A 5-judge Constitution Bench of the Supreme Court reopened the debate on quota within quota for SCs and STs by supporting their sub-classification to ensure equality in the upliftment of all within the marginalised community. Disagreeing with another SC verdict on the same subject, the case was referred to a larger bench comprising of 7 judges or more.
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What is the recent SC observation on quota within quota?
- A five-judge constitution bench disagreed with 2004 SC verdict in EV Chinnaiah case, which ruled against giving preferential treatment to certain sub-castes within the Scheduled Castes
- It said that state legislatures could make laws to give preferential reservations to sub-castes within categories when it is empowered to give reservations for certain sections of the community.
- It held that sub-classification would not amount to the tinkering of Presidential Order under Article 341 of the Indian Constitution.
- This is in response to an appeal against the Punjab and Haryana High Court verdict (based on 2004 SC verdict) that had struck down Section 4(5) of the Punjab Scheduled Castes and Backward Castes (Reservation in Services) Act, 2006 by calling it unconstitutional.
- Section 4(5) of the Act created a preference in favour of Balmiki and Mazhbi Sikhs from the 50% quota already reserved for the SC communities in case of direct recruitments.
Why did the SC refer the issue to a larger bench for the decision?
- While the 5-judge bench ruled in favour of providing preferential treatment to certain SCs over others in order to ensure equal representation of all SCs, it referred the issue to a larger Bench to decide.
- This is because a Bench of equal strength cannot overrule a previous decision.
- In both the 2004 case and the recent one, a 5-judge bench made the ruling.
- Thus, a larger Bench, comprising of 7 judges or more, whenever it is set up by the Chief Justice of India, will reconsider both the judgements.
What are the constitutional provisions involved in this issue?
- The larger bench will look to interpret Articles 14 (equality before law), 15, 16, 338, 341, 342 and 342A of the Constitution.
- Articles 15(4) and 16(4) empowers the government to make special provisions for reservations in admission in higher academic institutions and appointments for the marginalised communities that are inadequately represented in government posts.
- Article 338 provides for the constitution of a National Commission for Scheduled Castes to provide recommendations on the measures that are to be taken by the Central or state governments for the Scheduled Castes.
- Article 341 empowered the state to notify the “castes, races or tribes or parts of or groups within the caste, races or tribes” that will be considered as Scheduled Castes in a state or a Union Territory. For states, the President is required to consult with the Governor before the issuance of notification.
- As per Article 341(2), the Parliament can make a law to include or exclude any caste or tribe from the Presidential List.
- Similar provisions are made for the Scheduled Tribes under Article 342 and socially and economically backward classes under Article 342A
What is the 2004 SC verdict on quota within quota?
- In EV Chinnaiah case, a five-judge bench considered the validity of an Andhra Pradesh law that further divided a list of SCs into 4 categories – A, B, C and D.
- The 15% reservations for SCs in educational institutions and government jobs were further categorised as 1% for Group A, 7% for Group B, 6% for Group C and 1% for Group D.
- The Andhra Pradesh government had enacted this law based on the argument that the states have the power to legislate on the fields of education and reservation in admission as they are within its legislative domain.
- Supreme Court, in 2004, rejected this argument and held this law to be unconstitutional.
- It said that any further classification within the SC list notified by the President under Article 341 would amount to tampering with the notification.
- It held that the Presidential list is “homogeneous” and said that only the Parliament can exclude/include a caste or a part or group of castes from this list.
- It deemed sub-classification as a violation of Article 14 of the Constitution because it would be equivalent to discrimination in reverse.
What are the arguments for quota within quota?
- It is argued by the state governments that within the Scheduled Castes, some remain highly underrepresented when compared to other Scheduled Castes.
- It is found that in most quotas, the majority of the portion is held by the SC/ST groups that have relatively stronger educational and socio-economic backgrounds.
- Sub-quota for those not benefiting from the quota ensures that even the most backward of the SC/STs will be provided with an equal opportunity like that of the other groups.
Can state governments decide on reservations?
- It is the duty of the State to eradicate inequalities of all forms.
- When the reservation creates inequalities within the reservation, the State must address it by making sub-classification and adopting a distributive justice method for equality of all.
- In the recent verdict, the top court held that it is the duty of both the Parliament and the State to uplift SCs, STs and socially and economically backward classes.
- According to the verdict, only inclusion or exclusion in the Presidential notification is by the Parliament.
- The state government, on the other hand, can to provide and distribute the reservation in an equitable fashion.
- The court held that the State government is empowered to provide reservation in the field of employment and education, noting that the Constitution does not bar states from ensuring equality.
- In the verdict, the court stated that quota within the quota system does not violate Articles 341, 342 and 342A as no enlisted caste is denied the benefit of reservation.
