The recent judgment of the Supreme Court’s seven-judge bench in the Punjab Subcategorisation of Scheduled Castes case has brought near unanimity among the representatives of Scheduled Castes who raised a common voice against the order. From Mayawati of the Bahujan Samaj Party to Thol Thirumavalavan of Viduthalai Chiruthaigal Katchi, many have raised unequivocal condemnation of the directions issued.
A look back at the issues leading to the decision may be necessary. Under Article 341 of the Constitution, the Parliament is empowered to specify castes, races or tribes for the purpose of declaring them as Scheduled Castes. The said Article empowers the Parliament to include or exclude one from the list of Scheduled Castes. The then-unified Andhra Pradesh was faced with such a unique situation. Among the number of sub-castes included in the Presidential Order over the years, a few communities were able to corner the benefit of reservation to the exclusion of other sub-castes and this led to continuous representations from those disadvantaged sub-castes.
Andhra Pradesh enacted a law by which it introduced sub-categorisation of all the castes included in the list of Scheduled Castes. As per the population ratio, 15 per cent of seats were reserved for all the Scheduled Castes. By the new legislation, all the sub-castes under the list were divided into four categories i.e. A, B, C and D. The law provided that the A category would have one per cent, B category seven per cent, C category six per cent and D category one per cent. This was based upon the report given by Justice Ramachandra Raju Commission. The controversy which arose was popularly known as ‘Mala’ and ‘Madiga’, the two dominant castes within the list of Scheduled Castes.
This sub-categorisation within the list of Scheduled Castes gave rise to litigation before the Andhra Pradesh high court which ultimately resulted in reaching the Supreme Court. A constitution bench of five judges of the Supreme Court unanimously held (EV Chinnaiah – 2005) that the State legislature has no power to do sub-categorisation as it will result in tinkering with the presidential list of Scheduled Castes authorised by the Parliament. If for any reason, any sub-caste within the larger category of Scheduled Castes corners all the benefits, then the only remedy is for the Parliament to find out and exclude such category under the power vested under Article 341 of the Constitution. The constitution bench did not recommend the introduction of any exclusion of the creamy layer of persons enjoying the benefit under the SC quota even though the earlier decision of a larger bench dealing with the case of Other Backward Classes (OBCs) introducing the concept of creamy layer for exclusion of communities from the list of OBCs was before them. One would have thought the matter would end therein.
However, similar problems arose in other states also. For example, in Tamil Nadu, the reservation for Scheduled Castes is 18 per cent and the prominent sub-castes within the list were Parayars (northern TN) and Pallars (southern TN). There were also other sub-castes within the Scheduled Castes list. However, the Arunthathiyinar community, which has a lower population but is spread all over Tamil Nadu, was insisting that there should be an internal reservation within the Scheduled Castes quota. During the Chief Ministership of Dr Kalaignar, this demand was accepted and an Act was passed by the legislature (2009) by which a three per cent reservation was made in favour of the Arunthathiyinars (which includes six sub-castes) and the sub-categorisation was from then referred to as SC(A) quota.
Though it was opposed by all the political groups representing the Scheduled Castes, the most vociferous opposition came from Dr Krishnaswamy, the leader of the Puthiya Tamizhagam Party. He also filed a writ petition challenging the sub-categorisation. While the matter was pending before the Madras high court, a similar case arose from Punjab. As per the 2011 census, Punjab had a Scheduled Castes population of 31.9 per cent and the State had allotted 25 per cent reservation in favour of Scheduled Castes in all the educational institutions and government employments. Among the Scheduled Castes, the Mazhabi Sikhs caste alone was given 12.5 per cent and all other 37 sub-castes were given the balance of 12.5 per cent. In fact, under the 2011 census, the Mazhabi Sikhs were around 22 lakhs and another major community Samar was almost 18 lakhs population. But still, the Samars were tagged along with other sub-castes and were given only half of the total quota allotted to Scheduled Castes.
The sub-categorisation, introduced by the Punjab legislature in 2006 by an ordinance was challenged and when the matter came to the Supreme Court (2020), it was referred to a larger bench of seven judges since it was felt that the earlier Chinnaiah’s case has to be reconsidered. Along with the Punjab case, the Tamil Nadu Arunthathiyinar internal reservation case was also clubbed together and after being heard by seven judges, by a majority of six judges, both Punjab and Tamil Nadu Acts were upheld except for one lone member dissenting (August 1).
