Sub-Classification Of Dalits: Law And Politics
By Sanjay Kumar Chaudhary
16 August, 2011
Dalit unity is one the pre-conditions for any kind of collective action for making democratic and just claims in order to achieve the realization of basic human rights and dignity for the Dalits. However, the question of justice and equitable distribution of public goods among heterogeneous groups of Dalit has taken the ugly turn of inter-caste/class conflicts in recent times. By and large, Dalits have suffered immensely at the hands of Brahminical and feudal forces, but the general practice of untouchability and discrimination exists among them also. As per the 2001 Census, the population of Scheduled Castes was 166 million.  They are officially classified into 1208 castes as on 23.09.2008,  as notified by the President of India under Article 341(1) of the Constitution of India. While very limited social interaction takes place among the different Dalit castes, prohibitions regarding norms of inter-dining and inter-caste marriage prevail among them too.
Among the Dalits, a few caste groups appear to be benefitting disproportionately from the reservation policy. This has escalated internal conflict among Dalits in recent times, particularly in Andhra Pradesh, Maharashtra, Punjab and Bihar. While, to some extent, the reservation policy has been able to break the age-old dominance of the ‘upper' castes in public institutions and has provided opportunities to some section of Dalits to advance, it has now entered into a new phase that tends to create micro-identity-based demands and politics. Very conflicting justifications are being marshalled by different interest groups among Dalits who are contending with each other for the benefits of the reservation policy. This article seeks to explore some aspects of ongoing debates among Dalits about the need for sub-classification of Scheduled Castes in the light of complaints of particular Dalit castes who feel that other castes have benefitted disproportionately from the reservation policy. It also critically looks at the Supreme Court judgment, delivered in 2004, with regard to the legality and constitutionality of the sub-classification of Scheduled Castes.
Scheduled Castes in the Constitutional Scheme
While the Constitution refers to Scheduled Castes in the context of reservations in education  , employment  and political institutions  etc, it does not define the term ‘Scheduled Castes'. However, Article 341 empowers the President to recognize caste, races or tribes etc. for the purposes of the Constitution to be deemed to be Scheduled Castes in relation to particular states and union territories. Further, the power to include in or exclude any caste, race or tribes etc. from the Presidential list has been given to the Parliament. The Article reads as follows:
341. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor 5 thereof, by public notification 1 , 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.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Discontented with the existing reservation policy, which treats Scheduled Castes as a single class and homogenous category, many communities among Dalits who argue that they have hardly benefitted from the reservation policy have raised the demand for sub-classification of Scheduled Castes and are demanding a proportionate share in the benefits of the policy. Conflicts between Mahars and Matangs in Maharastra, Malas and Madigas in Andhra Pradesh, Chamars and Bhangis in Punjab and Dalits and Mahadalits in Bihar have recently received political and academic attention. Some policies have been devised in state of Andhra Pradesh, Punjab and Haryana for more equitable development of the most vulnerable castes among the Dalits. In Bihar, the Mahadalit Commission  was constituted by the Nitish Kumar Government in 2007 to identify the castes within the Scheduled Castes who lag behind in the development process and to study their educational and social status and suggest measures for their educational and social empowerment  . Although such kind of political maneuvering and social engineering by Nitish Kumar has yielded political dividends to the ruling party, it was opposed by dominant Dalit leaders, like Ramvilas Paswan and Meira Kumar  . The National Commission for Scheduled Castes has also expressed its differences on the matter, and went to declare the Mahadalit Commission as unconstitutional  .
In Andhra Pradesh, in order to receive a fair share in the benefits of the reservation policy, the Madiga community, which is single largest group among the Scheduled Castes in Andhra Pradesh, launched a movement for sub-categorisation. They demanded for separate reservation in proportion to their population. It was unjustly opposed by members of Mala caste. Against this background, the State of Andhra Pradesh appointed a Commission, headed by Justice Ramachandra Raju, to identify the groups amongst the Scheduled Castes found in the list prepared under Article 341 of the Constitution who had failed to secure the benefits of the reservation policy provided for Scheduled Castes in the state in admission to professional colleges and appointment to State services. Based on the Justice Ramachandra Raju report, the Andhra Pradesh government, headed by Chandrababu Naidu, passed an ordinance and then enacted the Andhra Pradesh Scheduled Castes (Rationalization of Reservation) Act, 2000, which classified 57 Scheduled Castes into four sub-groups and split the 15% reservation quota for admission in educational institutions and government jobs in proportion to their population: Rellis and Adi Andhra 1% each; Malas 6%; and Madigas 7%. This first ever legislation which recognized the separate interests of various caste groups among Dalits was challenged before the High Court of Andhra Pradesh and later an appeal was made before the Supreme Court.
