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Abstract
The question of providing affirmative action is often approached from two perspectives: one aiming to rectify historical inequalities, and the other focused on creating a fair society looking forward. In India, one common method of affirmative action is through reservations, as outlined in Articles 15 and 16 which provide for reservations for SC/STs, OBCs, and EWS. Article 16 specifically addresses reservations in public employment. In the case of Indira Sawhney v. UOI, the majority held that Art. 16(4) is not merely an exception to Art. 16(1). However, subsequent judgments failed to address this aspect, leading to several contradictory decisions.
Many states in India have encountered challenges in achieving uniformity in reservations. For instance, in Uttarakhand (Mukesh Kumar v. State of Uttarakhand), when the commission suggested the backwardness of a community, the state failed to provide reservations. Conversely, in the case of Jat reservation (Ram Singh v. UOI), the state did provide reservations. This disparity highlights the state’s reluctance to fulfil its obligation to uplift people, especially considering recent SC judgments that do not consider reservation as a fundamental right. However, the larger bench of Indra Sawhney reiterates the opposite view, as emphasized by the SC in a recent reference order in the case of State of Punjab v. Davinder Singh.
Another significant question arising in these cases is intra-group subclassification, which involves providing reservation to the most disadvantaged group within a community. The judgment of a five-judge bench of the SC in E.V. Chinnaiah v. State of Andhra Pradesh stated that intra-group classification cannot be made. However, a seven-judge bench of the SC is currently hearing a petition on this issue. This paper aims to analyze intra-group reservation to understand the necessity of subclassification for a more inclusive approach to affirmative action vis-à-vis the concept of reservation as a fundamental right.
Keywords: Inclusiveness, intra-group, sub-classification, and Reservation.
I. INTRODUCTION
The question of providing affirmative action is often approached from two perspectives: one aiming to rectify historical inequalities, and the other focused on creating a fair society looking forward. In India, one common method of affirmative action is through reservations, as outlined in Articles 15 and 16 which provide for reservations for SC/STs, OBCs, and EWS. Article 16 specifically addresses reservations in public employment. In the case of Indira Sawhney v. UOI, the majority held that Art. 16(4) is not merely an exception to Art. 16(1). However, subsequent judgments failed to address this aspect, leading to several contradictory decisions.
Affirmative action is an important tool to correct historical injustices and create a just and fair society. The social fabric of a country opens doors for affirmative action policies. Indian social fabric reflects the presence of caste-based discrimination. It is said to be persistent for a long period due to which various people from discriminated caste backgrounds have suffered a lot.
Our constitutional drafters were aware of this problem and to correct the issue they have introduced affirmative action in the form of reservations in educational institutions and public employment. Recently, through the 103rd constitutional amendment, Economically Weaker Section (EWS) reservations were introduced, providing 10% reservation to the general category within prescribed criteria purely on their economic condition. The inclusion on different basis is necessary to extend the reach of affirmative action not only to traditionally accepted backward classes but also to the newly formed classes that were earlier not recognized.
Another significant question arising in these cases is subclassification within reserved categories, which involves providing reservations to the most disadvantaged group within a community. The judgment of a five-judge bench of the SC in E.V. Chinnaiah v. State of Andhra Pradesh stated that intra-group classification cannot be made. However, a seven-judge bench of the SC is currently hearing a petition on this issue. We can delve into the impact of affirmative action in India to understand the need for such classification. Further, we can do a jurisprudential study of case law on the subject matter to understand the nuances of sub-classification.
This paper aims to analyze intra-group reservation to understand the necessity of subclassification for a more inclusive approach to affirmative action vis-à-vis the concept of reservation as a fundamental right. We will further seek answers to the question of inclusiveness in EWS reservations.
II. THE IMPACT OF AFFIRMATIVE ACTION
Before understanding the impact of affirmative action. We need to understand the social fabric of the country that has created circumstances for affirmative action. We will examine the social fabric of India in our study. The social fabric of a country clarifies the harm suffered by the people so that affirmative action can be taken against such suffering as a measure to correct the historical harm suffered.
In India, there is predominant caste discrimination which is path bearer of affirmative action in India. The method through which such discrimination is cured is called affirmative action policies. Affirmative action can be in various forms such as it can be in form of reservation, preferential treatment, different policies, etc. The method can be many, but the object is to remove historical inequalities and create a just and equal society. Affirmative action is often called by various other names such as ‘protective discrimination’ and ‘reverse discrimination’.
Article 14 in our constitution provides the fundamental right of equality.[1] The Hon’ble Supreme Court of India on various occasions stated that equals should be treated equally, and unequal should be treated unequally following the Aristotelian principle of equality.[2] The right to equality is further extended to Articles 15[3] and 16[4] for equality in educational purposes and public employment. In Articles 15(4) and 16(4) there is a reservation provided on the basis of backwardness. Under Art. 15(4), the backwardness is different from the backwardness defined under Art. 16(4), it is social and educational backwardness in Art. 15(4).
In MR Balaji v. State of Mysore[5] and Janaki Prasad v. State of J&K[6], the SC has used the expression of backwardness in 15(4) and 16(4) synonymously. It is in Indra Sawhney’s case that SC held that the terms “backward class” and “socially and educationally backward classes” are not equivalent and further that in Article 16 (4) the backwardness contemplated is mainly social.[7]
Now, we will delve deeper to fully comprehend the social fabric of India and how it has given rise to reservations under Art. 15(4) and Art. 16(4). Firstly, we will thoroughly examine the social fabric of India and secondly, we will analyse the impact of affirmative action in such social atmosphere.
a) Social Fabric of India
We are referring to the social fabric of India to understand the necessity of affirmative action in India. In this section, we will examine the Hindu law in the colonial era as it was the point of time when the caste system was introduced in India by the Britishers. Earlier, the varna system was popular in India where Indian people were divided into 4 varnas and further segregated into various jatis. The importance of discussing British interference is necessary to understand the abolition of mobility brought by structured caste system.
