OBC Sub-Classification: India's Long Road to Social Justice

As the crucial Bihar Assembly election approaches, attention is increasingly turning to the Extremely Backward Classes (EBCs) – their representation in employment and governance, as well as the violence they face. To strengthen their electoral appeal, both major political coalitions, the ruling National Democratic Alliance and the opposition Mahagathbandhan or grand alliance, are reaching out to this historically marginalised and politically overlooked group, which made up 36% of Bihar’s population in the 2023 caste census.

Former deputy chief minister Tejashwi Yadav of the Rashtriya Janata Dal, a key leader of the grand alliance aiming to win power, said at a recent rally: “EBCs are not a vote bank; they are power bank.” Yet, the EBCs continue to struggle for adequate representation and a way out of marginalisation and violence perpetuated against them, as even the central government, in seeking to avoid upsetting the more powerful backward classes, or Other Backward Classes, has done little on their behalf.

The constitution of India aspires to establish an egalitarian, just and rule-based social, political and economic order. To address entrenched social inequalities, it adapts the colonial-era practice of caste-based affirmative action, bridging a rights-based approach with compensatory welfare measures. However, caste-informed affirmative action policies often lead to divisive political and legal debates, which sideline nuanced questions about how to identify historically disadvantaged communities (HDCs).

Also read: OBC Youth Allegedly Forced to Wash Feet of Brahmin Man in MP After Posting AI-Edited Image

This issue, therefore, spans two broad frameworks. First, the identification of HDCs to determine who falls within the ambit of reservations. Second, the scope of HDCs’ rights, including the quantum of reservation in educational institutions, government jobs and political positions; whether reservation should extend to promotions or include relaxations in educational qualifications; the validity of the carry-forward rule; the overall cap on reservations; horizontal and vertical reservations; the scope of judicial review and the inclusion or exclusion of the creamy layer from reservation benefits.

However, this approach creates a ‘bipolar’ divide between groups included in caste-based affirmative action and those excluded. Moreover, debates over sub-categorisation within existing or future reservation limits highlight the tensions that exist within the HDCs themselves. It only goes to show that India’s multilayered social, political and economic structures need evidence-based policy interventions, so that social justice governance is delivered fairly and reasonably.

Historical and jurisprudential basis

British utilitarian philosopher Jeremy Bentham supported equality insofar as it served utility. In other words, the goal of society was to promote aggregate welfare, even if it meant subordinating individual will. The British colonial government applied such reasoning selectively, introducing caste-based affirmative action for HDCs in 1854, long before the Mysore kingdom’s similar directive in 1894. In the Madras Presidency as well, caste-based reservation was introduced in 1921, although it remained on paper until 1927, when prominent legislator Muthiah Mudaliar issued the ‘communal GO’ ensuring reservations in employment. This was subsequently termed the ‘Backward Hindu’ quota, which allowed for jobs and college admissions, until 1950.

On the other hand, the philosopher Immanuel Kant, who believed in universal moral laws, argued that the end cannot justify the means. From this perspective, policies like affirmative action, even if they promote social equality, could be seen as negating individual autonomy. However, in the colonial context, the notion of liberty was restricted or unevenly applied, making equality a more pressing concern for the colonised. Nevertheless, in a functional constitutional democracy, there must be a careful balance between liberty and equality, so that the pursuit of justice does not fragment the political community’s solidarity.

Incorporation in constitution

In his pioneering book Competing Equalities: Law and the Backward Classes in India, Marc Galanter highlights how Dr. B.R. Ambedkar, one of the architects of modern India, viewed education, employment and political representation as key modern sources of power, and advocated for their access to historically marginalised communities. In this context, the colonial-era framework of affirmative action laid the foundation for historically marginalised groups – the Depressed Castes – to gain legal recognition as Scheduled Castes (SCs) and Scheduled Tribes (STs). These groups were provided representation in public educational institutions, government employment and in parliament and state legislative assemblies under Articles 15, 16(4), 330 and 332 of the constitution. In contrast, the Backward Classes (BCs) did not initially benefit from such preferential treatment.

