Sub-categorisation judgment: A progressive ratio piggybacked by a noxious obiter

Aug 17, 2024

By Arvind Narrain

ON August 1, 2024, a seven-judge Constitution Bench of the Supreme Court delivered a 6:1 majority judgment upholding the legality of the sub-classification of Scheduled Castes for the purposes of reservations.

The judgment is 565 pages long with the main opinion authored by the Chief Justice of India (CJI) Dr D.Y. Chandrachud speaking for himself and Justice Manoj Misra. There were concurring opinions by Justices Gavai, Pankaj Mittal, Vikram Nath and Satish Chandra Sharma. The dissent was authored by Justice Bela Trivedi.

The majority overruled the five-judge Bench decision in E.V. Chinnaiah versus State of Andhra Pradesh in which it was held that the category called Scheduled Caste was a homogenous category and it was constitutionally impermissible to subclassify it for the purposes of reservations.

According to Chinnaiah, the President and then the Parliament had exclusive power to exclude or include groups in the list of Scheduled Castes under Article 341 and state governments did not have the power to sub-classify as such classification was a form of exclusion from the list of Scheduled Castes.

The judgment of the Supreme Court has elicited strong responses with a section criticising it strongly for legitimising sub-reservation which will further divide the Dalit community.

Another set of criticisms has to do with the somewhat loose observations by Justices Gavai with concurrence by Justices Sharma and Nath on why the ‘creamy layer’ needs to be excluded from the benefits of Scheduled Caste reservation.

A third set of criticisms has to do with the ahistorical and indeed unconstitutional observations on caste by Justice Pankaj Mittal which seem to cast aspersions on the very need for reservations, in effect ignoring the text of the Constitution!

Apart from the ruling on the constitutional validity of sub-group reservations, the observations on the caste system and the creamy layer are extraneous observations, which can best be characterised as ‘obiter’. By obiter, it is meant that these observations were not of relevance to deciding the issue at hand and are, therefore, of no binding value.

The ratio of the judgment has to do with the legal basis on which the majority came to the conclusion that “the sub-classification of Scheduled Castes for the purpose of providing affirmative action, including reservation, is valid”.

The legal basis of the ruling is elucidated in the CJI’s opinion. The legal reasoning of his opinion also draws upon empirical evidence of the nature of the caste system to come to its conclusion.

The CJI understands the power of sub-classification to be inherent in Articles 15(4), 16(4) and Article 14. As far as the CJI is concerned, it is a mistake to see Article 341 as the source of the prohibition on sub-classification as Article 341 only prohibits inclusion or exclusion of castes from the Scheduled Caste list by states.

Sub-classification is not an exercise in ‘excluding’ groups but rather an exercise that ensures the “equal protection of the laws” to those who are similarly situated thereby invoking the mandate of Article 14.

The CJI cites N.M. Thomas for the proposition that reservation and (by extension internal reservation) is an example of ‘constitutionally sanctified classification’, meant to fulfil the ideal of substantive equality.

The power to reserve seats and posts under Articles 15(4) and 16(4) is the power to move beyond the formal notion of equality of ‘treating like alike’ to addressing substantive inequalities of status and of opportunity.

Simply put, for the CJI, sub-classification is a power seen to vest in Articles 14, 15(4) and 16(4), and it is a way to promote substantive equality. The CJI draws support from the observations in Indra Sawhney, that it is constitutionally permissible to classify Backward Classes into backward and more backward, as failure to do so can result in the benefits being cornered by the backward at the expense of the more backward.

The CJI, after rooting the power of sub-classification in the notion of substantive equality, connects the legal conclusion to a sociological reality.

In a section titled, ‘Historical and empirical evidence of inter-se backwardness within the Scheduled Castes’, the CJI cites Dr B.R. Ambedkar for the proposition that “a uniform criterion to identify the depressed class would be inappropriate”.

The note submitted by Dr Ambedkar to the Franchise Committee observes that “it would hardly be appropriate to apply the same test or tests all over India. India is not a single homogeneous country. It is a continent”.

The CJI also references a range of contemporary sociological literature, including a study by the Robert F. Kennedy Centre for Justice and Human Rights in collaboration with Navsarjan (an organisation that promotes the rights of Dalits) which found that in 1,589 villages in Gujarat, “certain Dalit castes practiced Untouchability against other Dalit castes”.

“For example, Dalits of the lower sub-caste were prevented from sitting with the rest of the Dalit community during meals. They were not given tea when they visited the house of a higher sub-caste. It was also found that only in twelve percent of the villages could a Dalit belonging to a lower sub-caste receive water in the house of a Dalit of a higher sub-caste.

“The study also found that in 92.4 percent of the villages studied, all the Dalits did not have access to all-Dalit burial grounds and that the lower sub-castes were denied entry into Dalit temples in 79 percent of the villages,” CJI opinion reads.

Based on a survey of sociological and empirical literature, the CJI concludes that the legal category of ‘Scheduled Castes’ is not a homogenous category. Just because the Constitution recognises the category called ‘Scheduled Caste’, there is no warrant to “draw any inferences about the existence or non-existence of internal differences among the Scheduled Castes”.

Thus, in the opinion of the CJI, internal reservation has a constitutional basis and is attuned to the sociological reality of caste in India. However, sub-classification is subject to constitutional limitations as well. It must answer the test of reasonable classification under Article 14 and the “State must prove that the group or caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented”.

