Supreme Court and Categorisation of Scheduled Castes List*

  • I have written this article in 2006, immediately after the Supreme Court’s verdict against the categorization of SC reservations in AP.  I have sent this article to EPW, but did not see the light of the day.

The Supreme Court’s view regarding the alleged ‘homogeneity of Scheduled Castes’ is based on a gross neglect of realities and the undeniable existence of sharp differences amongst the Dalits.  By invalidating ‘the Rationalisation of Reservation Act’, it actually lent a hand to the well-to-do castes amongst the Dalits to ‘eat up’ the meagre government jobs and depress the marginalised even further.  In addition, by declaring the ‘immutability’ of the Scheduled Castes List, the Court, in fact, bound the Dalits to the List and thereby to the Scheduled Caste identity, not just the present generation of the Dalits, but also future generations for all posterity. While the identities of Brahmins, Thakurs or Hegdes, since they serve the caste Hindus’ interests, may remain permanent, Dalit identity cannot remain permanent, not only because it does not serve their interests, but also because it subordinates them permanently to the caste Hindus.  It is time that the Dalits were left to decide their identity.  It is also time that the Government of India, taking stock of the fifty-five years of the compensatory policy’s implementation, change the  outdated ‘form’ to serve the marginalised and deserving within the Dalit category.

“Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment…laws and institutions must go hand in hand with the progress of the human mind…As new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. ” — Thomas Jefferson [1]

The history of the working of the judiciary in India in general and the Supreme Court in particular has been evoking mixed evaluations: particularly in response to the institutions’ inconsistent policy, whereby they appear to act at times progressively and at others conservatively.  It is our experience that the judiciary when deciding issues concerning caste Hindus and the upper classes tends to be progressive, but is more orthodox and supportive of the status quo regarding issues relating to Dalits, Adivasis, and Shudras.  The delay in delivering a verdict on the implementation of the Mandal Commission Report and the declaration of the right to strike as illegal are recent but pertinent indicators.  The conservative nature of the Supreme Court of India has, once again, been revealed in its judgement against ‘the Rationalisation of Reservations Act’ legislated by the government of Andhra Pradesh.  Who being persuaded by the Madigas’ Dandora movement for equitable distribution of reservations available for the Dalits in the state, passed the ‘Rationalisation of Reservation Act’ (Act 20 of 2000).[2] The Act has categorised the Dalits into A, B, C, and D groups in accordance with each group’s relative backwardness and proportion of population, with a view to fixing the percentage of compensatory seats in public appointments and admissions to educational institutions for said groups. This essay is an attempt to critique the Supreme Court’s argument for the ‘homogeneity’ of the Dalit category and to argue for a ‘rationalisation of reservations’ as a means to an equitable distribution of compensatory measures amongst the Dalits.

The grounds upon which the Supreme Court based its verdict are: (a) homogeneity of the Dalit castes, (b) immutability of the Presidential List, and (c) the authority to alter the categorisation of the SC List, which lies outside the purview of the State Legislature.  The third aspect, whether categorisation of Dalit castes falls under the purview of the State Legislature or Parliament is not the subject of our concern.  This is a procedural question and can be decided in Parliament by a majority vote.  However, the progressive step, to ameliorate the conditions of the marginalised among the Dalits, undertaken by the Government of AP, would be nullified if we did not pay attention to the first two aspects of the judgement.

Drawing upon Constituent Assembly debates and Article 341 of the Constitution, the Supreme Court of India invalidated the Act.  It declared that neither the state legislature nor its executive has the power of ‘disturbing’ the Presidential List of Scheduled Castes, in the form of interference, re-arrangement, re-grouping or re-classification.  Quoting from Justice Krishna Iyer and Justice Fazal Ali’s verdict in the case of N.M Thomas vs State of Kerala in 1976, the Court insisted that once castes are included in one list they become one class under the Constitution, and any subsequent division of these classes of persons would amount to ‘tinkering’ with the Presidential List.  It has further argued:

The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole…  The very fact that a legal fiction has been created is itself suggestive of the fact that the Legislature of a State cannot take any action which would be contrary to or inconsistent therewith.  The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub-classified further.  If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List.  Such sub-classification would be violative of Article 14 of the Constitution of India.[3]

