The author, Sharnam Agarwal, is a 2nd year student at National Law Institute University, Bhopal.
Featured Artwork: Pariplab Chakraborty
India’s reservation policy has been a cornerstone in addressing historical injustices and ensuring representation for marginalised communities; however, it is not free from controversies. Recently, the Supreme Court (“The Court”) in Davindar Singh v. State of Punjab, 2024 (“The judgement”), while upholding the constitutionality of the sub-class reservation within Scheduled castes and Scheduled tribes (“SC/STs”) ruled that they are not a homogeneous class. The Court asserted that the states are empowered under Article 341 to sub-classify the most backward sections within SC communities based on empirical data and a rational principle of differentiation. Notably, under Article 341, only the President is authorised to notify any group of SCs/STs for providing reservations.
This judgment stemmed from the State of Punjab’s appeal against the Punjab and Haryana High Court’s decision, which had declared the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 (“The Punjab Reservation Act”), unconstitutional. The High Court ruled that sub-quota reservations within SC/ST violate Article 14 of the Constitution. The legislation sub-classified SCs into Balmiki and Mazahabi Sikhs, giving them preferential treatment in reservations. Most importantly, it also called to adjudicate upon the validity of the Court’s landmark judgement in EV Chinnaiah v. State of Andhra Pradesh, where the court examined the constitutionality of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (“The A.P. Reservation Act”). The Act subclassified SCs for education and service reservations. In 2005, the Court struck it down as unconstitutional for violating Article 14 and interfering with Presidential powers under Article 341.
In this article, the author critically analyses the court’s judgment, identifying its merits and shortcomings. The author argues against the application of the creamy layer principle to SC/STs and explores the empirical challenges of implementing sub-classification within these groups by highlighting the difficulties posed by the judgment.
HISTORY OF SUB-CLASS RESERVATION IN INDIA
The debate over sub-class reservation is not new. Its historical roots trace back to the year 1975, when the State of Punjab issued a notification that apportioned its existing 25% reservation between the Valmiki and Mazhabi Sikh communities. In the case of M.R. Balaji and Ors. v. State of Mysore, the Court held that backward classes cannot be divided into the categories of backward, and more backward as this violates Article 15(4) of the constitution.
A turn came with the judgement of Indra Sawhney v. Union of India & Ors, wherein the Court allowed classification of the backward classes based on their economic status and evolved the concept of creamy layer, but notably, the Court maintained its silence on the sub-classification among SC/ST communities. Legally speaking, Indira Sawhney should not be applied in the case of SC/STs; the same was observed by Justice Reddy in Chinnaiah, but the court in Davindar Singh heavily relied on Indira Sawhney and extended sub-classification to SC/STs.
The debate on sub-classification took a paradigm shift with the judgement of Chinnaiah, where the court assessed the constitutional validity of the AP Reservation Act, and declared it unconstitutional. The Court relied on State of Kerala v. NM Thomas, where it was held that the “Constitution allows for affirmative action and special provisions for certain classes; it must not lead to discrimination against others” and held that the power of issuing notification under Article 341 is only vested with the President, and sub-classification of SCs by the State is a violation of the right to equality as they constitute a “single integrated class of most backward citizens”.
Post Chinnaiah, the Punjab Government enacted the Punjab Reservation Act. As per S. 4(5) of this Act, Balmiki and Mazhabi Sikhs are provided first preference in the reservation. In March 2010, the Punjab and Haryana High Court, relying upon Chinnaiah, declared it unconstitutional. This led the Punjab Government to lodge this appeal in the Court.
LEGAL ANALYSIS OF THE JUDGEMENT
The judgement of the Court in Davindar Singh permitting sub-classification within SCs/STs has important constitutional bearing as it involves the interplay between Articles 14, 15, 16, and 341 of the Indian Constitution.
Article 14- Guarantee of Factual, Not Formal Equality
Article 14, which provides the right to equality also calls for equality, amongst a group. To put this into perspective, the judgement of Indra Sawhney is noteworthy as the Court stated, “the expression Equal protection of law requires the state to reasonably classify the peoples situated in different conditions and guarantees equal treatment for individuals in similar situations.” The Court said that Indra Sawhney is not only limited to backward classes but extends to the broader category of backward classes.
Furthermore, in D.S. Nakara v. Union of India, classification for a limited purpose was held permissible under Article 14; however, the real problem arises when we take a closer look at Indra Sawhney, which expressly barred the applicability of sub-classification on SC/STs by limiting it to OBCs. However, in Davinder Singh, a 7-judge bench overruled the decision of a 9-judge bench in Indra Sawhney by allowing sub-classification within SC/STs.
The Court in the present case held that “Article 14 guarantees factual and not formal equality. Thus, if persons are not similarly situated in reference to the purpose of the law, classification is permissible.” Furthermore, it permits sub-classification if it is not discriminatory and based on intelligible differentia. It said that if there are differences between two sections of the same class, sub-classification is an important mechanism for ensuring equality. This means giving help to particular sections that have varying degrees of disadvantage within a bigger group. This approach strives to reduce inequalities and makes sure that those who need help the most get such support.
Article 15, 16 and 341- State’s Power of Sub-Classification
In the present case, the Court ruled that Articles 15(4), 16(4), and 341 are enabling laws that provide the authority and cast a duty on the state to enact the Reservation Policy for Scheduled Castes. The state has discretion in providing reservations to the Scheduled Castes enlisted in Article 341 based on their social and economic backwardness and nothing prevents the state from doing so.
Article 15 of the Constitution ensures equality of opportunity in matters of public employment. Moreover, Article 15(4) has an inclusive definition that is not limited to OBCs, which is evident from the word “any”. In the judgment, the Court further interpreted Article 15(4). It ruled that the state has wide powers to take measures for the welfare of disadvantaged sections of society including SC/STs which also includes sub-classification.
