Affirmative Action in India: The Caste and Class Conflict

Kavita A. Sharma

Introduction

The confusion between `caste’ and `class’ is embedded in `The Constitution’ itself. It has led to multiple interpretations and court cases. For example, Art. 15(4) uses both terms when it talks of “Scheduled Castes” and “socially and educationally backward classes.” The question is, are the latter the same as backward castes or are backward classes and backward castes two distinct categories. The loose drafting has become as T.T. Krishnamachari, in a lighter vein prophesied it would, “a paradise for lawyers”. These issues have been exhaustively dealt with in two landmark cases, the Indra Swahney case and the Ashok Thakur case. A nine judge bench of the Supreme Court sat for each of these two cases.

The Constitution gave special rights to two categories of people among others namely, the Scheduled Castes and Scheduled Tribes on the one hand and the Other Backward Classes on the other. The term Backward Classes was used in two senses; one, as a generic term to mean all backward classes including the Scheduled Castes and Scheduled Tribes; two, it means all those not included in the category of Scheduled Castes and Scheduled Tribes. The Constitution itself does not make these terms clear. The Scheduled Caste is really a euphemism for the erstwhile `untouchables’. These are “castes, races or tribes or parts of or groups within castes, races or tribes” that are notified under Art.341 of the Constitution. Similarly Scheduled Tribes are “tribes or tribal communities or parts of or groups within castes, races or tribes that are notified under Art.342. Scheduled Castes were those who had a low ritual status in the traditional Hindu hierarchy and hence suffered severe disabilities. Scheduled Tribes suffered disabilities both because of their isolation and also low hierarchical position in society. The two groups were designated by a Presidential order in the first instance which could only be subsequently modified by an act of Parliament.

The Scheduled Castes and Tribes were obviously placed on a different footing from the Other Backward Classes. This can be seen from the widespread provisions pertaining to them in the Constitution. For example Articles, 15,16,17,46,330,333,335,338,338A,339,341 and 342 are just some of the articles that seek to protect the rights of Schedules Castes and Scheduled Tribes so that the disabilities caused by centuries of discrimination and inhuman treatment can be gradually overcome by the term. As has been pointed out in the Indra Sawhney case [1992 Supp (3)Scc, 20-772]. Scheduled Castes and Scheduled Tribes are a category by themselves and the Constitution permits protective discrimination to compensate them. The issue of special provisions for the scheduled castes and scheduled tribes was not a contentious one. It was generally recognized that they had to be compensated for their current deep seated disabilities consequent to centuries of inhuman treatment. What was contentious was the issue of `backward’ classes and that has not yet been resolved.

The original draft Article 10(3) which corresponds to the present Art.16(4) stated “Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State.” Initially it did not contain the word `backward.’ Rather it said `any class of citizens.’ The word `backward’ was inserted by the Drafting Committee at a later stage. In his speech to the Constituent Assembly, Dr. Ambedkar outlined the position as follows.¹ He explained that three points of view had to be reconciled. One was the principle of equality of opportunity for all citizens. The second was that if this principle was to be operative there should be no reservation of any sort for any class or community at all and all public services should be placed on the same footing of equality. The third opinion was the demand of those communities which had till then not had representation in the State. These were the backward communities. In an attempt to reconcile the three explained Dr Ambedkar, some qualifying phrase like `backward’ was needed as otherwise the exception made in favour of the rule of equality would eat up the rule itself. For example, said Ambedkar, if reservations were made for a community or a collection of communities, the total of which came to something like 70% of all the posts under the State and only 30% were retained as unreserved, the first principle, namely, of equality before law and equality of opportunity would not be satisfied. Therefore, only a minority of seats could be reserved if it had to be effectively consistent with the first principle. A qualifying term like `backward’ would ensure that. Hence the Drafting Committee introduced the word `backward’ which did not originally find a place in the fundamental right in the way in which it was passed in the Assembly. But Dr. Ambedkar did not spell out what was meant by `backward’. That, he said, should be left to each local government to determine. So according to him a backward community was one which was backward in the opinion of the Government.

K.M. Munshi explaining the position of the drafting committee said that they strove to secure two things: first, they wanted to achieve the highest efficiency in the services of the State which would enable effectiveness and promptness; second, to ensure that the really backward classes should be given opportunities to be a part of the State services. K.M. Munshi went on to explain that this was important because “State services give a status and an opportunity to serve the country and this opportunity should be extended to every community even among the backward people”. That being so, he said, they tried to find some generic term and found `backward class’ to be the best. He went on to say: “When it is read with Art. 201 it is perfectly clear that the word `backward’ signified that class of people – does not matter whether you call them untouchables or touchables, belonging to this community or that – a class of people who are so backward that special protection is required in the services…”.²

The Background

The issue of what constitutes backward classes had been going on much before the terms came to be used in the Constitution. Both Christophe Jaffrelot and Marc Galanter have given a detailed history of how reservations in jobs came about and who were the beneficiaries. At the time of independence, says Galanter, the term “backward classes” was not yet fixed in its meaning. The Fort St.George Gazette No.40 of NW. 5, 1895, mentions grant in aid to schools for a list of “Backward Classes” that includes most of the “untouchable” castes. The term was used in 1880 for illiterate or indigent classes who were entitled to allowances to study in elementary schools. The terms were often used to mean Depressed classes, untouchables, aboriginal and hill tribes, criminal tribes and others. That is, it was used to cover a wide range of castes and communities.³

Jaffrelot explains that the expression `backward classes’ first appeared in 1870 in Madras Presidency where there had been a non-brahmin movement made up of lower castes except for the untouchables.⁴ The British Government in Madras had grouped together the shudras and the untouchables under the label of backward classes swelling their numbers from 39 to 131, between 1871 to 1920. The aim was to provide for positive discrimination. But in actual fact they were different categories as the stigma of untouchability made the depressed classes a separate group. In 1925, “castes other than depressed classes” became a separate group.

Positive discrimination was being followed in favor of lower castes both in British India and some princely states prior to independence particularly where the sovereign came from a shudra caste. For instance in, Kolhapur, Maharashtra, when Shahu Maharaja of Maratha dynasty which belonged to the caste of farmers ascended the throne in 1895, he introduced an egalitarian quota policy as he was concerned about the domination of brahmins over the administration. By 1902 he had already reserved 50% of vacant positions for backward castes. The most developed policy was in Mysore where again the sovereign was a shudra and wanted to bring down brahmin dominance in his kingdom. He asked Leslie Miller, the British president of the State’s High Court to assess the problem and suggest ways to remedy it. Miller recommended reserving half the posts in the highest civil service to the ‘backward classes,’ by which he meant “all communities other than Brahmins, who are not now adequately represented in the public service.” This can be termed the first commission for backward classes.