An avalanche of social science research, since the middle of 19th century, has proved the pervasiveness of caste system at all levels in Indian society.  No religion and no individual is unaffected by this social characteristic.  Governments and academics tend to organise castes into hierarchical categories, such as upper castes, lower castes, Scheduled Castes, Scheduled Tribes and Other Backward Classes, etc.  Yet, each person in India has a horizontal caste identity of their own.  For instance, Brahmins, Thakurs, Kammas, Reddys, Nayars, Lingayats, Hegdes and numerous other castes come under the category of caste Hindus or so-called upper castes.  They all belong to one category, practice one religion (in different forms) and observe similar rituals and festivals.  Yet, each caste is separate, lives separately (at least in rural villages) and has their respective caste identities.  Suffixing caste tags to individuals’ proper names, like Narayana Sashtri, Santosh Hegde, and Raja Sekhara Reddy etc., is a classic example for the exclusivist nature of individual castes within the caste Hindu society.  There is nothing common that binds them as one category, except in uniting on the occasions when their interests clash directly with the interests of the Dalits, Adivasis and other marginalised groups.  A sociological tool that highlights this kind of caste homogeneity is the practice of endogamous marriage.  Indian sociologists and social anthropologists are ever eager and even enthusiastic to generalise on the basis of a few examples, that sub-caste and inter-caste marriages are a dominant social phenomenon in contemporary India, whilst the reality contradicts such generalisations.  Indeed, even if one were to assume the ‘homogeneity’ of the caste Hindu category, one comes across inter-caste marriage relatively rarely.  It is common knowledge that not only people from rural areas follow strict endogamous principles with religious inviolability but also urban, the so-called ‘enlightened,’ and English educated too.  The shameless advertisements both in the vernacular and English press, seeking bride or groom of one’s own caste are true evidence of such social boundaries.  Dalits, who are part and parcel of the same society, are not immune to such social practices.  They may be addressed with different nomenclatures as ‘Untouchables’, ‘Harijans’, ‘Scheduled Castes’ and ‘Dalits’ by caste Hindus. With the exception of  the common feature of “victims” to the practice of Untouchability and poverty, there is nothing common amongst the castes in the list of Scheduled Castes that characterise them as a ‘homogeneous’ category.  Like any castes in the social hierarchy they also follow the same endogamous rules and each caste has a distinctive identity and lives separately.  It is no exaggeration that some castes amongst the Dalits often draw their water from different sources.  More importantly, there exists a miniature hierarchy amongst them that puts some castes at the upper rung of the ladder and others at the bottom.[4] At times more than caste Hindus, some Dalit castes jealously safeguard their status and commensality and inter-caste marriages are simply unthinkable.  In any village the interaction between two Dalit castes is significantly less than their interaction with the other castes in the village.[5] Those who created the Constitution, pursuing a great vision and ideal, wanted to create a society based on the principles of equity, equality and unity.  Their egalitarian notions led them to retain the category of ‘Depressed Classes’ and incorporate it into the Constitution of India as one group.  However, people or castes of people with ingrained inequalities, concerned for status and power,[6] will not become ‘homogeneous’ simply because the Constitution wants them to be.  Passing of legislative acts to create a normative social order is one thing, but actually changing the practices and attitudes of the people is a different matter.  There is a great difference between the law and people’s attitudes and social practices.  For an equitable distribution of state benefits amongst the poor, it is imperative to take account of these social differences.  Nonetheless, even if one considers Dalits as a homogeneous category, one does not understand the rationale behind preventing a government to take measures to raise the downtrodden.[7] Of course, we are aware that by categorising the Dalits into four groups, the state government did not come with a radical agenda to improve their lot.  It simply sought to distribute reservations more equitably amongst them, by taking into account each caste’s economic situation, social backwardness and percentage of population.  It is in fact in line with Dr. Ambedkar’s thinking and argument.

By the time the Constituent Assembly sat to frame a constitution for free India, the country had had significant experience with compensatory policies both at the state and central levels: the Princely State of Mysore, Madras and Bombay presidencies had been implementing reservation policies since the 1920s.  At the central level, the need to provide safeguards for minorities with regards to the appointment of jobs, as well as against potential legislative tyranny of the majority, were recognised and remedies were enshrined in various government Acts by the British rulers in India.[8] Nearly a three-decade long experience with reservation policy revealed the fact that a large proportion of reservations were actually taken advantage of by the developed amongst the minorities and that the poor continued to crawl. Ambedkar was clearly aware of this drawback of the policy, that was evidently reflected both in his monumental work, what could rightly be called ‘the Magna Carta of Dalit Rights’, State and Minorities: What are their rights and How to secure them in the Constitution of free India; as well as in his defence of reservation rights for minorities, Dalits and Adivasis during the Constituent Assembly proceedings.  Debating in the ‘Advisory Committee on Fundamental Rights and Minorities’, he vociferously argued for equality not merely between caste Hindus and minorities but also amongst the minorities themselves.  He insisted, “I personally do not see why it is not possible to add a further clause…Even among the members of the same minority (community) there may be complaints of partiality, of provincial favouritism of personal favouritism.  I have often heard the complaint that all the posts for the Muslims go to the Punjab Muslim and few to the Madrasi Muslim.  Even among the minorities, we want equality of opportunity.”[9] Major portions of the reservations were seized by the well-to-do sections amongst the minorities, thereby depriving the truly needy.  It was in this context that guaranteeing equality of opportunity even amongst members of the same category was essential.[10] Ambedkar did not want the experience of the Muslim reservations to be repeated among the Dalits.  Hence, he was cautious to incorporate in his memorandum provisions that would prevent a single caste appropriating reservations.  Thus, representation and reservations given to the Dalits were to be distributed equally amongst them and no caste was to be preferred or given advantage at the cost of other castes.  This he emphasised in a section concerning ‘Safeguards for the Scheduled Castes’ in his memorandum to the ‘Advisory Committee’. “Weightage where it becomes necessary to reduce a huge communal majority to reasonable dimensions shall come out of the share of the majority.  In no case shall it be at the cost of another minority community.[11] He further stressed dividing the reservations in accordance with respective castes’ backwardness, social status and educational advances.  To quote him again: “Weightage carved out from the share of majority shall not be assigned to one community only.  But the same shall be divided among all minority communities equally or in inverse proportion to their (1) economic position, (2) social status, and (3) educational advance.”[12] Thus, securing representation and reservation for the hitherto oppressed sections of Indian society was at the forefront of Ambedkar’s agenda during the proceedings of the Constituent Assembly.  Nonetheless, it was equally important for him that such secured compensatory measures be equally distributed amongst the disadvantaged.  However, he made a fine distinction between distribution with equity and equality of distribution.  Dividing the compensatory measures equally between castes that were better off and the marginalised was not a fair measure.  Preference must be given to the people who were economically depressed, socially oppressed and educationally deprived.

