On August 1, a seven-judge Constitutional Bench of the Supreme Court with a majority of 6:1 held that sub-classification of Scheduled Castes for the purpose of reservation was constitutional. The bench comprising Chief Justice D.Y. Chadrachud, Justices B.R. Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma had heard arguments on the reference over three days in February 2024 and reserved the matter on February 8.
While there are many judgments on the issue of reservations for Scheduled Castes, it is the judgment in EV Chinniah v. State of Andhra Pradesh, which is important to understand the present case.
In 1996, the Andhra Pradesh government constituted a one-man Commission of Enquiry, headed by Justice P. Ramachandra Raju (Retd.) to ascertain who had accrued the benefits of reservations and what steps were needed to ensure equitable distribution of benefits. In its report released in May 1997, the committee noted that the ‘Mala’ and ‘Adi-Andhra’ communities were over-represented both in public employment and education at the cost of other SC communities.
Thus, it recommended the categorisation of castes into four groups and conferring varying percentages of reservation to them. The Government initially passed an Ordinance in 1999 implementing the recommendation and subsequently passed the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act 2000. The constitutional challenge of the law failed before the Andhra Pradesh High Court and appeals were filed in the Supreme Court, which was decided in 2005 in EV Chinniah v. State of Andhra Pradesh.
The five Judge bench in Chinniah (2005) stated that the Scheduled Caste by itself was a homogenous class and sub-classification of the same was unconstitutional. The Court held that the sub-classification within SCs amounted to tinkering with the Presidential list under Article 341, which was not permissible. The Supreme Court also held that the State did not have the legislative competence to apportion reservations among sub-classes. The judgment relied on the landmark Indra Sawhney (Mandal Commission case) to rule that sub-classification was permitted only with regards to Other Backward Classes and not for SCs; the latter, they held, was a violation of Article 14.
In 2006, the state of Punjab passed the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. Section 4(5) of the Act stated that a first preference shall be given to Balmikis and Mazhbi Sikhs, if available, for the posts reserved for Scheduled Castes. The Punjab and Haryana High Court in 2010, relying on Chinniah held the provision to unconstitutional as it amounted to sub-classification of SCs. The State filed an appeal against the High Court ruling which is State of Punjab and Ors. V. Davinder Singh and Ors.
While hearing the appeal in 2014, a three-judge bench of the Supreme Court noted that Chinniah needs to be revisited in light of Article 338 and the law laid in Indra Sawhney. The Bench also noted that the matter involved the “interpretation and interplay between Article 16(1), Article 16(4), Article 338 and Article 341” and referred the matter to a larger bench.
Meanwhile in 2018, while the reference in Davinder Singh was still pending, the Supreme Court in Jarnail Singh v. Lachhmi Gupta ruled that the exclusion of the “creamy layer” from the Scheduled Castes was permissible and did not amount to tinkering with the Presidential list under Article 341. The Supreme Court also noted that since Indra Sawhney, had held that the State was not required to prove backwardness of the SCs to apply the benefit under Articles 15 and 16 of the Constitution.
In 2020, a five-judge bench, while hearing the appeal in State of Punjab v. Davinder Singh and Ors, a Constitutional Bench of the Supreme Court, noted that the State was competent to give preferential treatment within the SCs and the same did not amount to tinkering the Presidential list. It also opined that Chinniah had incorrectly applied the decision of Indra Sawhney. However, since this was also a five-judge bench it referred the matter to a larger bench for reconsideration of the issue. Thus, the August 1 judgment.
The Supreme Court in a majority of 6:1 overruled the verdict in the E.V. Chinniah case. The Court noted that Scheduled Castes were not a homogenous group and merely because the President notifies them under Article 341, they do not become an integrated homogenous class. The State may sub-classify within the Scheduled Castes if it establishes that the inadequate representation of a certain caste is because of its backwardness. The State must prove this based on quantifiable data. Further, in order to benefit a sub-class, the State cannot completely exclude the larger class.
The majority held that Indra Sawhney noted that the sub-classification within the OBC was permissible to achieve substantial equality. The court noted that this would apply even for Scheduled Caste and by recognising sub-classification for OBCs, Indra Sawhney had not excluded the same for SC/STs.
Justice Gavai in his judgment observed that the State should exclude the creamy layer among the SC/ST category. However, noting the social stigma associated with Scheduled Castes, he acknowledges that the criteria for excluding the creamy layer from SC/STs could differ from those applied to OBCs.
Justice Mithal while agreeing with the majority has called for a “fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities.” He calls for a limited reservation policy subject to period reviews to exclude a class of persons who after taking advantage of reservation are equal to the general category.
Justice Bela M. Trivedi dissented and re-affirmed the law laid by Chinniah. She criticised the 2014 reference order of the three-judge bench in State of Punjab v. Davinder Singh for assigning any reasons for the reference. Citing the doctrine of precedents, she opined that the three-judge bench was bound to follow the Constitutional Bench Judgment in Chinniah and could not refer matters without giving cogent reasons.
She stated that the Presidential List under article 341 is final and once published all the members irrespective of their caste enter the homogenous class of Scheduled Caste and sub-classification amounts to tinkering the list. As per her, both Indra Sawhney and Jarnail Singh, were not asked to resolve the issue of subclassification of the SCs in reference to Article 341.
It is important to note that the Supreme Court has not directed the States to sub-classify SC/STs but merely held that the same is permissible as long as they are reasonable and have a rational nexus to the object sought to be achieved. Only time will tell the impact of the judgment.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.
