May 1, 2007
Shri Justice K.G. Balakrishnan,
Hon'ble Chief Justice of India,
Supreme Court of India,
Sub: Reservation for Other Backward Classes (OBC) in admission to institutes of higher education under the Government of India.
Ref: Petition pending before the Hon'ble Supreme Court listed for hearing on 8th May, 2007.
Dear Chief Justice,
Let me begin by stating that I am not a party to the above case. I am, however, making this submission to you as a concerned citizen. In exercise of its writ jurisdiction under Article 32 of the Constitution the Supreme Court does admit submissions by citizens as what is popularly called Public Interest Litigation. It also permits intervention by concerned parties with the permission of the court. This letter may kindly be treated by the Hon'ble Court as it deems fit. I shall be more than satisfied if the Supreme Court takes note of what I have to say and then decides what weight, if any, it would like to give to this letter.
The brief question before the Supreme Court is whether reservation can be made for other backward classes in which caste is the basic factor for determining class. The Supreme Court did observe in the Indira Sawhney Vs. Union of India case in 1990, followed by Ashok Kumar Thakur Vs. Union of India in 1993 that caste could be a determinant of class, though to the best of my knowledge the court did not state that class and caste are interchangeable terms. In this behalf I would commend the meaning of caste as given in the Chambers 21st Century Dictionary. This is what the dictionary has to state ' caste ' any of the four hereditary social classes into which Hindu society is divided and which are well entrenched in many areas of Hindu society'. Another meaning given is ' 16th century -- in obsolete general sense breed of men, from Portuguese casta, breed or race, from Latin castus pure'.
Even if we accept the Latin or Portuguese meaning, now completely given up, caste has a connotation of birth or breed. As it stands today, caste is purely a Hindu concept and only a Hindu can be deemed to belong to any of the 'varanas' as defined in Manu's 'varnashram'. It is to escape from the stigma of caste that many people from those Hindu castes which felt discriminated against moved to other religions by conversion, such as Islam or Christianity. In a way it is the insidious influence of the Hindu caste system which has permeated even those religions and societies which are casteless. For example, in matrimonial columns quite often Christians advertise for a Roman Catholic Saraswat bride and Muslims advertise for high caste brides or grooms or state that caste will not be a bar. The Sikh religion, which has no caste, yet has its 'mazahabi', or low caste, Sikhs who are virtually untouchables. Even the Sunni Muslims of Ujjain discriminate against their Sunni brethren called 'Helas', who are scavengers and are shunned on this account. Nevertheless, the fact remains, as proved by the Neo-Buddhists, that conversion is not so much a function of faith as of a desire to break away from an iniquitous caste system. Thus by scriptural mandate, by social acceptance, caste, despite the exceptions mentioned by me, continues to be a phenomenon unique to the Hindu faith and cannot be translated in class terms.
This brings us to the expression 'class'. The Chambers 21st Century Dictionary defines class as 'any of the social groups into which people fall according to their job, wealth. etc: the system by which society is divided into such groups'. Another definition given is 'a category, kind or type, members of which share common characteristics'. Let us take the occupation of agriculture, of landholders having smallholdings which places them at or just above subsistence level. This would be a category or class of farmers. Such a farmer might be of the scheduled caste, a normal agricultural caste such as Patel or Kurmi, a Brahmin or a Rajput. The common characteristics would be a small land holding, self-tillage, a yield just sufficient to keep body and soul together, a mud or thatch hut to live in and general poverty. The category of class does not change on account of caste.
As against this let us take a caste, say Brahmin. There may be someone so indigent that he has barely enough to eat. Another Brahmin may be a rich landlord or a thriving industrialist. The indigent Brahmin will only move within a circle of similarly placed people, whereas the rich industrialist will enjoy all the benefits of affluence and high society. He would belong to the upper class and the poor Brahmin to the lower class, though both will be of the topmost caste. A poor Patel would be in the same class as a poor Brahmin, though belonging to a lower caste, whereas Mr. Bhaichand Patel, who served the United Nations for so many years, is of the cream of Delhi society, is considered to be upper class, though his caste may only be of an intermediate level. In both cases even within the same caste there are different classes, the criterion for one being 'varna' and for the other being status. I give these two examples to try and explain that caste and class have nothing to do with each other and are concepts as different as cheese is from chalk.
