(including a response to Anand Teltumbde’s proposed suppression of reservation benefits)

Since the Supreme Court’s 6:1 verdict on sub-classification and “creamy layer” has come to pass there have been multiple critical views on the matter. In this piece I review the judgment and put forward a few points for consideration. Among other things is also a critical response to Anand Teltumbde’s proposed scheme for “generational” suppression of reservation benefits as published in the Leaflet.

The 565-page judgment – unduly long for the lack of any socially transformative process or perspective – is divided in 5, as follows: The first and most voluminous by DY Chandrachud and Manoj Misra, followed by BR Gavai, Vikram Nath, Bela Trivedi (in dissent) and Pankaj Mittal. Bela Trivedi’s dissenting position rests largely on preferring a literal reading of precedents and the lack of a reason for the two-judge bench referring the matter to a larger bench. Vikram Nath offers nothing beyond assent with his fellow judges. Pankaj Mittal’s judgment loses itself in the Bhagavad Gita and such to continue a populist view that “ancient” India only had varna not caste, and is relevant only for the documentation of the multiple committee reports on the matter of identification and proportion of reservations for backward classes, and the list of constitutional amendments carried out to overcome hurdles placed by various Supreme Court judgments in the matter of reservations.

My primary focus will remain on the judgments of DY Chandrachud, Manoj Misra and BR Gavai.

The matter pertains to 4 state-level acts and notifications, in Punjab, Haryana, Tamil Nadu and Andhra Pradesh over a disparate period from 1994 to 2006, where communities identified as most oppressed (and thus most under-served) communities within Scheduled Castes of the states were grouped together and either provided separate quotas, sub-quotas and/or preference in a specific percentage of seats set aside for Scheduled Castes in the respective states. Criticism so far has pointed out that no quantitative data has been submitted in enumeration and establishment of the ‘most backward’, neither has the court sought such data during the course of the case. It has however directed the States to collect such data. Political criticism pertains to a shaky concept of national ‘unity’. The absence of quantified ‘data’ or the problematic notion of ‘unity’ does not negate the organized demands of specific communities. Liberals and radicals alike accept the same. It is not for me to place any opinion on the validity of these claims. My interest, as a member of the transgender community that is struggling to secure fundamental rights and constantly being asked to ‘validate’ our claims, lies in studying on-going discussions on classifications and reservation rights.

In my understanding, a simple reading of Article 341 of the Constitution – pertaining to the specification of communities entered into the Scheduled list and the limits on inclusion and exclusion and other variations to the list – would logically conclude the following: Insofar as the States have not attempted to change the materiality of the Schedule as it stands without following due procedure established under the Constitution, they do act within the ambit of the law. For, nowhere in the Constitution are the question of percentages, limits and proportion of reservations and its subdivisions explicitly mentioned. Therefore, following what Bela Trivedi might call a literal reading of the original text itself, there appears to be no express prohibition towards exercises of sub-classification. After all, in the simplest terms, what is enumeration of communal identities in a list if not automatically a form of sub-classification?

The judgment, after going into semantics at great length, does arrive at this very simple conclusion – one that may be considered a foregone conclusion simply by the methodology or process detailed in the Constitution, namely, State-wise identification and listing of separate communities in one list. But this judgment is not simply a question of sub-classification. This is more a question of continuing to reach into a cornucopia of pronouncements to frustrate the system with Indra Sawhney v Union of India in terms of maintaining the 50% limit on reservations – the only provision of the judgment that has not been overturned through any constitutional amendment, engaging in extended and unhelpful comparisons between OBCs and SCs (keeping ST communities as automatic extension of SCs without due representation in any of the matters or precedents under consideration for this judgment), making extraneous comments pertaining to rights of those SC/STs who have converted out of Hinduism, and shying away from the responsibilities of the Centre in matters of reservations, while promoting state-wide politics of scarcity.

The misuse of ‘binary’ and the automatic creation of a new false ‘binary’

Before entering into this portion, it is pertinent for me to point out that throughout the judgment, OBCs, women and disabled have been recorded as ‘backward’ and receiving reservations in different states. But transgender persons have been repeatedly omitted from the text in its listing of various protected categories.

