigate matters
relating to the various safeguards provided by the constitution to these castes
and tribes.

The provision for the appointment of ministers in charge for looking after the
welfare of Scheduled Castes, Scheduled Tribes and other backward classes
in the States of Bihar, Madhya Pradesh and Orissa also reflects indirect
recognition of caste factor. Article 331 and 333 provides for the reservation of
seats and jobs in government offices, schools, colleges, universities and other
public sector undertakings also reflects this feature. The emergence of strong
pro-reservation and anti-reservation groups in India has been the direct
consequence of these provisions of the constitution.

7. Caste and Rural Politics:

In the Indian rural context caste has been a plank of mobilisation, of channel
of communication, representation and leadership and a linkage between the
electrode and the political process.

8. Caste Violence:

Caste based violence very often finds its way into politics. The traditional
differences between higher and lower castes have acquired a new vigour and
have turned, at times, into a violent and fierce struggle for power in the
society. The growing terrorisation of the lower castes by the higher or even
intermediary castes has been becoming a par of rural India’s political reality.
In states like Maharashtra, Bihar, Gujarat and U. P. caste violence has raised
its head even in some urban areas. However, till today most of caste based
violence continues to characterise rural politics.

9. Caste and Political Leadership:

Caste has been emerging as a factor in the process of leadership recruitment.
Leadership of BSP leader Kanshi Ram is a Caste based leadership. So was
the leadership of Ch. Charan Singh in U. P., Karpoori Thakur in Bihar and Dev
Raj Urs in Karnataka.

In this way the Indian party system and electorate clearly reflect the caste
divisions. The issue of Brahmins vs. Non-Brahmins in Tamil Nadu and
Maharashtra, Kammas vs. Reddys in Andhra Pradesh and Jats vs. Mon-Jats
in Punjab etc. reflect the dominant role of caste in Indian politics. Caste
loyalties, other ethnic factors and not ideological differences really divide the
Indian political parties. Election campaigns are run along caste lines and poll
violence is usually caste based violence.

Modern Trends in the Caste System in India:

(i) Reformist Movement:

Many Indian writers who studied western literature in details were impressed
by progressive ideas of English writers and they started a movement to
promote brotherhood of mankind. Indian writers like Raja Ram Mohan Roy,
Rabindra Nath Tagore, Swami Dayanand, and Mahatma Gandhiji put in their
efforts to make it clear that it is not only birth or caste of a person which
determines one’s position in society but his own capabilities and worth is all
that matters.

(ii) Legislation during British Rule:

British courts were established which made uniform laws for all the people.
The Caste Disability Removal Act of 1850 recognised all castes to be equal.
According to Special Marriage Act in 1872 and Hindu Special Marriage Act
1954, inter-caste marriages were considered valid. Indian constitution through
its articles allows all castes to be treated equal and removes the concept of
untouchability.

(iii) Industrialisation:

Social structure of a society is affected by industrial revolution to a great

extent. In an industrialised society people from all spheres of life, of all castes,
creed and colour come together and work. People work according to their
qualification, talent and experience. Preference is given to skill and
qualification of a person and not the caste he belongs to. So industrialisation
has helped in removing the inequalities based on caste, creed or colour to a
great extent.

(iv) Urbanisation:

Urbanisation has brought people from different places and caste together. In
cities people of different castes are adopting one another’s way of life and the
economic factor is playing a great role in making categories of people like
Rich, Poor and Middle Class.
HOW CASTE SYSTEM WAS BORN

This is the debatable issue and each one has different theories regarding the
establishment of the caste system in India. Manusmriti is one of the oldest
legal books of Hindu law. As per the religious theory, the caste system
originated from Brahma, and further, the caste system is divided into four
categories that are Brahman, Kshatriya, Vaishyas, and Sudras.

When we talk about the Brahman (Priest and Teacher) then he used to be
superior to all three and in the categories of Brahman only the teacher and
intellectual used to come. The Brahmans were created from his naval.

The second is Kshatriya (Rulers and soldiers) who are created from his hands
and in the Kshatriya categories warriors and rulers people used to come.

The third is Vaishya’s (Merchant and traders) who were created from the thigh
and in the Vaishyas categories, the traders used to come.

The fourth is Sudras who were created from the Brahma feet and they used to
do all types of menial work.

The fifth category of people who fall outside of the caste system is Dalit.

In a rural area, society is divided based on their caste status. Like each
society has a different colony and colonies are named after based on their
caste. Every locality is named after the particular caste based on the people
living in it. Society is divided based on the upper caste and lower caste.

