Who Is Backward

The first answer. M.R. Balaji v. State of Mysore, AIR 1963 SC 649, struck down an order classifying communities as backward and more backward and reserving sixty eight per cent of college seats. The Committee had treated caste as almost the sole basis of social backwardness, and a classification resting on that test is inconsistent with article 15(4); caste may be a relevant factor but cannot be the sole or predominant one.

The settled answer. Indra Sawhney v. Union of India, AIR 1993 SC 477, held that a caste can be and often is a social class in India, and that if a caste as a whole is socially backward it is a backward class within article 16(4); the same is true of occupational groups, sects and denominations among non-Hindus. It also held that a backward class cannot be identified only and exclusively by economic criteria, though identification on an occupation-cum-income basis without reference to caste is permissible.

So caste may be the unit of identification where it functions as a social class, and it may not be the only criterion, and economics alone will not do.

Sub-classification

Between backward classes. Indra Sawhney held that there is no constitutional bar to classifying backward classes into backward and more backward.

Within the Scheduled Castes. This was forbidden and now is not.

E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, struck down Andhra Pradesh's division of the fifty seven castes in the Presidential List into four groups with the State's fifteen per cent apportioned among them. The castes in the List form a homogeneous group which a State may not re-group; only Parliament may include or exclude under article 341(2).

State of Punjab v. Davinder Singh, decided 1 August 2024, overruled that holding. Sub-classification within the Scheduled Castes is constitutionally permissible. Article 341 creates a deeming fiction whose only consequence is that the listed castes receive the benefits the Constitution provides; it does not create an integrated homogeneous class. Sub-classification does not offend article 341(2) because no caste is thereby included in or excluded from the List, and would offend only if preference or exclusive benefit were given to certain castes over all the reserved seats. Historical and empirical evidence shows the Scheduled Castes to be a socially heterogeneous class, so a State may sub-classify under articles 15(4) and 16(4) where there is a rational principle of differentiation with a nexus to the purpose, and it must collect data on inadequacy of representation and establish that it flows from backwardness.

Who may identify

Before 2018. Both the Union and the States maintained lists, the State list governing State employment and State institutions.

After the One Hundred and Second Amendment, in force 15 August 2018, article 342A provided for Presidential specification and parliamentary variation, and article 338B gave the National Commission for Backward Classes constitutional status. The amendment was construed as removing the States' power to identify their own backward classes.

After the One Hundred and Fifth Amendment 2021, article 342A(1) and (2) are confined to the Central List, and clause (3) provides that notwithstanding those clauses every State and Union territory may by law prepare and maintain, for its own purposes, a list of socially and educationally backward classes whose entries may differ from the Central List.

Comparison with the United States

There is no equivalent problem, and the reason is instructive. American programmes identified beneficiaries by race, using categories drawn from the census, and the constitutional objection was never that the categories were hard to draw; it was that drawing them at all is a racial classification. Indian law spends its energy on who is backward because the Constitution has already settled that backwardness may be acted on; American law spends its energy on whether the classification may be made at all.

A worked example

A State wishes to give a preference within its Scheduled Caste quota to two castes whose representation in the services is negligible.

Before 1 August 2024. Impossible on E.V. Chinnaiah.

After Davinder Singh. Permissible, if the State identifies a rational principle of differentiation with a nexus to the purpose, collects data on inadequacy of representation and shows that it flows from backwardness, and does not give the preferred castes the whole of the reserved seats.

In the United States. The question would not arise in that form; a preference among racial subgroups would be a racial classification receiving strict scrutiny.

The cases

Facts. M.R. Balaji v. State of Mysore, AIR 1963 SC 649, concerned a Mysore order on the Nagan Gowda Committee's report classifying communities as backward and more backward and reserving sixty eight per cent of engineering and medical college seats.

Held, by five judges. The order was struck down. Caste had been treated as almost the sole basis of social backwardness, which is inconsistent with article 15(4); a reservation of sixty eight per cent was a fraud on the constitutional power; special provision under article 15(4) should be less than fifty per cent; and the sub-classification into backward and more backward was not warranted on the material.

Why it matters here. It is the first judicial attempt at the caste question and the origin of the fifty per cent figure.

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, concerned the Mandal Office Memorandum of 13 August 1990 and the later memorandum adding an economic preference.

Held, by nine judges. Among the answers: a caste can be and often is a social class in India, and if socially backward it is a backward class for article 16(4); a backward class cannot be identified only and exclusively by economic criteria, although occupation-cum-income identification without reference to caste is permissible; there is no bar to classifying backward classes into backward and more backward; clause (4) of article 16 is not an exception to clause (1) but an instance of the classification inherent in it.

Why it matters here. It is the governing authority on identification and the source of nearly every rule in this topic.

Facts. State of Punjab v. Davinder Singh, decided 1 August 2024, raised whether a State may sub-classify within the Scheduled Castes given the single Presidential list in article 341.