The bench held that the sub-categorisation of the larger quota of Scheduled Castes can be done by the state legislature based on reliable data and that the earlier Chinnaiah’s case holding otherwise was erroneously done and was thus overruled. But the bench did not stop with that. On the contrary, it also introduced an advisory opinion that within the list of Scheduled Castes, the reservation should not be unconditional. The government should find out those persons who had enjoyed the benefit of reservation (called the creamy layer) should be excluded and such an identification should be done by the government.
The inspiration for making such an opinion was not based upon any law but came from the earlier judgment in the OBC reservation case which arose out of the Mandal Commission recommendation. During the VP Singh government, it introduced reservations for other backward classes based upon the recommendations of the Mandal Commission which recommended reservations for Socially and Educationally Backward Classes (SEBC). While 27 per cent reservation for the OBCs was upheld, the larger bench also stated that the reservation should not be allowed to be enjoyed perpetually by persons or families and that exclusion of the “creamy layer” should be done by the government. The criteria for laying down a creamy layer were left to the government to decide. This was entirely a judge-made law and the question never arose before them. What was surprising was even at the threshold of introducing reservation for OBCs in central service, the court also came out with an exclusionary rule.
While the Constitution provides an enabling provision under Article 15(4) for the reservation of SCs, STs, and SEBCs for setting aside seats in educational institutions, Article 16(4) enabled them to get into government employment in case, in the opinion of the government, they are not adequately represented in the services of the State. Afraid that such reservations will result in diluting the efficiency of administration, Article 335 imposed on the State that while considering the claims of SCs and STs, it should “take into consideration, consistently with the maintenance of efficiency of administration”. However, by reserving certain seats in educational institutions and government employment, it is not as if there is a total dilution of standards. Taking strong exception to the critiques who oppose reservation, Justice Krishna Iyer wrote, “It is not a concession or privilege extended to them, it is in recognition of their undoubted Fundamental Right to Equality of Opportunity and in the discharge of the Constitutional obligation imposed upon the State to secure to all its citizens ‘justice, social, economic and political’ and ‘equality to status and opportunity’ to assure ‘the dignity of the individual’ among all citizens” (1980).
It is also surprising that while the Supreme Court in the sub-categorisation case referred to Article 335 regarding the efficiency of administration not being diluted, the same yardstick was not pressed into service in the matter of reservation for Economically Weaker Sections (EWS) introduced by the Modi government by the 103rd constitutional amendment. When that was under challenge, there was no whisper as to why Article 335 was not pressed into service in the EWS quota (Janhit Abhiyan, 2022). Even in the earlier OBC reservation case, when the concept of the creamy layer was introduced, the Supreme Court made a distinction between the reservation of SC/STs on the one hand and reservations for OBCs on the other hand.
Even for laying down the criteria for identifying the creamy layer, there were vast disparities in the standards laid down by various governments. But suddenly applying the concept of a creamy layer even for the reservation of SC/STs is not only an injustice but also denying the fact that by availing the benefit of reservation by one generation, the social stigma attached to them will disappear. On the other hand, reservation is only one way of affirmative action aiming to bring them on par with the other segments of society with the fond hope that social ostracism will disappear.
Contrary to their expectation, even after several decades of affirmative action, members belonging to scheduled caste communities were unable to get off from the discriminative practices adopted against them. Further, even as per Article 16(4), it is for the State to consider extending reservation until the community is “adequately represented” in State services. Hence, it is essentially for the State to decide whether any caste or group will have to be excluded from the benefit of reservation based on concrete data. Getting one job in a Class III or Class II post in the government service will not by itself make that person come within the creamy layer. Today we find excepting the lower posts, the higher posts were hardly filled up with the quota to which they are entitled.
That means it will take several generations for that person or his family to achieve the goal enshrined in the Constitution.
After the judgment, apart from the condemnations by several political leaders, the meeting convened by the prime minister of all the Dalit members of the Parliament had unanimously rejected accepting the introduction of the so-called creamy layer into the quota for reservation for SC/STs. Congress president Mallikarjun Kharge rightly demanded that “the Centre should have brought a legislation in the Parliament in the recently-concluded Monsoon Session to nullify the top court’s verdict on the issue”. It is high time such unimaginary experiments are not undertaken by the judiciary to create invidious discrimination within the Scheduled Caste community by introducing the concept of the so-called creamy layer, and by which the object of the constitutional goal is defeated.
The author is a retired judge of the Madras high court.
This article was originally published on DT NEXT
