SUB CLASSIFICATION OF SCs-BOON OR A BANE?

     1.  Grim dimensions of implementation of rights of unequal to equality.

·      Representation is reparation for historical injustice and not for economic welfare.

·      With Judgment of SC in State of Punjab v Davinder (01.08.2024) the focus now shifts to economic backwardness divested of historic injustice.

·      The section of society infested with caste bias is deciding and implementing the rule of reservation.

 

Ø Illustrations of status of implementation of reservation

                       Employment:  Reservation pan India: 15%

                                    Central Educational Institutions

·      Reservation in teaching cadre was formalized by enacting Central Educational Institutions (Reservation in Teaching Cadre) Act, 2019.

·      In Central Universities out of 1125 existing posts of Professors 39 (3.46%) and of 2650 Associate Professors 130 (4.9%) belong to SCs.

·      In 2019-20 the Central University Dharmshala filled up only two posts out of 37 reserved for SC/ST/OBC. Remaining were rejected as “none found suitable”. Similar things happened in DU, JNU, Lucknow University, Allahabad University, Guru Ghasidas University Chhatigarh and the like.

                                                          IIMs

·      Of the 784 sanctioned faculty posts in 18 IIMs there are 8 (1.02 %) SCs.

·      Of the 18 IIMs 12 do not have any representation from SC category in the faculty posts.

                                                            IITs

·      Of the 8856 sanctioned faculty strength 149 (1.7%) are SCs. IIT Mandi does not have SC faculty.

 

                                         State of Himachal

                  Reservation in principle:     Class:       I & II  : 15%           III &IV : 22%   

                  Actual: Total: 12% (app);                      I & II:  5% (app).

  Anomalies

ü  Nearly 1.5 lakh appointments have been made under various schemes denying reservation blatantly. Services of such appointees have been regularized from time to time disregarding rosters.

ü  National Commission for SC has mentioned in Annual Report 2012-13 (P 40) that   representation of SCs in Education is tottering 8%.

ü  Shortfall and backlogs of posts in case of SCs run into thousands. They are not been cleared. However, backlog posts of Ayurvedic Medical Officers and the Veterinary Officers for wards of ex-servicemen were recently cleared because it benefitted general category.

ü  85^th amendment of the Constitution, read with M Nagraj, Jarnail Singh I and Jarnail Singh II, has not been implemented.

ü  Cadre of Safai karmcharis was declared as dying cadre on 21.07.2011 and replaced by way of outsourcing. It has pushed this category to State sponsored exploitation.

 

                                      Admissions in Educational Institutions

                                         Central Educational Institutions

                  Reservation in admission to CEIs was formalised by Central Educational Institutions (Reservation in Admission) Act, 2006.

                                            State of Himachal.

                  In Principle reservation:

o   Horticulture and Forestry, Technical Education: 22%.     

o   Agriculture University, H P U, S P U & Medical Education: 15%.

[Deficit explained as an illustration of Medical Education:

a)           Total seats in MBBS and BDC where reservation applies: 943

b)          Seats at existing norm: 141.            If it was proportional: 236.  

c)            Notional Deficit: 95 seats per year.]

 

                       Aberration in practice.

ü Institutions have created substantial number of self financing, non subsidized, institutional and other protected seats in coveted courses to dump rule of reservation for SCs.

ü  Agriculture University provides reservation ‘over and above total seats’ for EWS. In the admission year 2022 for UG programs, against total 504 seats available, 32 were reserved to SCs and 46 to EWS.

ü  No seats were reserved to SC/ST in the Biotechnology Department of HPU in 2022 admission.                  

                             Poor intake.

ü  In the admission year 2022 out of total 532 seats available for admission in B Sc (Hon) programs in Colleges of Horticulture & Forestry, 37 seats were earmarked for SCs and 29 (5.45% as against 22%) were actually admitted.

ü  In all four Government Engineering Colleges, 919 students were admitted in 2022. Out of this 103 (11.2 % as against 22%) SCs were taken against roster.

ü  In Agriculture University out of 504 seats in different courses, 32 were earmarked to SCs and 26 (5.1%) candidates were actually admitted.

 

Ø Why 15% reservation to more than 25% SC population in HP?

