On 1st August 2024, a 7-judge Constitution Bench of the Supreme Court delivered a 6:1 majority judgment upholding the legality of sub-classification of Scheduled castes for the purposes of reservation. This 565-page judgment contains 6 opinions – judgments by Jst. Chandrachud and Manoj Mishra, and the concurring opinions by Jst. Gavai, Jst. Vikram Nath, Jst. Pankaj Mittal and by Jst. Satish Chandra Sharma, constitute the majority, and Jst. Bela Trivedi has authored a dissenting judgment.
Genesis of these proceedings
The judgment was passed in a batch of matters challenging judgments of the Punjab and Haryana High Court that had struck down State legislations from Punjab[1] and Haryana[2], and a challenge to a Tamil Nadu legislation [3] mandating sub-classification. The High Courts had invalidated the provisions in the said legislations that provided for sub-classification, on the ground that they fell foul of the law laid down by the Constitution Bench in E. V. Chinniah v. State of Andhra Pradesh [4] that sub-classification was impermissible. During the hearing of this challenge to the judgement of the Punjab and Haryana High Court, the State took the stand that EV Chinniah was inconsistent with the judgment of the nine-Judge Bench in Indra Sawhney v. Union of India [5], and on 20th August 2014, a three-Judge Bench [6] referred the correctness of Chinnaiah (supra) for consideration by a larger Bench. This came up before a Constitution Bench in State of Punjab and Ors vs. Davinder Singh and Ors [7], which endorsed the opinion of a 3-judge Bench that E.V. Chinnaiah ought to be revisited by a larger Bench and sought for the matter to be placed before a Bench comprising of 7 Judges or more. It is in this manner that the matter came up before the present Bench.
Legal permissibility of SC/ST Sub-classification
The sole question that was before the Court is succinctly laid out in the first para of the judgment (opinion of Jst Chandrachud and Jst Manoj Mishra): “The reference to this Constitution Bench raises significant questions relating to the right to equal opportunity guaranteed by the Constitution. The principal issue is whether sub-classification of the Scheduled Castes for reservation is constitutionally permissible”. In para 42, the Court has clarified its brief as follows: “Constitution Bench has to adjudicate upon whether the sub-classification of Scheduled Castes for the purpose of providing affirmative action, including reservation is valid”.
Pertinently, as noted by the Court, the submissions were restricted to the issue of whether the judgment of this Court in E. V. Chinnaiah required to be reconsidered.
The opinion of Jst. Chandrachud and Jst. Manoj Mishra has overruled the law laid down in E. V. Chinnaiah that sub-classification of the Scheduled Castes is impermissible. It is also held that Article 14 of the Constitution permits sub-classification of a class which is not similarly situated for the purpose of the law. Further it is clarified that the Supreme Court, in Indra Sawhney, did not limit the application of sub-classification only to the Other Backward Class and had upheld the application of the principle to beneficiary classes under Articles 15(4) and 16(4). It is also held that sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List. It is also concluded that historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogenous class, as such the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes. (para 205)
Jst. Gavai, Jst. Vikram Nath, Jst. Pankaj Mittal and Jst. Satish Chandra Sharma have concurred with the judgment authored by the Hon’ble the Chief Justice of India, however, Jst. Gavai has proceeded to give detailed reasoning for the same and held that: “…it is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented. If the State while discharging that duty finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for Scheduled Castes and Scheduled Tribes, can the State be denied its right to give more preferential treatment for such categories? In my view, the answer would be in the negative, since the same would not amount to tinkering with the Presidential List”. (para 258 of Jst Gavai’s concurring opinion).
Jst. Gavai has taken a no-holds-barred approach in upholding the State’s right to sub-classification. To quote para 268 of his concurring opinion: “I find that the attitude of the categories in the Presidential List opposing such a sub-classification is that of a person in the general compartment of the train. Firstly, the persons outside the compartment struggled to get into the general compartment. However, once they get inside it, they make every attempt possible to prevent the persons outside such a compartment from entering it”.
Scale and scope of permissible sub-classification
Jst. Chandrachud and Jst. Manoj Mishra, while declaring the permissibility of sub-classification of Scheduled Castes, has handed down the broad legal contours within which the State could exercise such powers.