In Ancient India, the people were categorized into 4 varnas according to the work performed by each person. There is a pyramidical order in which such varnas had been defined in Hindu religious text, it created a hierarchy or division based on tasks performed in society.
At the top of the hierarchy, there were Brahmins, the second were Kshatriyas, the third were Vaishyas and the fourth and last were Sudras. Brahmins are supposed to perform the task of worshipping the god and Kshatriyas are supposed to protect the country with muscle power and Vaishyas are supposed to do business and Sudras are supposed to serve the upper three varnas by giving service. Till this point, there was no problem as there was mobility in the system. People from one varna can move to another.[8]
However, with the advent of the Britishers, the varna system became more rigid. The reason for such rigidity lies in the fact that they introduced the caste system which was a foreign concept for Indian people. The word caste is derived from the Portuguese word ‘casta’ meaning segregation on various basis. The reason behind the introduction of the caste system is administrative efficiency in conducting census of 1872.[9] Also, the law was interpreted by pandits.
They respond in terms of dharma, while the British wanted to know about the general rule of law, the indigenous experts provided situation-specific assessments of the case in question. Unsurprisingly, the British soon discovered with dismay that different answers were given by various experts, even by the same person, based on different texts or simply representing a considered personal opinion. It took the colonial officials a while to realise this, but the damage was done.[10]
When the Britishers solidified the varna system. This started the concept of systemic discrimination in India. It signifies that discrimination becomes a norm so that people can think it is a genuine practice and part of a system resulting in harm to those at the bottom of the hierarchy in the varna system.[11] According to Dirk ‘the way British officials understood caste reflected in the census categorization and enumeration, and it affected the way caste was practiced. This led to some quite innovative relations between Jatis (castes) all over India.[12]
We can say that the colonial period perpetuated and increased caste discrimination. In Independent India, caste-based census has never been done by the Central Government. Recently, Bihar and Andra Pradesh have taken the initiation for caste census.[13] When we are demanding sub-classification, it is necessary to know the caste segregation properly. However, In India, caste census was not practised as it is assumed to perpetuate caste discrimination.[14] Nevertheless, it is still pertinent without the census as it is argued by several scholars that the modern politicized communities in India found their definite geographical and social boundaries through census enumeration initiated during British rule.[15]
So, we can say that the social fabric of India was demanding for affirmative action to correct all the historical injustices. In the next section, we will look into the role of affirmative action in improving the status of caste discrimination in India.
b) Role of Affirmative Action in improving status of caste discrimination
There are two approaches towards affirmative action. The first approach is to eliminate past inequalities and the second approach is to create a more just and equal society. When affirmative action was introduced in India. It was only for SC/ST people as we know there was dominance of upper caste in India. In constituent assembly this was highlighted by H.J. Khandekar, a member of the constituent assembly highlighted the cruelty suffered by the members of Scheduled Castes and stated:
“I would like to submit that the reservation which is being provided for us is no favor to us. The members of the Scheduled Castes have, for thousands of years, suffered cruelty and oppression in various forms at the hands of their brethren belonging to castes other than their own. Now reservation is being provided for us as compensation for the atrocities we have suffered, and therefore I do not deem this provision as any great favor to us.”[16]
Khandekar was critical of the reservation provided by the constitution. He probably cannot assume reservation policy can influence the mind of the people to leave the prolonged practice of caste discrimination. Dr. Br. Ambedkar, the father of the Indian Constitution criticized the caste in every possible way, and he made a statement:
“You cannot build anything on the foundation of caste. You can’t build up a nation. You can’t build up morality…”[17]
Dr. Ambedkar was of the firm belief that to remove the atrocities suffered by the so-called lower caste, it is essential to provide reservations to the people from such backward communities. In fulfilling this object the role of fundamental rights is essential. The right provided under Article 14 of the Constitution of India is inspired from the 14th amendment of US Constitution providing equal protection clause. The principle expressed in the Equal Protection Clause should be viewed as an anti-caste principle, a principle that uniformly and consistently rejects all public law whose purpose is to subject people to an inferior and degraded station in life, whether they are black or white.[18]
Article 14 provides for the right to equality. J. Thommen stated that “Equality is one of the magnificent cornerstones of Indian democracy.”[19] The object of Art. 14 is to provide equality of status and opportunity referred to in the Preamble to our Constitution.[20] Art. 14 casts an obligation on the State to bring about, though the machinery of law, a more equal society.[21]As Mendelson Wallace mentioned:
“Every Culture provides at least reasonably well for those at the top of its social order. The Crucial test is how it treats those at the bottom.”[22]
We will see the practical implication of reservation on the communities to find out the impact in uplifting them and correcting their situations. As per Constitution, reservation is provided under to SC/ST/OBCs and EWS. However, we will look only into the upliftment of people from SC/ST as it is the longest given reservation. Our constituent assembly drafter created reservation for three purposes i.e., Political, Educational and Public Employment. In this paper, we will have selective study of only reservation in public employment as our discussion only limited to the concept of sub-classification by state governments while providing the reservations.