This brings us to the Constitution of India, which, ultimately, is the basis on which the present adjudication rests. Article 14 mandates equality before law, Article 15 prohibits discrimination on ground of religion, race, caste or sex or place of birth and Article 16 provides for equality of opportunity in matters of public employment. In Article 15, clause 4, the Constitution recognises that the scheduled castes and schedules tribes have been discriminated against and, therefore, the State must provide for their advancement. It further recognises that if there are educationally and socially backward classes of citizens, provisions may be made for their advancement. The operative words are 'backward classes of citizens'. In Article 16, clause 4 the State is permitted to provide for reservation of appointments of posts in favour of any backward class of citizens which is not adequately represented in the Services under the State. The operative word again is class. I would most respectfully submit that the definition of class has to be strict, the criteria of which must be laid down in clear, categorical terms by the Hon'ble Supreme Court. Let me try and explain by quoting a few examples. In Gujarat the Patidars of Charhotar, that is, Kheda District, are deemed to be another backward class. Arguably they are one of the richest communities in the world and much of the NRI wealth held abroad belongs to the Patidars. On what ground can they be given reservation in jobs or in educational institutions? Let us come to one of the most backward districts, substantially tribal, in Madhya Pradesh, the district of Betul. In Betul Tahsil much of the land is owned by Kunbis, an agricultural caste who also, because of their numbers are politically the most powerful group in the Tahsil. They also dominate the government employment sector. Because their caste is Kunbi, because Kunbis are agriculturists, agricultural castes are deemed to be backward, and therefore, Kunbis are a backward class, though by every known criterion they are the dominant class in the Tehsil and the district. This business of treating a whole caste or sub caste as backward is a very tricky proposition because it slips in, under the guise of class, entire castes, thus making a mockery of the constitutional and lexicographic differentiation between class and caste.
Let me give yet another example. In the last two years running it is the Navodaya Vidyalaya students who have put in the best performance in CBSE examinations, beating even the Central Schools and well known public schools such as Delhi Public School, etc. The Navodaya Vidyalayas are located in rural areas, but they have a certain minimum infrastructure of buildings, class rooms, science laboratories, libraries and hostels. They are also relatively better served in the matter of teaching staff as compared to the normal government schools in rural areas. Because education in these schools is virtually free and there are well run hostels, students from all communities in rural areas study in these schools, which have a low drop out rate. The caste composition of the village is fairly well reflected in these schools, which, therefore, are certainly not upper caste dominated. People from the lower castes and intermediate castes have a hunger for education and their children flock to these schools. They are better motivated than many upper caste students because they know that education is a gateway to a better life and, therefore, their performance is outstanding. I commend this example because if government were really serious about upliftment of castes which have suffered from social handicaps and classes which have been discriminated against, they would have set up thousands of new institutions of the Navodaya Vidyalaya model instead of inflicting on us a reverse discrimination through the quite specious argument of the need to provide special reservations for other backward classes
Your Lordship would undoubtedly observe that I have deliberately avoided the use of such terms as creamy layer, etc., I am questioning the very basis of definition of class as an adjunct of caste which government is trying to force down our throats. I would submit most respectfully that it is the constitutional duty of the Hon'ble Supreme Court to thwart this nefarious attempt at dividing Indian society into yet more fragments while, in the process, denying an opportunity to those at the very bottom of the heap whose chances for advancement will now be monopolized by those intermediate castes who belong to the upper most classes, though theoretically much lower down in the caste scale.
I appreciate that a court of law has to be conservative and measured in dealing with any issue. Before a court it is perhaps not a good argument that government is motivated by narrow political considerations of the immediate advantage that the political party might gain by pandering to populism. Nevertheless, my submission to the Hon'ble Court would be that the present attempt at thrusting reservation on institutions such as the Indian Institutes of Technology, Indian Institutes of Management, The Indian Institute of Information Technology and Management, Gwalior, etc., is only politically motivated and does not have an iota of genuine consideration for improving the quality of education across the board. It is designed to absolve government from the need to make that genuine effort to provide quality education to the last child in the last hamlet in the most remote part of the country which would truly ensure equality of status and opportunity as mandated in the Preamble of the Constitution.
Hon'ble Chief Justice, I know the pressures which are being brought to bear on the Supreme Court to become a tame hand maiden of the executive and the legislature. The Hon'ble Supreme Court has to treat these attempts with the contempt that they deserve, to deal with all matters before it most judiciously and objectively, without fear or favour and to ensure that true justice is done. In the case now pending before the court we, the citizens, expect no less from the Hon'ble Supreme Court.
In case I have said too much I seek the court's pardon in advance, whilst at the same time pleading that the court will act as a bulwark against the political machinations of an executive which is tending more and more to acquire arbitrary powers and a legislature which seems to be willing to acquiesce.
(M N Buch)