In early February, a Constitutional Bench comprising seven judges heard the matter on the permissibility of sub-classification among Scheduled Castes (SC) and Scheduled Tribes (ST). After hearing the case for three days, the bench reserved its judgement. The bench, led by Chief Justice of India DY Chandrachud, also comprised Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma.
In 2020 in State of Punjab v. Davinder Singh, the five-judge bench observed that the judgement of the coordinate bench in EV Chinnaiah v. State of Andhra Pradesh, (2005), which held that sub-classification was not permissible, had to be reconsidered. Sub-classification indicates introducing a preferential quota under the existing quota for ‘the weakest of the weak’ within the SC, ST categories.
As a person from the SC category, I discuss the issue of sub-classification among SCs and try to overview the practicality proposed by the petitioners through critical sociological and intersectional standpoints.
Reservation is part of a larger affirmative action policy adopted by the Constitution of India. The makers of the Constitution recognised the historical subjugation of a huge section of Indian society who were stripped of their human personality and made untouchables (Dalits or SC which is narrow administrative nomenclature) through the hierarchical caste system. To ensure the adequate representation of these historically oppressed and downtrodden communities, reservation was made an integral part of the Constitution.
It is important to make a distinction here that affirmative action policy is not a socialist initiative by the State to uplift these subjugated communities. It is part of a broader reparative justice responsibility of the State and democratic inclusion to ensure their adequate (not proportionate) representation in the State apparatus itself.
On the first day of the hearing on February 6, Justice Gavai (who belongs to the SC category) while hearing the petitioners made interesting remarks on the carrying forward nature of reservation policy. He said, “Within a particular backward class, certain caste has reached that position and power, then they should move out but then that is only for the Parliament to decide… now what happens, a person from SC/ST gets into IAS / IPS etc, once you are into that, their children do not suffer the disadvantages that persons from other SC communities suffer. But then, by virtue of reservation, they are also entitled to the second generation and again the third generation.” (sic)
This narrative that economic progress is the ultimate progress which alone will lead to upliftment in social status of a person or a family, erasing the stigma of caste, is false. Economic upliftment was never the primary aim of the reservation policy; I would call it a by-product of the process. The quintessential objective of the policy is to ensure representation of the community in state education and public sector jobs, which was systematically denied to them for centuries. Caste does not only work in primitive traditional forms today; for example, the overt practice of untouchability or denial of public road/water source/education to ‘outcast’ people. But over time, it has undergone a metamorphosis and is practised in more subtle and invisible ways. For example, discrimination in educational institutions, especially in higher education, leading to marginalised caste students dropping out. It has also been established that discrimination is prevalent in private sector enterprises in India – another example of how caste discrimination is practised in contemporary times.
The stigma of caste discrimination and humiliation does not fade away completely once you get economic mobility. Jitan Ram Manjhi, current Cabinet Minister and then Chief Minister of Bihar, whose socio-economic mobility cannot be denied, faced public humiliation when the temple and idols were ‘purified’ after his visit to a temple in Madhubani in 2014, because of the ‘untouchable’ caste he belongs to. It is important to understand here that the lived experiences of caste not only negatively affect a person at an individual level, but these isolated instances or public incidents of discrimination and heinous caste atrocities perpetuate collective trauma on the community as a whole. I have earlier argued that caste discrimination and atrocities need to be addressed as collective trauma. If the whole community is negatively affected because of its caste identity, then how do we measure relative social forwardness/backwardness within the SC category?
Empirical social studies show that the more politically and culturally assertive the oppressed caste (SC) is, the more it is prone to caste violence and atrocities from the dominant caste groups in society. This means relative forwardness makes the caste group more vulnerable to caste hate crimes. How do we take this into account in the process of sub-classification?
In the landmark NALSA v. Union of India (2014) judgement, the Supreme Court recognised transgender persons as a Socially and Educationally Backward Class (SEBC) of citizens, acknowledging that they are extremely marginalised in society. In the context of sub-categorisation, trans persons belonging to SC communities face two-fold marginalisation, by virtue of being SC and trans. The question arises here – because the State wants to ensure representation of the most backward – shouldn’t the State also provide preferential quota-under-quota for trans persons belonging to SC communities? Many transgender activists and scholars have been demanding horizontal reservation for the trans community, but this did not emerge during the court proceedings in the sub-classification case.
There is also a strong political demand for the inclusion of Dalit Christians (DC) and Dalit Muslims (DM) in the SC category. Because of their caste location, DC and DM face social subjugation but lack constitutional safeguards unlike caste groups that are recognised as SC. This matter is sub judice.
There can be other kinds of structural marginalisation or barriers within the SC community that are depriving its members from full participation in society. Then how can the State take those barriers into account while implementing the policy to ensure their representation?
It was expected that the court would seek comprehensive data on socio-economic and political representation of various castes under SC and ST from the State in order to decide on sub-classification. No such data was asked by the court nor produced before the court by the State. In the absence of such data, how efficient will any exercise be in measuring forwardness and backwardness within one administrative category? In the absence of comprehensive data on caste-based socio-economic and political representation, this exercise might face the risk of generalisation or error.
Will sub-classification have any impact on group solidarity?
Like any other social category in our country, SC is not a homogeneous group. It consists of hundreds of castes, diverse in culture, geographically scattered, speaking different languages and politics. So, whether there is unity in the SC community is a difficult question to answer. And I am not the right person to address it. Having said that, as an SC person I observe that, because of our similar political demands and aspirations, shared past and current social vulnerabilities as ‘ex-untouchable’ castes, there is generic fraternity among the larger SC community. This is in no way an attempt to homogenise these classes and deny the different political assertions, cultures, religions present in these categories.
The proposed sub-categorisation may lead to further segregation due to sub-quotas. Inter-caste fraternity might get challenged because of further administrative divisions. This may lead to stringent caste identity assertions which might become a hurdle for those who believe in eliminating caste as a way forward. Here we must be mindful that Dr Ambedkar had propounded that annihilation of caste is necessary for social democracy and for establishing liberty, equality, and fraternity in society.
During the court proceedings, phrases like ‘weakest of the weak’ and ‘most backward’ were used extensively while arguing for the case by the prosecutor. If the State really intends to ensure adequate representation of the ‘weakest of the weak’ from the SC community, it has powers enshrined in the Constitution to go ahead and increase the quota percentage for the community. It is important to note that the Constitution advocates for adequate representation, and to achieve this objective the State can provide representation to the ‘weakest of the weak’. For this, the State can surpass the existing proportionate representation formula.
The 50% limit, ‘Lakshman Rekha’ as it is called, set out in the Indira Sawhney (1992) case by the Supreme Court has been breached many times by states such as Tamil Nadu and Maharashtra. In the last instance, it was breached by a straightforward 10% for the ‘poor among general category’ within historically forward castes in the name of Economically Weaker Sections (EWS). It is certain that if the State decides to implement the suggestion by a constitutional amendment, the Supreme Court will hopefully uphold its validity as well, as it did in the case of the EWS constitutional validity judgement.
It is likely that the Supreme Court may deliver a judgement in favour of sub-classification. These are some of the critical complexities that will arise while exercising the task of sub-classification. The State, respective communities, and civil society in general needs to think it through.
Prashant Bhaware is an LLM student at the National Law School of India University (NLSIU), Bengaluru.
Views expressed are the author’s own.