New Delhi: The union cabinet has sought to address speculation surrounding the introduction of a creamy layer in reservations for SC and STs (Scheduled Castes and Scheduled Tribes) and announced that there are no plans to implement any such exclusion.
But questions continue to remain about the implementation of the Supreme Court judgement allowing states to sub-categorise for the purpose of granting separate quotas for those who are more backward among communities in the list, and whether such a sub-classification will serve the purpose of addressing discrimination, backwardness, social and moral justice.
“The cabinet decision on the creamy layer doesn’t come as a surprise. The ruling party (Bharatiya Janata Party) cannot go against what is a settled issue as far as SC/STs are concerned-that creamy layer is not applicable because discrimination may still happen despite economic mobility,” said Sumeet Mhaskar, professor at O.P. Jindal Global University.
The question around the introduction of a creamy layer in reservations for SC and STs came after the four judges of the seven-judge constitutional bench, which ruled in favour of the sub-categorisation, called for the identification of creamy layer among SCs and STs, to exclude them from the fold of reservation. The judgement itself was not on the question of the creamy layer, but whether states can sub-classify SC and STs.
A seven-judge bench of the Supreme Court on August 31, in a 6:1 ruling overturned the 2005 E.V. Chinnaiah v. State of Andhra Pradesh judgement in which the court had held that all Scheduled Caste groups under Article 341 were one homogenous group. Article 341 authorises the President to declare certain castes and classes as Scheduled Castes. The court held that sub-classification was permissible by states because of the varying levels of discrimination and backwardness faced by different groups.
In his majority opinion, chief justice of India D.Y. Chandrachud prescribed that such sub-classification would need to be based on the certain yardsticks, as surmised by the Supreme Court Observer including that it cannot lead to the exclusion of certain castes in the Presidential List from the benefit of reservation, it must be based on empirical data that proves the need for sub-classification; and any legislation creating sub-classification would be subject to judicial review.
“Revolutionary”
According to Raees Muhammad, formerly known as Ravichandran Bathran, whose 2016 paper titled ‘The many omissions of a concept: Discrimination amongst Scheduled Castes’ appears in the footnotes of the judgement written by the CJI, said that the apex court allowing sub-classification is “revolutionary”.
“This is for the first time in history that the judiciary has taken a step forward in giving a revolutionary judgement for a social cause. Why it is revolutionary is because Valmikis, and many other scavenging communities who were not in academics and other spaces will have an equal space and get social justice. If this judgement is implemented we will see in maybe 3-5 years many of them coming forward and discussing the injustices that they are meeting everyday among the Scheduled Castes,” he said.
Muhammad, who holds a PhD and has in recent years been engaged in sanitation work and has a company for cleaning septic tanks which he also cleans himself, is also behind the handle Dalit Camera on X. He said that a creamy layer principle does not arise, because it won’t take away the taint of discrimination. But the judgement is revolutionary as it addresses casteism within the scheduled castes.
“The flaw of the Dalit movement is that they have taken Ambedkar’s Annihilation of Caste text as a religious text and that is a serious issue. Ambedkar wrote it for the caste Hindu audience and Dalits have now centred their entire problem on caste Hindus,” he said.
“But I am arguing and the judgement also says that there is more casteism among the Dalits, there is a Brahminical mindset among them also. They are trying to show that caste is a problem of the upper caste, they are not saying that caste is a problem for the lower castes as well. The judgement says that caste is a problem for every individual that is why I called it revolutionary.”
Unfilled SC/ST vacancies and backlog
According to a 2023 report of the parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, data from 44 Ministries/ Departments showed that that the only category in which SCs and STs have a share larger than the mandated 15% and 7.5% respectively are the Group C jobs excluding safai karmacharis (18.58%) and an even larger share in Group C jobs including safai karmacharis (36.9%).
In the report, the committee noted that it is “perturbed to note that the category-wise percentage representation at various levels for Scheduled Castes and Scheduled Tribe for Group A is far below the constitutionally mandated percentage of 15% for SC and 7.5% for ST. The Committee also note that the representations of ST for Group B and C are well below the mandated percentage.”
It also noted “negligible presence or no presence” of SC and STs in the Board of Directors of almost all the Ministries/Department PSUs/Banks.
It highlighted the lack of eligible candidates being cited for the backlog in filling vacancies for SC and STs and suggested remedial measures to fill the vacancies in a time bound manner.
M.S. Nethrapal, an Indian Revenue Service officer who conducts research on representation in government jobs and education, said that the question now is whether sub-categorisation alone can help.
“There are other aspects to the reservation policy like unfilled vacancies. If you see the overall pie, reserved jobs are coming down due to outsourcing, privatisation and disinvestment in the public sector by the government that is reducing the number of jobs. So the overall pie is coming down. In addition, there is the question of so many unfilled vacancies as we go higher and higher (in posts).” said Nethrapal.