Firstly, it is held that the identification of inter-se social backwardness within the Scheduled Castes can be identified based on inadequacy of effective representation. The State must “prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented, and further the inadequacy of effective representation of a caste is because of its social backwardness”. (para 177 and para 205(f)(i))
Secondly, the State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness; (para 205(f)(ii)). In this regard the Court has clarified that adequacy of representation has to be viewed from the lens of “true and effective representation of socially backward classes across posts” (para 167). As such for data-collecting exercise by the State in this regard to be valid, it must “collect quantifiable data with respect to the inadequacy of representation of the sub-categories in the services of the State” (para 204). Further the “State while deciding if the class is adequately represented must calculate adequacy based on effective and not quantitative representation”. (para 204)
Thirdly, in regard to the scope of permissible sub-classification, the Court has laid down broad constitutional parameters while clarifying that it is doing so “without trenching on matters of policy” and that it is not intending to “prescribe an inflexible criterion for the State”. (para 178) Having said so, the Court examines two models of reservations for the sub-classified classes are permissible – the “preference model” and the “exclusive model”. In examining these the Court concludes the permissible “preference model” as one where preference to certain castes is given only over a certain percentage of the seats (para 183), and the permissible “exclusive model” being one where only a certain percentage of seats is exclusively allotted to the sub-classified castes (para 187), which, if unfilled, can be filled by other Scheduled Caste persons. The Court has clarified that “the state has the power to follow either of the two permissible models discussed above while reserving seats through sub-classification. The decision of the State to choose from either of the two models will depend on multiple considerations such as the degree of backwardness of certain castes vis-à-vis the other castes and the total number of qualifying candidates belonging to the Scheduled Castes (both the more backward castes of the Scheduled Castes and the others)”. (para 189)
Fourthly, the Court has held that though sub-categorization based on each caste is permissible, “there can never be a situation where seats are allocated for every caste separately”. It is clarified that while each caste is a separate unit, the social backwardness suffered by each of them is not substantially distinguishable to warrant the State to reserve seats for each caste and “if the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation”. (para 195)
Fifthly, the Court has held that the State’s decision in regard to sub-classification is amenable to judicial review. While holding so, the Court has cautioned that the State may embark on an exercise of sub-classification on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State and it cannot “merely act on its whims or as a matter of political expediency”. As such it is held that when the State’s action is challenged under Article 226 or Article 32, “the State must provide justification and the rationale for its determination”. (para 190)
Applicability of “creamy layer” concept to Scheduled Caste reservations
The concept of “creamy layer” was applied originally to those segments of OBCs who are high- earning and thus, economically-speaking, may not meet the criteria for backwardness. The Supreme Court in its nine-judge bench decision in Indra Sawhney explicitly stated that it had “no relevance in the case of Scheduled Castes and Scheduled Tribes.” This is because, it was contended, that “creamy layer” is too narrow and too economic of a concept to be applied to SC/STs who face injustices and suffer from a more egregious form of social backwardness when compared to the Other Backward Class.
However, in the most instant judgement, Jst. Gavai, went beyond the Bench’s mandate to restrict itself to the question on the permissibility of sub-classification of the Scheduled Castes. Instead, Jst. Gavai, waded into the contentious creamy layer question for SC/STs.
Before proceeding to do so, Jst Gavai looks at the law on the point including the Indra Sawhney, which specifically refrained from applying this concept to SC/ST reservations, and caveats that he is proceeding in this regard since the correctness of the contra view in Jarnail Singh [8] and Davinder Singh [9] has not been questioned. Jst. Gavai further states that since the “present reference we are dealing with the question about equality among the group of unequals, I find it appropriate to consider the said issue also”. (para 283)
Reasoning that the “…the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action…” (para 292), Jst. Gavai concludes as follows: “I am therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution”. (para 295).
Thereafter Jst Gavai has concluded that the creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes, adding that the “criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes”. (para 296(vii) and (viii).
Jst. Vikram Nath, Jst. Pankaj Mittal and Jst. Satish Chandra Sharma have explicitly stated that they are also in agreement with the views expressed by Jst. Gavai in regard to applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes.
