By an Order made by the President of India, in the year 1979, under Article 340 of the Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were: “The terms of reference of the Commission were:–
(i) to determine the criteria for defining the socially and educationally backward classes; (ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizen so identified; (iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and (iv) (to) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.” The Commission was empowered to :–
“(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the Central Government, the State Government, the Unioin Territory Administrations and such other authorities, organisations or individuals as may, in the opinion of the Commission, be of assistance to them; and (b) hold their sittings or the sittings qf such sub-committees as they may appoint from amongst their own members at such times and such places as may be determined by, or under the authority of the Chairman.”
The report of the Commission was required to be submitted not later than 31st December, 1979, which date was later extended up to December 31, 1980. It was so submitted. Chapter I of the Report deals with the Constitution of First Backward Classes Commission (Kaka Kalelkar Commission), its report, the letter of Kaka Kalelkar to the President, the lack of follow-up action and the letter of the Central Government referred to hereinbefore to State Governments to draw up their own lists. It also points out certain “internal contradictions” in the Report. Chapter II deals with the “Status of other backward classes in some States”. It sets out the several provisions relating to reservation in favour of O.B.Cs. obtaining in several States and the history of such reservations. Chapter III is entitled ‘methodology and data base’.
It sets out the procedure followed by the Commission and the material gathered by them. Paras 3.1 and 3.2 read thus: “3.1. One important reason as to why the Central Government could not accept the recommendations of Kaka Kalelkar Commission was that it had not worked out objective tests and criteria for the proper classification of socially and educationally backward classes. In several petitions filed against reservation orders issued by some State Governments, the Supreme Court and various High Courts have also emphasised the imperative need for an empirical approach to the defining of socially and educationally backwardness or identification of Other Backward Classes. 3.2. The Commission has constantly kept the above requirements in view in planning the scope of its activities. It was to serve this very purpose that the Commission made special efforts to associate the leading Sociologists, Research Organisations and Specialised Agencies of the country with every important facet of its activity. Instead of relying on one or two established techniques of enquiry, we tried to cast our net far and wide so as to collect facts and get feed-back from as large an area as possible. A brief account of this activity is given below.”
It then refers to the Seminar held by Department of Anthropology of Delhi University in March 1979, to the questionnaire issued to all departments of Central Government and to the State Governments (the pro formas are compiled in Vol. II of the Report) the country-wide touring undertaken by the Commission, the evidence recorded by it, the socio-educational field survey conducted by it and other studies and Reports involved in its work. In Chapter IV the Commission deals with the inter-relationship between social backwardness and caste. It describes how the fourth caste, Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them. In para 4.5 the Commission states: “The real triumph of the caste system lies not in up-holding the supremacy of the Brahmin, but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as apart of the natural order, of things…..
It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers.” Chapter V deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste; it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution. The-concluding part in this Chapter, para 5.17, reads: “The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society. The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.”
Chapter VI deals with Social Justice, Merit and Privilege’. It attempts to establish, that merit in a elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. This is sought to be illustrated by giving an example of two boys Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from afairly well-off middle class and educated family, attends one of the good public schools in the city, has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can, never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.
Chapter VII deals with ‘Social justice, Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M. R. Balaji v. State of Mysore MANU/SC/0080/1962 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C. A. Rajendran v. Union of India MANU/SC/0358/1967, State of Andhra Pradesh v. P. Sagar MANU/SC/0028/1968 and State of Andhra Pradesh v. U. S. K Balram MANU/SC/0061/1972 etc. show a marked shift from the original position taken in Balaji or several important points. In particular, it refers to the observations in Rajendran to the effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward class of citizens within the meaning of Article 15(4)”.
It refers to the statement in A. Peeriakarup-pan v. State of Tamil Nadu MANU/SC/0055/1970 to the effect that “a caste has always been recognised as a class.” It also commends the dissenting view of Subba Rao J. in T. Devadasan v. Union of India MANU/SC/0270/1963 (wrongly referred to as Rangachari) –[General Manager, Southern Railway v. Rangachari MANU/SC/0388/1961]. Chapter VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States. Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words:– “In view of the foregoing account, the’ reasons for much stronger reaction in the North than South to reservations, etc. for other Backward Classes may be summarised as below:– (1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner.