The socio historical theory explains the creation of the Varnas, Jati and of the
untouchables. According to this theory, the caste system began with the
arrival of the Aryans in India. The Aryans arrived in India around 1500 BC.
The fair skinned Aryans arrived in India from south Europe and north Asia.
Before the Aryans there were other communities in India of other origins
among them Negrito, Mongoloid, Autroloid and Dravidian. The Negrito have
physical features similar to people of Africa. The Mongoloid have Chinese
features. The Austroloids have features similar to the aborginals of Australia.
The Dravidians originate from the Mediterranean and they were the largest
community in India. When the Aryans and ved in India their main contact was
with the Dravidians and the Austroloids. The Aryans disregarded the local
cultures. They began conquering and taking control over regions in north India
and at the same time pushed the local people southwards or towards the
jungles and mountains in north India.The socio historical theory explains the
creation of the Varnas, Jati and of the untouchables. According to this theory,
the caste system began with the arrival of the Aryans in India. The Aryans
arrived in India around 1500 BC. The fair skinned Aryans arrived in India from
south Europe and north Asia. Before the Aryans there were other communities
in India of other origins among them Negrito, Mongoloid, Autroloid and
Dravidian. The Negrito have physical features similar to people of Africa. The
Mongoloid have Chinese features. The Austroloids have features similar to the
aborginals of Australia. The Dravidians originate from the Mediterranean and
they were the largest community in India. When the Aryans and ved in India
their main contact was with the Dravidians and the Austroloids. The Aryans
disregarded the local cultures. They began conquering and taking control over
regions in north India and at the same time pushed the local people
southwards or towards the jungles and mountains in north India.

NON-DISCRIMINATION ON THE GROUNDS OF CASTE

Baba Saheb Bhim Rao Ambedkar writes” you must make your efforts to
uproot caste, if not in my way then do it in your way. I am sorry, I will not
be with you. I have decided to change. But even when I am gone out of your
fold, I will watch your movement with active sympathy”.

This year India has celebrated its 72nd Independence Day. Indian
constitution came into the force on 26th January 1950 where Article 15 of
the Indian Constitution says that the “State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them.

The constitutional framework and Law related to Scheduled Caste

and Scheduled Caste, people

Article 17 of the Indian Constitution says that “Untouchability” is abolished and

its practice in any form is forbidden. The enforcement of any disability arising
out of ‘Untouchability’ shall be an offence punishable by the law. When any
person discriminates based on untouchability then an Indian citizen has a
fundamental right to file a suit against him. The constitution of India protects
the fundamental right of every Indian citizen.

Further Article 46 of the Indian Constitution says that the promotion of the
educational and economic interest of scheduled castes, scheduled tribes, and
other weaker sections. It is the responsibility of the state to promote with
special care the educational and economic interest of the weaker section of
the people, and in particular, of the scheduled castes and the scheduled
tribes. Further Article 46 of the Indian Constitution says that the state has a
responsibility to protect the scheduled caste and scheduled tribes, peoples
from social injustice, and all forms of exploitation in the society.

To protect the social, economic, cultural interest of the scheduled caste

people, the Indian Constitution has set up a constitutional body with a view to
providing a safeguard against the exploitation of scheduled caste and Anglo
Indian Communities. Article 338 of the Indian Constitution deals with the
National Commission for Scheduled Castes. It is a duty of the commission to
investigate all types of atrocities, to inquire into specific complaints concerning
the deprivation of rights, and to safeguard the scheduled caste people.

The National Commission for Scheduled Tribes has been established by the
89th Constitutional Amendment in 2003. The Scheduled Tribes Commission
has a responsibility to investigate all matters related to the Scheduled tribes
and inquire into specific complaints concerning the deprivation of rights and
safeguard of the Scheduled Tribes.

However, many acts have been passed by the parliament to prevent the
atrocities against the scheduled caste and scheduled tribes people. The
Protection of Civil Rights, 1955, and the Prevention of Atrocities Act, 1989
prescribe punishment for a crime against the Dalit. There are many special
courts and fast track courts have been established for speedy trial of cases.

The preamble of India sets the goal of the Constitution and secures to all
citizen equality: (i) of status, (ii) of opportunity; and (iii) to promote among
them all justice,liberty,equality and fraternity.The goal set by preamble,is
extended by Article 14 to 18 of the Constitution.

Article 14 of the constitution expressly imposed mandatory duty on the state

not to discriminate against any person before the law or the equal protection
of the laws within the territory of India.Second part of this article imposes
general prohibition of any discrimination on the grounds of :
Religion,Race,Caste,Sex or place of birth.

