Context:
This article is based on the news “How the legal debate over sub-categorisation among SCs has evolved over the years” which was published in the Indian Express. The Union government has established a panel of secretaries led by the Union Cabinet Secretary to categorize Scheduled Castes (SCs) into A, B, C, and D groups.
Sub Categorisation Within Castes: Background
- This comes in the backdrop of Prime Minister’s promise to look into the demand for sub-categorisation of SCs as raised by the Madiga community.
- States Demand for Separate Quota: The Union government received representations from state governments, such as Andhra Pradesh, Telangana, and Karnataka, advocating for the sub categorisation of Scheduled Castes (SCs), including Madigas.
Madiga Community:
- The Madiga community constitutes at least 50% of the total Scheduled Castes in Telangana.
- According to the 2011 Census, SCs form a little over 15% of the State’s population.
- It has expressed concerns that the benefits, including that of reservation, meant for the SC category had been cornered by the Mala community, with the Madigas being left out.
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- They demand a separate quota for some castes within the SC quota of 15% to ensure that the benefits are equitably distributed among all castes.
- Hearing by Constitution Bench: The matter is at present under consideration of a seven-judge bench of the Supreme Court.
- Power of sub-classifications among SCs: The Supreme court will decide if states have the power to create these sub-classifications when providing reservations or if such power is vested only with the President.
- Constitutionality of sub-categorization: It will focus on the constitutionality of sub-categorization among Scheduled Castes (SCs) to address the reservation in jobs and education designated for them.
- However, the government panel will explore alternative approaches to address their grievances.
About the Committee
- Composition of Committee: The committee comprises secretaries of the Ministry of Home Affairs, Department of Personnel and Training, Ministry of Tribal Affairs, Department of Legal Affairs and Department of Social Justice and Empowerment.
- Chaired by: Union Cabinet Secretary
- Mandate of Committee:
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- To assess and devise a strategy for the fair distribution of benefits, schemes, and initiatives for the most marginalized communities among the 1,200 Scheduled Castes nationwide.
- To address the overshadowing of interests of SCs like Madigas and other such groups by relatively more forward and dominant ones.
What is Sub Categorisation within Caste?
- About: It refers to further classifying broader caste groups into sub-groups based on various criteria.
- Objective: It attempts to address the diversity within larger caste groups and provide targeted benefits to specific sub-groups that may be perceived as socially and economically disadvantaged.
- Demand for Sub Categorisation of Caste: Over time, some castes and communities have sought recognition and specific privileges based on their unique characteristics, historical backgrounds, or socio-economic status.
What is the Presidential List?
- The Central List of Scheduled Castes and Tribes is notified by the President under Articles 341 and 342 of the Constitution.
- The consent of the Parliament is required to exclude or include castes in the List and the states cannot unilaterally add or pull out castes from the List.
- As per Article 341, those castes notified by the President are called SCs and STs.
- Variation Across States: A caste notified as SC in one state may not be a SC in another state.
- These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.
- No community has been specified as SC in Arunachal Pradesh and Nagaland, and Andaman & Nicobar Islands and Lakshadweep.
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Need for Sub Categorisation within Castes
- Unequal Opportunities: The policy of protective and compensatory discrimination leads to disproportional representation of sub-castes in employment, education, and legislature.
- In Tamil Nadu, a 3% quota within the Scheduled Caste quota is accorded to the Arundhatiyar caste, after Justice M S Janarthanam report stated that despite being 16% of the SC population in the state, they held only 0-5% of the jobs.
- Graded Inequalities: There have been graded inequalities among SC communities and even among the marginalized, some communities have less access to basic facilities.
- The relatively more forward communities among them have managed to avail benefits consistently while crowding the more backward ones out.
- Overcoming Hierarchy: The SCs category is not homogenous and comprises a wide range of communities with distinct cultural, social, and economic characteristics.
- According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
- Some SC communities may have made progress in education, employment, and socio-economic development, while others continue to face significant disadvantages.