According to few credible assessments, the Economist has reported that proportion of Dalits at the highest levels of civil services had increased from just 1.6% in 1965 to 11.5% by 2011 and even more at lower levels compared to their 16% share of the overall population. The report also acknowledged a steady improvement in dalit literacy and higher education.[23]
The other way of looking into the benefit of reservation is by checking the percentage of people in state and central level services from SC/ST community. Now, as per information received from 78 Ministries/ Departments, including their attached/ subordinate offices, the representation of SCs, STs and OBCs in the posts and services under the Central Government, as on 01.01.2016, was 17.49%, 8.47% and 21.57% respectively.[24]
These numbers cannot fairly speak for the percentage of people who are backward and deserving got the benefit of reservation. It is quite reasonable to think that the most advantageous group within SC/ST is taking all the benefits of reservation. It becomes pertinent to encounter that many groups are still not able to take advantage of reservations. We can see from the SC decision in Union of India vs Rakesh Kumar[25], the bench said that “affirmative action measures should be periodically reviewed” and should be “modified from time to time in keeping with the changing social and economic conditions”.
The Hon’ble SC Constitution bench comprising Justices Indira Banerjee, Arun Mishra, Vineet Saran, M R Shah and Aniruddha Bose observed by stating that “cry within the reserved classes” regarding the entitlement to reservation benefits.[26] The reason for such cry is well explained by J. Arun Mishra.
“Now there is a cry within the reserved classes. By now, there are affluents and socially and economically advanced classes within Scheduled Castes and Scheduled Tribes. There is voice by deprived persons of social upliftment of some of the Scheduled Castes/Tribes, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of scheduled castes and scheduled tribes and other backward classes”, Observation by J. Arun Misra.[27]
We can now understand that affirmative action have positive impact on improving the status of people from SC/STs. However, only the creamy layer or the affluent groups within SC/STs have taken the benefit of upliftment. As mentioned earlier, we have no exact census of caste making the effectiveness of reservation policy excruciating. Further, we do not have concept of creamy layer in SC/STs, it is only applicable to OBCs. However, SC Constitution Bench in Jarnail Singh v. Lacchmi Narayan Gupta,[28] stated that creamy layer exclusion to SC/STs as well. The judgment authored by Justice Nariman said :
“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India.”
We can now say that it is a well-recognized concern within the purview of Apex Court that reservations should reach to the most needy person within the reserved group. In the next chapter, I will be arguing that reservation under Article 16(4) is a fundamental right. Then, we will move forward to the next three chapters discussing the sub-classification in detail.
III. ARTICLE 16(4) IS NOT AN EXCEPTION TO ART. 16(1)
Reservation under art. 16(4) is a fundamental right. It is said by majority in NM Thomas[29] and Indra Sawhney[30] judgment. However, the subsequent judgment failed to follow the precedent and stated Art. 16(4) is mere exception to Art. 16(1). Anurag Bhaskar in his paper “Reservation as a fundamental right: Interpretation of Art. 16(4) argues in depth the issue of narrowing down right under Art. 16(4). He argues that Art. 16(4) should be treated as fundamental right following the trajectory of judgment in favor of such arguments. We can follow similar path to trace that reservation is fundamental right under Art. 16(4) not mere exception.
a) The first 20 years of Art. 16(4)
To do that we need to start with the cases on scope of Art. 16(4). The first case is of 7-judge bench in State of Madras v. Champakam Dorairajan,[31]this judgment does not directly deals with Art. 16(4) but it had repercussions on future interpretation of said Article and idea of reservation.[32]In the said case, the court completely relied on Art. 29(2)[33], the court read the provisions of Constitution independent of each other which was an approach which was completely overturned in the 1970s.[34]
Many legal scholar have criticized the judgment by stating it is “deceptive simplicity”.[35] Harvard Professor Ajantha Subramanian stated that “the judgment laid the groundwork for subsequent arguments about upper-caste rights as consistent with democratic principles and lower caste rights as violation of these principles”.[36] Dr. B.R. Ambedkar also stated that the judgment is “utterly unsatisfactory”.[37]
Next there come case of General Manager, Southern Railway v. Rangachari,[38] In this case, there was writ petition to restrain reservation in promotions in the posts of railway services. The SC analysed Art(s). 16(1), 16(4) and 335 to determine applicability of reservation in promotions. The majority held that it is permissible. J. P.B. Gajendragadkar stated that reservation in promotion can only be provided if state was of the opinion that the backward class of citizens are inadequately represented.
It includes both quantitative as well as qualitative representation. It means that representation should not only be in lower post but senior and important posts also. The minority stated that Art. 16(4) only includes quantitative deficiency. Conlcluding, all judges were unanimous in declaring Art. 16(4) an exception to Art. 16(1). The court read Art. 16(4) in relation with Art. 335 stating that administrative efficiency should be kept in mind while granting reservations.
Both judgments in Rangachari and Chamapakam Dorairajan was against the reservation on efficiency and merits grounds respectively. Next comes the case of M.R. Balaji v. State of Mysore,[39] in this case Art. 15(4) was interpreted for the first time by SC Constitution bench in case involving 68% of total reservations provided in engineering, medical and other technical institutions in State of Mysore.
The court held that Art. 15(4) is a special provision for uplifiting both socially and educationally backward person. It is a special provision inserted to ensure advancement of the communities, even if such provisions may be inconsistent with the fundamental rights. The court provided that 50% reservation would be reasonable after strucking down 68% reservation again defending merit.
b) The ‘great dissent’ of J. Subba Rao
Further, In K.S. Puttswamy (Retd.) v. UOI,[40] the Supreme Court held that right to privacy is fundamental right. It was stated as fundamental right in Kharak Singh v. State of UP[41] by J. K. Subba Rao as dissenting opinion. J. RF Nariman stated it as ‘great dissent’. Anurag Bhaskar points out dissenting opinion of J. Subba Rao in T. Devdasan v. UOI[42] is also a ‘great dissent’.[43]
In Devdasan, J. Subba Rao highlighted the importance of reservation as a facet of equality where carry forward rule was held as unconstitutional by 4:1 majority. He was of the opinion that centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. To undo such situation art. 16(4) was brought under the Constitution.