The Madigas’ demand for the categorisation of Dalits and thereby the reservations, according to each caste’s social backwardness, are in consonance with Ambedkar’s philosophy of equality of opportunity and equitable distribution amongst the marginalised.  The Madigas are one of the most disadvantaged castes amongst the Dalits in Andhra Pradesh.[13] The following data discloses the differences in accessing reservation quotas by the Madigas and Malas, the two major castes within the Dalit category of the state, and substantiates the Madigas’ demand for the rationalisation of reservations:

Table 1: Literary Levels among the Malas and Madigas (in 1961, 1971 and in 1981)[14]

Year 1961 1971 1981
Caste Malas Madigas Malas Madigas Malas Madigas
Total  Population 17,45,466 21,47,879 21,13,393 23,14,948 28,94,643 35,72,622
%  of Total Literates 10.1 5.1 12.9 6.2 21.23 11.81

Table 1 gives us a glimpse of literacy rates amongst the Malas and Madigas.  From the beginning Malas have been at the forefront of education.  The 10 percent literacy rate amongst the Malas in 1961 has risen to little more than double by 1981.  Madigas on the other hand, though gradually improving, are not even half way to the point at which the Malas are.  These different levels of literacy rates are reflected and continued in their entry into higher educational institutions.  Table 2 explains such differences: Table 2: Enrolment of the main Scheduled Castes in Higher Education Institutions[15]

Caste Mala Madiga Adi-Andhra Relli*
Total Population  (1981 census) 28,94,643 37% 35,72,622 46% 6,98,860 9% 76,329 1%
J.N. T. University (Engineering admissions 1992-96) 98 59% 43 26% 15 10%
Osmania University (Engineering admissions 1992-97) 65 48.5% 27 20% 1 3%
Science course in three Universities 314 65% 183 38% 7 1.4%
Arts groups in three Universities 600 71.5% 331 39.5% 14 1.6%
AP State Welfare Residential Schools (upto Intermediate) (1996-97) 6790 62% 3880 35% 214 2% 42 0.4%

* Rest of the 56 castes within the SC category in the state constitutes 7 per cent in the total SC population. Table 2 gives us an overall picture of Dalits position in the medium and higher educational institutions.  It is a true reflection of the condition of Dalits in the state.  Jawaharlal Nehru Technological University has three constituent engineering colleges in Hyderabad, Kakinada, and Anantapur and it has nearly 185 affiliated colleges throughout the state.[16] Yet oddly, a meagre 156 Dalit students secured admission onto engineering courses.  Their situation in the rest of the higher educational institutions is no better than that of JNTU.  One can see the massive inconsistency between the total population of Dalits and the number of seats that they have secured in higher education.  When we look closer still at how those seats are distributed amongst individual castes (within the Dalit category) the disparities are glaring.  The Malas, who constitute 37 percent of the total Dalit population in the state, have been the major beneficiaries of the compensatory measures.  In any institution the proportion of the seats occupied by the Malas is more than half of the entire reservation quota.  At university levels too ¾ of reservation seats are filled by the Malas.  Numerically Madigas are greater than the Malas, yet, their numbers in admissions into medium as well as higher educational institutions are nowhere near to the number of Malas.  Naturally this domination of the Malas at all educational levels continues within the sphere of employment.[17] As in education, so in employment, Malas account for more than half of the rest of the Dalit castes.  In the public sector, in the secretariat and district offices Malas hold more jobs than Madigas.  Table 3 reveals the Malas domination in the reserved jobs:

Table 3: Employment of the four major Scheduled Castes in Government[18]

