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Dalit and Adivasi organisations last week went on protest against a Supreme Court ruling allowing sub-classification of Scheduled Castes and Scheduled Tribes for better percolation of reservations for the deprived among them, and keeping the SC/ST creamy layer out of the quota ambit.
The agitation was held despite the government assuring that the creamy layer part of the verdict will not be implemented. SC/ST reservation is such a hot potato that no one with any sense of political survival would want to go anywhere near disturbing it. The ruling BJP burnt its fingers in the run up to the general elections this year, as its loose cannon in Karnataka, Anantkumar Hegde, tried to justify the party's 400-paar pitch, saying it needed that many to change the Constitution to purge it of the distortions introduced by the Congress. Though the BJP promptly disowned his statement, the Opposition cited it as evidence of the ruling party's ulterior motive of doing away with the quota system. The result: Dalits moved away from the BJP in UP and the party lost its simple majority in the Lok Sabha.
Days after the court's verdict on August 1, Union minister Chirag Paswan said his Lok Janshakti Party (Ram Vilas) will file an appeal against the ruling. He pointed out that the Dalit quota was not just on account of social backwardness but due to the historic injustice of untouchability faced by the community, adding the verdict had failed to factor it in.
Fact check
But a quick fact check showed that the 6:1 judgment was very much alive to the scourge of untouchability. In fact, there were over 56 iterations of the word untouchability across the verdict, including in the footnotes. For example, paragraph 101 of the majority verdict authored by Chief Justice of India D Y Chandrachud says, "The castes which are included within the Other Backward Class suffer from a certain degree of comparable backwardness but the form of social backwardness amongst them may vary. As opposed to this position, the Scheduled Castes suffer from a common form of social backwardness through untouchability."
Sub-division
Sub-classification came into play after a landmark nine-judge bench ruling in the Indra Sawhney case in 1992. It ruled that the sub-division of the OBCs was valid under law but not applicable to SC/STs. It also allowed the exclusion of the creamy layer within OBCs from the ambit of reservation.
However, various states, including Punjab (50% quota for Balmikis and Mazhbi Sikhs in direct recruitment) and Andhra Pradesh, passed laws for sub-categorisation of SCs. In 2005, a five-judge bench in the E V Chinnaiah ruling held that the SCs cannot be sub-divided as they form a homogenous class. Fifteen years later, another five-judge bench found the need to revisit the Chinnaiah verdict and sent it to a higher bench. Chief Justice of India D Y Chandrachud constituted the seven-judge bench and began hearing the matter from February last.
The bench examined the interplay of Articles 14 (equality before law),16 (reservation in jobs), 338 (National Commission for the SCs) and 341 (powers of President to specify castes, races or tribes that will be classified as SCs) and concluded that the SCs do not satisfy the definition of a homogenous class.
"Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogeneous class. Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification," the majority ruling authored by Justice Chandrachud for himself and Justice Manoj Misra said.
Justices B R Gavai and Pankaj Mithal authored separate but concurring verdicts while justices Vikram Nath and S C Sharma in their separate rulings agreed with the positions of justices Chandrachud and Gavai. All of them said the Indra Sawhney verdict does not limit the application of sub-classification to the OBCs. Justice Bela Trivedi wrote the sole dissenting verdict.
Exclusion principle
While the CJI did not get into the creamy layer debate, the lone Dalit on the bench, Justice Gavai, dwelt at length on it and ruled that it should apply to SC/STs as well. He built his argument by citing a 1981 ruling of Justice V R Krishna Iyer in the Akhil Bharatiya Soshit Karamchari Sangh case, where the latter had observed that "A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict Harijan benefits to the Harijans among the Harijans and forbid the higher Harijans from robbing the lowlier brethren."
Justice Iyer went on to suggest that the administration could innovate to weed out the creamy layer among the SC/STs, but it shall not be imposed by the court.
Justice Chinnappa Reddy in the K C Vasanth Kumar case ruling in 1985 said, "a few members of those caste or social groups (SC/STs) may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of these members of the class who really deserve it."
In the M Nagaraj verdict in 2006, the court applied the principle of quantifiable data and creamy layer even for SC/STs. But the Jarnail Singh case verdict in 2021, held M Nagaraj's requirement of quantifiable data of backwardness of SC/STs as invalid. But it upheld the applicability of the creamy layer principle even to SC/STs taken in M Nagaraj. In doing so, Jarnail Singh was basically relying on the judgment of a seven-judge bench in N M Thomas case in 1975 that considered the question of affirmative action for SC/STs.
In N M Thomas, Justice Krishna Iyer observed that the state is entitled to take steps to weed out the socially, economically and educationally advanced sections of the SC/STs from the applicability of reservation.
Unequal treatment among unequals
"By judicial interpretation, the equality enshrined in the trinity of Articles 14 to 16 of the Constitution has been considered to be equal treatment among equals and unequal treatment among unequals. The question that will have to be posed is, whether equal treatment to unequals in the category of Scheduled Castes would advance the constitutional objective of equality or would thwart it? Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village?" Justice Gavai questioned.
Education and the other facilities that would be available to a child of a parent of the first category would be much higher, maybe the facilities for additional coaching would also be available; the atmosphere in the house far superior and conducive for educational upliftment. In comparison, the child of a parent of the second category would have the bare minimum in education and the facilities of coaching, etc., would be totally unavailable, the judge reasoned.
Disparities and social discrimination, which are highly prevalent in the rural areas, start diminishing when one travels to the urban and metropolitan areas, he observed. "I have no hesitation to hold that putting a child studying in St Paul's High School and St Stephen's College and a child studying in a small village in the backward and remote area of the country in the same bracket would obliviate the equality principle enshrined in the Constitution," Justice Gavai said.
He agreed that some SC/ST officers in high positions are doing their bit to pay back to society by providing coaching and other facilities to their less advantaged brethren. "However, putting the children of the parents from the Scheduled Castes and Scheduled Tribes who on account of benefit of reservation have reached a high position and ceased to be socially, economically and educationally backward, and the children of parents doing manual work in the villages in the same category would defeat the constitutional mandate," Justice Gavai argued.
But the parameters for exclusion from affirmative action of SC/STs may not be the same as that applicable to the OBCs. If a person through the SC/ST quota gets the position of a peon or a sweeper, he would continue to belong to a socially, economically and educationally backward class. But those who used reservation to reach the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action, he said.
"I am therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action. In my view, only this and this a lone can achieve the real equality as enshrined under the Constitution," Justice Gavai concluded.
Judge Mithal dwelt on the difference between the varna and the caste systems, adding reservation is a medium for upliftment of the downtrodden but its execution revives casteism. He went on to suggest that quota should be limited only for the first generation or one generation of a family.
