In a decision released on October 4, the Supreme Court rejected a set of review petitions challenging its August 1 judgment affirming the constitutional validity of the sub-categorisation of the Scheduled Castes. While the judgment itself points to significant changes in the contemporary discourse on reservation, the vehement criticism of prominent commentators suggests that nothing has changed. Of course, it must be acknowledged that the Court’s own 2022 decision ratifying the so-called Economically Weaker Sections (EWS) reservation has “applied dynamite” (to adapt a famous phrase) to its record of mostly progressive jurisprudence on social justice. The sub-categorisation verdict salvages some of the doctrinal ruins that remain.
The 6-1 majority verdict by a seven-judge constitutional bench is a legal landmark that sets aside the Supreme Court’s 2004 verdict in E V Chinnaiah vs. State of Andhra Pradesh (2000), where sub-categorisation had been declared to be unconstitutional, and the Andhra Pradesh “Rationalisation of Reservation” Act of 2000 (implementing a sub-categorisation scheme) was struck down.
The crux of the judgment concerns the “deemed fiction” by which legal entities are invented. In a lucid and compelling argument, Justices D Y Chandrachud and Manoj Mishra establish that, when it creates the legal category of the “Scheduled Castes”, Article 341 of the Constitution is not really bringing into existence a new “caste”. Rather, it is selecting certain preexisting castes (or sections thereof) for membership in this new category. Therefore, if Article 341 — and by extension Article 342 on the Scheduled Tribes — are to be considered “deeming fictions”, they can be so considered only as acts of selection rather than creation. In this respect alone are these Articles granted immunity from executive interference — only Parliament acting through the President can alter the composition of the Schedules of selected castes and tribes. However, as long as it does not alter the composition of the Schedules, the executive, whether of the states or the Centre, is free to enquire into, and seek to redress, any internal inequalities among the selected castes, including implementing schemes to further the overall intent of the Articles, which is to promote substantive equality among all citizens.
If this is the legal heart of the judgment, four features of its scaffolding are equally important. First, it enunciates the principle that subcategorisation, like reservation itself, must be seen as a means of promoting substantive equality rather than an exception to it. Second, it insists that the need to maintain efficiency in administration — used in the past to restrict reservation — must be interpreted in ways that foster equality and inclusion. Third, it rejects the path taken by the 2022 EWS judgment (which excluded the SC, ST and OBC castes from EWS reservation even when otherwise eligible) by stipulating that subcategorisation must not have the effect of excluding the socially and educationally advanced castes within the SC. Finally, and perhaps most consequentially, the judgment makes it mandatory for subcategorisation schemes to provide empirical evidence of material inequalities within the Scheduled Castes, especially their disproportionate representation in government services. The judgment also takes the welcome further step of including a section on “Historical and empirical evidence of inter-se backwardness within the SCs” where it discusses the heterogeneity of the SC list when first created in 1936, as well as contemporary studies that document discrimination (including “untouchability”) within the SCs.
It is this accumulated evidence of internal differentiation, inequality, and discrimination that should be at the centre of public debate around subcategorisation. Unfortunately, this is not happening. It is true that in the past — notably in the 1990s storm over OBC reservation — internal differentiation was used to oppose reservation itself. But to see the subcategorisation verdict as enabling something similar is to ignore the vastly different context today. After all, it is this changed context that the Supreme Court is responding to by reversing its own decision in Chinnaiah two decades ago.
In fact, the shoe is on the other foot. It has been particularly distressing to see exactly the same arguments that upper caste-vested interests invoked against the idea of reservation being unthinkingly deployed to oppose subcategorisation. As repeatedly pointed out, providing economic support and scholarships (instead of reservation) does not address the specificity of caste discrimination and denies the right to adequate representation and share in public resources. The argument that sub-quota seats won’t be filled for lack of qualified candidates is one that, if applied to reservation in the 1950s, would have strangled it at birth. It is only several decades after they were first instituted that reservation quotas in the higher levels of the bureaucracy have begun to be filled. Other arguments — like the alleged absence of data, the shrinking public sector and various conspiracy theories — are merely prevarications that refuse to address the proverbial elephant in the room: The reality of growing inequality and continuing discrimination within the Scheduled Castes.
Addressing this reality will not be easy, as the closing sections of Justices Chandrachud and Mishra’s judgment note. Transparent, evidence-based and context-specific criteria for subclassification must be developed; its limits have to be worked out, and the modalities of possible judicial review for ensuring that it meets the intended constitutional goals must be explored. Though difficult, addressing these concerns is not impossible. The history of successful struggles for subcategorisation in Punjab, Tamil Nadu and Andhra Pradesh shows the way. In Andhra Pradesh, a cross-section of the public — intelligentsia, ordinary people and political parties — came to a consensus to implement subcategorisation.
It is our collective responsibility to build a broad consensus so that reservation may be shared among the Scheduled Castes based on principles of social backwardness and representation. As B R Ambedkar realised so acutely in the 1930s, the “depressed classes” were an especially vulnerable minority within the larger grouping of minorities. Today, discriminated minorities within the SCs are even more vulnerable. The Scheduled Castes must remain united to secure their rights. Despite its difficulties, the only sustainable unity is one based on justice.
Satyanarayana is with the English and Foreign Languages University, Hyderabad. Deshpande is affiliated with the Institute for Social and Economic Change, Bengaluru. Views are personal
