H.Kantharaja
Chairman, Karnataka State Commission for Backward Classes
(The excerpts of the speech delivered at the Social Justice Conference organized by Dravidar Kazhagam at Thanjavur, Tamil Nadu on 24th February 2019)
Social Justice is not defined under the Constitution of India. The Supreme Court has explained it in following words: “Social Justice is a comprehensive form to remove social imbalance by law harmonizing the rival claims or the interests of different groups and/ or sections in the social structure or individuals by means of which alone it would be possible to build a Welfare State.” [Dalmia cement (Bharat) Ltd. -vs- Union of India – (1996) 10 SCC 104-para 13.]
The Supreme Court on another occasion while dealing with the matter of importance in Legal Aid movement and in ensuring basic human rights to poor and weaker sections of community, brought out the importance of Social Justice:
“………Social Justice is the signature tune of the constitution” in the case of People’s Union for Democratic Rights and others- vs- Union of India (AIR 1982 SC 1473) (Para-3) meaning thereby that the Social Justice is an indispensable scheme under the Indian Constitution. In colloquial terms in my opinion ‘Social Justice’ means :
“India as a whole country is one family. People of this country are its members. Assets in the country are the assets of the family. The assets are to be divided equally amongst its members”.
Even after 68 years of the advent of the Indian Constitution, the unavoidable basic question that remains is : whether social justice enshrined under the Indian Constitution is achieved? Perhaps, nobody is prepared to answer ‘Yes’. Therefore, the State’s efforts to achieve the goal of Social Justice is imperative and crucial.
10 per cent Reservation for Economically Weaker Sections – A Step Towards Perpetuating Social Injustice and Inequality.
As a means of Social Justice, the reservation is guaranteed mainly by virtue of Articles 15(4), 16(4) and 29(2) of the Indian Constitution to the Scheduled Castes, the Scheduled Tries and the Other Backward Classes for the purpose of education and employment. These categories are entitled for benefit of reservation on the ground of Social and Educational backwardness as envisaged under Articles 15(4) and 16(4) to accomplish the objective of Social Justice as enshrined in the Constitution. This has been in vogue after the Constitution (First Amendment) Act, 1951 in the matter of reservation in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. It is pertinent to state that at the time of inserting clause 4 to Article 15, the intention of the Parliament was to help the Backward Classes to advance educationally, socially and economically. It is evident from Pandit Jawaharlal Nehru’s Speech made on the Bill concerned with the First Amendment to the Constitution:
“…..In Article 15, it is sought to add certain words ….. I am quite sure that a slight addition is desirable from the point of view of clarity… The Directive Principles of the State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static; their objective is to preserve certain rights which already exist,… A dynamic movement towards a certain objective necessarily means certain changes-that is the essence of a movement,… ; so far as the Government is concerned, it does not wish to have any truck with communalism in any form. All that it wants to do is to help the Backward Classes, which are especially mentioned in the Constitution to grow; it is our duty to help them advance educationally, socially and economically. In the process of protecting individual liberty, if you also protect individual or group inequality, then you come up into conflict with the Directive Principles… you cannot realise the ideal of an egalitarian society which, I hope, most of us want..” (16, May 1951) (K. Veeramani, The History of the Struggle for Social Justice in Tamil Nadu).
Further the Parliament declined the move to include the word ‘economically’ along with socially and educationally while making this first Constitutional amendment. Therefore, the intention was clear to give reservation to the Backward Classes who are socially and educationally backward.
Be that as it may, now Government of India has introduced the Constitution (124th Amendment) Bill, 2019 in the Lok Sabha on 8.1.2019 to provide a 10 per cent reservation for economically weaker sections in Public Employment and Educational Institutions. The Bill came to be passed in Lok Sabha on the next day. It was, very next day, introduced in Rajya Sabha and passed on 10.1.2019. The President of India gave assent on 12.1.2019. Thus the Constitution Amendment Bill became the Constitution (103rd Amendment) Act, 2019 and accordingly, 10 per cent quota has been made economically weaker sections of citizens in admission to educational institutions and employment. The said Act has amended Article 15 and 16 by inserting sub-clause (6) to both the Articles to include the changes.
