Are the critics of the quotas within quota right?

Fears are that sub-classification of SCs will exacerbate the issue of unfilled seats and lead to sub-quota politics instead of challenging caste.

How India should deal with the presence and legacy of caste has been at the forefront of the political debate for several months. The Opposition has made its commitment to the constitutional scheme of reservations and a caste census a key part of its campaign. No census since Independence has collected data on the social, economic, and educational position of individual castes. For too long, our collective attitude has been to claim to eradicate caste by closing our ears and eyes. But caste will not go away unless we know what we are facing. One advantage of a caste census is that it helps understand the differences better — if any — between different castes of the same legal category. This is where the issue of sub-classification of Scheduled Castes (SC), which the Supreme Court allowed in its Davinder Singh judgment, comes into play.

The consequence of the judgment is that states can sub-classify SCs, but they are not under any requirement to do so. (HT)

The issue of sub-classification has ignited debate. Supporters have hailed the judgment as a step forward and a landmark in India’s jurisprudence on reservations. Reservation policies can now be fine-tuned to prioritise Dalit castes, like castes associated with manual scavenging, who have faced the greatest exclusion and obstacles to opportunity. This is the rationale behind policies championed by Nitish Kumar targeting Mahadalits in Bihar. Davinder Singh also overruled an earlier judgment that deemed unconstitutional a subclassification adopted by the Chandrababu Naidu government in then-undivided Andhra Pradesh.

At the same time, the judgment has received criticism from some Dalit activists and intellectuals. One set of criticisms focuses on mandatory creamy layer exclusion, a matter which was not in dispute in the case. Another set focuses on Justice Pankaj Mithal’s remarks critical of reservations as a whole. While these criticisms are important and correct, the objections against sub-classification are worth examining in light of the judgment.

The consequence of the judgment is that states can sub-classify SCs, but they are not under any requirement to do so. The judgment enables them for this, but they could refuse to sub-classify. This is important insofar as many of the legitimate concerns raised against sub-classification can be accommodated in state policy.

The most troubling scenario is the following. In the present system, many seats and appointments remain vacant because no suitable candidate from the reserved category was found. This might be because qualifications were set artificially high to exclude Dalits or because discrimination made it too difficult for candidates to acquire the qualifications. Either way, this phenomenon explains why, despite quotas, SCs and Scheduled Tribes (STs) are seldom represented in high-level posts in universities and administration.

If the SC quota for such posts was subdivided, then this risks increasing such unfilled seats. If it was already difficult to find an SC candidate, then it would be even harder to find candidates among those SCs who face the greatest burden of exclusion, discrimination, and hardship. The result would be a decrease in the representation of SCs at large. This result is at odds with the vision of seeing sub-classification as a tool to fine-tune social justice policies.

However, we should remember that states are not forced to sub-classify. When the risk of vacant seats looms large, states have two options. First, they could simply refuse to sub-classify SCs for these positions.

Second, they could implement rules that unfilled seats among the most disadvantaged SCs can be filled by any SC candidate. Ordinarily, unfilled seats cannot be transferred to another category. There is good reason for this. We want to prevent a prejudiced selector who deems any Dalit unqualified in order to transfer the seat to the general category. However, this concern is less pressing in the case of sub-classification. Such attitudes of untouchability and casteism apply to Dalits as a whole rather than against specific Dalit castes. Allowing seats to transfer among SCs does not raise the spectre of “stealing” quota seats.

This concern does not speak to those areas of education and employment in which seats are unlikely to remain vacant. States should not fall into the trap of applying the same standard to every selection. The contexts of higher education and the different levels of employment differ.

Other legitimate concerns can be accommodated, too. One worry is that giving states the power to sub-classify turns reservations from a tool of social justice into a political game. Governments would use the power for electoral dividends rather than to challenge caste. This would allow them to divide and rule Dalits and raise caste consciousness for each caste and sub-caste rather than agitating against the caste system.

There are two mechanisms which work against this. First, states should recognise that ‘one size fits all’ is a flawed approach in reservations. If so, then sub-classification occurs for some selection processes, but not others. The resulting system need not mirror caste in society. The second reason is that the judgment holds that any sub-classification has to be based on objective data. Governments don’t have unlimited authority to sub-classify SCs according to electoral ambitions. Any sub-classification could be challenged in court, and must abide by constitutional standards. Basing sub-classification on objective data also mitigates the objection that there are, in fact, no substantial gaps between different Dalit castes. If the data supports this claim, then no sub-classification will be permissible in practice.

The best way to gather the appropriate data would be, of course, a caste census. Census data would be the most reliable source of data to determine that there are indeed wide gaps between different castes listed as SCs, which require political action. Insofar as a caste census helps to bring alive the issue of our unfinished agenda of annihilating caste, there is a silver lining in the judgment, even for those sceptical of sub-classification.

Bastian Steuwer is assistant professor of politics at Ashoka University. The views expressed are personal