However, Jst. Chandrachud (and Jst. Manoj Mishra) have agreed with Jst. Gavai only to the extent that it holds that the State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented, without commenting on the other finding of Jst Gavai on the applicability of creamy layer to reservations for Scheduled Castes. (para 177)
There was no need and no mandate for the Court to comment on the applicability of the creamy layer concept to Scheduled Caste reservations since that was not the issue before the Court. As such, the various observations and conclusions drawn in this regard are mere obiter and have no binding force whatsoever. Incidentally, Jst. Gavai has not issued any binding or enforceable directives to the State in regard to the implementation of the same.
Even so, bringing in this debate was unnecessary. Moreover, it ignores the basic fact that caste is not necessarily altered by economic status, and introducing this concept in Scheduled Caste and Scheduled Tribe reservations, undermines the essence of affirmative action aimed at social justice.
Jst. Pankaj Mittal’s efforts at sanitization of caste in Vedic Hinduism:
Vedic Hinduism is structured by the four-fold varna system of social classification ascribed by birth, with jatis being the everyday manifestation of caste hierarchy. Anyone who argues otherwise is either uninformed about Vedic Hinduism, or for political purposes, seeks to sanitize it. Jst. Pankaj Mittal has authored a concurring judgment, which is in agreement with the judgments of Jst. Chandrachud and Jst. Gavai. However, he also insists “since the matter in issue is basically concerning “reservation”, I consider it to be of utmost importance and, therefore, deem it appropriate to pen down my own views separately”. (para 9)
Among the views penned by Jst. Mittal in this concurring judgment are his views on the manner in which caste was born in Indian society. Referring to the Bhagwad Gita, Jst. Mittal states as follows: “According to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature.” (para 59). Thereafter referring to the Skanda Purana, Jst. Mittal states that “… the duties of Brahmins, Kshatriyas, Vaishyas and Shudras were distributed according to their qualities (guns) and nature (and not by birth). All people have different nature and characteristics. Their personality is shaped according to their qualities (gunas). Thus, different professionals duties are suited to persons of different nature and character. Since the center of society is God (Parmatma), everyone (atma) works according to their intrinsic qualities to sustain themselves and the society. (para 63) In effect, Jst. Mittal concludes that there was no caste system in ancient India i.e., Bharat.” (para 66). Had he been alive, Dr. B.R. Ambedkar would beg to differ with Jst. Mittal.
These alarmingly ahistorical comments on origin and spread of caste were definitely not the issue before the Court, and reflect a deeply problematic Brahmanical mindset that has been thoroughly debunked by Dr. Ambedkar and legions of scholars. Moreover, they belie a majoritarian political agenda that seeks to ignore the inequities that are embedded not just in the scriptures and practices of Vedic Hinduism, but also in the daily practices of all religions in our country.
If this were not enough, Jst. Mittal proceeds to suggest that the “policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities”. Further it is also concluded that “any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste” suggesting that it “may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural)”.
Equally problematically, Jst Mittal also concludes that “reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation”. Jst Mittal also suggests that a “periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category”.
These comments/conclusions betray a creative reinterpretation and sanitization of Hinduism, not to mention a poor understanding of reservations as a key aspect of affirmative action, meant to ensure participation of Scheduled Castes and other marginalized and oppressed sections, in all walks of life. Furthermore, it ignores the fact that Scheduled Caste reservation as an affirmative action is meant to counter and mitigate the continuing reality of social exclusion and marginalization facing India’s Dalit-Adivasi population across both rural and urban settings and across multiple generations. To casually remark that a historical marginalization of centuries and generations can be corrected within one generation is insensitive and unbecoming of persons tasked with the responsibility of upholding the constitution. There is a gross disregard of Indian reality where Scheduled Caste students and scholars continue to face atrocities even in reputed universities and other centres of higher education like IITs, IIMs and medical and engineering colleges.
Moreover, Jst. Mittal’s reasoning resembles a march back to the 1950s and thereafter when reservation (or any other form of affirmative action) was regarded as antithetical to the equality principle and not a re-statement of it.
Resolving the dilemmas in concurring judgments?
In regard to the conclusions and observations of Jst. Gavai and Jst. Mittal, it must be said that multiple opinions in judgments of Constitutional Benches is a common occurrence, and Judges’ elaboration of their views on aspects that were not in issue before those Benches. These do not become the “law declared by the Court” so as to have binding effect under Article 141 of the Constitution which states that the law declared by the Supreme Court shall be binding on all Courts across India. Quoting from Director of Settlements, A.P. v. M.R. Apparao [10]: “A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision”.