In the judgment written by DY Chandrachud and Manoj Misra we witness an extended segment akin to a sociology lesson – simultaneously history-quoting and ahistorical – on the issue of reservation and merit. Here, they erroneously suggest that there has been a binary of reservation and merit. This exposes the misunderstanding of the now ubiquitous overuse of the term binary as a catchphrase. It is important to clarify this. A binary presumes the presence of two basic, fundamental elements – rendered complete in and of itself, and separated from each other. These are then necessarily oppositional elements that cannot exist in one unit or compositional but still separate parts that together create a new unit. Reservation (in itself incomplete but quantifiable) comes into existence because already existing as well as achievable ‘merits’ (also incomplete and un-quantifiable, alternatively termed as talent or skill or capacity) have been stricken from the record through historical injustice and pervasive discrimination. While they may be falsely rendered oppositional, it remains that all affirmative action rises to correct the forcible suppression of vague yet individually unique merits of the communally oppressed. They also do not have a compositional feature, because merit is a universal, unquantifiable and alternating feature that exists irrespective of affirmative action. Affirmative action can only act to protect individual and communal will to seek and flourish in one’s own merits before it is crushed to dust by the society. Therefore, affirmative action always exists incompletely with or without individual merits, and the extent of affirmative action is actually a reflection of the collective merit of a society craving social justice.

The only binary that has been in operation has been of ‘caste-gender’ and ‘economic status’ – as evidenced by the easy implementation of EWS reservation. If indeed there existed a binary of reservation and merit such implementation would not have been possible and socially accepted. And as seen in the remainder of the judgment the constant refrain of ‘economic status’ as an ‘undoing’ of ‘systemic discrimination’ shows that in some cases economic status and systemic discrimination are seen as oppositional and in others as compositional (to the detriment of the collective rights of those discriminated).

At the same time, the judgment goes on to paint the Scheduled Caste list in a false binary characteristic – placing the elements of homogeneity and heterogeneity in opposition. To reiterate the earlier statement on the nature of listing: it is the State-wise identification and listing of separate communities in one list. The one-ness of the list renders it with the characteristic of homogeneity (the basis of the master list, so to speak) and the community-wise separation renders it with the characteristic of heterogeneity. The two co-exist, and such co-existence cannot be written away by merely stating that they are only heterogeneous – based only on anecdotal evidence and academic references; a statement that contradictorily follows the acceptance that said schedule is created on the basis of a shared history of untouchability. It is nothing but the continuation of casteist thinking of a strict water-tight hierarchy to put forth such a simplistic view of only heterogeneity. The co-existence of the democratic Constitutional classification with the historical societal imposition of classification (with geographical differences and imbalances) necessitates the co-existence of homogeneity and heterogeneity. The contradiction of the judgment lies in that it goes into lengthy almost self-serving discussions of ‘deeming fiction’ and ‘caste-class conundrum’ and such, but then fails to see how, by creating this false binary of homogeneity and heterogeneity, it undermines the duality intrinsic in the Constitutional classification process itself.

Since the judgment quotes Ambedkar’s States and Minorities (unfortunately to attempt foreclosure of extending SC/ST reservations to those converted out of Hinduism), it is pertinent to quote from the same text to reflect on how the “pie has come to be so small”.

Here I reproduce Article II, Part V (II): “Scheduled Caste and change of Domicile” – For the purpose of Article II, a Caste, which is a Scheduled Caste in one State shall be treated as Scheduled Caste in all states of the Union.” In the explanatory notes, he writes: “The purpose of the second provision is to remove the provincial bar. There is no reason why a person who belongs to Scheduled Castes in one province should lose the benefit of political privileges given by the Constitution merely because he happens to change his domicile.”

Reflecting the homogeneity of experience of discrimination in any corner of the country, one may understand that this lies at the heart of the corrective homogeneity characteristic, and therefrom the unifying and equalizing goal originally envisioned in the overarching protection of the Constitution to every corner of the democratic Union. A protection that has been entirely diluted by the false regional limitation in accessing reservations imposed at present. As such, the false spatial/regional limitation has created and sharpened the competition for dwindling State-wise resources, necessitating methods to rationalize and address competing claims within states. This administrative limitation exists, one must accept, in direct contravention of Article 19 of the Constitution that secures right to free movement within the territory of India by holding ransom the enjoyment of one set of fundamental rights (under Articles 14-16) to the fixity of residence in turn a fixity to place of birth.