Article 341 of the Constitution grants the power to the President to notify or de-notify SC/STs. Following designation, the state’s authority under Article 246 comes into the picture, and the state is empowered to provide reservations taking into account the fundamental rights protected by Articles 15(4) and 16(4), which also include sub-classification. In the judgment while overruling Chinnaiah, the Court noted that “Article 341 does not intend to hold Scheduled Castes as a “homogenous class,” but rather to grant them “constitutional identity,” and recognised the state’s power to sub-classify of SCs based on rational consideration.
CREAMY LAYER WITHIN SCHEDULED CASTE- A PANDORA’S BOX.
In the present case, the only question before the bench was to assess the constitutional validity of EV Chinnaiah. It is a settled principle that the Court should confine its judgment to the issues raised in the pleading. This principle was blatantly ignored when four out of seven judges of the Court expressly asked the government to apply the creamy layer principle to SC/STs. It said, “The state must establish a framework for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes to exclude them from the benefit of affirmative action. The Constitution’s goal of actual equality can only be attained by doing this.” The parties did not even raise the question of the creamy layer, but the bench has made this epicentre of the judgment thus reflecting a lack of judicial discipline.
The Court has acknowledged that the manner of application of the creamy layer should be different from OBCs as challenges faced by both communities are distinct in nature, but it has not provided how this might be done. In the absence of any enforcement mechanism, there is a peril that the political parties may act on their whims and fancies and apply this in furthering their political agendas.
The creamy layer principle has evolved to exclude affluent sections within OBCs from reservation benefits, but the application of this to SC/STs might defeat the purpose of reservations as economic progress alone does not imply the social advancement of a historically marginalised community such as SCs. Denial of the reservation benefits to these communities based only on the economic criteria overlooks the multifaceted discrimination they have faced over decades.
Unlike OBCs, where economic factors are relevant, the marginalisation of SCs is primarily driven by persistent caste-based discrimination and social stigma. A community is only deemed as the ‘creamy layer’ when privileges enjoyed, are generational, but this is not necessarily true with SCs. By equating SCs with OBCs, the Court overlooked the rule of law and set a dangerous precedent by going beyond the pleadings and granting relief that was not sought by any party in the case. Moreover, this approach could lead to policies that fail to address caste-based discrimination in ways that extend beyond economic backwardness.
ASSOCIATED UPCOMING CHALLENGES
The Apex Court’s decision to permit sub-classification within the Scheduled Castes aims to ensure the representation of the most marginalised communities in the sectors of education and employment. However, certain concerns surrounding this judgment could potentially undermine its objectives and challenge socio-economic and legal perspectives. Firstly, the assumption behind sub-classification is that it will suddenly erode the historical marginalisation of most backwards among SC/STs. However, the nature of marginalization inflicted over decades is multifaceted, making it difficult for them to fill the seats allocated to them. They still lack the capability to compete with the affluent sections of society. Secondly, if sub-classification is not cautiously executed, it will create a divide within SC/STs. Reservation policies aim to uplift the underprivileged, but if some subclasses of SC/STs are favoured over others, this may even exacerbate the differences within them. Thirdly, sub-classification cannot be implemented without empirical data, and collecting data is challenging, and without it, arriving at rational sub-classification is very challenging. The administrative difficulty in collecting accurate data for subclassification will put a strain on available resources and might have unintended consequences. In addition, the government lacks updated data as the census 2021 is still pending. Fourthly, the political will to enact subclassification is lacking. The government initially backed subclassification before the court, but after political backlash from SC/ST organisations to this ruling, it reversed its position after PM Modi promised that the creamy layer would not be applied to SC/STs. Finally, due to the court’s ruling permitting sub-classification within Scheduled Castes, states may breach the 50% reservation cap mandated in the Indra Sawhney case. This issue comes up because some governments have breached this reservation cap in order to gain electoral advantages driven by political pressures and electoral goals. In several cases, states have tried to provide STs with 100% reservation; as a result, the court has stepped in and ruled that such legislation is ultra vires. Therefore, it must be ensured that subclassification does not lead to further erosion of the principles of equity and justice in the reservation system.
CONCLUSION- A CALL FOR CAUTION AND REFLECTION
The present judgement on sub-classification within SCs is poised to influence the politics of reservations in India. This is evident from Telangana’s decision to set up a commission to identify communities for subclassification. A review petition of judgment was filed on October 4, but the court prima facie rejected the application for review without delving into the merits of the petition. This approach appears to be ill-conceived, as the court must have first gone through its merits before dismissing it. The sub-classification judgment’s intent to provide representation for the most marginalised members of the SC/ST community is risky and could have unintended consequences such as political abuse and further marginalisation of these communities. Instead of dividing these groups based on extraneous considerations, the focus should be on the collective upliftment of these without infringing on their unity and solidarity.
It is pertinent to note that nowadays reservations are treated as an end in themselves, but it is important to remember that they are merely a means to achieve equality and cannot be provided for an indefinite period.
Therefore, it is high time for the state to think beyond reservations. A possible approach could involve periodic reviews of the SC/ST/OBC lists to identify communities that have excessively benefited from reservations and remove them from the reserved categories. Regrettably, the focus has mostly been on expanding these lists by adding more communities rather than revising them.
This decision creates a two-fold challenge for the states: to make welfare a priority and to work towards the reduction of caste-based social inequalities. Reservations, on the one hand promote equal access to opportunities and upward mobility while on the other, these can create a more hostile environment between the different classes and increase the levels of segregation. Therefore, this decision needs to be handled very carefully in order to strike a balance between the advantages of affirmative action and the requirement to preserve social harmony and unity.
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