The question of fair distribution of reservations/quotas within beneficiary groups has engaged academics, administrators and judges in India over the last 75 years. The issue became the subject of widespread debate again last week, after the Supreme Court in a majority of 6:1 held that the States have the power to sub-classify scheduled castes for the purposes of reservation.
This piece attempts to capture the issue that was before the Court and what the Court held on the questions that arose (and on those that did not). I will also venture to argue that the judgment of the court is incorrect and is likely to have several unintended consequences. Before proceeding to the case itself, it is perhaps in the fitness of things to understand the meaning of the term ‘Scheduled Caste’ in the context of the Indian Constitution.
Who Were the Depressed Classes?
The census of 1911 was one of the first official documents to have a separate list of ‘depressed classes’. However, the criteria for being considered a depressed class were not made public. The Southborough Franchisee Committee of 1919 adopted the test of untouchability as the criterion for identifying the depressed classes. This was largely on account of Dr Ambedkar’s deposition before the Commission. Dr Ambedkar argued that “the Hindus, in spite of castes, divide themselves into two significant groups—the touchables and the untouchables.” A similar definition was adopted by the Indian Statutory Commission (Simon Commission) which observed that the “essential characteristic” of the depressed classes was untouchability.
The term “Depressed Classes” was replaced by “Scheduled Caste”, after the promulgation of the Government of India Act, 1935. Section 26 (1) of the Act defined Scheduled Caste to be ‘castes races or tribes which appear to correspondent to the classes formerly known as the depressed classes.’ Subsequently, an order of 1936 issued under the Act enumerated several castes, races or tribes in an attached schedule. These castes were deemed to be Scheduled Castes. A list of Scheduled Castes was inserted into the Constitution through the Constitution Scheduled Castes Order, 1950. The same is substantially modelled on the order of 1936.
Provisions of the Indian Constitution
Scheduled Castes are defined under Article 366 (24) of the Constitution to “mean such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution.” Article 341 (1) empowers the President to notify “the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory…” Under Article 341(2), it is the Parliament alone that is empowered to include or exclude from the list made by the President.
It is important to note here that the President/Parliament can notify an entire caste, or even a group or part within the caste as a Scheduled Caste. Similarly, it is open to Parliament, to exclude a caste or a certain group or part of the caste, from the list of Scheduled Castes. Thus, for instance, if Parliament concludes that a caste, or a part within the caste, no longer suffers from untouchability, it is open to the Parliament to exclude the caste or group from the list of scheduled castes. Consequently, the caste or group will no longer enjoy the protections afforded by the Constitution.
Second, by allowing only the Parliament to amend the list of scheduled castes, the Constitution limits the interference of the states in the notification of scheduled castes and scheduled tribes. During a speech in the Constituent Assembly, Dr Ambedkar explained that the object behind allowing only the Parliament to amend the presidential list was to “eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."
States have sought to override the mandate of the Constitution. In some cases, they have done so by not giving the benefit of reservation to certain classes, even though they are classified as Scheduled Castes. In other cases, they have sub-classified the existing scheduled castes. To do this, they argue that the power to amend the presidential list lies with the Parliament. However, the power to provide reservations lies with States under Articles 15 and 16. Thus, even though a group has been identified as a Scheduled Caste, the State can limit the quantum of reservation given to the group. Further, the State can break up the caste into sub-groups and decide the quantum of reservation, if any, for each.
Such attempts were earlier struck down by Constitutional Courts, relying on Constitution Bench judgment rendered by five judges of the Supreme Court in EV Chinnaiah v. State of Andhra Pradesh (2005). The Court therein had held that the Presidential list of scheduled castes could not be “tinkered with” by States. This Judgment has been overruled by the bench of seven judges last week.
The Case Before the Supreme Court
The case before the Supreme Court arose out of a challenge to a provision of a Punjab legislation which stipulated that “fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment, shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes.”
A Division Bench of the High Court struck down the provision based on the Judgment in EV Chinnaiah. When the matter reached the Supreme Court, it was referred to a larger bench (by a bench of three judges). Any bench that refers an issue to a larger bench does so while formulating the issues on which an adjudication is required by the larger bench. No such exercise was carried out in this case.
The issues were eventually formulated by the five-judge bench in its order of February 2020. The five-judge bench formulated questions regarding (a) whether the Punjab legislation was constitutionally valid, (b) whether the Punjab legislature was competent to enact the legislation and (c) whether the judgment in EV Chinnaiah was required to be revisited. As one would see later in this piece, several observations that have been made by the Judges on the bench have nothing to do with the issues that had been formulated for consideration.
