Notes Raw Data

Question(s):
(i) Whether the sub-classification of Scheduled Castes (“SCs”) for providing reservation is allowed under the Constitution of India. (ii) Whether the states have the power under Articles 15 and 16 of the Constitution to sub-classify SCs.

Factual Background:



Article 341(1) of the Constitution of India grants the President the power to notify the castes, races or tribes which shall be deemed to be SCs in a State or a Union Territory. Article 341(2) states that Parliament can include or exclude any caste, race, or tribe from the list of SCs in the President’s notification. Various laws and schemes provide reservations in public employment to individuals from SCs.


Section 4(5) of the Punjab Act provided that fifty percent of the vacancies of the SC reservation shall be offered on first preference to Balmikis and Mazhabi Sikhs amongst the SCs. On 29 March 2010, the High Court of Punjab declared Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 (“Punjab Act”) unconstitutional by relying on EV Chinnaiah v. State of Andhra Pradesh (2004 INSC 644) (“Chinnaiah”).


In Chinnaiah, a Constitution Bench of the Supreme Court (Five Judges) held that sub-classification amongst SCs by states is unconstitutional because: (i) SCs constitute a homogeneous class; (ii) sub-classifying them would amount to ‘tinkering’ with the Presidential list under Article 341 of the Constitution, which only Parliament can do; and (iii) the rationale of the Nine-Judge Bench in Indra Sawhney v. Union of India (1996 INSC 1273) (“Indra Sawhney”), which permitted sub-classification of the Other Backward Classes (“OBCs”), does not apply to SCs.


On 20 August 2014, a Three-Judge Bench of the Supreme Court adjudicating the validity of the Punjab Act referred the correctness of Chinnaiah for consideration by a larger Bench. On 27 August 2020, in the State of Punjab v. Davinder Singh (2020 INSC 512) a Constitution Bench (Five Judges) held that the judgment in Chinnaiah requires reconsideration by a larger Bench of Seven-Judges. Several appeals which challenged similar sub-classifications made in reservation policies of the States of Haryana and Tamil Nadu were also tagged with the challenge to the Punjab Act matter. A Seven-Judges Bench was constituted.



 

Decision of the Supreme Court:
The Seven-Judge Bench, by a 6:1 majority, held that it was permissible for states to sub-classify SCs when providing reservations. Chief Justice Chandrachud authored a plurality opinion for himself and Justice Misra. Justice Gavai, Justice Mittal, Justice Nath and Justice Sharma each authored separate concurring opinions. Justice Trivedi wrote a dissenting judgment which found sub-classification to be impermissible under the Constitution.

Reasons for the Decision:
Sub-classification permitted by the Indra Sawhney decision


The majority held that the judgment of the Nine-Judge Bench in Indra Sawhney did not create any bar on sub-classification of SCs because sub-classification of SCs was not an issue in that case (¶¶98-100 J. Chandrachud, ¶¶248-249 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Further, the majority ruled that Indra Sawhney in fact utilised the principle of sub-classification (in the context of OBCs) to ensure meaningful and substantive equality was achieved where the various constituents within a caste group were not comparable (¶102 J. Chandrachud, ¶¶253, 260 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


Justice Trivedi’s dissenting opinion found that the Court in Indra Sawhney specifically excluded SCs from the scope of its judgment, and thus the decision could not be interpreted as permitting sub-classification (¶¶70-71 J. Trivedi).


SCs under Article 341 do not constitute a homogeneous class


The majority traced the observations in Chinnaiah that SCs are a homogenous class to an earlier decision in State of Kerala v. N. M. Thomas (1975 INSC 224) (“N.M. Thomas”). The majority observed that N.M. Thomas merely observed that SCs once notified by the President cumulatively constituted a distinct “class” (vis-a-vis the general category individuals). However, N.M. Thomas did not say that SCs are a homogenous class which can not be further sub-classified (¶114 J. Chandrachud, ¶261 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


