By Kitdor H. Blah
The Supreme Court in its judgment dated August 1, 2024 has ruled that SCs in the country are not a homogeneous class, and has allowed for sub-classification of SCs/STs for the purpose of reservation. The Supreme Court has done this in two ways – first, by overturning a previous Court ruling which said that the lists of SCs/STs as notified by the President represent a homogeneous class, and second, by providing evidence that SCs are not a homogeneous class.
Since the Constitution does not provide any criteria for identification of SCs/STs but they are deemed to be SCs/STs only by Presidential Order as per Articles 341 and 342, the Supreme Court had ruled in the past that this notification by the President created one homogeneous class of SCs or STs which is socially backward across the board. The present Court judgment says that while the President’s Order did create a distinct class of SCs or STs, yet this does not mean that this class is one homogeneous class. The Court then argued that there is evidence that SCs are not a homogenous class by two main aspects. First, that the degree of untouchability that the out-castes have historically faced has not been uniform. The Court stated that in the regions of present day Assam, Bihar and Orissa, the untouchability faced by the SCs may not have been to the extent that the SCs in the regions of Central India had faced. In the regions of present day Uttar Pradesh and Uttarakhand, untouchability was such that the higher castes shunned any physical contact or close proximity with the out-castes, while in Assam, it was more occupational, where the out-castes cannot be served occupationally, such as to be ferried across a river or to have his hair cut, by a higher caste.
The second aspect of the evidence provided by the Court that the SCs are not a homogenous class is that among SCs themselves, there is an internal social hierarchy such as between a Dalit priest and lower classes of Dalits, so much so that a Dalit priest may have more interaction with the higher castes than with the leather workers and scavengers in his own caste. This is what the Court calls “inter-se backwardness,” or internal backwardness among the SCs themselves. But since the Court states in para 173a of the judgment that educational backwardness is caused by social backwardness, we can therefore read “inter-se backwardness” to mean internal social discrimination. And this internal discrimination may be a causal factor in the inadequate representation of the lower classes of SCs in public services as noted in para 173c.
Having argued that the lists of SCs/STs do not represent a homogeneous class and that SCs are not a homogeneous class, the Court then argued that sub-classification of SCs for the purpose of reservation is thus allowed. However, the Court ruled that this sub-classification of SCs must be based on certain criteria. The first of course is that there must be demonstrable data that one caste is comparatively less backward than another; and the main data for this is that one caste is inadequately represented in public services as compared to another caste. The second criterion is that this comparative backwardness or inadequate representation of a caste must be demonstrated to have been caused by inter-se social backwardness or internal social discrimination among the SCs as stated in para’s 174 and 177.
This means that sub-classification is justified if the inadequate representation of a caste is a result of that caste being socially discriminated against by the other because of its group identity, such as according to occupation or untouchability. This comes back to the Indra Sawhney judgment which says that Article 16(4) speaks of social backwardness, and not merely economic or educational backwardness, because in the context of India, economic and educational backwardness is caused by social backwardness. The Indra Sawhney judgment also ruled that Article 15(4) made the social backwardness of the SCs and STs to be unquestionable. Therefore, according to the present Court judgment, and in line with the Indra Sawhney judgment, the sub-classification of SCs too for the purpose of reservation is justified if the comparative backwardness of a caste is due to social backwardness.
What then is the relevance of this Court judgment for the State of Meghalaya? Based on the above considerations from the judgment, it would not be appropriate to call the structure of the Meghalaya Reservation Policy a “sub-classification” because this would imply that the state has created different classes of STs/SCs based on inter-se backwardness or internal social discrimination. The breakup of quota in the Meghalaya Reservation Policy was based on the population of the reserved communities as stated in the policy itself. So this is a unique policy of the state that cannot be related to the sub-classification as defined by the present Court judgment. It is not equivalent to the reservation policy of the state of Andhra Pradesh, which created 4 different classes of SCs, namely, SC-A, SC-B, SC-C and SC-D, or to that of the state of Punjab, which gave preferential reservation to two particular castes. However, what may be relevant to the state in the present Court judgment is the ruling that the lists of STs and SCs as notified by the President represent a non-homogeneous class. This is relevant because the breakup of the reservation quota in terms of population implies that the STs/SCs are not homogeneous.
There cannot be a sub-classification in the state of Meghalaya either, because there is no social discrimination of any class based on group identity. If there is comparative backwardness in the state, it would not have been caused by inter-se social backwardness. Having said that, it is interesting that the base census data provided by the VPP to the expert committee shows the population ratio of the Khasis and Garos as 45% and 32% respectively, while the data provided by GHADC MDC Rinaldo K. Sangma shows the representation of Khasis and Garos in public employment as 61% and 35% respectively, which means that there is no inadequate representation or comparative backwardness between the two communities. When we consider also that the social backwardness of STs is based on their geographical isolation, we do not find any evidence of varying degrees of isolation among the STs in the state of Meghalaya or in the whole of the excluded areas of Assam, and especially not since Independence.
The second part of the Court judgment is regarding the exclusion of creamy layer in SCs/STs for the purpose of reservation. If the Court judgment regarding sub-classification of SCs/STs hinges on inter-se social backwardness of a class, the judgment regarding exclusion of creamy layer hinges on social advancement, i.e. that the members of a class have become so socially advanced because of economic and educational advancement, that their connection to the rest of the class, is broken off. However, the Court stated that in view of the unquestionable social backwardness of the SCs and STs, the parameters for exclusion may not be the same as that of the other backward classes. This means that economic advancement alone cannot be an adequate parameter. A certain monthly income for a member of the ST category in a city like Mumbai gives no social advantage as compared to someone with much lower income living in a smaller city or rural area. It may also be difficult to assess the income of agriculturists, although land holding may be taken into account. It may even be that the children of government employees living in the city may find it harder to acquire land as compared to agriculturists living in the rural area. The Court cited the example of children of IAS officers as being economically advanced. But our own Khasi and Garo communities have just had a discussion on not being able to produce IAS officers at present. Is such a creamy layer preventing the rest from becoming IAS officers? Will the exclusion of such creamy layers make it easier or harder for the community to produce IAS officers? Will it advance the community as a whole or deter it?
We should also look at the good social mobility in our community. We have never been a casteist society. We have been an egalitarian society and are very much a classless society. It is not necessarily true that a person living in a rural area must do worse in education than a person living in the city or that the son of a government employee must necessarily do better in education than the son of a farmer. Do we presently not have lecturers and professors who are children of farmers? We do. So, it is not so simple to create parameters for creamy layer in our societies, especially since the Court has stated that income alone cannot be the yardstick. It is hard to find evidence that those who have been employed in public employment have suddenly become so socially advanced, so as to form a separate class from the rest of society. Lastly, there was a news report in The Economic Times and Times of India which showed that a chunk of SC/ST jobs remain unfilled each year, which may mean that there is no creamy layer that is deterring the social advancement of the rest of society. But it definitely means that having a creamy layer will have a negative effect on the social advancement of the society of STs as a whole. Excluding the children of government employees the right to reservation may stunt the growth of the tribal societies as a whole and may even reverse it. It may not be wise to entertain it at this time.