In a multiple undulating society like ours, accomplishing the objective of social justice as enshrined in the Constitution is a difficult political task. Constitutional Justice to the backward class interrogates the Indian State and society. The Constitution makes the State the trustee to preserve, protect, defend and uplift the backward class within the confines of the Constitution. One significant prohibition was diluted when caste was used as ground of discrimination and now the recent Bill of Government of Telangana guaranteeing 12 per cent quota to Muslims on the ground of religion will not only destabilise the binding mandate of Article 16(2) but also breach the 50 per cent ceiling envisioned by the Supreme Court in the Mandal case.

Caste is an Enclosed Class

The Government considering the recommendations of the Mandal Commission apropos the benefits to be extended to the socially and educationally backward classes, acknowledged that at the outset certain weightage must be given to such classes (castes) in the services of the Union and their Public Undertakings. The state act was confronted before the nine-judge bench in the Indra Sawhney Case. Several shades of opinion were presented in the Court ranging from one extreme to the other.

Mr. Palkhivala sturdily argued that a secular, unified and caste-less society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the Constitution and can never be the basis for determining backward classes referred to in Article 16(4). However, he could not impress the apex court and the Mandal Commission’s recommendation to use ‘caste’ as a ground to give reservation was judicially approved.

The Supreme Court relied on Dr. Ambedkar’s speech in the Constituent Assembly during the discussion on the Constitution (First Amendment) Bill, when Dr. Ambedkar referred to Art. 16(4) and said that backward classes are 'nothing else but a collection of certain castes’.

Another speech of Dr. Ambedkar on 9 May 1916 at Columbia University, U.S.A. on the subject "Castes in India; their mechanism, genesis and development” explained that "class" and "caste" were used inter-changeably and we have only to determine what was the class that first made itself into a caste, for class and caste, so to say, are next door neighbors, and it is only a span that separates the two. A caste is an enclosed class. Taking these external aids into consideration, the Supreme Court resolved that a caste is nothing but a socially homogeneous class. There is an integral connection between caste, occupation, poverty and social backwardness and thus in the Indian context, lower castes ought to be treated as backward classes.

The Supreme Court however clarified at this juncture and rightly so that besides castes whether found among Hindus or others, there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. In a State, the Muslim community as whole may be found socially backward. As a matter of fact, they were so treated in the State of Karnataka as well as in the State of Kerala by their respective governments. Similarly, certain sections and denominations among Christians in Kerala were included among backward communities notified in the former princely State of Travancore. Hence, when backward class as mentioned in Article 16(4) includes Muslims and Christians, then separate quota to Muslims or Christians or Hindus would corrode the very essence of Article 15(1) and Article 16(2) which prohibit discrimination on the ground of religion.

To ensure that benefits of reservation reach the bottom most layers, the vacancies reserved for backward classes may be further sub-divided between backward, more-backward and mostbackward classes. This classification was justified by the Supreme Court in the Mandal case. Supreme Court has however observed that while 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. Hence, the 50 per cent quota to Backward Classes may be augmented by displaying extraordinary situations prevailing in the State.

Illicit Extension of Mandal Logic

The 12 per cent reservation to Muslims in Telangana corresponds to their population in the State i.e. 12.68 per cent. Adequate representation under Article 16(4) cannot be read as proportionate representation. It was condemned by Supreme Court in the Mandal case. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. The Sudheer Commission Report (2016) acknowledged that about 81 per cent Muslims were already covered in the existing OBC sub-quotas (A, B and E) in the state and it was mostly the forward ashraf castes like the syeds, pathans, mirzas, moghals, etc., that were excluded [See Khalid Anis Ansari on Telangana Reservation Bill]. The Bill increases the quantum of reservations in the state to 62 per cent, that would primarily benefit these upper caste Muslims and hence adulterates the Mandal verdict.

A Comprehensive Plan

It is an established fact that a lion’s share of most benefits and preferences of reservation were appropriated by the numerically larger and politically wellorganised communities in the list of backward classes, SCs and STs. The time has come when the question of de-scheduling of relatively advanced communities from OBCs (Creamy layer was applied to OBCs but in a chaotic manner), SCs and STs should receive serious and urgent consideration. A system needs to be devised wherein one or two (in case of most backward classes) generations can use the benefits of reservation and then leave it for those who actually need it. Else, even after another hundred years, its benefits will not reach those who deserve it. In the absence of a comprehensive policy, the political executive, owing to the deterioration of the electoral process will continue to create layers of backward castes, religions and racial groups where even 90 per cent quota will not be adequate. The Government in addition should encourage and help these communities by giving free and quality education. Giving reservation based on religion will not only create disharmony and frustration amongst the people who are not benefited by the reservation but also may give rise to communal tension and disaster to the unity and integrity of the nation.

The writer is Associate Professor of Law at National Law University Odisha. The views expressed are personal.