- Securing Social Mobility: The reservation policy is ineffective in providing benefits to every sub-caste group at a uniform level which resulted in competition and conflict between various sub-caste groups of Scheduled Castes.
- The acquisition of political power, educational improvement, and occupational change could become the major assets for Scheduled Castes’ upward mobility, which acts as a major factor for the demand for sub-categorization.
- Ensuring Social Justice: Social justice emphasizes ensuring that historically marginalized communities receive fair and just treatment and that their specific concerns are adequately addressed.
- Sub-categorization allows for a more targeted approach in addressing the specific vulnerabilities and needs of particular SC sub-groups.
- Ensuring Equitable Distribution of Resources: Sub-categorization could help avoid the concentration of benefits in certain communities while others remain underserved.
- For this, States have tried to divide the scheduled caste quota on the grounds that caste is a form of graded inequality.
- Punjab created an order of preferences in 1975 within scheduled castes for recruitment.
Legal Battles for Scheduled Caste Sub Categorisation
- 1975: Sub-Categorisation by Punjab Government
- Punjab government divides its 25% SCs reservation into two categories:
- Reserved for the Balmiki and Mazhbi Sikh communities (most economically and educationally backward communities).
- Thus, they were to be given first preference for any reservations in education and public employment.
- Rest of the SCs communities, which didn’t get this preferential treatment.
- 1996: Formation of Justice Ramachandra Commission
- The Andhra Pradesh government formed the Commission.
- Recommendations: The commission proposes sub-categorisation of SCs in the State based on evidence that some communities were more backward and had less representation than others.
- 2000: Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act:
- The Andhra Pradesh government introduced the Act.
- The law contained an expansive list of scheduled caste communities identified in the state and the quota of reservation benefits provided to each of them.
- 2004: E.V. Chinnaiah v State of Andhra Pradesh
- In 2004, a five-judge constitution bench struck down the act for being violative of the right to equality.
- Arguments given by the Court: The Court held that the sub-classification would violate the right to equality by treating communities within this category differently and the SC list must be treated as a single, homogenous group.
- Dr. Kishan Pal v. State of Punjab: In this case, the Punjab & Haryana High Court struck down the 1975 notification.
- 2006: Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act
- The Punjab government attempted to bring back the law by passing this act.
- 2010: Appeal to Supreme Court
- The Punjab government subsequently appealed to the Supreme Court(SC) against the High Court’s decision, contending that the SC’s 2004 judgment had incorrectly concluded that sub-classification within the Scheduled Caste quota is not permissible.
- 2014: Davinder Singh v State of Punjab.
- The SC referred the appeal to a five-judge constitution bench to determine if the E V Chinnaiah of 2004 required reconsideration since it needed an inquiry into the interplay of several constitutional provisions.
- Interpretation of the Constitution requires a bench of at least five-judges of the Supreme Court.
- 2018: Jarnail Singh v Lachhmi Narain Gupta
- In this case, the Supreme Court upheld the concept of “creamy layer” within SCs too.
- The ‘Creamy layer’ concept puts an income ceiling on those eligible for reservations.
- While this concept applies to Other Backward Castes (OBC), it was applied to promotions of SCs for the first time in 2018.
- Matter is Pending Before 7 judges Bench: As both the Davinder Singh bench and the E V Chinnaiah bench consisted of five judges, the matter is now being heard by a larger seven-judge bench as the decision of a larger bench takes precedence over that of a smaller bench.
- Identification and Criteria: Determining the criteria for sub-categorization can be challenging. Parameters such as socio-economic status, educational attainment, or regional factors may be considered, but reaching a consensus on these criteria can be difficult.
- Supreme Court rulings in 1976 and 2005 empahsizes that ‘SCs are not castes, they are class’ and their protection is based on addressing untouchability, not other factors.
- Data Accuracy and Availability: Concrete population numbers of each community and sub-community and their respective socio-economic data are necessary to decide how castes can be categorized, how much percentage should be given, etc.
- Obtaining accurate and up-to-date data on the socio-economic status of different Scheduled Caste communities is a challenge.