2004 Supreme Court Judgment
One of the most politically charged, socially and legally complex issues pertaining to the reservation policy and sub-classification of Dalits came up in the case of E.V. Chinnaiah Vs. State of Andhra Pradesh and Ors  which was decided by the Constitution bench of the Supreme Court of India in 2004. While the judgment based its reasoning on the positivist school of jurisprudence, it added significant dimensions in the ever-evolving jurisprudence on affirmative action in India. It laid down the law with regard to legality of providing reservations within reservation on the basis of sub-categorisation of Dalits.
The validity of Andhra Pradesh Scheduled Castes (Rationalization of Reservation ) Act, 2000 was upheld by a five Judge Bench of the High Court of Andhra Pradesh. Hence, it was appealed before the Supreme Court. Three concurrent judgments were written by Justice Hegde, Sinha and Sema. The Act, 2000 was held as unconstitutional. There were three moot questions for consideration in this case:
1. Whether the impugned Reservation Act, 2000 is violative of Article 341(2) of the Constitution of India.
2. Whether the impugned enactment is constitutionally invalid for lack of legislative competence.
3. Whether the impugned enactment creates sub-classification or micro classification of Scheduled Castes so as to violate Article 14 of the Constitution of India.
Relying on the judgment in State of Kerala Vs N.M.Thomas and Ors  , the Court reasoned that by virtue of Article 341 and Presidential notification, the Scheduled Castes constitute a homogenous class by themselves and, therefore, ‘ any executive action or legislative enactment which interferes, re-groups or re- classifies the various caste found in the Presidential List will be violative of scheme of the Constitution and of Article 341 of the Constitution'.
The substantive provision of the Act, 2000, provided under section 3 for the creation of 4 groups out of the castes enumerated in the Presidential list for the State. After the re-grouping, it provides for the proportionate allotment of reservations already made in favour of Scheduled Castes amongst these groups. This provision was also questioned by the appellants. Answering in the negative on the constitutionality of legislative competence, the Apex Court relied on the principle of pith and substance. Further, it held that the primary object of the impugned enactment was to create groups of sub-castes in the list of Scheduled Castes applicable to the State. It observed:
“Apportionment of the reservation is only secondary and consequential. Whatever may be the object of this sub-classification and apportionment of the reservation, we think the State cannot claim legislative power to make a law dividing the Scheduled caste List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. Therefore, we are of the opinion that in pith and substance the enactment is not a law governing the field of education or public services but to create sub-classification of scheduled caste which is not permitted under the constitution”  .
Lastly, the Court considered issues of sub-classification of the Presidential list of Scheduled Castes and tested it against Article 14 of the Constitution. Again answering in the negative, the Supreme Court held that sub-classification of the Scheduled Caste list violated article 14 of the Constitution. It held that the impugned legislation was beyond the legislative competence of the State, and hence liable to declared as ultra vires the Constitution.  It observed:
“Classification must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved…mini-classifications based on micro- distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality  .
However, senior advocate K.K. Venugopal, appearing for the State, argued that Article 341 only empowers the President to specify the castes in the Presidential List and the Parliament to include or exclude from the specified list any caste or tribe, and that beyond that no further legislative or executive power is vested with the Union of India or the Parliament to decide to what extent the caste included in the list should be given the benefits of the reservation policy. It depended upon their degree of backwardness. It was, he contended, a just, fair and equitable arrangement in the light of the backwardness of the majority of Scheduled Caste groups of Andhra Pradesh. It was further argued that there is an obligation on the State under Article 16(4) to identify groups of backward class of citizens which, in the opinion of the State, are not adequately represented in the State services and to arrange for reservation s in their favour for such appointments. Further, under Article 15(4) of the Constitution there is an obligation on the State to make special provisions for the advancement of SCs/STs. Hence, it was argued, what the State had sought to do under the impugned Act was only to make such a provisions so as to fulfill its Constitutional obligations in this regard after due enquiry. Consequently, the allegation of violation of Article 14 could not be sustained  .
