SC/ST Sub-quota red lines and red herrings

The biggest problem is that many supporters of social justice have assumed, wrongly, that the Supreme Court verdict is about diluting the existing system of reservation. A plain reading of the majority judgment authored by the Chief Justice of India, DY Chandrachud, and the judgment by Justice BR Gavai makes it clear that this verdict is very much in line with the legacy of progressive jurisprudence on social justice that upholds caste-sensitive affirmative action. If anything, the apex court has deepened the quest for justice by foregrounding the concerns of the least advantaged and most stigmatised communities, placed at the lowest rung of the caste hierarchy. CJI Chandrachud’s elaboration of the principle of “substantive equality” takes forward the legacy of the NM Thomas judgment and would act as a bulwark against any future attempt to dismantle affirmative action in the name of merit.

Besides this generic but mistaken impression, there are some specific but equally misplaced criticisms. First, there is a legal-constitutional objection that the court has usurped the domain of Parliament. This reiteration of formal legalism reminiscent of EV Chinnaiah judgment is deeply flawed. The court has neither carried out the sub-division nor even mandated it. Whether and how the sub-division will take place is for the legislatures to decide and for the governments to implement. The apex constitutional court has done what only the judiciary could have done, namely clarified that such an exercise is permissible under Article 341 of the Constitution.

The second criticism, about the SC passing such a major order without authentic empirical evidence, is factually incorrect. The Census of India provides authentic and granular data not just of the head count, but also of the occupation, family assets and educational attainments of each of the Scheduled Castes and Tribes (but not for the rest of the population) at every administrative level. The accompanying chart presents a glimpse of this data from the latest census of 2011 for the proportion of “graduates or above” (per 10,000 rather than per cent) within each SC community for a few states.

The conclusion is evident: There is nothing homogeneous about the educational disadvantage of Dalits communities. Take Punjab, the state that gave rise to this legal case: The level of graduates among Mazhabi Sikhs (61) is less than half of Hindu Balmikis (126) whose level is less than half of the Ravidasi (305). Just look at the numbers for Bhuia (just 6) and Musahar (just 5) in Bihar, Madari (97) and Chakkilian (137) in Tamil Nadu, Jangam (106) in united Andhra Pradesh, Balmiki (115) and Pasi (145) in Uttar Pradesh, Madiga (209) in Karnataka and Mang (217) in Maharashtra. Compare these numbers with those of other SC communities within that state and you would understand why it may be grossly unfair for these castes to compete with the rest. To be sure, this inequality is not because of any oppression or discrimination by the relatively less disadvantaged Dalit communities, but it needs a redressal anyway.

Finally, there is the political objection, that sub-classification would create political rift within Dalits. Frankly, the ground reality is that the social life and political expression of diverse SC jatis is already fragmented and fractured. In fact, the only way to create unity within and between categories is by creating broad, consociational arrangements. This can be done if voices from the relatively less disadvantaged communities within Dalits would acknowledge the agency of the most disadvantaged SC communities who have won a hard-fought legal fight. Unfortunately, the insinuation of social division at this stage echoes the anti-reservationist rhetoric of the “upper” caste elite.

Once we set aside these misconceived criticisms, we can confront some real apprehensions and difficulties that need to be dealt with. First, there is a real possibility that the licence to sub-classify may be used as a tool of political expediency, if not as a weapon to punish the communities not aligned with the ruling party. The BJP has already misused OBC sub-classification in some states for this purpose. The verdict provides some safeguards against this possibility, as it requires evidence driven classification. It would be necessary to specify the nature of this evidence. Besides the census and economic census data that is already available, it would be necessary to have a nation-wide caste census of all organised sector jobs and higher educational institutions.

Second, we cannot rule out the possibility of sub-classification being used as a ploy to reduce the number of eligible candidates for higher jobs and using the “Not Found Suitable” route to first keep the positions vacant and then transfer them to the “unreserved” category. This can be remedied by a rule that any unfilled post in the sub-category of SC/ST may be transferred to another sub-category of SC or ST, but cannot be transferred to Unreserved.

Third, there are multiple problems with the sudden application of the “creamy layer” doctrine to the SC and ST. One, the issue of “creamy layer” was not framed by the court and the litigants did not get a fair chance to contest this point. The CJI has wisely kept quiet on this issue, as he was not required to address it. Two, while there are drops of “creamy” individuals and families among Dalits, there is no sociological evidence that the SC communities have already formed a “creamy layer” — which requires inter-generational transfer of privileges, assured social status and stable social networks. Three, the exclusion of “creamy layer” would reduce the pool of eligible candidates even further and open the way for transferring posts to the unreserved category. While it is true that the exclusion of “creamy layer” is not an operational direction in this judgment, there is a real fear that observations by four judges in a seven-member bench could be used to challenge any sub-quota policy that may not use the “creamy layer” criterion. If this issue is not clarified in a judicial review, Parliament may need to step in to remove this confusion.

Finally, there is the issue of the impact of this verdict on the Scheduled Tribes, while the case was argued substantively on the social reality of the Scheduled Castes. In one sense this was unavoidable: There cannot be two different interpretations of Article 341 and 342, one for SCs and another for STs. But the fact remains that the nature of internal differences and the very logic of reservation are substantially different in the case of STs. It may be prudent to hold back the substantive application of this verdict in the case of STs till the apex court finds an opportunity to get into the specifics of the reservation for Scheduled Tribes.

Instead of protesting against the idea of the sub-quota, the politics and policies of social justice should focus on correcting some flaws in the present judgment and move on to the real long-term issues: Enhancing SC/ST reservation as per the current population of SCs and STs, removal of the 50 per cent ceiling and deepening and broadening of the social justice apparatus beyond public sector jobs.

Yadav is member, Swaraj India, Dhawan is a Delhi-based advocate and legal researcher and Mogha is a PHD scholar at CSSS, JNU