Category (Employment) Mala Madiga Adi-Andhra Relli
Employees in Central & Public Undertakings 5896 59.96% 3756 32.86% 1112 9.73% 83 0.72%
State Govt. Sector 735 61.8% 369 31% 33 2.77% 2 0.25%
Employment in Dist. Offices (15 Dists.) 10703 50% 7282 34% 2402 11.23% 577 26%
Secretariat 169 63% 70 26% 20 7.5% — —
Heads of Dept. (in 66 Depts.) 2101 59.5% 1216 34.4% 149 4% 43 1.2%

‘The Rationalisation of Reservation Act’ has unambiguously changed the Dalit situation in AP.  It has not merely closed the loopholes in the compensatory policy but also allowed each Dalit caste to have its due share, depending upon their social backwardness and population. It is a step towards the fulfilment of the call given by Ambedkar in 1942.  At the All India Scheduled Castes Conference in July 1942 Ambedkar demanded: “That provision shall be made by law for securing representation to the Scheduled Castes in all Executive Governments – Central and provincial – the proportion of which shall be determined in accordance with their number, their needs and their importance.[19] As has been shown above, Ambedkar was not for an indiscriminate distribution of reservations.  For him social contexts and the condition of marginalization are important for any compensatory measure. Madigas’ deprivation is not only because Malas are taking advantage of the reservations, but also due to their own social backwardness in comparison with the other Dalit castes in the state, particularly with the Malas and Adi-Andhras.  The contexts of Madigas’ economic marginalization i.e. social backwardness and educational deprivation are the conditions that justified their demand for rationalization of reservations.  With the categorization, the Madigas, Rellis and other marginalised castes amongst the Dalits have begun to reap the benefits of the compensatory policy in terms of their entry into higher educational institutions and jobs.  For the first time they received their rightful share in various recruitments conducted by the Andhra Pradesh Public Service Commission.[20] However, since the principle of categorisation is restricted to education and jobs, the Malas have continued to dominate the seats that were reserved for all Dalits in representative bodies.  In 1994 out of a total of 39 seats in the state Legislative Assembly, while the Malas gained 23 seats, the Madigas had to be satisfied with a mere 16.  The same went for their representation in Parliamentary seats.  The Madigas hoped that categorisation would remedy this injustice and that political parties would apply the same logic of categorisation (even though that it is not legally required) in allotting seats to the Dalits, i.e., in accordance to the proportion of each caste within the total population.  The political parties, who, on the other hand, are largely interested in winning seats rather than the distribution of justice, continue to favour the Malas.  Thus, the Madigas’ situation in the 2004 elections remained as it was in 1996.  Table 4 and 5 demonstrates this point. Table 4: Comparison of Malas and Madiga MLAs in 1994 and 2004 Legislative Assemblies

Caste Malas Madiga Total Number of SC seats
1994 23 16 39
2004 23 16 39

Table 5: Comparison of Malas and Madiga MPs in 1994 and 2004 Lok Sabha

Caste Malas Madiga Total Number of SC seats
1996 4 2 06
2004 4 2 06

If the reserved seats were to be distributed, amongst the four groups of Dalits on the lines of categorization, they would be distributed in the following manner: Table 6: The share of seats to each group in the Legislative Assembly

Group % of reservation after categorization Seats to get
Relli (A) 1 1
Madiga (B) 7 19
Mala (C) 6 18
Adi-Andhra 1 1
Total 15 39

Table 7: The share of seats to each group in Lok Sabha

Group % of reservation after categorization Seats to get
Relli (A) 1 1
Madiga (B) 7 2
Mala (C) 6 2
Adi-Andhra 1 1
Total 15 6

