Intellectual Property Rights: Practice and Drafting by Adv Gautam Matani. Register Now!
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     04 May 2010


IT WAS only M AIL T ODAY of December 3, 2009 that did a full frontal on a sensational Supreme Court judgment delivered the previous day.


On December 2, 2009, the highest court of our land reminded us that no government can be constitutionally forced to Reserve seats for any category of the population, whether Scheduled Castes ( SCs), Scheduled Tribes ( STs) or Other Backward Classes ( OBCs). Therefore, if the Haryana Government let Maharishi Dayanand University, Rohtak, do away with Reservations in its post graduate medical courses, it had not cheated on the Constitution.


By any standard, this news was headline material and should have caused a major tremor in all national dailies. But apart from M AIL T ODAY , it barely registered on the Richter scale. This is why most people do not know that caste based reservation is not a right, and it has never been. It is only a policy, and a government, at any time, may consider other options with equal constitutional merit.




This apex court bench also acknowledged the fact that there " cannot be any mandamus compelling the State to provide reservation for a particular class of persons." This was in line with the majority view in the Indra Sawhney case which maintained that it was only " in very exceptional situations— and not for all and sundry reasons— that any further reservations, of whatever kind, should be provided…." Exceptional situations? Why, we had always believed that as Reservation abhors a vacuum it has to be everywhere.


The correct constitutional point, however, is that when Reservations are recommended " the State has to satisfy, if called upon that making such a provision ( Reservations) was necessary in public interest to redress a specific situation." So if a Reservation Policy for Dummies is ever written, it must underline the fact that caste based quotas is one among many contending policies for uplifting weaker sections. Therefore, before Reservations are recommended in any sphere of public life, the issue must be determined case by case, and these things take time. Policy makers may want to sleep at the switch and short circuit policy, but they will have to muffle Article 335 first. This section of our Constitution clearly states that the claims of the SCs and STs ( now add OBCs) must be " consistent with the maintenance of efficiency of administration…."


But what the Constitution enables, politics quickly disables.


The Reservation system has become so fat that there is barely room for any other policy considerations. All alternatives to it, even the skinniest one, are squeezed out by politicians. What we tend to overlook is that Article 15 ( 4) of the Constitution merely enables the government to contemplate measures to help the weaker sections of the population. It does not say that it has to be Reservations and Reservations only.


There are other possibilities. One could be quality education across the class divides; the other could be vouchers and an open school market; we could also think of public- private partnership in primary education; or, boldly still, video and internet education. At any rate, there are options, but the way politics is played out it gives the impression that Reservation is a matter of right and nobody can mess with it.




Instead of taking a long hard look at the way caste has been politicised, primarily through the medium of Reservations, our politicians, and some intellectuals, want more of it heaped on our plates. It is the same recipe no matter what the occasion.


Politicians like Lalu Yadav, and some academics too, are now demanding that the next Census list out the numbers of every jati in complete and obsessive detail.


Why should the Census engage in such a task unless some policy is on the anvil that will use this information? The Census does not record facts because they are there, or to satisfy idle curiosity. The Census is the work arm of policy making. It does the tedious job of adding numbers but only on matters that are going to become, or are already, aspects of state policy.


If academics want to know the caste break- up of a certain village or region, they should go out and gather this information themselves. The Census is not a substitute for scholarly field research. Yet many professors want the Census enumerators to do the work for them: all in the name of getting information. Should academics interested in obesity demand that the Census gives a break- up of fat people and thin people and the thin people waiting to come out of fat people? This would obviously not make sense because no state level programme is going to flow out of this information. Nor is the Census interested to know how many migrants continue to watch movies from their own region away from home.


Likewise, should the government concern itself with the number of vegetarians or meat eaters? Or the percentage of bald people in the major Indian cities? Of course not! What policy could make use of such facts? Why then do we need an elaborate picture of the population break- up of the many castes or jatis in India? It is not simply because we are curious, but rather because there is political mischief afoot.


Yes, we want to know the number of SCs and STs, because the Constitution is against untouchability and recommends measures ( not necessarily Reservations) to uplift these communities. Therefore, if the Census is gathering figures on such matters it is in keeping with its Constitutional obligations. That much is clear.


What is not is why the Census should slice thin the country's caste profile unless there are interested people who want to use it to political advantage?



The Census is a useful tool for policy purposes, never because somebody, not even a potentate, is simply curious. When the British colonials in India started the Caste census it was clear that this was to aid their policy of divide and rule. The British, for all their rational inheritance, never outlawed untouchability. They wanted differences to prevail; indeed, they added several more, to make their imperial objectives easily attainable.

The 1931 Census delighted in the fact that there were different kinds of Brahmans and that Indians were very conscious of status mobility. For example, 227,000 Ambattars fell quite magically to 10,000 between the different Census periods.


Also new castes such as the Navithan, Nai Brahmins, Pariyari and Navutiya surfaced, apparently from nowhere. This was more than good news for the British because colonialism becomes comfort doctrine when the subject population is internally quarrelsome.


If left to certain politicians and academics we will have a recreation of what happened in colonial times. Caste will fight caste along every social cleavage and ditch, leaving the idea of India in tatters.


Politicians of a certain brand may relish this stuff, but should the census of a free, sovereign and democratic country assist them by magnifying social differences?



 3 Replies


Who are they in so called appex bench of judges?  And no constitutional status of their so called judgement is.  It is a democratic nation and judges are public servants assigned the job to give judgements as per the constitutional provisions and nothing more.  The neither can include or reduce in the constitutional provision and it is the citizens who themselves can make rule to rule on the citizens and none other whosoever on any post in public service.  They are hypocriates of supremecy and have no constitutional status so for.

Rather than, there were ever place of harrd & fast rights for concessions & subsidy for needy people who are poor in every means.  "Equality" is a fundamental right for which a democratic nation ever in a constitutional bond.  

Ya.. it is to underline that ouur constitution never makes diffirence based on religion, region, caste, language, colour, class or gender.  The democracy works only for needy & poor people.  Democracy is nothing else.


Existence of our constitution has created a turning point of the history..  t is a creative existence.. no need to have a supprot ever from history.. BE CREATIVE... All the point raised above will be clarified later......... 

rubal mahajan (student)     21 June 2010

Its ironic to see that our constitutional set up fails to delivers what it promises. A handful of people elected by us and representing us in the parliament manages to betray our faith we bestow upon them.They can not allowed to use the power entrusted upon them against the whole of the nation.Motivated by their political desires to power they have been doing this to us since 1951 when the povisions governing reservations were for the first time introduced in the constitution in the form of article 15(4). Having initiated for a period of 10 years and now in view of the caste based census the reservations seems to stay here for ever.

The nation need to stand up against such caste based census as it will caste its shadow on our generations to come. What we have suffered all these years we cant let the same to happen to our next generation .We need to fight it now, the same way the freedom fighters who could not see the light of the free India did it for us at the cost of their lives. We need to look out for ways to stop these power hungry politicians from playing this fraud on the people of the country and on the constitution.  


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register