A Second Look: The Need to Reconsider the Supreme Court’s Verdict on SC Sub-Classification

Authored by Sharnam Agarwal, a 2nd-year law student pursuing B. A. LLB. (Hons.) at National Law Institute University, Bhopal

Source: Centre for Financial Accountability

Introduction 

India’s reservation policy has been the cornerstone for addressing historical injustices and ensuring representation for marginalised communities, however, this is not free from controversies. Recently, the Supreme Court in Davindar Singh v. State of Punjab, 2024 (The judgement), while upholding the constitutionality of the sub-class reservation within Scheduled castes and Scheduled tribes (SC/STs), ruled that they are not a homogeneous class. The Court asserted that the states are empowered under Article 341 to sub-classify the most backward sections within SC communities based on empirical data and a rational principle of differentiation. Notably, under Article 341 only the President is authorised to notify any group of SC/STs for providing reservations. 

This judgment stemmed from the State of Punjab’s appeal against the Punjab and Haryana High Court’s decision, which had declared the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 (The Act), unconstitutional. The High Court ruled that sub-quota reservations within SC/ST violate Article 14 of the Constitution, that is, the right to equality before law.” The legislation sub-classified SCs into Balmiki and Mazahabi Sikhs, giving them preferential treatment in reservations. Most importantly, it also called to adjudicate upon the validity of the Supreme Court’s landmark judgement in EV Chinnaih v. State of Andhra Pradesh, where the court examined the constitutional validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. The Act subclassified SCs for education and service reservations. In 2005, the Court struck it down as unconstitutional for violating Article 14 and interfering with presidential powers under Article 341.

In this article, the author critically analyses the Supreme Court’s judgment, identifying its merits and shortcomings. The author argues against application of the creamy layer principle to SC/STs and explores the empirical challenges of implementing sub-classification within these groups by highlighting the difficulties posed by the judgment.

History of Sub-Class Reservation in India

The debate over sub-class reservation is not new. Its historical roots trace back to the year      1975, when the State of Punjab issued a notification that apportioned its existing 25% reservation between the Valmiki and Mazhabi Sikh communities. In the case of  M. R. Balaji and Ors. v. State of Mysore, the court held that backward classes cannot be divided into the categories of backward, and more backward as this violates Article 15(4) of the Constitution. 

A turn came with the judgement of Indra Sawhney v. Union of India & Ors, wherein the court allowed to sub-classify the backward classes and held that based on their economic status, it devised the concept of creamy layer, however, the court maintained its silence on the sub-classification among SC/ST communities. The court held that the exclusion of the creamy layer applies only to OBCs to ensure that only the truly disadvantaged benefit from reservations, while SC/STs remain entitled to reservation benefits irrespective of economic status due to their historical and social backwardness. Legally, the rule laid down in Indira Sawhney should not be applied in the case of SC/STs; the same was observed by Justice Reddy in Chinnaih, but the court in Davindar Singh heavily relied on Indira Sawhney and extended the permissible sub-classification of OBCs, to SC/STs as well. This conflation of two distinct classes – OBCs, who face primarily social and educational backwardness, and SC/STs, who have endured historical untouchability and systemic oppression is neither legally sound nor sociologically viable.

The debate on sub-classification experienced a paradigm shift with the Chinnaih judgement, where the court assessed the constitutional validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, and declared it unconstitutional. The court relied on State of Kerala v. NM Thomas, where it was held that the “Constitution allows for affirmative action and special provisions for certain classes; it must not lead to discrimination against others.” Furthermore, the court held that the power to issue notifications under Article 341 is only vested with the president, who, with the aid and advice of Parliament, can add or remove any community from the SC/ST lists. However, while it is permissible to include or exclude communities, creating sub-classification within the SC category for reservation is not allowed. The Court held that sub-classification raises serious issues, as it violates the right to equality protected by Article 14. Given that Scheduled Castes represent a “single integrated class of most backward citizens”. any effort to establish internal divisions among them for reservations would jeopardise their constitutional standing and disturb the uniformity intended under Article 341. 

Post Chinnaih, the Punjab Government enacted the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. As per S. 4(5) of the Act, Balmiki and Mazhabi Sikhs are given the first preference in the reservation. In March 2010, the Punjab and Haryana High Court, relying upon Chinnaih, declared it unconstitutional. This led the Punjab Government to file this appeal in the court. 

Legal Analysis of the Judgement

The judgement of the court in Davindar Singh permitting sub-classification within SC/STs has important constitutional bearing as it involves the interplay between Articles 14, 15, 16, and 341 of the Indian Constitution.