J. Subba Rao extends to say that expression ‘nothing in this article’ represents the power conferred under this article and in no way it is an exception to art. 16(1). He further went on to question the previous judgments where administrative efficiency was questioned by the judges. He said it is within the state discretion as they have to look after their administrative efficiency.
Later in C.A. Rajendran v. UOI.[44], the petitioners challenged an office memorandum of Union government on the grounds that it did not provide for any reservation in Class I and II services, but only in certain types of Class III and IV services. The petitioner challenged referring Art. 16(4) as fundamental right as per J. Subba Rao dissenting opinion in Devdasan. However, court rejected by stating that Art. 16(4) must be interpreted in context and background of Art. 335 which gives paramount importance to administrative efficiency.
c) The judgments of NM Thomas and Indra Sawhney
A seven judge bench in NM Thomas[45] held a rule giving preferential treatment to SCs and STs giving relaxation to them in post of lower division and upper division clerks. The court upheld the rule by 5:2 majority. The opinion of the majority can be stated as follows:
“According to the majority, Article 16(4) was held to be facet of Article 16(1). While in his concurrence, Justice Beg upheld the rule under Article 16(4). The majority of four judges noted that Articles 14, 15(1), and 16(1) guarantee the content of equality for everyone, including those from backward classes.”
Further, Chief Justice Ray noted that “Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1).” Justice Mathew noted that “If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1)”, but “an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up to the point of making reservation.”
The judgment of NM Thomas was relied in Indra Sawhney[46], it was stated that Art. 16(4) is a facet of Art. 16(1). The plurality opinion of Justice BP Jeevan Reddy clarified this in clearest terms: “even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.”
By reading the opinion of all the judges, it is fairly clear that Indra Sawhney recognized Art. 16(4) as fundamental rights. However, post 1995, there was judicial indiscipline which conferred that Art. 16(4) is mere exception to Art. 16(1).
The later indiscipline part, I will not be dealing in this paper as my aim was only to incorporate the understanding of reservation as fundamental right under Art. 16(4) is backed by judicial pronouncements. Also, the issue is well covered by Anurag Bhaskar, so, it can be referred for further information on judicial indiscipline. Now, I will delve deeper into the concept of sub-classification within reserved category which is also our primary research question.
IV. THE CONCEPT OF SUB-CLASSIFICATION WITHIN RESERVED CATEGORIES
a) Concept of Sub-classification
The concept of sub-classification refers to the classification within reserved categories of SC/STs. For instance, reservations can be provided to the least disadvantageous group within SC/STs. The Punjab government in the year 1975 passed a circular notifying that out of the total seats reserved for SCs in the State, 50% of the vacancies would be offered to Balmikis and Mazhabi Sikhs. The other half would be open to the remaining groups in the SC Category.[47]
This concept confers the power of the state to provide reservations within the group. Therefore, it is also called intra-group classification.
b) Cases on Sub-classification
There are various cases of sub-classification, and we will discuss each case to understand the implications of the following concept. First, there is the case of E.V. Chinnaiah v. State of Andhra Pradesh.,[48] the SC 5-judge bench set aside the sub-classification done by Andhra Pradesh government stating that it is not permitted. The decision in this case is divided into two key parts. First, that state governments cannot categorise any group of people as Scheduled Castes. According to Art. 341,[49] it is the power of the President and second, SCs are one homogenous group any sub-classification would amount to treating same class differently.
Soon after this case, the Punjab government passed the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.[50] Sec. 4(5) of the said Act provided reservation to Balmikis and Mazhabi Sikhs similar to its 1975 circular. The P&H HC held this contradictory with the judgment of Chinnaiah, so it struck down the provision of the Act. The Punjab Govt. appealed this judgment in Supreme Court referring Indra Sawhney v. UOI[51] was not followed in Chinnaiah.
The three-judge bench of SC referred it to the Constitution bench. On 15th July 2020, a five-judge bench commenced hearing the matter.[52] During this period, an important development to note was Jarnail Singh[53] which introduced the concept of the creamy layer within SCs permitting sub-classification. The five-judge bench stated that sub-classification is permitted for SEBCs under Art. 342A[54] and it is pari materia to Art. 341 and Art. 342 which provides provision for recognition of SCs and ST respectively. Therefore, they should be interpreted similarly allowing sub-classification.
Further, SC in case of K.C. Vasanth Kumar & Anr. v. State of Karnataka,[55]stated that while the propriety of making sub-classifications might depend on the facts of each case, “we do not see why on principle there cannot be a classification into backward classes and more backward classes, if both classes are not merely a little behind, but far far behind the most advanced classes.” In fact such classification would be necessary to help the more backward classes.
The pending case on sub-classification is State of Punjab v. Davinder Singh.,[56]the 7-judge bench of Supreme Court is hearing the two important issues pertaining to sub-classifcation:
- Can sub-classification be permitted for the SC and ST categories since the same is permitted for the SEBC category?
- Are state legislatures competent to introduce sub-classification within the SC and ST categories?
Now, It is clear that there are possible arguments in favour of sub-classification. Therefore, it become important to discuss the limits of inclusiveness. I will be using the logic given by Amdur and John Rawls for affirmative action. I will also look into case laws providing affirmative action on different parameters to understand the perspective of judiciary towards new emerging categories demainding reservation.
