How Justice BR Gavai and Pankaj Mithal went off-topic in SC/ST subclassification judgment

Of the six separate opinions rendered in Thursday’s landmark Supreme Court judgment that permitted sub-classification for Scheduled Castes and Scheduled Tribes in reservations by state governments, two stood out for dealing with subjects out of the purview of the case.

The only questions the court was required to adjudicate dealt with the permissibility of creating sub-quotas within the reservations for Scheduled Castes and Scheduled Tribes and the competence of state legislatures to do so.

Reserving seats for specific sub-groups within the quotas earmarked for Scheduled Castes and Scheduled Tribes would help groups that are more backward and disadvantaged, the court held.

However, Justice BR Gavai also expounded on applying the creamy layer principle to reservations for the Scheduled Castes and the Scheduled Tribes. This principle aims to exclude the wealthier and more advanced members within a group from the benefits of affirmative action policies.

Justice Pankaj Mithal went even further off-topic, making the tenuous claim in his judgment that the caste system never existed in “primitive India”. He questioned the efficacy of reservations as a tool to uplift marginalised groups and blamed the reservations policy for “reviv[ing] casteism”.

Scroll examines these two judgments and explains why they have been criticised by experts.

Unnecessary and unenforceable

Parts of Gavai and Mithal’s judgements had nothing to do with the subject of the case or the issues that had been framed for the bench to adjudicate. The issues of a creamy layer or the desirability of reservations were not subjects argued before the court.

These opinions were therefore within the realm of obiter dicta – those sections of a judicial opinion that are not relevant to the court’s decision and would therefore lack the force of law.

It is unclear why both of them digressed from the subject matter.

According to Tarun Khaitan, Professor (Chair) of Public Law at the LSE Law School in London, “judges really have to show the discipline of not pronouncing on matters that were not argued before them”.

If they think a subject is connected to the matter at hand, “they can invite counsel on both sides to make arguments”, he told Scroll. ”But we cannot have judgments without argumentation – it is a basic requirement of the rule of law.”

Gavai’s justification for creamy layer

Gavai was the only judge among the seven on the Constitution bench who explicated the case for extending the creamy layer principle to reservations for the Scheduled Castes and the Scheduled Tribes.

Three others on the bench – Justices Vikram Nath and SC Sharma, besides Mithal – endorsed Gavai’s views without providing any substantive reasoning of their own.

Gavai referred in his judgment to those members of the Scheduled Castes and the Scheduled Tribes, “who after having availed the benefits of reservation have reached the high echelons in life”. They “cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action”, he said.

He gave the example of those members of the designated backward classes who are members of the All India Services. Their children, he wrote, “are in no way handicapped in the race of life”.

Gavai was the only person who could speak about the experiences of backward classes from personal experience since he is a member of a Scheduled Caste community.

Curiously enough, as recently as in March, Gavai had said that without his Dalit identity, he would not have been appointed as judge to the Supreme Court or the Bombay High Court before that. He credited the constitutional mandate for Scheduled Caste reservation for his elevation to the Supreme Court bench.

Gavai’s father, RS Gavai, was a politician who served in several leadership positions in the Maharashtra Legislative Council and as an MP in both the Lok Sabha and the Rajya Sabha. He went on to serve as the governor of three different states.

Gavai Junior said in his judgment that those from the creamy layer must “on their own accord … walk out of the special provisions and give way to the deserving and needy”.

Alladi Deva Kumar, Director at the Guntur-based Dalit Bahujan Resource Centre, partially agreed with Gavai.

“It is true that there is disparity, especially along economic lines, among the Scheduled Castes and the Scheduled Tribes, and even within sub-groups within these communities, due to some families availing of reservation,” he told Scroll. “A rural agricultural worker cannot compete with them.”

However, Kumar rejected Gavai’s contention that such well-off individuals are no longer backward and must not be eligible for affirmative action. “Discrimination is faced by every member of the Scheduled Castes and the Scheduled Tribes, no matter what position they reach due to their social or financial position,” he said.

Khaitan, who is the author of A Theory of Discrimination Law, told Scroll that “the main problem with creamy layer exclusion is that its principled justification and its pragmatic implementation are starkly different”.

“On principle, the policy is justified on the idea that economically weaker persons within a beneficiary class should have priority access to affirmative action over economically empowered persons within the same class,” Khaitan said. “In practice, however, the application of the creamy layer exclusion exacerbates the problem of reserved seats remaining unfilled.” These seats revert to general class applicants.

“So, the seats that might have been filled by a rich person of the Scheduled Castes/Scheduled Tribes/Other Backward Classes are allotted to poorer persons of these communities on the principle of priority, but in practice revert to persons not from the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes,” he explained.

Mithal’s hostility towards reservation

Mithal, who comes from a family of lawyers and is the son of a former High Court judge, took a bafflingly unsympathetic view of the policy of reservations in his judgment.

He pointed out that the Supreme Court and the High Courts are burdened with litigation relating to application of reservation policies. This litigation causes enormous delays in the recruitment process for reserved jobs.

He referred to periodic agitations in favour of and against reservation by various groups disturbing public peace.

This had nothing to do with the scope of questions before the court.

Mithal also made some contentions that may not be accurate.

He referred to some statistics regarding school dropout rates among backward classes without providing any source for the data in order to conclude that the Right of Children to Free and Compulsory Education Act, 2009 was “a very weak legislation”. It is not clear why Mithal mentioned the act.

He gave the example of two fictional children – one from a general category background and the other from a backward class – who are “equals in every manner as they come from well-to-do family having same kind of status, family background, education and financial capacity”. This flawed premise is used to justify his conclusion that there are “backward classes who are practically enjoying the status of the forward class people”.

He quoted from the Bhagvad Gita, which he admitted to have only a limited understanding of, to claim that “in primitive India there was no existence of any caste system”.

According to Mithal, what India had then was the varna system of occupational categories that was actually based on an individual’s nature and characteristics.

Mithal claimed that “[s]lowly the varna system prevalent was misconstrued to be a caste system”.

He said that “in the name of social welfare to uplift the depressed and the backward classes, we again fell into the trap of caste system”. The execution of reservations, he wrote, revives casteism.

All this was meant to justify his final conclusions: that the policy of reservations “requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class” and that the benefits of reservations should be limited to one generation in a family.

Nikita Sonavane, lawyer and co-founder of the Bhopal-based Criminal Justice and Police Accountability Project, told Scroll that Mithal “reproduced the most stereotypical anti-reservation arguments which goes back to the claim that caste didn’t exist altogether in Hinduism”.

She added: “This is a new approach that the Constitutional reservation framework is what invented and legitimised the caste system in some way.”

Criticising the contentions by both Gavai and Mithal, she said, “There is no empirical evidence to corroborate these arguments about someone backward acquiring upward mobility in one generation or the idea that class mobility or access to urban spaces means that one escapes casteism.”