Thoughts on the ongoing Supreme Court Hearings on Sub-classification of SCs & STs
By = Nethrapal, I.R.S., & A. Jaison, M.A.,B.L.,
9.2.2024
(Asian Independent)-
From
Nethrapal, I.R.S.,
Sub-categorization can be done if there is evidence that there are varying degrees of discrimination.
I heard this in the hearings yesterday, wherein Hon’ble Justice B R Gavai and CJI Dhanjaya Y Chandrachud made the point that whether sc/st come under backward classes and whether the same parameters applicable for identification of OBCs are applicable to them?
A elaborate discussion happened wherein the emphasis was brought out that SC/ST reservations were given mainly on the test of historical untouchability, social stigma and discrimination.
Now even if the agreement is there that historical discrimination is the foremost factor in the inclusion of a caste or tribe in SC/ST, what if there were evidences of varying degrees of discrimination?
What if one untouchable on the Scheduled caste list practiced discrimination against another untouchable?
What if one untouchable was the oppressor class against another untouchable?
Now the second argument that came up was:
Do Backward Classes include SC and ST? And how come Articles 342A and 341 are similar but in both articles there is no mention of subcategorization?
How did the subcategorization in OBC come up but not in SC and ST?
In this regard, yes, the list is not getting varied, but the CJI is of the opinion that the subcategorisation is inherent in Article 16(4) and not in Article 341/342/342A.
So the subcategorization may have to be provided to SC/ST.
The third argument is that whether SC and ST are homogenous or not.
There appears to be a consensus that SC and ST are not homogenous socially, economically and educationally.
However, there is a claim that the Constitution of India treats heterogeneous groups as homogeneous, which appears to be the Constitution’s intention to avoid political factors. This evidence of SC/ST not being homogenous should arise out of strong empirical evidence, probably a sound Caste Census, and not political factors.
Political factors cannot be the main reason for treating the SC/ST list as homogenous.
So, the fact that SC and ST are inherently non-homogenous appears to be coming out.
The fourth argument that is coming out is that SC/ST reservations under Article 341/342 are mainly for political reservations, and here there cannot be any tinkering. However, the origin of public employment and Educational reservations are from Articles 16(4) and 15(4), which can be bifurcated since the word backward classes is used specifically here.
Backward classes include SC and ST also.
The fifth argument is that the words “include” and “exclude” are used but do not vary. That means Parliament can exclude or include a caste, but it cannot provide subcategories within the list.
After hearing the arguments in court, only if there is a varying degree of discrimination will subcategorization be sanctioned by the courts.
The Madiga case in Karnataka/Andhra Pradesh has a strong case since there is evidence that others on the SC/ST list practice a kind of discrimination against Madigas. However, the same cannot be proved in the Sikh case in Punjab or the Arundhathiyar case in Tamil Nadu.
Now, the court should make it clear that the only factors for subcategorization should be the varying degree of discrimination and not the parameters like social, economic, and educational backwardness that have been used to subcategorize OBCs. There can be no creamy layer or economic criteria among the SC/ST since it is linked to political representation.
This is going to be an interesting battle, and the arguments appear to be stronger for giving subcategorization to subcastes like Madigas, where there is a varying degree of discrimination.
If a sub-caste in SC/ST can be conclusively proven that there Social, Economic, and Educational backwardness mainly arises because of varying degrees of social stigma, untouchability, and social sanctions, then subcategorization may have to be allowed, which appears to be the intention of the court.
From
A.Jaison
Well analyzed, Sir.
What is happening is “Politics of Breaking the Broken People” which was opposed by the Supreme Court in E V Chinnaiah vs State of Andhra Pradesh & Ors on 5.11.2004 by five-judge bench of Justices N. Santhosh Hegde, S.N.Variava, B.P.Singh, S.K. Sema & S. B. Sinha while another bench of five-judge bench headed by Justice Arun Mishra comprising Justice Indira Banerjee, Vineet Saran, M.R.Shah & Aniruddha Bose favored this ‘breaking’ in The State of Punjab Ors vs Davinder Singh & Ors on 27.8.2020. (Justice Arun Mishra has been rewarded with post-retirement plum post of Chairman, National Commission for Human Rights effective from 2nd June, 2021 after he demitted office in the Supreme Court on 2nd September, 2020)
Since both the five-judge benches have given differing Judgments, the latter bench has referred it to a larger bench which is now a seven-judge bench headed by CJI Dhananjay Y Chandrachud comprising of Justices B R Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra & Satish Chandra Sharma. Almost all these judges, during the course of hearing, echo their views, as a prelude to their pre-determined judgment in favour of sub-classification, that is, breaking the Scheduled groups with Media merrily publicizing news/ debates and writing articles and editorials, even prior to the pronouncement of verdict!
All these judicial decisions are for weakening the SC/ST people’s unity by dividing them as sub-caste groups which is accelerated by the BJP in power in the Centre, which has been vehemently arguing in favour of sub-classification of SCs and which has not argued in the past with same vehemence in case of Reservation in Promotion case and the case diluting the SC & ST POA Act on 18.3.2018 by Justices Adarsh Kumar Goel and U.U.Lalith (Justice Adarsh K.Goel was made Chairman of the National Green Tribunal on the eve of his retirement farewell on 6th July, 2018, probably a reward for his anti-SC/ST approach and that post had been kept vacant after demitting of the office by Justice Swatanter Kumar on 19th December 2017 as if this post was kept reserved exclusively for Justice Adarsh Kumar Goel!).
I am of the view, looking into past such happenings of promotions and elevations everywhere- be it judiciary or executive- that anti-SC/ST approach/ decisions/ acts have been the primary criteria for such elevations/ rewards. Alas! Even the SC/ST men are not free from this category!
As Jurist Gautam Bhatia, like a few others, has coined the words ‘Executive Court’ for the Supreme Court, and Justice Sanjay Kishan Kaul said in an interview on 27.12.2023 indirectly conveying the meaning that the strong Government in the centre has always swayed the decisions of the Supreme Court. If that is the case, the present Govt in the centre has been keen to sub-classify the SCs in order to prevent their consolidation and this is evident from Centre’s argument and the Judges echoing their views as a prelude to the proposed judgment for such divisions. The timing of the hearing of this case, that is, just prior to the election, cannot be ignored as a mere coincidence but a well-planned one for polarization as one being politically master-minded by the Centre. As Justice Sanjay Kisan Kaul said in an interview after demitting office on 25.12.2024, “When there are politically strong governments, push-back is more.” That is how the Centre is playing in this sub-classification of SCs! Divide the SCs & STs through Judiciary, shift the burden or blame on judiciary and enjoy with the outcome to reap the political dividends by harvesting the splintered groups’ votes!
The divisive political forces will extend the same ‘dividing’ conspiracy to the OBCs/BCs & MBCs also through the same judicial route! However, this will bring less harm to the OBCs than to the SCs & STs against whom all will join together to oppress and trample upon.
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N.B.: Mr. Nethrapal, I.R.S., is a Commissioner of Income Tax in Bengaluru while Mr. A. Jaison is a Member of Social Justice Monitoring Committee, Govt of Tamilnadu.
