SC/ST Sub-classification: Does Judicial Analysis Capture Social Backwardness?

I explain why putting the onus upon some SCs seen as economically forward to reduce the disparity within is unfair.

On 20 March 2018, when a Supreme Court bench led by Justices Adarsh Goel and UU Lalit passed a judgment that effectively weakened the power of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the historically caste-oppressed communities across the country rose in anger to protect the Act in its originality. The subsequent Bharat Bandh call on 2 April forced the government to overturn the Supreme Court judgment through the approval of Parliament.

The recent 6:1 judgment on 1 August by a seven-judge Supreme Court constitution bench led by Chief Justice of India Justice Chandrachud has held that the sub-classification of Scheduled Caste and Scheduled Tribe categories is permissible. This has once again created a massive outrage among the oppressed groups, and a Bharat Bandh call has been made for 21 August too to protest the judgment.

I intend to analyse the judgment of the apex court on the sub-classification of SC and ST, which overturned the EV Chinniah judgment, in the light of the historical evolution of the Scheduled Caste category. The first question — is it even under the ambit of the Supreme Court to review a well-settled matter in the constituent assembly?

Supremacy of Articles 341(2) and 342(2)

Article 341(1) mandates and empowers the President of India to ‘’specify 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, as the case may be."

Further, Article 341 (2) empowers Parliament to include or exclude from the list of Scheduled Castes. Similarly, 342(1) and 342 (2) make clear the power of the President and Parliament concerning STs.

Both articles make a case for separation of powers where the Judiciary is kept out of the purview to sub-classify SC and ST, rightly upheld by Justice Bela Trivedi in her dissent. Interestingly, the first and last-ever ST judge in the apex court was present in the EV Chinniah bench and had written a powerful concurrent judgment. The SC/ST list is purely at the President’s discretion and inclusion-exclusion can be done exclusively by Parliament. The judiciary is to be kept out of such practices.

Senior advocate Sanjay Hedge rightly said during the hearing, "The purpose of conferring Parliament with the power to alter the list issued by the President under Article 341 is to prevent the tinkering of the list for political purposes."

"India is not only comprised of the big states like Punjab, Andhra Pradesh...there are a lot of small states and a political decision can create problems there..the recent violence in Manipur, now if only one particular Scheduled Caste /Scheduled Tribe community is knocked out, if you leave the power to hands of individual states without any reference back to the Centre then what we are asking for is effectively a balkanisation of the SC/ST lists," he added.

Economic Forwardness Does Not Stop Caste Discrimination

The second question is whether there is any national empirical data available to base the argument that some castes have marched ahead and some are lagging in a society that is largely organised around the graded Hindu social order.

Economic backwardness and forwardness were never a parameter for SC Reservation, it was applicable only in OBC reservation. The Indra Sawhney judgment had categorically stated this. Scheduled Castes face discrimination and atrocities because of their social identity. Their economic background does not come into play here.

It is worth remembering that the chief Minister of Bihar and a present Cabinet minister Jitan Ram Manjhi too faced untouchability during his tenure. Manjhi had said that a temple in Madhubani (north Bihar) “was cleaned and the idol washed” after he left because he was a Dalit. The situation for IAS officers and other civil servants is not very different either.

So, economic progress does not change the social identity of Dalits in the eyes of the upper castes because caste is a fixed social institution with varna-based hierarchies. The forwardness and backwardness within SC/ST communities really often depend on how the so-called forward upper castes treat them. It would be outrageous to say that SC/ST people themselves are responsible for the forwardness and backwardness within their communities.

The majority judgment, under the title of Empirical Evidence of Heterogeneity authored by CJI Justice Chandrachud, does not refer to national data inclusive of all the states because there isn't any. The premise of empirical evidence is very limited and does not represent the all-India picture.