The British too, were trying to improve the representation of these groups in elected assemblies with ever-increasing powers. Some would see it as the usual divide and rule policy but it led to the 1919 reforms because of which seven seats of the Bombay Legislative Council were reserved for the Marathas and 28 out of 65 seats for non-brahmins in Madras Council were occupied by the untouchables and the shudras. This enabled the Justice Party that claimed to speak for non- brahmins to win the1920 elections and form the government in 1921 when it reserved 48% quota for non-brahmins. In 1930, the State Committee in Bombay devoted careful consideration to the question of nomenclature. They noted that in 1924, the term Depressed Classes had been given a wider meaning to include: “Aboriginal tribes and the Criminal Tribes and some other wandering and backward castes… (which had) resulted in much confusion of thought in this Presidency, as in ordinary usage the phrase Depressed classes is taken as meaning the untouchables … whereas they do not form half of this new and enlarged grouping of Depressed Classes.” The Committee recommended that “Depressed Classes” should be used for untouchables which will coincide with the existing common practice. They proposed that the wider group should be called “Backward Classes” which should be divided into Depressed Classes or untouchables; Aboriginals and the Hill tribes; and Other Backward Classes including wandering tribes. They felt that the groups then called Backward Classes should be renamed “intermediate classes.”

The Divisiveness of the Caste-Class Argument

The issue of caste and class has been a divisive one as is evident from the First Backward Classes Commission of independent India known as the Kaka Kalelkar Commission set up in 1953.⁵ Its report, given in 1955, was not accepted in the Parliament. This was because the four criteria it set up to determine backwardness all found a common denominator in caste. The four criteria were: a degraded status, lack of education, under-representation in civil service and in the fields of trade, commerce and industry. It prepared a list of 2399 backward castes or communities for the entire country and 837 of these were classified as the ‘most backward.’ Some of the most noteworthy recommendations of the Commission were:

Undertaking caste-wise enumeration of population in the census of 1961.
Relating social backwardness of a class to its low position in the traditional caste hierarchy of Hindu society
Treating all women as ‘backward’
Reserving 70% seats in all technical and professional institutions for qualified students of backward classes.

In addition minimum levels of representation were provided for different levels of service to Other Backward Classes.

The Commission could not present a unanimous report as the five members dissented on various issues. Three were opposed to linking backwardness with caste. One was passionately for equating caste with backwardness. The Chairman Kaka Kalelkar himself was ambivalent by the time the work of the Commission came to an end. He realized and himself unveiled the dangers of recommendations based only on caste. He also understood that by so doing, the Commission had created an ambiguity about affirmative action programs for religious communities like the Muslims and Christians which theoretically did not accept caste but in which caste divisions persisted. However, by then he had no option but to go along and accept caste as the predominant criterion in ascertaining backwardness.

The government did not accept the Commission’s report although it laid it before each House of the Parliament together with the Memorandum of Action Taken. Regarding the issue of caste as criteria, the Memorandum stated that while it could not “be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society,” but “the recognition of the specified castes as backward may serve to maintain and even perpetuate the existing distinction on the basis of caste.” On the issue of the recognition of a large number of castes and communities as backward, it was pointed out, “if the entire community, barring a few exceptions has thus to be regarded as backward, the really needy would be swamped by the multitude and hardly receive any special attention or adequate assistance, nor would such dispensation fulfill the conditions laid down in Art. 340 of the Constitution.” ⁶

After this, the government made efforts “to discover some criteria other than caste which could be of practical application in determining the backward classes.” The Deputy Registrar General was asked to conduct a pilot survey to see if backwardness could be linked to occupational communities instead of caste. Such a survey was taken but it failed to throw up the desired criteria. The matter was also discussed at a Conference of State Representatives on 7.4.1959 and subsequently reviewed by the Ministry of Home Affairs but no consensus emerged.

The Central Government ultimately took a decision that no all India lists of backward classes could be drawn up, nor any reservation made in the Central Government service for any group of backward classes other than the Scheduled Castes and Scheduled Tribes. A letter was then sent by the Ministry of Home Affairs to all the state governments stating, “While the State Governments have the discretion to choose their own criteria for defining backwardness in the view of the government of India it would be better to apply economic tests than to go by caste.”

The then Home Minister G.B.Pant in fact argued that development efforts would lead to “the establishment of our society on the socialist pattern,” an evolution with which “social and other distinctions will disappear.” In 1961, Pant added another argument, informing heads of the states not to initiate policies in favor of Other Backward Castes at the federal level as positive discrimination measures would have the drawback of penalizing the most capable and deserving people, and would therefore hinder efficiency in the administration and business.

The rejection of the First Backward Class Commission report led to intense debate on the place of caste in Indian society and the role of positive discrimination policies in this context. The socialists were in the forefront of this debate. Drawing on both Marx and Ambedkar Lohia maintained that caste rather than class was the basic unity of Indian society. He did not agree that the Nehruvian vision of socialism would be enough to combat inequalities because even after collectivizing land and nationalizing industry, the upper castes would continue to dominate on the basis of skills that had been handed down from father to son for thousands of years. The lowest castes, according to Lohia, not only needed socio-economic redistribution but also had to shed their feelings of inferiority.

Two visions have been clashing here. One is to reduce the emphasis on caste and the other to insist on caste as a prime determining factor. Nehru coined the phrase “Other Backward Classes” implying classes other than the untouchables and the tribes. But he used the word classes rather than castes and this paradigm ambiguity and ambivalence has been at the core of the controversy arising out of reservation as a mode of affirmative action. It lies at the heart of the somewhat uneasy interpretations of Art. 15(4) and Art. 16 (4) that fetter unbridled equality rights. The matter has kept coming up in the courts regularly.