In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement. (2) In the south “the forward communities have been divided either by the classification schemes or politically or both…… In Bihar and U. P. the G.Os. have not divided the forward castes.” (3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild, In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North. (4) In the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins- constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage , between the forward castes and together they : constituted nearly 20 per cent of the population. In view of this the higher castes in U. P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far. (6) The traditions of semifeudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward ; classes movement. This is not so in the South. (7) “The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to be growing. It can shelter many Toward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U. P. are stagnant. The forward Caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently.”
16. Chapter IX sets out the evidence tendered by Central and State Governments while Chapter X deals with the evidence tendered by the Public. Chapter XI is quite important inasmuch as it deals with the “Socio-Educational Field Survey and Criteria of Backwardness”. In this Chapter, the Commission says that it decided to tap number of sources for the collection of data, keeping in mind the cirticism against the Kaka Kalelkar Commission as also the several judgments of this Court. It says that Socio-Educational Field Survey was the most comprehensive inquiry made by the Commission in this behalf. Right from the beginning, this Survey was designed with the help of top social scientists and specialists in the country. Experts from a number of disciplines were associated with different phases of its progress. It refers to the work of Research Planning Team of Sociologists and the work done by a panel of experts led by Prof. M. N. Srinivas.
It refers to the fact that both of them concurred that “in the Indian context such collectivities can be castes or other hereditary groups traditionally associated with specific occupations which are considered to be low and impure and with which educational backwardness and low income are found to be associated.” The Commission says further that with a view to providing continuous guidance at the operational level, a Technical Advisory Committee was set up under Dr. K. C. Seal, Director General Central Statistical Organisation with the Chief Executive, National Sample Survey Organisation and representatives of Directors of State Bureaux of Economics and Statistics as Members. The Commission sets out the Methodology evolved by the Experts panel and states that survey operations were entrusted to the State Statistical Organisations of the concerned States/ Union Territories.
It refers to the training imparted to the survey staff and to the fact that the entire data so collected was fed into a computer for electronic processing of such, data. Out of the 406 districts in the country, the survey covered 405 districts. In every district, two villages and one urban block was selected and in each of these villages, and urban blocks, every single household was surveyed. The entire data collected was tabulated with the aid of National Inforrnatic Centre of Electronics Commission of India. The Technical Committee constituted a Sub- Committee of Experts to help the Commission prepare “Indicators of Backwardsness” for analysing the data contained in the com puterised tables. In para 11.23 (page 52) the Commission sets out the eleven Indicators/ Criteria evolved by it for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full:–
As a result of the above exercise, the Commission evolved eleven ‘Indicators’ or ‘criteria’ for determining social and educational backwardness. These 11 Indicators’ were grouped under three broad heads, i.e., Social, Educational and Economic. They are:– A. Social
(i) Castes/Classes considered as socially backward by others. (ii) Castes/ Classes which mainly depend on manual labour for their livelihood. (iii) Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% mates do so in urban areas. (iv) Castes/Classes where participation of females in work is at least 25% above the State average. B. Educational
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average. (vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average. (vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average. C. Economic
(viii) Castes/ Classes where the average value of family assets is at least 25% below the State average. (ix) Castes/Classes where the number of fantilie’s living in kucha houses is at least 25% above the State average. (x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households. (xi)Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average. 11.24 As the above three groups are not of equal importance for our purpose, separate weightage was given to ‘Indicators’ in each group. All the Social ‘Indicators’ were given a weightage of 3 points each. Educational ‘Indicators’ a weightage of 2 points each and Economic ‘Indicators’ a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness.