·      GOI revised quantum of reservation depending on the census figures-1947: 12.5%, 1961: 15%, 1971: was not required, 1981: no all India figures because no census in Assam. Then came reservation to OBC and 50% cap.

·      NM Thomas (1976) talked of proportional representation to SC/ST and Indra Sawhney held that the proportion of Backward Classes to the total population would be relevant for providing quantum of reservation.

·      B K Pavitra II v Union of India (2019) held that “it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population”

·      States like Punjab 25%, Haryana 20%, UP 21%, have followed criterion of population in determination of reservation in all classes of posts.

·      There is 10% flat reservation to EWS for Class IV to I. For STs in HP, Class I & II: 7.5 % and for class III and IV: 5%.

·       In GM Southern Railway v Rangachari (1962), the Supreme Court observed that “adequate representation means not only numerical representation but qualitative representation as well”.

·      In Indra sawhney (1992) the Supreme Court held that the principal test to determine the adequacy of representation is “effective representation or effective voice in the administration” and not mere numerical presence.

·      In State of Punjab v Davinder Singh & Ors (2024, para 168) the Supreme Court held that “opportunities for real and effective representation must be created in all posts and grades.”

 

                  Prevailing conditions:

The Supreme Court in Prathvi Raj Chauhan v Union of India & Ors (10.02.2020) observed that

“41. As to prevailing conditions in various areas of the country, we are compelled to observe that SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of SCs/STs are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable sections of society. The classes of SCs/STs have been suffering ignominy and abuse, and they have been outcast socially for the centuries.”

Ø Continuing widespread prevalence

In Hariram Bhambhi V  Satyanarayan (29 October 2021) the Supreme Court of India was constrained to observe that

 “20. Atrocities against members of Scheduled Castes and Scheduled Tribes are not a thing of the past. They continue to be a reality in our society even today.”

 2.  Verdicts of Courts- alibi for apathy of reluctant States.

                            Interpretation of Articles 15(4) & 16(4).

·      The seven-judge bench in State of Madras v. Champakam Dorairajan (1951) declared caste based reservation in higher education unconstitutional.  This led to First Amendment which inserted clause (4) to Article 15.

   Article 16(4): an exception to Article 16(1)?

·      Constitution bench of the Supreme Court in General Manager, Southern Railway v. Rangachari (1962) held that Article 16(4) was an exception to Article 16(1) – was similar to Article 15(4), which, was “an exception to the prohibition of discrimination on grounds specified in Article 15(1)”. Article 16(4) was subjected to a restriction under Article 335.

 

   Articles 16(4) and 15(4) read in the same vein as Exceptions and Enabling provisions

·      The principles laid down in Rangachari were reinforced in M.R. Balaji v. State of Mysore (1963).  It was held that since Article 15(4) was enabling provision and has to be read as a proviso or an exception to Articles 15 and 29(2)”. The Court laid down a broad cap of 50% on reservations. Relying upon his own observations on “efficiency” under Article 335 made in Rangachari, Justice Gajendragadkar reiterated that any reservation “at the cost of efficiency of administration” is constitutionally impermissible.

 

   16 (4)-Only an Exception, not a Fundamental Right?

·      In the Constitution bench decision of C.A. Rajendran v. Union of India (1968), it was advised that “there was no constitutional compulsion to make reservation for SCs and STs in posts filled by promotion and the question whether the reservation should be continued or withdrawn was entirely a matter of public policy. It was held that Article 16(4) does not confer any fundamental right to reservation.

 

     The Constitutional Shift in NM Thomas & Indra Sawhney

   Article 16(4) held to be a part of Article 16(1)

·      In State of Kerala v. NM Thomas (1976), a seven-Judge bench held Article 16(4) to be facet of Article 16(1) and that Articles 14, 15(1), and 16(1) guarantee the content of equality for everyone, including those from backward classes.

·      In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) the Court agreed that Article 16(4) was a facet, an illustration or a method of application of Article 16(1).

 

                      NM Thomas approved in Indra Sawhney:

                              Article 16(4) as Fundamental Right.

·      The enforceability of reservations as effected by NM Thomas was confirmed in a nine- judge bench decision of Indra Sawhney (1992). The Court reinforced that Article 16(4) is a facet of Article 16(1).