The Balaji Case

A number of challenges to reservation in jobs and admissions to educational institutions followed before the Court after the rejection of the First Backward Class Com mission. The first to be hit was Mysore in M.R.Balaji v. State of Mysore (A.I.R. 1963 S.C. 649). The state had set up an expert committee to identify criteria for classifying backward classes but the committee felt that the only practicable method of doing this would be on the basis of caste. It divided the backward classes into backward and more backward. Based on its recommendations Mysore reserved 50% quota for Other Backward Classes over and above the 15% reserved Scheduled Castes and 3% for Scheduled Tribes. 50% quota for Other Backward Classes was split into 28% for Backward Classes and 22% for More Backward Classes. The total reservation came to 68% leaving only 32% in the merit pool. All this was done under Art. 15 (4) of the Constitution.

The Government order was declared invalid on four grounds:

Caste, poverty, occupation and place of habitation were some of the relevant factors for determining social backwardness and not caste alone. The court did not also agree with the way educational backwardness was determined.

Caste though relevant in the Indian society, could not be made the sole or dominant test to determine social backwardness as that would perpetuate the vice of caste system in society.

Sub-classification of backwardness into backward and more backward was not constitutionally permissible.

The total reservation of 68% for Scheduled Castes, Scheduled Tribes and Backward Classes was held to be excessive. A limit of 50% reservation was laid down.

The judgment was pivotal because following it, positive discriminatory measures in several states based on caste alone were overturned.

The Second Backward Classes Commission:B.P.Mandal

The Second Backward Classes Commission was set up in December 1978. It was popularly known as the Mandal Commission after B.P.Mandal who chaired it. It gave its report in Dec. 1980.⁷ It was aware that the First Commission had not formulated any objective criteria for classifying Other Backward Classes. Hence, the members of the Commission undertook measures like questionnaires to state and central governments and the public; toured the country extensively, took evidence of legislators; eminent public figures, sociologists and others; did a country-wide socio-educational survey; got reports by specialized agencies prepared on some important issues, analyzed census data and took other such measures. However, these actions were challenged as performed so superficially that they could not be seen as certain in determining the backward classes. This contention was upheld in a couple of minority opinions in the Indra Sawhney case. J. Kuldip Singh, in particular pointed out the flaws in methodology and hence the findings in fairly great detail in the Indra Sawhney case.

This Commission too made caste being synonymous with social backwardness. Castes, it said were the building bricks of the Hindu social order for centuries and this has resulted in a close linkage between the caste ranking of a person and his social educational and economic status. The evolution of society in such a highly stratified manner gave the higher castes deep-rooted vested interests in the perpetuation of the system. It concluded that the low ritual caste status of a person had a direct bearing on his social achievements.

However, in the absence of caste based census since 1931, it was forced to project its conclusions pertaining to the castes to be included as backward classes on the basis of that census. It identified 3743 castes, about 1500 more than in the First Commission, as Other Backward Classes, representing 52% of the country’s population. Noting that quota totals had to be kept below 50% because of the Supreme Court order in the Balaji case and that there already existed 22.5% reservation for the Scheduled Castes and Scheduled Tribes, an additional 27% reservation was recommended bringing the total to 49.5%.

The Commission dealt with the question of equality rights guaranteed under Art. 14 of the Constitution by countering that equality was a double edged weapon. It placed the strong and the handicapped on the same footing but social justice required that unequals could not be treated on the same footing.. To treat unequals as equals was to perpetuate inequality. ‘Equality of opportunity’ and ‘equality of treatment’ placed the weak and the strong on par and to that extent, it amounted to denial of social justice. In fact, ‘equality of results’ had to be the acid test of society’s egalitarian pretensions.

As far as merit was concerned, the Commission said that it was largely a product of favorable environmental privileges. A higher rating in an examination did not necessarily reflect higher intrinsic worth of the examinee. Hence, merit and equality had to be viewed in their proper perspective and the element of privilege duly recognized and discounted. It accepted that the apprehensions regarding the drop in the quality of government services owing to large scale induction of S.C., S.T. and O.B.C. candidates may be justified up to a point, but felt that it could not be said that all candidates selected on merit were honest, efficient, hard-working and dedicated. At present, top echelons of all the government services were manned predominantly by open competition candidates and if the performance of the bureaucracy was anything to go by, they had not exactly covered themselves in glory.

Hence the Commission recommended the creating of special educational facilities for upgrading the cultural environment of the students in a phased manner in selected areas containing high concentration of OBCs. Particular emphasis had to be placed on vocational training. Special coaching facilities also needed to be provided to enable the quota students to catch up with students from the open category. In addition it recommended a reservation of 27%for OBCs. This reservation should apply to all government services as well as technical and professional institutions, both in the Centre and in the States.

The Commission took up the argument that when 52% of the population belonged to the category of OBCs the recruitment of a few thousand every year against reserved vacancies was not going to produce any perceptible impact on their general condition. On the other hand, the induction of a large proportion of employees against reserved vacancies would considerably impair the quality and efficiency of the government services. It also considered the contention that the benefits of such reservations would be skimmed off by those sections of OBCs who were already well off and the really backward sections would be left high and dry. Another proposition advanced against reservation that the Commission dealt with was that the policy of large scale reservations would cause great heart burning to those meritorious candidates whose entry into services would be barred as a result thereof.

The Commission said that these arguments were advanced by the ruling elite which was keen on preserving its privileges and hence were partisan. An essential part of the battle against social backwardness, it said, was to be fought in the minds of the backward people. In India government service had always been looked upon as a symbol of prestige and power. Increasing the representation of OBCs in government services, would give them an immediate feeling of participation in the governance of the country. When a backward class candidate becomes a Collector or a Superintendent of Police, the material benefits accruing from his position were limited to the members of his family alone but the psychological impact of this phenomenon was tremendous. The entire community felt socially elevated and came into the mainstream of society.

The chief merit of reservation was not that it would introduce egalitarianism amongst OBCs when the rest of the Indian society was seized by all sorts of inequalities, but that it would erode the hold of the higher castes on services and enable OBCs in general to have a sense of participation in running the affairs of the country. The Commission conceded that reservation for OBCs would cause a lot of heart burning to others but this could not operate as a moral veto against social reform. When the higher castes constituting less than 20% of the country’s population subjected the rest to all manner of social injustice, said the Commission, it must have also caused a lot of heart burning to the lower castes. Now that the lower castes were asking for modest share of the national cake of power and prestige, a chorus of alarm was being raised by the ruling elite. Hence, it is obvious that the essential agenda was one of power sharing in the main and the educational and economic amelioration was only secondary.