Which are some of the states that promoted quota within quota to address the issue of underrepresentation of some SCs?
- Tamil Nadu government has granted a 5% quota within the SC quota to the Arundhatiyar caste in response to the report by Justice M S Janarthanam that stated that despite being 16% of the SC population, this caste held only 0-5% of the jobs.
- Andhra Pradesh state government, in 2000, based on the Justice Ramachandra Raju’s findings, passed a law reorganising 57 SCs into sub-groups and split the 15% SC quota in educational institutions and government jobs in proportion to their population. This law was declared as unconstitutional by the apex court in 2004.
- Bihar, in 2007, had set up the Mahadalit Commission to identify the castes within SCs that were grossly underrepresented.
What is the Presidential list?
- While providing special provisions for the marginalised, the Constitution does not specify the castes and tribes that are to be termed as Scheduled Castes and Scheduled Tribes.
- This power is entrusted with the President of India.
- Article 341 of the Constitution states that those castes notified by the President are to be called SCs and STs.
- A caste notified as SC in one state may not be an SC in another.
- This variation is to prevent dispute as to whether a particular caste is granted reservation or not.
- As per an annual report by the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
- During this period, no community was specified as SC in Andhra Pradesh, Nagaland, Andaman and Nicobar Islands and Lakshadweep.
What is the creamy layer debate that had come up during the recent Supreme Court hearing?
- The creamy layer concept puts an income ceiling on those eligible for reservation.
- It can be traced back to the 1992 Indra Sawhney case, where a nine-judge SC bench, while upholding reservations for OBCs, ruled that ‘creamy layer’ among the backward class citizens must be excluded “by fixation of proper income, property or status criteria” by the Centre.
- It held that those who fall in the creamy layer would cease to be members of the backward class of citizens.
- In the 2018 Jarnail Singh judgement, the apex court held that creamy layer exclusion applies to SCs and STs as well. It also asserted that this does not amount to tinkering with the Presidential List under Article 341 and 342.
- The Centre sought a review of this verdict. The case is currently pending.
- Those backing the Punjab reservation law in the recent case argue that the preference given to the Balmikis and Mazhabi Sikhs is based on the principle of creamy layer.
- Considering this argument, the five-judge bench asked whether sub-classification would still amount to the tinkering of the Presidential list based on the SC judgements in Indra Sawhney and Jarnail Singh cases.
What is the criticism of the recent SC ruling?
- The decisions with regards to reservations are sometimes motivated by the need to appease one vote-bank or the other. The President’s List is intended to prevent such arbitrary changes.
- The current apex court ruling relied on the 2018 Jarnail Singh case to emphasise on the inequalities among SCs. Many argue that since this case is still pending in court, it cannot be relied upon as a precedent.
- In the Jarnail Singh case, the top court held that the objective for the reservation is to ensure that all backward classes are provided with equal opportunity and to not just a few getting all the coveted government services.
- The argument against the creamy layer ruling by the Supreme Court is that social and economic backwardness cannot be applied for SCs and STs since they still face the issue of untouchability regardless of their economic growth.
What can be the way forward?
- From the findings at the ground-level, it is evident that there is a dire need of help in the upliftment of those historically disadvantaged and prevent the economically well-off within these groups from cornering the benefits.
- Yet, the concept of untouchability and caste-based social differences still persist within the society, limiting the influence of economic upliftment of the marginalised.
- Therefore, the policies for upliftment must be done in a smarter fashion, in a way that ensures reservations are self-limiting.
- Since it is evident that higher education ensures higher income (regardless of caste differences) and better awareness about social issues, reservation should be based on the educational levels.
- For example, an individual, whose parents are graduates, should not be allowed to avail the reservations.
- This will allow those who are truly disadvantaged to use reservations.
- If these individuals are not able to avail the reservations because of their failure to make even the relaxed cutoffs, the government should take steps to ensure intensive coaching and scholarship for more backward groups within, not just SCs, STs and the OBCs, but also those in the higher-castes so that all are provided with equal opportunities to compete.
- Apart from these measures, awareness and sound education should be ensured to eliminate the issue of casteism within Indian society.
- Ensuring coexistence among different castes via innovative means can also play a pivotal role in the elimination of casteism in India.
The Indian Constitution envisages social transformation wherein all Indians are provided with equal opportunity regardless of their social and economic background. The special provisions for the backward classes are for ensuring that all of them grow socially and economically hand-in-hand. These objectives will not be achieved if only select a few of these classes to benefit from these provisions. Therefore, quota within quota based on the ground analysis of those being left out must be put in place for the inclusive growth of all.
Practice question for mains:
Does Sub-Classification within Scheduled Castes and Scheduled Tribes provide for equality in the upliftment of the marginalised in India? (250 words)