As it is clear from statement of Objects and Reasons of the Bill, it has been decided to amend the Constitution of India to fulfil the mandate of Article 46, and to ensure that economically weaker sections of citizens to get a fair chance of receiving higher education and participation in employment in the services of the State. The essence of the Directive Principles that lies in Article 46 reads thus :
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and Other Weaker Sections : The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.
A plain reading of this article makes it clear that the amendments are against the very precepts contained in the article. At no stretch of imagination it could be interpreted that Article 46 comes to the aid of economically poor upper castes or socially advanced castes to provide reservation. While testing the validity of any Constitutional amendment it has to be seen that the Constitution is an enduring one inter-alia aiming at social transformation with utmost care to the weaker sections subjected to social injustice and exploitation historically. The Supreme Court has said in unequivocal words that the first step to achieve social integration is to bring the lower or backward social groups to the level of the forward or higher social groups (1992 Supp(3)SCC217, para-421).
Criteria for the reservation here are : (1)People who have an income of less than 8.00 lakhs; or (2) people who own less than five acres of land; or (3) People who have a house lesser than 1000 Sq.Ft. in a town or 100 Sq.yard in a notified municipal area.
These criteria are opposed to the principle ‘treat equal equally, unequal unequally’. A man earning minimum daily wages has been made to compete with a man who earns around Rs.2300/-per day. Can a person who earns Rs.2300/-per day, in India be called economically poor? The Income Tax payers and those who are having crores worth of Agricultural land upto 5 acres in prime areas cannot be and by no means called as economically weaker sections. Similarly, owner of a residential building situated in Metropolitan Cities cannot be considered as economically weaker section. Thus, verified from any angle the present Act providing 10 per cent reservation is an arbitrary legislation and bereft of justification. It perpetuates social injustice and inequality which act is against the aspirations, hopes, ideals and results anticipated to be achieved by the people via the path of the Constitution as aptly said by Justice O.Chinnappa Reddy (The Court and the Constitution of India, page 24).
Inconsistent Policy :
Article 340 of the Constitution enjoins the Union Government to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour 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 and the conditions subject to which such grants should be made. As could be seen from this important provision in the Constitution, it is explicitly stated the Commission to be appointed will have to investigate conditions of socially and educationally backward classes. Now this provision has remained unamended even after the Constitution (103rd Amendment) Act, 2019. Under the new Act, amendments have been made only to Article 15 and 16 by inserting sub-clause (6) to both the articles. In the given circumstances, if a Commission is appointed by the President as empowered, can that Commission take cognizance of sub-clause (6) of articles 15 and 16 for the purpose of investigation and make recommendations as envisaged under Article 340? Obviously the answer would be in the negative. The present amendment is directly contrary to Article 340. Further, reservation for Backward Classes is one policy in furtherance of Social Justice under the Constitution. For the purpose of identification as backward classes there cannot be different parameters – social and educational backward classes for one category and Economic backwardness for another. According to EPW (January 19, 2019) the 10 per cent quota for higher – caste EWSs discredits the moral foundation of the principal of Social Justice. In total, the 10 per cent of reservation is against the conscience of the Constitution.
CONCLUSION
The Backward Classes who have been denied opportunities for various compelling, historic, social customary reasons need programmes on empowerment. State must also concentrate on policies that are just and fair to enhance the capabilities of disadvantaged Backward Classes in all spheres of life to achieve social justice. Further the State and all concerned must realize that within India there is another India. People living there are the Schedule Castes, the Schedule Tribes and the other Backward Classes. They are living very undignified life (for no fault of theirs). They must be taken care of on priority, as an attempt to fulfil the well thought scheme spelt out in the preamble to our Constitution of achieving a Socialist, Secular and Democratic Republic. It is a Constitutional imperative. Other-wise nobody can dream of removal of inequality.