The Indra Sawhney Case

The Report of the Commission lay in cold storage. When Indira Gandhi came to power in 1980 after the Janata government rule, she did nothing about it. However when the Janata Dal returned to power in 1989, its leader V.P.Singh, who had earlier been with the Congress, announced its implementation. It caused widespread agitation and intense resistance. Multiple writ petitions were filed and finally the matter came up before a nine-judge bench in the pivotal Indra Sawhney case that was decided in 1992. The idea was to settle the issue once for all as earlier too the court had not spoken in one voice. But this was not to be because once again it was a split 6:3 judgment, leaving the room wide open for more interpretations and litigation.

An Office Memorandum was issued on the 13^th of August 1990 by which 27% vacancies in civil posts and services were reserved for Socially and Educationally Backward Classes (SEBC) in direct recruitment. Those among the socially and educationally backward classes recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates were not to be adjusted against the reservation quota of 27%. Since lists of such castes and communities had been prepared by both the Centre and the States and they varied, only those were to be considered which figured in both the lists. This Office Memorandum was modified by that of September 25^th 1991 by which in the 27% reserved posts, preference was to be given to candidates belonging to the poorer sections of the socially and educationally backward candidates. In case a sufficient number of such candidates were not available, unfilled vacancies would be filled by the other socially and educationally backward candidates. Further, 10% of the vacancies would be reserved for other economically backward sections of the people who were not covered by any of the existing schemes of reservation.

These Memoranda were based on the recommendations of the Mandal Commission. Fourteen questions were raised before the court of which some questions had several parts. The most relevant for our purpose were those pertaining to the meaning of the term “ backward classes”; whether these classes could be identified on the basis of caste alone; whether backwardness had to be both social and education, whether “means-test” could be used to identify backwardness; whether backwardness could be identified only on the basis of economic criteria; whether the backward classes could be further subdivided into backward and more backward; to what extent could reservations be made and what was the concept of positive action and positive discrimination.

By a majority judgment, the Court directed the Government of India and the governments of the States and the Union Territories to constitute within four months a permanent body for examining and recommending upon requests inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by this body would ordinarily be binding. The government was to also specify within four months, the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections, called the ‘creamy layer’ from Other Backward Classes. The Office Memoranda were to be implemented subject to the exclusion of the ‘creamy layer.’ The reservation could only be for the initial appointment and the category based on only economic criteria was held invalid.

Subsequent to the judgment, posts for Other Backward Classes were reserved in public appointments funded by the Central Government. However, the issue has kept coming up and no finality has been achieved. These issues together with others dealing with private sector involvement in higher education once again reached the Supreme Court in 2002. They were then dealt with by an eleven-judge constitutional bench of the Supreme Court in October 2002 in T.M.A.Pai Foundation and ors.vs. State of Karnataka popularly known as the Pai Foundation case. The current matter is then but a link in the long chain of adjudication on the issues pertaining to access and equity in higher education.

Ashok Kumar Thakur vs. Union of India and Others (2008)

Following Arjun Singh’s announcement and the passing of the Act 5 of 2007, reserving seats in centrally funded higher education institutions including professional institutions, some sections of it have been challenged in the Supreme Court. The issues are the familiar ones that had earlier been adjudicated upon almost fifteen years earlier in the Indra Sawhney case concerning definitions and criteria of backwardness; the merit factor; and economic factors in determining backwardness which had to be both social and educational.

The contentions of the petitioners are broadly as follows:³

The Union of India has failed in performing its constitutional legal duties towards its citizens.
The effects of the Act would have wide ranging ramifications that would ultimately divide the country on caste basis.
It would lead to chaos, confusion and anarchy that would have a destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect communal harmony.
The constitutional guarantee of equality and equal opportunity would be seriously prejudiced by the proposed reservation and it would violate the equality provisions under Art.14 of the Constitution.
The quotas are nothing but vote banks.
Merit would be sacrificed.
The Act has been passed on the basis of unfounded and unsupportable data about the number of OBCs in the country. In this regard it was pointed out that the Supreme Court itself in the Indra Sawhney case had recognized the concept of creamy layer amongst the advanced OBCs that were to be kept out of preferential treatment. The projected 52% had also not been fully approved at that time and the State had been directed to constitute a permanent body by 15^th March 1993 to examine and recommend the inclusion and exclusion in the lists of backward classes of citizens. Consequently the National Commission for Backward Classes Act 1993 was enacted and the National Commission for Backward Classes was set up. However, there were flows in its functioning.
The definition of “backward class” was contested. Under section 2 (i) of the Act, “backward classes” were defined to mean classes of citizens other than the Scheduled Castes and Scheduled Tribes as may be specified by the Central Government in the lists. Under section 2 (i) of the Act, ‘lists’ mean those prepared by the Government of India from time to time to make provision for reservation of appointments or posts in favor of backward classes who in the opinion of the Government are not adequately represented in government services. In any case what exactly does “Other Backward Classes” mean has not been decided on any acceptable basis on the parameters provided in the Backward Classes Act.
S.11 of the Backward Classes Act provides for a revision of lists but this has not been done. On the contrary additions are being made in it. The rationale of 27% reservation is based on the assumption that 52% pf the population consists of backward classes. However, it has been highlighted that there has never been a caste based enumeration or tabulation since 1921 so the 52% projection is not reliable. Reference was made to the figures provided by the National Samples Survey of India and the National Health and Family Survey by the Government of India’s own departments that show the hollowness of the claim of OBCs being 52% of the population. The number of socially and educationally backward classes had to be arrived at after a careful in depth analysis.
It was also pointed out that under Ss. 2 (g), 3 (iii), 5 (1) (2) and (6) of the Act, 27% of the seats were being reserved for Other Backward Classes out of the permitted strength. But since the foundational basis was weak, the introduction of the reservation was not acceptable whether in a staggered manner or by the notion that the number of unreserved seats would be kept at the same levels.
The constitutional validity of the 93^rd amendment that has come into force with the insertion of Art 15 (5) with effect from 20.1.2006 was challenged and it was prayed that certain sections of the Act promulgated as a consequence be declared invalid.
It has been further contended that the effect of judgments in M.Nagaraja and Others vs. U.O.I. (2006 (8) SCC12) and Nair Service Society vs. State of Kerala decided on 23.02.07 has not been considered. It has been emphasized that what was relevant eight decades back could not be of relevance now.
In the Indra Sawhney case, the Supreme Court overturned the concept of backwardness as outlined in the Balaji case (M.R.Balaji vs. State of Mysore, 1963) and followed in the Janaki Prasad Parimoo case (Janaki Prasad Parimoo vs. State of J.K., 1973) distinction was made between Arts. 15 (4) and 16 (4) of the constitution, which had been more or less equated in these two cases.
In any event, it was contended, that the “creamy layer” which had to be kept out was of great relevance and significance. The criteria and lists made under Art. 16 (4) could at best be used to provide a rough and ready rule for Arts. 15 (4) and (5) but that did not take away the care of S.11 in the Backward Classes Act. The National Commission for the Backward Classes had put out no report subsequent to 3.2.2005 and hence the whole exercise by the Central Govt. had been done in a great hurry. Since there was no database after the 1931 census, the government should have first tried to create one before acting on the presumption that 52% of the population belonged to Other Backward Classes. The Act itself requires the determination of socially and educationally backward classes to be made by the government made under S. 2 (g).
Further, no methodology had been laid down for such a determination, as caste alone could not be the basis for identification. It could only be a starting point. The following documents were also referred to, which show that the figures arrived at by the union were erroneous

