A seven-member Supreme Court Constitution Bench on Thursday permitted sub-classification of the Scheduled Castes to ensure that the benefits of reservation go to the marginalised sections within the backward community. Sumit Pande gives an overview on the contentious issue and its political implications.
The matter relates basically to the question of whether the Schedule Castes are homogenous social groups or a mix of diversified heterogeneous communities. And hence, can these historically underprivileged social groups be sub-classified for a more equitable distribution of affirmative action intended for the SCs? In other words, can preferential treatment be given to the most downtrodden classes within these groups?
While the debate was always there, it was the former President Gyani Zail Singh who set the ball rolling when he, as the Chief Minister of Punjab, reserved 50 per cent of the government jobs for Valmiki and Mazhabi Sikhs within the 25 per cent SC quota through an executive order. Much later, in 2000, Andhra Pradesh attempted to sub-classify the SC population through an act passed by the assembly, but the statute was struck down by the apex court in 2004.
Zail Singh’s policy was quashed by a Punjab and Haryana HC order in 2006. This compelled the Amarinder Singh government to bring a new bill in the assembly to ride over the back-to-back verdicts to preserve the existing policy of sub-classification of the SC quota.
However, four years later, the new law was again struck down by the Punjab and Haryana HC. The contention over the legal validity of sub-classification of the SCs reached the apex court in 2020 when a constitutional bench started hearing a plea seeking reconsideration of the apex court order of 2004.
Those in favour argued that sub-classification “rationalised the affirmative action regime.” Some states have contended before the SC that there are disadvantaged groups within the SCs and the states should be allowed to alleviate their concerns.
Unlike the SC order in the Indra Sawhney Case that validated the sub-categorisation of the Socially and Economically Backward Classes (SEBC), commonly known as OBCs, the Scheduled Castes are homogenous groups and their sub-division would violate Article 341 by which “the Scheduled Caste as a homogenous group is created for the purpose of the Constitution."
The SC has held that Article 341 does not create “integrated homogenous classes” and sub-classification within the SCs for affirmative action, including reservations, does not include or exclude any castes from the list. This can be changed only by the Parliament. As such, Article 341 does not create a deemed class that can’t be further declassified.
Moreover, the court has maintained that historical and empirical evidence suggests SCs are heterogeneous classes, and the Indra Sawhney order does not limit the application of sub-classification to the backward classes only.
The order also expresses a need to exclude the well-off among the SCs from the benefits of reservations. Currently, the creamy-layer criteria are applicable only for the OBC quotas. Such a criteria stipulates that the benefits of OBC reservations do not apply to households where annual parental income is more than Rs 8 lakh.
The state and central governments can now make laws and lay down policies to provide differential treatment to a particular community or group within the SC category. The states can set aside a certain chunk of reservations in government jobs and education institutions for those communities who have not benefited so far from the policies of affirmative action. However, the states must establish that the inadequacy of the representation of the caste/group is because of its backwardness.
In Andhra Pradesh and Telangana, the Madiga community has been demanding sub-categorization of the SC reservation as they claim the Mala community has been the prime beneficiary of affirmative action post-independence. Ahead of the LS polls, Prime Minister Narendra Modi participated in a rally organized by the Madiga community. The union government has also constituted a panel to examine issues raised by the community. Similarly, political parties in Karnataka have sought to mobilize the SC communities along Left vs Right Dalits. The sub-classification principle, laid down by the top court, will be applicable to the Scheduled Tribes too, says senior advocate Vijay Hansaria, who has argued the matter.