10 August 2024 : Indian Express Editorial Analysis

 1. Sub-quota red herrings

(Source: Indian Express; Section: The Ideas Page; Page: 15)

Topic: GS2– Social Justice

Context:

The ongoing debate about the Supreme Court’s judgment on sub-quota within the reservation system has started off on the wrong foot. Instead of addressing real issues and concerns raised by the judgment, the discussion has veered off into irrelevant distractions. What is needed is a more insightful and less heated debate.

What was the SC’s Verdict on Sub-Classifications of SCs and STs?

• Sub-Classifications Permitted: The Court ruled that states are constitutionally allowed to sub-classify SCs and STs based on varying levels of backwardness. 
• The seven-judge Bench ruled that states can now sub-classify SCs within the 15% reservation quota to provide better support for the most disadvantaged groups.
• Chief Justice of India emphasised the difference between “sub-classification” and “sub-categorisation,” cautioning against using these classifications for political appeasement rather than genuine upliftment. The Court noted that sub-classification should be based on empirical data and historical evidence of systemic discrimination, rather than arbitrary or political reasons.
• States must base their sub-classification on empirical evidence to ensure fairness and effectiveness.
• The Court clarified that 100% reservation for any sub-class is not permissible. State decisions on sub-classification are subject to judicial review to prevent political misuse.
• The Supreme Court has ruled that the ‘creamy layer’ principle, previously applied only to Other Backward Classes (OBCs) (as highlighted in Indra Sawhney Case), should now also be applied to SCs and STs. 
• This means states must identify and exclude the creamy layer within SCs and STs from reservation benefits. The judgement responds to the need for a more nuanced approach to reservations, ensuring that benefits reach those who are truly disadvantaged.
• The court stated that Reservation has to be limited only to the first generation. 
• If any generation in the family has taken advantage of the reservation and achieved a higher status, the benefit of reservation would not be logically available to the second generation.
• Rationale for the Verdict: The Court acknowledged that systemic discrimination prevents some members of SCs and STs from advancing, and therefore, sub-classification under Article 14 of the Constitution can help address these disparities. 
• This approach allows states to tailor reservation policies to more effectively support the most disadvantaged within these groups.

Misinterpretation of the Supreme Court Verdict

• A significant issue is that many supporters of social justice have mistakenly assumed that the Supreme Court’s verdict dilutes the existing reservation system.
• However, a straightforward reading of the majority judgment authored by Chief Justice of India, DY Chandrachud, and Justice BR Gavai, reveals that the ruling aligns with the legacy of progressive jurisprudence.
• This jurisprudence upholds caste-sensitive affirmative action and, if anything, deepens the quest for justice by focusing on the most disadvantaged and stigmatized communities within the caste hierarchy.
• CJI Chandrachud’s elaboration on “substantive equality” strengthens the foundation against any future attempts to undermine affirmative action under the guise of merit.

Misplaced Legal and Empirical Criticisms

• The criticism that the court has overstepped its boundaries by infringing on the domain of Parliament is unfounded.
• The court neither carried out the sub-division nor mandated it. Instead, it clarified that such an exercise is permissible under Article 341 of the Constitution, leaving the implementation to the legislatures and governments.
• Another criticism, that the Supreme Court made its decision without empirical evidence, is factually incorrect.
• The Census of India provides detailed data on Scheduled Castes (SC) and Scheduled Tribes (ST), including headcount, occupation, family assets, and educational attainments.
• This data shows significant variation in educational attainment within SC communities, underscoring the need for sub-classification to ensure fair competition and redress inequality.

Political Objections and Ground Realities

• The political objection that sub-classification could create rifts within Dalit communities ignores the existing fragmentation and fractures in their social and political life.
• The reality is that only by creating broad, inclusive arrangements can unity be fostered within and between categories.
• This requires acknowledging the agency of the most disadvantaged SC communities, rather than dismissing sub-classification as a divisive move.

