Sub-categorisation debate: Unanswered questions

With debates around the creamy layer principle coming to a head, what is the future of affirmative action in India?

The recent Supreme Court judgement in State Of Punjab And Ors v Davinder Singh And Ors, pertaining to Scheduled Castes and Scheduled Tribes, has stirred debates on the future of affirmative action in the country, and has far-reaching political consequences. The seven-judge bench judgement — split at six-one — introduced two concepts —Scheduled Castes are not a homogenous group and can therefore be classified into groups for the purpose of reservations; and that SCs and STs can be equated to ‘other backward classes’ by imposing the creamy layer principle based on economic criteria.

The arguments heated up when Dalit and tribal political parties were the first to oppose the imposition of a creamy layer provision. Mayawati’s Bahujan Samaj Party, Chirag Paswan’s Lok Janshakti Party, Rajkumar Roat’s Bharat Adivasi Party and Chandrashekhar Azad’s Azad Samaj Party denounced the judgement. Chief Ministers of Telangana and Karnataka, both from the Congress and Jitan Ram Manjhi’s Hindustani Awam Morcha welcomed the Supreme Court judgement immediately. So did the Telugu Desam Party, which made provisions to sub-categorise Dalits in the year 2000. After a long silence, Congress said it would oppose sub-classification, and that applying the creamy layer principle would crush SC and ST communities. Samajwadi Party leaders opposed it too.

In 2018, a Supreme Court judgement diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, leading to widespread protests by Dalits on April 2, 2018. This forced the Modi government to amend the Act within four months. 

Now, within ten days of the sub-categorisation judgement, the BJP at the Centre has stepped back on the matter of creamy layer, with the official statement being: “according to the Constitution given by B R Ambedkar, there is no provision for a creamy layer in the SC-ST reservation.”

Ambedkar’s Constitution did not have the provision for sub-categorisation either. The BJP is yet to take a position on this issue. Dalit parties have already called for a nationwide bandh on August 21. Election-bound states like Jammu and Kashmir, Haryana, Maharashtra and Jharkhand will throw up challenges for all parties on sub-classification.

The Congress Manifesto, ahead of the 2024 Lok Sabha elections, promised to nullify the Indra Sawhney judgement rule of limiting reservations to 50%. The removal of the creamy layer for OBCs was a part of the manifesto of some parties, like the Pattali Makkal Katchi of Tamil Nadu.

The recent Supreme Court judgement, firstly, allows states to sub-classify SCs by declaring them a heterogenous group. 

Secondly, the judgement ventures into the obiter dicta of other judgements. It opines on the imposition of creamy layer on SCs and STs, and allows states to make policies to apply this principle. The communities, however, seem to have been handed this creamy layer judgement without being heard.

The Supreme Court bench was hearing an appeal by the Punjab government against the 2004 judgement in E V Chinnaiah v State of Andhra Pradesh, where a five-judge Constitution bench declared that the sub-grouping of Dalits is unconstitutional, since they are a homogenous group. By calling SCs heterogeneous, the apex court could be treading a path of opening up doors for non-Hindus to enter the list of Scheduled Castes, fitting into the newly created heterogeneity concept. 

SCs have been listed solely on the basis of the practice of untouchability, and after the 1911 Census, they became a constitutional category in the Government of India Act, 1935. This continued in the Constitution of India and Presidential Orders on the basis of the 1931 Census listing.

In the current case, the Supreme Court, while delivering an opinion on sub-classification, supported the imposition of a creamy layer on Dalits and STs. This was outside the ambit of the questions before the court.

A similar issue happened with regard to the Mandal judgement of 1992, when the nine-judge bench, while accepting reservation for OBCs, also imposed conditions on reservations. This included (i) the 50% rule, (ii) the 27% reservation limitation for 52% OBCs, (iii) the creamy layer rule, (iv) abolishing reservation in promotions for SCs, STs and OBCs. 

While the Mandal judgement abolished reservation in promotion, the Congress government, under P V Narasimha Rao invalidated this through the 77th Amendment to the Constitution in 1995. 

This resulted in a series of Supreme Court judgements, adversely impacting reservations in promotion. The Vajpayee government passed the 81st, 82nd and 85th Amendments to the Constitution in 2000, further nullifying the judgements, making it four amendments in five years. The Supreme Court further diluted reservation in promotion by imposing more conditions in its 2006 Nagraj judgement, and there has been no change since then.

One should understand that SCs and STs are not only fighting against the societal dominance of the privileged castes dragging them to the Constitutional courts. Dalit communities also neither have the funds nor the resources to fight in courts for their rights. They rely on natural justice in the parliamentary process. 

The representation of Scheduled Castes and Scheduled Tribes in services in the states have not yet reached the required level. Economic criteria and creamy layer could affect the availability of candidates and could further increase the number of unfilled jobs in Indian Institutes of Technology, Indian Institutes of Management, universities and scientific institutions. Even now, reserved posts are vacant in many institutes due to discrimination against people from oppressed castes. 

Unlike dominant castes and backward classes, several people from the Dalit communities have no assets to be evaluated on economic criteria. The creamy layer concept could do more harm than benefit the implementation of reservations. 

Sub-classification might open a Pandora’s box of issues. In the absence of 2021 Census data, the current population strength of the sub-castes needs to be ascertained first through enumeration. This would mean a caste census. The data can then be used to understand the adequacy of provisions. Implementing this judgement would, therefore, be fraught with long-drawn processes.

At the cusp of 75 years since the Constitution came into force, as we look back, we are still far from one of the primary mandates of the Constitution — the abolition of untouchability. 

The parliamentary scrutiny of the fallout of the recent judgement would be interesting to watch.

The Supreme Court took 11 years in the Safai Karmachari Andolan v Union of India case of 2003 to pass its judgement. It is yet to be implemented in the abolition of manual scavenging and the rehabilitation of manual scavengers.

By narrowing its vision to solely deal with repetitive appeals against reservations by majority groups, Constitutional courts could lose sight of two important mandates: The abolition of untouchability under Article 17, as well as the special care for the social and economic upliftment of oppressed castes under Article 46. 

Amidst this charged debate around reservations, in 75 years, we have to a large extent failed to stop the abject and heinous indignities and atrocities committed against oppressed communities. The current judgement could be a distraction from this primary duty. 

(Rehnamol Raveendran teaches Political Science at the University of Allahabad)