The case was then heard by a bench of five judges which rendered Judgment in August 2020. The bench formed a prima-facie opinion that the Judgment in Chinniah was contrary to the larger bench in Indra Sawhney’s case. The matter was eventually referred to a bench of seven judges. This was because, Chinnaiah having been decided by a bench of five judges, could not be overruled by a bench of co-equal strength. It was this seven-judge bench that delivered its judgment last week.
Opinion of the Court
In his opinion, the Chief Justice of India held that the Scheduled Castes were not a homogenous class. He further held that sub-classification did not result in the inclusion or exclusion of a caste from the list notified by the Parliament. Thus, it would not violate Article 341. He also held that it was open to the State to sub-classify inter alia, based on inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness. Further, the State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness. Justice Manoj Misra concurred with the opinion of the Chief Justice.
In his separate concurring opinion, Justice Gavai also held that the creamy layer principle applied to Scheduled Castes and Scheduled Tribes as well. Justice Vikram Nath concurred with the opinions of the Chief Justice and of Justice Gavai.
Justice Mithal also wrote an opinion, concurring with the opinion of the Chief Justice and of Justice Gavai. He observed that the policy of reservation required a re-look. Further, he concluded that ‘there is no caste system in the constitutional regime of the Country’ and that “country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation…” The Judge further observed that “any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste…” and that “reservation, if any, has to be limited only for the first generation or one generation…”.
The lone dissent in the matter was that of Justice Bela Trivedi. Justice Trivedi found that the three-judge bench’s reference of the Judgment in Chinnaiah to a larger bench was not proper. She further held that the scheduled castes comprised a homogenous group.
Further, the Judge held that there is no provision in the Constitution that would empower the States to make any variation in such notification issued under Clause (1) of Article 341, for the purpose of reservations under Article 15 or 16. She further held that any sub-classification of scheduled castes would amount to tinkering with the presidential list. The same was not permissible.
Observations on Issues That Did Not Arise
There are a few troubling aspects of the Judgment which must be noted. Its most obvious criticism is with respect to the gratuitous observations on issues that did not arise before the bench. For instance, the issue of whether the creamy layer test could be applied to Scheduled Castes was not up for adjudication. Thus, passages in Justice Gavai’s opinion that deal with the issue are unwarranted and must be regarded as non-binding obiter.
Similarly, the need for reservations, or whether India ever had a caste system were not issues in this dispute. Thus, remarks in this connection in Justice Mithal’s opinion were also unnecessary. Obvious criticisms out of the way, one must now turn to the basic premise of the Judgment, and then to its interpretation of the Constitutional provisions.
Untouchability as the Basis for Classification as a Scheduled Caste
It has been generally accepted – by the Constituent Assembly, authors such as Marc Galanter and several judgments of the Supreme Court that all Scheduled Castes suffered from untouchability. It was this disability and its consequences that was the major reason for providing constitutional protections to members of the castes. Justice Chandrachud’s opinion attempts to engage with this position but is unable to clearly displace it.
Despite this, the basis for the Court’s Judgment seems to be that the Scheduled Castes are not a homogenous group and could therefore be sub-classified. It has been held that the State can sub-classify, inter alia, based on data showing inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness.
Thus, it would now seem that reservation can be reduced/denied, if a caste is ‘adequately represented’, even if it suffers from untouchability. With respect to the judges, this is not the position the Constitution envisages. In cases where reservation is to be based on ‘adequacy of representation’, for example for reservation in promotion, the Constitution expressly provides so. The requirement of ‘adequacy of representation’ has now been read into reservations under Articles 15 (4) and 16 (4), when no such requirement existed in the original text of the Constitution.
No Constitutional Provision Allowing States to Sub-classify
It is important to note here that of the 3 detailed majority opinions, two opinions – Justice Gavai and Justice Mithal, do not make any serious attempt to trace the source of the power of the State to sub-classify. The only discussion on this is made by Justice Chandrachud, who holds that the power to sub-classify can be traced to Articles 15 (4) and 16 (4).
In my opinion, this is not correct. While the power to provide reservation can be traced to the aforesaid articles, the same does not confer the power to sub-classify. That power can only be traced to the Parliament, under Article 341 of the constitution.
