Sub-classification in Reservations
A primer to the 7-judge constitution bench hearing in the Supreme Court
I will try and explain the issue of sub-classification by answering 4 elementary questions:
(i) What is sub-classification?
(ii) Whether sub-classification should be done?
(iii) Who can sub-classify?
(iv) How should sub-classification be done?
What is sub-classification?
Simply speaking, sub-classification is reservation within reservation. The present controversy limits itself to the case of the ‘Scheduled Castes’- a deemed fiction defined under Article 366(24) and identified/specified under Article 341. Under Article 341, the President- in the first instance- and subsequently, the Parliament is empowered to identify a list of ‘Scheduled Castes’ in relation to a State/Union Territory
Once such list is identified and notified, it can be used by the States for various purposes of the Constitution. Articles 15(4)/16(4) enable the State to provide preferential treatment by way of affirmative action/protective discrimination; similarly, the width of Article 46 allows all kinds of policy intervention. It is the case of the petitioners that sub-classification- that is, any kind of preferential treatment within the already specified quota for members of the ‘Scheduled Castes’- is a facet of reservation, and therefore falls within the contours of Articles 15(4)/16(4).
However, the law, as it stands today, differs. The judgment in E.V. Chinnaiah , delivered by a 5-judge bench of the Supreme Court, struck down sub-classification in an Andhra Pradesh legislation broadly for the following reasons:
(i) The ‘Scheduled Castes’ form an indivisible class by themselves and any further sub-classification would not be permissible;
(ii) The judgment in Indra Sawhney does not allow sub-classification for the ‘Scheduled Castes’;
(iii) Sub-classification would tinker with the Presidential List under Article 341; and
(iv) Reservation by the States is a one-time exercise and the State Legislature (and by extension, the State Executive) would lack the competence to create any further sub-classifications.
On 6 February 2024, a constitution bench of the Supreme Court sat in a combination of 7 to examine if the logic of Chinnaiah ought to be reconsidered. The matter will be taken up for further hearing today.
Whether sub-classification should happen?
At least one of the appellant States has taken the following grounds to justify sub-classification:
Preferential Treatment of Marginalised Groups within the SC List furthers Substantive Equality over Formal Equality:
The legal logic propounded in Chinnaiah is antithetical to the logic of reservations, which mandates protective discrimination in favour of marginalised groups to realise the ideal of equitable justice. Any interpretation of the Constitution consistent with the aforesaid idea would warrant a meticulous examination of the relative backwardness of the different castes comprised within the list of ‘Scheduled Castes’ for a State (SC List).
Once plurality and relative backwardness within and amongst the SC List has been factually established, sub-classification of the reservation quota for the SC List would be an exercise in securing substantive equality to the Scheduled Castes for the following reasons:
(i) It fits within the well-settled substantive equality framework of reservations in India ;
(ii) It will reconcile the inter-se social realities of the scheduled castes with the constitutional position;
(iii) It is based on the principle of qualitative inclusion and embodies the Rawlsian doctrine of ‘justice as fairness’; and
(iv) It secures transcendental as well as comparative justice for the members of the Scheduled Castes.
Chinnaiah defeats the scheme of emancipation envisaged under Article 341:
The expansive reading of Article 341 is extra-constitutional, as this Article only provides specific powers to the President and the Parliament regarding the SC List and bars amending/modification of the SC List by State legislatures – it does nothing more.
Chinnaiah conflates the inclusion/exclusion of a caste from the SC List (in other words, identification of a caste as a SC) with sub-classification within the already enumerated SC List. There is no constitutional prescription to treat the SC List specified with respect to a State as an indivisible, homogenous monolith. Article 341 is not a melting pot where identities are lost and something ‘new’ is created.
Article 341 envisages accommodation and not assimilation. Caste is a sociological fact; no caste becomes ‘underprivileged’ on account of inclusion in the SC List. Inclusion is only a de jure recognition of the de facto marginalisation of such caste.