Addressing Genuine Apprehensions

• While some criticisms are misguided, there are real concerns that need attention.
• One is the potential misuse of sub-classification as a political tool to punish communities not aligned with the ruling party, a tactic that has been observed in the misuse of OBC sub-classification.
• The verdict does offer safeguards against this by requiring evidence-driven classification, but the nature of this evidence needs to be clearly defined, potentially through a nationwide caste census.

• Another concern is the possibility of using sub-classification to reduce the number of eligible candidates for higher jobs, potentially leading to the transfer of vacant positions to the unreserved category.

• This can be addressed by ensuring that any unfilled posts in the SC/ST sub-categories are transferred to another sub-category rather than the unreserved category.

The Creamy Layer Doctrine and its Implications

• The sudden application of the “creamy layer” doctrine to SC and ST communities presents multiple problems. The issue was not properly framed by the court, and the litigants did not have a fair chance to contest it.
• Additionally, there is no sociological evidence to suggest that SC communities have developed a “creamy layer” in the same way as other communities.
• Excluding the creamy layer would further reduce the pool of eligible candidates and could lead to the transfer of posts to the unreserved category.
• While the exclusion of the creamy layer is not an operational directive in this judgment, there is concern that this could be used to challenge future sub-quota policies.

Impact on Scheduled Tribes

• The judgment, though focused on Scheduled Castes, inevitably raises concerns about its impact on Scheduled Tribes (STs).
• The nature of internal differences and the logic of reservation differ significantly between SCs and STs, and it might be prudent to delay the substantive application of this verdict to STs until the Supreme Court can address these specifics in more detail.

Conclusion: Moving Forward with Social Justice

• Instead of opposing the idea of sub-quota, the focus should shift to correcting flaws in the current judgment and addressing long-term issues such as enhancing SC/ST reservations in line with their current population, removing the 50 percent ceiling, and broadening the social justice apparatus beyond public sector jobs.
• This approach would better serve the goals of social justice and ensure that the most disadvantaged communities receive the support they need.

Practice Question:  Discuss the implications of the Supreme Court’s judgment on sub-quotas within the reservation system. Analyze the potential challenges and opportunities it presents for ensuring social justice. How should the government address the concerns raised by this judgment? (250 words/15 m)

2. Social injustice

(Source: Indian Express; Section: The Ideas Page; Page: 15)

Topic: GS2– Social Justice

Context:

The recent Supreme Court verdict permitting sub-classification within Scheduled Castes (SCs) and Scheduled Tribes (STs), and calling for the exclusion of the creamy layer among Dalits from reservations, raises significant concerns. This decision is seen as deeply flawed and potentially harmful to affirmative action, with fears that it could pave the way for the gradual elimination of reservation altogether.

Ignoring the Grim Social Realities

• The judgment fails to consider the harsh realities faced by a significant portion of the Dalit population. For many Dalits, who endure lives marked by extreme poverty and social oppression, the concept of reservation holds little relevance.
• Their daily struggle for survival often precludes them from accessing the educational opportunities necessary to benefit from reservation policies.
• Therefore, merely allocating them a portion of the reservation quota does not address their dire circumstances, as only a tiny fraction of Dalits are in a position to compete for these reserved positions.

The Reality of Unfilled SC/ST Positions

• Another critical issue ignored by the judgment is the widespread vacancy in SC/ST reserved posts across various government ministries and educational institutions.
• Reports indicate that a significant percentage of these positions remain unfilled, often due to the alleged absence of suitable candidates.
• This reality exacerbates the problem of SC/ST vacancies and suggests that the sub-classification ruling may only worsen the situation by adding further complexity to an already challenging issue.

Flawed Comparison with OBCs

• The judgment’s rationale for applying the creamy layer concept to Dalits, based on its applicability to Other Backward Classes (OBCs), is fundamentally flawed.
• OBCs, as a group, occupy a higher economic and social stratum compared to SCs/STs. The socio-economic conditions of Dalits, who are still trapped at the bottom of the social hierarchy, cannot be equated with those of OBCs.
• Consequently, the exclusion of the creamy layer from reservations for Dalits would disproportionately harm an already marginalized community.

