The Supreme Court on August 27 said that reservations may be given to specific subcastes within the Scheduled Caste and Scheduled Tribes categories by State governments.
The Supreme Court was considering a case between the Punjab and Haryana High Court and the State government. In a 2010 verdict, the High Court had struck down a state law, which empowered the government to classify subcastes within SC/STs for grant of quotas.
The law in question was Section 4 (5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which gave first preference to the subcastes of Mazhabi Sikhs and Balmikis for the Scheduled Caste quota in public services. The High Court had termed this law as unconstitutional. The State government had appealed against this verdict to the Supreme Court.
The five-judge bench headed by Justice Arun Mishra, and comprising Justices Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, disagreed with an earlier judgement made by another five-judge Constitution Bench. The earlier judgement, made in 2004, had ruled against giving preferential treatment to certain subcastes within Scheduled Castes.
On Thursday, the bench observed that reservation may be made for the subcastes within Scheduled Castes, and such classification would not lead to interfering with the presidential order under Article 341. The bench called for reconsideration of the 2004 judgement in the EV Chinnaiah case.
Due to the disagreement between the two benches, the case will now be placed before the Chief Justice in order to refer it to a bench of seven judges or more.
Observing that according to anthropological and statistical data, the Scheduled Caste category is not a homogenous one, and the Presidential order listing the SC and STs was not frozen in time. The Court said,
“The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye. The social realities cannot be ignored and overlooked while the Constitution aims at the comprehensive removal of the disparities. The very purpose of providing reservation is to take care of disparities.”
The Court further said that it is the State’s obligation to undertake the emancipation of the deprived section of the community and eradicate inequalities, and in order to do so, the State may engage in “redistribution and reallocation of resources and opportunities”. Once the state has power to give reservation, the SC said, it could go ahead with sub-classification, to extend the benefits of reservation to those subcastes, which have not availed these benefits.
This is not the first time an attempt has been made to create sub categorizations within the administrative category of Scheduled Castes or Scheduled Tribes, under the argument that certain castes are monopolising the reserved quotas. In a 2011 piece published on Roundtable India, Anand Teltumbde outlined the various points at which such an attempt has been made. He wrote,
“The subcaste manipulation started in earnest from Punjab in 1972, by subdividing the quota between Ravidasias on the one hand and Valmiki and Majhabi Sikhs on the other. The next big upsurge was witnessed in the neo-liberal era, notably in Haryana (categorisation into A and B as per the recommendation of Justice Gurnam Singh Commission), Andhra Pradesh (categorisation into A, B, C and D as per the recommendation of Justice Ramchandra Raju Commission) and Bihar (exclusion of four affluent and advanced classes/castes from Maha Dalit Ayog). The contention between the Malas and Madigas took the form of virtual war in Andhra Pradesh and inspired others to raise the categorisation issue. Now it is the Mangs versus Mahars in Maharashtra, Arundhatiyars versus Parayas and Palars in Tamil Nadu, Chamars versus other minor castes in the northern states, and so on.”
He pointed out that this logic is flawed and promotes further hierarchization and strengthening of individual castes. The multiple categorizations within the Scheduled Caste category, which essentially listed all castes against whom untouchability was practised, runs the risk of fracturing and dismantling the categories of Dalit and Bahujan, both of which go against the notion of individual castes and their position in the graded hierarchy of caste, but rather stress on commonality and unity amongst the oppressed.
In February this year, a judgement by the Supreme Court upheld the discretion of State Governments to decide whether or not to implement quotas and said that the State was not obligated to provide quotas.
This Supreme Court Verdict had the following salient aspects:
A) Reservations in promotions are not a fundamental right,
B) Courts of law cannot direct the state governments to implement reservation policy for SCs and STs,
C) The governments are at liberty to implement the policy of reservations or not to implement. If they decide to implement the policy they have to first collect details of the representation of different sections of the society in government jobs,
D) If the government does not intend to implement the policy in respect of any group it is not necessary to collect such details,
E) Even if such statistics are available, the courts of law can not direct the governments to implement the policy.
According to a statement signed by over 500 activists and intellectuals against the non-implementation of OBC reservations in medical admissions, “OBC students have been denied 27% reservation in AIQ seats for undergraduate and postgraduate medical courses in the academic years 2017-18, 2018-19 and 2019-20. Thus, they are denied 3000 seats every year which are transferred to General Category.”
Thus, in yesterday’s judgement, the Supreme Court failed to address earlier judgements which have promoted the lack of implementation of reservations and gone against the principle of social justice enshrined in the constitution. The effect these earlier judgements will have on ‘disparities’ amongst groups were ignored by the Court, which instead suggested a system that will lead to a struggle between castes to avail of the already minuscule representation provided by the government.