This also helped to highlight the fact that socially and educationally backward classes are economically backward also. 11.25 It will be seen that from the values given to each Indicator, the total score adds up to 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 per cent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as ‘advanced’. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference. It will also be useful to set out ‘the observations of the Commission in para 11.27:– “11.27
In the end it may be emphasised that this survey has no pretentions to being a piece of academic research. It has been conducted by the administrative machinery of the Government and used as a rough and ready tool for evolving a set of simple criteria for identifying social and educational backwardness. Throughout this survey our approach has been conditioned by practical considerations, realities of field conditions, constraints of resources and trained manpower and paucity of time. All these factors obviously militate against the requirements of, a technically sophisticated and academically satisfying operation.”
Chapter XII deals with ‘Identification of OBCs’. In the first instance, the Commission deals with OBCs among Hindu Communities. It says that it applied several tests for determining the SEBCs like stigmas :of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads:– “Thus, the Commission has adopted a multiple approach for the preparation of comprehensive lists of other Backward Classes for all the States and Union Territories. The main sources examined for the preparation of these lists are:– (i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes); (iii) personal knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this Report; and (iv) Lists of OBCs notified by various State Governments.”
The Commission next deals with OBCs among Non-Hindu Communities. In paragraphs 12.11 to 12.16 the Commission refers to the fact that even among Christian, Muslim and Sikh religions, which do not recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of thought to several difficulties in the way of identifying OBCs among Non-Hindus, the Commission says, it has evolved a rough and ready criteria viz., (1) all untouchables converted to any non-Hindu religion and (2) such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counter-parts have been included in the list of Hindu OBCs — ought to be treated as SEBCs. The Commission then sought to work out the estimated population of the OBCs in the country and arrived at the figure of 52 per cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy:
“Systematic castewise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of castewise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes, communities and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country. 12.22 From the foregoing it will be seen that excluding Scheduled Castes and Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian population.
Volumes 2 to 9 of the Report contain and set out the material and the data on the basis of which the Commission made its recommendations. Volume II contains the State-wise lists of Backward Classes, as identified by the Commission. (It may be remembered that both the Scheduled Castes order and Scheduled Tribes order notified by the President contain State-wise lists of Scheduled Castes and Scheduled Tribes). Volume II inter alia contains the questionnaire issued to the State Government/Union Territories, the questionnaire issued to the Central Government Ministries/Departments, the questionnaire issued to the general public, the list of M.Ps. and other experts who appeared and gave evidence before the Commission, the criteria furnished to Central Government Offices for identifying OBC employees for both Hindu and Non-Hindu Communities, report of the Research Planning Team of the Sociologists and the pro formas employed in conducting the Socio-Education Survey.
The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions — once in 1982 and again in the year 1983. The proceedings of the Lok Sabha placed before us contain the statement of Sri R. Venkata-raman, the then Minister for Defence and Home Affairs. He expressed the view that “the debate has cut across party lines and a number of people on this side have supported the recommendations of the Mandal Commission. A large number of people on the other side have also supported it. If one goes through the entire debate one will be impressed with a fairly unanimous desire on the part of all sections of the House to find a satisfactory solution to this social evil of backwardness of Scheduled Castes/ Scheduled Tribes etc. which is a festering sore in our body politic.”
The Hon’ble Minister then proceeded to state, “the Members generally said that the recommendations should be accepted. Some Members said that it should be accepted in toto. Some Members have said that it should be accepted with certain reservations. Some Members said, there should he other criteria than only social and educational backwardness. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a salisfactory definition of backward classes and bring about an acceptance of the same by all the State concerned.”
The Hon’ble Minister referred to certain difficulties the Government was facing in implementing the recommendations of the Commission on account of the large number of castes identified and on account of the variance in the State lists and the Mandal Commission lists and stated that consultation with various departments and State Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly I take decision in the matter. The Report was again discussed in the year 1983. The then Hon’ble Minister for Home Sri P. C. Sethi, while replying So the debate stated: “While referring to the Commission whose report has been discussed today, I would like to remind the House that although this Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations.”
