Subclassification of Scheduled Castes: Policymakers face the challenge of addressing inequality without fracturing unity

Supreme Court ruling aims to level the playing field within marginalised communities, but risks deepening existing fault lines.

The family of a deceased sewer worker at a protest called by Bezwada Wilson at Jantar Mantar in New Delhi on September 25, 2018. | Photo Credit: VARUN GUPTA

In A Crusade For Social Justice: Bending Governance Towards the Deprived, the late civil servant-turned-crusader-for social justice, P.S. Krishnan explains to his biographer, Vasanthi Devi, the roots of inter-se inequality within the Scheduled Castes in India succinctly. According to him, when reservation commenced well before Independence, there was not much variation in the conditions of different Dalit castes. 

However, as reservation and other social justice measures such as education progressed, the levels of progress of different Dalit castes began to diverge. The reasons for the divergence are varied. The pattern of regional development, Krishnan explains, shows that coastal States and regions have got their advantage. Areas where there has been irrigation from reliable sources have been able to advance better. This is true of all castes, and also of Scheduled Castes (SCs).

For example, the Mala community of SCs are largely in the coastal Andhra Pradesh, while the other major SC community, the Madiga, which is the same as the Arundhatiyar of Tamil Nadu, is mainly concentrated in the interior parts of the State, namely, Rayalaseema and Telengana. This has resulted in lower capacity of the Madiga community in securing the benefit of reservation. 

Communities that had exposure outside India, castes whose members entered military service have had relative advantages. Many members of the Mala community of coastal Andhra Pradesh went to and worked in Myanmar. They returned with a higher levels of awareness. Members of the Mahar community of Maharashtra and members of the Chamar/Jatav community of North India had a place in the armed forces of the British rulers. Those exposed to military life returned with a higher level of awareness. 

Castes tied down to occupations such as manual scavenging had greater disadvantages. The Madiga community and the Arundhatiyar of Tamil Nadu have been a major source of manual scavenging labour. Similar is the case of Balmiki group of communities in the Punjab region. This is reflected in their relative incapacity to benefit from reservation and other social justice measures.

The Madiga/Arundhatiyar community, Krishnan explains, is linked not only with manual scavenging, but also with skinning of animals, in addition to agricultural labour. The stigmatised occupation constitutes a specific disadvantage.

This gap has created strains between Dalit castes. The solution to the problem, according to him, has to be found through measures that will not widen the fissures and misunderstanding between them. The relatively most advanced SCs must understand the plight and agony of the Dalit castes left behind. At the same time, the less advanced castes of the SCs should not attribute the responsibility for their disadvantage on the most advanced Dalit castes, he suggests.

Political parties and dominant castes should not fish in the troubled Dalit waters and Dalit castes should have an understanding that internal fissions and conflicts among them will weaken the movement for social justice and equality, Krishnan adds.

On August 1, a seven-Judge bench of the Supreme Court in The State of Punjab vs Davinder Singh, in a 6:1 judgment, upheld the State governments’ efforts to address the inequality among the SCs, through sub-classification, and thereby strengthen the movement for social equality as envisaged by Krishnan. The six majority judges of the bench, while ruling that sub-classification of the SCs for reservation is constitutionally permissible, however, added that it should be based on quantifiable data regarding social backwardness and inadequate representation in services of those within the SCs, meriting such special privilege.

The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 Section 4(5) stipulates that 50 per cent of the vacancies of the quota reserved for the SCs in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, if available, as a first preference from amongst ther SCs. The Punjab and Haryana High Court had declared this section unconstitutional, relying on the judgment of the Constitution Bench of Supreme Court in E.V. Chinnaiah v State of Andhra Pradesh (2004).

On August 20, 2014, a three-Judge bench referred the correctness of Chinnaiah for consideration by a larger bench. The validity of the striking down of the notification issued by the Haryana government in 1994, classifying SCs in the State into two categories by the High Court on the basis of the Supreme Court’s ruling in Chinniah, also remained to be tested.

Section 3 of the Tamil Nadu 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 SCs) Act 2009 stipulates that 16 per cent of the seats reserved for the SCs in educational institutions shall be offered to the Arunthathiyars, if available, having regard to the social and educational backwardness of the community. Section 4 makes similar provisions for Arunthathiyars in recruitment to Government posts.  The Act was challenged in the Supreme Court, citing Chinnaiah.

