If the EWS reservation departed the historical context and understanding of reservation as a way to rectify past injustices, the Supreme Court’s sub-classification verdict by a seven-judge Constitution Bench on August 1 in State of Punjab vs Davinder Singh could pave the way for yet another novel way to approach the reservation debate. Justice Pankaj Mithal suggests a relook at the reservation scheme but not dismantling it without a replacement. Justice Bela Trivedi, in her powerful dissenting opinion, recalled J J Hunton’s (1931) statement that depressed classes were those with whom contact entailed “purification” for upper-caste Hindus and those who suffered social disabilities such as being denied access to temples, wells, schools and suffered the stigma of “untouchability”. After their inclusion in the SC/ST lists, these groups were deemed homogenous. Different castes assumed a new constitutional status. The majority of six judges have held otherwise and rejected homogeneity within SCs and STs. In 2005, a constitution bench in EV Chinnaiah said that Dalits are not only backward but indeed most backward and they are a homogenous group and therefore no sub-classification can be made. This judgment has now been overruled. Davinder Singh will eventually give power to state governments to provide for different percentages of reservation within the SC and communities. The judgment may look sound constitutionally but it will initiate a huge political debate and could be presented by the social justice lobby as a device to tinker with the existing reservation policies.
A closer look demonstrates that our judiciary has not been quite enthusiastic about reservation policies. While there are verdicts that go the other way, several judgments have tried to dilute reservation. The latest judgment is a milestone and consistent with the earlier verdicts.
CJI in his judgment (also on behalf of Justice Manoj Mishra) has rightly held that there is nothing in the Constitution that prevents states from making such a sub-classification and Article 341 in no way limits this power as it merely gives the President the right to notify certain castes/tribes as SCs and STs. There can be no quarrel with the finding that SCs and STs historically and empirically may indeed be a heterogenous class and the government should have the power to classify them on the basis of some rational principle of differentia. But the judgment goes on to say that the inadequacy of representation is to be demonstrated by the state as the basis of backwardness. From the parameters of social, economic and educational backwardness that the Mandal Commission applied for OBCs and that apex court and high courts had been insisting upon, the Supreme Court now says that the “inadequacy of representation” is a vital yardstick of backwardness. From “untouchability” in the Poona Pact (1932) to poverty among upper castes for EWS reservation(2019), we have come to the “representation” criteria in determining backwardness. Inadequacy of representation may be the result of backwardness, not the cause of it.
Justice Trivedi was clear in her observations that the nine-judge bench in Indra Sawhney (1992) ruled on sub-classification among OBCs and not SCs and STs. In para 781 of Indra Sawhney, Justice Jeevan Reddy observed that “at the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes.” If this is so, how can a seven-judge bench overrule a nine-judge bench judgment? In fact, extending the observations made primarily in the context of OBC reservation has led to a situation where the exclusion of the creamy layer could be extended to even SC/ST reservation.
Historically speaking, judgments diluting reservation have been overturned by constitutional amendments. In Dorarirajan (1951), on the petition of a Brahamin girl who had not even applied for admission to the medical college, the Madras High Court struck down the reservation policy. When the Supreme Court also struck down reservation in the Dorairajan case, Jawaharlal Nehru immediately responded by amending the Constitution and inserting Clause (4) in Article 15 making it clear that the government will have the power to make special provisions for any socially and educationally backward classes of citizens or for SCs and STs.
In Indra Sawhney (1992), in which 27 per cent OBC reservation was challenged, a nine-judge bench laid down the law on reservation. The Court said that in the future, reservation benefits cannot extend to promotions. The Congress government at the time brought in the 77th constitutional amendment to overturn Indra Sawhney on the issue of promotions. The 81st constitutional amendment overturned rulings on “carry forward” and permitted the state to treat unfilled posts as a separate category so that the 50 per cent upper limit on reservation did not come in the way. The 82nd constitutional amendment in Article 335 was passed to empower the state to relax qualifying marks in any examination or lower standards in matters of promotion of SCs and STs.
In Veerpal Singh Chauhan (1995) and subsequently through a five-judge bench in Ajit Singh (1999) the Court introduced the “catch-up rule” under which general candidates, promoted after SC/ST candidates, will regain their seniority over earlier promoted SC/ST candidates. As a result, the 85th constitutional amendment had to be passed at the initiative of the BJP government to reverse these judgments and give consequential seniority to SC/ST candidates. Last week, in the face of this law, Chandrababu Naidu’s NDA government in Andhra Pradesh restored the seniority of general candidates.
The aforementioned amendments were challenged by several general candidates leading to the M Nagaraj (2006) verdict in which the Court upheld the constitutionality of the amendments. However, it made some curious observations: SC/ST reservation was hedged by three constitutional requirements — backwardness, inadequacy of their representation in public employment and overall efficiency of administration. Following Nagaraj, several high courts struck down quotas in promotions over these three requirements. Moreover, though the SC’s backwardness was taken into account when they were so notified by the President under Article 341, Nagaraj erroneously insisted on quantitative collection of data to prove backwardness. Ironically, no petitioner in Nagaraj had disputed the backwardness of Dalits. In Jarnail Singh (2017), the SC overruled Nagaraj on a collection of data to prove backwardness. The latest judgment brings back the collection of such data.
Four majority judges in Davinder Singh favoured the exclusion of the “creamy layer” of SCs and STs from reservation though this was not an issue before the Court. Justices Gavai and Vikram Nath favoured such an exclusion. Justice Mithal said that reservation should be confined to one generation and Justice Satish Chandra Sharma supported this view. However, in Ashok Thakur (2008), the apex court clarified that the creamy layer doctrine has no relevance in SC/ST reservation.
The CJI’s conclusion about the efficiency of administration to promote inclusion and equality is a big positive of this judgment. Similarly, the finding that all seats under a quota cannot be reserved for a single group within the SCs and STs will also curb states’ powers. However, in terms of social impact, the judgment has unintentionally strengthened the Opposition’s argument for a caste census to determine the share of different groups in the reservation pie.
The writer is vice-chancellor of Chanakya National Law University, Patna. Views are personal
