Sub-classification of SC Reservation a C

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Contents

About the Contri butors v

Preface vi

Editorial I ntroduction viii-xv

Chapter I. Initiating Sub-classification of Scheduled Castes: The Punjab 1-9

Story of Quotas within Quotas

Surinder S Jodhka and Avinash Kumar

Chapter II.Educational Development as a new Horizon for Reservations: 10-29Neo-social movement of Andhra

Y. Chinna Rao

Chapter III. The Fragmented Assertion: The Emergence of Intracaste 30-39

Differentiation among Dalits in IndiaK S Chalam

Chapter IV. Sub-Caste Consciousness and Challenges before the Dalit 40-44

Intellectuals

Jangam Chinnaiah

Chapter V. Madiga Dandora: A Social Movement for Rationalisation of 45-84

Dalit Reservations

Gundimeda Sambaiah

Chapter VI. Competition and Conflict among the Dalits: Madiga 85-99

Dandora Movement in Andhra Pradesh

G. Venkata Siva Reddy

Chapter VII. Dialectic of Social Justice: The Struggle of the Madigas 100-112

K.C. Suri

Chapter VIII. A Tangled Web: Subdivision of SC Reservations in AP 113-129K. Bala Gopal

Chapter IX. Classification of Scheduled Castes: A Study in Public Policy Making 130-137

C.V. Ranga Rao

Chapter X. Dalit Empowerment: an Internal Classification of Scheduled 138-144

Castes in Andhra Pradesh

B. Rama Rao

Chapter XI. Politics of S.C. Reservations and the M.R.P.S. Movement 145-161

G.Venkata Siva Reddy and B.Padmanabha Reddy

Chapter XII. Justice for Dalits among Dalits: All the Ghosts Resurface 162-176

K. Bala Gopal

Chapter XIII. Sub-classification of SC Reservation: A Critical Evaluation of 177-194

the Apex Courts ViewAvinash Kumar


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Appendices

1. 5th

May 1975: Notification of Punjab regarding sub-classification

2. 19th

September 1975: First official communication of Government of Punjab

3. 9th

November 1994: Notification of the Government of Haryana

4.

2ndSeptember 1996: Statement of Andhra Pradesh Chief Minister on Sub- Categorization

Scheduled Castes on the floor of the Assembly

5. 10th

September 1996: Appointment of Justice P. Ramachandra Raju Commission

6. 28th

May 1997: Recommendations of the Report of Ramachandra Raju Commission

7. 30th

July 1997: Implementation of sub-category-wise reservations in Kurukshetra University,

Haryana

8. 31stMay 2000: Notification of Government of Andhra Pradesh Rationalisation (sub-category)

Act of Reservations Rules

9. 5th

November 2004: Extracts from the Supreme Court Judgment on Sub-Categorization

10.

23

rd

December 2004: AP Government withdrawal orders of Rationalisation (Sub-category)Act of 2000

11. 5th

October 2006: Withdrawal of sub-category-wise reservation by the Punjab Government

12. 7th

June 2007: Withdrawal of sub-category-wise reservation by the Government of Haryana

13. 1stMay 2008: Recommendations of Justice Usha Mehra Commission

14.Not dated: A Memorandum by the Association for Social Action regarding objections against

the Justice Usha Mehra Commission Report


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Sub-Classification of SC Reservation:

A Critical Evaluation of the Apex Courts View*

Avinash Kumar

Nearly twenty years after the state of Punjab (1975) introduced the policy ofreservation within reservation for the scheduled castes, the government ofAndhra Pradesh made a similar attempt. The state of Haryana also hadrecommended the quotas within quotas since 1994. While Punjab had limitedthis scheme only to quotas in jobs, Haryana extended it in the area of educationand so did the state of Andhra Pradesh. Despite the fact that the ways to achievethis means in all the three cases were not similar, all aimed it to be a means ofrectifying and rationalising the uneven distribution of the reservation scheme forthe SC category in the past. The case of Punjab and Haryana, while initiallyseems to be the outcome of the political will that later turned into a movement,the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act,

2000 came primarily in response to a strong movement of the marginalisedsection among the SC population. However, surprisingly, the apex court couldnot find the act of any importance to the needs and demands of the people at thefar marginalized end and declared the Andhra Pradesh Scheduled Castes(Rationalisation of Reservations) Act, 2000 unlawful and unconstitutional. Whyis it such that despite a sustained research carried out by sociologists over thelast 70 or 80 years in significant ways and consistent efforts of the civil society

organizations in the past three decades, the judiciary still interprets theconstitution in an ignorant fashion? Why is it that the laws enacted with the

avowed objective to limit social injustice are often interpreted unsympatheticallyby the judiciary? It is with this purpose that this paper is trying to look at thejudgment of the apex court in the Andhra case that not only destroyed all the

hopes of the people of that state, but also disturbed the practice in Punjab andHaryana.

I

According to the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, the

state of Andhra Pradesh has 59 castes and sub-castes in the notified list of the Scheduled

Castes.1However, it is only the two- the Malas and the Madigas that make up more than 90

per cent of the total SC population of the state. 2As experienced in the other parts of the

country, Andhra Pradesh too had a realization that in the last fifty years the policy of special

provision for the advancement of the Scheduled Castes granted by the Constitution of India

was not benefited by the target population in proportion to their representation. Therefore, in

order to quantify this realization, the government of Andhra Pradesh in the year 1996

appointed a Commission of Inquiry3headed by Justice Sri P. Ramachandra Raju (Retd.)

under the Commissions of Inquiry Act 1952 to examine; a) Whether a disproportionately

large number of benefits have gone to any particular sub-caste of scheduled castes; b) if so,


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to indicate all such steps as are necessary and required to be taken to ensure that the

above benefits are equitably distributed among the various sub-castes of scheduled castes.

The Commission of Inquiry issued a notification in the Gazette and several regional and

English dailies to invite representations from any individual or associations of the sub-castes

of the Scheduled Castes.4This brought in several statistical data regarding the scheduled caste

employees (sub-caste wise) employed in various places5. The Commission also received

responses from several educational institutions regarding the educational benefits enjoyed by

various sub-castes of scheduled castes. 6

The statistics received upto15-5-1997 were

tabulated by the Commission, and responses received on or after 16-5-1997 were not

tabulated, but separately considered at the appropriate places in the report. The report was

submitted on 28thof May 1997 and the Commission expressed that:

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.there is disproportionate distribution of reservation benefits in favour of the'Mala' group and 'Adi-Andhra' group of scheduled caste communities compared totheir respective populations, and both the 'Madiga' group and 'Relli' group ofcommunities are not adequately represented either in public appointments or

in educational institutions compared to their respective populations categorisingthese S.C. communities into four groups 'A', 'B', 'C' and 'D' on a rational basis.

On the basis of this observation, the Commission of Inquiry recommended the government of

Andhra Pradesh to categorise the 59 notified SCs into four groups in the following ways:8

.The 'Relli' group of communities9 is the most backward among the S.C.

communities and are therefore categorised as 'A' with per centage entitlement of

one per cent (1%) of reservation in proportion to their population, both in publicappointments and admissions to educational institutions. The 'Madiga' group ofcommunities10 is the next most backward among the S.C. communities andtherefore they are categorised as B withper centage entitlement of seven percent (7%) of reservation in proportion to their population, both in public

appointments and admissions to educational institutions. The 'Mala' group ofcommunities

11 are receiving benefits of reservations wholly disproportionate to

their population and are therefore categorised as 'C' with per centage entitlementof six per cent (6%) of reservation in proportion to their population both inpublic appointments and admissions to educational institutions. The 'Adi-Andhra'

group of communities12

are receiving benefits of reservation whollydisproportionate to their population and are therefore categorised as-'D' with

per centage entitlement of one per cent (1%) of reservation in proportion to theirpopulation, both in public appointments and admissions to educationalinstitutions.

