schedule caste status to dalit muslims sign now

Article 15(4) of the Constitution enables the State to make special provision for the advancement of any socially and educationally backward class of citizen or for the Scheduled Castes and Scheduled Tribes. Like-wise, Article 16(4) of the Constitution enables the State to make provision for the reservations of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Article 15 had clause (4) inserted in it by the first constitutional amendment Act, 1951 and clause (5) inserted by the 93rd amendment 2005. Clause 4A was inserted in Article 16 through 77th & 85th amendment in 1995 & 2001 respectively. Clause 4B was inserted in Article 16 through 81st amendment in 2000. As amended both Articles read as follows:

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex and place of birth

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and place of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained only or partly out of state funds or dedicated to the use of general public.

3. Nothing in this Article shall prevent the State from making any special provision for women and children.

4. Nothing in this Article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.

5. Nothing in this Article or in sub clause sub-clause (G) of clause (1) of article 19 shall prevent the state from making any special provision, byelaw for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of Article 30.

Article 16: Equality of opportunity in matters of public employment.

1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

2. No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in respect of any employment or office under the State.

3. Nothing in this Article shall prevent parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government or any local or other authority within, a State or Union Territory any requirement as to residence within the State or Union Territory prior to such employment or appointment.

4. Nothing in this Article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizens, which in the opinion of the State is not adequately represented in the services under the State.

4(A). Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.

4(B). Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered whether with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservations on total number of vacancies of that year.

5. Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

The supreme court in the Mandal case (Indra Sawhney) judgment 1992 has conclusively held that Article 16(4) is not an exception to Article 16(1), being a facet of the Doctrine of equality enshrined in Article 14 & Article 16(1) which permit reasonable classification and lays down a method of achieving equality. Article 16(4) is an instance of classification. It is observed that the backward classes of citizens are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. What applies to Article 16(4) is equally applicable to Article 16(4A) & 16(4B)and in all or any context other than reservation in the services of the State, to Act 15(4) & 15(5).

The expression socially and educationally backward classes of citizens used in clause (4) of Article 15 and the expression backward class of citizens employed in clause (4) of Article 16 are not defined in the constitution, The backwardness under Article 15(4) must be social and educational. It is not either social or educational but it is both social and educational. In the case of the expression backward class of citizens in clause 4 of Article 16 the Supreme Court has in its judgment in Mandal (Indra Sawhney case) of 1992 held that there is no stipulation of educational backwardness. But social backwardness is a must which leads to educational backwardness and to poverty and the three then support each other in a downward spiral. But in practice any class which is found to be socially backward is also found to be educationally backward. For this reason and because B.C. lists are prepared both for the purpose of 15(4) and 16(4), State Commissions and State Governments have prepared and approved backward classes on the basis of social backwardness and educational backwardness.

And that takes us to the question as to how social and educational backwardness has to be determined. The group of citizens to whom Article 15(4) applies apart from S.Cs & S.Ts, is described as classes of citizens, not as castes of citizens. A class according to the dictionary meaning is a division of society according to status, rank or caste. The support of Article 15(4), 16(4) and other related clauses are available, apart from SCs & STs only to classes which are socially backward in the case of Article 16(4) and to socially and educationally backward classes in Article 15(4). Social backwardness, which is crucial in the identification of backward classes, other than SC & ST, is the outcome of a socio-historical process over the centuries. There are various aspects to this process. One important aspect relates to traditional occupations. There are some occupations which are treated as inferior according to conventional beliefs and there is a link between such traditional occupations and many of the socially backward classes.

On a conspectus of the rulings of the Supreme Court on Articles 15(4)and 16(4) of the Constitution, in particular on determination of status of socially and educationally backward classes culminating in Mandal (Indra Sawhney case) of 1992, the following are some of the important principles that emerge (a) a caste peculiar to Hindu society is a class for purposes of Articles 15(4) and 16(4). This also applies to castes if and where found in non-Hindu communities. (b) caste can be a consideration in the determination of social backwardness but cannot be the sole factor for such determination. Units of caste can be examined and studied with reference to the criteria of social backwardness to arrive at a finding whether they are socially backward or not. (c) the first and foremost requirement to recognize a caste or an occupational group or class as backward in the constitutional sense is social backwardness; (d) poverty or economic criteria cannot be the sole and exclusive factor to determine social backwardness. But the same can be a consideration along with other relevant considerations. Poverty, not arising from or not consequent to social backwardness/social and educational backwardness, does not qualify a class to be recognized as a backward class/socially and educationally backward class. (e) certain occupational and other groups can be identified as BCs without reference to their religion or caste; (f) for Article 16(4) a caste, or occupational and or class found to be socially backward must also be under-represented in the services of the State; (g) from the recognized BCs and BCs to be recognized, socially advanced persons/sections or creamy layer must be excluded. The above principles are not exhaustive.