(a) The National Sample Survey Organization survey of 1999-2000 that shows that the present educational level is directly proportionate to a person’s economic condition

(b) S.11 of the National Commission for Backward Classes Act, 1993 which says that the Central Government would undertake revision of the lists in order to exclude those classes who have ceased to be backward

(d) 186^th Report of the Parliamentary Standing Committee of human Resource Development submitted to the Parliament on 1.2.2006.

(e) Annual Report of the National Commission for Backward Classes, 3.2.2005.

(f) Report of the Oversight Committee constituted under the orders of Prime Minister on 27.5. 2006.

The Office Memoranda of 1990 and 1991 with respect to reservation for Backward Classes in government jobs could not stand forever as that would make S.11 of the Backward Classes Act which calls for revision of lists after a period of 10 years, redundant. Since the lists have not been revised, their figures were doubtful. The K.C.Vasanthkumar case (K.C.Vasanthkumar v. State of Karnataka, 1985 Supp. SCC 714) was also referred to wherein it was stated that the policy of reservation for employment and education should be necessarily reviewed. Also, that the time had come to review the criterion for identifying socially and educationally backward classes ignoring the caste label. Identification was an imperative requirement and the 1931 data could not be used. It was also pointed out that the Mandal Commission itself had found two equi-distributed groups: (a) intermediate OBC and (b) depressed OBC, which were equi-distributed. It was emphasized that when Mandal Commission arrived at the figure of 52% population of OBC, it had added also added the population of non-Hindu communities. Besides, the management of social backwardness had to be dynamic. This meant that measures adopted as a remedy had to be time bound and renewable.

Contentions of the Government

The Additional Solicitor General, arguing on behalf of the Government of India stated:

All the issues that were being raised had already been settled in the Indra Sawhney and the Rajendran cases. [P.Rajendran v. State of Madras,(1968) 2SCR 786].
Reservation did not violate the basic structure of the Constitution as it was an integral part of the principal of equality where inequality existed.
There was nothing unconstitutional in specifying socially and educationally backward classes in terms of caste on the basis of criteria evolved for such a purpose.
Reservation was not anti-merit.
In the absence of data there was no alternative but to project the proportion of social and educational backward classes from the 1931 census.
The Mandal Commission had not relied upon the 1931 census to arrive at the figure of 52% as the population of the Backward Classes but on a multiple of approaches in the contemporary context and not in the context of 1931.
The Ministry of Social Justice and Empowerment was in charge of the subject and issued state-wise lists. Once issued these continued to be in force and were binding for any or all purposes, subject to modifications, deletions, additions from time to time in accordance with the Backward Classes Act and in the light of Indra Sawhney Case.

Interim Orders of the Court

On hearing the contentions of both sides, the Court held that a survey of the entire population on the basis of an acceptable mechanism was necessary. This had also been accepted by the additional Solicitor General. What may have been relevant in 1931 census could have some contemporary relevance but it could not be he deciding factor. The Court had already observed in the Nagaraja case that backwardness had to be based on objective factors and inadequacy or representation in public funded appointments had to factually exist. Also, care had to be taken that forward castes did not get included in the backward caste lists.

Even in the Indra Sawhney case it had been emphasized over and over again that the list of backward classes cannot be mechanical and done without relevant data or for extraneous reasons. Justice Pandian had observed that before it could be concluded that a caste was backward or inadequately represented in services it was necessary to show the existence of circumstances relevant to the formation of such an opinion. If such an opinion suffered from non-application of mind or formulation of collateral grounds or was beyond the scope of the statute or based on irrelevant and extraneous material then it was challengeable. Justice Sawant had also pointed out that there was need for proper application of the mind to facts and circumstances, the field being examined, the post and the extent of existing representation and the requirement to balance representation. Similarly, speaking on his own behalf and three others, Justice Jeevan Reddy had said that opinion in regard to backwardness and inadequate representation had to be based on relevant material. Likewise, there had to be periodic examination of these lists that could lead to the exclusion of a class if it ceased to be socially backward or was inadequately represented in the services. Once backward, always backward was not acceptable. In any case, the Court said in its interim order that the ‘creamy layer,’ as explained in the Indra Sawhney case, was not irrelevant. Nowhere else in the world did castes, classes or communities queue up to gain backward status. This truth was recognized in the Indra Sawhney case as a stark reality.

Equality, said the Court, was a fundamental substantive norm that was the characteristic feature of many democratic constitutions. In societies with diversity or where there had been past discrimination against groups of people, the norm of equality necessitated affirmative action. That may have been the underlying object of Art. 15. The Court noted that whatever may have been the philosophical foundation of its origin, caste had become a rigid hierarchical system that caused immense social and economic exploitation of a section of the population. The late 19^th and early 20^th centuries had seen the rise of social reform movements for the amelioration of the plight of these sections of society. The equality provisions of the Indian constitution were intended to be proactive means of social engineering and thus the system of reservation had developed.

