The jurisprudence of affirmative action has been evolving constantly. From a notion of formal equality rooted in a general principle of non-discrimination, it has reached a point where the aim is substantive equality. Reservation is no more seen as an exception to the equality norm, but as a deepening of the idea of equality by embracing diversity and accommodation of those suffering from historical and social disabilities. The latest Supreme Court judgment allowing States to classify Scheduled Castes (SC) into groups and give preferential treatment to the weaker and more backward among them is in line with this progression. By a majority of 6:1, the Court has rejected the idea that the SCs constitute a single homogenous class and that sub-classification will violate the equality rule. The verdict dislodges a 2005 Constitution Bench judgment (E.V. Chinnaiah vs A.P.) that had struck down an Andhra Pradesh law classifying SC communities into groups as unconstitutional. The Court had then ruled that once the President notifies the list of SCs under Article 341, Parliament alone could modify it by law, and that States were barred from “tinkering” with the list. This judgment was cited by the Punjab and Haryana High Court while quashing a preferential sub-quota for Balmikis and Mazhabi Sikhs within the SC quota. When the matter came to the apex court, a Bench doubted the correctness of E.V. Chinnaiah and referred the question to a larger Bench.
The majority verdict is based on a clear recognition that SCs do not constitute a homogeneous class. Under the Presidential List, they have a common constitutional status, but it does not mean that there are no differences in the extent of backwardness among them. A history of untouchability is indeed a common feature among them, but there is historical and empirical evidence that the level of advancement is not uniform. States are empowered to further identify the weaker sections among SCs and extend beneficial treatment. Four judges have taken the view that excluding the “creamy layer” among the SCs from reservation benefits is necessary to give full effect to the principle that the weakest should get the benefits of affirmative action and not be elbowed out by those more advanced than them. Applying the ‘creamy layer’ concept, hitherto confined to OBCs may not be easy. Justice B.R. Gavai, who writes in support of the exclusion of the better-off among the SCs, also notes that the creamy layer norms cannot be the same as those prescribed for the OBCs. The exclusion of the more advanced sections among Dalits was not an issue before the Bench, and the opinions may be non-binding as of now. While excluding the creamy layer may happen some day, the focus should be on the marginalised among Dalits getting adequate representation.
