The role played by social perceptions on the ‘forwardness’ of certain sub-castes and the general anti-reservation rhetoric (of reservations only benefiting the most advantaged among SCs) seems to be at play, both legislatively and judicially, argues Asang Wankhede.
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THE proceedings before a seven-judge Bench of the Supreme Court of India in State of Punjab versus Davinder Singh adjudicated the constitutional issue of sub-classification of Scheduled Castes (SCs).
The central legal question involved was about the constitutionality of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, where SCs were sub-classified to provide Balmikis and Mazhabi Sikhs first preference in the state reservation policy for SCs, extending a 50 percent quota within the total permissible quota for SCs.
The reference to the seven-judge Bench was made by a five-judge Bench in 2020 to revisit the constitutional validity of the E.V. Chinnaiah versus State of Andhra Pradesh (2005).
Chinnaiah was another five-judge Bench decision of the Supreme Court which had previously held any form of sub-classification for SCs as unconstitutional.
In other words, a sub-quota within the large quota was held to be impermissible and beyond the power of the states in Chinnaiah.
According to constitutional jurisprudence, SCs are considered the most backward among the backward classes and SCs have vastly different experiences of discrimination.
The article questions the necessity of sub-classification for Scheduled Castes in the absence of comprehensive census data and brings out the contradiction in the Supreme Court’s approach, where it rejects homogeneity in the backwardness of SCs on one hand and promotes homogeneity in the forwardness of SCs on the other hand.
Subsequently, by evaluating the Supreme Court’s lack of doctrinal position on what accounts for social forwardness or advantageous position of SCs, this discussion challenges the court’s approach on sub-classification in terms of the social cost it imposes on SCs.
The problematic logic in Davinder Singh 2020 to revisit Chinnaiah
The Supreme Court’s decision in Davinder Singh to revisit Chinnaiah and the issue of sub-classification for SCs was based on three reasons.
First, it considered SCs and Other Backward Classes (OBCs) under the same normative umbrella and equally situated within the constitutional scheme through the interpretation of Articles 341, 342 (designation of SCs and STs) and 342A [designation of socially and educationally backward classes as being pari materia (same subject matter)].
Second, sub-classification as a principle is a facet of the right to equality like the creamy layer principle and hence a constitutional necessity.
Third, by relying on the extension of the creamy layer principle to SCs and STs in Jarnail Singh, and since it would not tinker with the lists of SCs and STs under Articles 341 and 342 (powers only with the President or Parliament), the extension of sub-classification will also not infringe on the powers of the Parliament.
The court broadened its constitutional power, expanding from the precedent set in Jarnail Singh to not only exclude the creamy layer within SCs but also to exclude advantaged groups and sections within SCs and STs more generally.
The court erroneously categorised SCs and OBCs as equally backward and overlooked the distinction between SCs and OBCs falling under the category of socially and educationally backward classes. According to constitutional jurisprudence, SCs are considered the most backward among the backward classes and SCs have vastly different experiences of discrimination.
Also read: Constitutional and legal implications of the Bihar caste survey
Moreover, in Davinder Singh, the judicial approach ignores the ratio of Jarnail Singh where it was held that SCs and STs are the most backward among the ‘backward classes’ and hence no qualifiable data was required to indicate SCs’ backwardness status, thereby overruling M. Nagaraj & Ors versus Union of India.
Jarnail Singh’s ratio is in line with the judicial discourse on reservations in India, which provides SCs a special status of the most disadvantaged group within the larger umbrella of social and educationally backward classes under Article 15(4) and ‘backward classes’ under Article 16(4), distinct from OBCs.
The accompanying power to ensure sub-classification within SCs is accorded by the Supreme Court in Davinder Singh through a conjoint reading of Indra Sawhney versus Union of India and Jarnail Singh.
The former provides the court the power to make sub-classifications for all SEBCs including SCs and STs, and the latter provides the power to exclude the creamy layer within SCs without ‘tinkering the presidential list’ as observed in Davinder Singh.
The court broadened its constitutional power, expanding from the precedent set in Jarnail Singh to not only exclude the creamy layer within SCs but also to exclude advantaged groups and sections within SCs and STs more generally, exercising a wider discretion to devise methods for doing so.
The nature of the Supreme Court’s oral observations indicates the court’s de facto approval of the method of sub-classification within SCs to exclude so-called advantaged groups.
In other words, the power to exclude the creamy layer from within SCs was not limited to only the creamy layer, but was far-reaching in that the court could determine all methods to exclude such advantaged groups, with sub-classification being one such definitive method, which arguably is a problematic logic.
