he last thing you expect me to do in these times is to welcome a Supreme Court judgment by Justice Arun Mishra’s bench. But it so happens that among the various questionable and controversial orders passed by Justice Arun Mishra before his retirement, one stood out for its positive potential. This judgment can remove a long-standing roadblock in fine-tuning India’s existing reservation policies. But it is too early to applaud. It would take another round of court hearings, careful legislative work and evidence-based policymaking for its positive potentials to be realised. Otherwise, it could open up a pandora’s box of political manipulations.
This is about sub-classification of reservation quota meant for Scheduled Caste (SC) and Scheduled Tribe (ST). Job and educational quotas for these communities have not achieved all that was needed or hoped, but this is one of the few state interventions that has achieved something substantial. Across the world, India’s experience with reservations must be listed as one of the success stories of affirmative action for historically disadvantaged communities.
Over the years, however, there have been serious complaints about uneven distribution of benefits of reservation within the various SC and ST castes and communities. I argued more than a decade ago that social justice policies need fine-tuning. It never happened. Allegations of certain castes or community groups having captured all the benefits of reservations are very common. This was bound to happen. Categories like Scheduled Caste or Scheduled Tribe are very large baskets that contain social groups of different status, based on different traditional occupation and, therefore, varying degrees of disadvantage. Historically, they had very uneven exposure to modern education and were therefore unequally placed to take advantage of a system like reservation.
Inequalities within SC and ST
Caste groups such as Jatavs (leatherworkers) in the north, Mahars in the west, Malas in the south, and Namasudras in the east had a relatively early exposure to modern education and could make substantial use of the opportunity offered by reservations. Compare that to the Balmiki community in the north, traditionally engaged in scavenging. Or think of Musahars and Doms in Uttar Pradesh and Bihar. Or Arunthathiyars in Tamil Nadu. They still have very limited access to the education that is needed to take advantage of reservations.
When the country had recorded a literacy rate of 74 per cent in the latest census of 2011, the literacy rate for Doms was 16 per cent and for Musahars, just 9 per cent in the state of Bihar. Census 2011 records that of the 20 lakh-plus Musahar community in the state, there were less than 2,000 graduates — about 0.1 per cent. Similar differences exist among the STs as well. Tribal communities in the hill states of the north (Himachal, Uttarakhand) and the northeast (Manipur, Mizoram, Meghalaya, Nagaland) have done much better than their counterparts in the rest of the country. And then there is the unusual case of the Meenas of east Rajasthan, who have received disproportionate benefits of ST reservations.
Several committees and commissions set up by state governments have recorded grossly uneven presence of these communities among government employees. The Justice M.S. Janarthanam report found that while Arunthathiyars were about 16 per cent of the SC population of Tamil Nadu, their presence among SC government employees was just about 0.5 per cent. Many of these committees suggested sub-dividing the quota and keeping a sub-quota for the most disadvantaged groups. There was stiff resistance, just as there is resistance to the idea of reservation itself.
The relatively advantaged caste groups within SC and ST had captured bureaucratic and political positions and were in a position to frustrate any other such attempt. Parties such as the Congress and the Bahujan Samaj Party (BSP), with their traditional Dalit vote bank, tended to skirt this issue, while the BJP pushed for it in the hope of courting at least the non-dominant among the Dalits. Despite these complications, states such as Punjab, Haryana, Bihar, undivided Andhra Pradesh and Tamil Nadu tried implementing the sub-quota approach.
Legal obstacles to sub-quotas
All such attempts by states to sub-categorise quotas ran into a legal wall. Many high courts decided that any sub-division of the SC and ST reservation was unconstitutional. Interestingly, sub-quota within the Socially and Educationally Backward Classes (popularly known as OBCs) was very much the norm across many states and was okayed by the Supreme Court in its famous Indira Sawhney judgment. But that did not work for SCs and STs. The matter finally reached the Supreme Court in the E.V. Chinnaiah v. State of AP (2004) case. A five-member constitutional bench unanimously took an ultra-technical view and outlawed the Andhra Pradesh decision to sub-divide SC quota. It held that any sub-grouping by a state amounted to tinkering with these Schedules, for which only Parliament is authorised. The court held that all the castes within these lists are assumed to be homogenous.
The Chinnaiah judgment flew in the face of all available evidence and commonsense. It frustrated all attempts by state governments to offer special consideration to the most disadvantaged SC and ST groups for state government jobs. Thankfully, a bench led by then CJI R.M. Lodha recognised this difficulty in the Davinder Singh v. State of Punjab case in 2014 and recommended a relook at the Chinnaiah judgment by a constitution bench. This was the five-judge bench headed by Justice Arun Mishra that finally, unanimously, went against the Chinnaiah judgment. No one would accuse this judgment of great legal sophistication, because it uses a somewhat questionable reading of the 2018 amendment to Article 342 of the Constitution. Yet, it recognises something commonsensical: that there is huge internal disparity within the SC and ST groupings; that it is grossly unjust to put them all in one bracket; that the state governments should be allowed to introduce sub-quota.
Sadly, that is not the end of the story.
A five-member bench of the Supreme Court cannot reverse the orders of another five-member bench. So, the Justice Arun Mishra bench had decided to refer the matter to another Constitution bench of no less than seven judges! My commonsensical question is: why was this case given to a five-member bench in the first place? But then I clearly don’t understand the supreme ways of the courts. All I know is that it took the Supreme Court ten years to say that an unjust order needs a rethink, another six years to say that it may have been wrong and now we wait for another few years for a possible reversal of the order.
That also leaves a final question: what should be the criterion of such a classification? If there is no objective criterion, it would be a political free-for-all.
Years ago, I had asked this question to my colleague at CSDS, Dr Sanjeer Alam, who tracks the Census and National Sample Survey (NSS) data on social indicators. He worked out a detailed, state-wise list of the most disadvantaged SC and ST communities based on two objective criteria: SC communities traditionally engaged in socially degraded, polluting or stigmatised occupations (or, in the case of STs, those already identified as ‘Particularly Vulnerable ST Groups’) and those with substantially lower-than-average state literacy rate. To this, I may add a third criterion for job reservation: evidence of substantially lower representation in government jobs to their share in population. Hopefully, when the seven-member bench considers this case and, hopefully, reverses its 2004 judgment, it would also lay down the criteria for such sub-grouping and settle this debate.