When court accepted that the Caste based Reservations violate Fundamental Rights

Last week I wrote an article : The one difference between the Congress of today and that of before 2014, which basically sheds light on the fact that Indian National Congress was using government powers to win elections. I quoted a handful of instances from a handful of books corroborating the statement. However, these instances were out of the blue, I wasn’t explicitly looking for them. What if I explicitly look for such instances?

This is exactly, what I did this week; look for the instances where power was abused to win the elections. Where do I start was the first question. At first I started with the recent acts that the BJP government brought like abrogation of 370 or triple talaq, or CAA or UAPA, and go backwards, so as to find who did what and in what conditions. But this wasn’t a good idea, there were a lot of changes and dependencies. In just a few hours the list of “to read” for me exploded.

Then I realized instead of going from 2020 to 1950 (i.e. the year constitution came in effect in independent India for the first time), I should start from 1950 and reach where we are today. And it worked, it just opened the Pandora box of these instances. It was way easy for me to gather information, understand and explain it to my readers. It took me a lot of time to just understand the legal jargon, the various articles involved and supreme court judgments. I will try to explain in layman’s term. Hopefully its easy that ways.

Let’s begin.

We all know British used the principle of divide and rule. How did they do it? I have picked the following from the book “Introduction to Indian Constitution” by Durga Das. They did it using their legal acts, laws and reforms. In the year 1909, the British came up with Morley Minto reforms and the Indian Councils Act. This act for the first time introduced the concept of separate representation of Muslims. This gave wings to the Muslim League which later asked for the state of Pakistan. In the year 1932-33 the then British Prime Minister Mr. Ramsay MacDonald came up with the “Communal Award“; it made provisions for separate electorates for not only Muslims, but also for Sikhs, Indian Christians, Anglo-Indians, Europeans and the Dalits. This is how they planned to continue their rule, divide the population on some or the other issue.

To their disappointment, World War II happened and British came on the verge of getting bankrupt. I will not go into “who got our independence here“, that’s another debate. We somehow managed our independence from British. I mentioned it here because, after independence, the constitution was not written from scratch, there were a lot of acts taken from the pre-independence constitution, for instance the Sati-Pratha or Child Marriage etc were kept. Some parts were modified, for instance, Mahatma Gandhi and Dr. BR Ambedkar decided that we will not go with the separate electorate as in the communal award, we will have single electorate but with certain reservations for the economically and socially weak classes to avoid discrimination against them. Just to clarify this is not the reservation we see today in terms of admission (27% OBC, 15% SC and 7.5% ST).

Then came 1950 the newly formed constitution came into effect from January 26, 1950. As soon as it came into effect, a lady named Smt. Champkam Dorarirajan filed a case against the state of Madras for violation of her fundamental rights. The case is known as The State Of Madras vs Srimathi Champakam.

The state of Madras had passed a general order regarding reservations in admissions.

The government reserved seats for various communities as shown on the right. These are the number of seats per 14 seats. She claimed that her fundamental rights under article 15 (1), which is “discrimination on the basis of religion, race, caste, sex, place of birth or any of them” and article 29(2) which is, “denying admission into an educational institution on grounds of religion, race, caste, language or any of them” are violated.

During the same time another gentleman, a Brahmin by caste, S. Srinivasan also filed a case saying that, “just because he is a Brahmin, he is not allowed the seat even though he scored more marks than all other non-brahmins“. From the example above, two other brahmins scored more than him so the quota was used by them and the rest 12 seats out of 14 were not made available to him because he was Brahmin. This is pretty much the same principle on which the reservation works now except that the quotas are different.

What did the Supreme Court say? To my surprise, the court accepted that the state was indeed violating the fundamental rights of the people by imposing such laws. An excerpt of the verdict: “He cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. For the reasons stated above, we are of opinion that the Communal G.O. being inconsistent with the provisions of article 29 (2) in Part III of the Constitution is void under article 13. 

So no matter what anybody says on any TV debate, the reservation policy does breach the fundamental rights of not only the upper castes but the reserved castes as well. How? have a look here Caste based reservation violates fundamental rights of even the reserved castes!, but first the more pressing issue is that if the supreme court of India gave a verdict then how is the reservation still considered constitutional?

Here comes our beloved Chacha Nehru. By 1951 Mahatma Gandhi (he was the one who supported cow slaughter prohibiting act and got article 48 in place) had died, Sardar Patel had died and Dr. BR. Ambedkar resigned as the law minister as he was annoyed with the dominance of Nehru. There was no leader with the same stature to counter Pt. Nehru. Even today, do you see anybody in Indian National Congress winning any argument with Rahul Gandhi? And this is the case when Rahul Gandhi has lost more number of elections than any other leader. Imagine the kind of power Pt. Nehru wielded in 1951. There was big opposition parties, may be that’s why Gandhi Ji wanted Congress to be disbanded after independence. In each of the state there was Congress rule. And so, ‘apunich hi bhagwan hai’ Pt. Nehru just went ahead and amended the constitution; brought the 1st constitution amendment. It was literally a cake walk for him, no body to oppose. Constitution amendments come in part 20 article 368. There are a lot of interesting stories related to this that I will be sharing soon. How Pt. Nehru and Indira Gandhi exploited this feature.