Interestingly, Jst. Bela Trivedi’s in her dissenting judgment has pointed to the legal position in such a situation as follows: “Not all that has been said in the body of judgment would become a precedent or binding for other Courts. The judgments of the Constitution Benches have to be read in the context of questions which arose for consideration before them. Certain observations made in the judgment may be necessary for deciding the issues involved, but every observation made on law in the course of delivering the judgment may not have a binding effect as a precedent. Any observation or remark made or opinion expressed incidentally or collaterally, and not directly upon the question posed before the Court would be an ‘obiter dicta’ and not a ‘precedent’. A decision is an authority for what it decides and not what can logically be deduced therefrom, as held in State of Haryana vs. Ranbir alias Rana [11]. It was also observed in ADM Jabalpur vs. Shivakant Shukla [12] that the statements which are not part of ratio decidendi constitute obiter dicta and are not authoritative.” (para 74)
While the remarks of Jst. Gavai and Jst. Mittal will not set legal precedents; these remarks may yet emerge as key normative standards in legal-political discourse on social justice and reservations. As such these must proactively debunk their misleading, insensitive and uninformed claims on caste, inequality and the state of social justice.
Unity on reservations but divided on sub-classification
The judgement has brought to the fore a long-standing debate regarding the ways and means to achieve social justice and equality. On one end of the spectrum, are those who argue that sub-classification is a long overdue method for ensuring that reservations reach those who need it most; on the other end are those who suggest that this is a politically divisive strategy that dilutes the historical injustices and ongoing indignities faced by Dalits and Adivasis, and undermines their sense of collective identity, and pave the way for their co-optation by majoritarian politics.
Sukhadeo Thorat, the former Chairman of the University Grants Commission and Professor Emeritus at JNU, has argued that if some of the sub-castes are lagging behind, that is not because of discrimination by the other sub-castes but a factor of the denial of educational opportunities caused by lack of income earning capital assets. In making this argument, Sukhadeo Thorat invokes the three policy prescriptions fought for by Ambedkar – legal safeguards against caste discrimination, reservation in the legislature, public jobs, education institutions, and measures to improve ownership of capital assets such as land, businesses and education levels, to drive home the point that these three measures are complimentary to each other and cannot be viewed as standalone solutions. As such, he cautions, that sub-caste reservations would not be the solution without academic justification and the factual reality based on data of sub-castes, and an improvement in their ownership of capital assets and education levels.
Others have questioned the very foundational basis for sub-classification claims by arguing that the question posed is in itself erroneous, that is to ask whether there is disparity between various sub-castes within the Scheduled Castes since the argument of economic or social forwardness within Scheduled Castes is not the cause of this disparity, and furthermore, it cannot be argued that all among those so-called dominant Scheduled castes enjoy identical levels of benefits and entitlements. At the core of this rejection of sub-classification, lies the belief that this creates hierarchical distinctions within a community that is socially and economically oppressed and undermines the very purpose of reservations that is to redress some of the redress historical injustices faced as a community. Sub-categorisation, it is feared will reduce the unity and united struggles of Scheduled Castes leading to increased oppression, marginalisation and disenfranchisement.
The proponents of sub-classification point to the decades-long democratic struggles particularly in Andhra Pradesh, Karnataka, Tamil Nadu (and to lesser extent in other states), of Scheduled Caste groups that have demanded sub-classification by pointing to their inter se backwardness and extreme underrepresentation vis-à-vis other Scheduled castes groups. This, they believe, is vindicated by the reports of various committees including the Jst. Sadashiva Committee (in Karnataka), Jst. Ramachandra Raju commission (Andhra Pradesh), Jst. Usha Mehra commission (Union of India committee constituted for Andhra Pradesh), which confirm that some sub-groups have not been able to reap the benefits of reservations as other sub-groups. They believe that the other sub-groups ought to support their demand for sub-categorisation in a spirit of forging a militant unity against the assault on reservations, in particular, and social justice, in general.