The Indian constitution imposes “ All persons are equal before the law” and
implies equality of treatment in equal circumstances.

Art. 14 of the Indian Constitution states that the State shall not deny to any
person Equality before law or equal protection of laws within the territory of
India. The practical effect of this is given in Art. 15. It prohibits discrimination
on the ground of, inter-alia, caste. Access to shops, public restaurants, hotels
and places of public entertainment cannot be denied 'only' on the ground of
caste. Similarly, the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the
use of the general public are free for use to any person belonging to any
caste. Art. 15(4) enables the State to make any special provision for the
advancement of any socially backward (and educationally backward) classes
of citizens or for the Scheduled Castes and the Scheduled Tribes. Special
provisions for them can be made in respect of an admission to educational
institutions as well including private educational institutions whether aided or
unaided by the State. Similarly Art, 16 guarantees equality of opportunity in
matters of public employment. No citizen 'only' on the ground of caste shall be
ineligible or discriminated against in respect of any employment or office
under the State. However, reservations of appointments or posts in favour of
backward classes of citizens which, in the opinion of the State, are not
adequately represented in the services under the State can be made. Here,
caste becomes a decisive factor. Similarly, the reservation in matters of
promotion is also provided in favour of. Scheduled Castes and Scheduled
Tribes. Similarly, Art. 17 abolishes untouchability.

Structure of the Indian Society is of different classes and castes. Law helps
the Scheduled Castes and the Scheduled Tribes to ameliorate their position.

The Indian Constitution guarantees protection to the disadvantaged section of

the society. It has helped in improving their status.

Reservation policy and Scheme embodied in the Indian Constitution has not
yet achieved its stated goals. This is the concept of social justice. This is the
concept of protective discrimination.

Such a law is formulated under the Concept of Protective Discrimination for

Upliftment of Backward Classes. The Constitution provides equality of
opportunity to all the citizens in matters of employment or appointment to any
office under the State.

Among others, the concept of equality before the law contemplates minimising
inequalities in income and eliminating inequalities in status, facilities and
opportunities not only among individuals, but also amongst groups of people,
securing adequate means of livelihood to its citizens and to promote with
‘special care the educational and economic .interests of the weaker sections
of the people including in particular the Scheduled Caste and Scheduled
Tribes and to protect them from social injustice and all forms of exploitation.
Art. 15(4) and Art. 15(5) together constitute an extent of affirmative action in
India. Art. 15 is an instance and particular application of the right of equality
which is generally stated in Art. 14. While Art. 14 is available to all persons,
Art. 15 are available to citizens only. It was held in that case that while Art. 14
guarantees the general right of equality, 15 and, 16 are instances of the same
right in favour of citizens in some special circumstances What Art. 15(1)
means is that no person of a particular religion, caste, etc. shall be treated
unfavourably (by the State) when compared with persons of other religions
and castes merely on the ground that he belongs to a particular religion or
caste etc. The significance of the word ‘only’ is that other qualifications being
equal, the race; religion etc., of a citizen shall not be aground of preference or
disability. In view of Art. 15(3) and 15(4) several States have implemented
programs of compensatory or protective discrimination. Such programs must
be designed and worked in a manner conducive to the ultimate building up of
an egalitarian and non-discriminatory society.

Further, it is provided by the 93 Amendment to the Constitution (2005)

(w.e.f.21-l- 2006), by way of Art. 15(5) that, that State can make any special
provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the S.C./STs in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the
minority educational institution referred in Art. 30(1) of the Constitution.

The validity of this amendment is challenged in Ashok Kumar Thakur v UOI-

(2008) 6S.C.G 1). but upheld. It is held that creamy layer should be excluded
from socially and educationally backward classes. However, this is not
applicable to S.C.s and STs. The view in Ashok Kumar is reiterated in PV
Indrasen and others v UOI- (2009) 7 S.C.C 300.

Art. 15 is an instance and particular application of the right of equality which is

generally stated in Art.l4. (Dasaratha v State of AP AIR1961 S.C. 364.) While
Art. 14 is available to all persons, Art. 15 is available to citizens only. It was
held in that case while Art. 14 guarantees the general right of equality, 15 and
16 are instances of the same right in favour of citizens in some special
circumstances. Art. 15 is more general in terms than Art. 16 , the latter being
confined to matters relating to employment or appointment under the State. IT
is also worthy to note that Art. 15 does not mention of 'descent' as one of the
prohibited grounds of discrimination, whereas Art. 16 does.

