The sub-classification of the reservation prescribed by the Constitution for Scheduled Castes has today become the focal point of social conflict within the Scheduled Castes themselves. The root of this conflict lies in the judgment delivered on 1 August 2024 by a seven-judge Constitution Bench of the Supreme Court in State of Punjab v. Davinder Singh (2024 INSC 562). By a six-to-one majority, this verdict conferred upon the states the power to create sub-classifications within the Scheduled Castes and overturned the 2004 judgment of a five-judge Bench in E. V. Chinnaiah v. State of Andhra Pradesh. On the surface, the decision appears inspired by the noble aim of “ensuring that the benefits of reservation reach the most deprived.” Yet on a closer examination of its reasoning, it becomes clear that the verdict severs the principle of social justice that forms the foundation of reservation jurisprudence, and thereby strikes at the Basic Structure of the Constitution.
The Evolution of Reservation Jurisprudence
The first milestone in India’s reservation jurisprudence is the case of Smt. Champakam Dorairajan (1951). The then Madras Government’s “Communal G.O.”, which reserved a fixed proportion of seats in medical and engineering colleges for various castes, was challenged in this case. Applying a literal interpretation of Articles 15(1), 16(4) and 29(2) of the Constitution, the Supreme Court held that determining admission solely on the basis of caste and religion violated the principle of equality, and struck down the provision. This liberal individual rights jurisprudence effectively nullified the very concept of reservation.
In response to this verdict, Parliament enacted the First Constitutional Amendment in 1951, inserting Article 15(4). This gave the state an explicit constitutional power to make special provisions for socially and educationally backward classes as well as for Scheduled Castes and Scheduled Tribes. The amendment bill was moved by Dr. Babasaheb Ambedkar himself in his capacity as Law Minister. Defending the amendment in Parliament, he said —
“The provision for reservation that has been made for the backward classes has been made by grouping together certain castes, for that group. Those who have been excluded from the reserved category are also a group of people belonging to certain specific castes… Among the Directive Principles of the Constitution, Article 46 places an obligation to secure the welfare and advancement of the Scheduled Castes and Tribes and the weaker sections — an obligation resting not merely upon the government, but upon this Parliament as well. This responsibility cannot be evaded.” (BAWS, Vol. 15, p. 334)
Dr. Ambedkar’s position makes one fundamental principle clear — reservation is not granted to any single economically backward individual, but is a collective remedy given to a group of castes (Group) that have been victims of the same kind of caste-based discrimination. This group-centric conception is the very core of all the analysis that follows.
Social Justice versus Distributive Justice
A series of judgments was responsible for gradually shifting the basis of reservation from social justice toward an economic criterion.
In M. R. Balaji v. State of Mysore (1963), the Court held that caste cannot be the sole or dominant criterion for reservation; alongside it, administrative efficiency and merit under Article 335 must also be taken into account.
Conversely, State of Kerala v. N. M. Thomas (1975) strengthened the case for social justice. The Court clarified that ‘merit’ is not determined by examination marks alone; granting some relaxation in the marks criterion to sections that have been deprived of education for centuries does not diminish administrative efficiency — rather, it is part of a compensatory measure and of social justice. The Thomas case established that the equality in Article 16(1) and the reservation in Article 16(4) are not mutually opposed, but are provisions that constitute an extended form (a facet of equality) of equality itself.
However, this principle of social justice that the Thomas case had planted was progressively weakened by the following three judgments —
1) Indra Sawhney v. Union of India (1992): In this historic verdict by a nine-judge Bench, the Court ordered that the ‘creamy layer’ among Other Backward Classes (OBC) — that is, the socially and economically advanced sections — be excluded from reservation. An important fact must be noted here — the Indra Sawhney judgment confined the ‘creamy layer’ principle solely to OBCs and expressly excluded the Scheduled Castes and Scheduled Tribes (SC/ST) from it. This is because backwardness rooted in caste untouchability is so pervasive that an individual economic criterion cannot be applied to it. However economically prosperous a person from a Scheduled Caste may become, their social status and the stigma of untouchability do not change — that was the reality.
2) M. Nagaraj v. Union of India (2006): In this case concerning reservation in promotion (Article 16(4-A), inserted by the 85th Amendment), the Court imposed the condition that the state must collect quantifiable data on backwardness, inadequacy of representation, and administrative efficiency before granting reservation. This, for the first time, gave even SC/ST reservation a character that had to be ‘proved’.
