Sub-classification may create more problems than it solves

Subclassification of Scheduled Castes and Scheduled Tribes for the purpose of reservations may be addressed towards solving certain problems, but at what cost? 

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ON August 1, 2024, a seven-judge Bench of the Supreme Court headed by the Chief Justice of India (CJI) Dr D.Y. Chandrachud overruled E.V. Chinnaiah, in which a five-judge Bench had decided that state legislatures cannot sub-classify Scheduled Castes (SCs) for the provision of reservation in educational institutions and public services.

In Chinnaiah, the court had emphasised that all SCs form a homogeneous class that cannot be subdivided. However, the August 1 judgment has allowed the sub-classification of SCs and Scheduled Tribes (STs) for reservation purposes, sparking significant debates.

The majority of the judges (6:1) concluded that SC and ST groups under Articles 341 and 342 respectively are not homogeneous, as castes and tribes within the groups experience varying degrees of backwardness and discrimination.

Furthermore, the majority held that adding sub-classification does not undermine the President's authority to announce the SC list under Article 341.

The CJI began his pronouncement by stating that "sub-classification of the SCs for the purposes of reservation is permissible" and argued that Article 14 of the Constitution allows for the sub-classification of classes that are not "similarly situated for the purpose of the law".

CJI Chandrachud further ruled that the SC classification was not homogeneous, as each experienced varying degrees of backwardness.

Article 341 allows the President to specify which castes, races or tribes are considered SCs for constitutional purposes. The respondents argued that the term "deemed" in Article 341 implies that SCs form a homogeneous legal group.

Also read: Sub-classification of Scheduled Castes: Homogeneity in forwardness, non-homogeneity in backwardness

However, the CJI concluded that the word "deemed" does not create a legal fiction of equality among SCs. Instead, Article 341's purpose is to identify and distinguish SCs from other castes, not to suggest they are a homogeneous class that cannot be further categorised.

During the hearing, the second contention of the respondents was that sub-classifying SCs would tamper with the Presidential List of SCs notified under Article 341(1), limiting the President's ability to insert or exclude castes from the list.

The CJI held that sub-classification does not contradict the President's authority under Article 341(2) because no new castes are being added to or removed from the Presidential List of 1950.

While maintaining the government's authority to sub-classify, the CJI warned that the rationale for sub-classification should not be arbitrary or political. Instead, sub-classification must be founded on quantifiable and observable evidence. He also stated that the decisions of a particular state to sub-classify SCs will be subject to judicial review.

Justice B.R. Gavai, the only SC judge on the Bench, agreed with the CJI on the question of the necessity of sub-classification of SCs to address different levels of discrimination faced by different SCs.

He argued that the Presidential List under Article 341 is for identifying castes, not for reservations, and that reservations should be based on the varying degrees of prejudice faced by these groups.

He emphasised the State's duty to give preferential treatment to underrepresented backward classes and suggested that if only some classes benefit, others should be given preferential treatment.

He proposed extending the creamy layer rule from Indra Sawhney versus Union of India (1992) to SCs and STs, meaning economically privileged individuals within these groups should be excluded from reservations.

However, he noted that the criteria for determining the creamy layer for SCs should differ from those for Other Backward Classes (OBCs).

Also read: Weakest of the weak need constitutional protection, Punjab tells SC on Day 1 of subclassification within Scheduled Castes

Justice Bela M. Trivedi, the only dissenting judge, disagreed with the majority on almost every point.

She first ruled that the three-judge Bench's referral of Chinnaiah to a seven-judge Bench was "inappropriate and not in consonance with the doctrines of precedent and stare decisis" because it did not clearly demonstrate why the reasoning in Chinnaiah was incorrect.

Given this, she stated that the rules of precedent and stare decisis were applicable, and the decision was binding on the court. Furthermore, she averred that while different castes have endured varying degrees of discrimination historically, once put on the Presidential List and notified by the President under Article 341, they were a homogeneous group.

As a result, forming sub-classification inside this group was forbidden. Additionally, she concluded that states lacked the legislative authority to construct sub-classification because neither the State List nor the Concurrent Lists permitted them to do so.

Justice Trivedi's dissenting opinion offers a compelling rationale against sub-classification. She held that sub-classification by states would amount to tinkering with the Presidential notification under Article 341 of the Constitution, which grants the President the authority to identify SCs and STs.

Justice Trivedi emphasised that only the Parliament has the power to include or exclude castes from this list, ensuring that the process remains free from political influence.

Her dissent highlights the importance of maintaining the integrity of the SC and ST lists and preventing potential misuse of sub-classification for political expediency.

By advocating for a more uniform approach, Justice Trivedi's opinion underscores the need for systemic solutions that address the root causes of marginalisation rather than creating further divisions within already disadvantaged communities.

Furthermore, Justice Gavai and the CJI's opinion on sub-classification within SCs and the extension of the creamy layer principle to these groups raises several legal and social concerns.

Firstly, Justice Gavai's interpretation of Article 341 as merely a method of identification rather than a basis for reservations could be seen as a narrow view that undermines the original intent of the Article— to provide comprehensive protection and upliftment to the most marginalised communities.

Also read: Scheduled Castes homogenous class for designation, not vocations: Kapil Sibal on Day 2 of the sub-classification hearings

Extending the creamy layer concept to the SCs and STs is a debatable point. The creamy layer principle was originally designed for OBCs to exclude the economically advanced from availing reservation benefits.

Applying this to the SCs and STs who face deep-rooted social discrimination irrespective of economic status might dilute the purpose of reservations.

