Legal Correspondent

“Caste need not be a factor for identifying backward classes”

Supreme Court judgment in the case refers to removal of creamy layer

“There can be alternative methods of identifying backwardness”

New Delhi: The nine-judge Bench decision of the Supreme Court in the Indra Sawhney case in 1992, that caste could be a factor for identifying the backward classes, required reconsideration, senior counsel Mukul Rohatgi argued on Wednesday before the Constitution Bench hearing the ‘OBC quota’ case.

Mr. Rohatgi, appearing for the petitioner, former Director of IIT-Madras, P.V. Indiresan, submitted before the Bench headed by Chief Justice K.G. Balakrishnan that the apex court in the case was wholly in error in stating that caste could be a factor for identifying backward classes. He said “caste can never be such a factor, and in this light, the judgment in that case to this extent, ought to be reconsidered.”

The Bench, which included Justice Arijit Pasayat, Justice C.K. Thakker, Justice R.V. Raveendran and Justice Dalveer Bhandari responded saying “we can understand your contention if the Indra Sawhney judgment had said that caste is the only factor to determine backward classes. The judgment had also referred to removal of creamy layer. Casteless society may be an ideal situation. It [caste] is only a method of identification. We cannot forget the ground realities in the country.”

Mr. Rohatgi said, “there could be alternative methods of identifying backwardness, viz salary, people living in geographical or hilly areas.” The intent of the framers of the Constitution was to wipe out the cancer of caste from society. The whole scheme was to be temporary and “the Constitution specifically prohibits discrimination on grounds of religion, race or caste.”

Quoting from the debates of the Constituent Assembly and various provisions of the Constitution, he said that “except when it [Constitution] is speaking of the Scheduled Castes, where it uses the word ‘caste,’ the Constitution does so to lay down a negative, namely that caste shall not be a ground for discrimination. In regard to other matters and contexts, the word ‘caste’ is avoided. Instead, the expressions chosen are ‘weaker sections’ or ‘socially and educationally backward classes. There cannot be any departure from this prohibition to enable the State to use caste as a criterion for any process of identification.”

Referring to the Indra Sawhney case, counsel quoting the judgment said “caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly heard in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country.”

Mr. Rohatgi, citing the example of Tamil Nadu, said that 88 per cent of the State’s population had been declared as SC/ST/BC/OBC and only 12 per cent declared as other communities. Quoting statistics, he said the difference in the marks (in the rank list) between ‘OC’ and ‘reserved categories’ was only 0.25 to 0.50. “While so, why should they still be declared as backward to enjoy the benefit. In fact only the 12 per cent that had become the minority needed reservation,” he said.

The Bench responded saying “though 88 per cent of the people are from backward classes, reservation is only 69 per cent. How can you say this is bad?” However, counsel reiterated that caste could not be the basis for identifying backward classes as that would perpetuate the caste system.

Arguments will continue on Thursday.