This article is authored by Akash Krishnan, from ICFAI Law School, Hyderabad. It discusses the scope of the term OBC and which class of citizens fall under its domain, the protections granted to the OBC’s by the Constitution and the role of the Backward Classes Commissions set up for the benefit of OBC’s.
Table of Contents
Introduction
All of us have heard about reservations being made for the Scheduled Castes (SC), the Scheduled Tribes (ST) and Other Backward Classes (OBC). The OBCs can be found amongst all religious groups like Hindus, Muslims, Christians, etc. The Constitution of India extends protection to all these three classes. Before moving into the constitutional protections and the Backward Classes Commissions, let us try and identify which class of citizens fall under the ambit of OBC’s.
Identification of OBC’s
The term OBC includes all classes of citizens who are socially and educationally backwards. The question that arises here is how does one determine whether a particular person is socially or educationally backwards and what is the criteria to be followed for such determination?
In Ashok Kumar Thakur vs. Union of India {(2008) 6 SCC 1}, the Supreme Court attempted to define the term OBC. The Court observed that different expressions have been used under different provisions of the Constitution to define OBC. For example, under Article 15 and Article 340, the term ‘socially’ and ‘educationally backward classes’ is used, under Article 16(4), the term ‘backward classes’ is used and under Article 46, the term ‘weaker sections of the society’ is used. In light of these observations, the Court came to a conclusion that in order to identify OBC’s, the principle of exclusion of creamy layer should be applied. A creamy layer can be defined as those classes of people within the OBC category who are no longer backward and are socially and economically at par with other forward classes of the country.
The next question that needs to be deliberated upon is whether a person belonging to OBC in one state can claim a similar status in another state i.e., whether OBC status remains uniform throughout the nation or does it vary from state to state. This question was answered by the Supreme Court in the case of Municipal Corporation of Delhi vs. Veena {(2001) 6 SCC 571} wherein the Court held that the OBC status of an individual shall vary from state to state and each state should prepare its own OBC list highlighting the number and details of all OBC citizens in the state. The reason given by the Court for this ratio was that each state suffers from different socio-economic barriers. The OBC status of an individual would therefore depend on the nature and extent of disadvantages and social handicaps suffered by the individual in that state. When the individual shifts from one state to another, there is a shift in the socio-economic barriers as well and thus, the status of the individual might also vary.
Another important aspect of the OBC status of an individual arises in the case of a woman marrying an individual who has an OBC status or a child adopted by such an individual. The question herein is whether the wife/adopted child automatically receives the OBC status. In Valsamma Paul vs. Cochin University {(1996) 3 SCC 545}, the Supreme Court held that there is no shift in status when a person from a forward class becomes part of a backward class family by way of marriage or adoption. This is because the status of OBC is given to an individual due to them being socially, culturally and educationally backwards. The primary objective of giving reservations to these people is that they should be on par with everyone else in the country. If such actions would be allowed, there may arise a situation where people would want to be married to or adopted by an individual having OBC status just for the sake of claiming the reservations available to them. In light of these arguments, the Court concluded that reservations cannot be claimed by a person of the forward class upon marriage to an individual in the backward class and any such claim would be in violation of the basic principles of the Constitution.
Constitutional protections granted to OBC’s
Under Article 15(4) of the Constitution, the State has the power to make special provisions for the advancement of any socially and educationally backward class i.e., the OBC. The term “special provision for advancement” includes several aspects like reservation of seats in educational institutions, financial assistance, scholarships, free housing etc. Under Article 16(4), the state is empowered to enact laws for the reservation of appointments or posts in favour of OBCs; it is of the belief that the OBCs are not adequately represented in the services of the State or the Central Government.
According to the Central Educational Institutions (Reservation in Admission) Act, 2007, the Central Government should reserve seats in Central Educational Institutions for the OBC’s. This Act also defines OBC’s under Section 2(g) as the class or classes of citizens who are socially and educationally backward as determined by the Central Government.
Exceptions
There are multiple cases wherein there are provisions regarding reservation for the members of SC or ST but there are no corresponding provisions for such reservations in the favour of OBCs. Some of these exceptions are enumerated below:
- Seats cannot be reserved in specified institutions of excellence, research institutions and institutions of national and strategic importance in light of Article 335 of the Constitution.
- Seats cannot be reserved for the OBC’s in Lok Sabha and the State Legislative Assemblies.
- No reservation in appointments to services and posts in connection with the affairs of the Centre and the States unless the exception laid down under Article 16(4) is satisfied.
However, there exists a constitutional limitation on the exercise of powers under Article 16(4) by the Government. In Indra Sawhney vs. Union of India (AIR 2000 SC 498), it was held that Article 16(4) should be read along with Article 335. OBC’s are also covered within the ambit of Article 335 even though it is not expressly stated under the Article. The limitation prescribed by the Court, in this case, was that if the appropriate authority believes that any reservation in the favour of OBCs will adversely affect the efficiency of the administration, the powers under Article 16(4) cannot be exercised by the Government.
Backward Classes Commission
Article 340 of the Constitution empowers the President to investigate the conditions of the backward classes. The 3 features of Article 340 have been enumerated below:
- The President has the power to appoint a Commission to investigate the conditions of the socially and educationally backward classes, the difficulties faced by them and give recommendations to resolve those difficulties and improve their conditions. The modus operandi of the Commission should be mentioned in the Order.
- The Commission should make a recommendation regarding the grants that have to be released by the Government for taking the recommended action.
- The Commission should submit its report to the President. The report should include a memorandum that explains the actions that the Government should take to improve the conditions of the backward classes. This memorandum should be laid down before each House of the Parliament.