·      Judgements in NM Thomas and Indra Sawhney clarified that the right to reservation itself is a fundamental right under Articles 16(1) and 16(4).

 

Ø Judicial Indiscipline post 1995

   Deliberate judicial ignorance to move back to Balaji era?

 

•      Constitution bench in the case of Ajit Singh (II) v. State of Punjab (1999) held that reservation in promotions under Articles 16(4) and 16(4A) “do not confer any fundamental rights nor do they impose any constitutional duties”.

·      This view was clearly contrary to larger benches in NM Thomas and Indra Sawhney, which did not consider Article 16(4) as merely enabling.

•       The Ajit Singh II bench, being a smaller bench than Indra Sawhney, was bound by the latter decision. In disobeying Indra Sawhney, it showed judicial indiscipline, which seems to be deliberately done to restrict the right of reservation.

Ø The Continued Misappropriation of Indra Sawhney

•              A Constitution bench in M. Nagaraj v. Union of India held that: “If Articles 16(4A) and 16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision, then Articles 16(4A) and 16(4B) are also enabling provisions… The State is not bound to make reservation for SC/ST in the matter of promotions”. The view of Ajit Singh II was contrary to Indra Sawhney, and Nagaraj repeated the same.

•       Indra Sawhney had also warned against a special or strict standard for scrutiny of constitutional provisions on reservation, but Nagaraj, in effect, adopted a strict standard, as it laid down certain prerequisites before the right under Article 16(4) and 16(4A) could be availed. The strict standards made it impossible to implement reservations, as the policies were struck down in several cases by applying the criterion laid down by Nagaraj. The bench also applied the standards of determining OBCs on the SCs and STs.

 

   The Effect of Indiscipline in later decisions

•       Because of the indiscipline of the Constitution benches, there were repercussions for the rights of SCs and STs. While on one hand, reservation policies were being struck down by applying the standards set in Nagaraj, on the other, the State was left unaccountable if it decided not to implement the right to reservation.

•       A two-judge bench in Mukesh Kumar v. State of Uttarakhand (2020) reiterated that “Article 16(4) and 16(4A) do not confer a fundamental right to claim reservations”, as they    are enabling provisions. It went on to say that, “Even if the under-representation of SCs and STs in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation”. 

     

Ø National Commissions for Scheduled Castes and Safai Karamcharis.

·      In its Annual Report for 2012-13 (page 41-42) and 2016-17 (page 141-142) National Commissions for Scheduled Castes made following recommendations in relation to State of HP:

a)    Proportional representation in services;

b)   To maintain rosters;

c)    To make monitoring system functional;

d)   To clear backlog and shortfall;

e)    To implement 85^th amendment of the Constitution.

f)     To provide reservations in temporary, casual, tenure based etc. posts.

But the State of HP just did not bother about it.

·      These Commissions have been rendered ineffective and there are cases where the Government of HP did not care to send replies to the communications from these Commissions.

 

3. Sub-Classification: A Distraction?

·      The backwardness experienced by Scheduled Castes is not a result of their own actions but rather a consequence of systemic failures and inadequate governance over the past 77 years of independent India. The systemic neglect and insufficient policy implementation have contributed to the ongoing challenges faced by Scheduled Castes and it is imperative to address these issues to ensure genuine equality and upliftment.

 

·      If the objective of sub-classification is to ensure adequate representation, it is essential to acknowledge the existing violations of Constitutional principles in various sectors. The reality is that in many areas, whether public or private, representation of Scheduled Castes is minimal, with upper castes dominating the landscape. This disparity highlights a broader issue of systemic exclusion that a piecemeal approach to sub-classification is unlikely to resolve. The unfulfilled Constitutional rights in education, employment, landholding and the ongoing atrocities against Scheduled Castes must be at the forefront of any discussion before debate on sub-classification.

 

·      A recent controversy has arisen regarding the University Grants Commission’s (UGC) draft guidelines, which proposed that any vacancy reserved for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) could be “declared unreserved” if sufficient candidates from these categories were not available. This proposal was widely perceived as an attempt to undermine the quota system in higher education institutions. Following substantial backlash from various sections of society, the UGC removed this provision from the draft guidelines. This incident highlights a critical issue: without a comprehensive Act or well-defined guidelines governing reservations, the reservation system is vulnerable to significant changes and potential erosion.