The phrase ‘Scheduled Caste’, therefore, is only a legal fiction and an administrative nomenclature for the purpose of the Constitution, and birthmarks of caste are not obliterated on account of inclusion/exclusion from the SC List.
Most importantly, Article 341 envisages inclusion as well as exclusion from the SC List. This would mean that under the constitutional scheme, castes which have overcome social and educational backwardness, may be removed from the SC List of a State at the behest of the Parliament. Herein lies an implicit recognition that there will be a continuous mobility within the SC List, owing to the fact that the castes comprised in the SC List are dissimilarly placed. It therefore emerges that the scheme of emancipation under Article 341 is gradual and caste specific; the Constitution aims to achieve substantive equality one caste at a time, which would not be the case if the SC List were to be treated as an indivisible monolith.
To what is more, the very language of Article 341 also implies that reservation by the States cannot be a one-time exercise, as has been wrongly asserted in Chinnaiah. De-notification/exclusion of a caste from the SC List can only happen once such caste has achieved substantive equality, which would warrant positive interventions by the States under Articles 15(4) and 16(4) with respect to such caste. To this extent, there is a seamless interplay between Articles 15(4)/16(4) and 341 as they facilitate each other: Article 341 provides recognition of the caste by the Union, Articles 15(4) and 16(4) ensure substantive equality by various measures of the States as well as the Union, and then Article 341 again envisages exclusion/de-notification once the goal of substantive equality has been achieved.
Therefore, in Chinnaiah, the aspect of tinkering with the SC List under Article 341 has weighed so much with the Court that it has put the goal of achieving substantive equality at the back burner.
Who can sub-classify?
Chinnaiah does not take into account that reservation is always a matter of ‘subjective satisfaction’ of the State. To that extent, the State has to form an ‘opinion’ that a group requires intervention on the basis of quantifiable data with respect to backwardness (and in the case of Article 16(4), inadequate representation in public services).
From a plain reading of Article 16(4), it is apparent that it has two requirements. The group for whom the State is required to make provisions for reservations of appointments or posts have to be (i) a backward class of citizens; and (ii) not adequately represented in the services under the State. While it may be argued that the first level of ascertainment of backwardness is made by the President (and subsequently, the Parliament) under Article 341, the second level of enquiry regarding ‘inadequate representation’ is an obligation as well as the mandate of the State Government.
Indra Sawhney lays down quite clearly that the adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government.
If the SC List were to be treated as a monolith, as is endorsed by Chinnaiah, it would have the effect of rendering the second part of Article 16(4) as otiose. It would then amount to the State Government mechanically making provisions of reservations for the specified castes, without establishing whether such caste is also inadequately represented. It would also make the role of the State Government in so far as Article 16(4) is concerned redundant, when the State Government is required to independently ascertain which of the castes are inadequately represented, and then take steps to increase their representation in the State services.
Thus, State legislatures (and by extension, the State executive) have the requisite competence to do sub-classification within the SC List.
How should sub-classification be done?
Chinnaiah apprehends obliteration of certain groups from the SC List by expressing a fear that as a consequence of sub-classification, such groups may not be accorded any affirmative action at all.
To address this concern regarding complete exclusion of certain castes within the SC List from reservation, the limit of 50% reservation under ordinary circumstances as laid down in Indra Sawhney- which is now an integral part of the trinity of Articles 14, 15 and 16 of the Constitution- has to be applied in the case of sub-classification within the SC List also.
The 50% reservation rule in intra-group preferential treatment will balance the need to provide preferential treatment to the weakest groups and the interests of other castes enumerated in the SC List. In other words, the position of other castes enumerated in the SC List shall not be disturbed by providing a limited preference to some groups in view of their more disadvantageous position. This will eliminate any apprehension regarding reverse discrimination as preferential treatment will not happen at the cost of other groups within the SC List.