K. Balgopal, a prominent scholar and social activist, criticized the judgment and the reasoning informing it. He argued that it ignored social reality. It was, he argued, a wrong judgment at a disastrously wrong moment  . According to him, the judgment was based on a pedantic and narrow interpretation of the Constitutional provisions. The rationale of the judgment went against the principles of reservation, although the victorious sections among the Dalits were unable to see this point, which he felt was tragic.  He stated:
“…interpretation of the constitution is different from interpretation of ordinary law, and the Constitution must be interpreted liberally, broadly, and in a manner suitable for the changing times and social needs”  .
Balgopal also pointed out that while the Constitution provides reservations to the Scheduled Castes as a whole, only some castes, and, among them, only a relatively small number of families, have benefitted from the policy.  Hence, he supported the demand for sub-classification of Scheduled Castes in order to democratize access to the benefits of the policy.
Only a few lakh Dalits have, over the years, actually benefitted from the reservation policy, while and millions of others have been left out, leading lives of harrowing exploitation and poverty.  It can be said that the purpose of reservations has never been to eradicate the plight or poverty of Dalits or even to provide due representation to all sections of the various Dalit communities. In fact, reservations have served as a safety valve for the ruling castes/classes. Such a kind of bourgeoisie arrangement tends to puncture any revolutionary stirrings which could threaten the hegemony of the ruling castes/classes. Sanskritisation of Dalits and the co-option of educated Dalits into the system, promoted by the reservation policy, clearly indicate this. The misappropriation of the benefits of reservations by just a few in the name of all Dalits violates the Constitutional goal of achieving social and economic justice and a just social order. For the time being, the Supreme Court judgment has suppressed the growing aspirations of the most excluded castes among Dalits across the country.
Ensuring Dalit unity is impossible through the lip-service of Dalit elites. The reservation policy has created a class of petty bourgeoisie of Dalits. Though they may suffer from the stigma of untouchability and caste discrimination, their interests lie with the dominant castes/classes. With neo-liberalism the dominant ideology of the ruling castes/classes, the public sector is fast being privatized. In this situation, the reservation policy has very limited for Dalits. In this scenario, it is very likely that in the near future issues such as of sub-classification as well as the exclusion of the Dalit-creamy-layer from the purview of reservations will be raised by other Dalits who feel that the system has provided them with nothing at all but relentless pauperization. Their anger will be justified, for the middle-class Dalits are hugely shortsighted, selfish and reluctant to share and care for their fellow brethren voluntarily, as their opposition to sub-classification of the Scheduled Castes illustrates. Dalit politics and movements are so divided that they hardly offer any resistance to the ongoing process of exclusion and exploitation of Dalits.
In this regard, the Dalit working class has to re-orient its struggle on class lines for the emancipation of all oppressed and exploited people of this country. If Dalits fail to evolve a consensus on the reservation policy and sub-classification, their internal caste/class rifts will be bound to widen. In this scenario, the common cause of Dalit unity and social justice will be the first causality.
Sanjay Kumar Chaudhary is Assistant Professor, Centre for the Study of Social Exclusion and inclusive Policy, National law School of India University, Bangalore)
 http://socialjustice.nic.in/sectorsc239.php(viewed on 04/08/2011)
 Article 15(4)
 Article 16(4),(4A),(4B)
 Article 243(D),243(T), 330, 332
 See, Mahadalit Commission Report , Government of Bihar, Patna, 2009
 See, http://www.mahadalitmission.org/BMVM-Introduction.php (viewed on 01/08/2011)
 Zeenews, April 9,2010. Available on http://zeenews.india.com/news/state-news/paswan-for-disbanding-mahadalit-commission-in-bihar_617781.html (viewed on 01/08/2011)
 See, Sarita Yadav, Whither Maha Dalit Commission?, (Available on http://www.igovernment.in/site/Whither-Maha-Dalit-Commission/(viewd on 01/08/2011)
 (1976)ILLJ376SC; MANU/SC/0479/1975
 Supra note 9 at Para 43
 Supra note 9 Para 14
 Supra note 9 Para 111
 Supra note 9 Para 10
 See, K. Balgopal, “Justice for Dalits among Dalits: All the Ghosts Resurface”, in Yagati Chinna Rao(ed.), Dividing Dalits , Rawat Publications, Jaipur, 2009.
 Ibid , 253
 Ibid, 249
 Ibid , p. 257
 Report of an Expert Group on Development Challenges in Extremist-Affected Areas , Planning Commission of India, New Delhi, 2008; Annual Report , National Commission for Scheduled Castes, New Delhi, 2004; Sukhdeo Thorat, Dalits in India , Sage, New Delhi, 2009.
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