ISSN : 2581-8465
BHAVIT HAREN BAXI
Student, 2nd Year BLS-LLB, M.K.E.S College of Law, Mumbai, Maharashtra
ABSTRACT
This research paper analyses the power of a state to make provisions for upliftment of Backward classes, and how a majoritarian parliament uses it arbitrary for the sake of vote-bank politics. This intrinsic research paper also throws light on the consequences when the so-called constitutional power used for un-constitutional means. It also focuses on the fundamental-flaws which is committed by majoritarian parliament while exercising this extremely precious power. This paper talks about intervention of apex court of country and his role in saving ideals of our constitution makers. It tries to explain the intent of constitutional makers while drafting of the provisions. This paper also answers the most debated question of identification of backward classes in regards with majority parliament. The prime focus of this paper is to show the abuse of power in identification of backward classes by the majoritarian states through past events, Lastly this holds power of Article 15 (4) as a extreme precious power and state should use it in extremely reasonable and legitimate manner.
Key words: Majoritarian, Identification, Backward-classes, Vote-Bank politics and Article 15 clause (4).
INTRODUCTION
The genuine spirit of Equality as enshrined in Article 14 of our constitution can be understood by constitutional assembly debates, during which our founding fathers were well aware of the ripples of inequality present in society.
Regarding equality Dr. Ambedkar stated in Constituent Assembly:
“…We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.”[1]
The impending problem in Today’s India is not reservations but the dogmatic behaviour of Majoritarian’s in granting such reservations without adhering and overlooking to landmark ratios developed by various courts and ethos of our constitution makers, And thereby playing with the sentiments of the people of India just for the sake of vote-bank.
BACKWARD CLASSES & BACKWARDNESS
As inscribed in the Article 15(4) and 16(4) to understand the meaning and definition of Backward Class or Socially and Educationally Backward class. Firstly we should read the ambit of Backwardness of the certain group of people which then becomes the backward class.
Regarding Backwardness The Rajasthan High Court in recent decision held: Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group.[2]
‘Backward class’ First acquired a technical meaning in the princely state of Mysore in 1921 the ‘Backward Communities’ were defined as all communities other than Brahmins who are not now adequately represented in public services.[3] In Today’s India the term ‘Backward Class’ is defined in the statute as, Backward class of citizens other than schedule castes and schedule tribes, as specified by central government in the Lists.[4] This thus dealt’s the power of identification of backward classes in the hands of State and Central Governments.
ARTICLE 15 (4) AN ENABLING PROVISION
This Article was inserted by The Constitution (First Amendment) Act, 1951. Which given enormous powers to state through president or governor as the case may be to make special provisions for advancement of ‘Socially and Educationally Backward’ class citizens.[5]
Inclusion of 15 (4) was the sudden provocation of the decision held in where in Supreme Court struck down the so-called ‘communal G.O’ notified by madras government, thereby allowing reserved seats to ‘Backward-Hindus’ in medical colleges.[6] Also decision in B.venkatramna vs. State of Madras, where again madras government came with G.O allowing reserve posts in district munsif appointments to Backward-Hindus, the court struck down the said G.O stating it discriminatory[7] This intent of Government can be implied by Parliamentary debates of the said constitution amendment act.[8]
In the classic case of Gulshan Prakash and ors vs. State of Haryana, The full bench of Apex court held:
- The principle behind 15 (4) of Constitution of India is that a preferential treatment can be validly given when ‘Socially and Educationally Backward Classes’ (SEBC) need it. The Article enables the state Government to make provisions for upliftment of S.C,S.T, and SEBC. 15(4) is not an exception but only makes special application of principle of reasonable classification.
- Article 15(4) is an enabling provision an State Government is the best judge to grant reservations to Schedule castes, schedule Tribes and Backward Class Categories. Every state can take its own decision with regard to reservation depending to various factors. [9]
RECENT ACTS DONE BY MAJORITARIAN’, BY USING THIS POWER ARBITRARILY
- The Act No. 62 of 2018 passed by Maharashtra state legislature granted 16 percent to Maratha community in educational institutes and State government jobs. This was done after state government appointed Gaikwad commission which then identified Marathas as a ‘Socially and Educationally Backward Classes’.[10] The action of government was so aggressive that the act itself tried to overlook all the ratios developed by courts.[11], the act exercised greatest misconduct ever when it overlooked Mandal commission report which identified Marathas as forward community and Not a Backward. Due to strong hold of the community in the state and due to sheer public preassure and also governments wish to impress that community for vote-bank politics. The MAJORITARIAN state had always done grave misconduct with constitution.
- The mechanism laid down in constitution is after identification of a particular backward class the investigation is done by National commission of backward classes after compliance of this stage, the reservation can be awarded. It is pertinent to note here that Maharashtra State Assembly has not complied with this provision before awarding 16 percent reservation to Marathas.[12] Thereby increasing reservations in state with 78 percent. Various PIL’s were filed in Bombay High Court which are reserved for the judgement.
- The another earth-shaking incident, where Government of India Published notification dated 04.03.2014 by which Jat community was included directly in Central list of backward classes of 8 states together, only by using article 15 Clause (4). Apex court came heavy on this act of union government and quashed the said notification.[13]
CONCLUSION
It could be concluded from the history of the events that majoritarian states that the constitutional power of identification of backward class has always been used for un-constitutional means. In all the events Courts have upholded the morals and ideals of our constitution makers. Also courts have restricted politically motivated vehicles bypassing the legitimacy of the constitution.
Looking at history of events, the above
framed question in the sub-title should always answered in negative in regards
of majoritarian parliament. The Supreme
Court is considered custodian of Constitution, In my view in such delicate
matters where sentiments of people of India is concerned, The state should
first use the advisory Jurisdiction of the supreme court of India, as enshrined
in Article 143 of Constitution of India.
[1] Constitutional Assembly Debates, 25thNov,1947, Vol-11.
http://cadindia.clpr.org.in/constitution_assembly_debates/volume/11/1949-11-25?paragraph_number=325#11.165.324
[2] Ratan Lal Bagri &ors v. State of Rajasthan &ors, 2016(1)CDR291(Raj).
[3] Galanter, Marc. “Who Are the Other Backward Classes?: An Introduction to a Constitutional Puzzle.” Economic and Political Weekly, vol. 13, no. 43/44, 1978, pp. 1812–1828. JSTOR, www.jstor.org/stable/4367065.
[4] Section 2(a), National Commission Of Backward Classes Act,1993.
[5] The Constitution (First Amendment) Act, 1951.
[6] The State Of Madras vs Champakam Dorairajan and Ors, AIR1951SCC226.
[7] B. Venkataramana vs. The state of Madras & ors, (1951)1MLJ625.
[8] Pg.332, DR. BABASAHEB AMBEDKAR WRITINGS AND SPEECHES VOL. 15.
[9] Gulshan Prakash & ors vs. State of Haryana & ors, AIR2010SC288, 2010(3)BomCR669.
[10] Act 62 of 2018, https://bombayhighcourt.nic.in/libweb/acts/Stateact/2018acts/2018.62.pdf
[11] Section 4(1), of Act No.62 of 2018, https://bombayhighcourt.nic.in/libweb/acts/Stateact/2018acts/2018.62.pdf
[12] Article in TOI Dated 18.09.2018, https://timesofindia.indiatimes.com/city/mumbai/marathas-to-get-quota-under-a-new-socio-edu-backward-class/articleshow/66686130.cms
[13] Ram Singh vs. Union of India, (2015)3MLJ339(SC)