Dr. Bhushan Amol Darkase
Background: [1]
In 1975, the Punjab government issued a notification sub-classifying 25% of Scheduled Caste (SC) reservations into two categories, reserving half of these seats for Balmikis and Mazhabi Sikhs. This notification remained in force for nearly 31 years until it faced legal hurdles in 2004. In 2004, the Supreme Court’s five-judge bench decision in E.V. Chinnaiah v. State of Andhra Pradesh dismissed a similar law of sub-classification of Scheduled Castes in Andhra Pradesh, emphasizing that it violated the right to equality and that the SC list should be treated as a single, homogeneous group. State governments cannot categorize any group of people as Scheduled Castes; this power belongs solely to the President as per Article 341. This decision influenced the Punjab and Haryana High Court’s ruling in Dr. Kishan Pal v. State of Punjab in 2006, which struck down the Punjab notification of sub-classification of reservation.
In 2006, the Punjab government attempted to reintroduce sub-categorization by adding the word ‘first preference’ in the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act. Still, Section 4(5) of the Act was struck down by the Punjab and Haryana HC in 2010, referring to the Supreme Court’s decision in Chinnaiah. The matter was appealed to the Supreme Court, which referred it to a five-judge constitution bench in 2014, questioning the correctness of the Chinnaiah decision (that SCs represent homogenous groups and the state cannot do sub-classification as it violates Article 341, which says that only the President can do such a process).
In 2020, the Constitution bench acknowledged the existence of ‘unequal’ status within the SC list. It recommended the concept of a ‘creamy layer’ for the SC and ST categories. It also noted that sub-classification was permitted within the SEBC category. Thus, sub-classification should be extended to SCs and STs. However, the bench found itself incompetent in revisiting the Chinnaiah decision. It referred the matter to a seven-judge bench in August 2020. As of February 6, 2024, a seven-judge bench, led by Chief Justice D. Y. Chandrachud, has reserved judgment on two primary questions: whether sub-classification can be permitted for SC and ST categories similar to the SEBC category, and whether state legislatures are competent to introduce such sub-classification within the SC and ST categories.
Important issues discussed:
1) Is sub-classification within the reserved categories ‘necessary’?
2) Is Scheduled Caste a homogeneous category?
3) Are states competent to create subclassifications within reserved categories?
Over the three days from February 6, 2024, a seven-judge bench, led by Chief Justice D. Y. Chandrachud, heard arguments over the correctness of the E. V. Chinnaiah verdict (2004) that upheld the homogeneity of SCs and STs.
During this Supreme Court hearing, something unusual happened: governments at both the union and state levels, including parties like AAP, BJP, Congress, DMK, and YSR Congress, usually with different ideologies, agreed on the concept of sub-classifications within reserved categories. During this rare moment of unity across ideologies, two and a half days of the three-day session were dedicated to parties advocating for sub-categorization. There was little opposition to their numerous inaccurate interpretations of how SCs are defined. [2]
What’s crucial is to address two main questions that frequently arise in Supreme Court discussions, each based on particular assumptions. The two assumptions are:
1) Economically better off individuals from Scheduled Castes (SCs) monopolize reservation benefits.
2) Specific castes within the Scheduled Castes (SCs) group disproportionately benefit from reservation.
So, first, there isn’t any substantive evidence that only economically better aspirants from Scheduled Castes benefit from reservations. The assumption that weaker sections benefit less from reservation in employment is not based on facts but a myth created by reservation critics.
Sukhadeo Thorat’s [3] study examined whether reservation policies benefited economically weak individuals among the Scheduled Castes (SCs). They used three parameters to assess this:
- Percentage of SC employees in Grades D and C (as most of these employees would have an economically weak background): Regarding central government public sector jobs, in 2011, 81% of SC employees were in lower-grade government jobs, indicating significant reservation usage by economically weaker sections.
- Education level of SC government employees (study assumes that those educated up to the higher secondary would fall in the category of the weaker sections among the SCs): About three-fifths of SC reservation beneficiaries had education levels below secondary and higher secondary, indicating they were likely from economically weaker backgrounds. (NSS employment data for 2011–12)
- Share of SC government employees in rural areas with landownership background: In 2011–12, around 80% of SC rural employees benefiting from reservation either had no land or owned less than 1.23 acres, showing their economic vulnerability.
Thorat’s study concluded that economically weak SC individuals have indeed benefited significantly from employment reservation. This suggests that reservation policies have been pro-poor, contrary to the myth perpetuated by critics.
As far as the second argument is concerned, that specific castes within the Scheduled Castes (SCs) group are disproportionately benefiting from the reservation, rather than relying solely on isolated commission reports (Lokur Commission, Justice Ramachandra Raju Commission, 1997, etc.) to justify the sub-classification of Scheduled Castes (SCs), why not consider releasing the caste data in the Socio-Economic Caste Census report of 2011? What is questionable is the judiciary’s reluctance to compel the government to publish the caste data from the 2011 Socio-Economic Caste Census report. Because the sub-categorization exercise should be based on a detailed analysis of the caste distribution among gazetted and non-gazetted positions, not only in comparison to other SCs but also to non-reserved categories, only then can we understand the predominant position of certain castes within general category seats.
So, is it possible to apply the same logic to the general seats (a euphemism for the upper caste quota)? Only certain specific castes from the general category are grabbing these general seats. Suppose the logic holds that only certain castes within Scheduled Castes benefit from reservation. In that case, it’s highly likely that certain castes within the general category, based on their history of accumulating social, cultural, and economic capital over decades, are securing all the general category seats. They cannot hide behind the pretext of meritocracy.
