In a landmark judgment passed on 31st August, the Supreme Court ruled that caste and tribe-based reservation will be limited to the home state and union territory. “A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another state on the basis that he is declared a Scheduled Caste in State ‘A’,” said the Bench. This is the newest in the line of SC judgments in recent times, targeting Constitutional protections for the marginalised castes and classes. A GroundXero report.

In a landmark judgment passed on 31st August, a 5-judge bench of the Supreme Court ruled that caste and tribe-based reservation will be limited to the respective state and union territory where the caste or tribe in question is listed as a Scheduled Caste or a Scheduled Tribe. “A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another state on the basis that he is declared a Scheduled Caste in State ‘A’,” said the Bench. The only exception made to this is Delhi as a Union Territory. “… So far as the National Capital Territory of Delhi is concerned, the pan-India reservation rule in force is in accord with the constitutional scheme relating to services under the Union and the states/union territories,” said the judgment.

In a strikingly centralising move, contrary to the federalist spirit of the Indian Constitution, the Court pinned the determination of beneficiary castes and tribes in any State or Union Territory on the Presidential list of SCs/STs, taking away the role of the concerned State or UT. “The expressions ‘in relation to that state or union territory’ and ‘for the purpose of this Constitution’ used in Articles 341 and 342 would mean that the benefits of reservation provided for by the Constitution would stand confined to geographical territories of a state/UT in respect of which the list of SC/ST have been notified by Presidential orders issued from time to time,” said the judgment. Article 341 of the Indian Constitution says, “The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be”, and grants the Parliament the provision of including or excluding any particular caste to or from the President’s list.

Implications of this judgment are likely to be far-reaching in terms of the future of hundreds of millions of people, belonging to the most vulnerable sections, particularly those who are ‘migrants’ from other states for purposes of employment or education. While on the one hand this builds extreme pressures on states with low productive capacity, it lets off high producing, high manufacturing states whose production processes are run heavily on labour from migrant workers.

One of the key protections till now for nation-wide reservations under the Indian Constitution had been Article 16(4) which says, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” This historic judgment weakens Article 16(4) significantly, observing that “Unilateral action by the states on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy, and therefore must be held to be impermissible under the Constitution”.

It is worth noting that it is not as if the courts in this country have not had a say so far in deciding the inclusion or exclusion of castes and tribes in the Schedules. The Supreme Court in March 2015 had quashed the Central Government’s 2014-notification that had included Jat community across nine states in the OBC list. In October 2015, the Allahabad High Court had ruled that a member of the Scheduled Tribe (ST) in one state cannot enjoy the benefit of reservation upon migrating to another state unless the corresponding tribe or community is specifically notified under the reserved category in the latter state. It is therefore perplexing why the Supreme Court felt there was the possibility of a “Constitutional anarchy”.

Nation wide strike on April 2, in protest against the dilution of the SC/ST Prevention of Atrocities Act. Courtesy: IANS

The implications of this judgment are likely to be far-reaching in terms of the future and present of hundreds of millions of people in this country, belonging to the most vulnerable sections, particularly those who are ‘migrants’ from other states for purposes of employment or education. Even in terms of governance and public welfare, this builds extreme pressures on states with low productive capacity, while letting off the high producing, high manufacturing states whose production processes are run heavily on labour from migrant workers. In a nation where a nationwide agricultural crisis is driving hundreds of millions of people into forced migration to cities across the country each year, this judgment is bound to make the situation much much more precarious.

This judgment is the newest in the line of SC judgments in recent times, targeted particularly against Constitutional protections for the marginalised castes and classes. Another recent example of such an attack was the dilution of the SC/ST Prevention of Atrocities Act by the Supreme Court on March 20 of this year. Dalit communities across the country are still taking to the streets protesting against that order. Earlier in 2006, a five-judge bench of the Supreme Court, delivering the judgment in the M. Nagaraj case, had ruled that the government is not bound to give reservation in promotions to the SCs and STs. However the same ruling also mentioned that the ‘creamy-layer formulation’ cannot be applied to the two communities.

But earlier this year, Samta Andolan Samiti, an anti-reservation group, filed a PIL in the Supreme Court, asking for exclusion of “creamy layers” from SC/ST reservation. The Court, acting upon the PIL, has asked the Centre for it’s views. The PIL lists Department of Personnel and Training, Ministry of Law and Justice, Department of Social Justice and Empowerment, National Commission For Scheduled Castes, National Commission for Scheduled Tribes as “respondents”. “Suppose there was a caste which was backward 50 years ago and now it has sections of creamy layer. Why can’t court say don’t treat unequals as equals … because the whole idea (behind reservation) is to give a leg up to those deserving, not to someone who already has both legs up on the fan,” said Justice R. F. Nariman reportedly. Chief Justice of India (CJI) Dipak Misra, who heads the bench hearing the petition, asked if a “person from the reserved category becomes Secretary in a state … will it be logical to treat his family as backward for promotion with accelerated seniority?” Incidentally, in the 23rd August hearing of the “creamy layer” PIL, CJI Mishra also mentioned, “Article 16(4) of the Constitution enables the state to make provisions for reservation for backward classes, subject to some riders. This was interpreted by the Constitution bench.” The August 31st judgment and it’s interpretation of Article 16(4) therefore becomes all the more relevant in this question of reservation for “creamy layers”. There thus seems to be the possibility of striking down of reservations for “creamy layers” of SCs and STs, as the next such judgment in this line of attack.

These legal judgments rolling back reservations, diluting Prevention of Atrocities Act, combined with political acts such as burning of the Indian Constitution (by organised groups such as Youth Equality Foundation (Azad Sena) and Arakshan Virodhi Party), are a part of ongoing attempts to replace the social-cultural-historic context for reservations. This on the one hand, and ongoing political movements such as those demanding reservation for historically powerful communities like Jats, Patidars or Marathas on the other, seem to constitute a watershed moment in the post-Mandal India and it’s Constitution. The only available Constitutional provision towards undoing the historic injustice of caste is now under question because of BJP-RSS’s progressive rolling back of the reservation policy, thus throwing up new challenges, and frontiers perhaps, for the politics of annihilation of caste.