Lecture Series On Indian Constitution Affirmative Action under Articles 15(4)& 16(4) and Minorities

In the lecture series on Indian constitution’ being organized by Institute of Objective Studies (IOS), a lecture titled “Affirmative Action under Article 15(4) & 16(4) and Minorities “ was held at Indian Law Institute on 13th May 2006 at 5:30 p.m. Mr. P.P.Rao a senior and renowned advocate delivered the lecture. Hon’ble Mr. Justice B.N.Srikrishna, judge, Supreme Court of India, presided over the proceedings. Mr Mushtaq Ahmad, Advocate, who is convenor of Law Committee of the Institute, convened this programme. Many prominent academicians and lawyers attended this programme; prominent among them was Mr. Dilbaugh Singh senior advocate and the Vice-President of the Supreme Court Bar Association.

The programme started with recitation from the Holy Quart by Maulana Sarfaraz Qasmi.In his introductory speech Prof.Z.A Nizami highlighted the activities and achievements of the institute, which has completed 20 years of its existence. He described the previously held international conference on inter-civilisational dialogue and recently held Book Release ceremony of 100 Great Muslim Leaders of the 20th Century. He elaborated the IOS loan scholarship programme, Data Bank, and its Publication activities. He also underlined the importance of Hazrat Shah Waliullah Award initiated by the Institute.

Before inviting Mr. Rao to deliver his lecture Mr. Mushtaq Ahmad gave an introduction of the speaker and lauded his achievements. He said: I find difficult to introduce multi-faceted and multi-dimensional personality of Mr. P.P. Rao, which is like showing lamp to the sun. He is a great human being, a great helper and a self made man. He was conferred Padmbhushan by the government of India.Mr Mushtaq added that the important cases he has done in the supreme court are known to all and sundry,to law man and layman.

Mr. P.P. Rao initiated his speech by thanking the Institute of Objective Studies for giving him an unusaual topic which covers two areas: one is formative action under Article 15(4) & 16(4) which is a separate topic itself and other is on minorities. He said by linking them together considerable difficulties are created for the speaker so I shall try to deal these two aspects separately and at the end we shall see how much linkage is possible.

While speaking on the first aspect Mr. Rao informed the audience that the constitution speaks of equality. These two articles appear in the constitution with the group of Articles heading “Equality” which is basic in democratic society and entire structure is based on it. He said the constitution makers who dealt with the constitution were conscious of this thing. The Preamble, which speaks of not just Equality but speaks also of justice, social economic and political. It says Liberty of Thoughts and Expression, Belief Faith and worship and then came equality of status and opportunity.

That is why the Preamble starts with the words, which resolve:

The People of India resolve to secure to all citizens Justice-social, economic and political that is what is first mentioned. Then it says liberty of thought and expression, belief faith and worship, then comes eqality of status and opportunity.They resolve to secure the constitutional goal.

He said we find varying equality in our society. He questioned how to achieve the object of securing equality of opportunity and equality of status.

He said the constitution has mentioned certain groups which are known as disadvantageous groups of society, the SC and ST and then backward classes.He said initially only Article 15(4) was there which  said that the state can make any provision for backward classes by making reservations in appointment. He gave background of judicial interpretation of cases relating to the definition of backward classes.

Mr. P.P. Rao questioned the meaning of backward classes and backwardness ? Which is the basis of treating them as different categories which deserve help by the state.He said the court took the view of social and economic backwardness.He added a poor man is economically backward but what about the social backwardness. Can a particular community that once ruled the country can be considered as socially backward ?

Mr. Rao traced the history of castes through Bhagwat Gita which talked about the four fold classification in society. He compared it with today’s services, which are divided into four categories from Class I to IV. Similarly he added  in the judiciary we have Supreme Court  the highest,  High Courts,  Higher- sub-ordinate and lower sun-ordinate services. He said this division is inevitable in society for functional purposes. That is why Dr Radha Krishnan said in his commentary on Gita “Lord Krishna never said it was based on jati or birth but that is based on classification. It is a matter of accident that one is born in certain community or caste and it has become a status symbol.