The judges, by merely recording instances of inter-community conflict and focusing on ‘heterogeneity’, have failed in properly interrogating the multiple administrative causal factors leading to the hierarchical and shrinking scale of resources flowing from the expansive imagination of the Constitution, to the reality of the Union and finally to the States. This is partly because they have been lost in defining and re-defining matters that a simple reading has already resolved.

By its own account the first part of the judgment sets out a limited set of issues for adjudication, as follows:

a. Whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16;

b. Whether the Scheduled Castes constitute a homogenous or a heterogenous grouping;

c. Whether Article 341 creates a homogenous class through the operation of the deeming fiction; and

d. Whether there any limits on the scope of sub-classification.

Through its unnecessarily lengthy and meandering discussion on a-c, it creates the false binary of homogeneous/heterogeneous before arriving at the conclusion of legality of sub-classification. And through its discussion on point d, it conclusively and without justifiable cause veers off into ‘creamy layer’. 

Furthering a politics of scarcity and untenable comparisons

At no point, in its so-called pursuit for the aims of social justice and such, the question what has necessitated these actions by the States come in play. And it must be presumed by way of absence that the arguments (by limiting itself to evidence of inter-community conflict and under-served needs) haven’t done a substantive job of establishing the issues of historical resource availability, the fundamentally conflicting relationship between the Union and the States, and the thorough failure of the Union in suspending and overcoming false regional differentiations for accessing the nation’s resources equally and equitably for the heterogeneous members of what is a Nationally/Constitutionally identified list of communities. Rather than entertaining an anthropological study of inter-community conflict, the Supreme Court would have used its resources better in interrogating the Union’s failure in meeting its Constitutional commitment of securing effective representation nation-wide, and within States. The irony and cruel hilarity of the judgment is that it goes to great lengths in defining effective representation, a Constitutional guarantee the primary responsibility of securing which lies in the hands of the Union, and yet makes no comment on what the Union has/has not done, or can do independently and in support of the States. Therefore, the seeming ‘benevolence’ and ‘concern’ of the judgment towards the most downtrodden may be taken with a historical sack full of salt.

If the Court desires to be historical and overarching in its understanding and desire to secure equality, then – and especially when it has regularly quoted Ambedkar – it must necessarily ask, following from Ambedkar’s clear direction that provincial distinctions, gains and losses for members of the Scheduled Castes are untenable in the Union of India: what would have been the gains in effective representation (in education, employment and politics) had there been no regional bar on accessing benefits of reservations in the last 75+ years? Can it be argued that in denying ‘homogeneity’ in access, across the Union, the ‘heterogeneity’ has come to be deepened, tied as it is to geographical immobility and a constant shrinking of resources nationally and state-wide? Can it then further be argued that while accepting the heterogeneity, historical correction lies in first forcing the hand of the Union to lift regional limitations and complete its Constitutional duty of homogenous (to be read here as equal) protections to the members of a class that stands first and foremost under ‘Presidential’ protection? Can it also be argued that the Court, by focusing on ‘heterogeneity’ alone, has consciously fed into a politics of scarcity, leaving it entirely to constituent States to figure out how to rationalize limited resources to members of a class that is homogeneously and nationally discriminated against? Does the Court consider it the right division between Union and States that the States expend equal resources in enumeration and submitting lists to the Union and the Union freeze access of rights within false regional boundaries?

At the head of the first part of the judgment DY Chandrachud writes thus: “The reference to this Constitution Bench raises significant questions relating to the right to equal opportunity guaranteed by the Constitution.” The counter question to the State remains, can equal opportunity to a homogeneously discriminated group of heterogeneous members be guaranteed by consistently limiting their national Constitutional rights to what is not much more than linguistically defined and regionally differentiated pool of resources?