It further recommended that:

.if eligible candidates are not available to fill the slots reserved for them in theroster points as mentioned above, the slots may be filled in by the candidatesbelonging to the next lower group or category of the S.C. communities

13. If no

eligible S.C. candidate (including woman candidate, wherever applicable)belonging to any of the 'A', 'B', 'C", 'D' categories is available, then the vacancywill be carried forward but shall not be filled by a candidate belonging to any


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other community other than S.Cs in accordance with the rules and Governmentorders in force.

To examine the recommendations of the report of this Commission of Inquiry, the

government constituted a Cabinet Sub-Committee.14 The Cabinet Sub-Committee

recommended for acceptance of most of the recommendations of the Commission and the

Government thus, by order and in the name of the Governor of Andhra Pradesh,15

directed for

the same with effect from the academic year 1997-1998.16

II

Much before the question of quotas within quotas for Scheduled Castes acquired prominence

in Andhra Pradesh, the state of Punjab had introduced a two fold classification of its

Scheduled Caste population. It was on the 5 th of May 1975 that the state government of

Punjab under the leadership of Chief Minister Giani Zail Singh sent a letter to the offices of

its various Departments directing them to offer 50per cent of all the vacancies of the quota

reserved for Scheduled Castes to Balmikis and Mazhibi Sikhs, if available, as a first

preference from amongst the Scheduled Caste candidates (See Jodhka and Kumar 2007). 17

This was the first step of its kind in the Republic India towards the classification of Scheduled

Castes on the extent and degree of their backwardness. Learning from the Punjab experience,

the state government of Haryana also in the year 199418 decided to classify its Scheduled

Caste population in two blocks- A and B, limiting 50 per cent of all the seats for the Chamars

(block B) and offering 50 per cent of the seats to non-Chamars (block A) on preferential

basis. The state of Andhra Pradesh became the third state to act in a similar direction. The

story of Andhra Pradesh, however, has shaped quiet differently than that of Punjab and

Haryana. In the case of Punjab and Haryana, it initially seems to be an agenda of the ruling

party to consolidate the vote bank of a section of the dalitcommunity which is later taken up

by the people of the community into a form of movement. The developments in Andhra

Pradesh had adopted a reverse trajectory. It started with a movement from below which later

became the agenda of the politics of some.

The state of Andhra Pradesh in the 1980s witnessed the beginning of a new phase in

the social and political composition of the State by the vigorous mobilisation of the

underprivileged sections along sub-caste lines. While in the earlier period such mobilisation

was limited and largely confined to the electoral sphere, the 1980s marked a new beginning in

terms of politico-ideological discourse, organisational specificity and spatial spread.19

This

change was particularly in response to the agitation of the two major Scheduled Mala and

Madiga castes under the umbrella of the Dalit Maha Sabha (DMS) formed in 1985. Themovement, nonetheless, failed to address the question of internal inequalities and hierarchies


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between the two dalit communities.20Soon therefore, the Madigas started an attempt to assert

themselves as dalit within the dalits. In the year 1994, a separate Madiga group MPRS

(Madiga Porotha Reservation Samithi) was formed with a motive to raise the issue of Malas

cornering the benefits of SC reservations, in disproportion to the size of their population and

Madigas being deprived of opportunities.21As a result, they initiated a movement to fight for

justice, popularly known as Madiga Dandora.22

This demand for the categorisation of SCs

for the purpose of the reservation within reservation soon became a major state-wide

movement of Andhra Pradesh which was later included in the political agenda of the Telgu

Desam Party, and thus makes the story different from the experiment done in Punjab and

Haryana by the ruling party. However, the concern of this paper is not to claim specialisation

in describing the differences in the trajectories of the rise of this movement in the three states.

It is rather aimed to bring out the fact that one should make no mistake to view the movement

solely to be community specific (explained later). The idea of this paper is to point out the

Courts non-pursuance of ideological and social justice in the changing political and social

scenario and being rigid on its age old practice of preserving its against the disadvantaged

image. I therefore expand my argument to explain those irrational rational stands taken by the

Courts in reference to the particular case.

III

The order issued on 6thof June 1997 was challenged before the Andhra Pradesh High Court

and it was struck down by a single judge bench on the ground that the government did not

consult the National Commission for SCs and STs.23The government after taking note of the

advice of the court promulgated an ordinance which received the President's assent in

November 1999.24

By that time, however, the Malas had already produced a counterpoint to

the Madigas demand by forming the Mala Mahanadu and it immediately challenged the

ordinance in the Andhra Pradesh High Court by way of various writ petitions on grounds of

being violative of Articles 15(4), 16(4), 162, 246, 341(1), 338(7), 46, 335 and 213 of the

Constitution of India and being violative also of the Constitutional (Scheduled Castes) Order

1950 notified by the President of India and Scheduled Castes and Scheduled Tribes

Amendment Act 1976.25

During the pendency of the said writ petitions, the state government

replaced the Ordinance with the Andhra Pradesh Scheduled Castes (Rationalisation of

Reservation) Act, 2000 on May 2nd

2000. Consequently the Act was also challenged on the

similar lines as the Ordinance. This time a five Judge Bench of the high court of Andhra

Pradesh by on a majority of 4:1 dismissed these petitions26

but, also granted a special leave on

the basis of which their judgment was then challenged in the Supreme Court of India.27

This

highest body of justice in its judgment on November 5th2004 declared the challenged Act as

ultra vires the Constitution. Let us consider now a close examination of the statements made


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in the judgment by a five member Constitutional bench of the Apex Court. Page four of the

judgment copy reads:

From the pleadings on record and arguments28

addressed before us three questions

arise for our consideration,

(1) whether the impugned Act is violative of Article 341(2) of the Constitution ofIndia? (2) whether the impugned enactment is constitutionally invalid for lack oflegislation competence? And (3) whether the impugned enactment creates sub-classification or micro classification of Scheduled Castes so as to violate Article14

of the Constitution of India?

In none of these questions did the Court even think of looking at who (and why have

they started a social revolution) among the SC category has remained backward despite fifty

years of the support of an affirmative action in the form of reservation in educational

institutions and the job market. What it purposefully considered inventing were theinstruments of technicality that could prove flaws in the Act. Austin (2006)

29 writes that

the Judiciary was to be an arm of the social revolution, upholding the equality that Indians

had longed for during colonial days, but had not gained- not simply because the regime was

colonial, and perforce repressive, but largely because the British had feared that social change

would endanger their rule. In this democratic republic of India 2000, what made the

Judiciary fear of social change is a big wonder. What the judges considered appropriate (read,

moral ground)to say:

It would amount to discrimination in reverseand would attract the wrath of Article14 of the Constitution. It is a trite law that justice must be equitable. Justice to onegroup at the cost of injustice to other group is another way of perpetuatinginjustice. it is not competent for the legislature of a State to subdivide them intoseparate compartments with a separate percentage of reservation for each resultingin discouraging merit as well as the endeavour of individual members to excel(emphasis added).

