On 1st August 2024, a 7-judge Constitution Bench of the Supreme Court delivered a 6:1 majority judgment upholding the legality of sub-classification of Scheduled castes-Scheduled Tribes for the purposes of reservation. No carte blanche, though, is granted by the Court. The Court has circumscribed these powers by mandating the legal contours for its exercise – sub-classification is permissible only on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State, seats cannot be allocated for every caste separately, and, the State cannot merely act on its whims or as a matter of political expediency. Ultimately, this implies the necessity of a thorough, scientific, and transparent caste census that will provide data not only on internal economic and social inequalities among Dalit-Adivasi communities, but also across and within all caste classifications, without which it will be difficult to move forward.
The judgement has brought to the fore a long-standing debate regarding the ways and means to achieve social justice and equality. While some argue that sub-classification is a long overdue method for ensuring that reservations reach those who need it most, others suggest that sub-classification is a politically divisive strategy that dilutes the historical injustices and ongoing indignities faced by Dalits and Adivasis, and undermines their sense of collective identity, and pave the way for their co-optation by majoritarian politics. Both these positions are however united by a shared belief that any alterations in the manner of implementation of reservations must be done with a view to strengthen, and not weaken, the process of empowerment of marginalized communities.
While giving state governments the power to design sub-quotas, the judgement has gone beyond the scope of the case to suggest the applicability of ‘creamy layer’ concept within Scheduled Caste reservation. There was neither the need nor the mandate for the Court to wade into this, since it was not the issue before the Court. Moreover it undermines the essence of affirmative action aimed at social justice, while ignoring the basic fact that Dalits face a more egregious form of social backwardness when compared to the other historically marginalised communities, and caste is not necessarily altered by economic status.
Vedic Hinduism is structured by the four-fold varna system of social classification ascribed by birth, with jatis being the everyday manifestation of caste hierarchy. Anyone who argues otherwise is either uninformed about Vedic Hinduism, or for political purposes seeks to sanitize it. Even so, one of the judges in their concurring opinion, has penned rather disturbing views on the supposed origins of caste. Referring to the Bhagwad Gita and Skanda Purana he argues that there was no caste system in ancient India since the duties of Brahmins, Kshatriyas, Vaishyas and Shudras were distributed according to their qualities (guns) and nature (and not by birth). These alarmingly ahistorical comments reflect a deeply problematic Brahmanical mindset that has been thoroughly debunked by Dr. Ambedkar and legions of scholars. Moreover, they belie a majoritarian political agenda that seeks to ignore the inequities that are embedded not just in the scriptures and practices of Vedic Hinduism, but also in the daily practices of all religions in the country.
The same judge also suggests that the policy of reservation requires a fresh re-look and that reservation should be limited only for the first generation or one generation. These comments betray a poor understanding of reservations as a key aspect of affirmative action, meant to ensure participation of Scheduled Castes and other marginalized and oppressed sections, in all walks of life. Furthermore, it ignores the fact that Scheduled Caste reservation as an affirmative action is meant to counter and mitigate the continuing reality of social exclusion and marginalization facing India’s Dalit-Adivasi population across both rural and urban settings and across multiple generations. To casually remark that a historical marginalization of centuries and generations can be corrected within one generation is insensitive and unbecoming of persons tasked with the responsibility of upholding the constitution. There is a gross disregard of Indian reality where Scheduled Caste students and scholars continue to face atrocities even in reputed universities and other centres of higher education like IITs, IIMs and medical and engineering colleges.
Aggressive privatization and the shrinking of the welfare state under the fascist Modi regime, has drastically reduced the opportunities for state education and employment. This is coupled with the conscious policies of the Government of withholding recruitment indefinitely, the inadequate implementation of existing provisions of SC/ST reservations in jobs and education, the lack of consideration of the possibility of reservations in the private sector, and a general weakening of policies promoting equality and social justice. It is only a matter of time before these opportunities completely dry up, as is the intent of this regime.
It is the need of the time that the tactics of Not Found Suitable (NFS) to keep reserved posts unfulfilled is done away with proper legal-political intervention. The Bihar Caste Survey had brought out the acute marginalisation of oppressed communities even after 77 years of independence. There is a need to rethink about the 50 percent limit to reservation and take necessary steps to expand the scope of reservation and ensure reservation in the private sector as well.
Clearly the constitutional provision of reservation as a tool for social justice and equality, now the constitution itself, is under increasing attack, and we need greater unity and solidarity among all marginalised, oppressed and deprived sections of the society.
It is the task of all forces striving for an egalitarian society to ensure that this judgement does not lend itself to promoting more division and rivalry among the oppressed and the deprived and serving the divide-and-rule strategy of the powerful and the privileged to reinforce their social and economic domination, but rather strengthens the collective fight against social exclusion and marginalisation, upholding the principles of social justice and equality.