So what did he change by the 1st amendment ?

Although there were half a dozen additions like putting restrictions on freedom of speech and expression, article 19(1)(a) or freedom of trade article 19(1)(g) or certain land reform acts playing a Robinhood Pandey als Chulbul Pandey i.e. taking away the wealth of the rich and well in his case forgetting to give it to the poor(I will come up with another story on this one, it is interesting and goes past Indira Gandhi). But for this post the most important was adding a clause (4) in the article 15. Which reverted the Supreme Court judgement (Champakam case) and also made sure that the court will never interfere in any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens.

So, technically, if tomorrow Rahul Gandhi wins an election and comes up with a constitutional amendment that says “In accordance to Article XX (what could be the value of xx? put it in the comment section) as a Directive Principle of State Policy the government of India or any particular state makes it mandatory for Hindus or lets say upper caste Hindus or Brahmins to pay a mandatory jizya tax for the upliftment of economically and socially backward classes in India”, even though this would be outright discrimination on the bases of caste, but you will lose the case, the Supreme Court would simply say “we can’t interfere in this case”.

Now, you might say, why would he do so? What is in for him? Pt. Nehru very aptly explained this in his book “The discovery of India”. For now, I will mention the three important premises mentioned by him. You could read the entire book, but you can find these three premises in the first 70-75 pages of the book. They are

  1. He is a vote getter, his own words not mine.
  2. He dislikes middle class because they ask a lot of questions and it is difficult to convince them. However, on the other hand, the rural people and who are not well off economically are easy to convince. His words “their eyes light up, they welcome me with a lot of fanfare”
  3. This is the most important premise. Pt. Nehru explains Indian population distribution in a brilliant way. According to him Indian population can be represented in the form of a pyramid. Where the number of people on the top of the pyramid is small , they are rich and intellectually more sound. And as we move down the pyramid, the number of people increases but their economic/social/intellectual well being decreases. According to him Brahmins sit on the top of the pyramids.

So, if winning an election is your priority, what do you do? Do you do the right thing or do you make sure that the base of the pyramid is not upset with you and stays with you? Now, correlate this to the first amendment; he amended the constitution to win support for a larger number of voters sitting at the base by violating the fundamental rights of small number of people on the top of the pyramid. Simple but clever electoral politics.

I am in full support of reservations to uplift the backward classes. Every body deserves a chance to make the best of his/her life. The constitution before the first amendment specifically mentioned reservations in the government employment but not in education, and this makes a lot of sense. The state was supposed to find ways within the constitutional limits to uplift and there are many. Its just that they aren’t as easy as giving reservation as a freebie. The governments have been running away from the issues of the socially and economically backwards in the shadow of reservation.

Nehru’s style of reservation does not uplift any community, it only uplifted him and the other politicians who rely on caste based politics. Pt. Jawaharlal Nehru indeed was the pioneer of the art of using Caste based reservations as a tool to win elections.

If his reservation policy was working then

  1. Why is the number of classes in reservation category increasing rather than decreasing? 2399 backward castes in 1955 to more than 5013 in 2006? Read more for details: When or How does a child become “caste-literate”?
  2. And more importantly, how many students from any backward caste have reached supreme court in last 70 years claiming he/she did not get a seat even though he/she scored more marks than all the OBC candidates or SC/ST candidates? Exactly like S. Srinivasan did in 1950. Please have a look at the example proving this case: Caste based reservation violates fundamental rights of even reserved castes!

If this reservation system remains as is, even after 170 years, the case would still be the same.

Exact same thing goes with land reform acts, the constitution before the first amendment clearly stated that if the state takes up the land from rich, he has to be adequately compensated. The first amendment added clauses 31(A) and 31 (B) brushing courts aside (No Judicial Review). I will come up with a complete story about the cases but not here, it is already reaching two thousand words. I don’t want to make it too long.

Is it not surprising that USA has less than 30 amendments in around 300 years of its independence even when it was the first written constitution, and India on the other hand has more than a 100 amendments in less than a 100 years of independence? The surprising part is that when Indian constitution was being drafted the constituent assembly referred to around 60 constitutions from various countries including the ones from the UK and the USA. Was Pt. Jawaharlal Nehru in his individual capacity smarter than the entire Constituent Assembly that drafted Indian Constitution put together? Constituent assembly that included legendary leaders like Sardar Patel, Dr. BR Ambedkar, Dr. Rajendra Prasad? I don’t think so.

Please let me know your questions, queries or observations via comments. And if you do find merit in the article please do share it, your sharing would be a motivation for me to come up with the other stories that I have found. So far, only four of my articles (Demonetization, Rafale deal, World Cup 2019 and Covid-19 scam) have reached one million mark. I know this could be the fifth one, I hope it becomes the quickest to reach that mark. Appreciate your support.

Thanks for reading!! Please stay tuned for my next story where Pt. Nehru and Indira Gandhi amended the constitution for their benefit.

#CongressOccupationInIndia

2 thoughts on “When court accepted that the Caste based Reservations violate Fundamental Rights

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