30

This argument has nothing to do with the rationalisation of reservation debate; it rather

affirms the anti-reservation stand

31

of the court that is widely witnessed these days on theMandal II debate (i.e. on the issue of the reservation in higher education for the other

backward class (OBC)category). In the words of the honourable Court,

Classification, however, is fraught with the danger that it may produce artificialinequalities and therefore, the right to classify is hedged in with salient restraints; orelse, the guarantee of equality will be submerged in class legislation masqueradingas laws meant to govern well marked classes characterized by different and distinctattainments. Classification, therefore, must be truly founded on substantialdifferences which distinguish persons grouped together from those left out of thegroupand such differential attributes must bear a just and rational relation to the

object sought to be achievedBut we hope that this judgment will not be construedas a charter for making minute and microcosmic classifications. Excellence is, or


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ought to be, the goal of all good governments and excellence and equality are notfriendly bed-fellows. A pragmatic approach has therefore to be adopted in order toharmonize the requirements of public services with the aspirations of publicservants. But let us not evolve, through imperceptible extensions, a theory ofclassification which may subvert, perhaps submerge, the precious guarantee ofequality. The eminent spirit of an ideal society is equality and so we must not be leftto ask in wonderment: what after all is the operational residue of equality and equalopportunity? Mini-classifications based on micro-distinctions are false to ouregalitarian faith and only substantial and straightforward classifications plainlypromoting relevantgoals can have constitutional validity. To overdo classificationis to undo equality (Emphasis added)

32

The court seems to have completely lost its way in finding answers to the sub-classification

questions. Confusing any kind of social change with the debate of equality and equal

opportunity is not advisable. The classification which the court interprets to be based on

micro-distinction is actually much deeper (explained later) than the elite culture of judiciary

could ever imagine. The rationalisation of the sc reservation has to become a national issue

and not just a matter to be decided by a bench of five. Appropriate would be to quote a

Valmiki leader, whom I met in Jalandhar:

What does right to equality or equal opportunity mean to us when we dont haveright to equal security of life? We are always considered as the others. Nobodycares for the people who clean the dirt of the society to make people live and

breathe in a safe atmosphere.

However, the questions raised by the Court in order to attempt these answers itself were

immoral and unrealistic to the requirement of the case. In relation to the first question raised

by the court; Whether the State, in the guise of providing reservation for the weaker of the

weakest, tinker with the Presidential List by sub-dividing the castes mentioned in the

Presidential List (Article 341) into different groups. For our purpose therefore, an

examination of Article 34133

becomes important:

Article 341: Scheduled Castes - (1) The president may with respect to any State or

Union Territory, and where it is a State, in consultation with the governor thereof,by public notification, specify the castes, races, or tribes, or parts of or groupswithin castes, races or tribes which shall for the purposes of this Constitution bedeemed to be scheduled castes in relation to that State or Union Territory, as thecase may be. (2) Parliament may by law include or exclude from the list of

scheduled castes specified in a notification issued under clause (1) any caste, race ortribe or part of or group within any caste, race or tribe, but save as aforesaid anotification issued under the said clause shall not be varied by any subsequentnotification.

Neither the Article 341 prohibits any authority in any sense on the issue of making any

special provision for any caste listed in that category nor did the Rationalization of


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Reservation Act (2000) have any provision that could tinker with the Presidential List. It did

not add or delete any caste from the Presidential List; it only rationalized the provisions

provided by the state34

by classifying the reservation scheme for the castes mentioned in list

by making groups within the group according to their population and relative deprivation. The

terms re-grouping, re-arrangement or re-classification used by the Court to describe the

process of rationalization of reservation (page seven of the judgment), is an excellent example

of misinterpretation35

by the highest body of justice. The distinction between re-classification

and sub-classification is not something which the court needs to be reminded of; it is indeed

only its social responsibility. The Court then looked at,

.whether the Scheduled Castes List prepared by the President under Article341(1) forms one class of homogeneous group or does it still continue to be a list

consisting of different castes, sub-castes, tribes etc.

Further, after examining so, it declares:

it is clear that the castes once included in the Presidential List, form a class bythemselves (emphasis added)

36.

To come to this conclusion the court adopts an extra ordinary reasoning by quoting (readmisquoting)an earlier judgment and said,

though there are no castes, races, groups, tribes, communities or parts thereof

in Hinduism.(emphasis added).37

With this interpretation what becomes clear is that our knowledge of caste has deepened and

widened as a result of the sustained research carried out by sociologists over the last seventy

or eighty years in significant ways, but it has yet to reach the judiciary.38

If castes included in

the Presidential List make a class by themselves than the castes not included in the

Presidential List should also make another class. This can be supported by the argument that

the SC category created by the Presidential List is constituted of those castes that were not

included in the four varnas of the Hindu caste order, popularly known as avarnas. Thus, if

avarnas are being judged as one homogenous category, then the savarnas should also be

seen as another homogenous category. But because the latter is not considered homogenous,

even in the eyes of the judiciary, the avarnas cannot be left merely at the mercy of the

interpretation of a bench of five. The two major untouchable sub-castes of Andhra Pradesh,

Malas and Madigas are traditionally opposed to each other, each claiming for a higher status

in the traditional hierarchy. Due to their differences in terms of social and economic status

and the nature of job, a degree of pollution within the dalitsub-castes is observed. The term

Mala is etymologically derived from mailameaning dirt. The service rendered by the Malas

include grave digging, acting as messenger on occasions of death, birth and puberty,


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occasions which are identified with temporary pollution.39Madigas on the other hand, were

shoe-making professionals. There traditional occupations were tanning and shoe making.40

The same is true with Punjab. According to the official list Punjab has a total of 37

Scheduled Castes. However, a majority of them are clubbed into two or three clusters. The

first cluster of Mazhbi Sikhs and the Balmikis/Bhangis constitute a total of 41.9 per cent

(30.75 and 11.15 per cent respectively) of the total Scheduled Caste population. Similarly, the

second caste cluster made-up of the Ad Dharmis (15.74 per cent) and Chamars/ Ravidasis/

Ramdasi Sikhs (25.85 per cent) together constitutes another 41.59 per cent. The remaining 33

caste groups constitute only 16.51 per cent of the total Scheduled Caste population of Punjab.

For various historical reasons, those from the second cluster of Punjabi Scheduled Castes

have been much more mobile and politically active than the rest.41It was among the Chamars

of the doaba sub-region that the famous Ad-Dharam movement appeared during the 1920s.Not only did the movement give visibility to the community, it also emphasized on the need

to educate children and encouraged entrepreneurship among its followers, who were almost

entirely made-up of the local Chamars.42

The Ravidasis and Ramdasis, who too are originally

from the same community, have also done much better than the Balmikis and Mazhbi Sikhs

in the field of education and in securing quality jobs under the quota system. Not

withstanding the growing appeal of the term dalit for self-description across caste

communities and the continued use of the category Schedule Castes by state agencies and

popular media, the internal differences among different communities continue to be as

important as they would ever have been.43

After looking at the cases of all the three states what becomes very clear (to us but not to

the judiciary)is that the movement of reservation within reservation is now taking up a pan-

Indian shape because it is not community specific. Traditionally speaking, the Malas of

Andhra Pradesh and the Valmikis of Punjab and Haryana are equal in the sub-caste hierarchy,

but on the issue of rationalisation of reservation they stand opposed to each other. Expressed

in the words of Darshan Ratan Ravan,44 an important leader of the Balmiki-Mazhbi

movement in Punjab, Haryana and several other states:

This is not the fight of a single community. Despite being opposed to Madigastraditionally we support each other in the fight for reservation within the reservationfor the marginalised and deprived community in the sc category. What we aredemanding today is nothing but the share of each community according to their

population. There was nothing wrong in the reservation policy when it wasimplemented initially. It was meant for the benefit of all backward castes. Theproblem started when this policy was not implemented in a proportionate way. Allfailed to understand the difference in the degree and extent of the backwardness ofthe different castes listed as the scheduled castes. We (Mazhbi-Balmiki) were

placed extremely below the other SCs. We being the scavenging community had thechallenge of getting included in the society while the others were a part of the