 

·      The lack of a robust legislative framework for reservations can lead to arbitrary modifications and undermining of established quotas, which are essential for ensuring equal opportunities and addressing historical injustices. It is crucial to have a clear, comprehensive Act that safeguards the reservation system and prevents such manipulations, ensuring that the rights and opportunities of marginalized communities are protected.

 

Ø Homogeneous or heterogeneous 

·      The Supreme Court raises significant points regarding the classification and treatment of Scheduled Castes. Specifically, point no. 51 of the judgment (The Scheduled Castes are not a homogenous class. Preferential treatment can be given to the most downtrodden of the class who are not adequately represented. Such a sub-classification is made to provide equality of opportunity, so as to achieve the purpose of reservation) addresses the idea that the Scheduled Castes, as per the Presidential List, are not frozen in time and that they are not a homogeneous group. The judgment suggests that the State laws can provide preferential treatment within the Scheduled Castes based on statistical data, which can then be used to allocate benefits more equitably.

 

·      However, the Supreme Court’s concerns highlight the lack of reference or empirical evidence in the judgment to support these claims, particularly in terms of the homogeneity or heterogeneity of the Scheduled Castes. The classification of Scheduled Castes was historically rooted in the concept of untouchability and that this classification was solidified through detailed criteria in various censuses, particularly the 1911 and 1931 censuses. These criteria focused on social and religious practices, pollution taboos, access to public services and spaces, which collectively identified the ‘Depressed Classes’ later termed as Scheduled Castes in the 1935 Act.

 

·      Given the historical basis for the classification, the argument that the Scheduled Castes are not a homogeneous group requires careful examination, particularly in light of the historical and anthropological data used to define and group these castes. The homogeneity of Scheduled Castes was determined by a shared experience of social exclusion, discrimination, and untouchability, which was explicitly documented in colonial and post-colonial censuses and reports.

·      The judgment’s implication that the Scheduled Castes are not a homogeneous group could be seen as overlooking the historical and anthropological evidence that initially justified their classification. The sub-classification of Scheduled Castes, as proposed by the judgment, might need to take into account this historical context to avoid disrupting the foundational rationale behind the grouping of these castes.

 

Ø Inequalities among Scheduled Castes

·      The recent judgment, which suggests that there is no equality among the sub-castes within the Scheduled Castes, fails to recognize that such inequalities exist across all castes, including the so-called upper castes. This cannot be used as a justification to claim that Scheduled Castes are not a homogeneous group. The focus on intra-group disparities overlooks the broader reality of the socio-economic conditions faced by Scheduled Castes as a whole.

 

·      The more pressing issues are how Scheduled Castes continue to face systemic exclusion, discrimination and lack of opportunities and how atrocities against them have been on the rise over the past 70 years. The persistent marginalization and violence faced by Scheduled Castes underscore the need to address their collective condition rather than fragmenting their identity based on internal differences.

 

Ø Political Interest

·      The recent judgment on reservations appears to align closely with the political narrative of the ruling party, raising concerns about potential political motives behind it. The judgment references Pandit Jawaharlal Nehru’s letter from 27th June 1961, where he cautioned against reservations based on communal and caste lines, warning that such policies could make India “second rate or third rate.” Nehru’s statement that “this way lies not only folly, but disaster” and his emphasis on efficiency over reservations for backward groups have been echoed by Prime Minister Narendra Modi in Parliament.

 

·      The similarity between the Prime Minister’s statements and the language used in the judgment suggests a possible influence of the ruling party’s political interests on the court’s decision. Such alignment raises questions about the impartiality of the judgment, especially in light of the broader debate on the role of reservations in addressing historical injustices and ensuring social equity for Scheduled Castes.

 

Ø Judicial Accountability

·      Courts and judges should reflect on how the judiciary has addressed the issues of Scheduled Castes over the past 70 years, particularly,  the dilution of Constitutional and legal safeguards meant to protect Scheduled Castes in various judgments.