It is important to note that these questions are particularly relevant for transgender persons’ rights. While refusing to provide horizontal reservations, the Centre has repeatedly said that SC/ST/OBC transgender persons can access their reservation rights under relevant communal reservations in their respective states. Even if only for argument’s sake this is accepted, the truth remains that being a community with high rates of forced migration out of home states, SC/ST/OBC transgender persons automatically forfeit their communal reservation rights upon embracing their transgender identity and being forced out of their homes and regions. And those who stay back in states where they may receive marginal state support must prepare to face the wrath and violence of those immediately above them in the hierarchy. However, if we accept that Constitutional right to equality and effective representation and the protections therefor cannot be tied to regions in the exercise of the Union’s national obligation, it becomes incumbent upon every state and UT – under the aegis of the Union government – to extend said protections without consideration to place of birth. This would require systemic shifts in the structure and resource allocations at national and state levels. While this judgment partially toys with the state level concerns, it leaves out the Union’s responsibility on a matter pertaining to a constitutional list completely under the power of the Union.

For what should have been a top-down interrogation, therefore, the Court has offered only a restatement of Indra Sawhney v Union of India’s majoritarian angst wrapped as ‘benevolent concern’ for the most downtrodden. In other words, it is not that judicial overreach has occurred but that judicial overreach has occurred in the absolutely wrong direction.

On account that the Indra Sawhney v Union of India was delivered by a larger nine-judge bench, this bench calls upon itself to be bound by that judgment. Even though Indra Sawhney v Union of India judgment repeatedly affirms that it is concerned only with OBCs and not SC/ST categories, by the use of language gymnastics this judgment proceeds in this fashion: first it finds that Indra Sawhney does not ‘expressly prevent’ sub-classification (as established above, neither does the original text in Article 341, because identification is by its nature classification, which carries in it both the possibility and necessity of sub-classification!), and from there it is just a free ride into transposing the creamy layer discussion from Indra Sawhney onto Davinder Singh (Davinder Singh & Ors v State of Punjab being the original petition in Punjab HC).

The judgment has itself agreed that the axis of discrimination (and therefore identification) for OBCs is fundamentally different from that for SCs. But by opening up the possibility of comparisons on processes and engagement with securing rights of two oppressed groups identified on separate axes it potentially opens up the possibility of the very thing that it was supposed to be guarding against – political tinkering with the Scheduled Caste list. After the Supreme Court judgment striking down the States power to independently identify OBCs and SEBCs, the 127th Constitutional Amendment 2021 allowed for States to go ahead with independent identification. Now, instead of limiting itself to the matter and specific category under consideration, if the Supreme Court holds that OBCs and SCs can be compared: a) in the matter of sub-classification and b) in the matter of creamy layer, what it is broadly implying is that even though the conditions of life, conditions of access, equality of opportunity and effective representation are significantly disparate for the two classes, the State may employ similar rules in identifying and classifying them. Two separate categories created differently for the purpose of legal and constitutional rights become comparable only if they are comparable on all counts – history, process and extent of effective representation. The judgment itself waxes eloquent on comparability, different places in races and what not. But if, according to the logic of the judgment, one of the reasons SCs can be sub-classified and also divided as ‘creamy layer’ and ‘most backward’ because (among other things) precedent has allowed the same for OBCs, will not faulty argumentation lead to a similar statement regarding states’ power to identify SCs and STs? If so, for what purpose will remain the Union? The reverse (that 127th amendment cannot stand insofar as it gives States more power with respect to only one category and not the other more oppressed, even though they are more underrepresented and subject to oppression by OBCs) would immediately appear as the preferred direction to proceed in order to prevent the political tinkering in all communal lists.

As a whole, these mish-mash of pronouncements call for a clear division of power and resources between Union and States regarding securing the right to reservation and completely suspending the regional limitations (or domicile considerations) in the access to reservation rights in order to conclusively enlarge the proverbial pie and secure effective representation. Even though the judgment defines effective representation in the broadest terms, it ultimately concludes that self-sacrifice by abused masses is the better solution for securing effective representation.