It undermines the judicial discourse that treats SCs differently from OBCs due to differences in the severity of experiences of social discrimination. It indicates the limitations in judicial imagination in its attempts to identify the so-called ‘advantaged sections’ within SCs as it adopts the same advantaged section exclusion methods deployed for OBCs, which are insufficient in capturing the realities of social discrimination suffered by Dalits.
The recent proceedings in the Supreme Court
The oral observations made by the judges in the court, though not binding, indicated a general affirmation towards sub-classifying SCs.
Also read: A top-notch primer on reservations in India
The government affirmed this view when the Solicitor General of India Tushar Mehta argued on behalf of the Union government that, “In order to achieve the actual objective behind reservations, rationalisation is key (while maintaining the levels and extent of reservations) and proliferation and deepening of the reservation benefits is necessary. The sub-classification of the said benefits is a key measure which goes a long way to achieve the said objective.”
The oral observations from the Bench indicated a focus on sub-castes as the correct basis of sub-classification, where Justice Vikram Nath observed, “Why should there be no exclusion (from the reservation list)? Some of these sub-castes have done better and gone forward. They should come out of reservation and compete with the general category… Why stay there?… The remaining sub-castes who are still backward, let them have reservation”.
Justice B.R. Gavai observed, “Once a person gets into the Indian Police Service (IPS) or Indian Administrative Service (IAS), his children do not suffer from the disadvantages of others from his group who live in a village… Yet his family will get the benefits of reservation for generations.”
He further inquired if one “can … deny the ground realities that in the (Presidential) list (of backward classes), blacksmiths are there and scavengers are also there. Did they face the same degree of discrimination when they were brought into the list? Were they (scavengers) not Untouchables amongst the Untouchables? Therefore, recognising that, if the State decides to provide among that class, a preferential treatment, would Article 341 come in that way?”
The reports of various state commissions specially constituted for determining the question of sub-classification, especially in states such as the states of Punjab and Andhra Pradesh, have been accepted by the Supreme Court as evidence for intra-Dalit caste disparities.
Taking an example from his home state of Maharashtra, Justice Gavai observed: “A particular caste in Maharashtra, for the last 75 years if they are taking reservations of 75–80 percent of the 13 percent available reservation and there are some castes which have a sizable representation but they do not have even 1 or 2 percent reservation, would it not amount to perpetuating inequality amongst those classes identified under Article 341?”
The nature of the Supreme Court’s oral observations indicates the court’s de facto approval of the method of sub-classification within SCs to exclude the so-called advantaged groups. It leaves many key questions open for assessment such as the overall necessity of sub-classification in the absence of concrete caste census data on the social and economic position of various caste groups.
The question of exclusive focus on sub-castes as the sole basis for advantaged group classification also lingers, as does the lack of a coherent legal doctrine of what accounts for the social forwardness of SCs. Finally, the adverse social cost of classification on SCs needs to be addressed.
The necessity of sub-classification
The question that is obviously at the heart of the sub-classification debate is whether SCs are a homogenous class in their composition. Are all Dalit castes the same in terms of their social, educational, economic, and political position in society?
The reports of various state commissions specially constituted for determining the question of sub-classification, especially in states such as Punjab and Andhra Pradesh, have been accepted by the Supreme Court as evidence for intra-Dalit caste disparities.
The reports by themselves could not have been a reason to approve the sub-classification of SCs, as a higher threshold of evidence is required to assess the lack of homogeneity within Dalits, it is argued.
There are clear limitations of scope and generalisations that can be drawn from such sample surveys and one-man expert commissions appointed politically by the state governments to assess relevant empirical markers on whether SCs are heterogenous to the extent that sub-classification within the general SCs quota is warranted.
The limitations are not meant to question the veracity of such reports and the findings in them that show socio-economic disparities among Dalits. Such findings, it is argued, cannot be generalised to all SCs in India and initiate a shift in the constitutional position on the homogeneity of SCs based on their experiences of historical discrimination emanating from untouchability.
Also read: The case for a caste-based census in India
Hence, it raises the question of the necessity of the judicial approval of sub-classification when there is no comprehensive data in the form of a nationwide caste census that would showcase some clarity on the necessity question.
There is an erroneous assumption that there are social disparities in the experiences of discrimination within SCs and such levels of advancements within SCs exist that warrant exclusion from reservations.
In the aftermath of Chinnaiah in 2004, the above issue was addressed by the Union government where the law ministry began discussion on sub-classification of SCs.
