In a choice launched on October 4, the Supreme Court docket rejected a set of evaluation petitions difficult its August 1 judgment affirming the constitutional validity of the sub-categorisation of the Scheduled Castes. Whereas the judgment itself factors to vital modifications within the modern discourse on reservation, the vehement criticism of outstanding commentators means that nothing has modified. In fact, it should be acknowledged that the Court docket’s personal 2022 resolution ratifying the so-called Economically Weaker Sections (EWS) reservation has “utilized dynamite” (to adapt a well-known phrase) to its document of principally progressive jurisprudence on social justice. The sub-categorisation verdict salvages a number of the doctrinal ruins that stay.
The 6-1 majority verdict by a seven-judge constitutional bench is a authorized landmark that units apart the Supreme Court docket’s 2004 verdict in E V Chinnaiah vs. State of Andhra Pradesh (2000), the place 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 considerations the “deemed fiction” by which authorized entities are invented. In a lucid and compelling argument, Justices D Y Chandrachud and Manoj Mishra set up that, when it creates the authorized class of the “Scheduled Castes”, Article 341 of the Structure will not be actually bringing into existence a brand new “caste”. Reasonably, it’s deciding on sure preexisting castes (or sections thereof) for membership on this new class. Due to this fact, if Article 341 — and by extension Article 342 on the Scheduled Tribes — are to be thought-about “deeming fictions”, they are often so thought-about solely as acts of choice slightly than creation. On this respect alone are these Articles granted immunity from government interference — solely Parliament performing by the President can alter the composition of the Schedules of chosen castes and tribes. Nevertheless, so long as it doesn’t alter the composition of the Schedules, the manager, whether or not of the states or the Centre, is free to investigate into, and search to redress, any inner inequalities among the many chosen castes, together with implementing schemes to additional the general intent of the Articles, which is to advertise substantive equality amongst all residents.
If that is the authorized coronary heart of the judgment, 4 options of its scaffolding are equally vital. First, it enunciates the precept that subcategorisation, like reservation itself, should be seen as a way of selling substantive equality slightly than an exception to it. Second, it insists that the necessity to keep effectivity in administration — used prior to now to limit reservation — should be interpreted in ways in which foster equality and inclusion. Third, it rejects the trail taken by the 2022 EWS judgment (which excluded the SC, ST and OBC castes from EWS reservation even when in any other case eligible) by stipulating that subcategorisation should not have the impact of excluding the socially and educationally superior castes throughout the SC. Lastly, and maybe most consequentially, the judgment makes it necessary for subcategorisation schemes to supply empirical proof of fabric inequalities throughout the Scheduled Castes, particularly their disproportionate illustration in authorities providers. The judgment additionally takes the welcome additional step of together with a bit on “Historic and empirical proof of inter-se backwardness throughout the SCs” the place it discusses the heterogeneity of the SC record when first created in 1936, in addition to modern research that doc discrimination (together with “untouchability”) throughout the SCs.
It’s this collected proof of inner differentiation, inequality, and discrimination that must be on the centre of public debate round subcategorisation. Sadly, this isn’t occurring. It’s true that previously — notably within the Nineties storm over OBC reservation — inner differentiation was used to oppose reservation itself. However to see the subcategorisation verdict as enabling one thing comparable is to disregard the vastly totally different context right now. In any case, it’s this modified context that the Supreme Court docket is responding to by reversing its personal resolution in Chinnaiah twenty years in the past.
In reality, the shoe is on the opposite foot. It has been significantly distressing to see precisely the identical arguments that higher caste-vested pursuits invoked in opposition to the thought of reservation being unthinkingly deployed to oppose subcategorisation. As repeatedly identified, offering financial help and scholarships (as an alternative of reservation) doesn’t deal with the specificity of caste discrimination and denies the fitting to ample illustration and share in public sources. The argument that sub-quota seats received’t be crammed for lack of certified candidates is one which, if utilized to reservation within the Nineteen Fifties, would have strangled it at delivery. It’s only a number of a long time after they had been first instituted that reservation quotas within the larger ranges of the forms have begun to be crammed. Different arguments — just like the alleged absence of information, the shrinking public sector and varied conspiracy theories — are merely prevarications that refuse to handle the proverbial elephant within the room: The truth of rising inequality and persevering with discrimination throughout the Scheduled Castes.
Addressing this actuality is not going to be simple, because the closing sections of Justices Chandrachud and Mishra’s judgment be aware. Clear, evidence-based and context-specific standards for subclassification should be developed; its limits should be labored out, and the modalities of attainable judicial evaluation for guaranteeing that it meets the meant constitutional targets should be explored. Although tough, addressing these considerations will not be inconceivable. The historical past of profitable struggles for subcategorisation in Punjab, Tamil Nadu and Andhra Pradesh exhibits the best way. In Andhra Pradesh, a cross-section of the general public — intelligentsia, abnormal individuals and political events — got here to a consensus to implement subcategorisation.
It’s our collective duty to construct a broad consensus in order that reservation could also be shared among the many Scheduled Castes primarily based on rules of social backwardness and illustration. As B R Ambedkar realised so acutely within the Thirties, the “depressed lessons” had been an particularly susceptible minority throughout the bigger grouping of minorities. Right now, discriminated minorities throughout the SCs are much more susceptible. The Scheduled Castes should stay united to safe their rights. Regardless of its difficulties, the one sustainable unity is one primarily based on justice.
Satyanarayana is with the English and Overseas Languages College, Hyderabad. Deshpande is affiliated with the Institute for Social and Financial Change, Bengaluru. Views are private