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community in some way or the other. They understood the language of bargainwhile we were not even allowed to enter their places or walk along with the otherson the same path.45

The only sense of homogeneity among the numerous groups listed in the SC category is

untouchability. This is an attribute that differentiates this group with the other caste categories

but it does not talk anything about their internal differences. All the castes mentioned in the

list neither do inter-dine nor do inter-marry. There is the existence of a rigid hierarchy

(varying differently in various regions) within them and this rationalization of reservation was

in a way a step towards this realization. But unfortunately, any law enacted with the avowed

objective to limit social injustice has often reflected a rigid attitude in their implementation by

the executive, or interpretation by the judiciary and it also happened in the case of the Andhra

Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. Twenty two dominant

dalit castes constitute 56 per cent of the total dalit population in the country and the

remaining 44 per cent account for about 1,000 small castes....the Chamars (Jatavs and

Kureels), theMalas, theRamdasias (Ravidasis)and theMaharsmore or less monopolies the

benefits given to the dalitpopulation in UP, Andhra, Punjab and Maharashtra, respectively.46

This realization which is now taking up a shape of a movement is the assertion of those

marginalized groups for their socio-economic and educational upliftment. They now

understand that, if they do not speak for themselves, nobody else would come forward to help

them. On the contrary they will be kept subjugated to and by the other advanced categories

within the group. The advanced groups on the other hand propagandize the issue as creating a

division in the dalit solidarity. In doing so they forget that they are stepping into the shoes of

their age old oppressors. The advancement of the community as a whole can seldom be seen

as a threat to the dalit solidarity.

On the question whether the impugned enactment is constitutionally invalid for lack

of legislative competence, the Court says;47

Bearing in mind theprinciple of the doctrine of pith and substance48, if weexamine the impugned Act then we notice that the Preamble to the Act says that it isan Act to provide for rationalisation of reservations to the Scheduled Castes in theState of Andhra Pradesh to ensure their unified and uniform progress in the society

and for matters connected therewith and incidental thereto. The Preamble alsoshows that the same is being enacted with a view to give effect to Article 38(2)found in Part IV of the Directive Principles of the State Policy of the Constitution. Ifthe objects stated in the enactment were the sole criteria for judging the true natureof the enactment then the impugned enactment satisfies the requirement onapplication of the doctrine of pith and substance to establish the States legislativecompetence, but that is not the sole criteria. As noted above, the Court will have toexamine not only the object of the Act as stated in the statute but also its scope andeffect to find out whether the enactment in question is genuinely referable to thefield of legislation allotted to the State.


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It was this inquiry49 into the scope and effect of the challenged Act that lead the

court to state;

Whatever may be the object of this sub-classification and apportionment of thereservation, we think the State cannot claim legislative power to make a lawdividing the Scheduled Castes.

Once again the court kept itself engaged in the repeating the same concepts viz.,

homogenous class, re-grouping, re-division, re-classification, and could not find any straight

way to argue against the rationalisation of reservation debate.

The last but one of the most important discussions in the proceedings of the judgment

was the case of Indra Sawhney forwarded by the respondents that argued, In Indra

Sawhneys case(supra), the court had permitted sub-classification of other backwardcommunities, as backward and more backward based on their comparative under

development, therefore, the similar classification amongst the class enumerated in the

Presidential List of Scheduled Castes is permissible in law (see E.V. Chanaiah 2004). The

honourable court in response to the above argument did not consider the debate worthy and

said;

We do not think the principles laid down in Indra Sahanis case for sub-classification of other backward classes can be applied as a precedent law for sub-classification or sub-grouping Scheduled Castes in the Presidential List because

that very judgment itself has specifically held that sub-division of other backwardclasses is not applicable to Scheduled Castes and Scheduled Tribes.

The fact of the matter is that the court once again interpreted the Indra Sawhney

judgment according to its own wishes and the whole judgment was misled. Had the court

learned all that is said in the Indra Sawhney judgment it would have not dared to declare the

Rationalization of Reservation Act (2000) ultra vires. The court did neither consider question

no. 5 in totality nor did it look at question no. 10 at all. Answering the question no. 5 i.e.

Whether Backward Classes can be further divided into backward and more backward

categories? in the Indra Sawhney case the judges had replied;

We are of the opinion that there is no constitutional or legal bar to a statecategorising the backward classes as backward and more backward. We are not

saying it ought to be done. We are concerned with the question if a state makes sucha categorisation, whether it would be invalid? We think not. (See para 818, Indra

Sawhney and Others Vs Union of India and Others, 1993(1) SCT).

The court in doing so did also consider the judgment of Chinappa Reddy, J. in Vasant

Kumar, where the learned Judge had said;


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We do not see why on principle there cannot be a classification into BackwardClasses and More Backward Classes, if both classes are not merely a little behind,but far behind the most advanced classes.(See para 817, Indra Sawhney and OthersVs Union of India and Others, 1993(1) SCT).

It would be interesting to note that the example that the Judges in Indra Sawhney case,

referred in regard to the sub-categorisation was that of the OBC in Andhra Pradesh itself. The

judgment read;

In this connection, reference may be made to the categorisation obtaining inAndhra Pradesh. The Backward Classes have been divided into fourcategories.Group-A.Group-B.Group-C....and Group-D. The 25% vacanciesreserved for Backward Classes are sub-divided between them in proportion to theirrespective population. This categorisation was justified in Balram (1972(3) S.C.R.247 at 286). (See para 818, Indra Sawhney and Others Vs Union of India and

Others, 1993(1) SCT).

Arguing the stand more emphatically the judges in the Indra Sawhney case added,

There is another way of looking at this issue. Article 16(4) recognizes only oneclass viz. backward class of citizens. It does not speak separately of ScheduledCastes and Scheduled Tribes, as does Article 15(4). Even so, it is beyondcontroversy that Scheduled Castes and Scheduled Tribes are also included in theexpression backward class of citizens and separate reservations can be provided

in their favour.It is a well accepted phenomenon throughout the country. What isthe logic behind it? It is that if Scheduled Tribes, Scheduled Castes, and OtherBackward Classes are lumped together, O.B.Cs will take away all the vacanciesleaving Scheduled Castes and Scheduled Tribes high and dry. The same alsowarrants categorization as between more backward and backward. We do not meanto say we may reiteratethat this should be done.We are only saying that if a statechooses to do it, it is not impermissible in law (emphasis added) (see para 819,Indra Sawhney and Others Vs Union of India and Others, 1993(1) SCT).

The above mentioned para 819 of the Indra Sawhney case leaves no doubt that the

apex court in this case categorically held that the state government is a competent authority to

notify for the reservation within reservation for the SC category. And therefore, it makes us

wonder, what helped the judges in the case E.V. Chainaih vs State of Andhra in the year

2000, find such expression, based on which they declared that the case specifically held that

sub-division of other backward classes is not applicable to Scheduled Castes and

Scheduled Tribes.

