Friday, June 18, 2010

Justice M. R. Jois on Caste-based Census



Caste based census injurious to national unity
By Justice  M. R. Jois  (Retd)

Organiser Weekly

MAHATMA Gandhi united the people of India under his leadership in the course of the struggle for freedom and greatly reduced the adverse effect of casteism, the principle of which has been incorporated as a basic structure of the Constitution vide Articles 15 and 16 of the Constitution, which prohibit any discrimination on the ground of caste, religion or sex. 

The founding fathers of the Constitution wanted to establish a casteless society after the commencement of the Constitution except in respect of Scheduled Castes. Therefore, caste identification in all Government records should have been given up. However, they considered that it was necessary to make special provisions on the basis of caste only in respect of Scheduled Castes who were regarded as untouchables and constituted the lowest strata of the society. 

In respect of other backward sections of the society other than Scheduled Caste, who were in need of some special provisions, the founding fathers permitted such special provision only in favour of backward classes which have to be identified on some rational basis and not only on the basis of caste. The classification of certain sections as belonging to backward class made solely on the basis of caste by Karnataka Government was struck down by the Supreme Court in the case of Balaji (AIR 1963 SC 649). 

It reads: "We have already noticed that the impugned order in the present case has categorized the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorized by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). [para-35] 

Prior to Independence, on the basis of inferiority or superiority of caste, there were two inhibitions namely, (1) re-food: persons claiming to belong to higher caste were not taking food in the house of those whom they considered as belonging to lower caste and (2) was about marriage irrespective of the caste whether higher or lower everyone wanted marriage between a boy and a girl belonging to the same caste, which was obviously on account of family occupations. 

But after six decades of Independence, there is total break-down of the caste system and there is neither prohibition for taking food in the house of any one and in the matter of marriage. Inter-caste marriages have become the order of the day. Thus, in the social field the caste barrier has disappeared. But it is very unfortunate that same caste basis is playing havoc in the matter of selection and election in every field and the caste has become the capital in electoral politics. 

It is for this reason, some persons are demanding caste based census with political motive without realising that it is sure to be ruinous to the integrity and unity of the nation. Those supporting this or not opposing it for electoral reasons, try to explain their untenable stand by saying that it is only enumeration and therefore there is no harm in doing so. But in my humble opinion, it is not so simple. It arouses caste consciousness which leads to undesirable results. 

Dr Ambedkar in his speech supporting the resolution for the adoption of the Constitution on 17-11-1949 has stated in the Constituent Assembly after referring to internecine quarrels which resulted in our slavery, stated thus:- 

"Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realisation of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain if the parties place creed above country, our Independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our Independence with the last drop of our blood". (The Framing of India's Constitution, B. Shiva Rao, Vol-IV, PP- 935-946 at 942-943) 

In the case of SR Bommai, Justice K Rama Swamy in his judgement has strongly condemned "Caste Pollution of Politics" on the basis that it is totally opposed to secularism which is one of the elements of the basic structure of the Constitution. 

The Supreme Court has also ruled consistently that caste can be used only for the limited purpose of identification of backward classes, but even in doing so creamy layer in each caste should be removed so that only really backward classes get the benefit. This means that mere caste cannot be the basis for identifying backward classes. As backwards exist in different castes and religions, list of backward class has to be prepared on any rational basis such as those who are at present carrying on hereditary occupations or any other non-hereditary occupations which are regarded as socially and educationally backward cutting across all castes and religions, which necessarily includes minorities also. This would not only satisfy the enabling provisions of the Constitution which enables the State to make special provisions in education and employment in favour of backward classes but also the mandate of the Constitution not to discriminate any citizen only on the basis of caste, religion etc., Such a step would also eliminate the untrue claims by many to backwardness by producing false caste certificates which is rampant. 

Surprisingly, after six decades of Independence, some individuals are putting pressure on the Government to make census on the basis of caste. This is the greatest misfortune of our country and still greater misfortune is even those opposed to it do not oppose on electoral grounds and the Government is in a dilemma. 

It is my sincere and humble opinion that inevitable result of caste based census is that it is sure to increase caste consciousness causing havoc to the feeling of fraternity among the people adversely affecting unity and integrity of the people. It is not only my individual opinion, but I have also ascertained from several right thinking people that it is so. We cannot imagine to what extent it leads to disintegration of the people. But this much is certain. Mahatma Gandhi started Quit India Movement in 1942 and I am afraid that such caste based census is sure to lead to Split India Movement. 

If for any reason the Central Government were to yield to those who are demanding caste based census and orders to do so, then all those who are working for unity of Hindu society and casteless society should decline to give their caste or sub-caste to the census enumerators.



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