V. THE LIMITS OF INCLUSIVENESS
In this chapter, I will deal with the meaning and extent of inclusiveness. I will try to find the answer by logical deduction from arguments put forth by various jurists that reservation is inclusive or not. First, I will deal with the meaning of inclusiveness in reservation. Then, we will look at John Rawls and Amdur’s idea of selecting people for affirmative action. Lastly, we will look into several case laws by the Supreme Court.
a) Inclusiveness in Reservations
India is a diverse country based on religion, language, economic status, race, caste, gender, complexion, mental abilities, sexual identity, physical appearance, etc., Art. 15 and 16 ensure that there is no discrimination based on any of the grounds mentioned in both these articles in educational institutions and public employment. However, Art. 15(4) and 16(4) bring another facet of equality by providing reservations to those who are behind. In India, reservation is given primarily based on caste due to historical suppression of caste in India Society. To cater for the diversity of Indian society, inclusion is important in reservations.
However, if we talk about inclusion in reservation. We can say that reservations do not account for intersectionalities. Such as gender and caste, which will get priority in both these things. Caste-based reservations will likely benefit men more than women (from the same caste).[57]The same thing goes with Caste and Economic differences. A well-economic status person will take more advantage of caste reservation than a less wealth person from same caste. We can go so on and so forth with different intersectionalities such as educational status, sexual identity, etc.
India’s position in fostering inclusiveness in reservations is still at a nascent stage. It requires a lot more development in this area to get to the status of a developed nation. As we discussed multiple times there are two approaches associated with affirmative action. The first approach is looking for a backward approach here we look the historical suppression. The second approach is the progressive approach or looking forward, here we provided inclusion to newly evolved classes that are backward and unrepresented in society.[58] We will further this discussion in third prong of this chapter. We will not look at Amdur idea of compensatory justice and Rawls theory of justice to understand affirmative action in depth.
b) Amdur and John Rawls idea of selection
First, let’s discuss the idea of compensatory justice put forth by Amdur.[59] Amdur suggests three principles to answer sets of questions relating to compensatory justice. First, who is to receive compensation, and how much they should receive? Second, who should pay the compensation, and how much should each pay?
He answers the following question by stating three principles. First, “Compensation should be paid by the perpetrators of injustice, those whose unjust actions gave rise to the need for compensation.” Now, if we look into Indian society, the perpetrators of injustice can be from the upper three varnas of varna system. They are perpetrators of injustice but the problem lies in the fact that not all human beings have done equal injustice, some people from these varnas might be against the exploitation faced by Sudras. So, it is quite difficult to identify from the first principle.
Second, “Compensation should be paid by those who benefitted from injustice, whether directly or indirectly.” Now, in second case, it is again difficult to identify who had taken benefit from those injustices. Therefore, the third principle which states that “when it is not possible to assign the cost of compensation either to the perpetrator or to the beneficiaries of injustice, those cost should be distributed evenly among the entire community.”
The third principle is the most practical one which confers that everyone should pay equally. As per Paul W. Taylor, when injustice has resulted from a discriminatory social practice, “the obligation to compensate for the past injustice does not fall on any particular individual but upon the society as a whole,” excepting, of course, the victim of past discrimination.[60]
Our question of this paper is to identify the discrimination within the reserved group of SC/ STs. It laid a challenge as already pointed out that these are considered homogenous groups but in reality, the picture might completely differ. Now, we will look John Rawls theory of justice.
John Rawls in his book ‘Theory of Justice’ given the difference principle.[61] This principle is used to forward the affirmative action. This principle reinforces the idea that the distribution of resources should be in such a manner that the least advantageous group should get the maximum benefit.
According to Rawls, the Punjab government’s 1975 circular is justified as it tries to cater for the least disadvantageous group of Valmikis and Mazhabi Sikhs. Now, I will discuss some of the leading case law discussing inclusion and giving a new perspective to look at the concept of affirmative action in India.
c) Supreme Court: Creating a fair society?
In the case of EP Royappa v. State of Tamil Nadu.[62], the Hon’ble SC inserted the principle of fairness in the concept of equality. Earlier, rights were conferred narrowly. However, after this judgment, there was a signification impact on the perspective of affirmative action. It gave rise to the concept of OBCs reservations which were not there in the previous scheme. Earlier, historical suppression is the main reason for giving reservations. However, with the introduction of the fairness concept, it became crucial to identify and include more people who even though have not suffered historically are backward in society due to other factors.
With changing time and development through reservations, the backwardness defined under Constitution is also evolving. It is moving beyond the caste, it is no longer fair to say in today’s society that caste can standalone classified as backward. In Balaji, Caste was held as an important factor for determining backwardness. However, it had to considered along with educational and economic factors. Similarly, in KC Vasant Kumar, caste and economic factors were considered important.
EWS reservation is provided by 103rd Constitutional Amendment Act, 2019 and the SC also upheld its Constitutional validity by 3:2 majority.[63]
“Reservation is an instrument of affirmative action by state so as to ensure all inclusive approach. It is an instrument not only for inclusion for socially and educationally backward classes… reservation for EWS does not violate basic structure on account of 50% ceiling limt because ceiling limit is not inflexible.” J. Maheshwari
Further, inclusiveness can be seen from the judgment of Jat Reservation where Supreme Court mentioned that the backwardness cannot be absolute and can carry forward perpetually. It should have a certain end. So that other people who are emerging as new backwards can take advantages of affirmative action. Further, the definition of backwardness cannot be constant, it needs to be changed with changing needs of the society.
Moreover, In NALSA v. UOI.,[64]the Supreme Court recognized transgender person as ‘backward class’. In Parivartan Kendra v. UOI.,[65] Supreme Court held that acid attack survivors should be included in disability so they can take advantage of affirmative action as a ‘person with disability’.
