In State of Punjab and Others versus Davinder Singh and Others (August 27, 2020), the bench led by retired Justice Arun Mishra supported the classification of the Scheduled Castes (SCs) into “more backward” and “backward”, and preference to the more backward castes for reservation in appointments.
However, the five-judge bench decided to refer the question for the final decision to an 11-judge bench, because in its opinion, the nine-judge bench in Indra Sawhney versus Union Of India And Others (1992) observed that such sub-classification is permissible, whereas the bench in E.V. Chinnaiah versus State Of Andhra Pradesh And Others (2004) misread the Indra Sawhney case.
Ambiguities in Indra Sawhney case
At the outset, it must be understood that the sub-classification into “backward” and “more backward” arises because Article 16(4) of the Constitution recognises a category “backward class of citizens” and, therefore, ideally, sub-classification, if any, should be done for that only. There is no need to further classifying the sub-categories. However, paragraph 92A of the judgment which deals with the issue is ambiguous on this point.
The questions identified for consideration by the bench in paragraph 26 make it clear that the bench intended sub-classification of the broad category – backward class. As a safeguard, the illustrations given in para 92A explain that classification into backward and more backward classes must be consistent with the fact that the former is far less backward than the latter.
Due to the ambiguity in Indra Sawhney, the observation made in Chinnaiah that Indra Sawhney was confined to sub-classification of other backward classes (OBCs) only is of no consequence.
Further, assuming (though not admitting), that Indra Sawhney implied sub-classification of SCs as well, the scale of social backwardness in different castes in the SC category must be taken into account. Considering the prevailing social backwardness of SCs as a result of varied forms of discrimination, the sub-classification is invalid. This leads to the larger debate as to the homogeneity of SCs.
Are SCs a homogeneous group?
It is important to clarify that the following argument is in addition to and in agreement with the observations made in Chinnaiah, in which the five-judge bench explained the theoretical basis for asserting the homogeneous nature of SCs and declaring their sub-classification as a violation of Article 14. However, there are some practical aspects which give the SCs a homogeneous character.
Historically, homogeneity or oneness of the SCs is based on the shared experiences of domination and ill-treatment by the so-called upper castes, leading to their dismal socio-economic status. A denial of the homogeneity must be supported, at the very least, by facts that point to not only the miserable experiences common to all the sub-castes within SCs, but also to the attitude of upper castes which has changed towards some of them.
While dealing with the question of homogeneity in the context of reservation, a look into the Constituent Assembly debates is necessary. The reason for reservations is that the interview boards consisted of people from the upper castes who did not select candidates from the deprived communities due to an ingrained class bias.
This is evident from the statements of Harijan members R.M. Nalavade and H.J. Khandekar made before the Constituent Assembly. It is because of this that the motions to discard the provision of reservation and to limit reservation for ten years were negated in the Constituent Assembly. This also confirms that reservation was not provided to eradicate poverty from these sections.
The reference to the Constituent Assembly debates is relevant because if the SCs are still discriminated against as a whole in matters of public employment and in other walks of life, reservation must continue in its original form. This is explained below.
(a) Discrimination in public employment: One of the main ways of discrimination in public employment, for instance, is that candidates belonging to SCs are rarely appointed to higher public posts especially, those posts for which names of candidates are recommended for selection.
For example, judges (in the high courts and the Supreme Court), top-level bureaucrats, cabinet ministers, directors, vice-chancellors, professors, chairpersons, attorney generals, advocate generals, solicitor generals, to name a few.
An individual cannot apply for these higher positions, except a few of them, despite satisfying the eligibility criteria. The liberty to recommend names in the absence of reservation only fosters caste prejudices because SCs are hardly represented among those who make the recommendations. In such a scenario, caste works as a qualification for some, and a disqualification for others.
Consequently, the benefit of reservation and representation of SCs are confined to the lower and middle-rung government jobs. Higher positions which could lead to affluence and better socio-economic status continue to be the monopoly of the upper castes.
It is important to note here that the omission of candidates belonging to the SCs in higher appointments is not because one belongs to a particular caste in the category of SCs, but to any caste within the category. Belonging to the broad category of SCs is sufficient to qualify for disqualification and consequent rejection. In that sense, it may be noted that it is a “fair” discrimination.
The under-representation of SCs in the higher rungs of public service has been noticed by international bodies as well. For instance, the Committee on Elimination of Racial Discrimination, which ensures implementation of the UN Convention on Racial Discrimination, to which India is a party, has recommended in its Concluding Observation (2007) that India should “apply the reservation policy to all categories of public service posts, including the highest, and extend it to the judiciary”.
(b) Caste-based offences: Another significant fact is that the rate of caste-based offences (not counting an equal rate of unreported cases) against the SCs is increasing according to NCRB reports. This is why parliament had to make the SCs and STs (Prevention of Atrocities) Act, 1989, more stringent by amending it twice in the last five years, in 2016 and 2018.
Moreover, incidents of caste-based torture and humiliation are not limited to the poor or illiterate. Public servants, students and the urban population belonging to the SCs also face it in varied forms. These crimes are committed irrespective of the sub-category of the scheduled caste the victim belongs to.
It is thus evident that discrimination and caste-based violence do not depend or vary on the basis of different castes within SCs. Therefore, SC is a homogenous class. The sub-classification among SCs for the purpose of reservation is unconstitutional and contrary to the intention of the framers of our constitution.
It shies away from the stark realities of discrimination. In fact, it is a subversive, flawed attempt to introduce through the back door the concept of the creamy layer in reservation for SCs, which is wholly unconstitutional, as held by the apex court in Indra Sawhney.
Given the theoretical underpinnings and ground realities denying the sub-categorisation, the central government must withdraw the proposal of amendment of Article 341 and of consequent sub-classification of SCs. Notably, fourteen states have already opposed the initiative, while only seven states agree with the move, and the rest of them did not respond. On the grounds detailed above, even the insertion of Article 342A cannot justify sub-classification of SCs.
Trickle down benefit
The “million dollar question” raised by the bench led by retired Justice Mishra is “how to trickle down the benefit”. In fact, the retired judge had answered this question himself a few months earlier in his own judgment in Chebrolu Leela Prasad case:
The right to information system has to be strengthened at the village level. People must know how the money meant for development has been utilised. Transparency of administration is vital for the removal of corruption. They are required to be motivated. They must know what has been allocated to them and how it has been spent. There is a need to improve the system, ensuring the implementation of beneficial measures. (paragraph 105)
In respect of the STs, the judge specifically wrote that:
The benefits of developments have not reached them, and they remain isolated in various parts of the country. The social and economic upliftment and education are necessary for tribals to make them equal. (paragraph 107)
On the similar lines, the bench in E.V. Chinnaiah observed that:
If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others …
What was necessary in the situation was to provide to them scholarships, hostel facilities, special coaching, etc., so that they may be brought on the same platform with the members of other Scheduled Tribes …
It is regrettable, however, that instead of directing the government to implement reservation and other welfare policies effectively, to strictly implement laws meant to protect the SCs and STs, to stop privatisation, to recruit against backlog vacancies and stop making anti-reservation laws, the court is setting the executive free of its constitutional obligations towards the marginalised and downtrodden.
Kailash Jeenger teaches at the Faculty of Law, University of Delhi.