- Potential for Intra-group Disputes: Sub-categorization may lead to internal divisions and disputes among SC communities.
- Some groups may feel marginalized from the benefits, leading to social tensions within the broader Scheduled Caste category.
- For instance, backwardness among SCs also draws from the practice of untouchability, and sub categorisation may sharpen differences within and bring in competitive affirmative action.
- Possibility of Fragmentation: There is a risk that sub-categorization might lead to the fragmentation of the SC community, diluting their political and social identity.
- This could weaken their collective strength in advocating for their rights.
- Quota May Not be Enough: The National Commissions for Scheduled Castes and Scheduled Tribes had opposed the move, arguing that just setting aside a quota within the quota would not be enough.
- They have argued that given the disparity, even if posts were reserved at higher levels, these most backward SCs would not have enough candidates.
- Thus, it needs to be made sure that the existing schemes and benefits reach them on a priority basis.
Sub Categorisation Policy Being Practised Across India
- Tamil Nadu: In 2009, it made a special reservation provision for employment and education for Arunthathiyars within the 18 per cent reservation for SCs in the state.
- Bihar: In 2007, it created a group called ‘Mahadalits’ (most backward Dalits) which excluded the Chamar, Dhobi, Paswan and Dushad castes among 22 Scheduled Castes.
- Later in 2015, all castes were declared Mahadalit except Paswans.
- Bihar gave welfare scheme priority to Mahadalits and did not tamper with Constitutional reservations.
- Haryana: In 2020, it split reservations in admissions through legislation by creating a new group of SCs called “Deprived Scheduled Castes”.
- This group included 36 Scheduled Castes, leaving out the Chamar and Ravidasia communities.
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Way Forward
- Exploring Alternatives to Introduce Sub-Categorisation: The Union government needs to explore legal options for the same.
- For instance, the Attorney General of India (AGI) had opined that a constitutional amendment could be brought in to facilitate this.
- The NCSC and NCST had opined that Article 16(4) of the Constitution already provided for States to create special laws for any backward classes it felt were under-represented.
- The Justice Usha Mehra Committee in its 2008 report recommended the inclusion of Clause (3) in Article 341 through a constitutional amendment empowering state legislature to enact reclassification of the Scheduled Caste category subject to Presidential confirmation.
- Data Collection and Analysis: According to legal experts, the Constitution does not prohibit the Parliament from sub-categorising SCs or STs.
- However, the government needs to ensure comprehensive and accurate data collection on the socio-economic conditions of different Scheduled Caste communities.
- This can be the only empirical basis to justify sub-categorisation of benefits and evaluating extra share of benefits required by each community.
- Criteria Development: Develop transparent and inclusive criteria for sub-categorization, considering factors such as socio-economic status, educational attainment, and regional disparities.
- The Andhra Pradesh government in 1996 formed a Commission of Justice Ramachandra Raju, which recommended sub categorisation of Scheduled Caste in the State based on evidence that some communities were more backward and had less representation than others.
- Following the Middle Path: Strike a balance between recognizing the diversity within the Scheduled Caste category and maintaining the overall unity of the community.
- Policies need to address the specific needs of sub-groups without causing fragmentation or weakening the collective strength of the SC community.
About NCSC and NCST
- About: The NCSC is a constitutional body that was created to safeguard Scheduled Castes from exploitation and to advance and defend their interests in social, cultural, educational, and economic spheres.
- Original Constitution: Article 338 of the constitution originally allowed for the appointment of a Special Officer.
- The special officer was designated as the Commissioner for Scheduled Castes and Scheduled Tribes.
- Amendment to Article 338: The Constitution’s Article 338 was amended by the 65th Amendment Act of 1990, which created a multi-member National Commission for Scheduled Tribes (ST) and Scheduled Castes (SC) in place of the previous one-member panel.
- 89th Amendment Act, 2003: Article 338 was amended, and the erstwhile National Commission for SC and ST was replaced by two separate Commissions from the year 2004 which were:
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