Article 14: Guarantee of Factual, Not Formal Equality

Article 14, which provides the right to equality, also calls for equality amongst a group. To put this into perspective, the judgment of Indra Sawhney is noteworthy where the court said, the expression “Equal protection of law” requires the state to reasonably classify the people situated in different conditions and guarantees equal treatment for individuals in similar situations.” The court said that Indra Sawhney is not only limited to backward classes but extends to the broader category of backward classes.

Furthermore, in D. S. Nakara v. Union of India, classification for a limited purpose was held permissible under Article 14; however, the real problem arises when we take a close look at Indra Sawhney, which expressly barred the applicability of sub-classification on SC/STs by limiting it to OBC’s. The Constitution explicitly protects the SC/ST list from interference by state governments, ensuring that any inclusion or exclusion remains the sole prerogative of the President with parliamentary approval. But, in Davinder Singh, how can a 7-judge bench overrule the opinion of a 9-judge bench in Indra Sawhney by allowing sub-classification within SC/STs?

The court in the present case held that, “Article 14 guarantees factual and not formal equality. Thus, if persons are not similarly situated in reference to the purpose of the law, classification is permissible.” It said that if there are differences between two sections of the same class, sub-classification is an important mechanism for ensuring equality. This means giving help to particular sections that have varying degrees of disadvantage within a bigger group. This approach strives to reduce inequalities and make sure that those who need help the most get the support they require.

Article 15, 16 and 341: State’s Power of Sub-Classification

In the present case, the court ruled that Articles 15(4), 16(4), and 341 are enabling laws that provide the authority and cast duty on the state to enact the Reservation Policy for Scheduled Castes. The state has discretion in providing reservations to the Scheduled Castes enlisted in Article 341, as there is nothing in the article which prevents states from providing reservations to the SCs based on their social and economic backwardness. 

Article 15 of the constitution ensures equality of opportunity in matters of public employment. Moreover, Article 15(4) has an inclusive definition that is not limited to OBC which is evident from the word “any”. In the judgment, the court further interpreted Article 15(4). It ruled that the state has wide powers to take measures for the welfare of disadvantaged sections of society, including SC/STs, which also includes sub-classification. 

Article 341 of the Constitution grants the power to the president to notify or de-notify SC/STs. Following designation, the state’s authority under Article 246 comes into the picture, and the state is empowered to provide reservations taking into account the fundamental rights protected by Articles 15(4) and 16(4), which also include sub-classification. In the judgment while overruling Chinnaih, the court noted that “Article 341 does not intend to hold Scheduled Castes as a “homogenous class,” but rather to grant them “constitutional identity,” and recognised the state’s power to sub-classify of SCs based on rational consideration.

Creamy Layer Within Scheduled Caste: A Pandora’s Box

The judgment is well-intended, aiming to ensure that reservation benefits reach the most disadvantaged within the backward communities. However, it presents certain challenges and gaps that could create more problems than solutions. For example, the court has acknowledged that the manner of application of the creamy layer should be different from OBC as challenges faced by both communities are distinct in nature, but it has not provided how this might be done. In the absence of any enforcement mechanism, there is a peril that the political parties may act on their whims and fancies and apply this to further their political agendas. 

The creamy layer principle is evolved to exclude affluent sections within OBCs from reservation benefits, but application of this to SC/STs might defeat the purpose of reservations as economic progress alone does not imply the social advancement of a historically marginalised community such as SCs. Denial of the reservation benefits to these communities based only on the economic criteria overlooks the multifaceted discrimination they have faced over decades. 

The application of the creamy layer principle to these communities would prove to be administratively cumbersome as the likelihood of political abuse is high. For electoral purposes, certain political parties may target certain subgroups, further marginalising others.

Even after decades of independence and despite socio-economic upliftment from the state’s affirmative action policies, incidents of atrocities and discrimination against SC/STs are not uncommon. This highlights that economic progress alone is insufficient; social advancement is crucial for their holistic development. Equality Lab, a US-based organisation, conducted a study called “Caste in the United States,” which tells us about the abysmal condition and perpetual discrimination faced by migrated Dalits from India in business, religious worship, and many other areas. Moreover, the report of the Thorat Committee (2007) reveals the discrimination faced by students and faculties of AIIMS Delhi at almost every level, which is known as one of the top educational institutions in India. The above facts prove that, even after their economic and educational advancement, they continue to face caste discrimination, and it is impractical to apply the creamy layer on SCs.

