On February 4, the Telangana government announced the criteria for sub-categorisation of Scheduled Castes (SCs) in the state, as recommended by a one-member judicial commission led by Justice Shameem Akhtar. However, Chief Minister Revanth Reddy said that his government had rejected one of the four main recommendations – that of introducing a creamy layer among SCs.
The suggestion has its roots in the August 2024 Supreme Court judgement allowing sub-categorisation of Scheduled Castes (SCs). Four of the seven judges on the Constitution Bench that decided the case said in their judgements that the ‘creamy layer principle’ should apply to SCs, with different criteria than OBCs.
Although the then Chief Justice of India DY Chandrachud remained silent on the creamy layer issue, the language used in his judgement, which often uses the term ‘class’ rather than ‘caste’, portends the possibility of changing the SC reservation category from a caste-based one to a class-based one, on the lines of Other Backward Classes.
The Presidential Order of 1950
Even after the August 2024 Supreme Court judgement allowing the sub-categorisation of Scheduled Castes (SCs), the Union government and various state governments have issued several notifications for job recruitments – including the Union Public Service Commission (UPSC) – only in accordance with the Constitution (Scheduled Castes) Order or the Presidential Order, which specifies the communities deemed to be SCs in various states and union territories.
As of now, these governments have not bothered to incorporate the directions of the sub-categorisation judgement, which allows a quota within quota for castes that are more marginalised among the groups within a reserved category.
But in Telangana and Andhra Pradesh, the verdict has heightened the conflict between Madigas and Malas, leading to confrontational caste mobilisations on a regular basis.
Based on the directions of the seven-judge Constitution Bench, the Union government may even have to amend the Presidential order or the Constitution (Scheduled Castes) Order, 1950. However, the use of the word ‘class’ in this judgement has the potential to change the basic principle of untouchability.
The Presidential Order and Ambedkar
The Presidential Order of 1950 was drafted by Dr BR Ambedkar in addition to Article 341 of the Constitution of India, which empowers the President to “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 any state or union territory.
Based on his long, strenuous struggle against untouchability as the then Law Minister, Ambedkar treated the entire group of Scheduled Castes as homogenous in Article 341. His fundamental goal was to provide reservations in the electoral system, education, and employment for the Scheduled Castes of India.
To be fair to the tribes, who were also severely oppressed, Ambedkar included them in the Presidential order as Scheduled Tribes. Of course, these two broad categories were already listed in the Census records of India as homogenous categories.
Six of the seven judges of the Constitution Bench agreed that sub-classification of SC/ST groups is not unconstitutional. Their conclusion was based on the Union Law Ministry’s approval note, and oral arguments by the Union government’s advocates in the Supreme Court.
Supreme Court’s proposed reservation models
There were a total of six judgements given by the Constitution Bench. Then Chief Justice of India DY Chandrachud, in the judgement written for himself and Justice Manoj Misra, proposed two models of reservations for the “sub-classified classes” – a preference model and an exclusive model.
“In the first model, the class(es) [emphasis added] that are more socially backward are given a preference to all the seats that are reserved for the Scheduled Castes,” Justice Chandrachud’s judgement said.
Justice Chandrachud had said in his judgement that the preference for certain castes can apply to either all seats or just a certain percentage of the seats.
This is the model that Telangana has decided to follow, by splitting the 15% SC quota into three sub-categories. This means any vacancies notified but left unfilled by candidates from Group 1 (comprising sub-castes that are socially, economically, and educationally most backward) shall be filled by candidates from Group 2, and those unfilled by Group 2 shall be filled by Group 3. If suitable candidates are not available in all the groups, the vacancies will be carried forward.
In the exclusive model, a percentage of seats shall be exclusively available to certain castes, to be carried over to subsequent years until they are filled by those castes alone.
Heterogeneity among SCs
Ambedkar included Article 341 in the Constitution after facing a lot of opposition. The term ‘caste’ and not ‘class’ was used quite consciously by him. In the Presidential order too, the term ‘caste’ was used with the same approach.
The category of ‘untouchables’ is entirely different from categories such as ‘Shudra’ and ‘Dwija’, even in ancient and medieval India. The ‘untouchables’ were known as ‘Chandalas’ in those times, and were attributed a common identity by the Hindu Sanskrit texts including the Vedas, Ramayana, and Mahabharata. There was no differentiation between the sub-groups. The modern-day Chamars, Jatavs, Mahars, Matangs, Valmikis, Malas, Madigas, and so on, were seen as one group of Chandalas back then.
