The 6:1 landmark judgement of the Supreme Court allowing states to create sub-classifications within the Scheduled Caste and Scheduled Tribe categories has evoked a mixed response among outfits that work to protect the rights of these marginalised groups. 

The August 1 verdict had overruled a 2004 judgement to allow governments to reserve seats for specific sub-groups within the quotas for the SCs and STs, based on the sub-group’s disadvantaged status. But while some hailed it as a progressive move giving voice to the “voiceless”, others pointed to the implications of the ruling considering the absence of empirical data, reserved seats left vacant, a possible misuse by state governments, and the impact on the larger reservation pie.

Several Dalit groups have announced protests, from a ‘Bharat Bandh’ on August 21 to plans to distribute rakhis to register objections.

Newslaundry spoke to several Dalit organisations across the country to understand what the judgement means to them and how it will impact marginalised communities across different states. 

‘Against constitution, need census’   

“The ruling has no strong basis,” said Manjula Pradeep, co-founder of the Dalit Human Rights Defenders Network, a network of human rights activists across India,  as she pointed to the lack of data. She also said the Supreme Court should have first reviewed the “failure of the reservation” as seats reserved for the SCs and STs are not filled up and eventually allocated to the general category. 

While delivering the judgement, Chief Justice of India DY Chandrachud had said that states must give sub-quota on the basis of “quantifiable and demonstrable data bearing on levels of backwardness and representation”. But most states and union territories are not equipped with a comprehensive caste dataset, except Bihar, which has released its caste census findings – Andhra Pradesh is expected to conduct its own. 

At the national level, the census act will need an amendment to include caste. And the socio-economic and caste census conducted in 2011 under the then Congress-led UPA government was never put in the public domain. 

Uday Kumar, founder of the Dalit Association for Social and Human Rights Awareness, claimed that the verdict is “not fair” and it is not backed with data. DASHRA is based in Bihar, which has 23 recognised SCs and 33 ST communities. 

According to the 2011 census, SCs and STs make up 16.6 percent and 8.6 percent of India’s population, respectively. Currently, SCs have a 15 percent quota while STs have 7.5 percent reservation in public-funded education and jobs.

Kumar said there are certain communities in Bihar, such as Musahar and Mehtar, which are more backward than others, but that doesn’t make a premise for sub-classification, as it does not guarantee awareness among them to seek the benefits that could be given to them. “There is a need for a holistic approach”.

Tulsi Das Raj, convenor of Rajasthan-based Dalit Adhikar Network, gave the example of the Ghumantu or nomadic tribes in Rajasthan. He said that these tribes which have a tradition to “educate their children to get bhiksha (or alms)” will not be able to avail the benefits “because they are not aware enough to exercise their rights”. This will result in backlogs and vacant seats, “and then, like always, the seats reserved for SCs, out of compulsion, would go to the general category. Thus, this verdict is against the constitution”. 

Ashok Bharti, chairman of Haryana-based National Confederation of Dalit and Adivasi, said that the six-member Supreme Court bench had little representation of the Dalits. “The ruling is against the constitutional spirit.” 

‘Will give voice to the backward’, but a caveat

However, Dr Vimal Kumar of Mumbai-headquartered Movement for Scavenger Community, who is from the Valmiki community, asserted that “this judgement benefits the communities who do not have any representation”. He said he has witnessed untouchability not only by other castes but also within the SCs.  “The scavenger castes among the Dalits have been left behind because of their traditional occupation. In Maharashtra, there are people who migrate from different parts of India, who work in municipalities and they are till date fighting for the SC certificate. This verdict is fair for them. You can imagine what kind of representation this sub-classification may bring for them.” 

He said the categorisation “may bring with it representation” to “smaller communities” such as Bazigar and Sapera in Punjab and Haryana and the sweeper community in Rajasthan. There are 39 recognised SCs and no STs in Punjab; 59 SCs and 12 STs in Rajasthan; and 37 recognised SCs and no STs in Haryana. 

However, Daulat Ram, founder secretary of Uttar Pradesh-based Bhartiya Jan Sewa Ashram, alleged that it is “a way to make the castes within the SCs fight against each other”. 

Meanwhile, V Ramesh Nathan, executive director of Tamil Nadu-based Social Awareness Society for Youths, said the verdict will “improve access to social capital, education, and employment”, but the court should “carefully consider” the power it is conferring on state governments. 

Justice Bela Trivedi, the only judge on the bench to oppose the sub-classification, had also argued that “states are not competent to enact affirmative action laws”. 

Nathan added that another concern is that the sub-classification will take a piece away from the larger reservation pie for all the other SCs, so the government needs to increase the total reservation percentage. 

‘Entire community can’t be creamy layer’ 

Justice BR Gavai, the only Scheduled Caste judge on the bench, had suggested that the state must “evolve a policy for identifying the creamy layer even from the SCs and STs so as to exclude them from the benefit of affirmative action”. 

But Dalit activists said the “creamy layer” is “non-existent”, and there is no corresponding government data.

Nathan of the Social Awareness Society for Youths said that the concept of the creamy layer is “against social justice. Because social justice is not based only on economic status. It is based on the atrocities committed for generations.” 

Bharti of NCDA questioned if Jeetan Ram Manjhi could be included in the “creamy layer”. “Then why was the temple washed and purified after he visited it?” 

Raj of Dalit Adhikar Network said, “I wouldn’t call it a creamy layer per se, but rather people who have progressed. People who are in the first or second grade of services using reservation, if they have been able to uplift themselves in an economic and social sense, can surely be deprived of reservation. But categorisation of the entire caste is a big thing.” 

Uday Kumar of DASHRA said that “just because one or two people from a certain community have succeeded, that doesn’t give us the right to categorise the entire reservation policy and call them creamy layer. There is one Mayawati, or Ram Vilas Paswan, or Manjhi. Because they became ministers, it doesn’t mean their entire community is uplifted.”  

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