The then Attorney General of India noted that any possibility of sub-classifying SCs “could be allowed only if there was ‘unimpeachable evidence to indicate a necessity’ for it”.
Thus, the arguments in favour of sub-classification and the academic interventions supporting such sub-classification within SCs are not based on reasonable grounds. There is an erroneous assumption that there are social disparities in the experiences of discrimination within SCs and such levels of advancements within SCs exist that warrant exclusion from reservations.
It is submitted that any arguments or attempts to bring in a policy decision to sub-classify Dalits into more backward Dalits and less backward Dalits cannot begin in the absence of a thorough census of the empirical realities of SCs in India.
It can also never be based on caste simpliciter that one caste be treated as a homogenous unit, in terms of its ‘forwardness’ and hence made ineligible for reservation benefits.
Since there is no census data that empirically points towards whether the social science studies that describe differences within Dalits on various parameters can be generalised to the extent that there is a necessity to disenfranchise sub-castes among SCs from the benefits of reservations, the common experiences of Untouchability should triumph.
A caste census that assesses the socio-economic and social discrimination experiences of all castes can only be sufficient evidence to start assessing homogeneity among SCs and the appropriate methodology to be used to address the exclusion of ‘advantaged’ SCs.
Then, sub-classification may or may not be an appropriate tool to streamline reservations for SCs to benefit the most backward communities within the group.
The role played by social perceptions on the ‘forwardness’ of certain sub-castes and the general anti-reservation rhetoric (of reservations only benefiting the most advantaged among SCs) seems to be at play, both legislatively and judicially.
Also read: OBC Reservations: Investigating caste, backwardness and representation
The political motivations behind Andhra Pradesh’s attempts to classify Madigas as more backward within SCs cannot be ignored. The government has initiated sub-classification of the 15 percent quotas for SCs on the demands of the numerically large Madigas who account for 50 percent of the SC population in the state.
The government has initiated sub-classification of the 15 percent quotas for SCs on the demands of the numerically large Madigas who account for 50 percent of the SC population in the state.
Recently, it was noted that “days before Telangana goes to polls, Prime Minister Narendra Modi kick-started the process of setting up a committee to look into the issue of the long-pending demand of Dalit sub-categorisation in the state.”
The oral observations made by some judges also demonstrate the reliance on rhetoric rather than factual empirical data to claim that one sub-caste within SCs has siphoned off most benefits.
Thus, the existing approach of the Parliament and the judiciary for sub-classification, in reality, borrows from the general arguments against reservations based on social perceptions about reservations deriving from the upper castes’ anti-reservationist stand and is not based on empirical data.
Non-homogeneity in backwardness but homogeneity in forwardness
The legislative and judicial argument in support of sub-classification is sub-castes-centric.
The Supreme Court in Davinder Singh rejected the idea of homogeneity of SCs by observing that heterogeneity of SCs is the social reality of contemporary times.
Concurrently, it upheld the homogeneity in the forwardness of sub-castes, approving the use of caste as a sole marker of affluence.
For sub-classification, the court has approved the usage of sub-castes as a unit of forwardness accepting that such sub-castes are a homogenous unit in terms of their forwardness or affluence while rejecting homogeneity of SCs on the whole.
It is argued that caste identity cannot be a basis for sub-classification as it brings through the backdoor the same homogeneity that the court seems to reject, but more dangerously to the detriment of SCs. They may, because of their sub-castes group membership, lose access to reservations altogether.
Also read: Treating Unequals as Equals: Can SCs and STs be sub-categorised?
The lack of sincere actions on behalf of the legislature to determine the legislative policy, whether it is streamlining the benefits of reservations to the neediest among SCs; or dubiously fragmenting the SCs into backward and forward for unfounded and political reasons, is a central issue that has gone unaddressed in the judicial discourse.
Homogeneity of advancement within Dalit sub-castes is an abstract assumption without any empirical basis as much as heterogeneity of backwardness within Dalit sub-castes is not comprehensively founded.
Need for doctrine on social forwardness of Dalits
A common thread in the judicial discourse on reservations for SCs in India is that it fails to produce a coherent doctrine of what the social forwardness of Dalits entails.
The existing approach of the Parliament and the judiciary for sub-classification, in reality, borrows from the general arguments against reservations based on social perceptions about reservations deriving from the upper castes’ anti-reservationist stand and is not based on empirical data.
The Supreme Court has failed to question this doctrinal absence in its extension of the creamy layer to SCs in Jarnail Singh. It was approved in Davinder Singh where the court equates economic advancement with social advancement.
