• Untouchability was a key criteria used by British to determine who was SC? Know Colonial origin of term SC. Should weavers, musicians, painters, textile producers be considered SC/ST for reservation? Should ST converts still be ST?

This Chartered Accountant is not a constitutional expert. Based on a reading of the SC August 1 order, relevant provisions of the constitution and media reports put this together.

Essay includes origin of words SC/ST, how British determined who is SC, level of untouchability practiced varied across India, observations on SC order, what did court say on sub-quotas, basis of the OBC creamy layer and suggests criteria for identifying creamy layer. Read in parts A, B and C. A PDF file of the Supreme Court is available, link end of article. 

A. Introduction

Before we understand the Supreme Court (SC) order we must know origin of the words Scheduled Caste (SCS) and Scheduled Tribes (ST).

The word SC was first introduced by the Government of India Act 1935, enacted by the British. Till then Ambedkar said he belonged to the Depressed Classes (DC). In the early 1930's Gandhi coined the word Harijan or Children of God to describe untouchables. All DCs are not untouchables. For the first time, the 1935 Act called for representatives of “backward tribes” in provincial assemblies. 

What happened at independence?

Extract from order by CJI Dhananjaya Chandrachud. “The President issued the Constitution (Scheduled Castes) Order 1950 which nearly corresponds to the Government of India (SC) Order 1936 notified under the PART D 89 Government of India Act 1935. The Government of India Act 1935 did not define the criteria for the identification of Scheduled Castes. Clause 26(1) of the First Schedule to it defined the SCs as castes that corresponded to the classes of persons known as the “depressed classes.” 1 Pg. 88/89 Untouchables were those who belonged to the depressed classes. Read later Who are DC?

Note that post independent India refers to SC repeatedly when it is the GOI Act 1935, drafted by colonial British, that decided who is SC. Today inclusion of a community as SC/ST is based on vote bank politics. This is done by all parties.  

The word ST was first introduced around 1949. In Indic terms people living in the forests are called Vanavasi. STs differ from region to region. One cannot compare northeast STs, who have mostly converted, with those in Chhattisgarh and Himachal. Here are pictures of STs across India.  

Computer training class at Ramakrishna Mission Cultural Centre, Shillong attended by ST. 2014. 

Tribes (converted) Kohima, Nagaland. 2014.

ST ladies Bastar during Bastar Dussehra. 2013. 

Hatees tribe, Himachal Pradesh. 

Meenas of Rajasthan were rulers before the Kachhwaha Rajputs, the last rulers of Jaipur but are now ST. So also in Tripura members of the former Royal Family are considered ST. Since R D Burman belonged to the royal family he was ST. A bust of Ambedkar is placed at entrance of Ujjayanta Palace (Agartala), former residence of rulers as if to reiterate their new found status as ST although Ambedkar was more concerned about SC.

Bust of Ambedkar at entrance of  Ujjayanta Palace 2014.

In some states, ST traditions are part of modern day Hindu traditions. Sandhya Jain wrote in book Adi Devta Arya Devta, “Jagannatha’s tribal origins are undeniable, though the god is today inseparable from the ‘high’ Hindu panorama.” In Tripura the tribal name of Lord Shiva is SUBRAI RAJA in Kok Borok dialect of Tripura’s tribal groups.  

Bastar Tribals outside Danteshwari Mandir, Dantewada. Bastar Dussehra is essentially celebrated by tribals. 

We have used British nomenclature to classify, divide our society for e.g. Kalbelias are called Gypsy. Read  Who are Scheduled Tribes + Album Bastar Dussehra

Many ST communities are talented though not convent educated for e.g.

Painting by Gond artist, Madhya Pradesh. 

Kalbelia dance. They belong to Snake Charmer’s community of Rajasthan.

The word Dalit is not referred to in the Constitution and entered popular discourse starting 1990’s. Read  History of word Dalit

Just because they these talented Indians do not speak English, live in the hinterland and not done what we call modern education are they backward?

Truth about some STs

Meenas of Rajasthan were rulers before Rajputs. The Gurjars, who claim Maharana Pratap was a Gurjar and produced many great warriors, wish to be declared OBC/ST. In Tripura, former rulers belonging to the Debbarma community are ST. In the Northeast STs who have converted to Christianity are still treated as ST for the purpose of reservations and income-tax exemption. Read  OBC Kings of India + the brave Raja Mihir Bhoja was a Gurjar

The very talented Meghwal community, found in Gujarat and Rajasthan, are considered as SC. 

Meghwal women in village near Barmer, Rajasthan.  2013. They would not leave a rupee due to them, good at numbers. 

In West Bengal, Matuas and Rajbhanis are SC. In Gujarat, Vankars or weavers considered SC – see Bhuj pic below for example. 

Should weavers, musicians, painters, textile producers to continue to be considered SC or ST for the purpose of reservations?

Should benefit of reservations not be extended to SC/STs if either parent, spouse or sibling is IAS, IPS, IRS or Officer above Major or equivalent rank in the Armed Forces?

