Wednesday, August 17, 2011

[ZESTCaste] Sub-Classification Of Dalits: Law And Politics

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. [1] They are officially classified into 1208 castes
as on 23.09.2008, [2] 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 [3] , employment [4] and political
institutions [5] 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 [6] 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 [7] . 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 [8] . The
National Commission for Scheduled Castes has also expressed its
differences on the matter, and went to declare the Mahadalit
Commission as unconstitutional [9] .

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 [10] 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 [11]
, 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" [12] .

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. [13] It

"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 [14] .

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 [15] .

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 [16] . 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. [17] 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" [18] .

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. [19] 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. [20] 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)


[2] on 04/08/2011)

[3] Article 15(4)

[4] Article 16(4),(4A),(4B)

[5] Article 243(D),243(T), 330, 332

[6] See, Mahadalit Commission Report , Government of Bihar, Patna, 2009

[7] See, (viewed
on 01/08/2011)

[8] Zeenews, April 9,2010. Available on
(viewed on 01/08/2011)

[9] See, Sarita Yadav, Whither Maha Dalit Commission?, (Available on on

[10] AIR 2005 SC 162, MANU/SC/0960/2004

[11] (1976)ILLJ376SC; MANU/SC/0479/1975

[12] Supra note 9 at Para 43

[13] Supra note 9 Para 14

[14] Supra note 9 Para 111

[15] Supra note 9 Para 10

[16] See, K. Balgopal, "Justice for Dalits among Dalits: All the
Ghosts Resurface", in Yagati Chinna Rao(ed.), Dividing Dalits , Rawat
Publications, Jaipur, 2009.

[17] Ibid , 253

[18] Ibid, 249

[19] Ibid , p. 257

[20] 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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