Risks of Fragmentation and Division

• The decision to sub-classify SCs/STs risks fragmenting the Dalit community and undermining any existing solidarity among its members.
• By creating new hierarchies and divisions within the Dalit community, the ruling may serve the interests of those seeking to exploit these fractures for political or social gain.
• This approach could lead to further marginalization within an already oppressed group, exacerbating social tensions and undermining the original intent of reservations.

Caste and the Rationale Behind Reservation

• Caste remains deeply embedded in Indian society, and the judgment overlooks the complex reasons for which reservations were initially granted to SCs/STs.
• The primary rationale for reservations was not merely economic backwardness or inadequate representation in government services, but the persistent social stigma and discrimination faced by Dalits, including the so-called creamy layer.
• The judgment’s attempt to differentiate within the Dalit community based on economic criteria ignores the pervasive impact of caste-based discrimination.

Constitutional Violations and Misinterpretations

• The verdict potentially violates Article 341 of the Constitution, which empowers the President to notify caste categories deemed as SCs.
• This Article also states that any changes to such notifications must be made by Parliament, not by the judiciary or state governments.
• By allowing states to modify these notifications and permitting sub-classification, the Supreme Court’s ruling appears to contradict the constitutional provisions, raising questions about its legality and constitutionality.

The Mandate of Article 46 and Its Implications

• Article 46 of the Constitution obliges the state to prioritize the educational and economic interests of SCs and STs and to protect them from social injustice and exploitation.
• This constitutional mandate is an absolute condition that should guide state policy. However, the Supreme Court’s judgment, by enabling sub-classification and the exclusion of the creamy layer, seems to conflict with this imperative, potentially undermining the protective measures intended to uplift the most disadvantaged sections of society.

Conclusion: A Controversial and Problematic Verdict

• The Supreme Court’s verdict on sub-classification within SCs/STs and the exclusion of the creamy layer is fraught with issues.
• It risks diluting the effectiveness of affirmative action, exacerbating existing inequalities within the Dalit community, and potentially violating constitutional provisions.
• The ruling ignores the deeply ingrained caste dynamics in Indian society and the complex reasons behind the reservation system, raising concerns about its long-term implications for social justice and equality.

What are the Arguments For and Against Sub-Classification?

Arguments For Sub-Classification: Enhanced Flexibility: Sub-classification allows both central and state governments to design policies that better address the needs of the most disadvantaged within SC/ST communities. Alignment with Social Justice: Supporters argue that sub-classification helps achieve the constitutional goal of social justice by providing targeted benefits to those who need them the most. Constitutional Provisions:  Article 16(4) of the Constitution, this provision permits reservations for backward classes who are inadequately represented in state services. Article 15(4) empowers the state to create special arrangements for promoting the interests and welfare of socially and educationally backward classes of the society such as SC and STs. Article 342A supports the flexibility of states in maintaining their lists of socially and economically backward classes. Arguments Against Sub-Classification: Homogeneity of SCs and STs: Critics argue that sub-classification could undermine the uniform status of SCs and STs as recognised in the Presidential list. Potential for Inequality: There are concerns that sub-classification could lead to further division and potentially exacerbate inequalities within the SC community.

PYQ: What are the two major legal initiatives by the State since Independence, addressing discrimination against Scheduled Tribes (STs)? (150 words/10m) (UPSC CSE (M) GS-1 2017)

Practice Question:  Critically analyze the Supreme Court’s verdict on sub-classification within Scheduled Castes and Scheduled Tribes, including the exclusion of the creamy layer from reservations. Discuss the potential implications of this ruling on social justice, constitutional provisions, and the effectiveness of affirmative action in addressing caste-based inequalities. (250 words/15 m)