Article 46 of the Constitution categorically enjoins upon the state the imperative “to promote with special care the educational and economic interests of the weaker sections of the people and in particular of the SCs and STs and protect them from social injustice and all forms of exploitation.”
The Supreme Court verdict permitting sub-classification within the same class of Scheduled Castes/Scheduled Tribes and also calling for the creamy layer among Dalits to be taken out of the purview of reservation is deeply flawed. It may be used to dilute affirmative action and pave the way to do away with reservation. Let me explain.
The judgment is deeply problematic and ignores grim social realities. For a large swathe of Dalits in the country whose lives are “poor, nasty, brutish and short”, the issue of reservation has no meaning. Trapped in the daily struggle for survival, they neither have the wherewithal nor the luxury of educating themselves enough to benefit from reservation. Giving them a slice of the hypothetical reservation quota will not change their lives in any way. The brutal fact is that an infinitesimal percentage of Dalits is eligible to compete for the reservation quota.
In the last 10 years, there has been a fog of secrecy around the filling of posts of SCs/STs in various government ministries. According to a report submitted to Parliament in March 2021, 50 per cent of the posts reserved for OBCs, SCs and STs across 10 Union ministries were lying vacant. Similarly, faculty positions for SCs and STs remain unoccupied in prestigious higher education institutions, including central universities, IITs and IIMs. Importantly, one of the reasons cited for these vacancies is the absence of suitable candidates. Using this as a pretext, the UGC recently issued guidelines outlining the circumstances in which reserved posts could be “dereserved” but hurriedly retracted it when there was a public outcry. The Supreme Court has ignored these crucial facts while passing a judgment that, in the name of distributive justice, will only exacerbate the problem of filling up SC/ST vacancies.
The argument that the creamy-layer concept is applicable to OBCs and hence should logically be extended to Dalit communities is akin to equating chalk with cheese. The OBCs, as a group, are in a different stratosphere, way above the SCs/STs on the economic ladder, and more particularly, in social standing. Today, the Dalit, stuck at the bottom of our iniquitous social hierarchy, would gladly exchange places with a member of any other group. Eliminating the creamy layer from the purview of reservation will only make matters worse for Dalits.
It is bizarre that in a country riddled with the most flagrant and inhuman inequalities, only the alleged inequality within the most vulnerable group — the Dalit community — is being targeted for correction. Splitting of the SC/ST reservation quotas will only benefit vested interests seeking leverage in the fragmentation of these groups. It will shatter whatever solidarity exists among the SCs. The Supreme Court has, in effect, decreed that the long-suffering victims of the caste system should themselves be compartmentalised into different subsets, creating another hierarchy and caste system. This will drive a wedge between the different sub-groups.
Caste is still deeply embedded in our culture. The Court verdict ignores the complexities and rationale behind reservation for SCs/STs. The raison d’etre for granting reservation is not merely economic backwardness or inadequate representation in the “services of the State” as seemingly imputed by the Court (poverty exists across castes and communities) but untouchability and its unremitting grip on our society.
So ingrained is caste that the Dalit, irrespective of economic advancement or a government job, is still socially handicapped on account of his origins, the so-called “creamy layer” included. It makes no sense to disrupt the fragile homogeneity among Dalits by discriminating between them based on tenuous criteria to be drawn up by the state to “establish that the inadequacy of representation of a caste/group is because of its backwardness”. The highest court has cautioned that the criteria should not be based on “whims and political expediency”. But these are precisely the factors that will determine them.
The judgment’s language befuddles the issue, stressing the need to determine if a particular class is a “homogeneous integrated class” or not before deciding on the grant of sub-classification. By adjudicating without adequate justification that the “Scheduled Castes are a socially heterogeneous class”, the Court has overlooked the crucial, commonly shared social stigma of “camouflaged untouchability” that still plagues Dalits irrespective of their economic status. This crippling handicap was the primary justification for our founding fathers to mandate reservation for SCs in the first place.
The judgment violates Article 341 of the Constitution, which authorises the President to issue the notification specifying the caste categories deemed to be Scheduled Castes. Article 341(2) allows Parliament to amend by law such notification to include or exclude any caste or group within any caste, with the crystal clear caveat that “save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.” By permitting the states to tamper with and modify the notification and by allowing sub-classification and “varied” treatment within the same class of Scheduled Castes notified under Article 341, the judgment is unquestionably unconstitutional.
Article 46 of the Constitution categorically enjoins upon the state the imperative “to promote with special care the educational and economic interests of the weaker sections of the people and in particular of the SCs and STs and protect them from social injustice and all forms of exploitation.” This is an absolute condition enshrined in the Constitution.
The writer, a former civil servant, is secretary-general of the LJP (RV).
Views are personal
