Decoding Sub-Classification in SCs

A seven-Judge Constitution Bench of the Supreme Court, led by C.J. D.Y. Chandrachud has delivered its judgment that determined the constitutionality of States establishing sub-classifications within Scheduled Castes (SC)/Scheduled Tribes (ST) categories. The specific issue under scrutiny was the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006¹, which accorded “first preference” reservations to Balmikis and Mazhabi Sikhs over 50 per cent of the total seats reserved for the SCs category.² The crux of the matter lies in the continued entitlement of reservation benefits for generations within a few castes or families in the SCs, even when the initial challenges faced by their community are significantly mitigated by the professional, political, and economic advancement of its members. Even Dr B.R. Ambedkar, in his early writings, emphasised on “graded inequality” where each level of the hierarchy in the caste system involves some communities oppressing others. He noted that “even the low is a privileged class as compared with the lower”.³

To date back the sub-classification debate in our constitutional jurisprudence, in 1962, the State of Mysore reserved 50% of seats in medical and engineering colleges for Other Backward Classes (OBCs) with 22% designated for “more backward” OBCs. This sub-classification was deemed impermissible by the Supreme Court in M.R. Balaji v. State of Mysore⁴, as Article 15(4)⁵ allowed reservations only for “really backward classes”. However, in Indra Sawhney v. Union of India⁶ the Court upheld sub-classification among OBCs, relying on Justice Chinnappa Reddy’s judgment in K.C. Vasanth Kumar v. State of Karnataka⁷, thus allowing Governments to create sub-quotas within the OBCs quota.⁸ Thus, the 7-Judge Constitutional Bench was constituted from a reference by a 5-Judge Bench in State of Punjab v. Davinder Singh⁹, which questioned the validity of the judgment in E.V. Chinnaiah v. State of A.P.¹⁰, where the sub-classification within SCs for reservations was not allowed being beyond the legislative competence of the States by the Supreme Court. The dilemma that continued on this question of sub-classification in SCs, and the exclusion of individuals who have excelled within the SCs, often referred to as the creamy layer has finally come to an end through this judgment. But the question now is how do we solve the complexities or evolve a mechanism that can balance the need to prioritise the most oppressed among the SCs while considering the practical implications and the persistence of caste discrimination.

What is sub-classification?

Sub-classification involves breaking down a broader category, such as backward classes (BCs) or SCs, into distinct sub-categories like more BCs or SCs. The central premise is that within marginalised groups, certain communities have minimal or no access to essential facilities and reservation benefits. Consequently, more advanced communities within the SCs consistently reap the benefits, thereby overshadowing the needs of the more disadvantaged ones. In fact, the Justice P. Ramachandra Raju Commission¹¹ constituted in 1996 submitted its report in favour of sub-classification because the Madiga community, comprising half of the SCs in Telangana, encountered difficulties accessing Government benefits designated for SCs due to the Mala community’s reported dominance.¹² Despite their significant numbers, the Madiga community contended that they are marginalised from SC-related programs.

What is a creamy layer?

In 1976, in State of Kerala v. N.M. Thomas¹³, the Supreme Court for the first time used the term “creamy layer” when it upheld the policy of reservations even in promotions. However, this was elaborated in Indra Sawhney v. Union of India¹⁴ where the Court highlighted the necessity to eliminate the “creamy layer” from reservation benefits in respect of the OBCs who achieved a specific degree of socio-economic progress. The Court considered them to be on par with members of unreserved classes in terms of advancement. Later, in 2006, the Constitution Bench of the Supreme Court in M. Nagaraj v. Union of India¹⁵ while upholding the validity of the 77th¹⁶, 81st¹⁷, 82nd¹⁸ and 85th¹⁹ Constitutional Amendments held that the creamy layer concept should also apply to SCs and STs. Finally, in Jarnail Singh v. Lachhmi Narain Gupta²⁰ the Court categorically held that SCs/STs belonging to the creamy layer are not eligible for reservations in promotions.

Why was sub-classification not allowed in E.V. Chinnaiah judgment?