The second aspect of the verdict – (what the Court called the ‘sanctification of Scheduled Castes List’) is more unfortunate than the first.  Presented as a ‘violation’ of some of the clauses of the Constitution, which apparently is tantamount to ‘tinkering with the List’, the Supreme Court tried to sanctify the Presidential  List at the expense of millions of depressed Madigas and Madiga-like castes within the SC List.  If one were to look at the history of the Scheduled Castes List, it was, except for a few inclusions from time to time, the result of JJ Hutton’s (Census Commissioner of India) 1931 classification of Depressed Classes.  The list was adopted in the Government of India Act of 1935 for providing special protection to the said classes. The same list was promulgated by the President of India in the Scheduled Castes Order in 1950.  Fifty-five years down the line, substantial improvements have taken place among the Dalits.  A few castes improved their conditions, thanks mainly to compensatory policies and developmental measures.[21] Children of Dalit IAS, IPS and other allied services and Group I & II category officers in states, because of their improved position and better education are equipped to compete with the general category students and do not require the assistance of the reservation policy.  A significant point that has, so far, been downplayed is that a substantial number of job- holders amongst the Dalits invariably come from ‘well placed’ castes.  A preponderance of Chamars in Uttar Pradesh, Mahars in Madhya Pradesh, Holays in Karnataka, Malas in AP, and Palayars and Palars in Tamil Nadu in the reserved jobs substantiate the point.  If two people belonging to the same List but with different backgrounds compete for the same job, it is entirely predictable who will get the job.  But the Supreme Court of India seems to be unconcerned with these realities and primarily obsessed with maintaining the status quo of the SCs List.  There seems to be a similarity between the declaration of English Parliament of 1688 and the present verdict of the Supreme Court.  Submitting themselves and their posterities to William and Mary the Parliament declared: “The Lords Spiritual and Temporal, and Commons, do, in the name of the people … most humbly and faithfully submit themselves, their heirs and posterities, for EVER.”[22] A hundred years later arguing against such declarations of binding and controlling posterity to the end of time, Thomas Paine observed “Every age and generation must be as free to act for itself in all cases as the ages and generation which preceded it.  The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.  Man has no property in man; neither has any generation a property in the generations which are to follow.”[23] Each generation has the benefit of experience of the past. But the past experience cannot be one’s living experience.  Every generation should have the capacity and right to modify their present and build their future, again taking lessons from the past.  Institutional forms and constitutional arrangements are mere aids in human progress.  They are, as argued by Sudipta Kaviraj, mobile and plastic.[24] Every generation and society constantly improves their conditions with the help of institutional arrangements.  Over the years, new problems tend to arise and new instruments and rules are needed to face such challenges.  “If we accept the theory of immutability of the Constitution, we are no longer talking in terms of human frailty…we are in fact treading into the realm of religion and spiritualism where the authority of the divine revelation is supreme, unchallenged and immutable.”[25] Some of the views and arguments of the framers of the Constitution of India do not hold good any more and should not be binding on the present generation.  The context of enshrining compensatory measures in the Constitution emerged from a situation where the conditions of most Dalit castes were more or less similar.  Reservation for the ‘category’ as a whole, which was created for that special purpose, was justified in that context.  However, as shown in the above, clearly there has been a disproportionate development within the category.  A few castes have clearly benefited from the compensatory policies and their domination is causally connected with the marginalisation of other castes.  The ‘categorization’ demand stems from recognising these loopholes in the policy and the need to eradicate such ambiguities, thus ensuring equal opportunity among the Dalits.

A third aspect, which is not directly connected to the Supreme Court’s judgement but which would be affected due to the verdict, is that of the reservations in the private sector.  Dalits’ demand for an extension of reservations in the private sector is gaining momentum and assurances on this point were given by the Congress Party in its election manifesto.  Gradually, industrial houses are coming to terms with the logic and necessity of reservations in the private sector: a major step towards equality of opportunity for those hitherto oppressed by the largest employers of the country.  However, such a step necessarily has to take into account the demands for equitable distribution of reservations.  Today, in different parts of the country, especially in the southern states, the campaign for categorisation of reservations is gathering support.  Since the Madigas and Malas are the most numerous Dalits in AP, such a demand has been projected merely as a competition or rift between these two castes, when in reality it is about justice and cuts across all the Dalit castes.  It was in fact the Madigas of Karnataka who for the first time demanded categorisation of reservations.  The Madigas of AP, inspired by such an example, took the demand further.  Now, the Chakkaliyars in Tamil Nadu are following Madigas of Karnataka and AP, by making a similar demand.  Research on the internal differences amongst the Dalits in Tamil Nadu, conducted by independent Dalit groups has strengthened and justified the Chakkaliyars demand.  In Tamil Nadu, while the literacy rate amongst Dalits as a whole is 19%, that amongst the Chakkaliyars it is only 4% (1991 census).  Only 1% of government jobs are held by Chakkaliyars, though a total of 18% of government jobs are occupied by Parayars and Palars. The number of Dalit MLAs at present is 45, out of which only 3 are from Chakkaliyars.[26] A policy of reservations in the private sector should take these facts and the demands for categorisation into consideration.  Without such provision the projected policy would not help the marginalised in any substantial way and would rather, repeat the experience of compensatory policy in the public sector.