The President has exercised his powers twice under this Article and appointed 2 Commissions in this regard. Let us now discuss the impact of these Commissions and how the Commissions helped to improve the lives of the minorities and backward classes.
First Backward Classes Commission
The First Backward Classes Commission was appointed by the President shortly after independence in 1953. The Chairman of this Commission was Mr. Kaka Kalelkar. The primary objective of this Commission was to establish a criterion that would be used to classify and define socially and educationally backward classes.
However, the Commission failed to meet its primary objective and the members were divided over the criterion that should be used to classify and define socially and educationally backward classes. The majority opinion was that the test for backwardness should be based on the caste-based social hierarchy of the individual. The majority opinion was not accepted by the Government and it termed the case system as the biggest barrier in the progress of the society and stated that establishing a caste-based system may lead to promote inequalities in the society.
The other issue in a caste-based classification is that not all individuals belonging to a particular caste may be educationally and economically backwards. There may be several individuals who will be well educated and economically stable even though they belong to a backward caste. There is a clear-cut case of the existence of a creamy layer within each caste. Also, the difference is economic and educational barriers vary across states and an individual from a particular caste may be backward in a particular state but not in another. What is important to note is that conditions differ from State to State and region to region.
Another criterion suggested by the Commission was using factors like lack of general educational advancement among the major sections of a caste, inadequate representation of the caste in a particular field of trade, commerce or industry etc to classify backward classes. The Government rejected these factors on the ground that the factors were very vague and given the population of India it would be difficult to apply these tests to all individuals as these factors keep changing with time. The Government after rejecting the solutions suggested by the Commission came to the conclusion that there was a need for further investigation into this matter to ascertain a proper classification.
In the absence of any proper classification, power was given under Articles 15 and 16 to each state to prepare a list of backward classes individuals in their respective states. This mechanism was surrounded by several errors as there was no guiding mechanism and it gave rise to a series of cases in this regard. Some of the relevant cases have been enlisted below:
| Name of the Case | Classification system | Ratio |
| Balaji vs. State of Mysore (AIR 1963 SC 649) | Caste-based system | Caste can be used to determine backwardness but it should not be the sole dominant factor in determining backwardness. Social backwardness should be looked into keeping in mind the poverty of the individual. |
| P. Rajendran vs. State of Madras (AIR 1968 SC 1012) | Caste-based system | The Court accepted a caste-based classification on the ground that the social and educational backwardness of the castes was based on their occupations. |
| P. Sagar vs. State of Andhra Pradesh (AIR 1968 SC 1379) | Caste-based system | The Court rejected the caste-based system as it was the sole dominant factor used for determining backwardness. |
| K.S. Jayasree v. State of Kerala (AIR 1976 SC 2381) | Economic-standard-based system | Poverty or economic standard is a relevant factor in determining backwardness. Neither caste nor poverty alone could be the sole or dominant test. |
Second Backward Classes Commission
The Second Backward Classes Commission was appointed by the President in 1979. The Chairman of this Commission was B.P. Mandal. This Commission is popularly known as Mandal Commission. The Commission was set up with the following objectives:
- Determine the criterion for defining the socially and educationally backward classes.
- Recommend steps for the advancement of the socially and educationally backward classes
- Recommend whether there should be reservations in appointments or posts in Central and State Governments in favour of backward classes.
The Commission in its report observed that reservation should be provided to backward classes and recommended a 27% reservation of backward classes in appointments or posts in Central and State Governments in favour of backward classes. This coupled with the existing SC and ST (22.56%) reservations took the whole reserved category to 50%.
When dealing with the issue of determining a classification system, the Commission came to the conclusion that the determining factor should be caste and it ignored all other economic tests. The Commission also failed to include those individuals who may be backward even though they belong to a forward caste.
Following this report, the Supreme Court had the opportunity to determine the validity of this classification in the case of K.C. Vasanth Kumar vs. State of Maharashtra (AIR 1985 SC 1495). The Court held with a majority that caste cannot be the sole determinant of backwardness, but that it is not an irrelevant test and can be taken into account along with other factors.
The latest position in this regard was laid down by the Court in two landmark judgements. In Indra Sawhney vs. Union of India I (AIR 1993 SC 477), the Supreme Court while examining a caste-based system held that once a caste satisfies the criteria of backwardness, it becomes a backward class but it shall not remain a backward class always and will have to satisfy the test of backwardness from time to time. In Indra Sawhney vs. Union of India II (AIR 2000 SC 498), the Supreme Court made critical observations regarding the creamy layers in backward castes and held that individuals falling under the creamy layer of a backward caste should be excluded.
Conclusion
The First Backward Classes Commission that was set up did not live up to its expectations and failed to provide a proper classification. The Second Backward Classes Commission on the other hand provided a controversial classification mechanism. Both these Commissions failed to establish a proper mechanism and it was finally up to the judiciary to provide a proper guiding mechanism and the same was established in the case of Indra Sawhney. Therefore, the conclusion that can be drawn regarding the classification at this point are the following:
- Once a caste satisfies the criteria of backwardness, it becomes a backward class but it shall not remain a backward class always and will have to satisfy the test of backwardness from time to time.
- Individuals falling under the creamy layer of a backward caste should be excluded.
References
- https://www.hindustantimes.com/analysis/how-mandal-changed-and-did-not-change-india/story-K9gS9hXivYSKuX5lMYHPPI.html
- http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1114
- https://www.thehindu.com/news/national/how-was-the-backward-classes-policy-restored/article36159057.ece
- https://www.thehindu.com/news/national/explained-the-supreme-court-ruling-on-identifying-backward-classes/article34516632.ec
- https://kscbc.kerala.gov.in/acts-rules/criteria-for-identifying-backward-classes/
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