Unlike OBCs, where economic factors are relevant, the marginalisation of SCs is primarily driven by persistent caste-based discrimination and social stigma. A community is only deemed as the ‘creamy layer’ when privileges enjoyed are generational, but this is not necessarily true with SCs. The term “creamy layer” describes individuals from disadvantaged communities who have made social and economic advancements, rendering them ineligible for reservation benefits. Although this concept is applicable to OBCs, its application to SCs is complicated by ongoing social discrimination, which hinders the transfer of privilege across generations. Sub-classification, on the other hand, addresses the inequalities within SCs, ensuring that the most marginalised sub-groups receive additional support. The goal is to distribute reservations more fairly without leaving any group behind. 

SCs and OBCs are not comparable; equating them is like comparing cheese with chalk. This flawed approach risks policies that fail to address caste-based discrimination beyond economic backwardness and could dilute the effectiveness of affirmative action for the most oppressed sections of society.

Associated Upcoming Challenges

The top court’s decision to permit sub-classification within the Scheduled Castes aims to ensure the representation of the most marginalised communities in the sectors of education and employment. However, certain concerns surrounding this judgment could potentially undermine its objectives and challenge socio-economic and legal perspectives. Firstly, the assumption behind sub-classification is that it will suddenly erode the historical marginalisation of most backwards among SC/STs. However, the nature of marginalisation inflicted over decades is multifaceted, making it difficult for them to fill the seats allocated to them. They still lack the capability to compete with the affluent sections of society. Secondly, if sub-classification is not cautiously executed, it will create a divide within SC/STs. Reservation policies aim to uplift the underprivileged, but if some subclasses of SC/STs are favoured over others, this may even exacerbate the differences within them. Thirdly, sub-classification cannot be implemented without empirical data, and collecting data is challenging, and without it, arriving at rational sub-classification is very challenging. The administrative difficulty in collecting accurate data for subclassification will put a strain on available resources and might have unintended consequences. In addition, the government lacks updated data as the census 2021 is still pending. Fourthly, there is a lack of political will to enact subclassification. The government initially backed subclassification before the court, but after political backlash from SC/ST organisations to this ruling, it reversed its position after PM Modi promised that the creamy layer would not be applied to SC/STs. Finally, due to the court’s ruling permitting sub-classification within Scheduled Castes, states may breach the 50% reservation cap mandated in the Indra Sawhney case. This issue comes up because some governments have breached this reservation cap in order to gain electoral advantages driven by political pressures and electoral goals. In several cases, states have tried to provide STs with 100% reservation; as a result, the court has stepped in and ruled that such legislation is ultra vires. Therefore, it must be ensured that subclassification does not lead to further erosion of the principles of equity and justice in the reservation system. 

Conclusion: A Call For Caution and Reflection

The present judgement on sub-classification within SCs is poised to influence the politics of reservations in India. This is evident from Telangana’s decision to set up a commission to identify communities for subclassification. A review petition of judgment was filed on October 4, but the court prima facie rejected the application for review without delving into the merits of the petition. This approach appears to be ill-conceived, as the court must have first gone through its merits before dismissing it. The sub-classification judgment’s intent to provide representation for the most marginalised members of the SC/ST community is risky and could have unintended consequences such as political abuse and further marginalisation of these communities. Instead of dividing these groups based on extraneous considerations, the focus should be on the collective upliftment of these without infringing on their unity and solidarity.

It is pertinent to note that nowadays reservations are treated as an end in themselves, but it is important to remember that they are merely a means to achieve equality and cannot be provided for an indefinite period. In the judgment, Justice Mithal’s opinion is worth noting, particularly when considering the ramifications of the reservation policy, which range from casteism to untouchability. He said, “The reservation policy in the Constitution, along with its amendments, needs a fresh review to explore alternative methods for uplifting SC/ST/OBC communities.” This is true since discrimination cannot be allowed in the name of reservations, in Islamic Academy of Education v. State of Karnataka, the court held that “it would be immoral to perpetuate inequality among citizens in the guise of protecting the rights of the backward and downtrodden.”

Therefore, it is time for the state to reconsider its approach to reservations. Since gaining independence, political interests have often obstructed meaningful changes in reservation policies. Indefinite reservations could exacerbate societal divisions rather than alleviate inequalities. A more effective strategy would involve regular assessments to remove communities that have made significant progress, rather than continuously adding to the lists without evaluation. This presents a dual challenge for states: to prioritise welfare while also addressing caste-based inequalities. While reservations aim to create equal opportunities, they can inadvertently deepen social rifts. A thoughtful approach is essential to balance the advantages of affirmative action with the necessity of fostering social harmony and unity.