50% limit and ‘creamy layer’ solutions offered by BR Gavai, Pankaj Mittal and Anand Teltumbde

In BR Gavai’s portion of the judgment, he makes reference to Ambedkar’s Constituent Assembly speech where he argues that ‘backward’ communities may be identified by local government and also warned that if the local government makes reservation for 70% for certain categories because they comprise 70% of population, leaving only 30% for open competition the essence of equality of opportunity will be destroyed. Unfortunately, this argument gets turned around to tacitly promote the 50% overall limit on reservations and creamy layer.

It is important to underscore the weightage principle Ambedkar has proffered – he has said offering 70% reservation merely because they comprise 70% of the population is wrong. Once again, turning to States and Minorities, we see that Ambedkar offers in his explanatory notes an understanding of the principle of weightage. He has said, “The majority insists that the minority has no right to representation in excess of the ratio of its population to the total population. Why this rule is insisted upon by the majority it is difficult to understand…The defeat by one whole innings is a complete frustration which a defeat by a few runs is not. Such a frustration when it comes about in the political life of a minority depresses and demoralizes and crushes the spirit of the minority. This must be avoided at any price. Looked at from this point of view there is no doubt that the rule of population-ratio-representation insisted upon by the majority is wrong.”

In the recently concluded national elections, all transgender candidates faced complete losses such that they had to forfeit the financial deposits made at the time of nomination. We face similar depressing financial and moral losses in pursuing all essential aspects of public life – education, employment, family, housing and political representation. The fundamental disregard across all political inclinations for our rights rests precisely in the operation of this ‘population proportion’-based majoritarian view.

It would be wrong to conclude that Ambedkar has said that reservations should be capped, rather what he is highlighting is the weightage to be rationally applied in deciding quantum of reservations and that weightage is not proportion of population. If we combine the question of weightage and removal of regional/provincial bar, the question Ambedkar would ask of the 50% limit is this: if we calculate actual representation at the national level in education, employment and politics does the combined list of backward communities have equal opportunity to such 50% representation, and within that what is the actual division in favour of the ‘most backward’ communities?

To answer this question, apart from seeking caste census, we also require transparent nation-wide, state-wise data on number of seats in education, vacancies in employment, applied percentages of reservations and fulfilled percentages of reservations, with vertical and horizontal sub-categorized data. What rational policy or purpose is the social justice ministry serving if it does not have such information publicly available?

If we agree that the purpose of reservation is to change the national character of resource sharing and securing representation, then any attempt at instituting a Constitutional limit (whether 50% or 70%) must apply at the national level, i.e. by applying the percentage to the sum total of all available seats/opportunities/vacancies at the national level – where national is not to be interpreted as ‘flowing from or affiliated to the Centre’ but as the Constitutional meaning of ‘Union of States’. Until there is a sustained and sure representation up to this limit at thus defined national level (which will be possible by making all seats in the country available to all identified ‘backward’ communities, with special quotas for ‘most backward’, regardless of state boundaries), there exists no immediate concern as BR Gavai wrongly excerpts from Ambedkar of ‘destroying the essence of equality of opportunity’. But until such time, why wouldn’t differently populous States ‘breach’ the limit as they are required to meet all the needs and claims for uplift and representation within the forced walls of and politicking over the State’s resources (and consequently make poorly thought or undemocratically implemented executive decisions)? A quick review of the suggested percentages of reservations by many state-level committee reports referenced in Pankaj Mittal’s judgment will bear as preliminary evidence for the same.

Family solutions for ‘creamy layer’ and ‘suppressing reservation benefits’

Using family as the central unit BR Gavai, Pankaj Mittal (through the judgment) and Anand Teltumbde (in this article) offer their ‘creamy layer’ solution, which in the final analysis is merely meant to frustrate individual members of the reserved categories and render them spiritually ineffective by ridding them with ‘guilt or shame’ for having secured their rights (that is now being turned into privileges).

Apart from pushing for an ‘economic criteria’, both BR Gavai and Pankaj Mittal conclude in one way or another that reservation benefits must be capped to some form of ‘first generation’ members only, as over the generations ‘accruing reservation benefits in public office’ takes one out of systemic discrimination. This is a particularly interesting conclusion in the context of BR Gavai himself admitting that he was promoted to the Supreme Court due to his caste identity, else it would have taken at least another two years or so.