Either way, the India of 2024 has changed from what it was in 1935 when the British decided the SC list around 1935. Are those assumptions still relevant?

After all Ambedkar’s teacher in High School, a Brahmin loved him so much that daily he would drop into the hands of Bhim a part of his meal – boiled rice, eggs, rice, bread and vegetables. Bhim drew his surname Ambavadkar from his village Ambavade. Due to love for Bhim the Brahmin teacher changed Bhim’s surname in school records to his own i.e. Ambedkar. Dr Ambedkar Life and Mission by Padma Bhushan Dhananjay Keer.

Should the matter of thousand years of deprivation of SCs be revisited? 

Read  Were Backward Classes always suppressed in India

B. Excerpts from the SC order of July 31, 2024 

This matter of sub-quotas entered the Punjab and Haryana High Court in 2010 and SC in 2014. SC final order came in July 2024. Think of time taken!!

Does the Constitution define who is a Backward Class?

“Reservations under Article 16(4) are not restricted to the Scheduled Castes and Scheduled Tribes. It encompasses all classes whose backwardness is attributable to social reasons. This includes other socially and educationally backward classes such as the Other Backward Class category, women and the disabled.” 1 Pg. 44

Probably, many states have used this Article to provide reservations for all Muslims under OBC arguing they are a backward class. 

This implies that all those belonging to the first three varnas do not suffer from social backwardness!!

“The Constitution of India does not provide a definition of the Scheduled Castes. Article 366(24) states that castes/groups notified under Article 341 shall be Scheduled Castes. However, neither Article 341 nor Article 366 (24) prescribes the criteria for their identification.” 1 Pg. 88

Actually, when India adopted the Constitution the President issued the Constitution (Scheduled Castes) Order 1950 which nearly corresponds to the Government of India (Scheduled Castes) Order 1936. Colonial Constitution!!

Who are Depressed Classes, later called Scheduled Caste?  

“In 1919, the Southborough Franchise Committee adopted the test of untouchability to define the depressed class. The Committee interpreted the phrase “depressed classes” as the 'untouchability class, that is, the class whose touch or approach is deemed to cause pollution as it exists in the United Provinces. (Uttar Pradesh) The report stated that the depressed classes “should not include primitive or aboriginal tribes nor should it include those Hindus who are only economically poor and in other ways backward but are not regarded as untouchables.”” 1 Pg. 90 Para 130 lays down criteria for a community to be called untouchable. Read 1 Pg. 91

Are SCs treated as untouchables across India?

“The 1919 Note states that untouchability as it existed in Madras, where an untouchable’s touch necessitated immediate purification, did not exist in Assam.” 1 Pg. 92/94

“The Note of the Superintendent of Assam on Mahars further elucidated the point that there was no “uniformity” in the untouchability faced by members of various castes. The note also distinguished the untouchability which certain castes faced from other untouchable castes. They were included because they were untouchables with respect to everything but for smoking requirements and they were a socially and educationally backward community.” 1 Pg. 93

“On the other hand, the States of Bihar, Orissa and Assam while stipulating the castes which faced untouchability observed that untouchability in the States did not exist in the same form as it existed in South India.”  1 Pg 94

“Based on the tests for identifying untouchability laid down by Hutton, the Provincial Committee prepared the provincial estimates of depressed classes. This indicates that the depressed classes were identified based on the notion of untouchability and not in the literal sense of the term.” 1 Pg 95

Thus, the existence of Untouchability was a key determinant in deciding classification as SC. Surveys were done around 1920. Also stated in Para 175 of 1 Pg. 120 and by Justice Gawai on Pg. 161, 187

Does the same level of untouchability exist in 2024 that existed around 1920?

Is that criteria still used by governments to include a community in SC list?

If social backwardness is the issue then why make caste the basis for any affirmative action atleast in public eyes?

If Ambedkar’s community of Mahars was truly an untouchable at school, would his Brahmin teacher share his food with him?

There is inequality within the SC too notes the order. 1 Pg.99 Aside, we seem to be obsessed with equality.

We should instead be focused on improving the incomes and standard of living of all Indians. When that happens, people will not care about inequality except intellectuals.

“The Constitution does not bar the allocation of a percentage of seats to a caste since every caste is a class. However, the State must have sufficient material to prove inter-se backwardness between each of the castes.” 1 Pg. 130

So the Court implies that more than caste it is social backwardness of individual caste that needs to be looked at. In which case, why not make social backwardness and not caste as the basis for reservations.

Larger issue–can social backwardness be removed only through a govt job?

Many ST are talented in textile design and production. This SC (Meghwal) shop in Bhuj, Gujarat attracts customers from across the world. Their textile design and making skills would put many to shame.

Meghwal community in Gujarat/Rajasthan. Shop in Bhuj, Gujarat.

Under Conclusion the SC order says, “The objective of any form of affirmative action including subclassification is to provide substantive equality of opportunity for the backward classes. 1 Pg. 139

“Both Articles 15(4) and 16(4) do not enable reservation based on castes but only on classes. The absence of the use of “caste” in Articles 15(4) and 16(4) when coupled with its use in Articles 15(2) and 16(2) led the courts to hold PART D 129 that caste cannot be the sole basis of reservation.”  1 Pg 128.