The sub-classification undertaken by the State is also subject to ‘judicial review’ and the State can “embark on an exercise of sub-classification … on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot, in other words, merely act on its whims or as a matter of political expediency”.

The CJI further lays down what could be the constitutionally permissible modes of sub-classification in his judgment. The two models of sub-classification are the exclusive model and the preference model both of which have two sub-variations.

In the exclusive model of sub-classification, the first variation is when one caste has an exclusive right to the entire category of reservation and the second variation is when the caste has an exclusive right to a certain percentage of the reserved seats.

In the preference model, there are again two variations. In the first variation, the sub-categorised class will have a preference over all the seats reserved for the category of Scheduled Castes, and in the second variation, the sub-categorised class will have a preference over a certain percentage of seats. Any unfilled seats will be available to the other categories.

What is constitutionally permissible in the opinion of the CJI is either the exclusive model when the sub-category has the exclusive right to a percentage of the reservation for the Scheduled Castes or the preference model where the sub-category has a preference for a certain percentage of the reservation.

What is constitutionally impermissible is when the sub-category has an exclusive right to compete for the entire reservation for the Scheduled Caste or when the sub-category has a preferential right to the entire reservation for the Scheduled Caste.

Justice Gavai concurs with the CJI noting, “Even among the Scheduled Castes, there are some categories who have received more inhuman treatment for centuries and generations as compared to the other categories. The hardships and the backwardness that these categories have suffered historically would differ from category to category.

In my view, therefore, merely because they are part of a single or a combined Presidential List, it cannot be said that they form part of a homogeneous group. I, therefore, have no hesitation in holding that E.V. Chinnaiah has been wrongly decided.”

Apart from the area of concurrence, Justice Gavai goes on to opine that “the State must evolve a policy for identifying the ‘creamy layer’ even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action” as “this alone can achieve the real equality as enshrined under the Constitution”.

Justice Nath and Sharma are in agreement with these observations of Justice Gavai. Justice Sharma, in fact, opines, “The identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.”

It is these observations by the three justices that are deeply troubling. Interestingly, the nature of these observations as obiter can be deduced from the dissenting judgment by Justice Trivedi.

As Justice Trivedi observes, “The judgments of the Constitution Benches have to be read in the context of questions which arose for consideration before them. Certain observations made in the judgment may be necessary for deciding the issues involved, but every observation made on the law in the course of delivering the judgment may not have a binding effect as a precedent.

“Any observation or remark made or opinion expressed incidentally or collaterally, and not directly upon the question posed before the court, would be an ‘obiter dicta’ and not a ‘precedent’. A decision is an authority for what it decides and not what can logically be deduced therefrom.”

The dissent by Justice Trivedi raises the important procedural question as to how the matter came before the Supreme Court. As Justice Trivedi rightly observes, “When a law was settled by the previous Constitution Bench in E.V. Chinnaiah after considering all the previous judgments, including Indra Sawhney, and after investing substantial judicial time and resources, and when the same had held the field for a substantially long period of fifteen years, in my opinion, the very reference by the three-judge Bench to the larger Bench for reconsideration of the decision in E.V. Chinnaiah, that too without assigning any reason was inappropriate and not in consonance with the well-settled doctrines of precedents and stare decisis.”

However, Justice Trivedi’s opinion that the category called ‘Scheduled Caste’ is a homogenous category and cannot be sub-divided has no basis either in equality law which takes seriously the constitutional mandate of substantive equality or in sociological reality as demonstrated by the opinion of the CJI.

This judgment deals with what is, after all, a difficult and emotional question of what K. Balagopal called “justice for Dalits among Dalits”. The reference point to deal with the question of sub-classification is the sociological category repeatedly deployed by Dr Ambedkar, namely, ‘graded inequality’.

The system of graded inequality is such that each rung of the caste system has a level above it as it does a level below (apart from those at the very top and the bottom).

As Ambedkar puts it, “In the system of graded inequality, there is no such class as a completely unprivileged class except the one which is at the base of the social pyramid.” Thus, apart from the lowest, “each class being privileged, every class is interested in maintaining the social system”. It is this sociological reality of graded inequality to which the judgment is responding.

However, while sub-reservation may be necessary, it is not sufficient to deal with the pervasive problems of caste society. What is required is a caste census to take forward the ideals of both social justice and substantive equality.

Only with a caste census will the full scope of inequities across and within caste classifications and sub-classifications be fully understood. This will help the formulation of necessary policies directed towards addressing the specific forms of marginalisation.

As the judgment itself acknowledges, the question of sub-classification relies upon data of relative backwardness, and this data at the nationwide level requires a caste census.

The judgment may not even deliver fully what it promises because of the shrinking nature of public employment due to the State policy of privatisation.

As Balagopal aptly noted, “Reservations are available only in government (or government-financed) educational institutions and government jobs. This field is being shrunk as a matter of policy.”

The larger policy question that needs to be asked is “what the fate of the rule of reservations will be when all employment is contractual, without guarantee of tenure and possibility of regularisation”.

On balance, this judgment takes forward a constitutional vision of substantive equality by responding to the sociological reality of graded inequality. It is up to states to now ensure justice between Dalits by crafting a constitutionally permissible form of sub-reservations based on strong empirical data of marginalisation with the category of Scheduled Castes.

While the judgment is to be welcomed, there is a legitimate concern about how the ‘obiter’ observations on the creamy layer can inch their way towards becoming legal standards.

It is, therefore, of seminal importance to continue to reiterate that these observations on the creamy layer and reservations as a whole are in the nature of ‘obiter’ only.