Layers within Creamy Layers: Disorienting Idea of How Dalits, Backwards and Tribes are Represented by Law

A bench headed by Justice Ashok Bhushan, which had reserved its verdict on the issue on August 18, will pronounce the judgement. (File photo of Supreme Court)

A bench headed by Justice Ashok Bhushan, which had reserved its verdict on the issue on August 18, will pronounce the judgement. (File photo of Supreme Court)

While moving the first amendment to the Constitution 1951, Dr BR Ambedkar had to reassert reservations and insisted on understanding and including Article 46 in the jurisprudence.

When we all learnt about Constitution back in high school, we understood that any aspect of law has to be in its letter and spirit. But the jurisprudence on Constitutional framework on reservations, as it evolved ever since the first anti-reservation judgment in 1951 by a full-court of the Supreme Court, in The State Of Madras vs Srimathi Champakam Dorairajan Case, our courts have started limiting interpretations to certain words of an Article, than the idea of the whole Constitutional framework.

While moving the first amendment to the Constitution 1951, Dr BR Ambedkar had to reassert reservations and insisted on understanding and including Article 46 in the jurisprudence.

In the latest judgment, 70 years later in the case of State of Punjab vs Davinder Singh, the Supreme Court tried to reopen the idea of quota within quota for the Scheduled Castes. In this case, a five-Judge Constitution Bench of the Supreme Court on 27 August 2020 a passed an opinion on another five-Judge Constitution Bench order of E.V. Chinnaiah v. State of Andhra Pradesh. After passing an opinion in the Davinder Singh case, it passed on the matter to a seven or more Judge-Bench.

It’s About Punjab and Andhra Pradesh States Only

Firstly, let’s look at the process and issue of quota within quota. In 1975, Punjab divided its 25 per cent reservation for Scheduled Castes into two groups by a government notification. This arrangement had flexibility wherein if candidate of one group is not available, the other group can fill in the reservation. Punjab state idea went on undisturbed till Chandrababu Naidu split Andhra Pradesh’s 15 per cent reservation into four Groups through Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000.

The validity of the Act and the Andhra Pradesh High Court judgment (which upheld the Act 4:1) was challenged in the Supreme Court. The Supreme Court in 2004 handed over a verdict in a five-judge Constitutional Bench judgment in E.V. Chinnaiah v. State of Andhra Pradesh case and set aside the Andhra Act.

Naturally, Punjab SC Notification of 1975 was also struck down by High Court, based on E.V. Chinnaiah judgment. Punjab hurriedly passed a law just before the assembly election in 2007 called The Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The validity of Act came up before the Supreme Court in 2010 and received a pronouncement in 2020 that E.V. Chinnaiah has seriously erred.

Constitution Says Neither State Nor Parliament Has Powers to Classify

In simple words, EV Chinnaiah says no state government has the power to tinker with the SC list as in the Article 341, thereby meaning no state government can classify them. EV Chinnaiah further said even the Parliament cannot sub-classify the SC list since untouchables are a homogenous group. It said classification also violates Article 14, as an equality principle within those similarly placed people, are entitled to equal treatment.

EV Chinnaiah judgment quoted Ambedkar, who introduced the Article 341 granting only powers to add or delete Castes from the SC List, and said, “List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."

The Constitution did not grant any more power to Parliament other than “include in or exclude” castes from the Supreme Court list. There is no provision in the law to do any further tinkering of the list. When Andhra Pradesh or Punjab does the classification, there have no such powers to do so. That was why EV Chinnaiah vs State of Andhra Pradesh set out to shut any such manoeuvring.

But what the second round of five-judge Bench relooking at SC sub classification in State of Punjab vs Davinder Singh does, is to open a can of worms. It tried to argue against EV Chinnaiah judgment and justified its interference into for revisiting the decision of Chinnaiah and doctrine of stare decisis (doctrine that obligates courts to follow historical cases when making a ruling on a similar case.) In the Davinder Singh case, the Supreme Court stares at a very distant idea and while trying to put down Chinnaiah, it took an unprecedented leap.

A Very Distant Leap

When Chinnaiah said that sub-classification is out of the purview of not only state government but also out of parliament since its violative of equality clause, the Davinder Singh opinion takes a long leap to say state governments are empowered to do so. The compelling circumstances in between the 14 years is just (i)new Punjab Legislation of 2006 and (ii) a minor set aside for Arundathiyars caste in Tamil Nadu. The nature of the question of Punjab legislation was already settled in the case of Andhra Pradesh 2004 by EV Chinnaiah.

If just two state governments in the country argue in a case, claiming to have power to classify SCs and STs, (which even Parliament doesn’t have) will the same level Bench of Supreme Court take that leap and create an opinion to grant them the powers?

Indra Sawhney Judgment of 1992

We have reached a stage in the jurisprudence of reservations for SC and STs that every judicial pronouncement since 1992 is based on only one judgment, that is, Indra Sawhney vs Union of India and Ors. It is also necessary to understand that the Indra Sawhney judgment was not in any way about SC/ST reservations but about the OBCs, and that too in central government jobs. Then why is it that every time Indra Sawhney is taken as the gospel truth and not Ambedkar’s Constitution?

One should not forget that backward classes were already having reservations in states when Indra Sawhney judgment came in. Why did it then acquire such overwhelming importance than the Articles of Constitution itself?

Indra Sawhney, while upholding OBC reservations, struck down reservation in promotions in 1992, which were existing for SC,ST and OBCs, even though SC and STs were not a party to the proceedings and were not heard. Therefore the Parliament ensured reservation in promotions to SC and ST through 77th Amendment in 1995. Since the last 25 years, Supreme Court has hammered down successively, the idea of reservation in promotion for SC and STs — despite three constitutional amendments 81st, 82nd and 85th done by the parliament to ensure 77th amendment.

Even now Supreme Court has not settled the matter of reservation in promotions for SC and STs. While doing so Supreme Court threw in a fresh idea of creamy layer into SC and STs in M.Nagraj case of 2006 and in Jarnail Singh case of 2018. In both the cases of M.Nagraj and Jarnail Singh the reference to Creamy layer was an obiter (phrase meaning “that which is said in passing,” or an incidental statement).This obiter has now been discussed in Davinder Singh case. How can an obiter be a basic point of discussion in a case to do with sub-classification of castes?

Group Rights Cannot be Sub-divided to Sub Groups

The question of why Indra Sawhney has become the Bible and Constitutional interpretation now takes a backseat. The entire line of arguments against E. V. Chinnaiah judgment is that it misinterpreted Indra Sawhney.

Firstly, Ambedkar’s conceptual clarity in the constitution making was that it’s always the principle we should rely on. The basic method of interpreting a constitutional right that emanated from a constitutional framework should not be out of one singular judgment of Indra Sawhney.

Secondly, the interpretation can only be within the existing Constitutional provisions but not out of few words taken out of Article 16(4) like “adequate representation” or “in the opinion of the state”.

Thirdly, and most importantly, reservation is a right that accrues to Dalits and tribes based on discrimination as a group. There are no individual rights or sub-caste rights that can emanate out of a remedy against group discrimination. A group right cannot be redistributed since group discrimination cannot be reinterpreted to individual or sub-group rights.

Finally, in group-based rights one cannot sub-divided or pit an individual against another within the same group. In the name of sub-caste, the same constitutional right cannot be splintered. The basic principle of group rights renders the concept and process of sub-classification and creamy layer, a misfit in Constitutional scheme and especially in the case of SC and ST reservations.

Disclaimer:(The author holds a PhD from Jawaharlal Nehru University, New Delhi. She taught Political Science at SPM College, Delhi University.)

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