Instead, Article 46, incorporated as a Directive Principle of State Policy, enabled the promotion of educational and economic interests of weaker sections, particularly the SCs and STs, and their protection from injustice and exploitation. Thus, caste-based reservation became vital to the rights and representation of the HDCs, securing their educational advancement, capability development, access to public goods and institutions and, thus, their capacity to achieve human dignity and generate wealth. Other social groups later imitated this model to demand social mobility, transforming it into a dominant subject in Indian public discourse.

Window of enigma opens

After the constitution came into force, the first challenge to caste-based reservation was brought before the Supreme Court in State of Madras versus Champakam Dorairajan (AIR 1951 SC 226). The court ruled that caste-based reservation was impermissible under the constitution, as Article 15(1) forbade discrimination based on caste. It ruled that the state had no power to reserve seats in educational institutions for members of backward communities. Therefore, the 1927 ‘communal order' was held as violating Article 29(2), which enshrines the principle of non-discrimination in educational institutions. The court also ruled that caste, race or religion could not be the basis of classification for determining social and educational backwardness under Article 15(1).

Subsequently, parliament introduced the constitution (First Amendment) Act, 1951, adding Article 15(4), which empowered the state to make special provisions to advance the interests of socially and educationally backward classes (SEBCs), and the SCs and STs. Unlike the SCs and STs, whose backwardness was automatically recognised, the constitution required that other backward classes, the OBCs, be identified on the basis of social and educational criteria. This, in turn, necessitated gathering evidence to justify affirmative action under Article 15(4). As a result, reservation was later resumed in Tamil Nadu in 1957.

From then on, the judiciary carefully scrutinised state actions on caste-based reservations, determining which groups were socially and educationally backward, while delicately balancing real social conditions with the goals of social equity.

However, the initial construction of ‘other backward classes’ was not straightforward. The Drafting Committee, chaired by Ambedkar, inserted the term ‘backward’ and referred to the Backward Classes as ‘a collection of certain castes’. As Galanter argues in Law & Society in Modern India, unlike SCs and STs – whose membership was initially specified by Presidential order, not by the constitution, and later could be modified only by parliament – the constitution not only doesn’t define BCs, it does not provide a clear method or agency to determine which groups belong to this category.

BCs may be designated by state, local or central governments, and by both administrative and legislative authorities. Article 340 provided for the establishment of a Backward Classes Commission, appointed by the President, to investigate their conditions and recommend measures for improvement. The first such commission, set up in 1953 and led by Kaka Kalelkar, was tasked with determining criteria for identifying BCs, but its report did not meet a favourable response. At the same time, policymakers, perhaps mindful of the social divisions exposed by Partition, recognised that without addressing issues of social identity, affirmative action policies could not be implemented.

Accordingly, the first Backward Classes Commission, which initially recommended affirmative action based on caste, later pleaded that reservations and other remedies recommended on the basis of caste would not be in the interest of society and country. With this, unofficially, the central government took the stand that affirmative action is available only for SCs and STs. Nevertheless, states set up backward classes commissions under Article 338(3), identified possible backward groups and launched affirmative-action policies, including subcategorising BCs (to fulfill the mandate of Article 15 and Article 16 to aid those who are more disadvantaged within BCs).

Jurisprudence of identification and representation

In this context, legislative actions regarding BC reservations were frequently challenged, giving rise to the jurisprudence of affirmative action. In M.R. Balaji versus State of Mysore (1963), the Supreme Court held that while caste may be used as a criterion to identify social backwardness, it cannot be the sole or dominant test. However, the court struck down the bifurcation of backward classes into two categories.

Later, in R. Chitralekha & Another versus State of Mysore & Ors (1964), the court upheld identification of BCs based on occupation, income and educational status, without reference to caste, stating that it did not offend Article 15(4).