When the state of Punjab directed through a notification in 1975 that 50 per cent of

all the vacancies of the quota reserved for scheduled castes to balmikis and mazhabi Sikhs,

if available, as a first preference from amongst the scheduled caste candidates (see Jodhka


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and Kumar 2007) and it was challenged in the High Court of Punjab; a full bench of the High

Court ( Kanwaljit Singh Sidhu (supra)case)held that, the instructions of the state government

were constitutionally valid on the ground that for the purpose of article 15(4) Backward Class

was differentiated from the Scheduled Castes for making special provision for their

advancement. The Court further went on to observe that every backward class was made

entitled to preferential treatment for representation in service where it considered that they are

not adequately represented. Accordingly, it was viewed that for the purpose of Article 16(4),

no distinction was sought to be made between a socially and educationally backward and

Scheduled Caste, which was not the case under Article 15(4) of the Constitution. It was also

observed that all sections of Scheduled Castes, in the nature of things, were socially and

educationally backward classes, so they stood included in the expression Backward Class as

used in Article 16(4) of the Constitution of India. It was specifically argued before the full

bench, by the opponents, that the Scheduled Caste by virtue of Presidential Notification

envisaged under Article 341 of the Constitution of India would become an individual class,

and the grounds have to sink and swim together with other groups in the matter of

appointments and posts and that any particular group, caste, community of race, which

together with other such groups, caste, community and race constitute scheduled caste cannot

be separated from the other for preferential treatment. However, the argument could not

influence the rationality of the judges and they upheld the notification making reservation by

preference to Balmikis and Mazbi Sikhs to the extent of 50% of the reserved posts. In yet

another recent judgment of the Apex Court of India reported AIR 2006 SC 2814, it has

categorically held that the amalgamation of extremely backward classes and backward class

category into one group would tantamount to treating unequal as equal, and thus the same is

violative of Article 14 of the Constitution of India. This judgment has been delivered by the

apex court relying upon the Indra Sawhneys case. In the para 20 of thisjudgment, it has been

categorically held that the mandate of Article 14 of the Constitution of India is to treat similar

similarly and to treat different differently (see CWP 16221 of 2006, Hardeep Singh and others

Vs State of Punjab in the Punjab and Haryana High Court).

Concluding Comments

A report from Gurnam Singh Commission in Haryana shows that the classification of

reservation has proved to be quiet revealing. The share of the more depressed category of SCs

of the category A (which includes the Balmikis and Dhanuks) in the Class I jobs went up

from 17.6 per cent before the introduction of classification to 46.4 per cent in the recruitments

made after the classification (See Jodhka and Kumar 2007). There is a lack of such data in the

case of Punjab and Andhra Pradesh, but one thing is for sure that to see it as a threat to divide

the dalit solidarity and view it only as a political conspiracy have no theoretical grounds.


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Whether it is the Valmikisor Chamars, MalasorMadigas,JatavsorDoms or any other caste

or sub-caste of the dalit category (the Scheduled Caste category) of any part of the country;

their God and their inspiration is only Babasaheb Bhim Rao Ambedakar.50

And therefore

alike any other policy; this policy should also be seen as a move to target the social,

economical and educational status of the marginalised people at the far end. B. L Mungekar,

Member, Planning Commission, Government of India, speaking at a recent seminar51

organised by the Programme for the Study of Discrimination and Exclusion, Jawaharlal

Nehru University said; If any group in a heterogeneous/unequal/stratified society like ours is

tried to be strengthened and uplifted through a government policy, why there starts a cry of

diving the society along that line? Speaking from the same dais, Sukhdeo Thorat,

Chairperson of the University Grants Commission, had added;

Indiais a place of multiple identities and therefore the study of discriminationand exclusion should be understood at multiple spheresthere is denial ofopportunities to all the historically marginalised sections, but it varies in degree.And therefore there is a need to invent policies that can create more and more

space for such groups according to the degree and extent of the marginalisationand exclusion faced by each.

The court needs to look at such cases with extra ordinary and rational vision. It

cannot shoulder off its responsibility by just declaring laws unconstitutional or saying that the

state, in its opinion, has not been able discharge the burden of implementing the reservation

scheme in a proportionate way (see E. V. Chinnaiah vs. State of Andhra Pradesh and others,

CWP 6578 of 2000). A demand for the categorisation of SCs, for the purpose of the

reservations for a legitimate and proportionate share for each community seems to be shaping

into a major nation-wide movement. In the state of Haryana, the people from the Valmiki and

Dhanuk community were on fast unto death for thirty days and this had led to an agitation by

the people on January 23rd

2008 in Rohtak (as reported in Jalandhar edition of Dainik

Jagaran on January 24, 2008)52

. Several such agitations have been taking place in Punjab,

Haryana and A.P. since the judgment of the court in 2004.53

The need therefore, is to revisit the wrong judgments according to the changing timeand circumstances. The role of the Supreme Court on the strife over numerical quotas in

institutions of higher education has once again questioned its intention. The opponents of the

rationalization of reservation scheme want the system to continue more or less as it is. It is not

hard to predict, that the future days are the days of change. No force can stop the changes

happening in the social composition of India. It was socially too difficult to even think of

classifying the SC population at micro-level at the time of independence, but the realization of

its necessity has grown stronger now, and therefore there is a need to re-look at the policies.

The Andhra Pradesh Legislative Assembly unanimously adopted a resolution on December

10, 2004, to recommend to the Centre to take up the matter in Parliament. 54Looking at the


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sensitivity of the matter, the centre appointed a committee headed by Justice Usha Mehra.

The Punjab legislative assembly soon reworked its policy and passed a new legislation in the

year 200655

. The Haryana Government which had taken no step in this direction is hopefully

considering to learn from Punjab. The Usha Mehra Committee in its report submitted on May

1, 2008 has recommended in favour of the classification. However, in all such attempts, the

courts, being the sole interpreter of the Constitution of India, have to play a highly

constructive role. The aim of the constitution is to equip each member of the weaker of the

weakest with the ability to stand at par with other citizens with dignity and self confidence,

and not to be a stumbling block in any such attempt.

*An earlier version of this paper was presented at the Research Scholars meet at Jamia Millia Islamia, New Delhion February 20th, 2008. The author wants to sincerely acknowledge the support of advocate Dharamveer Sharma,who has taken up the case of rationalisation of the scheduled castes reservations on behalf of the Valmiki/Mazhbi

community in the Punjab and Haryana High Court, Chandigarh and Mr. Darshan Ratan Rawan, leader of the

Valmiki/Mazhbi movement in North India for sparing time to give inputs and documents necessary for the purposeof this paper.

1 Census of India 2001, Annexure-Ia, List of notified Scheduled Castes.2 Census of India 2001, Annexure-Ia;

Madigas are numerically the largest SCs with a population of 6,074,250, constituting 49.2 per cent of

the state SC population. They are followed by Malas having a population of 5,139,305 (41.6 per cent);

Adi Dravidas with a population of 194,806 (1.6 per cent); and Adi Andhras (1.2 per cent). Nineteen SCshave returned a population below one thousand each in 2001 census .

