Sub-Classification of Scheduled Castes: Why the Chinnaiah Judgment Must Go

Can a state government sub-classify or sub-categorise Scheduled Castes in the state to ensure an equitable apportionment of reservations and greater representation of the weaker sections within the Scheduled Castes? This is the question that a constitution bench of the Supreme Court of India is posed with at the moment.

The constitution bench of five judges headed by Justice Arun Mishra concluded hearings in the case of State of Punjab v. Davinder Singh last month and is likely to pronounce a judgment soon on whether the question needs to be referred to a larger bench. The reason for the likely referral is that a five-judge constitution bench of the Supreme Court had already dealt with this question in 2004 and answered in the negative.

Chinnaiah’s treatment of Scheduled Castes

In the case of E.V. Chinnaiah v. State of Andhra Pradesh, going against well-known and what would seem to be obvious wisdom, the Supreme Court held that the Scheduled Castes form one “homogenous” group and therefore any inter-se classification within the Scheduled Castes would be a violation of Article 14.

The court was dealing with a law passed by the Andhra Pradesh government based on the report of the Justice Ramachandra Raju Commission, which recommended sub-dividing the Scheduled Castes into four groups and apportioning reservations separately for each. This was to ensure that all communities within the Scheduled Castes, particularly those that have been oppressed and marginalised the most historically and have been deprived of the opportunities of education and formal employment, receive adequate and equitable representation in educational institutions and state services.

However, the court proceeded to strike down the law on the premise that the declaration of a caste as a Scheduled Caste in the presidential list issued under Article 341 meant that it became subsumed in the broad monolith and was to be treated at par with the other Scheduled Castes for all purposes.

This was obviously wrong. Dr B.R. Ambedkar described the Indian society as a gradation of castes forming an ascending scale of reverence (which he later amended to an ascending scale of “hatred”) and a descending scale of contempt. As is the nature of any hierarchical structure, no two castes are equal and while the Scheduled Castes form one group owing their commonality to their shared experience of untouchability, there is a large gradation within the Scheduled Castes. The ones at the bottom of the ladder, those who have been most severely ostracised and subjugated, have not yet received the benefits of reservations as a tool to ensure their representation in society and government.

The nine-judge bench of the Supreme Court in the case of Indra Sawhney v. Union of India was cognisant of this and it held that it would be perfectly legal for the state to categorise backward classes as backward and more backward. The concurring judgment of Justice Sawant read:

“Whether the backward classes can be classified into Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution.”

The Supreme Court has held in a slew of judgments such as Subhash Chandra (2009) that the term “backward classes” in Article 16(4) includes Scheduled Castes and Scheduled Tribes for all intent and purport. Therefore, the Supreme Court in Indra Sawhney paved the way for sub-classification not only among the other backward classes (OBCs), which it was primarily dealing with, but also within the Scheduled Castes for the purpose of apportioning reservations.

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Misreading Indra Sawhney

Interestingly, but wrongly, the Supreme Court in Chinnaiah (mis)understood that the Indra Sawhney judgment applied only to OBCs and not to the Scheduled Castes. This it did by reading out of context a line from Justice Reddy’s majority judgment recommending exclusion of the creamy layer within the OBCs:

“…we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes.)”

The last part of the above paragraph, that “This discussion is confined to Other Backward Classes only” was intended only with regard to the exclusion of creamy layer. This concept, Justice Reddy warned, was not to be extended to the Scheduled Tribes and Scheduled Castes. (The 2018 Supreme Court judgment in Jarnail Singh v. Lacchmi Narain Gupta did extend the concept of creamy layer to Scheduled Castes and the government of India has since filed a review petition which is pending.) In Chinnaiah however, the court misread this to mean that the whole of the Indra Sawhney judgment did not apply to the Scheduled Castes, and thus the inter-se classification permitted by Indra Sawhney amongst the OBCs did not extend to the Scheduled Castes.

Therefore, since Chinnaiah misunderstood caste to be a homogenous group and misread the nine-judge bench judgment in Indra Sawhney, it can safely be identified as having been per incuriam (literally ‘through lack of care’). The current case of Davinder Singh v. State of Punjab is thus likely to be referred to a larger bench, which would be called upon to decide the correctness of the court’s judgment in Chinnaiah in terms of Article 341 and the judgment of the court in Indra Sawhney.

