Authored by Ananya Garg, a student of Chanakya National Law University, Patna.
Introduction
The case of State of Punjab v. Davinder Singh posed a pertinent question before the Supreme Court, should the state legislature have the power to sub-classify the Scheduled Castes in a state for the purpose of reservation, or is it a violation of Articles 14 and 341 of the constitution? The Punjab and Haryana high court had struck down section 4(5) of Punjab scheduled castes and backward classes (reservation in services) act, 2006 as unconstitutional in the 2010 judgment. This section provided first preference to the Balmikis and Mazbhi Sikhs castes for Scheduled Caste reservation in public services. State of Punjab then appealed against the 2010 judgment of the Punjab and Haryana High Court, and the matter was placed before the constitution bench of five judges headed by Justice Arun Mishra. The hearings of the case, State of Punjab v. Davinder Singh, concluded last month, and on 27th August the Bench referred the matter to be placed before a larger bench to decide, the reason for this referral is that another five judge bench of the supreme court, in 2004, had ruled that the state governments did not possess the power to sub-categorize the scheduled castes for the purpose of reservation.
In the present case, the Bench has found that the sub-categorization of the SC will result in the equitable distribution of the benefits of reservation among all the classes of the SC, and will help in the emancipation of the most backward classes which have been deprived and are suffering. It also found that a greater representation of the weaker sections within the Scheduled Castes will be made possible by effecting the sub-categorization. However, in the case of E.V. Chinnaiah v. State of Andhra Pradesh[1], the Supreme Court had decided that the Scheduled Castes formed one homogenous group and their sub-division for apportioning reservation proportionately would result in the violation of Article 14 of the Constitution. Furthermore, it was found that empowering the State legislature to sub-categorize the Scheduled Castes of their respective states would be contrary to the provisions of Article 341 of the Constitution. The President of India, under Articles 341(1) and 342(1), specifies the list of the castes, race, tribes, or parts of groups within the race or caste which are to be deemed as SC/ST for that particular state. The states may not tinker with this list, however, under Article 15(4), they are empowered to make special arrangements for the promotion of interests of socially and educationally backward classes of the society such as SC/ST.
Debate on Sub-classification in Reservation of SC
Sub-classification of the Scheduled Castes or Scheduled Tribes for the purpose of reservation means identifying the classes, within a Schedule Caste or Scheduled Tribe, which have not been able to avail the benefits of reservation until now and have thus remained socially and economically stressed. Until now the verdict of the Supreme Court stood against the sub-classification of the Scheduled Castes for the purpose of reservation. The leading authority on this matter is E V Chinnaiah v State of Andhra Pradesh and Others where the Court held such sub-classification unconstitutional. The states are not allowed to meddle with the presidential list effected under Article 341 of the Constitution. The special treatment is given to the Scheduled Caste because of the social injustice of untouchability that they have suffered through ages. Thus, the test of social or economic backwardness is not appropriate to be applied to SC and ST.
However, there are also views supporting the concept of subcategorization. Right to equality states that unequals should not be treated as equals as that would be a grave injustice. Reservation was not contemplated as permanent by the frames of the constitution. If the reservation is giving rise to inequalities within the reserved caste itself then it needs to be corrected by adopting distributive justice method so that the concentration of the state resources in a few hands may be prevented. There are various reports that indicate that Scheduled Castes and Scheduled Tribes do not constitute a homogenous group. Sub-categorization, in such cases, would help reallocate the resources according to the greater need of the people and this will help in realization of the goal envisioned by the framers of the constitution.
The precedent set by the Court in Chinnaiah case will be reconsidered by the larger bench which will take up the case of State of Punjab v. Davinder Singh.
The concept of Creamy Layer
Article 16(4A) of the Constitution empowers the State to make reservations in favour of Scheduled Castes and Scheduled Tribes in promotion in public services in case of inadequate representation. However, the Supreme Court, in the case of M. Nagraj v. Union of India[2]laid down three constitutional requirements in order to test the validity of any policy made under Article 16(4A), this was the test of further backwardness laid down in the case which required proof of current backwardness, inadequate representation, and administrative efficiency.
In the case of Jarnail Singh and Ors v. LacchmiNarain Gupta and Ors[3], the Supreme Court held the validity of the judgment in the Nagaraj case. The Court stuck down the further backwardness criteria and made the principle of creamy layer applicable to the SC/ST communities.
In principle, the concept of creamy layer is based on equal allocation of the resources and furthers the intention of emancipation of the backward classes among the ST/SC communities. It puts an income ceiling on the people availing the caste-based reservations in public services and education. Until the 2018 judgment of Jarnail Singh, it was only applicable to the OBC. The government has requested the Court to reconsider the 2018 Jarnail Singh decision on the basis that the earlier judgments had been misinterpreted by the court and that the issue of OBC was conflated with that of SC and ST. It is advocated that the relied upon judgment of Indra Sawhney v. Union of India[4] dealt with only the constitutionality of exclusion of creamy layer in OBCs only and not in SC/ST.
Conclusion
At the heart of the whole debate of sub-categorization as well as exclusion of creamy layer, lie two basic arguments which need to be weighed against one another. Firstly, the SC/ST communities are the most backward among the backward classes and they were granted reservations in order to enable them to recover from centuries of social injustice, their social and economic standing does not serve as the right measure to determine their eligibility for reservation. Secondly, the framers of the constitution envisioned reservation as a temporary means of giving opportunities and resources to the backward classes of the society so that they can permanently stand at an equal footing, in every aspect, with the other classes of the society.
In both the points, the emancipation of SC/ST communities is the main goal of the reservation system. However, the first argument ignores the principle of equality by treating unequals as equals. There is no denying that the system of reservation has benefitted many members of the backward classes and has helped them rise to an equal social and economic status with the upper classes of the society. The further generations of such households have the means and opportunities to access the resources of the society equally as the other classes in the society. However, there are certain classes within SC/ST castes who have not been able to avail the benefits of the reservation at all. Justice Ramachandra Raju Commission, 1997 made the recommendation of sub-dividing the SCs into 4 groups and making reservations separately for each. Exclusion of creamy layer of SC from reservation benefits in public appointments was also recommended. Several states such as Andhra Pradesh, Punjab, Tamil Nadu, and Bihar have introduced special quotas for the most vulnerable Dalits. Set-up of Mahadalit commission in Bihar was also aimed at identifying the castes within the SCs that were left behind. This clearly indicates the presence of inequalities within the SC/ST and the need to address it.
In particular, there are two key concerns of the people belonging to the SC/ST castes, protection from atrocities, and appropriate and adequate representation. The former is achieved through Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, whereas the reservation system was aimed at providing appropriate representation to such groups. Supreme Court is of the view that all the classes within these castes must get the benefit of the reservation system, and sub-categorization of SC/ST is one way to assure that the benefits of the system trickle down to the weakest of the section. However, final decision of the Court on this issue is yet to be made.
References
[1]1 SCC 394 (2005)
[2]8 SCC 212 (2006)
[3]ILR 1 P (2012)
[4]3 SCC 217 (1992)