The Office Memorandum(First OM)
Dated 13th August, 1990:
21. No action was, however, taken on the basis of the Mandal Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime Minister Sri V. P. Singh made a statement in the Parliament in which he stated inter alia as follows: “After all, if you take the strength of the whole of the Government employees as a proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a fraction of it will resolve the economic problems of the whole section of 52%. No. We consciously want to give them a position in the decision-making of the country, a share in the power structure. We talk about merit. What is the merit of the system itself? That the section which has 52% of the population gets 12.55% in Government employment. What is the merit of the system?
That in Class I employees of the Government it gels only 4.69%, for 52% of the population in decision-making at the top echelons it is not even one-tenth of the population of the country; in the power structure it hardly 4.69%. I want to challenge first the merit of the system itself before we come and question on the merit, whether on merit to reject this individual or that. And we want to change the structure basically, consciously, with open eyes. And I know when changing the structure comes, there will be resistance…… What I want to convey is that treating unequals as equals is the greatest injustice. And, correction of this injustice is very important and that is what I Want to convey. Here, the National Front Government’s commitment for not only change of Government, but also change of the social order, is something of great significance to all of us; it is a matter of great significance. Merely making programmes of economic benefit to various sections of the society will not do……
There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor….. Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being……. A point was made by Mahajanji that if there are different lists in different States how will the Union List harmonise? It is so today in the case of the Scheduled Castes and the Scheduled Tribes. That has not caused a problem. On the same pattern, this will be there and there will be no problem.” 22. The Office Memorandum dated 13th August, 1990 reads as follows:
In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The Second Backward Classes Commission called the Mandal Commission was established by the then Government with this purpose in view, which submitted its report to the Government of India on 31-12-1980. 2. Government have carefully considered the report and the recommendations of the Commission in the present context regarding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and arc of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows: — (i)27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC. (ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment.
Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately. (iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%. (iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments’ lists, A list of such castes/communities is being issued separately. (v) The aforesaid reservation shall take effect from 7-8-1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders. 3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance respectively. Sd/-
(Smt. Krishna Singh)
Joint Secretary to the Govt. of India”
Soon after the issuance of the said Memorandum there was wide-spread protest in certain Northern States against it. There occurred serious disturbance to law and order involving damage to private and public property. Some young people lost their lives by self-immolation. Writ petitions were filed in this Court questioning the said Memorandum along with applications for staying the operation of the Memorandum. It was stayed by this court.
24. After the change of the Government at the Centre following the general election held in the first half of 1991, another Office Memorandum was issued on 25th September, 1991 modifying the earlier Memorandum dated 13th August, 1990. The later Memorandum reads as follows:
The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation, Government have decided to amend the said Memorandum with immediate effect as follows: — (i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs.
In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by fhe other SEBC candidates. (ji) 10% of the vacancies In civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation. (iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately. The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above. Sd/-
(A. K. HARIT)
Dy. Secretary to the Government of India”
Till now, the Central Government has not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well. Let us notice at this stage what do the two memorandums say, read together. The first provision made is: 27% of vacancies to be filled up by direct recruitment in civil posts and services under the Government of India are reserved for backward classes. Among the members of the backward classes preference has to be given to candidates belonging to the poorer sections. Only in case, sufficient number of such candidates are not available, will the unfilled vacancies be filled by other backward class candidates.
The second provision made is: backward class candidates recruited on the basts of merit in open competition along with general candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly it is provided that backward classes “shall mean those castes and communities which are common to the list in the report of the Mandal Commission and the respective State Government’s list. It may be remembered that Mandal Commission has prepared the list of backward classes State-wise, lastly, it is provided that 10% of the vacancies shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservations. As stated above, the criteria for determining the poorer sections among the backward classes or for determining the other economically backward sections among the non-reserved category has so far not been evolved. Though the first Memorandum stated that the orders made therein shall take effect from 7-8-1990, they were not in fact acted upon on account of the orders made by this Court.