By Dr Swati Jindal Garg
The landmark Supreme Court ruling overturned the apex court’s 2004 decision in EV Chinnaiah vs State of Andhra Pradesh, in which it had held that the SC/ST list is a “homogenous group” that cannot be divided further. In the latest ruling, the only judge in dissent was Justice Bela M Trivedi. In a separate-but-concurring ruling, Justice BR Gavai called upon states to devise a policy to identify and exclude the “creamy layer” (wealthier and more advanced members of a backward class) within the SC/ST categories from reservation benefits.
This seven-judge bench judgment comes 20 years after the Supreme Court’s judgment in the EV Chinnaiah vs State of Andhra Pradesh. Mallella Venkat Rao who was one of the three petitioners in the Chinnaiah case said he would file a review petition in the top court. All the three petitioners in the Chinnaiah case were from the Mala community in Andhra Pradesh, which is viewed as one of the prime beneficiaries of reservation while the Madiga Scheduled Caste group claims it has been left out.
“I am a bit disappointed by the SC verdict,” said Rao, who happens to be the sole surviving petitioner of the 2004 case. “Malas have not cornered all the quota benefits as it is being projected by the other sub-castes, especially Madigas.” He also claims that his community was not given a hearing by the apex court while deciding this new case. “When the seven-judge bench started proceedings, they should have summoned me to hear our side, but they did not do it, while the Madiga Reservation Porata Samithi (MRPS) received the summons and they were well represented.
Union Minister and Lok Janshakti Party (Ram Vilas) chief Chirag Paswan said his party opposes the Supreme Court’s observation regarding the creamy layer among the Scheduled Castes and the Scheduled Tribes, and the party plans to “file a review petition against the ruling”. Emphasising that the foundation of reservations is based on the “untouchability” faced by the Dalit people in various aspects of life, he argued that introducing a creamy layer for their reservation is “pointless”.
The entire saga goes back to 1997, when Chandrababu Naidu, the then Andhra Pradesh chief minister, agreed to divide the SCs into A, B, C and D categories. This was when EV Chinnaiah, Venkat Rao and Mala Mahanadu founder P Vigneshwara Rao challenged the Naidu government’s order in the Andhra Pradesh High Court. Even though a single-judge bench of the High Court struck down the order, the Naidu government went ahead and passed an ordinance and then an Act in the state assembly and the High Court then upheld the legislation.
In the wake of these developments, the three activists in 2001 had approached the Supreme Court against the law enacted by the Naidu government. A five-judge Constitution bench ruled in November 2004 that micro-classification of SCs was unconstitutional.
It was based on this ruling that the Punjab and Haryana High Court in Dr Kishan Pal vs State of Punjab struck down the 1975 notification which gave first preference in SC reservations to the Balmiki and Mazhabi Sikh communities, two of the most backward communities in the state. However, the very same year, the Punjab government again passed the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, reintroducing the first preference in reservations for the Balmiki and Mazhabi Sikh communities. This Act was again challenged before the High Court which, in 2010, struck down the Act, leading to an appeal at the Supreme Court.
In 2020, the Justice Arun Mishra-headed Constitution bench in Davinder Singh vs State of Punjab held that the Court’s 2004 decision required reconsideration noting that the Court and the state “cannot be a silent spectator and shut its eyes to stark realities”. The ruling also disagreed with the premise that SCs are a homogeneous group, saying that the presence of “unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.” cannot be denied. It was in this backdrop that a seven-judge bench heard this issue in February 2024.
Venkat Rao, who is the only petitioner alive today, says that since 2000, he has been a full-time Dalit activist. “I have immersed myself in the work of upliftment of the Dalits and fighting against classification. I feel that it is being done for political benefit, but it will not help the Dalits in any way. Classification will also lead to bad blood among the different sub-castes. I will continue to fight against it,” he said.
Article 341 of the Constitution allows the President of India, through a public notification, to list as SC “castes, races or tribes” that suffered from the historical injustice of untouchability. The SC groups are jointly accorded 15% reservation in education and public employment. Article 341(2) states that only Parliament can include or exclude “any caste, race or tribe” from the list of SCs.
Over the years, some groups within the SC list have been under-represented as compared to others. States have made attempts to extend more protection to these groups, but this issue keeps running into judicial scrutiny. While the top court in EV Chinnaiah held that SCs must be treated identically since the Constitution envisaged the same benefits for them, in the latest judgment, Chief Justice of India (CJI) DY Chandrachud rejected this premise, stating: “The inclusion [in the Presidential list] does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified”.
Terming the presidential list of SCs a “legal fiction”, something that does not exist in actuality, but is “treated as real and existing for the purpose of law”, the CJI said that a Scheduled Caste is not something that existed before the Constitution came into force, and is recognised so that benefits can be provided to communities in the list. The CJI also said that this legal fiction cannot be “stretched” to claim that there are no “internal differences” among SCs.
The Constitution also gives states the power to make “any special provision” for the advancement of SCs along with granting them the specific power to provide “reservations of appointments or posts in favour of any backward class of citizens which…is not adequately represented in the services of the state”. While in the Chinnaiah case, the Supreme Court had held that “it is not open to the state to sub-classify a class already recognised by the Constitution and allot a portion of the already reserved quota amongst the state-created sub-class” within the SC list, the majority opinion through its recent judgement has held that “the State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified”.
In fact, Justice Gavai also said that equality of opportunity as per the Constitution must account for the varying social positions of different communities. Consequently, when same opportunities are provided to the SC communities that are placed differently, it “can only mean aggravation of inequality”.
He also said that the attitude of the SCs that oppose sub classification is akin to “that of a person in the general compartment of the train. Firstly, the persons outside the compartment struggled to get into the general compartment. However, once they get inside it, they make every attempt possible to prevent the persons outside such a compartment from entering it”.
Article 14 of the Constitution obligates the state to ensure that the same law applies only to those who are “similarly situated”, the judges in their latest judgment have reasoned that sub-classification within the SC/ST categories does not fall foul of the right to equality.
This verdict has also traced the power of the states to undertake such an exercise to Articles 15(4) and 16(4) of the Constitution which permits the introduction of “special provisions” in favour of any backward class of citizens. The Court has further noted that sub-classification should be based on empirical data and historical evidence of systemic discrimination, rather than arbitrary or political reasons in order to ensure fairness and effectiveness.
Four of the seven judges agreed with Justice Gavai’s opinion and ruled that the “creamy layer” principle, previously applied only to Other Backward Classes (as highlighted in Indra Sawhney case) should now also be applied to SCs and STs. This would now mean that states must identify and exclude the creamy layer within SCs and STs from reservation benefits.
The latest judgment by the Supreme Court responds to the need for a more nuanced approach to reservations as by ruling that reservation has to be limited only to the first generation, the Court is ensuring that benefits reach those who are truly disadvantaged. This means that if any generation in the family has already taken advantage of the reservation and achieved a higher status, the benefit of reservation would not be logically available to the second generation. All in all, the larger bench ruling of the Supreme Court in the matter of reservation does seem to be more egalitarian in its approach.
—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi