Affirmative action in the form of ‘Reservations’ in India was supposed to create a level playing field to make up for the exploitation and marginalization that the historically identified lower castes now recognized as Scheduled Castes and Scheduled Tribes suffered for centuries. However, as societies evolve, they encounter new challenges and face various new problems.
The recent judgment by the Supreme Court of India which allows for sub-classification within SCs and STs has brought to the limelight the critical question of whether uniform reservation policies truly serve all subgroups equally. Jammu and Kashmir in essence epitomizes this complexity. The Gujjar and Bakerwal tribes early spring last year protested the inclusion of Pahari-speaking communities in the Schedule Tribes List. The protests reflect a tussle not only for resources but also for an attempt to address the imbalance within the broader tribal dispensation, questioning the grant of tribal status in itself.
With the advent of modernity, new dimensions have been lent to this discourse and disparities have become more marked, even among conventionally homogeneous groups. While one section rose through the reservation system, moving out from poverty and exclusion, the other remained far behind. This entails the concept of, ‘A Class within a Class.’ This unequal progress, which is visually represented by the case of the Gujjar and Bakerwal tribes, raises the question of whether sub-classification and the introduction of a creamy layer can better distribute benefits as tribes have become heterogeneous against previously held beliefs.
The legal foundation for sub-classification
The issue of sub-categorizing and sub-classifying Scheduled Castes (SCs) and Scheduled Tribes (STs) has been a source of constant debate. Recently, the Haryana government implemented sub-classification within Scheduled Castes (SCs) for reservation in government jobs, thus setting the stage for further social engineering. This came immediately after the apex courts’ recent remarks. The judiciary has played a pivotal role in the past and the debate continues. In the ‘E.V. Chinnaiah vs. the State of Andhra Pradesh (2005),’ the Supreme Court ruled that SCs and STs constituted ‘homogeneous groups’ and prohibited states from creating subcategories within these classifications for reservation purposes. However, this ruling did not consider the emerging socio-economic disparities within SCs and STs, and thus helped dominant subgroups monopolize reservation benefits. The judgment in ‘State of Punjab v. Davinder Singh, 2024,’ was the watershed. While revisiting its judgment in ‘E.V. Chinnaiah,’ the Court recognised the inequalities inherent in SCs and STs and permitted the states to subclassify these groups to achieve an equitable distribution of benefits. This praxis of reservation is evolving, and this view crystallized in the recent judgment of ‘Jaishri Laxmanrao Patil v. Chief Minister of Maharashtra,’ where the Supreme Court held that reservation policies must conform to socioeconomic reality and cannot treat marginalised groups as an undifferentiated homogeneous unit. These judgments emphasize the requirement of concrete empirical data and due diligence in formulating policy measures for sub-classification so that no section of the most disadvantaged subgroup is denied its due share.
In the context of J&K, subclassification has become pertinent, particularly in light of the long history of systematic neglect experienced by sections of the Gujjar and Bakerwal tribes. In the absence of any such measures, the dominant subgroups within the ST category, for example, the Paharis and settled Gujjars, are likely to dissipate the limited benefits that accrue to the most marginalized. Introducing a creamy layer within the ST reservations, as referred to in cases like ‘Indra Sawhney v. The Union of India, 1992,’ can be another refinement in excluding the economically advanced in order not to reap benefits at the cost of genuinely disadvantaged sections.’
The Gujjar-Bakerwal struggle: A case for Sub-Classification
One of the most underprivileged communities in Jammu and Kashmir is the Gujjar and Bakerwal tribes. Their ST status was granted in 1991, but until today, with decades of affirmative action, their conditions with regard to access to education, health facilities, and employment continue to show unimpressive statistics, owing to systemic neglect and geographical isolation. On the recommendation of the ‘G.D Sharma Commission,’ the Parliament decided to include Pahari-speaking communities along with Gadda Brahmins and the Paddari Tribe in the Schedule Tribe list under Article 342 of the Indian Constitution.
This sparked a debate in J&K, particularly the Gujjars fearing the erosion of their limited opportunities protested across the region. Fear was allayed by the New Reservation Policy, which carved a separate quota of 10% under ST-2 for Paharis. However, as this new policy was implemented, it created a furore in J&K, as Open Merit shrunk to as low as 30% after vertical and horizontal deductions. Now, the unreserved students have taken to the streets protesting for rationalisation of the excessive and arbitrary quotas that have seen the reservations inflate to 70%. Several petitions challenging the J&K Reservation Act 2004 and subsequent amendments have been filed in the High Court of J&K, while the UT government established a Cabinet Sub-Committee with the mandate of putting forth a report within six months. The J&K Government must take cues from the state of Telangana where the Cabinet appointed a one-man commission, as the terms of reference for the commission include ‘undertaking of a rational sub-classification and grouping together of the homogeneous sub-castes within the Scheduled Castes in 60 days.’