Finally, the Supreme Court’s suggestion of “adequate or additional training so as to enable” all the castes within the Dalit category to compete and access the reservations, is well intended and a sound suggestion but impractical, given our past experience with lofty but empty ideas.  There is a similarity between the Supreme Court’s suggestion and the ideas already contained within the Directive Principles of State Policy.  The DPSP had clearly recommended adequate action by respective governments to ameliorate the conditions of the marginalised; we now know the fate of such suggestions.  There is nothing in the verdict that binds the government to take necessary action to provide ‘adequate facilities’.  In the absence of such legally binding instruction, the Supreme Court’s suggestion will receive the same fate as the DPSP.  Vivek Kumar in his discussion on the reservation controversy, has challenged the central government to bring out a white paper on the present status of reservation policy, if the government is “truly sincere about opening up employment opportunities to the socially oppressed” in the private sector.[27] Such a document is necessary not just for any future course of action on the reservations, but importantly, as a means to test the sincerity of the respective governments in fulfilling their Constitutional obligations towards the people at the bottom of the heap.  But a white paper with a mere statement on the status of reservations is not enough.  It should disclose the employee’s caste background.  A document of this nature would reveal the facts about the domination of individual castes in reserved jobs, which would certainly act as an eye-opener not merely to the State and Central governments but also to the Supreme Court.  For, the Court’s view regarding the alleged ‘homogeneity of Scheduled Castes’ is based on a gross neglect of realities and the undeniable existence of sharp differences amongst them.  By invalidating the Act, it actually lent a hand to the well-to-do castes amongst the Dalits to ‘eat up’ the meagre government jobs and depress the marginalised even further.  The present category of SCs is neither fulfilling the Constitutional obligation to improve the conditions of the Dalits nor the interests of the Dalits themselves.  It rather serves the interests of the caste Hindus.  For, as long as the Dalits were kept in a box like category, Dalits were restricted to the 15 percentage of reservation jobs and the caste Hindus could corner the rest of the jobs and opportunities.  The Scheduled Caste identity has had tremendous negative psychological effects upon them, which is the reason why they continue to suffer from low-esteem and the inability to realise their full potential.  Moreover, the very identity itself makes them vulnerable to caste Hindus’ domination and ‘hegemony’ in all spheres of human activity in the Indian society.  The Court is actually missing the great opportunity initiated by the Madigas for a casteless society. With categorization, different castes in the Dalit category will be put together according to their backwardness and similarity of occupations.  As equality is possible amongst those people/castes in similar circumstances, placing of Dalits into different groups would afford them the possibility to forge unities, social intercourse and marriage alliances amongst them, which would in the long-run, unify the groups.  Historically there have been a number of examples that substantiate this point.  In AP, for instance, until thirty years ago the Kammas were divided into two castes: china (lower) Kamma and peda (higher) Kamma.  The latter treated the former with contempt, indignity, and marriage between them was a rare issue.  With the opportunities offered by the Green Revolution, the china Kammas improved their economic position that placed them more or less on par with the peda Kammas.  The marital relations between the two eliminated the peda and china boundaries and now there is only one Kamma caste in the state.  Thus, by preventing categorization, the Supreme Court has prevented social intercourse between various castes within the Dalit category.  In addition, by declaring the ‘immutability’ of the Scheduled Castes List, the Court, in fact, bound the Dalits to the List and thereby to the Scheduled Caste identity, not just the present generation of the Dalits, but also future generations for all posterity. As a general conclusion I would like to emphasise three points.  First, the very purpose of any institutional arrangement or policy is to realise a principle.  Political principles or institutional arrangements do not emerge in a vacuum.  They are specific to particular historical and social contexts.  Institutional arrangements, by extraction from abstract principles, give form to policies, which are again specific to an historical situation.  In any given context, the primacy of the principle has to be acknowledged over a specific form given to it at a particular historical moment in time.  If the historical reality changes, proper realisation of the principle may require a new form, rather than sticking to the letter of the policy.  The Supreme Court of India by rejecting the rationalisation of reservations prefers the mere ‘form’ to the very principle, which is a great mistake.  If we accept the principle and try to apply it to the changed reality of today, the policy should have a new form and categorisation is the best available form that suits the current Dalit situation.  Second, once we agree with the validity of a principle, it should be applied systematically.  The policy of compensatory discrimination was created, owing to the disparities between the caste Hindus and the Dalits.  If this was applicable between caste Hindus and Dalits, then the same principle should be equally applicable amongst Dalits themselves.  In other words, if the reservations were established on the basis of the extent of a respective people’s marginalisation and their percentage share of the total population, then the same criteria should hold good in allocating a percentage of reservations amongst marginalised groups within the Dalit category as well.  It is following this line of argument that the Madigas’ demand for the rationalisation of reservation is proven valid and justified.  Actually the Madigas’ demand was a simple and limited one.  They were only asking for equalization of compensatory measures, when they have every right to demand more than their relative share.  State support was required for those people who were in a disadvantageous position in comparison with others in society.  If we follow that logic then the Madigas, who are some of the most marginalised amongst the marginalised, should be entitled to more than their proportional share in the reservations.  What follows from this line of argument is that eventually amongst the Dalits, the criteria of ‘caste’ should be supplemented or that ‘economic criteria’ should be tacked on to ‘caste criteria’, in order to qualify for compensatory measures.  In this way, not only the poor amongst the Madigas but also poor amongst the Malas, would get help from the state.  However, the application of ‘economic criteria’ amongst the Dalits (and Adivasis) is not the same as that of applying it to rest of castes in the Indian society.  The compensatory measures were provided for the Dalits because they were not just economically deprived, but importantly, socially oppressed.  The reports of the National Commission for Scheduled Caste and Scheduled Tribes, the National Human Rights Commission, and national and international NGOs, all attest to their economic deprivation and tell of atrocities and violence meted out against them by the caste Hindus.  As long as Dalits were discriminated against in the name of caste and excluded both from public as well as private spheres (again on the same basis) the principles upon which the compensatory measures were provided for them were seen as valid and justified.[28] Finally, in recent political and sociological debates, particularly in the last two decades, the very policy of ‘compensatory discrimination’ has come in for serious criticisms and challenges.  Critics have become vocal in the context of extending the policy to more and more social groups.  It also exists in a context where there is firm competition from the Dalit middle classes, particularly in the job sector.  The upwardly mobile Dalit middle classes are not restricting themselves just to the 15% reservation jobs (we must remember that the 15% quota has never been filled, except in grade IV jobs), they are competing with caste Hindus in the open category as well.  The caste Hindus, who were terrified by this Dalit ‘encroachment’ on the jobs that were ‘kept’ exclusively for them,  have begun  to challenge the compensatory policy, by pointing out that the Dalits have enjoyed the benefits of reservations for more than half a century.  They argue that  a group of people who have drawn its benefits, have actually moved up the social ladder and joined advantaged groups, such as the middle classes and even elite sections.  According to these critics, this has given them an undue advantage not merely over the poor amongst caste Hindus, but also over the poor amongst Dalits, thus, the entire policy is fallacious and must be discontinued.  The compensatory policy benefiting a group of people amongst the Dalits is undeniably true, but this cannot be the basis to eliminate the entire policy itself.  For a major portion  amongst them, such as  Madigas, Mangs,  Chakkaliyars and many others, still continues to live a life that is no different from their forefathers’ some fifty years ago.  A proper answer to caste Hindus’ criticisms, as well as a means to improve the lot of the marginalised amongst the Dalits (a sort of double edged sword) would be the categorisation of all the Dalit castes according to their backwardness and giving each caste their ‘due share’.