3 Official Directive, Government of Andhra Pradesh, G.O.Ms.No.68, dated: 6-June-1997.4 Official Directive, June-1997;

The notification was issued on 1-10-1997 and the initial time was limited till 31-10-1996. The same was

also sent individually to all the Ministers, the Speaker of the Assembly, all M.Ps. and M.L.As ofAndhra Pradesh, Heads of the Departments, District Collectors, District Judges, Superintendentsof Police, Chairman of Zila Praja Parishads, Registrar of High Court, various Universities etc. The

time for filing the representations was extended by the Commission upto 31-1-1997 and representationsreceived even subsequent to 31-1-1997 from Scheduled Castes associations and individuals wereexamined by the Commission. The statistics received upto 15-5-1997 were tabulated by the

Commission and responses received on or after 16-5-1997 were not tabulated but separately

considered at the appropriate places in the report of the Commission.5 Official Directive, June-1997;

This includes Govt. departments (both Central and State Government); State Government Public Sectorundertakings, Local Bodies and Cooperative Institutions. The Commission also received data about

appointments of scheduled castes (sub-caste wise) from various Service Commissions. This information

received was for the period 1990 onwards.6 This information received was for the period 1995 onwards.7

Official Directive, Government of Andhra Pradesh, G.O.Ms.No.68, dated: 6-6-1997.8 Official Directive, June-19979 Official Directive, June-1997;

The 'Relli' group of communities consists of the following sub-castes as listed in the Andhra PradeshScheduled Castes Presidential Order 1950 i.e. 8. Bavuri, 12. Chachati, 16. Chandala, 18.Dandasi, 20.Dom, Dombara, Paidi, Pano, 22. Ghasi, Haddi, Relli Chachandi, 23. Godagali, 48.Mehtar, 51. Paky,

Moti, Thoti, 53. Pamidi, 55. Relli, 58. Sapru.10 Official Directive, June-1997;

The 'Madiga' group of communities consists of the following sub-castes as listed in the A.P. Scheduled

Castes Presidential Order 1950 i.e. 5. Arundhatiya, 9, Beda Jangam, Budga Jangam, 10. Bindia, 14.

Chamar, Mochi, Muchi, 15. Chambhar, 17 Dakkal, Dokkalwar, 19. Dhor, 24. Godari. 28. Jaggali,29. Jambuvulu, 30. Kolupulvandlu, 32. Madiga, 33. Madiga Dasu, Mashteen, 43. Mang, 44. MangGarodi, 47. Matangi, 56. Samagara, 59. Sindhollu, Chindollu.

11 Official Directive, June-1997;

The 'Mala' group of communities consists of the following sub-castes as listed in the A.P. Scheduled

Castes Presidential Order 1950 i.e. 2. Adi Dravida, 3. anamuk, 4. Aray Mala, 6. Arwa Mala, 7. Bariki,11. Byagara, 13. Chalavadi, 21. Ellamalawar, Yellmmala wandlu, 25. Gosangi, 26.Holeya, 27.


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Holeya Dasari, 31. Madasi Kuruva, Madari, Kuruva, 34. Mahar, 35. Mala, 36. Mala Dasari, 37. MalaDasu, 38. Mala, Hannai, 39. Mala Jangam, 40. Mala Masti, 41. Mala Sale, Netkani, 42. Mala Sanyasi,45. Manne, 50, Mundala, 55. Pambada, Pambanda, 57. Samban.

12 Official Directive, June-1997;The 'Adi-Andhra' group of communities consists of the following sub-castes as listed in the A.P.Scheduled Castes Presidential Order 1950 i.e. 1. Adi Andhra, 46. Mashti, 49. Mitha Ayyalvar, 54.Panchama, Pariah.

13 For example, in the booster point fixed for 'Relli' group i.e. , category 'A' if an eligible candidate is not available, the roster point may be filled by the nextlower category of 'Madiga' group i.e. category 'B'. For Women candidates also the same principle will be followed. For example, in the roster point fixed for

'Relli' group (Women), i.e. category 'A', if an eligible woman candidate is not available, the roster point may be filled by the woman candidate

belonging to the next lower category of 'Madiga' group i.e. category 'B'.

14 Official Directive, G.O.Ms.No. 66, Social Welfare (J1) Dept. dated: 2-6-1997.15 As quoted in Official Direct ive, Government of Andhra Pradesh, G.O.Ms.No.68, dated: 6-6-1997.16 Official Directive, June-1997;

The above orders will be applicable from the academic year 1997-98, in all the educational institutions under the control of the S tate Government, wherever

rule of reservation is being implemented. In the case o f public appointments,for the backlog vacancies/regular vacancies to be filled by Scheduled

Caste candidates, pursuant to various Government instructions issued in this regard from time to time, and where the selection process has been completed

i.e. appointment orders have been dispatched,or the applicants have been intimated officially that he/she has been selected, and should awaitposting orders, in such cases,the above orders will not be applicable. Separate instructions will be issued by the Government regarding the appointments to

the backlog vacancies/regular vacancies, where the selection process is at various stages and the appointment orders have not been dispatched or selection

has not been intimated to the applicants. In the public appointments to be made henceforth, wherever rule of reservation is being implemented, these orderswill be applicable. The categorisation of Scheduled Castes into 'A', 'B', 'C', 'D', groups as mentioned above does not apply to posts or admissions to

educational institutions under the control of the Central Government Departments or Central Government Corporations/Public Sector Undertakings.

17 Jodhka, S.S. and Avinash Kumar (2007) Internal Classification of Scheduled Castes: ThePunjab Story,Economic and Political Weekly, October 27, 2007.

18 Official Directive Government of Haryana, Letter No. 22/55/90-3GS-III, dated 9thNovember 1994.19 K. Srinivasulu 2002, Caste, Class and Social Articulation in Andhra Pradesh: Mapping Differential

Regional Trajectories, Working Paper 179, Department of Political Science, Osmania University,Hyderabad, The formation of Dalit Maha Sabha (DMS) in 1985, following the Karamchedu massacre,is a crucial development in the recent history of dalit politics. It cut across the different shades ofdemocratic public opinion and social constituencies. Support was not only political and ideological but

also, significantly, material.20 K. Srinivasulu (2002) There is a perceptible social distance between the two major Mala and Madiga

dalit communities. In terms of geographical spread Malas constitute a majority in coastal Andhra

districts and about 75 per cent of Malas live in the region. While about 60 per cent of the Madigasinhabit Rayalaseema and Telangana regions (see A. Satyanarayana 2003). Due to Christian missionary

efforts, exposure to the process of modernisation in the British-ruled Madras Presidency, and as areflection of the overall developmental process witnessed in coastal Andhra, an educated Mala middle

class has existed since the late 19th Century. This historical advantage has worked in their favour andhelped them to benefit from the special provisions provided for the SCs after Independence. As a result,

the Malas have a relatively greater presence in education, employment and politics21 K. Srinivasulu (2002).22 The term Dandora refers to their traditional profession. Traditionally the drum (Dappu) wa s used to

make several announcements in the village. Earlier the term Madiga was considered to be defiling and

was used abusively by the caste-Hindus. The striking thing that the Madigas did was to proclaim their

movement and all related activities, by adding prefixes such as Madiga Dadora Rally, and MadigaDandora Meeting. In addition, they started suffixing their caste name to their name to assert theiridentity and to identify with their own caste men. For instance the leaders of MRPS, named themselves

as Krishna Madiga or Krupakar Madiga. For details see Chinna Rao Yagati, 2007. Writing Dalit History

and Other Essays, New Delhi, Kanishka Publishers, pp. 156-182.23 E. V. Chinnaiah vs. State of Andhra Pradesh and others, CWP 6578 of 2000.24 E. V. Chinnaiah vs. State of Andhra Pradesh and others, CWP 6578 of 2000.25 E. V. Chinnaiah vs. State of Andhra Pradesh and others, CWP 6578 of 2000.26 E. V. Chinnaiah vs. State of Andhra Pradesh and others, CWP 6578 of 2000.27 Famously known asE. V. Chinnaiah vs. State of Andhra Pradesh and others.28 E. V. Chinnaiah vs. State of Andhra Pradesh and others, AIR 2005, SC162 (2005(1) S.C.C. 394):