3) Jarnail Singh v. Lachhmi Narayan Gupta (2018): This proved to be the decisive turning point. The ‘creamy layer’ principle that Indra Sawhney had excluded for SC/ST was, by this very judgment, applied for the first time to the Scheduled Castes and Tribes. In the context of reservation in promotions, the Court said that “advanced” individuals within SC/ST should not corner the benefits of the truly deprived. In this way, in place of social untouchability, the criterion of individual economic status entered into the reservation of the Scheduled Castes — the very opposite of Dr. Ambedkar’s group-centric conception.
The Davinder Singh Verdict: A Logic of Somersaults
In 2004, in E. V. Chinnaiah v. State of Andhra Pradesh, a five-judge Constitution Bench had declared the sub-classification of Scheduled Castes to be unconstitutional. There were two principal reasons — first, that the list of Scheduled Castes notified by the President under Article 341 creates a homogeneous and indivisible class; and second, that the power to alter that list — to exclude or add a caste — belongs to Parliament alone, not to the states (Article 341(2)).
In the Davinder Singh case, the Constitution Bench led by Justice Dhananjaya Chandrachud performed several logical somersaults in overturning this settled principle. The Court reasoned that —
- Article 341 grants the President only the power to identify Scheduled Castes; it creates no legal fiction that the castes in the list are homogeneous.
- Under Articles 15(4) and 16(4), the states have an independent power to identify differing degrees of backwardness among the listed castes and to create sub-classifications.
- However, such sub-classification must be based on quantifiable and empirical data, and no single sub-group may be granted 100% reservation.
It is precisely here that the constitutional inconsistency of this verdict lies. By applying the principle of equality in Article 14 only so far as “treating similarly situated persons alike,” the Court made inter-se backwardness within the Scheduled Castes the basis for sub-classification. But the common thread — the shared experience of untouchability by virtue of which all these castes were brought under one umbrella — is entirely disregarded in this reasoning.
The Hidden Gateway of the ‘Creamy Layer’
The most dangerous and contentious part of this verdict is the articulation of the ‘creamy layer’. It is essential to note that the question of applying the ‘creamy layer’ to the Scheduled Castes was not part of the original reference in this case at all. Nevertheless, Justice B. R. Gavai, in his separate concurring opinion, noted that applying the ‘creamy layer’ to SC/ST is legally correct, and three of the seven judges — Justice Vikram Nath, Justice Pankaj Mithal and Justice S. C. Sharma — endorsed it. In other words, four of the seven judges, even though this was not the question before them, signalled the insertion of an economic criterion into the reservation of the Scheduled Castes.
Although this portion is not the binding ratio decidendi of the majority, it opens a hidden gateway for future legislative and judicial action. Once the ‘creamy layer’ is applied to the Scheduled Castes, the basis of reservation will become entirely economic — and it is there that the group-centric framework of social justice laid down by Dr. Ambedkar will collapse.
The Lone Dissent of Justice Bela Trivedi
The sole dissenting opinion on this Bench was that of Justice Bela M. Trivedi — and it is precisely that opinion which is consistent with constitutional principle. She held that the list notified by the President under Article 341 is final upon notification, and that the power to alter it belongs to Parliament alone; the states possess no legislative competence to sub-classify the Scheduled Castes. Dividing them into sub-castes would fragment this class and would violate the doctrine of precedent (stare decisis). She took the clear position that the Chinnaiah judgment is the correct law and ought to be affirmed.
The Rupture of the Basic Structure
The Preamble of the Constitution embodies the objective of securing “social, economic and political justice” — and within it, social justice stands first. Under the Basic Structure Doctrine established by the Kesavananda Bharati (1973) verdict, the values embodied in the Preamble are part of the inviolable core of the Constitution.
The Davinder Singh verdict shifted the basis of reservation from social justice toward distributive justice — that is, “the redistribution of benefits according to changes in economic condition.” As a result —
- The historical criterion of shared untouchability that binds the Scheduled Castes together is rendered subordinate;
- Reservation ceases to be a right of the group and becomes a matter of individual economic eligibility;
- And, most importantly — the political and social unity of the Scheduled Castes is fragmented, and under the guise of “reservation within reservation,” the strategy of divide and rule gains constitutional legitimacy.
For these reasons, the principle of reservation sub-classification is not confined to a mere policy decision. It cuts across the Preamble of the Constitution, the obligation of the state under Article 46, and the group-centric principle of social justice laid down by Dr. Ambedkar — that is, across the very Basic Structure of the Constitution.
(To be continued)
— Sunil Khobragade