Epoch-making verdict of Supreme Court: Subcategorising SCs remains difficult

The apex court's ruling in the SC categorisation case (State of Punjab Vs Davinder Singh in CA 2317/2011) ends the two-decade-old debate over whether the state can categorise Scheduled Castes based on levels of differential development.

The AP Act and Usha Mehra Commission
The argument began with the Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000, which formed 4 sub-categories of the 59 Scheduled Castes to guarantee equitable reservation benefits.


It distributed 15% SC reservations as follows: SC-A: 1%, SC-B: 7% (with Madiga caste), SC-C: 6% (with Mala caste), SC-D: 1%. Though upheld by the AP HC, the SC quashed the legislation in EV Chinnaiah case (Justice Santosh Hegde) on the grounds that the state legislature is not competent to change the SC list and that SCs are a homogenous group historically victimised by untouchability.

The Union Government established the Usha Mehra Commission to explore the constitutional, statutory, and legal implications of sub-categorizing Scheduled Castes in Andhra Pradesh at the request of the AP Assembly. All quota advantages went to a few castes, leaving the majority of the Scheduled Castes out in the cold, according to the Commission (2008). The Commission suggested adding clause (3) to Article 341 of the Constitution to subdivide Scheduled Castes.

The Union government sought state input on the report. Fourteen states opposed sub-categorisation (Gujarat, Odisha, Kerala, West Bengal), 7 supported it (AP, Telangana, Karnataka, Punjab, Haryana), and most importantly (5) states with nearly 50% of the SC population -- Bihar, Maharashtra, Rajasthan, Tamil Nadu, and Uttar Pradesh-were undecided. States and Union territories have different social, educational, and economic realities. Thus, what applies to Andhra Pradesh cannot apply to other states.

Epoch-making verdict
The Supreme Court order is historic for three reasons: It is now clear that Presidential Notifications under Article 341(1) of the Constitution can distinguish scheduled castes.

The differentiation must be rational and supported by facts. The data should show that the caste receiving better treatment is under-represented.

Scheduled Castes and Tribes will follow the creamy layer principle, although with different requirements than OBC.

Implications
The judgment reiterates the fact that each caste has a history of its own, though all of them have faced the severe social discrimination and untouchability. For example, whereas the Mala community has been agricultural labourers, the Madigas worked on the leathers. Both these communities faced centuries of discrimination, exclusion and unspeakable atrocities. But for the cruel social discrimination, they have little in common, not even inter-marriages. Whereas the Malas, due to their more progressive nature have taken to education and occupied high offices, the Madigas remained imprisoned in their profession devoid of education and have been largely in abject poverty. An opportunity will now open up to make special or preferential provision for such communities for benefits of reservations.

There has to be a scientific survey of the representation of these communities in the public service and other benefits of reservations. This is an onerous task, since the survey has to prove the extent of benefits which each community has taken so far. Each state has to conduct this study at their level duly following research methodology. This would also strengthen the demand for a comprehensive socio-economic caste census.

Categorization of SCs is not possible at the national level since the scenario is different in different states. The fact that majority of the states are not willing for sub-categorisation of the SCs shows that the differentiation experienced in AP may not be the case in MP or UP. So, the initiative for sub-categorisation would shift to the State Governments, although it would still be the power of Parliament which can do the sub-categorisation, and not the State Assemblies.

Most importantly, exclusion of the 'creamy layer' from the SC reservations is bound to result in agitations. This is because the basis for categorizing some communities as SCs is due to the social exclusion and NOT for economic backwardness. This will emerge as contentious issue even if the sub-categorisation is settled.

Legal road blocks are now cleared, but the path for sub categorisation of SCs, is long and arduous.

The writer is ex-Union Secretary, Social Justice and Empowerment