Held, by the Supreme Court. Sub-classification is constitutionally permissible and E.V. Chinnaiah is overruled on that point. Article 341 creates a deeming fiction and not an integrated homogeneous class; sub-classification includes nobody in and excludes nobody from the List, and would offend only if certain castes were preferred over all the reserved seats. A State must proceed on a rational principle of differentiation with a nexus to the purpose, and must collect data on inadequacy of representation flowing from backwardness. Article 335 is not a limitation on the power under articles 16(1) and 16(4) but a restatement of the need to consider the claims of the Scheduled Castes and Scheduled Tribes.

Why it matters here. It is the most recent structural change in this area and it reverses a rule that stood for nineteen years.

Distinctions

What beginners get wrong

"The Scheduled Castes cannot be sub-classified." That was E.V. Chinnaiah, overruled on 1 August 2024 in State of Punjab v. Davinder Singh.

"Caste cannot be used to identify backwardness." Balaji says it cannot be the sole or predominant test; Indra Sawhney says a caste that is socially backward is a backward class.

"Article 15(4) and article 16(4) use the same test." Article 15(4) requires social and educational backwardness; article 16(4) requires backwardness together with inadequate representation in the services.

"States lost their lists in 2018 and never got them back." Article 342A(3), inserted in 2021, restores a State list for the State's own purposes.

Limits and criticism

Identification without current data is guesswork, and the Mandal Commission worked from the 1931 census for caste figures because no later caste enumeration existed.

A list is easy to administer and impossible to keep accurate, which is why article 341(2) reserves variation to Parliament and why so little variation happens.

Sub-classification is a genuine advance and a new problem, since a State now has to justify a hierarchy within a group it did not itself define.

And every identification decision is politically irreversible in practice, whatever the constitutional position, which is the strongest argument for building the exit into the design at the start.

Quick revision

1. Articles 341 and 342: Presidential notification; only Parliament may include or exclude.
2. Articles 15(4) and 16(4) describe rather than list, and describe differently.
3. Article 340: Presidential commissions. Kalelkar 1955, not acted on; Mandal 1980, implemented in 1990.
4. Balaji, AIR 1963 SC 649: caste may be relevant but not sole or predominant; reservation should be less than fifty per cent.
5. Indra Sawhney, AIR 1993 SC 477: a socially backward caste is a backward class; economics alone will not do; backward and more backward permissible.
6. E.V. Chinnaiah, (2005) 1 SCC 394, forbade sub-classification within the Scheduled Castes; Davinder Singh, 1 August 2024, overruled it.
7. Article 342A(3), from 2021, restores the State's own list.

Test yourself

1. Contrast the two techniques of identification. The Scheduled Castes and Scheduled Tribes are identified by list: the President specifies them by public notification under articles 341 and 342, after consultation with the Governor where it is a State, and by clause (2) only Parliament may include or exclude, a notification not being variable by any subsequent notification. Membership is therefore a question of fact about the list. The socially and educationally backward classes are identified by description: article 15(4) requires social and educational backwardness and article 16(4) requires backwardness together with inadequate representation in the services, neither being defined, so identification is done by commissions under article 340 and by the State, subject to judicial review.

2. What is the settled position on caste as a criterion? That caste may be the unit of identification where it functions as a social class, but may not be the sole or predominant criterion. M.R. Balaji v. State of Mysore, AIR 1963 SC 649, struck down an order that treated caste as almost the only basis of social backwardness. Indra Sawhney v. Union of India, AIR 1993 SC 477, held that a caste can be and often is a social class in India and that a socially backward caste is a backward class for article 16(4), and equally that a backward class may not be identified only and exclusively by economic criteria, although occupation-cum-income identification without reference to caste is permissible.

3. What did Davinder Singh change and why? It held sub-classification within the Scheduled Castes constitutionally permissible and overruled E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, on that point. The reasoning is that article 341 creates a deeming fiction whose only consequence is that the listed castes receive the constitutional benefits, and not an integrated homogeneous class; that sub-classification includes no caste in the List and excludes none from it, so article 341(2) is not offended unless certain castes are preferred over all the reserved seats; and that historical and empirical evidence shows the Scheduled Castes to be socially heterogeneous. A State must act on a rational principle of differentiation with a nexus to the purpose and collect data on inadequacy of representation flowing from backwardness.

4. Why does American law have no equivalent debate? Because the constitutional question is settled at a different point. Indian law spends its energy on who is backward because the Constitution has already settled, in articles 15(4) and 16(4), that backwardness may be acted upon; the argument is therefore about the beneficiary. American law spends its energy on whether the classification may be made at all, because the Fourteenth Amendment contains no enabling clause and any race-conscious measure is a racial classification receiving strict scrutiny, so identifying the beneficiary group precisely is beside the point.