The majority observed that Article 341 states that once a caste is notified as an SC by the President, such a caste shall be “deemed” to be an SC. (¶110 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The inclusion of a caste within the SC category is only to demarcate them from other castes which are not included in the category (¶112 J. Chandrachud). This inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified (¶112 J. Chandrachud, ¶261 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Inclusion does not mean the existence or non-existence of internal differences among the SCs (¶¶110, 112 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). It only means that each of the groups that are included in the list will receive the benefits that the Constitution provides to the SCs as a class (¶112 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


State legislature has the power of sub-classification under Article 15 and 16


The majority observed that Article 341(2) grants Parliament the power to include or exclude groups from the President’s list. This is the power that has been reserved for Parliament and denied to the States. A State Legislature cannot add or remove groups from the President’s List of SCs. However, sub-classification within the SCs for reservation does not include or exclude any caste or group from the President’s List of SCs under Article 341 (¶123 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Sub-classification does not lead to exclusion of any caste which is already in the President’s List. Therefore, as long as a State that does not include communities not in the President’s list of SCs or exclude communities that the President has designated as SCs, the State does not violate Article 341(2) when sub-classifying (¶188 J. Chandrachud, ¶¶258-260 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


The majority held that historical evidence confirms that inequality exists within the SCs. Therefore, there is an intelligible way to differentiate between various castes within the SCs (¶142 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The majority held that if the SCs are not similarly situated then states can not be prevented under Articles 15, 16 and 341 from applying the principle of sub-classification amongst the SCs.


Justice Trivedi’s dissenting opinion ruled that although various castes had experienced differing levels of historical discrimination, once they were included in the Presidential List under Article 341, they became a homogeneous group (¶79(v) J. Trivedi). As a result, any form of sub-classification within this group was not permissible (¶79(vi) J. Trivedi). She also concluded that the states lacked the legislative authority to create such sub-classifications, as neither the State List nor the Concurrent List of the Seventh Schedule, which lays out the State’s lawmaking powers granted them the power to do so (¶79(vi) J. Trivedi).


Criteria for the sub classification


The majority found that the purpose of the reservation clause in the Article 16(4) of the Constitution is to remedy the inadequate representation in public services of certain “classes” which have been inadequately represented because of their backwardness. The question is not whether certain sections of society are a numerical minority in the state administration, but whether groups are inadequately represented because of their backwardness. Further, meaningful representation would not be fulfilled by SCs occupying numerous lower grade posts, but must be assessed across all posts, including senior posts (¶¶166-172 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


The majority held that the states can identify inter-se backwardness amongst SCs through empirical data based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness. The State must prove that the group/caste carved out from the larger group of SCs is more disadvantaged and inadequately represented (¶¶175-176 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The decision of the state for sub-classification would be subject to judicial review (¶190 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


The majority cautioned the states that they can not adopt a policy of reservation which would allocate seats separately for each caste. It reasoned that this is because the social backwardness suffered by each caste is not so distinct to give reserved seats to each caste separately. It ruled that two casts will have to be grouped together if their social backwardness is comparable (¶195 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).


Applicability of creamy layer principle to the SCs


A majority of the Court held that certain castes have been reaping benefits of reservation more than others. Therefore, states must evolve a policy to exclude the creamy layer of the SC/ST groups from the benefit of reservation. It also held that the creamy layer principle also applies to SCs. However, the criteria should be different from that which is used for the OBC reservation (¶¶294-295 J. Gavai, ¶83 J. Mithal, ¶2 J. Nath, ¶2 J. Sharma).


However, Justice Bela Trivedi in her dissenting opinion stated that the SC/ST groups are already categorized as a 'backward class of citizens’ by the President’s notification. Consequently, the concept of excluding the creamy layer cannot be applied to them (¶¶70-71 J. Trivedi).


Dissenting: Current Referral lacks sufficient reasoning


Justice Trivedi in her dissenting opinion ruled that the Three-Judge Bench’s decision to refer Chinnaiah to a larger Bench was inappropriate and not in consonance with the doctrines of precedent and judicial discipline (¶25 J. Trivedi). She further held that the referral lacked sufficient justification for doubting the reasoning in Chinnaiah (¶25 J. Trivedi).