Justice Chandrachud observed, "Opportunities for real and effective representation must be created in all posts and grades. The objective of the provision is not to emulate the existing social hierarchy where the low-grade posts are occupied by the socially backward while supervisory and managerial posts continue to be occupied by the advanced classes."

The judicial interpretation of social backwardness cannot capture the everyday caste-based discriminations and humiliations perpetuated by upper-caste Hindus on SCs and STs.

As Sanjay Hegde said, "Once there was a taint of untouchability, 'how untouchable were you?', the constitution and the makers at that time decided not to go into that question. They form one homogenous class, and that homogenous class they said that you could possibly include or exclude through parliamentary enactment but in no manner, therefore a court could not add or subtract, neither executive nor state tinker in any manner."

Justice Gavai’s observation is that "the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backwards...they should walk out of the special provisions and give way to the deserving and needy." But this would fail the empirical test as caste-based discrimination against Dalits becomes more nuanced at higher positions.

Ambedkar and Untouchability

Dr Ambedkar in Untouchables or The Children of India’s Ghetto succinctly puts what forms an Untouchable, and untouchability as an organised social principle. "Untouchability is not a legal term. There is no exact legal definition of untouchability whereby it could be possible to define who is an Untouchable and who is not."

He further adds, "Untouchability is a social concept which has become embodied in a custom and as custom varies so does untouchability. Consequently, there is always some difficulty in the way of ascertaining the population of the Untouchables with mathematical exactitude. Secondly, there has always been serious opposition raised by high caste Hindus to the enumeration by caste in the Census Report."

Dr Ambedkar prophetically said, “Caste is not a physical object like a wall of bricks or a line of barbed wire which prevents the Hindus from co-mingling and which has, therefore, to be pulled down. Caste is a notion; it is a state of the mind."

On Wealth Distribution

There is a huge disparity in wealth distribution in which SCs and STs have almost meagre ownership. Putting the onus upon some SC/ ST castes as economically forward to reduce this disparity is unfair and lives in the imagination of the upper castes. A recent report from World Inequality Lab titled  ‘Towards Tax Justice and Wealth Redistribution in India,’ has exposed stark economic disparities that infect India.

The report shows that nearly 90 per cent of the country’s billionaire wealth is concentrated in the hands of the upper castes, highlighting a deep socio-economic divide. The challenge before the Judiciary and government is to reduce the wealth gaps created by the upper castes' capital ownership and not further divide the small capital shares of SC/STs.

The arguments associated with ‘backwardness’ and ‘forwardness’ within SC/ ST communities set a dangerous precedent — that there is discrimination within a caste. This is an oxymoronic presumption, as SCs are not assigned any caste by the Hindu four-fold Varna system.

The sub-classification of SC/STs will gradually reduce their entry into the higher education sector. There are many vacant seats of SC/STs in faculty recruitments, and implementing a sub-classification within the reservation will make the situation worse. The higher education sector will turn into agraharams.

After all, according to the data shared by the education ministry in the parliament, over 50 percent of the faculty positions in the SC-ST Category in centrally funded higher education institutions are vacant.

It showed that in central universities (CUs), 75.2 percent of the sanctioned SC posts, 87.3 percent of the ST positions and 84.7 percent of the OBC posts for the position of professor are lying vacant, while in the associate professor category, it is 64.7 percent, 76.8 percent, and 76.6 percent respectively. At the top five IITs and the IISc, 98 percent of professors and more than 90 per cent of assistant or associate professors are from privileged castes, according to a report in Nature, a leading science journal.

In the post-EWS (Economically Weaker Sections) quota era, the jurisprudence on affirmative policies has lost its relevance. Political parties may exploit divisions within Scheduled Castes and Scheduled Tribes to further their electoral goals, particularly in a climate where there is a push to consolidate upper-caste support through the EWS policy. Even conjectures on the creamy layer in the SC/ ST list will put future generations at risk of caste-based discrimination.

(Subhajit Naskar is Assistant Professor, Department of International Relations, Jadavpur University, Kolkata. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)