The contentions advanced on behalf of the appellants are that the State Legislature has no competenceto make any law in regard to bifurcation of the Presidential List of Scheduled Castes prepared underArticle 341 (1) of the Constitution, therefore the impugned legislation being one solely meant for sub-dividing or sub-grouping the castes enumerated in the Presidential List, the same suffers from lack of

legislative competence. It is further submitted that once the castes are put in the Presidential List, thesaid castes become one homogeneous class for all purposes (emphasis added) under the constitution,

therefore, there could be no further division of the said castes in the Scheduled List by any Act of the

State Legislature. His further submission was that in the guise of exercising its legislative competenceunder Entry 41 in List II or Entry 25 of List III the State Legislature cannot exercise its legislative powerso as to make a law tinkering with the Presidential List because the said Entries do not permit any law


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being made in regard to Scheduled Castes. In the guise of providing opportunity to some of the castes inthe list of Scheduled Castes the State can not invoke Entry 41 of List II and Entry 25 of List III to dividethe Scheduled Castes. According to the learned counsel the impugned enactment does not really deal

with the field of Legislation contemplated under the said Entries but in reality is targeted to sub-dividethe Scheduled Castes. Alternatively, he submitted the classification or sub-grouping made by the StateLegislature amounting to sub-classification or micro classification of the Scheduled Caste is violative ofArticle 14 of the Constitution of India.

One of the arguments addressed on behalf of the appellant is that allotting a separate per centage ofreservation from amongst the total reservation allotted to the Scheduled Castes to different groups

amongst the Scheduled Castes amounted to depriving one class of the benefits of such reservation atleast partly. It is also argued that the impugned legislation was bad because the Report of the National

Commission was not placed before the Legislature as required under Article 338(9) of the Constitutionof India. On behalf of the respondents Shri K.K. Venugopal, learned senior counsel appearing for theState who led the argument on behalf of the respondents, contended Article 341 only empowers thePresident to specify the castes in the Presidential List and the Parliament to include or exclude from the

specified list any caste or tribe and beyond that no further legislative or executive power is vested withthe Union of India or the Parliament to decide to what extent the castes included in the Scheduled CastesList should be given the benefit of reservation which according to the learned counsel depended upontheir degree of backwardness. His further argument is that the authority to decide whether to provide

reservation or not, and if yes, then the quantum of reservation to be provided is the exclusive privilege of

the State. In that process the State will have to keep in mind the extent of backwardness of a group be itother backward class, Scheduled Caste or Scheduled Tribe. Therefore, having found a class of personswithin the Scheduled Castes as having been deprived of such benefits the State has the exclusive

legislative power to make such grouping for reservation under Articles 15(4) and 16 (4) of theConstitution subject, of course, to Articles 245-246 of the Constitution. Since in the instant case there isno allegation that there has been any violation of Articles 245-246, the argument of lack of legislative

competence advanced on behalf of the appellant should fail.

He further submitted that there is an obligation on the State under Article 16(4) to identify the group ofbackward class of citizens which in the opinion of the State is not adequately represented in the serviceunder the State and make reservation in their favour for such appointments and under Article 15(4) of theConstitution there is an obligation on the State to make special provisions for the advancement of

Scheduled Castes and Scheduled Tribes and what the State has sought to do under the impugned Act was

only to make such a provisions to fulfil the constitutional obligation after due enquiry, hence, theallegation of violation of Article 14 cannot be sustained. He strongly relied on the findings of fact

recorded in Justice Raju Commission's report which according to him establishes that some particulargroups within the Scheduled Castes have cornered all the benefits at the cost of others in the said List,

therefore, with a view to see that the benefit of reservation percolates to the weaker of the weakest it hadbecome necessary to enact the impugned law.

The learned counsel submitted that by regrouping the castes in the Scheduled Caste List there is noreclassification or micro classification as contended by the appellants. Some other counsels also argued

that neither Article 341 nor any other provisions of the Constitution prohibits the State from performingits obligations under Articles 15(4), 16(4) and 16 (4A) of the Constitution and categorising the variouscastes found in the Presidential List of Scheduled Castes based on inter-se backwardness within them.Reference was also made to the Constituent Assembly Debates and Reports to point out that it was the

intention of the Constitution makers to confer the power of classification of Scheduled Castes on the

President or the Parliament as the case may be under Article 341 of the Constitution. A furtherclassification of the caste within the List if became necessary, the same could be done by the State onlyunder Articles 15(4) and 16(4) of the Constitution. It was also argued that further classification of the

backward class is permissible in view of the judgment of this Court in the case of Indra Sawhney vs.

Union of India & Ors. 1992 (Supp.3) SCC 217, the principles laid down therein was applicable even tothe Scheduled Castes. It was also argued that the enactment was in the form of affirmative action to fulfilthe constitutional objects and the courts should not interfere in such efforts of the Legislature. Reliance

was also placed on the recommendations made by the National Commission for Scheduled Castes and inits Report a further argument addressed on behalf of the respondents is that even if some castes in thePresidential List of Scheduled Castes get excluded from the benefit of reservation made by the State that

by itself would not take the caste out of the List of Scheduled Castes because they will continue to be

entitled to other benefits that are being provided by the State to the Scheduled Castes.29 Austin, Granville, (2004) Working a Democratic Constitution: A History of the Indian Experience, 2nd

ed. New Delhi: Oxford University Press.30 E. V. Chinnaiah vs. State of Andhra Pradesh and others. op.cit.31 K. Balgopal (2005) Justice for Dalits among Dalits: All the Ghosts Resurface, Economic and Political

Weekly, July 16, 2005.

It is trite indeed that justice must be equitable. But the rider that justice to one group at the cost of

injustice to another group is another way of perpetrating injustice, without any reference to the unequalposition of the two groups, which fact is nowhere disbelieved by the judge, is not an argument for butagainst equity. And it is an argument against reservations as such, and not just their categorisation, for


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justice to some at the cost of injustice to the others has ever been the rallying cry of anti -reservationists.And if one is to talk of discrimination in reverse, it is the courts injunction against classifying the lesseramong the dalits separately for the purpose of allotting their quota to them that deserves the appellation.

For have the same courts not held again and again that not making a classification when it cries out to bemade amounts to treating unequals as equals, which would truly earn the wrath of Article 14?

32 E. V. Chinnaiah vs. State of Andhra Pradesh and others, op.cit.33 Upendra Baxi (2005), The Constitution of India,New Delhi, Universal Law Publication Co. Pvt. Ltd.34 Making necessary provisions in favour of any backward category in a state is very much a state subject.35 K. Balgopal (2005) op. cit.

It means (in the words of Santosh Hegde) that any action that interferes, disturbs, rearranges, regroupsor reclassifies the various castes in the list unless it is an Act of Parl iament is barred by the

Constitution. How does the Court read so much into the plain language of Article 341? The SupremeCourt is no Humpty-Dumpty to make words mean what it wants them to mean. It must obey and followthe meaning of the expressions themselves. Where the expressions are plain it has no discretion to add orsubtract anything. It is only where the expressions are obscure or otherwise of doubtful meanings that the

court steps in, not to give them the meaning it wishes but to elicit what the lawmakers may have meant.There is nothing whatsoever obscure or doubtful about Article 341.

36 E. V. Chinnaiah vs. State of Andhra Pradesh and others, AIR 2005, SC162 (2005(1) S.C.C. 394)37 K. Balgopal (2005) op. cit.