Recently, a writ petition was filed in SC demanding reservations for orpans by considering them as backward class for purpose of Art. 15(4) and Art. 16(4).[66] We have seen the jurisprudence of affirmative action developing over a period of time. It is good to say that we are slowly and steadily moving towards creating a fair society by taking an inclusive approach. Now, we will examine the constitutional validity of inclusiveness by way of sub-classfication.
VI. CONSTITUTIONALITY OF INTRA-GROUP CLASSIFICATION
In this chapter, we will examine the issue of constitutionality of sub-classification. We will analyse the previous judgment of EV Chinnaiah and compare it with arguments presented by the Petitioners and Respondents in the pending SC case of Davinder Singh and will analyse the constitutional validity of issue at hand. The reason given in Chinnaiah case for not approving the sub-classification was that first, SCs are homogenous group. Second, Art. It would have negative effect on Art. 341 as power of amendment lies with the parliament to amend the SC list.
I will argue that Chinnaiah has grossly neglected the data presented on equality among groups. It has given an anti-reservation arguments while denying the treatment of unequal as unequal and equal as equal which is an important facet of Art. 14.[67]
a) SCs are non homogenous group
Article 366(24) defines “Scheduled Castes”.[68] It means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution. We will discuss art. 341 on next section as we will only delved into the concept of non-homogenity among SCs.
It is contented time and again by the various committee reports that there is requriment of de-scheuling of relatively advanced communities which meaning exclusion of those communities who have developed and are in a way better position than there other counter-parts. First, the B.N. Lokur Committee (1965).,[69] formed by CG to advice revision of existing SC/STs community. The committee decided the Mala community in Andhra Pradesh is advanced and committee recommended de-scheduling of Mala community.
Further, the Justice P. Ramachandra Raju Commission (1996),[70]the commission conducted research throughout the state to find that there are caste differences among SCs. Some of the groups are more advanced than other group among SCs. So, it recommended different reservation by putting different caste of SCs in 4 categories. The four groups were Relli, Madiga, Mala and Adi-Andhra. The recommended percentage of reservation for each group was 1%, 7%, 6% and 1% which can be seen by table 1.
| Group Category | Name of Group and No. of SC communities in group | Recommedned %age of reservation for the group |
| A | Relli- 12 Castes | 1% |
| B | Madiga- 18 Castes | 7% |
| C | Mala- 25 Castes | 6% |
| D | Adi-Andhra- 04 Castes | 1% |
Table 1.
The court rejected to delve into the report put forth by this committee in Chinnaiah.[71] Justice Sinha had declared the following:
“It may not be necessary for us to delve deep into the question as to whether the factual foundation for enacting the said legislation being based on a report of a Court of Inquiry constituted under Section 3 of the Commission of Inquiry Act 1952 known as Justice Raju Report is otherwise laudable or not.”
Additionally, it is important to note the Justice Usha Mehra Commission Report (2007),[72] this commission also recommend sub-categorisation/micro classification of various castes or group within SCs. The commission recommended amendment of Art. 341 for inclusion of sub-categories within SCs.
Furthermore, K Balagopal in his article ‘Justice for Dalits among Dalits’, he said that when a section of Dalits themselves go to court against those below them, and employ all the arguments the Brahmins invented against reservations and special provisionsfor deprived castes as such?…..And like society, like judges, for the tortuous reluctance with which the courts came to accept that India is a caste society and something should be done about it if we are ever to be a real democracy is evident from the history of judicial pronouncement on resevations.[73]
So, all these committee recommendations and reports suggests that SCs are non-homogenous group. The rational given in Chinnaiah does not stand strong against such data based inquiry on intra-group differences among SCs.
b) Art. 341 is not amended or changed due to inclusion
The Supreme Court in Chinnaiah held that state only Parliament can amend the Art. 341. Also, so much reliance is given on the B.R. Ambedkar speech in Constituent Assembly which contemplates that the power under Art. 341 is given to Parliament and not president to add or delete SCs and STs from the list. It was stated by Ambedkar to “eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.” Ambedkar point out disturbance from political inclusion and exclusion. However, J. Hegde read re-classification is also prohibited within Art. 341 which was never said by Ambedkar. J. Hegde conclusion was:
“Therefore any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.”
However, authors claim J. Hegde interpretation of Art. 341 is over-broad reading of Art. 341(2).[74] Also, from reading of cases in Ch. IV of this paper. It is quite apparent to note that sub-classification is indeed a facet of equality.
Therefore, we came to a conclusion that sub-classification is constitutional on grounds that it fair and reasonable classification. The judiciary time and again decided on the issue but it was overlooked or avoided by judges in subsequent cases. It is high time to ensure that reservation is reaching to right person.
Moving to last chapter of our paper, we will delve into the sub-classifications within EWS category to understand the economic criteria created by EWS reservation scheme can further be sub-classified or not.
VII. INTRA-GROUP CLASSIFICATION VIS-À-VIS EWS RESERVATION
In 2019, 103rd constitutional amendment was introduced in the Indian constitution which inserted Art. 15(6) and 16(6) providing reservation for economically weaker section of citizens, excepts minority educational institution under Article 30(1).[75] The upper limit of the reservation was provided to be 10% in addition to the existing reservation. The 2010 Sinoh Commission report stated that 31.7 crore individuals lived below the poverty line, with 7.74 crore coming from Schedule Caste, 4.25 crore from Schedule Tribe, and 13.86 crore from OBC, according to data from the 2001 census and 2004–05 statistics.
EWS reservation ensures an additional 10% reservation to general category members who fall within the prescribed criteria by the government. The method of assessing quantum of reservation under Art. 15(4) and 16(4) is adequate rather than proportional. It infers that %age of population does not depend while assigning reservations. The question of adequacy is upon the State to decide.