The Court said that it had focused on Arts. 15(4) and 16 (4) several times earlier. Equality of opportunity was not simply a matter of legal equality or the mere absence of disabilities. It had to be the presence of abilities. Hence, wherever there was inequality in fact, legal equality only tended to accentuate it (Dr. Pradeep Jain v. Union of India, AIR 1984 SC 1420.) In the Indra Sawhney case it had been accepted that the State was constitutionally empowered to enact affirmative action measures for backward classes according to certain underlying principles in the identification of which, caste could be used as a proxy. However, differentiations and classifications could not be unduly unfair to the persons left out of the favored group. Also, the policy of reservation could not and should not be intended to be permanent or perpetuate backwardness.

The Court also asked the question whether a different form of preferential treatment other than quotas could be employed. Although it had been submitted that the number of seats available for the general category would not be affected, there was really a broader issue involved,. If the seats could have been increased in the absence of reservation, these could have gone to the general category. Also, if the whole exercise was only to be undertaken over a period of three years during which there would be a staggered increase in seats, then a firm data should have been first evolved.

Another important factor said the court, pertained to the “creamy layer”. In the Nagaraja case, it was said that the main issue was the “extent of reservations.” In each case, the State would have to show compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. The State was not bound to make reservations as the provisions were only enabling ones. It could if it wished to, but then it had to collect quantifiable data showing the backwardness of the class and the inadequacy of the representation of that class in public employment in addition to compliance with Art. 335. Further, even if the State had compelling reasons, reservations could not be so excessive that they exceeded the ceiling limit of 50% or were extended indefinitely.

Following the Nagaraja case the issue of “creamy layer” was reiterated in the Nair Society case. It was stated that “the creamy layer principle was one of the important limits on State power under the equality clause enshrined under Arts. 14 and 16 and any violation or dilution of the same would render the State action invalid.” It went on to say, “We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Art. 16 would collapse.” The Court said “In Indra Sawnhey this court has, therefore, accepted caste as determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the constitution by bringing in the concept of creamy layer.” It affirmed that the determination of creamy layer was a part of the constitutional scheme. It was a necessary bargain between the competing ends of caste based reservations and the principle of secularism. Therefore, it would have to be examined in detail whether the stand of the Union of India that the creamy layer rule was applicable only to Art. 16(4) and not to Art. 15 (5) was based on any sound foundation.

What the Court really did was to scrutinize the government’s plans to extend reservation by 27% though quotas to Other Backward Classes. Initially, the reservation was to have taken effect from the academic year 2006-2007 and also no plans had been drawn up to increase the number of seats. Thus the number of seats available in the general or unreserved category would have been reduced. By asking the government to answer a series of questions to justify the extension of reservation the Court has tried to balance the equality rights of all individuals with group rights of the under privileged.

The Final Judgment

The much awaited final judgment in the Ashok Thakur case was pronounced on 10/4/08 by a five judge Constitutional Bench led by the Chief Justice of India. Four different judgments were handed down but there was broad agreement on several issues. On other points there were differences. Also there was a lot of obits leaving room for further legal challenge.

An important question was whether the 93^rd amendment of the Constitution was against the “basic structure” of the constitution. The Chief Justice upheld the validity of the amendment as inserted in Art. 15(5) of the Constitution in so for as it did not violate its “basic structure” with regard to the state maintained institution. He left the question of its validity with regard to private institutions open to be decided when a case came up. The Chief Justice explained that this was an enabling provision that could cover both state funded and private educational institutions, whether aided or unaided, but it excluded minority institutions established under Art 30 (1) as they belonged to a separate category. All the petitions have challenged Act 5 of the 2007 that flows from the Constitutional amendment that provides reservations of seats for Scheduled caste, Scheduled Tribes and Socially and Educationally Backward citizens in Central Educational Institutions. The latter have been defined under 8.2(d) of the Act as institutions established or incorporated by or under the Central Act or set up by an Act of Parliament or deemed Universities maintained by or receiving aid from the Central Government or institution maintained by or receiving aid from the Central Government or educational institutions set up by the Central Government under the Societies Registration Act, 1860.

It was pointed out that Act 5 of 2007 was not intended to provide reservations in “private unaided” educational institutions and none of the private unaided institutions had challenged the 93^rd amendment itself. In the absence of such a challenge, it was not proper to pronounce upon the constitutional validity of that part of constitutional amendment. However, Justice Bhandari chose to categorically state that imposing reservation on unaided institutions would violate the basic structure of the Constitution by stripping citizens of their fundamental right under Art. 19(1) to carry on an occupation. T. M.A. Pai and Inamdar approved that the establishment and running of an educational institution fell under the right to an occupation. The right to select students on the basis of merit was an essential feature of the right to establish and run an unaided institution. Hence reservation was an unreasonable restriction that infringed this right by destroying the autonomy and essence of an unaided institution. The effect of the 93^rd amendment was to abrogate Art. 19 leaving the basic structure altered. To restore the basic structure, it would be necessary to severe the reference to “unaided” institution in the 93^rd amendment. Hence the Chief Justice only dealt with the validity of the 93^rd amendment as so far as it related to state maintained and aided educational institutions. But Justice Dalveer Bhandari upheld the validity of the 93^rd amendment only with regard to publicly funded institutions.

Citing the Indra Sawhney case, Justice Bhandari observe that reservation was to be given to backward classes until they ceased to be backward and not indefinitely. Justice Sawant had stated in the Indra Sawhney case that society did not remain static. Industrialization, urbanization had led to the advancement of the under privileged on political, social and economic fronts especially after the commencement of the Constitution. Also the social reform movements and the spread of education had made at least some individuals and families in the backward classes gain sufficient means to develop their capacities to compete with others in every field. Therefore, they could no longer be called backward whatever be their original birthmark. It could hardly be argued that once a backward, always a backward. Such a position would defeat the very purpose of the special provisions in the Constitution for the advancement of backward classes which is to enable them to compete with forward classes as equal citizens.

The Parliament and the legislature in the country could not transgress a basic feature of the Constitution, namely the principle of equality enshrined in Art 14 of which Art 16(1) was a facet. If the creamy layer was included it would be the same as the forward castes getting the benefit of reservation. It would be a breach not only of Art 14 but of the basic structure of the Constitution. Therefore, the non-exclusion of the creamy layer or the inclusion of the forward castes would be totally illegal.