Art. 14 is genus while Articles 15 and 16 are species although all of them
occupy the same field and the doctrine of' ‘equality’ embodied in these Articles
has many facets. Art. 15 deals with every kind of State action and every
sphere of State activity is controlled by Art. 15(1). Hence, employment under
the State is included in Art. 15(1) and both Articles 15(1) and 16(1) go
together. Govt. of AP v PB.Vijayakumar AIR 1995 S.C. 1648.)

Article 15(4) and 16(4) profess to bring the socially and educationally
backward people to the forefront. Only for the purpose of invoking the equality
clause, the makers of the Constitution thoroughly protected discrimination and
affirmative action. Art. 14, 15 and 16 to form a group of provisions
guaranteeing equality. Such provisions confer a right of equality to each
individual citizen. Legal constitutional policy adumbrated in a statute must
answer the list of Art. 14. But legislation may not be amenable to challenge on
the ground of violation of Art. 14, when it is intended to giving effect to the
principles specified under Art. 15 or Art. 16 or when the differentiation is not
unreasonable or arbitrary.

Art. 15 and 16 prohibit a discriminatory treatment, but not preferential or

special treatment of women, which is a positive measure in their favour. The
Constitution does not prohibit the employer to consider sex in making
employment decisions where this is done pursuant to a property or legally
charted affirmative action plan. The prohibition to the State not to discriminate
citizen “only on sex” does not prohibit a special treatment to the women in
employment on their own demand. (All India Cabin Crew Association v
Yashaswini Merchant, AIR 2004 S.C. 187)

The question is whether Art. 15(3) authorises special provisions for women
even where there is no reasonable basis for the classification, having regard
to the object of the legislation. Now, so far as Cl. (3) of Art. 15 is concerned,
the provision is not qualified by any conflict between it and the general
provision in Art. 14. This seems to be the view of the Supreme Court in Yusuf
v. State of Bombay – AIR 1954 S.C. 321).

Art. 15(3) acts as an exception to clause (1) and (2) of Art. 15 as well as Art.
14 (Om Naraian v Nagar Palika, Shahaiahanpur AIR 1993 S.C. 1440). It
would follow any special provision for women, which falls under Art. 15(3),
cannot be challenged on the ground that there is no reasonable basis for the
classification having regard to the object of the legislation.

Art. 14, 15 and 16 of the Constitution confer several benefits of social and
economic development and improvement and social equality status and
dignity of person, by providing reservation in Government services and in
educational institutions for the Scheduled Castes and Scheduled Tribes.

The ‘creamy layer’ rule is necessary bargains between the competing dens of
caste based reservations and principle of secularism. It is a part of the
constitutional Scheme. The contention that the principle of creamy layer could
be applied only to cases coming under Art. 16 and not Art. 15 is not based on
any sound foundation when the lists relate to Art. 16(4) form this foundational
base of Article 15(4). The equality of opportunity guaranteed under Art. 16(1)
need not be an absolute equality. It does not prohibit the presence of
reasonable rules for selection to any employment or appointment to an office.
Art. 16(4) and Art. 16(4-a) and Art. 16(4-B) are the products of protective
discrimination envisaged under the Indian Constitution.

D) Criticisms against caste-based identification

The defects of caste criterion in identification of beneficiaries of protec¬tive

discrimination are brought out in dissenting judgments and aca¬demic
writings. While for the purpose of eradication of untouchability and
amelioration of Scheduled Castes and Scheduled Tribes, caste and racial
factors have been regarded as unobjectionable, for identifying OBC or SEBC
their application is experienced to be problematic.

Firstly, since caste is a constitutionally prohibited ground of dis¬crimination

and has linkage with religion, use of it even for ameliora¬tive purpose is not
appropriate especially when alternative and secu¬lar 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 urbanisation and education.

Thirdly, determination of status of caste on the basis of caste-wise statistics of

census, as is presently done by various Commissions, is unscientific.

Fourthly, caster based identification have great divisive tendency in view of

the fact that in order to get the benefits, devious methods are adopted by false
attribution of some characteristics or even by false certificates.

Conclusion

India is a diverse country and it is the world’s largest democratic country.

Here, when we retrospect then India is in question that after more than the
seven decades of independence, people are discriminating one another based
on their caste. Caste discrimination is not something that has emerged post
colonially. Caster discrimination is a type of poison and it has become the one
of the social tradition and social culture which is increasing day by day in the
society.

The deprivation and exploitation arising from caste differentiation have

been responded to by the legal system with preventive and curative
approaches. Prohibition of the practice of untouchability is both constitutional
policy and serious commitment through a strong legislative framework to
spearhead social transformation.