On the basis of intersectionality between the Economic Factor with other factor such as gender, place of residence, educational qualifications, etc. sub-classification can be made within EWS category. The EWS reservation was challenged in Supreme Court on three grounds[76]:
- Whether the 103rd constitutional amendment is violative of basic structure for providing reservation solely on basis of economic criteria?
- Whether the amendment is violative of basic structure for excluding poor among SC/ST/OBCs categories from EWS quota?
- Whether amendment is violative of the basic structure for breaching the 50% ceiling limit?
The second issue is the crucial one when it comes to the question of sub-classification within EWS category. The majority denied the petitioner arguments that it is not violative of basic structure for excluding poor among SC/ST/OBCs categories from EWS quota. The EWS reservation is only available for general categories on basis of their economic status.
The movement from caste-based classification to economic classification is a tremendous step in the development of reservation jurisprudence. However, giving reservation only to general categories and denying to all other categories just because they are already getting reservation is not consistent with the idea of Supreme Court in cases pertaining to reservation. As the object of reservation should be to remove caste-differences and not perpetuate it. From the perspective of SC/STs, EWS reservation only given to general create a sense of bitterness as they would feel the community who suppressed us for centuries is getting benefit of reservation. So, we are not going forward to remove caste-diffences but to perpetuate it graudually.
My suggestions would be allow sub-classification on EWS category and I think the judgment of Davinder Singh would have great impact on the EWS category, if sub-classification is allowed within SC/STs. Then, only group that is left would be EWS category.
The better option of providing reservation on economic criteria would be to see beyond any differences other than economic factors. Then only we can ensure an egalitarian society. If we are denying the fact that reservation at a point in time should not end. Then, our vision is not to correct the differences rather is to perpetuate the differences.
VIII. CONCLUSION
Affirmative Action (A.A.) is important for cherishing the undesired differences among people in a society. Throughout the paper, we have followed a trajectory of understanding the real essence of affirmative action. We started by discussing the social fabric of India to understand the need of A.A. in our society. Then, we analysed the role of A.A. in improving the status of caste discrimination which was present in Indian Society. Afterwards, we delve into the concept that Art. 16(4) is a fundamental right in itself and it ensures the notion of equality and therefore, cannot be treated an exception.
Moreover, the research question of our paper was to examine the sub-classification permissible within SC/STs or not. We understand the concept of sub-classification and dealt with all the leading case laws on the topic. Then, we delve deeper into the issue of inclusiveness to understand the role and importance of inclusiveness within the present framework of reservations.
Additionally, we try to figure out the constitutionality of sub-classification or intra-group reservations. Our finding suggests that it should be allowed as a Constitutional practice within Art. 16(4). Our finding shows that there is visible differences among member of SCs. We cannot say them a homogenous community as they completely differ from each other. Accepting the view of Supreme Court in Jarnail Singh, the concept of creamy layer should be introduced within SC/STs category to ensure sub-classification.
The benefit of reservation cannot reach to the desired person if the reservation policy treat unequal as equal. The concept of reasonable classification under principle of equality allows sub-classification. Therefore, denying the right of sub-classifciation is violation of principle of equality enshring under Article 14, 15 and 16. The Constitutional provision must not be read into isolation when it is about right of a community. Our Constitutional framers never wanted that benefit of equality should not reach to people because of their backwardness. We can say reservation ensures equality but it should not be inflexible. The backward class changes with time, so law must cater and not solidify the caste put forth in Scheudle to perpetuate indefinitely.
Finally, we analysed the possibility of sub-classification within EWS category and came to a conclusion that it should be done to ensure fair and reasonable society where caste discrimination does not remain in mind of people.
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[1] India Const. art. 14.
[2] MG Badappanavar v. State of Karnataka, AIR 2001 SC 260.
[3] India Const. art. 15.
[4] India Const. art. 16.
[5] MR Balaji v. State of Mysore, AIR 1963 SC 649.
[6] Janaki Prasad v. State of J&K, AIR 1973 SC 930.
[7] Ram Singh v. UOI, 2015 (4) SCC 697.
[8] Manali S. Deshpande et. al, History of the Indian Caste System and its impact on India Today SOCS 1, 12-30 (2010).
[9] Id. at pg. 27.
[10] Werner Menski, Comparative Law Global Context Pg. 245
[11] Vina M. Goghari, An introduction to the basic elements of the caste system in India, NCBI (Apr. 18, 2023, 3:12 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10764522/.
[12] Nichoas B. Dirks, Castes of Mind (Princeton University Press 2001).
[13] Samdani MN, Andra Pradesh caste census kick off today, Times of India (Apr. 18, 2023, 4:04 PM), https://timesofindia.indiatimes.com/city/vijayawada/andhra-caste-census-to-kick-off-today-2nd-state-to-go-for-it/articleshow/106968056.cms.
[14] Ram B. Bhagat, Census and caste enumeration: British legacy and contemporary practice in India, 62 UdSdR 119, 120-130 (2006).
[15] Id. at 120
[16] Constituent Assembly Debates, August 24, 1949 speech by H.J. Khandekar, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-24#9.123.171 (Last visited on April 10, 2024).
[17] Dr. B.R. Ambedkar, Annihilation of caste (1968).
[18] Owen M. Fiss, Groups and the Equal Protection Clause, 5 P&PA 107, 108-118 (1976).
[19] Indra Sawhney v. UOI, AIR 1993 SC 477.
[20] National Resources Allocations, (2012) 10 SCC 1.
[21] Sri Srinivasa Theatre v. Govt. of Tamil Nadu, AIR 1992 SC 1004.
