Amidst a roaring Parliamentary debate on the need of conducting a caste census across India, the Supreme Court on August 1 delivered a judgement allowing the sub categorisation of Schedule Castes (SCs) and Scheduled Tribes (STs) in reservations pan India.
This landmark judgement had a 6:1 majority siding the sub-classification within the marginalised communities to ensure better representation of underrepresented groups within the two categories. The 7-judge bench, led by Chief Justice of India (CJI) D.Y Chandrachud, comprised Justice B.R. Gavai, Pankaj Mithal, Manoj Misra, Satish Chandra Sharma, Vikram Nath, and Bela M. Trivedi.
The judgement, with six separate opinions, requires a careful and considerate reading for what it means for affirmative action in the country
The facts
The apex court in its judgement overruled the 2004 E.V. Chinnaiah v. State of Andhra Pradesh which had stated that communities listed as SCs and STs constitute a homogeneous group with no requirement of further classification.
The landmark judgement in 2004, which abolished the sub-categorisation of reservations, found the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act of 2000 to be violative of the right to equality under the Constitution. The bench in this case stated that only the president had the power to decide which communities could receive reservation quotas, referring to Article 341(2) of the Constitution.
The 2004 judgement also had a direct impact on Punjab’s reservation plan which entailed giving a first preference to Balmiki and Mazhabi Sikh communities. In 1975, the Punjab government divided the prevailing 25% reservation for SCs into two distinct categories.
The first category was exclusively reserved for the Balmiki and Mazhabi Sikh communities, which were among the most economically and educationally disadvantaged in the state. This policy granted them priority access to reserved seats in education and public employment. The second category encompassed the remaining Scheduled Caste communities.
The court in 2004, however, reasoned that the historically disadvantaged SC and ST communities constitute a homogeneous entity and thus cannot be treated differently amongst each other.
The judgement
Upon a rigorous examination of historical and empirical evidence, the court discerned that the Scheduled Caste communities are not a homogenous entity. The distinct groups within this broader categorisation occupy disparate social and economic strata, thus creating an intelligible differentia that necessitates tailored affirmative action by the state.
CJI D.Y. Chandrachud elucidated that such sub-classification does not contravene the principle of equality enshrined in Article 14 of the Constitution, nor does it infringe upon the sanctity of Article 341(2). The judgement emphatically underscores that the basis for sub-classification must be rooted in “quantifiable” and “demonstrable data” that clearly illustrate the underrepresentation of the concerned group. The majority unequivocally asserted that the state cannot succumb to whims or political expediency in this regard, and its decisions will remain subject to rigorous judicial scrutiny.
The judgement also stands in agreement with the finding of M. Nagraj & Others v. Union of India (2006) that the categorisation of ‘creamy layer’, a subset within reserved communities that are economically and socially advanced, is indeed applicable to SC and ST communities.
The court took into consideration the fact that the Constitution specifically recognises ST and SC communities as the most backward and disadvantaged section of society, thus altering the modus of application of the creamy layer principle in the case at hand, distinct from its application to Other Backward Classes (OBCs).
Justice Gavai ruled the state to devise a policy to identify the creamy layer among the SCs and ST communities to exclude them from the fold of affirmative action. Notably, the court limited the reservation to the pool of the first generation, fairly pushing the second generation inside the creamy circle if the former reached a “higher status” through reservation.
It is important to note that the Supreme Court hasn’t said that states must sub-classify the communities but that they can do so based on empirical grounds of marginalisation. As constitutional law scholar Gautam Bhatia observes here, “There was no other question before the Court, including ‘creamy layer.’ Nor have the four judges who’ve (unnecessarily) talked about ‘creamy layer’ issued any binding or enforceable directives to state. At the highest I think these have no more legal force than advisories.”
The impact
The Supreme Court ruling is likely to impact debates and policy of affirmative action, reservations for various communities such as Jatavs in UP, Paswans and Manjhis in Bihar and Arundhatiyars in Tamil Nadu, as it throws light on the current precarious situation of social and economic inequality in the country.
By streamlining the application of affirmative action, the court has tried to preferentially treat those in need. This methodology of sub-classification by the court comes at a time when the country has been demanding a caste-based census. The judgement reimagines affirmative action significantly departing from the context established in the Constituent Assembly debates. The Supreme Court has also stated that the classification is needed to ensure that the most underrepresented groups are protected and given opportunities to grow.
The pool for ‘who needs substantive equality’ has been reimagined by keeping Dr. B.R Ambedkar’s idea of affirmative action alive in its transformative form. It is imperative to identify the most backward among the marginalised groups to fulfil this constitutional duty the apex court has left the states with. Though the misuse of this for political and electoral gains by states cannot be ignored, the courts have also possibly opened the doors for a deluge of litigation in the years to come.
Deepanshu Mohan is professor of Economics and director, Centre for New Economics Studies.
Aman Chain and Harshita Hari are senior research assistants at Centre for New Economics Studies and co-leads at Azaad Awaaz initiative.