Who Is Backward

In one line

The Constitution names the beneficiaries by list for two groups and by description for the third, and almost all the litigation is about the third.

In the wording a student can write in an exam: the Scheduled Castes and Scheduled Tribes are identified by Presidential notification under articles 341 and 342, which Parliament alone may vary; the socially and educationally backward classes are described and not listed, so their identification has been worked out by commissions under article 340 and by the courts.

Two techniques of identification

By list. Article 341 empowers the President, by public notification and after consultation with the Governor where it is a State, to specify the castes, races or tribes deemed to be Scheduled Castes in relation to that State or Union territory; clause (2) allows Parliament by law to include or exclude, and provides that save by such a law a notification shall not be varied by any subsequent notification. Article 342 is identical for the Scheduled Tribes.

The consequence is that membership is a question of fact about the list, not a question of degree, and a State cannot add to or subtract from it.

By description. Article 15(4) speaks of socially and educationally backward classes of citizens; article 16(4) speaks of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. Neither is defined.

Note the difference between the two descriptions. Article 15(4) requires social and educational backwardness; article 16(4) requires backwardness plus inadequate representation. They are not the same test, and a class may satisfy one and not the other.

The commissions

Article 340 empowers the President to appoint a Commission to investigate the conditions of socially and educationally backward classes and the difficulties they labour under, and to make recommendations.

The Kalelkar Commission, the first Backward Classes Commission, reported in 1955. It identified backward classes largely by caste and recommended reservation, and its report was not acted upon; the Chairman himself expressed misgivings about the caste basis in his covering letter, and the Government declined to accept caste as the criterion.

The Mandal Commission, the second Backward Classes Commission, reported in 1980. It used eleven indicators grouped as social, educational and economic, weighted three, two and one, and identified a large number of castes as backward, recommending twenty seven per cent reservation in Central Government posts. Its recommendation was implemented by the Office Memorandum of 13 August 1990, which produced Indra Sawhney.

The caste question

This is the central difficulty. If backwardness is identified by caste, the Constitution's prohibition on discrimination on the ground of caste appears to be turned round; if caste is excluded, the principal historical cause of backwardness cannot be used to identify it.