Furthermore, Bakarwals are now demanding sub-classification within ST-1, which caters to 12 tribes that were accorded ST status in 1991. Historical data bear a testimony to this reality. This is reflected in a 2023 report by the Parliamentary Committee on the Welfare of Scheduled Tribes and Scheduled Castes: either the Bakerwals are inadequately represented in Group A and Group B government jobs, or they are relegated to low-paying Group C positions with this nomadic tribe having a literacy level of 16% as per various surveys. On the other hand, many families who speak Pahari and other settled Gujjars are usually better off economically and tend to live in urban or semi-urban areas, with better access to superior educational and job opportunities. No subclassification within the ST category has resulted in the prevalence of such disparities and has allowed dominant subgroups to overshadow the most marginalized. This finds its legal interpretation in the judgment in the case of ‘State of Punjab v. Davinder Singh’, where sub-classification has been permitted. However, successful implementation depends on sound empirical data, transparency in implementation, and social justice.
Introducing the creamy layer: A path to equity
The concept of a creamy layer, as developed in the case of Indra Sawhney v. Union of India’, aimed at excluding the economically advantaged sections from utilizing the benefit of reservation to ensure that the benefit would reach the most disadvantaged among the OBCs. This legal principle has not yet been extended to SCs or STs. However, if implemented, it may contribute to reducing internal disparities. Justice Gavai while hearing a writ petition filed by Santosh Malviya seeking a direction to the States, departments and public sector undertakings for ‘immediate cessation of reservation benefits being extended to the ‘creamy layer’ within the Scheduled Castes and Scheduled Tribes’ remarked that ‘State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action. Sub-categorization, along with the introduction of a creamy layer, also provides scope for the expansion of Open Merit, as Meritocracy is the rule and reservations are an exception.
In Jammu and Kashmir, the inclusion of a creamy layer criterion for STs would prevent the monopolization of resources by economically advantaged individuals within these categories. A significant number of people relocate to urban areas and experience an improved standard of living. The exclusion of such individuals enables policymakers to ensure that the benefits of reservation reach the most disadvantaged sections among the Gujjar and Bakerwal tribes who reside in remote and underdeveloped parts of the state with inadequate basic civic amenities. There are critics who argue that such an application defeats the very purpose of social justice as SC and ST are still victims of systemic discrimination. However, it was pointed out in ‘Jaishri Laxmanrao Patil Case’ that social justice implies not mere representation but effective representation. Unless there is a creamy layer, there is bound to be an exclusion of economically and socially disadvantaged sections, rendering the effectiveness of affirmative action in lifting the lowest strata of society useless. Now, what we have today is a ‘Tribe within a Tribe,’ where certain sections within the previously assumed homogenous groups are enjoying the benefits of affirmative actions and have mobilised giving rise to new classes.
The Way Forward: Ensuring inclusive development
The issue of reservation in Jammu and Kashmir is a variant of the larger Indian dilemma on how to manage equity and representation. Subclassification and implementation of the creamy layer can be an effective solution, but their overall success depends on their proper usage and the participation of all stakeholders. It is expected that the policymakers will give due importance to empirical research and collect quantifiable data as stressed by the apex court in ‘M. Nagraj Case (2006)’ to precisely determine the most disadvantageous subgroup within the ST/SC category to make such a measure only based on justice rather than political opportunism. Father of the Constitution, B.R. Ambedkar himself argued that ‘Reservations must be confined to a minority of seats,’ yet this social engineering tool has been weaponised as a political instrument to seek votes thus eroding the very essence of the concept itself.
In addition, particular development schemes are of paramount importance for overcoming the disadvantages of the structural disparities faced by some sections of Gujjars and Bakerwals. It is necessary to make investments in education, healthcare, and road infrastructure, especially in distant tribal areas, where mere access to basic facilities remains a luxury. Certain transparent mechanisms of delivery, such as grievance redressal authorities, would help in seeing that a voice is ensured for everybody with a marginalised voice, and their interests are taken care of. With recent rulings by the Supreme Court, a new dawn of reservation policies has set in. This provides an opportunity to reduce modernity-induced inequalities within SCs and STs and deliver the true social justice that the Constitution and its makers yearned for. As Justice Gavai remarked, ‘The ball is in the courts of legislature and executive now.’
Sinan Aquib Gill is a Senior Research Fellow at the University of Kashmir