Chinnnah was in response to the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. The Ramachandran Raju Commission constituted by the then-Andhra Pradesh government found inter-se backwardness among the SCs in the State in matters of reservation in education and employment. The Act apportioned the benefits of reservation among SCs into four groups: A, B, C, and D in varying percentages: 1 per cent for group A, 7 per cent for group B, 6 per cent for group C and 1 per cent for group D, subject to the availability of eligible candidates. The Andhra Pradesh High Court rejected challenges to the Act, leading to appeals that came to be decided in Chinnaiah.

A tannery worker dries animal skin on a road in Chennai, June, 2023. | Photo Credit: SRINATH M

The appellants argued that the State legislature lacked the legislative competence to enact the law. Once enumerated in the Presidential List under Article 341, the SCs constitute a homogenous class, which is incapable of further subdivision/sub-classification, Supreme Court ruled in Chinnaiah.

In State of Punjab v Davinder Singh, a Constitution bench held that Chinnaiah requires to be revisited by a larger bench of seven Judges because it failed to consider significant aspects bearing on the issue. 

Exclusion of creamy layer

In Jarnail Singh vs Lachhmi Narain Gupta, the SC observed that the exclusion of the “creamy layer” from the SCs for securing the benefit of reservation does not tinker with the Presidential List under Article 341. But this is a contentious issue, as the issues of sub-classification and creamy layer are different. Those who defend sub-classification do not necessarily argue in favour of exclusion of the creamy layer from the SCs. Yet, two of the six majority Judges have, in the August 1 judgment, defended the exclusion of creamy layer from the SCs, though the issue was not before the Court. 

Preferential treatment promotes substantive equality.  If the SCs list were to be treated as a monolith, it would render the second part of Article 16(4) otiose and make the role of the States redundant, the judgment authored by the Chief Justice of India, D.Y. Chandrachud and Justice Manoj Misra held.

While the creamy layer excludes the socially advanced, sub-classification aims to identify within the SCs, those who face the maximum social discrimination; preferential treatment identifies certain castes within the SC list, while the creamy layer exclusion applies to individuals, Justices Chandrachud and Manoj Misra held.

Article 14 does not only mandate equal treatment to all, but also bars discrimination by equal treatment of unequals. Article 38(2) entitles those who are unequal in status to special treatment to bring them on the same plane. The majority of judges noted these contentions of the counsel.

Members of disadvantaged sections, given the opportunity, would overcome the barriers and prove their merit. The members of the SC and ST communities are often unable to climb up the ladder because of the stigma of incompetence held against candidates who are selected through reservation.  The stereotype operates against them because they are externalised as “affirmative action beneficiaries” or “quota candidates”.  The amendments carried out by Parliament, following the Supreme Court’s judgment in Indra Sawhney in 1990s, to protect reservation in promotions are an emphatic repudiation of the binary of reservation and merit, the Chandrachud-Manoj Misra judgment observed.

The bench noted that the use of the word “any” in Article 15(4) provides the State with the power to make any special provisions for the SCs and STs. It recognises the wide power of the State to employ a range of means to secure substantive equality. This would include sub-classification within the SCs, the majority Judges held.

Inter-se backwardness within the class is a roadblock to achieving substantive equality. Sub-classification is one of the means to achieve substantive equality, they emphasised.

Inter-se backwardness can be identified based on inadequacy of effective representation, because of social backwardness. The State must prove that the group/caste carved out from the larger group of SCs is more disadvantaged and inadequately represented, the bench made it clear.

The State must, on the basis of quantifiable data, prove that the castes suffer from different levels of social backwardness. The State must also back this with the submission of data on effective representation of the caste in the services of the State, the majority judges held.

Though sub-categorisation based on each caste is permissible, the majority of judges held that there can never be a situation where seats are allocated for every caste separately. Though 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. If the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation, they held.

Though the State is not required to collect quantifiable data to prove backwardness of the entire class of the SCs/STs, it is required to collect data to prove inter-se backwardness within the class, where it seeks to make a sub-classification within the class.

Justice Bela M. Trivedi dissented from the majority Judges, by giving a separate opinion saying that Chinnaiah was correctly decided.

Justice Pankaj Mithal, in his concurring but poorly reasoned opinion, however, argued in favour of a fresh relook at the policy of reservations itself, and evolving other methods for uplifting the depressed classes.  He also suggested that reservation should be limited only for the first 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. He recommended periodical exercise to exclude the class of persons who after taking advantage of reservation have come to march shoulder to shoulder with the general category.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.