Further, it was held that Art 15(4) and 15(5) were not mutually contradictory. Art 15(4) was introduced when the “communal G.O” in the then State of Madras was struck down by the Supreme Court in Champakam Dorairajan’s (AIR 1951 Med. 130) case. In the Unni Krishan (1993), ISCC 645 case the court had held that Act 19(1) (g) was not attracted for establishing and running educational institutions. However, in the later T.M.A Pai case, the court reversed its earlier position and held that the right to establish and run educational institution was an occupation within the ambit of Art 19(1)(g). The scope of the decision in the Pai case was later explained in the P.A Inamdar (AIR 2005 SC 3226) case where it was held that the state had no control over unaided institution and that they were free to admit students of their own choice. This necessitated the 93^rd Constitutional Amendment Act, 2008. Hence the areas of operation of Art. 15(4) and 15(5) were different and not mutually contradictory. Justice Raveendran agreed and added another reason to reject the challenge to Art 15(5) saying that otherwise it would make Art 15(4) also inoperative or ineffective. It was also said that the exclusion of minority institutions was not violative of Art. 14 of the Constitution as these formed a separate class whose rights were protected by other constitutional provisions.

The key question was whether Act 5 of 2007 was constitutionally valid in view of the definition of “Backward Class” and whether the identification of such “Backward Class” based on “caste” was constitutionally valid. To answer this question, the Chief Justice did an elaborate discussion of the definitions and concept of “caste” and “class” given by some leading sociologists. The overall conclusion was that caste was the wholly predetermined status that men were born into without any hope of changing it. This was the situation in Hindu Society. Every Hindu necessarily belonged to the caste of his parents and remained in it. No accumulation of wealth and no exercise of his talents could alter his caste status. Marriage outside his caste was prohibited or severely discouraged.

A class on the other hand, enjoyed certain privileges over others in society. When such a class was more or less rigorously closed or enjoyed hereditary privileges, it was called caste. In the early sociological theories, caste had been used to mean class, indicating hereditary or rigid status and occupation. On the other hand, it is possible that within a certain caste group there is marked inequality of status, opportunity or social standing which then defines “class” within that particulars “caste”. For example, not all brahmins are engaged in highly respectable employment. Neither are they all wealthy. A brahmin may be a servant to a member of the lower caste or a servant to a rich brahmin. Hence, within a single caste group, there may be some classes or groups who have more dignity, social influence and social esteem than others. A caste is not characterized merely by typical or occupational characteristics of individuals who are part of it. It is characterized by its codes and close-knit social controls. In classes, however, such close knit social controls may not exist and there may also be great disparity in occupational characteristics.

A social class, therefore, is a homogeneous unit from the point of view of status and mutual recognition whereas caste is homogeneous from the point of view of common ancestry, religious rites and strict organizational control. Thus caste is closed as opposed to class both in the organizational and biological sense. It emphasizes rituals and regulations pertaining to cleanliness and purity. In this it differs radically from the secular nature and informality of social rules. In a social class, exclusivity would be based primarily on status. Hence, social classes divides homogeneous populations into layers of prestige and esteem and the members of each layer are able to circulate freely within it. In a caste, however, the social distance between members is because they belong to entirely different organizations. Therefore, it may be said that caste is a horizontal division, while class is a vertical one.

It was pointed out that the National Commission for the Backward Classes and the State Commissions for Backward Classes have prepared a list based on elaborate guidelines and these have been framed after studying the criteria /indicators framed by the Mandal Commission and the Commissions set up by different State Governments. The various Commissions had held public hearings before they finalized lists. The National Commission held 236 public hearings. Also, during its functioning, it had recommended 297 requests for inclusion and rejected 289. Also, it had taken into consideration detailed data with regard to social, educational and economic criteria. It had looked into whether there has been improvement or deterioration in the condition of the caste or community being considered for inclusion during the past twenty years. Hence, the lists of socially and educationally backward classes of citizens were not being prepared solely on the basis of caste and so it was not violative of Act. 15(1) of the Constitution.

Next came the question of the exclusion of the creamy layer. The Socially and Educationally Backward Classes (SEBC) have been identified by applying different and multiple criteria, though the list is based on caste for convenience. But within the castes listed there may be affluent sections that cannot be included in the list of SEBs. There may be a segment in that caste that is economically advanced and does not require the protection of reservation. The petitioners contended that the principle of ‘creamy layer’ should be strictly applied to SEBCs and the principles of exclusion should be same as developed in the Indra Sawhney’s case. The Chief Justice disagreed with the contention raised by the respondents that if the ‘creamy layer’ was excluded, there may be practically no representation for a particular backward class in educational institutions because those left, that is the non-creamy, may not have risen to the level or standard necessary to get admission even within the reserved quota. The Chief Justice asserted that if the creamy layer was not excluded, the identification of SEBC would not be complete and any SEBC without the exclusion of ‘creamy layer’, may not be in accordance with Art. 15(1) of the constitution. He upheld the criteria of the government as given in the Office Memorandum dated 8.9.1993 following the Indra Sawhney case to provide for reservation of 27% for Other Backward Classes. In addition, Justice Bhandari wanted the government to periodically revise the Office Memorandum so that changing circumstances could be taken into consideration while keeping the constitutional goal in view. He also urged the Government to exclude the children of former and present Members of Parliament and Members of the Legislative Assemblies. The Office Memoranda, he said, should be amended accordingly.

Justice Raveendran also concurred on this issue while adding his own reasoning. His argument represents a greater paradigm shift from purely caste based quotas to the inclusion of other criteria than those of others. He pointed out that the Supreme Court in a series of discussions in cases like M. R. Balaji v. State of Mysore [ 1963 Supp.(1) SCR 439]; R. Chitralekha v. State of Mysore [ 1964 (6) SCR 368] ; State of Andhra Pradesh v. P. Sagar [ 1968 (3) SCR 595] , Janaki Prasad Perimao v. State of Jammu and Kashmir [1973(1) SCC 420], State of Kerala v. N. M. Thomas [ 1976(2) SCC 310] and K.C. Vasanth Kumar v. State of Karnataka [1985 Supp. SCC 714] has explained social and educational backwardness. All have laid down one common principle that caste cannot be made the sole or dominant test to determine backwardness. Doing so would make it an invalid determination. These decisions have recognized that caste cannot be equated with class and that all backwardness, whether social or educational is ultimately and primarily due to poverty or economic conditions.

