Tuesday, 11 August, 2009

Touching the "Untouchables"

The reservation issue has been off the burner for a while now, and the treatment meted out to Arjun Singh by the UPA government suggests things will stay that way for some time. This can be seen as a reason to keep the issue aside as it is not "sensational", or can be seen as a time to reflect on the issue as objectively as possible, when passions are not running high.

This post, though, wants to go a few step backwards from the last instance of introduction of reservations for OBCs in higher educational institutions. More particularly, to 8th May, 1985, when 5 Judges of the Supreme Court delivered an opinion in the case of K.C. Vasanth Kumar v. State of Karnataka, 1985 (Supp) SCC 714.

The unique feature of the case was that it did not arise in the midst of a factual dispute, but was merely filed to obtain the Court's opinion on the issue of reservations, which would serve as a guide for the Commission that the State of Karnataka proposed to appoint for examining the question of affording better educational and employment opportunities to SCs / STs etc.

Justice Chandrachud, in his opinion, that reservation in favour of SCs and STs must continue as at present (without a creamy layer test) for a further period not exceeding fifteen years. In his opinion, another fifteen years would make it 50 years since the advent of the Constitution, a period long enough for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, etc.

Yet, this opinion got lost somewhere with the efflux of time. In the year 2000, the government of Andhra Pradesh passed the Andhra Pradesh Schedule Castes (Rationalisation of Reservations) Act, 2000, which sought to draw a sub-classification within the list of Schedule castes prepared under Article 341(1) of the Constitution by creating 4 groups, to whom the benefit of reservation would be differently distributed based on their backwardness.

This Act was struck down in the case of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, where a 5 Judge Constitution Bench held that the list under Article 341(1) is a homogeneous list that cannot be sub-classified. It also held that a State has no legislative competence to effect such a classification. Therefore, if ever a creamy layer test is to be introduced for SCs / STs, the same has to be introduced by Parliament by way of a law. Justice SB Sinha had also given a concurring opinion in this case to the same effect.

Needless to say, caste politics will ensure that such a law will never come to be passed in Parliament.

Since then, the SCs / STs having received a Constitutional sanction have remained untouched, with every lawyer appearing for the anti-reservationists in the recent Reservations case [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1] clarifying to the Court that their arguments regarding illegality of no creamy layer having been provided for is confined only to reservation for OBCs.

It is in fact interesting to note that Article 334 of the Consitution currently provides that reservation of seats for SCs and STs in the Lok Sabha and the legislative assemblies of states shall cease after 60 years. The provision originally read 40 years, but on 20.12.1989, "50" was substituted in place of "40", and on 25.1.2000, "60" was substituted in place of "50"! If i were a betting man, I know one constitutional amendment I would be betting on for the year 2010.

Has such a blatant desecration of a constitutional provision ever gone so unnoticed in our constitutional history?

All this has truly made the SCs and STs the "untouchables" of our constitution, ones who fall beyond the scope of Article 17 of the constitution. But one recent observation by Justice SB Sinha (!) may become the foundation for a future assault on this untouchability.

In State of Kerala v. People's Union for Civil Liberties, MANU/SC/1302/2009, Justice Sinha was discussing the constitutional validity of an amendment in a Kerala Act prohibiting sale of tribal lands to outsiders, discussed the issue whether Schedule Tribes have a right under Article 21 to be rehabilitated in their own habitat. The issue arose because the impugned amendment took away the provision declaring transfer of land to an outsider void to the extent it applied to a small tract of land upto 2 hectares.

Justice Sinha, while relying on observations in the Narmada Bachao Andolan case, and certain international conventions, held that the removal of a population by way of an exceptional measure is not ruled out, subject to them being provided alternate land of at least the same quality.

While holding this, he also discussed the oft ignored aspect of this issue:

"Indisputably, the question of restoration of land should be considered having regard to their exploitation and rendering them homeless from the touchstone of Article 46 of the Constitution of India. For the aforementioned purpose, however, it may be of some interest to consider that the insistence of autonomy and the view of a section of people that tribals should be allowed to remain within their own habitat and not be allowed to mix with the outside world would depend upon the type of Scheduled Tribe category in question. Some of them are still living in jungle and are dependant on the products thereof. Some of them, on the other hand, have become a part of the mainstream. The difference between Scheduled Tribes of North-East and in some cases the Islands of Andaman and Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in mind."

Though delivered in a completely different context, the Judgment recognizes a difference in between different kinds of STs, something that might go against the essence of E.V. Chinnaiah. It is also a significant judgment for taking a more realistic approach towards the current social status of STs.

Let's hope this observation does not remain confined to its "factual matrix", and becomes an unintended foundation for a more concerted effort at abolition of "untouchability".


  1. As a side note, on the more sensitive issue of judicial reforms, I have a suggestion. One reform that the country and the legal fraternity, including the Honourable bar council can consider is to bring-in
    democracy into judiciary as well. Every judge and major policy changes in judiciary can go through a bi-annual mandate. The electorate would comprise of all the members of the bar council and judicial officers of sub-ordinate courts. That way, judiciary remains independent and also becomes accountable at least to the immediate populace they impact.

    I'm not a lawyer, so please forgive me if there is a mistake in making this suggestion.

  2. Thank you for the comment Vishnu.. but there are two difficulties with the suggestion.. (1) on the technical side.. removal of a judge requires compliance with a specified procedure that is prescribed in the Constitution.. and this procedure can only be changed through a constitutional amendment.. but even then.. the constitutional amendment would in all likelihood get struck down being in violation of the 'basic structure'.. (2) on the practical side.. the suggestion has its own drawbacks.. as it will enable personal vendettas to be pursued through influential persons in the subordinate judiciary and the bar.. politicising the entire environment..

  3. I made my above suggestion to the Rashtrapati Bhavan, which forwarded it to Director, Department of Justice, Shri N.M. Perumal on Oct 22, 2009. May or may not be related, but here's CJI's recent statement I read on the Internet:

    "We are not opposed to any change in the appointment process. Let Parliament decide a fresh process and if it is good for the country, we will be happy to follow the new system. Let us not blindly follow the selection process prevalent in other countries. We can have our own system," Justice Balakrishnan said.