“Thirdly, the beneficiary class under Article 15(4) must be “socially and educationally backward” while the class under Article 16(4) is a backward class which is not adequately represented.” 1 Pg 104

Then, why is so much importance to caste in public discourse when the word used is Backward Class? Social backwardness is another key factor. But that can be across castes!

Go to References 6, 7 to read actual provisions of Articles 15 (4) and 16(4).

I must appreciate CJI Chandrachud for writing the 140 page order, his steno included.

Justice Gawai in a separate order has extensively quoted British reports on caste etc. Wish more people read noted Gandhian Dharmapalji’s views on why the British made caste evil. Read   Congress strategy is to divide Hindus by caste

C. Indian Express reports on SC order of July 31 and Basis of OBC creamy layer.

“The seven-member bench of the apex court has allowed state governments to sub-divide the reservation quota meant for Scheduled Castes (SC) and Scheduled Tribes (ST). The Court has also opened the door for identification and exclusion of the “creamy layer” in the SC and ST categories from the benefits of affirmative action. The spirit that pervades the majority opinions is that any classifications within the social justice policy must be reasonable and rational. Justice Vikram Nath clarifies, the criteria for identification of “creamy layer” would have to be different from that used in the case of OBCs.” Source Indian Express

Creamy layer means a group of people within a community who, based on certain criteria, are better off than others in the same community.

Based on a report by a retired Justice “the Department of Personnel & Training listed six categories of people whose children would be considered to fall in the creamy layer of OBCs. These are: Constitutional/statutory post; Group ‘A’ and group ‘B’ officers of central and state governments, employees of PSUs and statutory bodies, universities; Colonel and above in armed forces and equivalent in paramilitary forces; Professionals like doctors, lawyers, management consultants, engineers etc; Property owners with agricultural holdings or vacant land and/or buildings; and Income/wealth tax assessee. 

Originally, the income threshold was fixed at Rs 1 lakh per annum, with a provision for this figure to be revised every three years. However, since 2017, when the threshold was updated to Rs 8 lakh, no further revision has taken place.” Source Indian Express

SC order, “Thus, in view of the above discussion, the State for a valid exercise of power to sub-classify under Article 16(4) is required to collect quantifiable data with respect to the inadequacy of representation of the sub-categories in the services of the State.” 1 Pg 137

When a being is talented and competent or has a good job social discrimination if any is bound to reduce with time. Courts or governments can do that much.

Whatever may be the criteria for SCs and STs should it be all India or state-wise criteria? Since the condition of SC/STs varies across states, the criteria may vary. For coordination, it might be better if the criteria is also approved by the Central government. Either way the criteria is subject to judicial review. 

As caste/SC/ST controversy is part of Indian discourse for nearly hundred kindly reflect on the words of former British Council Scholar and spiritualist Dr Satish K Kapoor who wrote in Hinduism:The Faith Eternal, “Indian society could not have survived for millennia on the staple diet of wrangles and altercations all the while.” (Pg. 69) 

References

1. Click on PDF to read SC order of 1/8/24. Key parts highlighted. Conclusion is on page 138 and Justice Gavai order conclusion Pg. 419. Downloaded order from SC site.

2. SC Verdict on sub-classification of SC and STs

3. Legal issues on sub-classification of SC and STs

4. A view that opposes sub-classification as beyond the purview of the SC

5. Articles 342, 366 (24) of the Indian Constitution.  

6. Article 15 (4) reads, “1 [(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

7. Article 16 (4) reads, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Also read

1. Who are Scheduled Tribes

2. History of the word Dalit

3. Meenas now ST were rulers before the Rajputs

4. Were Backward Classes always suppressed in India

5.  How a Printing Mistake made Meenas, a land-owning community, an ST in 1954

6. Who are the Hattis of Himachal and why they want ST status

7. Gond Paintings – A Mystic world created by dots and lines

8. Album National Tribal Festival, Raipur

Notes

1. Queen Ahilya Bai Holkar of Maheshwar/Indore belonged to the shepherd-dhangar community. The community, now considered a nomadic tribe, is agitating for it to be declared a scheduled tribe.

2. “The beneficiary class in Article 15(4) must be a socially and educationally backward class.” 1 Pg 119

3. “Though Article 16(4) only refers to the “backward class” collectively, the Scheduled Castes are differentiated because they suffer from social backwardness in the form of untouchability which leads to educational and economic backwardness.” 1 Pg 120 What was true in 1920s, is it true in 2024! Governments have spent crores of rupees for SC/ST welfare!

4. “Both Articles 15(4) and 16(4) do not enable reservation based on castes but only on classes. The absence of the use of “caste” in Articles 15(4) and 16(4) when coupled with its use in Articles 15(2) and 16(2) led the courts to hold PART D 129 that caste cannot be the sole basis of reservation.” 1 Pg 129 Can someone tell the government and media this.

5. Is every caste a Class?