In conclusion, the Supreme Court’s invalidation of ‘rationalisation of reservation Act’ merely on the basis of ‘homogeneity’ of the Dalit castes does not reflect the reality of the situation. Whilst deliberating upon the Act, it should have taken into consideration disparities and discrepancies amongst individual castes within the larger Dalit category.  Its opinion of ‘immutability’ of the Presidential List is unacceptable from the point of view of Dalit identity and respect.  Dalit identities have been changing not because Dalits themselves are changing it, but because society and governments (whether of colonialists or post-colonialists) have been ‘tinkering’ with their identities.  While the identities of Brahmins, Thakurs or Hegdes, since they serve the caste Hindus’ interests, may remain permanent, Dalit identity cannot remain permanent, not only because it does not serve their interests, but also because it subordinates them permanently, to the caste Hindus.  It is time that the Dalits were left to decide their identity.  It is also time that the Government of India, taking stock of the fifty-five years of the compensatory policy’s implementation, change the outdated ‘form’ to serve the marginalised and deserving within the Dalit category.  The best way to begin with, is to categorise all the Dalit castes in accordance with their backwardness and proportion of population and thereby to allow each caste to have their rightful share.

Email: sam.gundimeda@soas.ac.uk

References and Notes

* I am grateful to Sudipta Kaviraj and Sasheej Hegde for clarifying my thoughts and commenting on the draft. I am also greatly benefited from my discussions with Eleanor Zelliott, Sharmila Sree Kumar, Vijay Kumar Boratti, Karuna Mantena, Lucy Haines, Cyble Soans, and Hazel Still. I am grateful to each and every one of them.  Any shortcomings, needless to say, are invariably mine.

[1] Thomas, Jefferson, Thomas Jefferson on Democracy, – Selected and arranged with an Introduction by Saul K. Padover, New York: New American Library, 1954, p. 67.

[2] For background of the Act, see K Balagopal, ‘Justice for Dalits among Dalits: All the Ghosts Resurface’ in EPW, Vol. 40, No. 29, July 16, 2005.

[3] http://judis.nic.in/supremecourt/qrydisp.asp (Case Number: Appeal (civil) 6758 of 2000, date of judgement: 05/11/2004.

[4] K. Balagopal, ‘A Tangled Web: Sub-division of the SC Reservations in AP’, EPW, March 25, 2000, p.1077.

[5] AM Shah, ‘The ‘Dalit’ Category and Its Differentiation’, EPW, April 06, 2002. Also see, N. Subha Reddy, ‘Community- Conflict among the Depressed Castes of Andhra’, Man in India, Vol. XXX, No.4, 1950, pp: 1-11; Karve I., ‘What is caste? Caste as extended kin’, EPW, July 10, 1958, pp: 125-38; Sambaiah Gundimeda, The Emergence of Sub-Caste Identity and Consciousness among the Dalits in Andhra Pradesh: A case study of the Madigas, unpublished MPhil thesis, University of Hyderabad, 2000.

[6] For an excellent discussion on Indians concern for status, see, Andre Beteille, Chronicles of Our Time, New Delhi: Penguin Books, 2000, pp: 111-116.