In Bir Singh v. Delhi Jal Board (2018), the Court was called upon to answer whether a state government could provide reservation to a caste which was not named in the presidential list of scheduled castes for the state. The Court held that the operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the effect of circumventing the specific constitutional provisions in Articles 341/342. The same was not permissible.
The Court also held that if the state desired to extend reservation to castes beyond the list specified in the state, it would have to “make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State.”
Surely, the same principle would apply if a state were to deny/reduce reservation available to a particular caste named in the presidential list. Thus, the only way for a state to sub-classify would be through a recommendation to the central authority/parliament.
It is also important to note that the Parliament, acting on its own is also free to alter the list of scheduled castes, if it feels that a caste or a group within the caste no longer suffers from untouchability. In Bhaiya Lal v Harkrishan Singh (1965), the Court had recognized the power of the President to limit a notification of scheduled caste status to parts or groups within a caste. The Court had also recognized that scheduled caste status could only be conferred upon members of a caste living in a particular area in a state. This could be done after an elaborate enquiry to show that the backwardness of the castes varied in different areas.
For instance, it is theoretically open to the Parliament to opine that a certain group of members of a scheduled caste, by reason of economic empowerment or otherwise, do not suffer from the same disability (untouchability) as other members of the caste and are no longer entitled to the benefits of affirmative action. In this case, the Parliament can remove such a group from the presidential list. Other than this, the Constitution does not envisage any other method by which reservation can be denied to a member of a scheduled caste.
It is my case that if the rationale of the Judgment in Davinder Singh is taken to its logical conclusion, it will allow the State to reduce the benefit of reservation to any caste or group even that is listed in the presidential list. This will render the entire object of Article 341 meaningless. It will also allow exactly the kind of political interference that Dr Ambedkar wished to avoid.
For instance, a situation may arise where the Parliament, believing a particular caste is suffering from untouchability, places the caste in the scheduled caste list. The object of this is to ensure that the benefits of affirmative action under the Constitution accrue to the said caste. This entire exercise can be rendered futile by the state executive/legislature which if it so chooses, can deny the benefit of reservation to the said caste by way of an executive order/ legislation.
Did the Judgment in Indra Sawhney Allow Sub-classification of the Scheduled Castes?
The Judgment in Davinder Singh’s case cites Indra Sawhney extensively to argue that sub-classification was permitted by the Court. It notes that the judges in Indra Sawhney were at pains to point out that their observations would not apply to Scheduled Castes and Scheduled Tribes. It also notes the fact that Indra Sawhney was limited in its application to other backward classes has been noted by subsequent constitution benches of this Court. Despite all of this, the Court goes on to rely on Indra Sawnhey to hold that sub-classification of scheduled castes is permissible.
The Requirement of Data
It is important to note here that the majority opinion has laid down that States can sub-classify based on quantifiable data to show that a caste is inadequately represented in the services of the state on account of its backwardness. Such data can also be reviewed by a constitutional court. The kind of data that would be required remains unclear.
It is important to note that a similar requirement for the collection of judicially reviewable data, has almost crippled the ability of states to provide reservations in promotions. Almost every exercise of providing reservations in promotions has been litigated, following the Supreme Court’s judgment in M Nagaraj. The judgment made the exercise conditional on the collection of data showing inadequacy of representation and backwardness of the scheduled caste, and on the fact that efficiency of administration was not hampered.
The judgment in Nagaraj was partly overruled by a subsequent Constitution Bench in Jarnail Singh’s case. The bench therein held that there was no requirement of data to show backwardness of the Scheduled Castes, who were presumed to be backward. Since then, different benches of the Supreme Court have rendered different judgments on the kind of data required and the method of its collection. The confusion in the legal position and long delays in adjudication have affected the final beneficiary – members of the Scheduled Castes. One sees reservations in education and employment, meeting a similar fate.
To end, I believe that the majority opinions proceeded to lay down the legal position that the Judges believed was desirable, without properly engaging with the precedent and provisions which rendered it impermissible. It is my case that the power to sub-classify does exist, but the same is to be traced to Article 341 and is conferred only on the president/parliament.
In conclusion, it is my case that the opinion of the majority of the Court is incorrect, and the opinion rendered by Justice Trivedi decides the issues before it correctly. It has been famously stated that a dissent in a court of last resort, “is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed.” One hopes that a future bench will see and correct the incorrectness of the legal position that has now been laid down by the majority of the Court.
(The writer is an Advocate on Record before the Supreme Court of India. He appeared for the side opposing sub-classification, when the matter was heard before a bench of five-judges in 2020. He has had no association with the matter since. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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