However, this logic will seem absurd to certain upper castes, who predominantly secure most of the seats. Because reservations came about because a few, particular castes were hogging all the opportunities, and those few, particular castes still continue to hog most of the general category seats. [4]
In the words of Naren Bedide (Kuffir), one of the founder editors of Round Table India, “After all, it’s not only the reserved category that is not cursed with the impurity of caste. The general category seats are also monopolized by a few specific castes. The construction of ‘general category’ is based on how it has been monopolized by a few castes for the last couple of centuries, ever since the British first admitted them into their institutions by reserving some seats for them because they were too unmeritorious to get in otherwise.” [4]
Why not appoint a commission to investigate whether certain castes within the general category are securing all the seats and are overly represented? Why are only Scheduled Castes subject to such scrutiny? After all, the argument is about breaking the monopoly of certain castes. And if it is about breaking the monopoly of certain castes, then why not start in your own house? When it comes to the judiciary, it is God’s own divine secret: What is its composition? We see that the lower judiciary has 30% representation or so of the SC/ST/OBCs. We don’t know about the Supreme Court and High Courts; they need not pay any attention to your RTIs or any other appeals. They don’t have to answer anyone, any citizen. They are outside the realm of accountability. [5]
According to a response in the Rajya Sabha by Jitendra Singh, the Minister of State for Personnel, Public Grievances, and Pensions, on December 3, 2015, out of 70 secretaries in the government, SCs and STs accounted for three each, while there were no OBCs. [2] The upper castes continue to monopolize the top echelons of the bureaucracy. But it will be interesting to know which castes among the upper castes dominate in grabbing these top bureaucratic seats.
The other critical discussion in the Supreme Court is the reassessment of the decision that emphasizes that the Scheduled Caste list should be treated as a single, homogeneous group in the E.V. Chinnaiah v. State of Andhra Pradesh (2004) case. Chief Justice Chandrachud said that the Scheduled Castes cannot be viewed as a single caste. “What the Constitution does is that it deems certain castes as SCs and thus some are put in an artificial mould,” he said. “The Constitution did not create another caste as it would be contrary to the sociological profile. Deeming is not for any other reason but for them to become a Scheduled Caste.”
Chief Justice Chandrachud said that the only thing common between sub-groups that may be categorized as Scheduled Castes is that they all have faced social discrimination. “Apart from this, what are the common traits?” he asked. [6]
A lot of energy was spent discussing the lack of homogeneity among SCs. But do they find this homogeneity in the upper castes? Nobody talks about it.
Now, we will give examples to show how this argument of homogeneity works when the law is used to benefit upper castes.
In the Jaunsar-Bawar region, formerly part of Sirmur state in Himachal Pradesh, the entire area was declared a tribal category in 1967, making everyone eligible for benefits under the Scheduled Tribe category [7]. However, despite this designation, society remains caste-stratified, with Dalits being mostly landless and facing bonded labor. Brahmins and Rajputs often dominate the reserved seats meant for Scheduled Tribes. Dalits suffer in three ways: they face a rigid caste hierarchy, struggle to compete with upper castes in elections, jobs, and education, and cannot access benefits reserved for Scheduled Castes since the law recognizes the area as homogeneously tribal. Since 2000, similar reservations have been extended to hilly regions like Pithoragarh, Uttarkashi, and Chamoli, labeling them as OBC-hills, which has sparked demands for OBC reservation extensions throughout Uttarakhand. [7]
Since 1969, multiple petitions to the High Court and Supreme Court and many resolutions to state and central assemblies have been filed objecting to this farce, but to no avail. [7] Entire regions are designated under reservation as tribal and Other Backward Class (OBC) areas, despite the prevalent casteism in these areas. This homogenization of areas treats even upper castes in these regions on par with Scheduled Tribes (ST) and OBCs. What it accomplishes here is the amalgamation of inherently opposite groups for the benefit of upper castes, essentially homogenizing upper castes with other groups.
While discussing the homogenization argument, the Court added, “The entire basket of fruits cannot be given to the mighty at the cost of others under the guise of forming a homogenous class.” This prompts the question: how are these areas homogenized under ST or OBC designations? Why is the ‘entire basket of fruits’ distributed arbitrarily, benefiting upper castes.
Much has been discussed based on erroneous assumptions about the benefits of reservation to certain castes in Scheduled Castes. What is not discussed is the dominance of a few certain castes in the general category. Why is it not discussed?
To summarize this phenomenon in the words of Dr. Ambedkar, “The Hindu is caste conscious. He is also class conscious. Whether he is caste conscious or class conscious depends upon the caste with which he comes in conflict. If the caste with which he comes in conflict is a caste within the class to which he belongs he is caste conscious. If the caste is outside the class to which he belongs he is class conscious.” [8]
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References
1] Validity of Sub-Classification Within Reserved Categories
State of Punjab v Davinder Singh https://www.scobserver.in/cases/punjab-davinder-singh-validity-of-sub-classification-within-reserved-categories-case-background/
2] https://caravanmagazine.in/caste/subcategorising-dalits-undo-historical-identity
3] THORAT, SUKHADEO, et al. “Prejudice against Reservation Policies: How and Why?” Economic and Political Weekly, vol. 51, no. 8, 2016, pp. 61–69. JSTOR, http://www.jstor.org/stable/44004417. Accessed 10 Apr. 2024.
4] EWS- The quota to end all quotas by Ambedkar age collective, The general category is the seat of caste, not the reserved categories- Naren Bedide (Kuffir)
7] EWS- The quota to end all quotas by Ambedkar Age Collective, Social justice: Judicial anxiety and judicial foreshadowing- Abhishek Juneja
8] The essential writings of B.R.Ambedkar edited by Valerian Rodrigues- caste and class – page no 104
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Dr. Bhushan Amol Darkase is M.D. in Dermatology & FIDD and is currently working as Assistant professor in B. J. Medical college and Sassoon Hospital, Pune).
