2024-08-05 07:20:46
Writer: Jay Vinayak Ojha
The Supreme Court’s decision in the Devinder Singh case is historic. The Court has also allowed the sub-classification of ‘SC’ and ‘ST’, i.e., splitting of ST-ST into different sub-categories for the purpose of reservation. Allowing what was off-limits will not only affect quota allocations for SC/STs, but will also have an impact on the politics around affirmative action in India. Contrary to popular belief, the Scheduled Castes are a group of over 1,200 castes in the states and union territories of India, grouped together under the Constitution (Scheduled Castes) Order, 1950. Many states had seen that certain castes were occupying a disproportionate number of SC seats, so they had tried to subdivide the category to ensure adequate representation of the ‘most backward’ communities. But such attempts by three states – Punjab, Haryana and Tamil Nadu – were challenged in different courts and struck down based on the 2004 Supreme Court judgment in the E V Chinnaiya case. In the Chinnaiya case, the Supreme Court had held that ‘SC’ was a homogenous category created by the Constitution and could not be subdivided. On Thursday, the Supreme Court by a 6-1 majority overruled that judgment, holding that SC and ST categories cannot be sub-classified as long as there is a substantial difference between ‘less backward’ and ‘more backward’ groups. The 1950 order did not completely exclude any SC from reservation benefits.
Is creamy layer a constitutional requirement?
The issue of sub-categorisation should not be confused with the issue of ‘creamy layer’. Sub-categorisation involves differentiating between ‘more backward’ and ‘less backward’ groups based on community identity. The creamy layer principle, on the other hand, operates on the basis of wealth and income, and can exclude a person from the ambit of reservation altogether. The ‘creamy layer’ of Other Backward Classes (OBCs) has been excluded from reservation since the Indira Sawhney judgment, but the issue became more complicated when it came to the Supreme Court. In Thursday’s judgment, the Supreme Court showed a strong inclination towards excluding the creamy layer of SC/ST from reservation. While the CJI sidelined the issue. The four judges concurring with the judgment – Justices Gavai, Mithal, Sharma and Nath – concluded that the creamy layer principle applies to SC/ST. Both Justices Gavai and Mithal pointed to the children of IAS or IPS officers taking advantage of reservation, terming it a clear injustice. In the 6-1 majority decision, 4 judges on the majority side have strongly supported the creamy layer even among SCs and STs. They have emphasized the need to create criteria to identify the creamy layer among SC-ST categories.
So how is equality defined?
While there was superficial agreement among all the six judges who wrote the majority judgment, there are also significant differences of view among the judges. The CJI emphasised the principle of ‘substantive equality’, that is, equality not only of opportunity but also of outcome. One of the reasons he gave in favour of sub-classification was to achieve substantive equality between ‘more’ and ‘less’ backward groups. He extended this principle further, for example, by holding that any public examination or other method of distribution of seats should not only be open to all but ‘must ensure substantive equality’. In his view, merit and reservation are not at all opposing ideas. Rather, social equality and inclusiveness are themselves aspects of merit. These ideas did not find strong resonance in the concurring judgments.
Justice Mithal quoted with approval Justice V.R. Krishna Iyer’s observation that ‘the consideration of administrative capacity’ cannot be permanently subordinated to ‘Harijana welfare’. Moreover, it remains to be seen how the CJI’s definition of qualification will apply to posts for which Justice Jeevan Reddy had said in the Indira Sawhney case: ‘Only qualification matters…super-speciality in medicine…airline pilots…technicians dealing with nuclear and space technologies.’
Thus, future benches may have to decide the extent to which a candidate’s social backwardness contributes to his or her eligibility to become a heart surgeon, nuclear technician or any other specialized job profile.
Supreme Court’s decision raises new questions
Is reservation an exception to the right to equality or an integral part of that right? This will be debated in the hearing of the petition filed by the Bihar and Chhattisgarh governments challenging the 50 percent cap on caste-based reservation.
Another, more speculative question is what purpose can sub-classification now serve? An exercise along the lines of the Justice Rohini Commission, which considered the possibility of sub-classifying OBCs, would certainly be acceptable for SCs/STs now. But what about other aspects of the law?
The CJI elaborated on the problem of inter-caste backwardness and internal discrimination among SCs. He referred to studies from Gujarat and Tamil Nadu, which found that in many areas, some SC communities themselves practice untouchability and discrimination against those they consider ‘inferior’ to them. If the Supreme Court recognises such discrimination, it may seek a relook at the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The law currently recognises SCs/STs as a homogeneous group and does not acknowledge the possibility of a member of one SC community committing atrocities against another. While answering the constitutional question on the permissibility of sub-classification, the court has in fact raised much deeper questions on the future contours of reservation and caste politics before our political and social order. It is now up to the political class to respond to them responsibly.
(The author is a Project Fellow, Vidhi Centre for Legal Policy)