The social advancement of Dalits has been partially tackled within the confines of the creamy layer concept. It is submitted that the court has approved the lowest threshold of economic advancement of some sort as a marker of social advancement of Dalits.
In doing so, it has completely ignored the place of Untouchability, the historical discrimination practice that formed the basis for extending affirmative action benefits to SCs in India, in its discussion on the creamy layer.
In the recent proceedings, as previously mentioned, a judge seems to borrow the analogy for SCs of IPS and IAS officers not needing reservations for being ‘forward’ enough, from Indra Sawhney, but caste-based social discrimination operates in a far more intricate manner.
Also read: The devil is in the detail: need for contemporaneous caste census in India
The notion that Dalits, upon becoming civil servants and earning salaries above the minimum income tax threshold, are free from social discrimination is not empirically substantiated. Numerous instances demonstrate that social discrimination persists regardless of employment or income status.
The Supreme Court, therefore, has never seriously engaged with the question of when does the experience of Untouchability stop to matter? When has a Dalit individual sub-caste grown so socially forward that they do not face social discrimination and Untouchability?
Until the Supreme Court engages in debate on the fundamental question of what amounts to the social forwardness of Dalits, it cannot engage in the consequential exercise of excluding socially forward Dalits.
When can it be said that Dalits no longer need reservations, having overcome social discrimination, Untouchability or intersectional discrimination?
Such an assessment must encompass more than just Untouchability as a practice and include concurrent experiences of caste discrimination based on the status of erstwhile Untouchables, the current SCs.
Unfortunately, the question of social discrimination against Dalits ends for the Supreme Court with the lowest threshold of creamy layer, similar to OBCs, where once identified as a creamy layer no reservations are needed. Expanding the creamy layer concept and implementing sub-classification fundamentally undermine the normative foundation of reservations for SCs entirely.
There is no coherent doctrine, therefore, which can help us ascertain what the markers for the forward social status of SCs are apart from the erroneous concept of the creamy layer.
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In other words, when can we legally say that the social discrimination faced by Dalits due to their current status persists as erstwhile Untouchables stop to matter (the Hindu caste hierarchy remains, even when Untouchability is prohibited under Article 17 of the Constitution). Perhaps this should be the threshold to determine questions of social backwardness or forwardness.
Conclusion
Until the Supreme Court engages in debate on the fundamental question of what amounts to the social forwardness of Dalits, it cannot engage in the consequential exercise of excluding socially forward Dalits.
This article discusses the erroneous approach of the five-judge Bench in Davinder Singh concerning the sub-classification of Dalits and problematises the limitations of excessive reliance on the sub-caste status by the seven-judge Bench as the tool of sub-classification.
A jurisprudence that equates creamy layer with social advancement needs revisiting as without a coherent doctrine of social advancement of Dalits, the sub-castes in Dalits will have to pay grave social costs when excluded as beneficiaries of reservations.
The creamy layer concept may work for OBCs, but the same is not true for SCs due to their drastically different experiences of historical social discrimination, as argued above. There is very little factual data and doctrinal basis for promoting sub-classification exercise to exclude socially forward SCs and the meaning of social forwardness remains contested.
Finally, the societal impact on Dalit sub-castes resulting from sub-classification should serve as a crucial criterion for evaluating any policy intervention that might risk their disenfranchisement as beneficiaries of reservations.
The national commissions for SCs and STs have correctly, in my opinion, called out the limitations of separate reservations through sub-classification as the tool to overcome the root cause of the problem.
Policies should not lead to the imposition of graded inequality among Dalits when there is no comprehensive caste census data that calls for State intervention.
The national commissions for SCs and STs have correctly, in my opinion, called out the limitations of separate reservations through sub-classification as the tool to overcome the root cause of the problem.
Also read: AMU minority status case: An opportunity to repair the illusion of a secular republic
The commission noted that if the policy aims to support the most backward castes among SCs, then “existing schemes and government benefits should first reach these sections before any sub-categorisation”.
The disparity could be addressed in a staggered way, by first providing access to basic educational facilities from primary levels to such most disadvantaged castes. This is to ensure that the most backward SCs will have sufficient candidates to compete in the sub-categorised reservation posts.
There is an urgent need to take a step back and think about sub-categorisation among SCs. Importantly, the very foundation of this exercise must be debated, to ask if comprehensive caste census data is imperative as a good starting point to assess a list of questions that warrant policy intervention in reforming reservations.
Emphasis must also be given to affirmative action programmes beyond reservations for enabling better education and aggregation facilities to ensure upward mobility of the most backward persons within SCs.