[22] Mendelson Wallace, Discrimination, based on the Report of the United States Commission on Civil Rights (Prentce-Hall 1962).
[23] Baijayant Jay Panda, Have reservations helped in erasing historical injustices in India?, Economic Times (Apr. 18, 2024, 10:02 PM), https://economictimes.indiatimes.com/news/politics-and-nation/have-reservations-helped-in-erasing-historical-injustices-in-india/articleshow/48784238.cms?from=mdr.
[24] Press Information Bureau, https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579065 (last visited Apr. 18, 2024).
[25] UOI v. Rakesh Kumar, AIR 2001 SC 1877.
[26] Chebrolu Leela Prasad Rao and others vs State of Andhra Pradesh and others., AIR 2020 SC 488.
[27] Id. at ¶ 153.
[28] Jarnail Singh and Ors. v. Lacchmi Narain Gupta and Ors., AIR 2018 SC 4729.
[29] State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
[30] Indra Sawhney v. UOI, AIR 1993 SC 477.
[31] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
[32] Anurag Bhaskar, Reservation as a Fundamental Right: Interpretation of Article 16 (4), 10 IJCL 1-44 (2023).
[33] India Const. art. 29(2).
[34] Maneka Gandhi v. UOI, AIR 1978 SC 597.
[35] Bastin Steuwer, ‘Constitutional Crossroads: The shadow of the First Amendment”, The Caravan (30 April, 2021) <https://caravanmagazine.in/books/law-first-amendment-constitution> accessed 18 April 2024.
[36]Abdullah Nasir and Priya Anuragini, Of Merit and Supreme Court: A Tale of Imagined Superiority and Artificial Thresholds, EPW (Apr. 18, 2024, 10:24 PM), https://www.epw.in/engage/article/merit-and-supreme-court-tale-imagined-superiority.
[37] ‘Parliamentary Debates’, (Parliament of India, 1951), p. 9006-07, <https://eparlib.nic.in/bitstream/123456789/760696/1/ppd_18-05- 1951.pdf> accessed 18 April 2024.
[38] General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36.
[39] M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
[40] K.S. Puttaswamy v. UOI, (2017) 10 SCC 1.
[41] Kharak Singh v. State of UP, (1964) 1 SCR 332.
[42] T. Devdasan v. UOI, AIR 1964 SC 179.
[43] Anurag Bhaskar, Supra note at 15.
[44] C.A. Rajendran v. UOI, AIR 1968 SC 507.
[45] State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
[46] Indra Sawhny v. UOI, AIR 1993 SC 477.
[47] SCC Observer, https://www.scobserver.in/cases/punjab-davinder-singh-validity-of-sub-classification-within-reserved-categories-case-background/ (last visited Apr. 18, 2024).
[48] E.V. Chinnaiah v. State of Andhra Pradesh, Appeal (civil) 6758 of 2000.
[49] India Const. art. 341.
[50] Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
[51] Indra Sawhney v. UOI, AIR 1993 SC
[52] State of Punjab and Ors. v. Davinder Singh and Ors., Civil Appeal No. 2317 of 2011.
[53] Jarnail Singh v. Lachhmi Narain Gupta, AIR 2018 SC 4729.
[54] India Const. art. 342A.
[55] K.C. Vasanth Kumar and Anr. v. State of Karnataka, AIR 1985 SC 1495.
[56] State of Punjab v. Davinder Singh, CA 2317/2011.
[57] Shuva Mandal, India: Are Reservations Adequate to Foster Diversity and Inclusion, SHRM (Apr. 18, 2024, 12:00 PM), https://www.shrm.org/in/topics-tools/news/india-reservations-adequate-to-foster-diversity-inclusion.
[58] Sinha, J. and Mittal, S. (2023) Analyzing Ram Singh v. Uoi, Jat Reservation: An affirmative action approach, Legal SYNK. Available at: https://legalsynk.com/ram-singh-v-uoi-jat-reservation-case/#viii-analysis-on-jat-reservation-case (Accessed: 21 April 2024).
[59] Robert Amdur, Compensatory Justice: The Question of Costs, 7 SAGE 229, 230-243 (1979).
[60] Paul W. Taylor, Reverse Discrimination and Compensatory Justice, 33 Ox. Uni. Press 177, 180 (1973).
[61] John Rawls, A Theory of Justice (Harvard University Press 1971).
[62] EP Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
[63] Janhit Abhiyan v. UOI, 2022 SCC OnLine SC 1540.
[64] NALSA v. UOI, AIR 2014 SC 1863.
[65] Parivartan Kendra v. UOI, W.P. (Civil) No. 867 of 2013.
[66] Abhinav Ramkrishna v. UOI, W.P. (Civil) No. of 2021.
[67] Indra Sawhney
[68] India Const. art. 366(24).
[69] B.N. Lokur Committee, Revision of the lists of SCs and STs (1965), Department of Social Security, Vol. 1, p. 22.
[70] Justice P. Ramachandra Raju Commission, Categorisation of Scheduled Caste (1996), Govt. of Andhra Pradesh.
[71] Chinnaiah at ¶65
[72] Justice Usha Mehra Commission-2007
[73] K Balagopal, Justice for Dalits among Dalits: All the Ghosts Resurface, 40 E&PW 3128, 3133 (2005).
[74] Anuna Tiwari, Sub-Classification in Reservations, Constitutional Law and Philosophy, (Apr. 21, 2024, 4:50 PM), https://indconlawphil.wordpress.com/2020/09/03/guest-post-sub-classification-in-reservations/.
[75] India Const. art. 15, 16, amended by The Constitution (One Hundred Third Amedment) Act, 2019.
[76] Janhit Abhiyan v. UOI, WP (C) 55/2019.
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