V R Krishna Iyer says in State of Kerala vs N M Thomas: A bare reading (of Articles 341 and 342 of

the Constitution) brings out the quintessential concept that they (scheduled castes and scheduled tribes)are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities thereoffound on investigation to be the lowliest and in need of massive State aid and notified as such by the

president.To confuse this backward-most social composition with castes is to commit a constitutionalerror, misled by a compendious appellation. So that, to protect harijans is not to prejudice any castebutto promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to

this mixed bag of tribes, castes, races, groups, communities and non-castes outside the fourfold Hindu

division is not to compromise with the acceleration of castelessness enshrined in the sub-Article. Thediscerning sense of the Indian Corpus Juries has generally regarded scheduled castes and scheduledtribes, not as caste but as a large backward group deserving of societal compassion. Santosh Hegdequotes these lines, correcting the word they in line 2 above as there for no reason at all except that it

suits his view, and says: According to Justice Krishna Iyer, though there are no castes, races, groups,

tribes, communities, or parts thereof in Hinduism, the president on investigation having found some ofthe communities within the amalgam as being lowliest and in need of massive state aid included them in

one class called the scheduled castes.The sequitor thereof is that scheduled castes are one class for thepurposes of the Constitution. It is absurd to claim that V R Krishna Iyer or anybody for that matter

could have held that there are no castes, tribes, groups, etc, within Hinduism. It merely serves thepurpose of drawing the conclusion that from out of the amalgam (of what?) called Hinduism the

president has picked out the lowliest who are in need of massive state assistance and made out of themthe class called scheduled castes, which is therefore an undifferentiated, indivisible class. (emphasis

added)38 M. N. Srinivas. 1996 (ed.) Caste: Its Twentieth Century Avtaar,New Delhi, Penguin Books.39 See Y. Chinna Rao, 2007. Writing Dalit History and Other Essays, New Delhi, Kanishka Publishers, pp.

156-182.40 I. R. Hemmingway, Madras District Gazetteers, Godavari District, Vol I, 1907, p.51 as quoted in Swapna

Samel (2004)Dalit Movement in South India, 1857- 1950,, New Delhi, Serials Publications.41 See S.S. Jodhka (2006) Regions and Communities: Social Identities in Contemporary Punjab in Rajendra

Vora and Anne Feldhaus ed.Region, Culture, and Politics in India. Delhi: Manohar; (2004) Sikhism and

the caste question: Dalits and their politics in contemporary Punjab in Contributions to Indian Sociology

(n.s.) Volume 23; P. Judge (2004) Interrogating Changing Status of Dalits in Punjab in Harish Puri (ed.)Dalits in Regional Context. Jaipur: Rawat Publications; Mark Juergensmeyer (1988): Religious Rebels inthe Punjab: The Social Vision of Untouchables, Ajanta Publications, Delhi; Harish Puri (2004): The

Scheduled Castes in the Sikh Community: A Historical Perspective in Harish Puri (ed), Dalits in RegionalContext, Rawat Publications, Jaipur, Ronki Ram (2004): Untouchability, Dalit Consciousness, and the AdDharam Movement in Punjab, Contributions to Indian Sociology,Vol. 38.

42 See M. Jurgensmeyer 1988, op. cit.43 See Jodhka and Kumar 2007, op.cit.44 Darshan Rattan Rawan is the founder of Adi Dharma Samaj -a Ludhiana based socio-religious

organisation of Balmikis that has its spread in Punjab, Haryana, UP, Rajasthan, Mumbai, Delhi, HP,Gujarat and MP in a recorded interview with the author in a field work in Ludhiana.

45 An example to explain this by Darshan Ratan Rawan deserves special attention,In the year 1937 when the first election after the Poona Pact was held, the British altogether reserved 8

seats for the dalits in the Maha Punjab (that was made of Punjab East and West, Haryana, H.P.). At that

time the dalit leadership of Punjab lied with the leaders of Ad-Dharm Movement and they were notsatisfied with the arrangements made by the British. Therefore they led a delegation to the governmentwith a demand to change those reserved constituencies with some others constituencies of their choice.


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The Ad-Dharam movement was basically a movement of Chamars but they were clever to put nearly alldalit communities including Mazhbi Sikhs and Balmiki into the delegation. The Balmikis and Mazhbiswere ignorant of the facts and could realize only later, that out of the eight reserved constituencies (done

by the British) only those five constituencies were changed that had a large concentration of Mazhbi-Balmiki population and were transferred to those areas that were dominated by the Chamar population.

46 See Pradeep Kumar (2001) Reservations within Reservations: Real Dalit-Bahujans,Economic and PoliticalWeekly, September 15.

47 E. V. Chinnaiah vs. State of Andhra Pradesh and others, AIR 2005, SC162 (2005(1) S.C.C. 394)48 Ibid. One of the proven methods of examining the legislative competence of an enactment is by the

application of doctrine of pith and substance. This doctrine is applied when the legislative competence ofa Legislature with regard to a particular enactment is challenged with reference to the Entries in various

lists and if there is a challenge to the legislative competence the courts will try to ascertain the pith andsubstance of such enactment on a scrutiny of the Act in question. (See : Kartar Singh vs. State of Punjab1994 (3) SCC 569). In this process, it is necessary for the courts to go into and examine the true

character of the enactment, its object, its scope and effect to find out whether the enactment in question

is genuinely referable to the field of legislation allotted to the State under the constitutional scheme.49 Ibid. On a detailed perusal of Act it is seen that Section 3 is the only substantive provision in the Act,

rest of the provisions are only procedural. Section 3 of the Act provides for the creation of 4 groups outof the castes enumerated in the Presidential List of the State. After the re-grouping it provides for the

proportionate allotment of the reservation already made in favour of the Scheduled Castes amongst these

4 groups. Beyond that the Act does not provide for anything else. Since the State had already allotted15% of the total quota of the reservation available for the backward classes to the Scheduled Castes thequestion of allotting any reservation under this enactment to the backward classes does not arise.

Therefore, it is clear that the purpose or the true intendment of this Act is only to first divide the castes inthe Presidential List of the Scheduled Castes into 4 groups and then divide 15% of reservation allotted

to the Scheduled Castes as a class amongst these 4 groups. Thus it is clear that the Act does not for the

first time provide for reservation to the Scheduled Castes but only intends to re-distribute the reservation

already made by sub-classifying the Scheduled Castes which is otherwise held to be a class by itself.50 The installation of the statues of Babu Jagjeevan Ram in the state should not be treated by the dalit

community as a matter of distrust and faith in Baba Saheb Bhim Rao Ambedakar.51 Conference on Affirmative Action in Higher Education in India, the United States and South Africa, 19-21

March 2008, New Delhi, organized by the Programme for the study of Discrimination and Exclusion,

School of Social Sciences, Jawaharlal Nehru University & Centre for Comparative Constitutionalism,University of Chicago. Mungekar with an example of religious minority (Muslim) explained that when the

government tries to take some special remedial measures for the upliftment of the community, there is a crythat it is an attempt to divide the society on the communal lines.52 http://in.jagran.yahoo.com/epaper/index.php?location=4&edition=2008-01-24&pageno=753 Mr. Krishna Madiga told a press conference that the Madigas of Balapanur village, Pulivendula

constituency would take out rallies in Hyderabad from December 7 to 9 and submit memoranda to theChief Minister. If the Government did not initiate action to ensure micro-classification by then, the

Madiga Students Federation would stage a `Chalo Assembly' on December 13, he added. ( Onlineedition of The Hindu, 17 November, 2006) (Also see Jodhka and Kumar 2007).

54 Online edition of The Hindu, 11 December, 200455 The Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The Act,

however, has been challenged again in the Punjab and Haryana High Court (see CWP 16221 of 2006,

Hardeep Singh and others Vs State of Punjab).

Sub-classification of SC Reservation a C

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