In E.V. Chinnaiah case²¹, the Supreme Court examined the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000²² which addressed conflicts among sub-castes in the State. The Act divided the Presidential List into four groups and allocated the 15% quota based on the degree of backwardness and proportional population of each sub-caste. The State argued that reservations were disproportionately benefiting a few relatively advanced SCs, neglecting the most deprived. However, the Court deemed this sub-classification unconstitutional and held that SCs were a distinct class, and only Parliament could make such sub-classifications under Article 341(2).²³ In essence, the Court expressed the view that all SCs constitute a homogeneous group and should not be further subdivided.²⁴

However, the criticism of E.V. Chinnaiah case²⁵ is that the Court’s inaccurate portrayal of the SCs as a “homogenous” entity that cannot be classified. Much later in Davinder Singh case²⁶ the Court acknowledged that the sub-classification is essential for social justice and a facet of equality.²⁷ In principle, there seems no reason why a division of SCs into backward classes and more backward classes cannot be made as there is a considerable disparity among members in a category who are monopolising the opportunities. Studies reveal internal hierarchies within the SC category, indicating varying levels of poverty and discrimination like denial of entry into temples by fellow caste persons. Even Justice Rohini Commission in 2017, highlighted the advantages of sub-classification in OBCs.²⁸ However, one viewpoint is that the most marginalised SCs are significantly behind their more advanced counterparts and given this substantial disparity, even if reserved positions were elevated, there might be an insufficient pool of candidates from the most disadvantaged SCs, potentially impacting not only filling up vacancies but also merit. Some argue that existing programs and government benefits should prioritise reaching these sections before contemplating any sub-classification.²⁹

The ratio of the judgment³⁰

The majority of six Judges have overturned the 2004 judgment in E.V. Chinnaiah case³¹, which held that sub-classification is impermissible. However, Justice Bela Trivedi dissented.

The Bench was primarily considering three issues:

1. Necessity of sub-classification within reserved categories

   Is sub-classification within the reserved categories “necessary” to ensure equitable distribution of reservation benefits among the most disadvantaged groups within the SCs and STs?

2. Homogeneity of Scheduled Castes

   Is the Scheduled Caste a homogeneous category, or do significant disparities and graded inequalities within the SC community justify sub-classification to address these internal hierarchies?

3. State competence in creating sub-classifications

   Are States competent to create sub-classifications within reserved categories, or does such action infringe upon the constitutional mandate provided under Article 341, which specifies that the Presidential List of SCs should be treated as a single, homogeneous group?

Sub-classification and Articles 14³² and 341

Chief Justice D.Y. Chandrachud, in the judgment authored for himself and Justice Misra, concluded that sub-classification of Scheduled Castes does not violate the principle of equality under Article 14 of the Constitution. Historical evidence indicates that Scheduled Castes are not a homogeneous group. Furthermore, sub-classification does not breach Article 341(2). Articles 15 and 16³³ do not prohibit the State from sub-classifying a caste. Sub-classification must be justified by quantifiable and demonstrable data showing that certain groups within the Scheduled Castes are not adequately represented.³⁴ The State’s decision on sub-classification is subject to judicial review to ensure it is not based on whims or political expediency.³⁵

Preferential treatment for more backward classes

Justice B.R. Gavai, in his concurring judgment, emphasised that it is the State’s duty to provide preferential treatment to the more backward communities within the SCs/STs. He highlighted that only a few individuals within the SC/ST category benefit from reservations, and acknowledged the existence of more oppressed sub-groups within these categories. He identified a fundamental error in E.V. Chinnaiah case³⁶ judgment, which wrongly assumed that Article 341 is the basis of reservation; in reality, Article 341 only concerns the identification of castes eligible for reservation.³⁷

Creamy layer doctrine³⁸

Justice Gavai further opined that the State must develop a policy to identify and exclude the “creamy layer” within the SC/ST categories from the benefits of affirmative action, as this is essential to achieving true equality. Justices Vikram Nath, Pankaj Mithal, and Satish Chandra Sharma concurred with this view. Justice Nath and Justice Mithal specifically advocated for applying the creamy layer principle, similar to its application among OBCs, to the SCs. Justice Mithal also noted that reservation benefits should be limited to one generation, arguing that if the first generation achieves higher status through reservation, the second generation should not be entitled to it.³⁹ The Court also relied on various studies that demonstrates that SCs are not a homogeneous group. Field researchers have found significant intra-caste discrimination, with some SCs sociologically backward compared to both forward castes and other SCs. Studies, such as those by A.M. Shah, reveal a hierarchy within Dalits in Gujarat, where certain Dalit sub-castes practice untouchability against others. The Robert F. Kennedy Center, in collaboration with Navsarjan, found that lower sub-castes among Dalits face discrimination in food, water, and religious practices. Similar patterns of discrimination are observed in Tamil Nadu and Andhra Pradesh, where the caste hierarchy influences social progress, education, employment, and political activity. This evidence supports the need for sub-classification to address the varying levels of backwardness within the SCs.⁴⁰