EDUCATIONAL BACKWARDNESS:

Educational backwardness occurring in Article 15(4) refers to the backwardness in achieving the levels of modern education. In modern education, competition is very intense in professional courses like Medicine, Engineering, Information Technology and Business Administration. Literacy and education are not one and the same. Literacy is generally indicated by reading, writing and simple arithmetic. But social backwardness is crucial. Educational backwardness in isolation and independently of social backwardness does not make a class eligible to be recognized as a backward class/or socially and educationally backward class under Articles 16(4)/ 15(4).

The word Class under Article 15(4) is clearly wider than caste and backward classes means not only castes, wherever they may be found but also other groups, and sections among the populace, which are socially backward.

That is why, the expressions castes or caste were not used under Articles 15(4) and 16(4), in respect of those other than SC & ST, but the word class which includes caste and other communities, groups and sections which constitute backward classes among the populace was used. Therefore, sections/groups among the Muslim community or the Muslim community itself can be identified as a socially and educationally backward class(es) for the purpose of Article 15(4) and as backward class(es) of citizens for the purpose of Article 16(4) provided they satisfy the test of social backwardness. Reservations for Muslims or sections/groups among them in no manner militate against secularism, which is a part of the basic structure of the Constitution; reservation itself, whether for SCs, STs or Socially and Educationally Backward Classes including Muslims or sections or groups of Muslims among them is itself part of the basic structure of the constitution being part of the basic feature of equality, since reservation for them is an important means of achieving equality. Articles 14, 15 and 16 enjoin upon the state to treat all its people equally irrespective of their religion, faith or belief. The state, while discharging its constitutional obligation, cannot make any distinction between one group of citizens and another only on the ground of religion, faith, or belief or exclude from its consideration the demands, entitlements of any claimants. Whether a group, caste or class is entitled to the benefit of reservation and other social justice measures does not depend upon religion, faith or worship. The identification of socially and educationally backward classes must be on a practical basis; the practical basis must have reference to socio-historical factors and the prevailing social conditions and circumstances.

In Archana Reddy Vs. State of A.P 2005 the main challenge to A.P Reservation of Seats in Educational Institutions and of Appointments or Posts in Public Services under the State to Muslim community Ordinance 2005, was that the entire Muslim population in the State cannot be declared as Socially and educationally backward. The judgment of the court laid down that there is no prohibition to declare Muslims, as a community, socially and educationally backward for the purposes of Article 15(4) and 16(4) of the constitution of India, provided they satisfy the test of social backwardness, as stated in the judgment. Going through what is stated in the judgment, the majority of judges held that the entire Muslim community in A.P is not a homogenous class and that there are several groups/classes among them. The Court approvingly quoted the findings of N.K. Muralidhara Rao Commission, Anantaraman Commission and the National Backward Classes Commission and cited the People of India series by the ASI & the Encyclopedia of the World Muslims: Tribes, castes and communities editors N.K.Singh and A.M.Khan, on this finding. It was also held that the condition of social backwardness which is fundamental has not been shown to be existing in respect of the Muslim community as a whole and the High Court struck down the ordinance/act as the identification done in this case did not indicate as to whether the Muslim community as a whole is backward or not.

The Commission respects these observations. Accordingly, the Commission decided not to treat the entire Muslim population as a single group and declare them as B.C enblock. In this report we have decided to recognize identifiable separate groups among Muslim communities and consider which of them are socially and educationally backward. So far as data and methodology is concerned the Commission is conscious that the deeper we dig into the data mine the better the results. The Commission has, therefore, looked into the elaborate and authentic data found in the People of India, A.P. series by Anthropological Survey of India which was first published in 2003, Sachar Commission report, the valuable historical perspective and careful analysis given in the Sri. P.S. Krishnans report, numerous data made available by different government departments on the number of employees belonging to Muslim communities, the house hold survey done by the staff of the Commission, the information collected in public hearings held by the Commission and the written representations given to the Commission. The present findings of the Commission are arrived at on the basis of above vast data, and in deference to the observations of the High court.

Regarding the importance of transparency which is also in accordance with the principles of the Commission, the Commission has kept the entire report of Sri P.S. Krishnan on website immediately after its receipt. The Commission also held a number of public hearings.


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