Intra-group caste variances, equality and the Court’s gaze

Soon, a sevenjudge Bench of the Supreme Court of India will deliver its judgment in

State of Punjab vs Davinder Singh, on a question of law that carries with it enormous significance for the future of affirmative action and reservations under the Constitution. Can State governments make a subclassification within the proportion prescribed to Scheduled Castes and Scheduled Tribes in recruitment to public employment? In other words, by making a special allowance for certain groups that are more backward than others, are regional units encroaching on a domain that remains within Parliament’s exclusive preserve?

Studies and data have shown that although they have been bracketed into two homogenous categories, as Scheduled Castes (SC) and Scheduled Tribes (STs), within the groups there are differing levels of development; and some castes are more discriminated against than others. In redressing this position, should State governments not be afforded the power to recognise intragroup variances? The judgment in

Davinder Singh will seek to answer this. And, in doing so, it might well serve to provide much needed clarity to an area of law that has long required mending.

A circular in Punjab in 1975

The issues at stake in the case emanate out of a circular notified by the Government of Punjab in 1975. The circular stipulated that out of the total seats reserved for SCs in the State, 50% of the vacancies would be offered to Balmikis and Mazhabi Sikhs. The other half would be open to all the remaining groups within the SC category. In July 2006, the Punjab and Haryana High Court struck down this notification, following a judgment of the Supreme Court, in 2004 in E.V.

Chinnaiah vs State of Andhra Pradesh.

In Chinnaiah, a fivejudge Bench quashed the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, on the ground that it offended Article 341 of the Constitution. This provision allows the President of India to notify a list of SCs for each State, and stipulates that the list can only be modified by Parliament.

The Andhra Pradesh law sought to carve four distinct categories out of the President’s list and granted to each category a separate quota based on its inter se backwardness. The Court found that the State government had no power to tinker with the list because it was clear on a bare reading of Article 341 that such authority vested only with Parliament. The judgment also pointed to B.R. Ambedkar’s speech in defence of the presidential list, in which he had warned that if

State governments were allowed to amend the list, we ran the risk of the exercise partaking purely political considerations.

Even though its 1975 circular was struck down, the Government of Punjab remained persistent. It enacted a new law, i.e., the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, which once again provided first preference to Balmikis and Mazhabi Sikhs. The High Court declared this law too to be unconstitutional. But in August 2020, sitting on appeal over the decision, the Supreme Court doubted the correctness of its earlier verdict in Chinnaiah, prompting the creation of a sevenjudge Bench and a fresh hearing on the issues raised.

In questioning the extant view, the Supreme Court cited its judgment in Indra Sawhney vs

Union of India, which arose out of the Mandal Commission’s report. There, a ninejudge Bench had held that subclassifications within socially and educationally backward classes (OBCs) for services under the government was permissible. The majority endorsed Justice Chinnappa

Reddy’s judgment in K.C. Vasanth Kumar & Another vs State Of Karnataka (1985). In it, he had ruled that while the propriety of making subclassifications might depend on the facts of each case, “we do not see why on principle there cannot be a classification into backward classes and more backward classes, if both classes are not merely a little behind, but far far behind the most advanced classes. In fact such a classification would be necessary to help the more backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes might walk away with all the seats, just as, if reservation was confined to the more backward classes and no reservation was made to the slightly more advanced backward classes, the most advanced classes would walk away with all the seats available for the general category leaving none for the backward classes.”

Equality and castes

Beyond this, at the root of the matter is the Constitution’s collective commitment to equality. Contained in Articles 14 to 16, which can be read together as a code, is a promise of substantive equality. This guarantee recognises that individuals, throughout India’s history, have been discriminated against based on their caste. Therefore, our constitutional vision demands that we be mindful of group interests in striving to ensure equal treatment. Under this model, reservations must be seen not as a measure in conflict with — and in exception to — the basic notion of equality, but, instead, as a means to furthering and entrenching that goal.

Indeed, since its judgment in

(1975), the Supreme Court has, at least in theory, appeared to acknowledge that governments not only possess the power to make reservations — and correct historical wrongs — but also have a positive duty to ensure substantive equality. Viewed thus, if the Government of Punjab were to find on the basis of its studies — and it certainly has in this case — that its existing measures of reservation have not adequately reached Balmikis and Mazhabi Sikhs, then it is constitutionally obligated to ensure that these measures are corrected.

If Article 341 is seen as constituting a bar against subclassification, then that prohibition would run athwart the Constitution’s equality code. In any case, even on a plain reading, Article 341 does not impose such a prohibition. It merely proscribes State governments from including or excluding castes from the President’s list of SCs. Where States provide special measures to certain castes that are within this list, they do not act to include or exclude other castes from the list. Those castes will continue to be entitled to the State’s general provisions of reservation.

On subclassification

In the case of the Punjab law, it decidedly does not modify the President’s list. It merely accounts for inter se backwardness within that list by providing for a greater degree of preference to Balmikis and Mazhabi Sikhs. This subclassification is also in keeping with the Constitution’s timehonoured theory that reasonable classifications are permissible to ensure that equality is achieved.

Once we see the list of SCs and STs not as homogenous categories, but as comprising different castes with differing levels of development, a subclassification will have to be judged on its own merits. That is, the Court will only have to examine whether Balmikis and Mazhabi Sikhs are intelligibly differentiable from other castes within the President’s list, and whether the grant of preferential treatment to them — and the extent of such grant — bears a rational nexus with the law’s larger objective of ensuring fair treatment.

It is time the Supreme Court takes seriously what it recognised in N.M. Thomas — that governments have both a power to make reservations and a duty to ensure that the constitutional dream of equality is achieved. To that end, any authority vested in the States to provide for special measures to those castes within SCs and STs who are most discriminated against must be seen as a way of making real the idea of equal opportunity.

The case of ‘State of Punjab vs Davinder Singh’ highlights the point that within SCs and STs, there are differing levels of development, with some castes more discriminated against than others