The dissent

Justice Bella Trivedi opined that the Presidential List of Scheduled Castes notified under Article 341 cannot be altered by the States. Any changes to this List can only be made by a law enacted by Parliament. Sub-classification, according to her, would amount to tampering with the Presidential List and undermine the object of Article 341, which aims to eliminate political influence in the SC-ST List. Further, she emphasised the importance of adhering to the rule of plain and literal interpretation. She mentions that any preferential treatment for a sub-class within the Presidential List would deprive other classes within the same category of their benefits. In the absence of executive or legislative power, States lack the competence to sub-classify castes and the benefits reserved for all SCs. Allowing States to do so would constitute a colourable exercise of power, which is impermissible under law. Justice Trivedi concluded by affirming that affirmative action by States must remain within constitutional boundaries and held that the law laid down in E.V. Chinnaiah case⁴¹ was correct and should be upheld⁴². She highlighted that the nine-Judge Bench in Indra Sawhney case⁴³ specifically addressed sub-classification within OBCs, not SCs or STs. Therefore, a seven-Judge Bench lacks the authority to overrule the decision of a nine-Judge Bench. The extension of the “creamy layer” concept, initially applied to OBC reservations, to SC/ST reservations, stems from this misapplication.

In our opinion, both the application of the creamy layer and sub-classification necessitate the use of comprehensive data obtained through caste census and anthropological studies which holistically cover not just the proportion of a population but the relative backwardness of communities within the category.⁴⁴ We may rely on the very apt observation of Justice Krishna Iyer in N.M. Thomas case⁴⁵ that:

124. A word of sociological caution. Its (reservation’s) benefits, by and large, are snatched away by the top creamy layer of the “backward” caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.” And that “Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made.⁴⁶

Creamy layer + sub-classification

Both should be simultaneously applied, if only sub-classification is applied, a potential issue arises, where certain SCs, in the most backward castes, not excluded by the creamy layer principle might dominate the benefits in the sub-classification intended to benefit the most backward castes. This advantage would come at the expense of other castes within the backward sub-classification. Hence, both form a potent combination to ensure fairness and equity within the reservation system. But, when establishing criteria for the creamy layer or sub-classification, it is crucial to recognise that reservations in SCs/STs aim to uplift not just economically but to solve a persistent social issue that would not simply vanish with educational and economic progress. Sometimes even with substantial strides in all the fields, the indignity persists unabated. Any sub-classification of depressed sections should be to ensure equitable distribution of the benefits of compensatory discrimination among the intended beneficiaries.

Five conundrums

These five conundrums are just the tip of the iceberg in the ongoing debate: firstly, how and who shall determine whether an oppressed group becomes emancipated;⁴⁷ secondly, whether such sub-classification could lead to endless claims of being the “most oppressed”;⁴⁸ thirdly, whether such innovative administrative strategies would endure within the Indian political system; fourthly, whether such sub-classification in the reservation framework would affect the merit;⁴⁹ and fifthly, will Indian society ever be able to transcend this deeply rooted prejudices?

While legal frameworks and judicial decisions lay the foundation, it is the time and politics that will ultimately determine the success and sustainability of sub-classification within reservations. Only through sustained political commitment and societal patience can India hope to transcend deeply-rooted prejudices and achieve true social justice.

Conclusion

During the last 75 years of working of our Constitution, we have witnessed different dimensions of compensatory discrimination. Various facets of compensatory discrimination have emerged. Initially, class was the primary criterion for such measures. However, the landmark in Indra Sawhney v. Union of India (Mandal judgment) by a nine-Judge Supreme Court Bench recognised caste as the key factor in identifying BCs⁵⁰. This decision also overturned the Court’s previous stance against sub-classifying BCs, as seen in M.R. Balaji case⁵¹. Now this judgment has extended the principle of sub-categorisation to SCs and STs. As compensatory discrimination evolved from class-based to caste-based, it is foreseeable that future affirmative action will focus on individuals, recognising humans as the fundamental unit rather than class or caste. Though this idea appears to be utopian under the present circumstances, it will be the only saviour of equality and fraternity in this great nation.