The ‘usurping’ argument

One thing to watch out for, though, would be the reliance of the court on the narrative of “usurping” or “gobbling up” of the benefits of reservations by the “upper crust” among the Scheduled Castes. During the recent hearings in Davinder Singh, the bench asked whether it is not unfair for some castes within the Scheduled Castes to ‘usurp’ all the benefits of reservation. This echoed Justice Krishna Iyer’s observations in N.M. Thomas (1975), wherein he talked of a “tiny elite gobbling up the benefits” of reservations. While this statement purportedly supported the argument for inter-se classification, its basis is wrought with danger, steeped in caste biases and in common myths about reservations. What it means is that certain Scheduled Castes, which have managed to obtain representation in society and government through reservations or who are “affluent and socially and economically advanced”, no more deserve reservations and that reservations need to be rethought and provided on the basis of economic conditions so that benefits can “trickle down to the needy”.

This is in line with the oft-repeated misrepresentation of the purpose of reservations as a means for poverty alleviation or to substitute for quality public education, which has its subscribers inside and outside the court, and which was given a parliamentary stamp of approval with the passing of the 103rd Constitutional Amendment reserving 10% seats for “economically weaker” savarna candidates.

Also read: Creamy Layer Judgment Ignores the Reality of Workplace Caste Discrimination

To argue that reservations should trickle down to the ‘needy’ within the Scheduled Castes, ‘needy’ being defined on the basis of economic conditions, refuses to accept caste as a social problem, one which does not go away with some degree of educational or economic mobility. The Supreme Court in Jarnail Singh observed that certain caste groups or sub-groups have “come out of untouchability or backwardness by virtue of belonging to the creamy layer”. This is a cruel and typical denial of the atrocities, humiliation and violence faced by members of the Scheduled Castes across classes, in rural as well as urban spaces. Take the recent example of a minister in the Himachal Pradesh government, with admittedly considerable social standing, who was disallowed from entering a temple in the state in January 2020. This is only one of the several thousand instances of caste atrocities committed across the country every year.

As Justice Reddy forewarned in Indra Sawhney, the concept of a creamy layer has no application to the Scheduled Castes and Scheduled Tribes. Even with considerable education, economic or social mobility, the humiliation and violence of untouchability does not cease. Reservations thus become necessary to ensure representation in government and society to counter the deep-rooted structures of caste hierarchy, domination and oppression. The fact that some Scheduled Castes have obtained representation in society through reservations is only proof of reservations being an effective tool of ensuring equitable participation of all communities in government and politics and why they were introduced in the first place.

Therefore the court ought to steer clear from allowing inter-se classification among Scheduled Castes on the flawed ground that some Scheduled Castes who have gained representation through reservation have “usurped” or “gobbled up” the benefits and therefore, potentially, now should be excluded. The rationale for inter-se classification is simply that it is imperative and a fundamental requirement for our democracy that all communities within the Scheduled Castes are adequately represented in society, polity and government.

The case of the Arunthathiyars

An example of state legislations earmarking quotas for certain communities within the Scheduled Castes is the 2009 Tamil Nadu law that reserves 3% of the total seats in educational institutions and state services for the Arunthathiyar community. While the Arunthathiyars constitute nearly 16% of the total Scheduled Caste population in the state, a report of the Justice Janarthanam Commission observed that their representation in most government departments, corporations and education institutions was anywhere between 5% to 0% within the Scheduled Caste communities. For this reason the Tamil Nadu government found it necessary for the state to ensure that the Arunthathiyars obtain representation corresponding to their proportion in the total population of the state.

The fate of this law, as is the fate of other such state legislations, hinges upon the eventual decision of the Supreme Court in State of Punjab v. Davinder Singh. One hopes that the Supreme Court reverses its judgment in Chinnaiah and upholds the democratic political purpose served by reservations.

Siddharth Seem is an advocate at the Human Rights Law Network (HRLN), Delhi.