Social discrimination does not necessarily diminish with economic advancement, and excluding individuals based on economic criteria alone could be seen as ignoring the multifaceted nature of caste-based oppression amongst the SCs and STs.

Determining the criteria for sub-classification and identifying the creamy layer within these groups could lead to administrative complexities and potential misuse and faces a risk of political manipulation, where certain subgroups might be favoured over others as observed in the judgment, leading to further marginalisation of the most vulnerable.

The ramifications of this sub-classification are, however, debatable at this point because the states now have the power to make sub-groups within castes and provide separate quotas for more disadvantaged subgroups. This means that castes could indeed be divided into categories such as Group A, B and C, with specific quotas allocated to each group based on their level of disadvantage.

Additionally, the concept of the creamy layer would mean that individuals within these groups who earn above a certain threshold would not be eligible for reservations. The criteria for determining the creamy layer for SCs and STs might differ from those used for OBCs to account for the unique socio-economic challenges faced by these communities.

However, reservations for SCs and STs in India extend far beyond poverty alleviation. While economic upliftment can be a byproduct of increased access to education and employment, the primary goal of reservations is to ensure adequate representation of historically marginalised communities in various sectors of society.

While the intention behind the judgment is to ensure that the most marginalised within these communities receive adequate representation, there are several reasons why this decision can be seen as problematic and potentially harmful from both socio-economic and legal perspectives.

Also read: Sub-categorisation within Backward Classes as per Indra Sawhney continues to be good in law: Supreme Court on Day 3

Firstly, the socio-economic ramifications of this judgment could be profound. The idea of sub-classification assumes that backward castes within SCs and STs will suddenly achieve adequate representation.

However, this assumption overlooks the historical and systemic disadvantages that these groups face. Starting from a position of extreme marginalisation, these sub-castes may struggle to fill the reserved seats allocated to them.

Consequently, these unfilled seats might be transferred to the unreserved category, thereby undermining the very purpose of affirmative action. This could lead to a scenario where the benefits of reservation are diluted, and the intended upliftment of the most disadvantaged groups is not achieved.

Besides, the judgment's assumption that sub-classification will lead to better representation is flawed. The backward castes within SCs and STs are starting from a position of severe disadvantage, often lacking access to quality education and employment opportunities.

Without addressing these foundational issues, merely creating sub-categories for reservations is unlikely to result in meaningful representation. Instead, it may perpetuate a cycle of exclusion and marginalisation, as these groups may not be able to compete effectively for the reserved seats.

Exclusion then leads to marginalisation, and eventually perpetuates segregation. Sub-classification may thus lead to further segregation within the SC and ST communities, weakening their collective identity and political strength. This fragmentation could undermine the solidarity needed to combat broader social and economic injustices.

Additionally, the administrative burden of implementing sub-classifications and ensuring accurate data collection could strain resources and lead to inefficiencies.

Moreover, there is a risk that the most marginalised sub-groups might still not benefit adequately if the systemic issues of access to education and employment are not addressed comprehensively.

Addressing the systemic disadvantages of backward castes among SCs and STs without sub-classifying them requires a holistic approach. One effective strategy could be to enhance targeted educational and economic support programmes.

Also read: Explained: The Patna HC's striking down of quota hike to 65 percent

This includes providing scholarships, skill development programmes, and access to quality education from the primary level onwards. Additionally, implementing mentorship and internship programmes can help bridge the gap between education and employment for these marginalised groups.

Strengthening anti-discrimination laws and ensuring their strict enforcement can also play a crucial role in creating a more equitable environment. By focusing on these foundational issues, we can create a more level playing field without the need for sub-classification.

Reservations are designed to counteract the historical overrepresentation of savarna castes in education, employment and other areas of public life. These dominant groups have long subjugated lower castes, maintaining social hierarchies through systemic discrimination.

The case of Tina Dabi, who topped the Union Public Service Commission (UPSC) exam, illustrates that even individuals from SC communities who achieve significant success are not immune to caste-based prejudice. Despite her accomplishments, Dabi continues to face criticism and her children are likely to encounter discrimination due to the stigma attached to being from a lower caste.

This stigma persists regardless of economic status. In universities, for example, savarna students often discriminate against lower caste students through microaggressions and social exclusion.

These actions demonstrate that economic mobility does not erase the deep-seated prejudices and biases against lower castes.

The debate over sub-classification of SCs and STs for reservation purposes has made calls for accurate data on the socio-economic status of these communities more urgent. A caste census in India could provide the necessary empirical evidence to inform such policies.

Even though historical and empirical evidence suggests that SCs and STs are not homogeneous groups, without precise data it is challenging to address their specific needs effectively.

Conducting a caste census would reveal the true extent of economic disparities within these communities, debunking the myth of the "Rich Dalit" that has been perpetuated by savarna castes to justify systemic discrimination.

Also read: The Calcutta High Court's flawed judgment on OBC reservations for Pasmanda Muslims sets a dangerous precedent

The persistence of the term 'Rich Dalit' even after individuals achieve economic mobility highlights that caste discrimination does not simply vanish with poverty alleviation.

Additionally, data from various sources, including the Global Multidimensional Poverty Index, consistently show that the majority of the poor in India belong to SC, ST, and OBC categories.

Despite some individuals from these communities achieving economic success, the overall socio-economic status of SCs and STs remains significantly lower than that of the 'general' population. This disparity underscores the need for targeted policies that address the specific challenges faced by these groups.

A caste census would provide a comprehensive and accurate picture of the socio-economic conditions of different castes, enabling policymakers to design more effective affirmative action programmes. It would highlight the extent of poverty and deprivation among SCs and STs, countering the argument that reservations should be based solely on economic criteria.