In a similar vein, Anand Teltumbde provides a scheme of points and complicated mathematical equations factoring all educational and other data of father, mother, siblings to “decrease the chances in accordance with reservation benefits already earned”.

At the centre of imagination for all these three options rests a deeply caste-patriarchal notion of a functional family as the basic unit of beneficiaries, operating in an unchanging socio-economic universe. This is extremely problematic, if not totally unacceptable. Apart from going through the bureaucratic mess of securing identity certificates and competing for a constantly decreasing share of seats/vacancies, individual members of the communities – it is being proposed – must declare their family situations and prove that they have ‘accrued’ or ‘utilised’ reservation ‘benefits’. Such schemes are entirely oblivious to the operation of power dynamics within family systems, multiple disabilities, gendered divisions of labour, and disownment and difficult negotiations faced by transgender and queer members of said communities.

According to such schemes, will a disowned transgender student of second generation learning from a family with reservation benefits be forced to question themselves as to the quantum of reservation benefits they can now access? Will a single woman of third generation learning who had to take care of her educated but unemployed family through natural calamities and deferred her higher education for the same, now be forced to question her right to reservation because she along with her family received the same at previous education levels? What points system applies for a disabled person of second generation learning where all family members have completed graduation or above in professional or non-professional education but remained under-employed for extended periods of time, while struggling to secure caregiving for said person? What of inter-caste children, whose parents were disowned by their families, who don’t have any separate legal recognition and are required to pick either parent’s caste in order to secure the protection of reservation? What of individuals who have received reservation ‘benefits’ but had to go through institutional and legal battles at their place of education and employment against direct and indirect discriminatory practices? How really will such points and schemes for “suppression” of benefits actually work except by shaming individual beneficiaries coming from diverse life situations and encouraging intra-community gatekeeping rather than fraternity and social communion?

The fundamental beneficiary of communal reservations is the individual, and there is no singular journey that can be seen as a definitive success or failure of that individual’s life. At the same time, the extent of ‘benefits’ accrued can only be judged by the extent of national and social mobility and institution building that has been possible for the community at large. It is difficult to imagine such mobility and institution building by now inciting each individual beneficiary to question their rights, reflect on their complex family histories (which may not even be fully available to all) and ultimately render the core of self-respect null and void by having to second-guess their decision to pursue and access these rights.

It is another matter if one is looking at the disbursal of direct financial transfers and scholarships, food and travel reimbursements, social security in education and employment, where a comprehensive weightage against family systems, generational benefits, gendered and other disabilities may be carefully discussed and considered. But we are facing a system-wide reduction / absence of communal scholarships, increase in contractual employments, rollback of healthcare security, complete breakdown of housing, food and mental health security, rising debt burden of even breathing in a bit of fresh air, and then discussing ‘creamy layer’ or ‘generational benefits’ as though it is a ‘natural extension’ of an essential step of sub-classification for multiply abused masses. The contradiction in pushing this sort of thinking is that it will first and foremost affect and demoralize members of those very sub-categories facing the most chronic under-representation that such judgments claim to ‘speak for’.

Fraternity over charity and unity

As I seek to conclude this write-up the news is flush with the protests against the plans for lateral entry in UPSC for upto 45 posts, without the application of any quotas. It wouldn’t be surprising if either under political pressure the plan is rolled back or if among the 45 posts that will be filled a few members will be selected from the categories, against some combination of ‘so many female candidates’ or ‘so many disabled persons’ that might serve to quell public ‘concerns’.

This review was essential because it is clear that the transgender position in the worst off with respect to any thought or action on affirmative action. Therefore, I don’t find any purpose in the ‘Charity’ or ‘Self-sacrifice’ view taken by BR Gavai or Annand Teltumbde or in the ‘Unity’ view taken by those opposing sub-classification. Because both these positions are fundamentally based on either a populist or a population-based approach. Neither of these views are actually concerned with effective representation and repatriation of rights. Take, for example, the two hunger strikes for reservation that took place in Maharashtra: one for Maratha reservation and another for transgender reservation, the former succeeded and the latter did not. In a burst of energy since 2014 many political parties such as VBA, NCP, DMK, VCK, Left parties, Congress have claimed interest in ‘protecting’ transgender rights. Even though DMK and Left parties in Kerala have supported transgender reservations, there is no data on actual fulfillment of the quota set aside for transgender persons in education and employment. None of the parties have ever been able to successfully field any transgender candidates. In 2019 many parties got transgender persons to associate with them and canvass for them on account of shared values; in 2024 they didn’t even bother with this. Last year, in the UP assembly, Akhilesh Yadav of the SP openly passed transphobic remarks and used derogatory terms to try to one-up Yogi Adityanath, and it was received with claps from all the members. Despite it being made public the community did not receive any apology nor did the allies of the party issue any statement against such open discrimination by elected members.