[7] Historically we had evidence, where reserved seats were distributed among the followers of the same religion but with different social backgrounds. The Christian community in India had been divided into three sections – Europeans, Anglo-Indians, and Indian Christians. Despite the fact that they all belonged to the same religion, each section was given separate electorate considering the social conditions, discrimination and separation, under the Government of India Act, 1935. See, B. Shiva Rao, The Framing of India’s Constitution: Select Documents, New Delhi: The Indian Institute of Public Administration, 1967, pp: 109-110.

[8] Preferential treatment in recruitment for government services, education, housing, revenue and agricultural administration became a steadfast policy of the British Government in India. The Government of India Act, 1919, provided for communal representation of Mohammedans, Sikhs Anglo-Indians, Indian Christians, Depressed Classes, Aborigines and other groups. An analogous arrangement had become a prominent feature in the Government of India Act, 1935. See, Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Berkeley: University of California Press, 1984, p. 363, and passim 1, p.363.

[9] B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II, New Delhi: The Indian Institute of Public Administration, 1967, pp: 224-225. (Italics are supplied)

[10] ——–, The Framing of India’s Constitution: A Study, New Delhi: The Indian Institute of Public Administration, 1968, pp: 192-194.

[11] ——–, 1967, Op.Cit., p. 93. (Emphasises are mine).

[12] B. R. Ambedkar, States and Minorities: What Are Their Rights And How To Secure Them In The Constitution of Free India, Bombay: Thacker & Co, 1947, p. 23. (Italics are supplied)

[13] For a detailed discussion and analysis of the Madigas’ demand for the categorisation of reservations, see, Jangam Chinnaiah, ‘Sub-Caste consciousness and challenges before Dalit intellectuals’ in Mainstream, March 14, 1998, pp: 7-8 & 32; K. Balagopal, Op.Cit,; Sambaiah Gundimeda, Op. Cit.,; K.C. Suri, ‘Dialectic of Social Justice: The Struggle of the Madigas for Categorisation of Scheduled Caste Reservations in Andhra Pradesh’, in R. Balasubramanian (ed.), Social and economic dimensions of caste organisations in South Indian states, Chennai: University of Madras, 2001, pp: 228-245; G.V. Siva Reddy, ‘Competition and Conflict among the Dalits: Madiga Dandora Movement in Andhra Pradesh’, in Ghanshyam Shah (ed.), Dalits and the State, New Delhi: Concept Publishing Company, 2002, pp: 325-342.

[14] Figures pertaining to 1961 and 1971 were taken from Uma Ramaswamy, ‘Protection and Inequality among Backward Groups’, EPW, Vol. XXI, No. 6, March, 1986 and figures for the year 1981were taken from Justice Ramachandra Raju’s commission’s report  quoted  in Sambaiah Gundimeda, Op. cit., 2000.

[15] Figures as given in Justice Raju Commission’s Report, quoted in G. Venkata Siva Reddy, Op. Cit., p. 334.  Adi-Andhras and Rellis are the two other major castes among the Dalits in AP.

[16] http://www.jntu.ac.in/affiliated_colleges.htm

[17] A newspaper reported: “…while the Malas were trying to compete with the developed Kammas and Reddys, the Madigas were not even in a position of compete with the Malas.”  http://www.expressindia.com/ie/daily/19980620/17150824.html

[18] V. Shiva Reddy, Op. Cit,, p.334.

[19] B.R. Ambedkar, Emancipation of the Untouchables, Bombay: Thacker & Co. Ltd., 1972, p. 16 (Emphasises are mine).

[20] The Annual Report of the AP Public Service Commission for the year 2001-02.

[21] For contexts and analysis of such demands, see, Marc Galanter, Op. Cit. pp: 136-140 and 547 -567.

[22] Thomas Paine, Rights of Man, Hertfordshire: Wordsworth Editions Limited, 1996, P.8

[23] Ibid., p.9

[24] Sudipta Kaviraj, ‘Democracy and Social Inequality’, in Francine R. Frankel & others (eds.), Transforming India: Social and Political Dynamics of Democracy, New Delhi: OUP, 2000, p.90.

[25] Ibid.,

[26] R. Karuppusamy in Asian Human Rights Commission –  http://www.rghr.net/mainfile.php/0607/675/

[27] Vivek Kumar, ‘Understanding the Politics of Reservation: A Perspective from Below’. EPW, Feb.26 – March 4, 2005, Vol. XL No.9, p.803.

[28] I am thankful to Dr. Kaviraj for this point.  It is about equality, of course, but informed by a premonition about which equalities matter.

1 Comment

Filed under For Social Justice

One response to “Supreme Court and Categorisation of Scheduled Castes List*

  1. Y.Hanocvardhan

    Dear Sir,
    It is regret to bring to your notice that great leaders like both sides should have ask to increase the percentage of Reservation for Scheduled Castes and demand for dalit Christians to get same benefits as they are your lifepartners.
    Y.Hanocvardhan
    All India SC ST BC Mino EMP.WEL.ASSOSN
    A,P BHiMAVARAM.

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