The principle of ‘creamy layer’ however, said the Chief Justice could not be applied to Scheduled Castes and Scheduled Tribes as they were to be treated as a separate category. Nobody had even disputed the identification of such classes. Justice Bhandari agreed with this. In addition, Justice Pasayat said that a notification should be issued by the Union of India for the determination of backward classes. This can only be done after the exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Government and Union Territories. Such a notification would be open to challenge on the ground of wrongful exclusion or inclusion. Hence norms had to be fixed according to the peculiar features in different States and Union Territories.

The other important question was what should be the educational qualification beneath by which a class could be considered educationally backward. The petitioners had contended that reservation or any other affirmative action could be made for the advancement of only socially and educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes and the educational standard to be addressed should be matriculation or 10+2. There were many in the castes included in the backward class list who had this much education and so had to be treated as educationally forward. Hence since Act 5 of 2007 was intended to give reservation to students in higher institutions of learning, it was not permissible under Art. 15(5). What is being pointed out by the petitioners is really a contradiction between individual and group rights. Certain individuals in a backward class may have completed their schooling. Were they also to be given the benefit of reservation? They were themselves not educationally backward but their class as a whole might be.

The Chief Justice did not agree with this argument, but the judgment does not really provide a conclusive answer to this problem. It only states what should be the minimum educational attainment of a class below which it would be considered educationally backward. He said that at the time of independence, the basic idea was to improve primary and secondary level education but now after a period of more than fifty years, it could not be said that the backward classes shall be determined on the basis of their attaining education only to the level of 10+ 2 stage. Justice Pasayat said that while determining backwardness, graduation (not technical graduation) or a professional qualification should be the standard yardstick for measuring backwardness. He also felt that in order to strike a constitutional balance, it was necessary and desirable to ear mark certain percentage of seats out of the permissible limits of 27% for socially and economically backward classes.

Justice Bhandari spent a long time in pointing out that school education had been neglected and that primary and secondary education had to be looked after if reservation in higher education was to be made effective. He also felt that once a candidate graduated from a university, he was educationally forward and so ineligible for special benefits under Art. 15(5) for post graduate and any further studies thereafter. Here he talked only about the individual and not about the group as a whole leaving the matter inconclusive.

Following Indra Sawhney case, Justice Bhandari acknowledged that caste had to be accepted as a valid criteria but he felt that if reservation in education was to stay, it had to adhere to the basic tenet of secularism; i.e. it should not take caste into account. As long as caste was a criteria, we would never achieve a casteless society. Exclusively economic criteria should be used. He urged the government that for a period of ten years caste and other factors such as occupation, income, property holding and similar measures of economic power may be taken into consideration but only to be able to achieve the constitutional goal of a casteless and classless society in India.

Caste, pointed out J. Raveendran, had divided this country for ages and hampered its growth. The effect of reservation, to begin with, seems to perpetuate caste and it has had some undesirable consequences. In the pre-reservation era, people wanted to get rid of the backward tag, either social or economical. But post reservation, there was a tendency even among those who were ‘forward’ to seek ‘ backward’ tag in the hope of enjoying the benefits of reservation. When more and more people seek the backward tag, the country stagnates. Further, if reservation was not to become a crutch, a periodic review was necessary. This was emphasized by the Chief Justice also who said that there shall be a review every five years.

In addition to the issue of creamy layer, the factor of merit was introduced for the first time into the social engineering. Justice Pasayat said that the Central Government must examine the desirability of fixing cut off marks in respect of Other Backward Classes (OBCs), in relation to those required from the general candidates. By way of illustration he indicated that five marks grace could be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure that quality and merit did not suffer. If any seats remained vacant after adopting such norms he said, they should be filled up by candidates from the general category. For Justice Bhandari, the concession could go up to 10 marks.

An analysis of the different opinions expressed seems to indicate a paradigm shift from caste alone to include parameters like income, education, family background and others that have always arise in as subtents throughout but have got submerged in caste based reservations. However, the ratio leaves certain areas extensively discussed in individual orders, ambiguous or unstated leaving it open to further challenge.

As expected, the judgment went back to the Supreme Court within a month on whether there could be quotas for Other Backward Classes (OBCs) at the postgraduate level.⁸ Multiple petitions were filed. After the Supreme Court upheld the validity of Art. 5 of 2007 subject to the exclusion of creamy layer in the determination of OBCs, the Ministry of Human Resources, Government of India, issued an Office Memorandum on 20.4.2008 for implementation of reservation for OBCs in accordance with the judgment. One Soyan Guha challenged this Office Memorandum with respect to the admission of OBCs in IIM, Calcutta. The Pan-IIM Alumni Association challenged it in the New Delhi High Court and Youth for Equality and two others in the Mumbai High Court in respect to OBC admissions in IIT. The common contention was that a candidate who had done graduation could not be counted as educationally backward and so was not entitled to reservation in post graduation. The Calcutta High Court granted a stay of the implementation of the Government’s order against which the Government filed an appeal in the Supreme Court and also asked for all the petitions to be transferred to the Supreme Court as the issues were the same. The Supreme Court vacated the stay given by Calcutta High Court and allowed provisional admission to post graduate courses subject to the outcome of the case. The primary issue that has emerged is one of individual rights and their relationship to group rights. It is not new and goes straight to the heart of the Constitution within which lies the contradiction that in this case has come to a head.

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Cited in Indra Sawhney v.Union of India [1992, Supp. (3) SCC, pp. 20-772]
Ibid
Christopher Jaffrelot, India’s Silent Revolution: The Rise of the Low Castes in North Indian Politcs, Delhi: Permanent Block, 2003. See also, Christopher Jaffrelot, “The Politics of OBC, http://us/6621.mail.com/you/showletter

Marc Galenter, Competing Equalities: Law and the Backward Classes in India, Delhi: Oxford University Press, 1984.
Christopher Jaffrelot, India’s Silent Revolution
Christopher Jaffrelot, “The Politics of OBC”
Kakasaheb Kalelkar, Backward Classes Commission Report, 1955
Christopher Jaffrelot, “The Politics of OBC.” Also cited in Indra Swahney v. Union of India (1992, Supp.(3) SCC, pp.20-772)
Mandal Commission
Three petitions separately filed in the High Courts of Delhi, Bombay and Calcutta have all been transferred to the Supreme Court to be heard together as they all are concerned with the issue of quotas in post graduate courses. The three petitions are PAN IIM Alumni Association and Others v. Union of India (May 2008); Youth for Equality and other v. Union of India (April 2005); and Sayan Centre v. Union of India (May 2008).

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