He said when you speak of resentment of a section or speak of economic backwardness it is not indicative of social backwardness which is something different. It became relevant when we talked of minorities whether they have something like Articles 15(4) and 16(4); do they suffer from the social backwardness, like the SCs and the STs and are leading isolated life.

Mr. P.P. Rao traced the historical background as to how Article 15(4) came into constitution. He mentioned about the communal G.O of Madras state and later the court’s interpretations and finally introduction of this article in our constitution. Mr P.P. Rao asked if the reservation is only Affirmative Action contemplated by the constitution makers under the constitution or more to be done. While arguing against the reservation policy Mr Rao referred that how some castes within SC Reservation category monopolize services.

While stressing for universal education Mr Rao pleaded  there is  some minimum qualifications for the lower castes but what happened to those who do not go to school at all .He pleaded to educate most backward child of this country, What the constitution makers were seeking through a provision they made in the Directive Principle of State Policy . One was within 10 years the state shall endeavor to provide free and compulsory education to every child upto 14 years of age. This target should be achieved upto 1960. He said had we achieved that target there would have been no uneducated person in this country at all. Education is the key to progress. He said the Parliament did the needful and amended the constitution to incorporate  “Right to Education” for children upto 14 years as Fundamental Right. He lamented that  after amendment  no state made any law about what was needed to be done. This mandate was utterly neglected  which  resulted in anxiety of every caste to get into backward class list i.e. Jats in Rajasthan got into the backwardclass list to get reservation.Which led to states finally to enlarge the scope of reservation and increase the percentage of reservation. Mr P.P. Rao referred to a study made by his colleague for the Madras state in sixties which shows how some castes managed to monopolize seats in the reserved categories.

While speaking against caste criteria Mr Rao referred to a very famous case relating to Article 16 (4) in which Mr. Palkiwala, Mr Venugopal and he himself appeared against  Mr. Ramjethmalani who appeared on behalf of Bihar government. Mr Ramjethmalani   made an extreme argument that Article 16(4) means caste which is the exclusive door  to identify backwardness. On contrary Mr. Palkiwala and his colleagues pleaded before the court “Please do not recognise caste as relevant factor in secular constitution. And equality of opportunity is the basic factor. He lamented the fact that the court recognized caste which can be a route through which to identify backwardness. He said now you can see what happened thereafter in the wake of Mandal commission report and agitations that followed.

Mr Rao said that this judgement revitalized caste system, fractured the nation and disregarded the basic structure of the constitution.

In order to strengthen his argument about the baneful effect of reservation policies Mr. Rao also referred to some studies on the impact of reservation which was never conceived as a permanent feature or measure of the constitution .Reservation  was considered as a “Side Dish” in which the staple were supposed to be Education and with the special care promoting the economic and educational conditions   of weaker sections. He contemplated that this is the basic duty of state in which  the state has completely set aside and operated reservation as it is the only means of salvation. He argued even if there is total or partial reservation it can not eradicate massive backwardness of this country.

Speaking on the “Minorities” he referred to recent Andhra Pradesh government ordinance providing the reservations for Muslims in the educational institutions, state and Public sector employment but it was struck down before the five judge bench and  the matter is before the supreme court ,now so it is not appropriate to make final judgement. He maintained the fact that it appears to him  unless you find the entire Muslim community in the state as backward, socially and economically you can not qualify for backward class for reservation under Article 15(4) & 16(4).

In the context of “Minorities’ he questioned who is a Minority in this country. There is a general feeling that Hindus are majority community but the fact is that they are in minority in different states. At national level we have “Central Minorities Act” which notified five major minority communities in India. He said if you go by religion everyone is in minority in this country. In this context he   mentioned about the plight of Kashmiri Pandits in Jammu & Kashmir, position of minorities in Pakistan and Iran. He questioned how many countries in the world have such rights which are guaranteed by the constitution and which were enforced by the law.

