Sub-classification: A Paradigm Shift in Reservation Policy -

All these years, the benefits of reservation were, by and large, limited only to a few and were allowed to become a vested interest. It is ironic that reservation remained confined to a few families who were fortunate enough to avail of the benefits in the beginning, failing to percolate to the masses. Generations of those very families have continued to avail themselves of all the benefits of reservation, emerging as a "neo-brahmanical" class amongst the backward classes. It took 75 years for the Indian Judiciary to realize the constitutional requirement to secure substantive equality where there is a distinction between two sections of a class, and to acknowledge that all categories within a class should have equal and sufficient opportunities for their advancement.

The principle of sub-classification in respect of ‘Other Backward Classes’ received judicial recognition in Indra Sawhney v. Union of India (1992 Supp (3) SCC 217) to ensure that the principle of substantive equality is fulfilled. However, the principle of sub-classification was not applied to Scheduled Castes, on the premise that Scheduled Castes constituted a homogeneous class. Historical and empirical evidence has since demonstrated that Scheduled Castes are, in fact, a socially heterogeneous class. Therefore, a need was felt to further classify the Scheduled Castes by applying a rational principle for differentiation that has a nexus with the purpose of sub-classification.

In this process, a 7-judge Constitution Bench of the Hon’ble Supreme Court in the Davinder Singh case overruled the E.V .Chinnaiah (2005) judgment, which had held that sub-classification of Scheduled Castes was impermissible. The then Chief Justice of India, Dr. D.Y . Chandrachud, wrote the majority opinion, which found support in the concurrent views expressed by Hon’ble Justices B.R. Gavai, Vikram Nath, Pankaj Mithal, and S.C. Sharma. Legally speaking, the process that started in the Indra Sawhney case in 1992—establishing that it was constitutional to classify the backward class into “backward” and “more backward” —was carried forward and specifically applied to the Scheduled Castes and Scheduled Tribes in the Davinder Singh case.

This has given a new direction and opened new vistas for reservation policy. Similarly, the barrier between Scheduled Castes and Scheduled Tribes on one hand, and all Other Backward Classes on the other, was sought to be bridged. This was done by addressing the application of the creamy layer test to Scheduled Castes and Scheduled Tribes, albeit with a rider: the criteria for excluding the creamy layer for the purpose of affirmative action could differ for Scheduled Castes and Scheduled Tribes from the criteria applicable to Other Backward Classes. Such an exposition of law, interpreting the relevant provisions of the Constitution, shall have wide-ranging ramifications. Previously, only the children of those Scheduled Castes who were already affluent or urbanized were able to obtain higher education and reap the benefits of reservation. The "better off" amongst the backward classes consumed most of the vacancies and seats, leaving the most backward with nothing. This situation needed to be arrested.

After a long wait, the Davinder Singh case struck the right chord, providing much-awaited relief to the marginalized and the most downtrodden amongst the Scheduled Castes and Scheduled Tribes. However, the fact that it is left to the State to evolve a policy for identifying the creamy layer within the Scheduled Castes and Scheduled Tribes—so as to exclude those who have improved their conditions by already availing the benefits of reservation—does not appear to be a happy situation. There must be common ground and a uniform criterion for the purpose of sub-classification and determining its extent. The Hon’ble Supreme Court has further held that there is a need to undertake periodical exercise so as to exclude the class of persons who have after taking advantage of reservation achieved higher status and have come to march, shoulder to shoulder with the general category. It is hoped that the Legislature and the Executive would implement the judgment of the Apex Court in Davinder Singh in earnest so as to bring about substantive equality by uplifting the backward classes, bringing them into the mainstream, and ultimately establishing a classless egalitarian society.