LAW AND SOCIAL TRANSFORMATION IN INDIA

7.3 Acceptance of caste as a factor to undo past injustice

INTRODUCTION
In the Indian social system, due to the caste structure designed, the difference in status and classes causing injustice to society is not accepted by any state. In the ancient period of India, the backward castes had been denied all kinds of social and economic endowments. Dr BR Ambedkar sounded a grave warning in the Constituent Assembly: "On January 26, 1950, we will have equality in politics and inequality in social and economic life. We must remove this contradiction at the earliest moment. The social and economic deprivation among Scheduled Castes had been most common during pre and post-Independence.

State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)

This is a landmark decision of the Supreme Court of India. This verdict led to the First Amendment of the Constitution of India. It was the first major verdict regarding reservations in Republic of India. In its ruling the Supreme Court upheld the Madras High Court verdict. The Communal G.O had provided caste based reservation in government jobs and college seats. The Supreme Court's verdict held that providing such reservations was in violation of Article 16 (2) of the Indian Constitution.

1st Amendment -1951

Jawaharlal Nehru encouraged the Parliament of India to pass the amendment in response to State of Madras v. Champakam Dorairajan which went before the Supreme Court of India. In that case, a Brahmin woman in Madras (now Chennai) challenged the state's Communal General Order, which established caste quotas in government-supported medical and engineering schools, on the grounds that it denied her equality under the law; both courts had upheld her petition. Aside from Nehru, B. R. Ambedkar also spoke in support of the proposed amendment, while Syama Prasad Mookerjee spoke in opposition to it.

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1st Amendement clarified that the right to equality does not bar the enactment of laws which provide "special consideration" for weaker sections of society. The State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice.

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In 1st amendment Art.15 (4) of the constitution, shall not be violating of Art.15 or Art.29 (2) If state makes any special provision for the any socially and educationally backward classes of citizens or for the Scheduled caste and the Scheduled Tribes. Art.15(5) of the constitution it shall not be violating of Art.15 or Art 19(1) (g) If state making any provision, by any law, for the advancement of any SEBC of citizen or for ST/SC Such special provisions relate to their admission to educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred in Art.30(1)

COMMISSION FOR SEBC

Art.340 Appointment of a Commission to investigate the conditions of backward classes. The President may by order appoint Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India . The difficulties under which they effort and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State.

1ST COMMISSION FOR SEBC

(KALELKAR COMMISSION)
The first Backward Classes Commission was constituted on 29th January, 1953 under the chairmanship of Kakasaheb Kalelkar

Recommendations
Undertaking caste-wise enumeration of population in the census of 1961. Relating social backwardness of a class to its low position in the traditional caste hierarchy of Hindu society Treating all women as a class as backward Reservation of 70 % seats in all technical and professional institutions for qualified students of backward classes. minimum reservation of vacancies in all government services and local bodies for other backward classes on the following scale: class I = 25 %; class II = 33 % ;class III and IV = 40%

IMPLEMENTATION
Scheduled Caste and Scheduled Tribes
This commission also examined the existing list of ST/SC and recommended certain additions to, and deletions from, these lists. These recommendations were duly examined in consultation with the State Governments, the Commissioner of the Schedule Tribes and the Deputy Registrar General, and the Government accepted these recommendations by passing The Scheduled Caste and Scheduled Tribes Orders (Amed.) Act, 1956. This report was rejected by the Central government on the ground that it had not applied any objective tests for identifying the Backward Class. Thus there was a need of second backward classes Commission.

2ND COMMISSION FOR SEBC

(MANDAL COMMISSION)

On January 01,1979 janta party Gov. headed by Shree Moraji Desai, appointed 2nd backward classes commission under Art.340 under the chairmanship of Shree BP Mandal

Recommendations
The reservation of 27 % jobs for those who do not qualify on the basis of merit. The reservation of 27 % for promotions at all levels. The reserved quota, if unfilled, should be carried forward for a period of three years and dereserved thereafter. Age relaxation for the backward classes should be the same as it is in the case of the ST/SC The principle of reservation should be made applicable to all the public sector undertakings, banks, and private undertakings receiving grants from the central and state governments, universities and colleges. The government should make the necessary legal provisions for implementing these recommendations.

Criteria to identify OBC

The commission adopted 11 criteria. three major headings: SOCIAL, EDUCATIONA, ECONOMIC identify OBCs

Social CASTES / CLASSES

Considered as socially backward by others. Which mainly depend on manual labour for their livelihood. Where at least 25 % females and 10 % males above the state average get married at an age below 17 years in rural areas and at least 10 % females and 5% males do so in urban areas. Where participation of females in work is at least 25 % above the state average

Educational
Caste /classes where the number of children in the age group of 515 years who never attended school is at least 25% above the state average. where the rate of student drop-out in the age group of 515 years is at least 25% above the state average. whom the proportion of matriculates is at least 25 per cent below the state average.

Economic
Caste / classes where the average value of family assets is at least 25% below the state average. where the number of families living in kuccha houses is at least 25% above the state average. where the source of drinking water is beyond half a kilometer for more than 50% of the households. where the number of households having taken consumption loans is at least 25% above the state average.

IMPLEMENTATION
The commission identified as many as 3743 castes as socially and educationally backward and recommended then for reservation of 27% Gove. job for them All the recommendations of the report are not yet implemented. The recommendation of reservations for OBC's in government services was implemented in 1993. As on 27 June 2008 there is still a backlog of 28, 670 OBC vacancies in government jobs. The recommendation of reservations in Higher educational institutes is implemented in 2008.

Present caste-based reservation system of Union Government

CATEGORY AS PER GOV.OF INDIA Schedule Tribes (ST) RESERVATION % AS PER GOV. OF INDIA 7.5%

Schedule caste (SC)

15%

Other Backward classes (OBC)

27%

Total %

49.5%

In Indra Sawhney v. Union of India the SC held the Reservation shall not exceed 50%.

CONCLUSION
18 States appoint commission for SEBC and giving preference. GUJARAT state appoint RANE COMMISSION for upliftment of social and education wise backward class. Indian law accepted the caste system . So post independence the Gov. taken various steps for undo the past injustice.. Relationships between castes have become more relaxed today.

Thank you very much !

Prepare by :Mihir Vakhariya LLM-1 SEM-1 ROLL NO - 7