Whatever occupation they were in–leather work, cattle rearing, village cleaning, or village defense–the concept of Chandala treated all of them as one group of human untouchables, who were forced to live outside the Shudra and Dwija localities.
The Dwijas—Brahmins, Kshatriyas, and Vaisyas—also treated all Shudras as one group, whether they were tillers of land, shepherds, potters, smiths, etc.
With a conscious understanding and intent of eradicating the barbaric system of human untouchability, Ambedkar classified the various ‘untouchable’ castes under one group of Scheduled Castes. Hundreds of castes continue to suffer various forms of untouchability even today.
Precedent set by the RSS and BJP
In the recent past, many Hindutva leaders associated with the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP) have been referring to Scheduled Castes as ‘former untouchables’ or ‘ex-untouchables’, suggesting that they no longer suffer untouchability now. The RSS has been trying to convey to the world that untouchability no longer exists in India.
Hindutva intellectuals have been arguing that the caste system itself was a Muslim-British construct. It is a known fact that human untouchability as a structural practice in Hinduism is a major embarrassment to Hindutva forces.
Caste, class, and the creamy layer
A majority of the Constitution Bench was of the view that the Scheduled Caste category under Article 341 was not a homogeneous group and that the sub-castes faced varying degrees of backwardness. The majority view was that creating sub-classifications within the SC category does not dilute the President’s powers to notify the Scheduled Caste list under Article 341.
However, the language used in the judgement, and the inclination towards bringing in a creamy layer for SCs, is worrisome. The Justice Shameem Akhtar commission in Telangana, for instance, recommended a creamy layer comprising of families of MLAs, MPs, Zilla Parishad chairpersons, mayors, and other public representatives, as well as those employed in Group I services and similar positions in the government.
Along the lines of Justice Chandrachud’s judgement, if ‘caste’ is replaced with ‘class’ in an amended Presidential Order, the question of creamy layer that four of the seven judges of the Constitution Bench approved of is likely to find a place in SC and ST reservations. It is only a matter of time.
The RSS and BJP have already taken steps to introduce class and not caste as the criteria for affirmative action, by bringing in reservation for Economically Weaker Sections (EWS).
Hindutva intellectuals have repeatedly asked how long reservations are to continue in India. The main hurdle to removing caste-based reservations all along was the Constitutional status accorded to SCs and STs through Article 341. Once the basis of that category changes from caste to class, the whole foundation that Ambedkar laid for reservations in India will collapse.
Of course, if untouchability in India has really been done away with, then such a step makes sense. But untouchability of SCs is still in operation in various new and old forms. The Supreme Court judges, who delivered the SC sub-classification verdict, were aware of this fact.
In villages, in the fields of production, in food practices, and in marital relationships, untouchability still operates in age-old forms. In addition, in most modern capitalist-democratic institutions such as universities and colleges including the prestigious Indian Institutes of Technology (IITs) etc. young people are often driven to suicide through institutional untouchability. The most stark example is that of Rohith Vemula’s institutional murder in 2016 at the University of Hyderabad, but there have been many others before and after him.
The SC sub-classification judgement, as many pro-sub-caste classification forces are expecting, is not a straightforward boon on the track of social justice, especially if it paves the way for a creamy layer for SCs. Such a move would be an ideological capital punishment for the foundation of the reservation system in India.
Prime Minister Narendra Modi promised in an exclusive public meeting of Madigas in Hyderabad in November 2023, just before the Telangana Assembly elections, that he would set up a committee to consider the community’s demands for sub-categorisation. His government also argued before the Supreme Court in favour of SC sub-classification.
The Constitution Bench judgement, in a way, has helped fulfill PM Modi’s promise. At the same time, however, it might have paved the way to enforce the RSS narrative that untouchability no longer exists in India. If the word ‘caste’ is replaced with ‘class’ in a new, amended Constitution (Scheduled Castes) Order, it means that Article 341 could also be amended to suit the Hindutva ideology and obfuscate the reality of caste injustice in India.
Kancha Ilaiah Shepherd is a political theorist, social activist, and author. His latest book is ‘The Shudra Rebellion’.