In Peeriakaruppun versus State of Tamil Nadu (1971), the Supreme Court rejected the argument from earlier cases that identification of Socially and Educationally Backward Classes (SEBCs) on the basis of caste alone was impermissible. Justice K Hegde observed that many castes in India are socially and educationally backward, and to ignore their existence would be to ignore the facts of life. Conversely, in Janaki Prasad Parimoo versus State of Jammu & Kashmir (1973) and State of Uttar Pradesh versus Pradip Tandon (1974), the court held that poverty alone cannot determine backwardness, emphasising that Article 15(4) and Article 16(4) are not poverty alleviation provisions. Earlier, in C.A. Rajendran versus Union of India (1967), it was clarified that caste may constitute a class of citizens, and if the caste as a whole is socially and educationally backward, reservations can be granted under Article 15(4).

The Havanur Report (1972) applied the principle of ejusdem generis (a legal rule used to interpret general terms in a law in light of specific ones) and used the identity framework that underpinned affirmative action for SCs and STs. It noted that BCs mean the erstwhile Shudras, who were equally deprived and lacked opportunities for social mobility, preventing them from progressing in the open category. This approach was challenged in K.C. Vasanth Kumar & Another versus State of Karnataka (1985), where the court held that backwardness should be identified through a more inclusive and holistic assessment of social and economic conditions. Justice O. Chinnappa Reddy observed that using caste to identify BCs is valid because caste functions as social class in India.

Also read: Why the BJP Cannot Be Trusted on the Caste Census

However, the Mandal Commission, a.k.a. the Socially and Educationally Backward Classes Commission (1979) affirmed caste as a dominant indicator of backwardness. The Mandal report (1980), which the V.P. Singh government sought to implement in 1990, sparked widespread anti-reservation protests and was subsequently challenged in the Supreme Court. The matter was thoroughly examined in Indra Sawhney & Others versus Union of India (1992). The court finally upheld the government’s decision to reserve 27% of central government and public sector jobs for OBCs, subject to an overall ceiling of 50% for all reservations.

It emphasised the concept of ‘social backwardness’ and prescribed eleven socio-economic indicators, including caste, to identify OBCs. The bench also introduced the concept of ‘creamy layer’, holding that more affluent members of OBCs would be excluded from reservation benefits.

Subsequently, another Mandal Commission recommendation to implement OBC reservations in higher educational institutions was implemented as late as in 2006 through the constitution (93rd Amendment) Act 2005, which was introduced by the first Manmohan Singh ministry, granting 27% reservation for OBCs in all central government institutions. This led to another round of anti-reservation protests, which ended only with the Ashoka Kumar Thakur versus Union of India and Others (2008) judgment, upholding the 93rd amendment and the Central Educational Institutions (Reservation in Admission) Act, 2006.

Structuring of OBCs 

In the majority judgment in Indra Sawhney, Justice S.R. Pandian expressed surprise that, 42 years after the constitution came into force, the Union government had still not formally defined BCs, thereby helping to serve the status quo. Today, the OBC category functions as a residual or ‘catch-call’ group, including those who do not fit into SCs, STs, the Economic Weaker Section or the unreserved category. This situation is reinforced by inaction and weak monitoring of affirmative actions for OBCs in employment and education.

Beyond caste, OBCs may include religious converts from SCs and regional social groups, such as the Jats in Rajasthan (except Bharatpur district). Considering the hierarchical nature of Indian society, the absence of sub-classification appears more as administrative complacency than a deliberate effort to achieve equity.

SCs and STs have a range of entitlements, including reservations in education, employment, promotions and political representation, whereas OBC reservation is confined only to education and jobs. The OBC category encompasses around 2,500 castes in the Central List and more than 5,000 castes in various state lists. Collectively, these groups are entitled to affirmative action, provided they are not in the ‘creamy layer’.