DY Chandrachud and BR Gavai hold that creamy layer is relevant in order to reach the most oppressed, and as such people who have moved up must ‘vacate’ their rights. Any logical-minded person will find that such a conclusion is quite useless. Rather, the most oppressed minorities will be concerned with how you are fulfilling the powers you now have access to and the long-term consequences of those actions. If indeed you are so concerned for the most oppressed, you can accept that among each oppressed caste the most marginalized are transgender persons. Yet, along with other members of the Executive Council — that would likely include members who may also have received reservation ‘benefits’ through their career — of the NLSIU, Bengaluru, you have concluded that transgender reservations will not be provided. All the while putting in place the State Domicile reservation that your own colleagues struck down as unconstitutional.

Indeed, not only are the affirmations on sub-classification a limited restatement of Constitutional guarantee but they also do nothing to secure intra-community substantive equality. Even though it has earlier taken cognizance of the gendered nature of intra-community hierarchy and violence, through the section on limits of sub-classification this judgment merely allows for each of the party States to apply whatever sub-classification they have already applied. The top court has regularly made public statements about their concerns for women and disabled persons. Even if we set aside transgender persons for a moment, inter- and intra- community hierarchies negatively affect the equality of opportunity of most oppressed women and disabled persons, and hence it would have actually been ‘revolutionary’ if the court’s direction had been to not only apply sub-classifications but review them for vertical and horizontal substance, i.e. considering the interplay of caste, gender and disability. Those political groups seeking vertical sub-classification must also consider if they will be open to such a step if they are serious about ‘protecting’ the rights of ‘their’ women and disabled. And herein also lies the partial answer to Teltumbde’s query about whether sub-classification can ensure proportional division. If we recognize that fundamental beneficiaries are individuals differentiated by gender and disabilities, proportional reach can be ensured through horizontal sub-classification.

So these emotional concerns across the board don’t really hold water. The unfulfilled promise of reservations across state boundaries will also raise oppositions from regional political formations because they gain from keeping communities stuck in place even though it is well-established that socio-spatial mobility is key to building sense of self, identity, self-respect, better life and ultimately fraternity among people across all false borders and hierarchies.

It is important, especially from the most under-served transgender perspective, to view affirmative action as consisting of at least three blocks. One block is reservation. The second is a collection of economic doles pertaining to scholarships, insurances, direct transfers, etc. And the third is free infrastructural facilities. The judgment makes intermittent reference to ‘other affirmative actions’ but doesn’t stop to consider them in full. If at all any economic or generational weightages or considerations of ‘so-called privileges’ must be made, it should be limited to the latter two blocks, namely economic doles and infrastructural facilities. This is a simple conclusion that follows from the logic of rational classification itself. Reservation pertains to representation — accepted by this judgment in full, the latter two pertain to economic and social security. The relationship between the three blocks is that the former (reservation) enlightens the other two, and the latter enhances better fulfilment of the former. Therefore, it would follow that any limitations in access would have to be designed according to the intended purpose, not the real and perceived internal heterogeneities. It is unfortunate that after writing a 565-page ‘historical’ judgment pertaining to classification and intelligible differentia, such a just logic did not occur to the judges. Or worse, it was wilfully ignored.      

Update (August 21, 2024): As predicted, the UPSC lateral entry notification was withdrawn. As organized opposition to the judgment comes to the fore, one hopes that everyone will look at this as an opportunity to conduct democratic consultations with all groups affected by the question of affirmative action to develop a robust reform of reservation policies, rather than use their population strength or proximity to power centres to initiate hasty acts or amendments at the Centre.