These differences or a divide as some see it, is a manifestation of the deep mistrust in the ruling class, particularly the Modi regime, and the consistent effort to undermine social reservations through various means – whether it is EWS, or the judiciary-induced limitations like creamy layer and 50% cap. As such, given that, despite contrasting stands on sub-classification, progressive forces are united by the belief that any decisions around reservations must be done with a view to strengthen, and not weaken, the process of empowerment of marginalized communities, it is necessary that caution prevails to revitalise the united struggle for social justice politics.
Conclusion
In sum, with this verdict, the State will be well within its rights to sub-classify Scheduled Castes for the purposes of reservation. The three impugned legislations from Punjab, Haryana and Tamil Nadu which have led to this Constitutional Bench judgment will now be taken up for hearing. The outcome of this will be eagerly awaited since the tests for sub-classification will be applied on these legislations, further clarifying the extent and scope of permissible sub-classification within Scheduled Caste reservations.
We must also remember that the approval is for sub-classification, based on empirical data of relative marginalization, within Scheduled Caste reservation, as such it would require a comprehensive caste census without which there is no realistic basis to assess the degree of relative deprivation of diverse castes. A caste census and a proportionate formula of reservation to ensure due and adequate representation of all under-represented groups is thus the most crying need of the hour.
Aggressive privatization and the shrinking of the welfare state under the fascist Modi regime, has drastically reduced the opportunities for state education and employment. This is coupled with the conscious policies of the Government of withholding recruitment indefinitely, the inadequate implementation of existing provisions of SC/ST reservations in jobs and education, the lack of consideration of the possibility of reservations in the private sector, and a general weakening of policies promoting equality and social justice. It is only a matter of time before these opportunities completely dry up, as is the intent of this regime.
It is the need of the time that the tactics of Not Found Suitable (NFS) to keep reserved posts unfulfilled is done away with proper legal-political intervention. The Bihar Caste Survey had brought out the acute marginalisation of oppressed communities even after 77 years of independence. There is a need to rethink about the 50 percent limit to reservation and take necessary steps to expand the scope of reservation and ensure reservation in the private sector as well.
The constitutional provision of reservation as a tool for social justice and equality, now the constitution itself, is under increasing attack, and we need greater unity and solidarity among all marginalised, oppressed and deprived sections of the society. The internal reservation question is one that is best addressed socially rather than by law reform. As such we have to make sure that this judgement does not lend itself to promoting more division and rivalry among the oppressed and the deprived and serving the divide-and-rule strategy of the powerful and the privileged to reinforce their social and economic domination, but rather strengthens the collective fight against social exclusion and marginalisation, upholding the principles of social justice and equality.
Notes:
1. Judgement dated 29th March 2010, of the High Court of Punjab and Haryana, striking down provisions of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006, that set aside 50% of the vacancies of the quota reserved for the Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, if available, as a first preference from amongst the Scheduled Castes.
2. Judgment dated 6th July, 2006 of the High Court of Punjab and Haryana quashing the notification dated 9th November, 1994, which classified Scheduled Castes in the State were into two categories, Blocks A and B - for the purposes of reservation. Block B consisted of Chamars, Jatia Chamars, Rahgars, Raigars, Ramdasias or Ravidasias. Block A consisted of the remaining thirty-six castes in the list of Scheduled Castes for the State. Within the quota reserved for Scheduled Castes in direct recruitment for Government jobs, fifty percent of the vacancies were to be offered to candidates from Block A and the other fifty percent were to be offered to candidates from Block B. Thus, preference would be given to castes belonging to Block A and Block B in the fifty per cent earmarked for them.
3. Arunthathiyars (Special Reservation of Seats in Educational Institutions including Private Educational Institutions and of Appointments or Posts in Services under State within the Reservation for the Scheduled Castes) Act, 2009 that provides for reservation of seats to Arunthathiyars, within the seats reserved for the Scheduled Castes, in educational institutions, including private educational institutions in the State and for appointment in services under the State
4. (2005) 1 SCC 394
5. (1992) Supp (3) SCC 217
6. (2020) 8 SCC 65
7. (2020) 8 SCC 1
8. (2018) 10 SCC 396
9. (2020) 8 SCC 1
10. 2002 (4) SCC 638
11. (2006) 5 SCC 167
12. (1976) 8 SCC 521