Nethrapal added the the question now is that if the reservations are complete and superfluous then sub-categorisation is a solution because it can become a monopoly of a few castes.
“If the vacancies are not filled, they need to be filled first either by developed or under-developed SC/STs. Once the quota is filled, that is when we should go to sub classification. When sub-categorisation and non-filled vacancies work together then it will be an optimal solution. But only sub-categorisation and not increasing the number of jobs, will not work,” said Nethrapal.
Lack of empirical data
According to Mhaskar, the judgement is “unconstitutional” as there is no jati-specific data on income, assets, land ownership.
“The idea is we need empirical evidence. Some castes may have been left behind but that is also part of decreasing share of the cake in higher educational opportunities and public sector jobs. We have to look at these developments against the backdrop of these changes that have taken place.
“Sub classification may be necessary, if tomorrow, the census data comes out and shows that certain castes have benefitted more and they also experience less caste based discrimination and exclusion. The Supreme Court has also said in the case of Marathas and Jats that we don’t have enough empirical data. And now it is doing exactly the contrary which is without using any empirical data on sub jatis or sub tribes they have given the judgement which I think is unconstitutional.”
The need for empirical data is also important for effective representation and not just numerical representation, which implies representation in higher posts.
“This is going to be a long drawn process. Sub categorisation may have to be given in cases of Madigas for instance who are stuck in age-old occupations which are considered to be impure. Even without data we can say they may not be represented. But what the court is saying is that there has to be data, once that is collected the real picture will emerge,” said Nethrapal.
“The government may have data but it is not in the public domain – for instance, whether a group has more ministers, secretaries, or who has studied more. Once this data is in the public domain, there can be a discussion and as the CJI has clearly written, any sub-categorisation that takes place, can face judicial scrutiny.”
Political impact
It took nine days for the Centre to address the questions thrown up by the Supreme Court judgement amid widespread speculation about the introduction of a creamy layer, following the four judges observations. While the Centre had spoken in court in favour of sub-categorisation, the BJP avoided a statement following the judgement pronouncement.
On August 9, while announcing the cabinet’s “well thought through” decision to not implement a creamy layer for SC and STs, union minister Ashwini Vaishnaw said that the National Democratic Alliance (NDA) government is bound to B.R. Ambedkar’s constitution.
The cabinet’s decision came hours after a delegation of about 100 BJP MPs met prime minister Narendra Modi and urged him not to implement any such creamy layer. Earlier NDA allies and union ministers Chirag Paswan (LJP) and Ramdas Athawale (Republican Party of India) opposed the sub-classification judgement, with Paswan even saying that his party would appeal the decision.
The opposition INDIA alliance, particularly the Congress has been calling for a nationwide caste census for over a year now, including during its 2024 Lok Sabha election campaign. But the question of sub-categorisation was also largely avoided except by state chief ministers like Siddaramaiah and Revanth Reddy who welcomed the Supreme Court judgement.
It was only on August 10 – a day after the cabinet’s decision – that the party’s national leadership in the form of Congress president Mallikarjun Kharge said that while a creamy layer should not be implemented and the party is consulting NGO’s, intellectuals to understand the nuances of the necessity for a sub-classification.
Bahujan Samaj Party (BSP) chief Mayawati, while welcoming the cabinet decision, has called for nullifying the Supreme Court’s judgement through a constitutional amendment in parliament stating that “state governments can use this decision as part of their politics to implement sub-classification and creamy layer of SC/STs.”
‘Dangerous precedent’
According to anti-caste scholar and activist Suraj Yengde, politically, sub-categorisation appeals to all political parties.
“But this is an undoing of Ambedkarite values. Ambedkar fought for all scheduled castes and not for individual castes. Now with sub-categorisation, each sub-caste will start recognising itself as an atomised whole instead of a part of whole. The Brahminical agenda is to isolate scheduled castes from becoming a union of castes,” he said.
The absence of detailed data, in the Supreme Court judgement, has raised questions about what it ultimately means to fragment SC/ST groups.
“The court has looked at published works but it doesn’t have detailed data about what it means to further fragment. When we fragment, we create thin groups who are vulnerable and insecure. This is a very dangerous precedent wherein what we essentially do is isolate micro castes of Dalits into their own being which is a tragic rejection of human dignity that the Supreme Court has even thought of,” said Yengde.
Yengde said that while their intentions may have been of genuine interest, this needed to be done through a consultative process, including various communities, which can then be taken up in parliament.
“We have to be aware of the fact that some groups may not have been rightfully represented. Their complaints are not wrong and need to be remedied. The issue of redistribution of resources cannot be addressed by sub-categorisation but by identifying factors that have left them behind,” said Yengde.
“But in order to redistribute resources, I have to ensure that it reaches the last straw of the line and and not limit among the numerical castes. I need to identify how many groups there are and what can be done to distribute the pie equally. You cannot slice the pie and distribute it, because it is already a small pie.”