Undeniably, then, OBCs are not a homogenous group. Some castes within the category are relatively close to higher castes in terms of resources, education, population and landholding. Many trace their origin to divine traditions and claim ritual superiority over other non-elite castes. Yet in the political sphere, these castes often emphasise their marginalisation, as demonstrating backwardness remains the primary criterion for entitlement to affirmative action, irrespective of the extent to which it exists.

On the other hand, some OBCs are closer to Dalits in terms of landlessness, low per capita income and limited educational and social mobility. This uneven political economy has allowed certain relatively advantaged castes within the OBCs to monopolise the benefits of reservations, while other castes remain excluded from government jobs and other opportunities.

Some states have recognised this disparity by subdividing OBC lists, but as of now, only 11 states have done so. Treating OBCs as a single homogenous class, therefore, violates the principle of reasonable classification. The Indra Sawhney judgement emphasises this concern, noting that “if unequal castes are grouped together and reservation is provided; the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes”.

The court held that deciding where to draw the line and how to effect sub-classification of BCs is primarily a matter for the Backward Classes Commission and the state, and so long as it is done reasonably, the court will generally not intervene. It also affirmed that categorisation of BCs into Backward Classes and Most Backward Classes is permissible. However, the central government has been slow to implement this, perhaps fearing the loss of support from powerful OBCs castes.

Despite the establishment of the Rohini Commission in 2017, to investigate the conditions of SEBCs across the country and recommend measures for improvement, its 1,100-page report (backing sub-categorisation) was submitted only in July 2023 – and the government has still not made it public. Furthermore, though a caste census has been officially endorsed, the central government has not released data on caste-based reservation beneficiaries so far, preventing empirically informed and legally sustainable policy decisions.

Democracy, transparency, social justice and rule of law

We must recall the story of Lallu and Mohan from Chapter VI of the Mandal Report: Lallu, the son of a landless labourer, belongs to an Extremely Backward Class (EBC), whereas Mohan, the son of a landlord, comes from a powerful OBC caste and enjoys significant social and political advantages. News reports now suggest that the Rohini Commission report identifies 2,633 OBC castes in India, of which, 983 castes (around 37%), have not received any reservation benefits. Moreover, roughly 25% of OBC castes receive about 97% of the reservation benefits, while the remaining 75% share only around 3%.

If the current affirmative action framework perpetuates this inequality, it contradicts the basic tenets of the Mandal Report, which remains the foundational text on reservation, grounded in social justice and the rule of law. Its principles draw sustenance from the equal protection of law as given under Article 14 of the constitution, which says, like must be treated alike. This is based on the standards of reasonable classification, which must have a rational nexus with the object and purpose of the stated act.

This principle was reiterated by Justice Krishna Iyer in the Devdasan case, who noted that Article 16(1), as a facet of Article 16, permits reasonable classification. In this context, a state may find it necessary to sub-classify OBCs to ensure that the more backward among them actually receive the intended benefits. Otherwise, the current OBC reservation framework risks perpetuating social injustice rather than delivering social justice, since affirmative action is meant to counter discrimination, deprivation and marginalisation—not create new inequities.

Even in State of Punjab versus Davinder Singh (2024), the Supreme Court, by a 6:1 majority, ruled that sub-classification of SCs and STs is permissible to provide distinct quotas for the relatively more backward groups within these categories, despite their internal diversity being less complex than that of OBCs. It supports the principle, to borrow from Ronald Dworkin, that the law must be integrative, and courts lately have generally interpreted constitutional provisions on affirmative action to achieve substantive equality, not merely formal equality.

Aklavya Anand is an Assistant Professor at the Faculty of Law, University of Delhi, Ravi Singh Verma is a practicing advocate at the Delhi High Court and Dr. Shailesh Kumar is a Lecturer in Law at the Department of Law & Criminology, Royal Holloway, University of London.

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