In the concluding part of his speech Mr. Rao hoped that the time has come when some body shall take the power. People of India should prevail over the government to have reclassification of the backward class altogether not on the basis of community or caste. He advised if we have census operation why can’t   there be backward classes taking family as unit . Once you do so, I know many  Hindu and Muslim will come in this categories which are not listed in the backward categories. Therefore salvation does not lie in ‘Reservation”. It is totally wrong route.

He advised that the foreign rulers divided us on the basis of Hindus and Muslims that suited them and divided the country. It in turn created some problems for the  Muslims who were loyal to India.

Mr. P.P Rao said we faced three tragedies, Partition of country which was result of “Divide and Rule Policy” of foreign rulers, second the “Demolition of Babri Masjid” which opened the wound of partition  and “Post Godhra Riots in Gujrat” was  the third tragedy in this country. He said in the light of these developments  mistrust has been created and everyone feels insecure which is not a good thing for Human Right in India. Every citizen in India should feel secure he should have as much rights in this country as much responsibilities. He cautioned that such feelings should not be developed into a political class who try to organize Rath Yatras, divide the country and whip up communal differences for political purposes.

He also referred to a Supreme Court case after the dismissal of BJP-ruled states after the demolition of Babri Masjid.In this case Mr. Rao argued in favour of dismissal of BJP ruled States. He pleaded before the court how a secular constitution permits promise made by one party, which says  “If we come to power we will use state power for  removing one religious site from here and construct some other sign of Religion”. This case was pleaded before Nine Judges Bench. He said all judges agreed with his argument Mr. Rao lauded the role of Bench terming it “Classic Exposition of secularism in the Judgement”. What they said was you can’t combine politics with religion.

Mr. Rao lamented what is prohibited is now practiced by some parties which is the bane of the country. He concluded his speech by saying that forgets that whether we are minority or majority in this country, remember we are citizens and our constitution speaks of unity and fraternity.

Mr. Justice Srikrishna while presiding over this session said there are three difficulties in my way. One, for the next 8 days, I am still a sitting judge so it is improper for me to debate on the issues which are still sub-judice. Two I am being called upon to take the podium after a very proficient oratory of Mr. Rao. I am no match for him. Three there is a constraint of time as I have an invitation from the Hon’ble chief Justice of the Supreme Court of India.

He said without going into the detail as indicated in the subject I will talk to you in general manner as human being to human being.

He said firstly every citizen has a private affair with his ‘Lord” which is a very personal matter between them. Secondly it is the inter-relation with him and the community members. Finally it is the most important duty which you owe to your nation that is utterly different. At this stage how you perceive yourself as citizen, an educated upright citizen. Hon’ble Justice advised that the better he discharges three roles, the better the citizen he or she should be. Unfortunately there is a difficulty in our country; we confuse each of these three roles as the result of these other roles get weakened and ultimately we fail in all the three roles. He hoped that the tragedies of Babri Masjid and Godhra should not be repeated again.

He underlined that everyone has a role to play in this context. He gave the example of five fingers of hand which are though unequal, strengthen our hand and ultimately our body. One can not cut bigger fingers into smaller size for the sake of equality’. Cutting and  tailoring do not work.

He supported Mr. Rao. What we have to do for the people who are backward? The only way is that they should be imparted education. So that they should become strong and self supporting. Justice Srikrishna described the story of Mahabharata by quoting some shaloka. Moral of the story says that we should unite against our common enemy.

In concluding part, he recited a shaloka advising that our heart  and mind  should think in unison which  is necessary for this country. The debates about majority or minority status are bogus things which  may be good for politics but not for the country, he concluded.

Prof. Sanghasen Singh, former secretary general of the Institute of Objective Studies proposed a vote of thanks.