Ø Parliament to Discuss and Decide

·      The Supreme Court judgment, which allows States to discuss and decide the reservation policy for Scheduled Castes within their jurisdiction, appears to contravene the foundational principles laid out by Dr. B.R. Ambedkar and the framers of the Indian Constitution. Dr. Ambedkar, while presenting the draft Articles 300A and 300B on 17th September 1949, clearly emphasized that the authority to include or exclude any caste, race, or tribe from the Scheduled Castes list must rest solely with Parliament, not the States. The intent was to prevent the influence of local political factors and ensure that such decisions are made at the central level, reflecting a national consensus rather than regional interests.

 

·      Dr. Ambedkar’s foresight recognized the potential dangers of allowing States to unilaterally alter the status of Scheduled Castes, which could lead to political manipulation and injustice. This concern was echoed by Shri V.I. Muniswami Pillai, who supported the amendment for similar reasons, highlighting the risks of State-level interference in the classification of Scheduled Castes. Furthermore, Dr. Ambedkar, during the debate on the Untouchability Offence Bill in 1954, insisted that laws affecting the Scheduled Castes, including those related to reservations and their sub-classification should be centrally administered. He stressed that such matters are of national importance and must be decided by Parliament, not by individual State Assemblies.

 

·      During Constituent Assembly on 17th September 1949, when Dr. B.R. Ambedkar moved two new draft Articles being Articles 300A and 300B, which read thus: “300A-Scheduled Castes (1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or Scheduled Castes parts of or groups within castes, races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. (2)- Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. While moving the said new draft Articles, Dr. B.R. Ambedkar stated thus:

“The object of these two articles, as I stated, was to eliminate the, necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and Tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”

 

·      Speech of Shri V.I.Muniswami Pillai, given on the same day i.e. 17th September 1949 in support of the amendment,  reads as under:

“Sir, I am grateful to the Drafting Committee and also to the Chairman of that Committee for making the second portion of it very clear, that in future, after the declaration by the President as to who will be the Scheduled Castes and when there is need for including any other class or to exclude anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. I feel grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed.”

These statements presumed the danger of the situations in States so that the deciding discussions should be held in the house of Parliament better than State interests in Assemblies.

 

·      During the debate on Untouchability Offences Bill 1954, Dr.B.R Ambedkar said that “I claim that this is a Central law although it does not fall in List I of the Seventh Schedule. The provisions contained in article 35 are quite clear. It has been stated in article 35 that any law to be made for inflicting punishment for any infringement of a law made in pursuance of article 17 shall be by Parliament and not by the State. Those are the very express words. Therefore there can be no doubt in my mind that this law will have to be by virtue of the Constitution administered by the Centre and not by the States”. As the importance of the Bill was much anticipated, Ambedkar insisted it to be the Central issue to decide in the same grounds, when it comes to Reservations or the Sub Classification of Scheduled castes should be discussed in the house of Parliament not in respective State Assemblies to decide.

 

·      In light of these historical statements, the Supreme Court’s judgment, which allows States to independently decide on reservation policies, seems to overlook the Constitutional safeguard envisioned by Dr. Ambedkar and the Constituent Assembly. The consistent emphasis on central authority in matters concerning the Scheduled Castes underscores the importance of keeping these discussions within the Parliament, ensuring uniformity and protection from regional biases.

 

·      Dr. B.R. Ambedkar’s vision was clear: matters of such national importance, particularly those related to Scheduled Castes, must be deliberated upon by the Parliament to ensure a fair and uniform approach across the country. This ensures that local political interests do not undermine the rights and protections intended for the entire community. Only through comprehensive discussions in Parliament can we safeguard the integrity and effectiveness of policies designed to uplift the Scheduled Castes as a whole.

 

                                    A simple solution?

v Article 35 of the Constitution of India gives Parliament the power to make laws that protect and promote the Fundamental Rights of the people. These laws can take the form of new laws, amendments to existing laws or the repeal of outdated laws that are inconsistent with the Constitution. The primary goal is to ensure that the laws are in line with Constitutional principles and do not infringe on citizens’ rights. As the reservations and sub classification are the fundamental and foremost important laws to be made, those shall be discussed and debated in the house of Parliament.

 

                                                           Compilation: P S Draik, IAS (R),

              State President, Ambedkar Intellecuals Forum, HP.

                                                             Email: ambedkarforum7@gmail.com

                                                                 Website: https://amedkarforum.org