New Delhi: The Supreme Court’s seven-judge Constitution Bench on February 8 (Thursday) concluded its three-day hearing on sub-classification of Scheduled Castes and Scheduled Tribes to give reservations for more backward classes.
In State of Punjab v Davinder Singh, the issue before the top court bench was whether the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which provided Balmikis and Mazhabi Sikhs with “first preference” reservation over 50% of the total seats reserved for the SC category, is valid.
Those who favoured sub-classification within the SCs and STs to ensure adequate representation in services of the really backward among them relied on a textualist interpretation of the constitution, while those arguing against it doubted whether the states had the power to do so.
The bench comprised Chief Justice of India (CJI) D.Y. Chandrachud, and Justices B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma.
The CJI had to constitute a seven-judge bench, in view of the fact that a five-judge bench in 2020 had doubted the correctness of the decision in E.V. Chinnaiah v State of Andhra Pradesh (2004), where another five-judge bench had set aside a similar law in Andhra Pradesh which created sub-classifications within the SC category.
After the Chinnaiah ruling, Andhra Pradesh did not enact a fresh law and instead adopted a ‘wait and watch’ policy, considering the Punjab government’s appeal in the Supreme Court against the Punjab and Haryana High Court’s decision to strike down its 2006 Act in light of Chinnaiah.
The Punjab government argued before the apex court, saying that Chinnaiah wrongly interpreted SCs as a homogenous class.
The Union government, through the Attorney General for India R. Venkataramani and Solicitor General Tushar Mehta, also supported the Punjab government’s stand, questioning the validity of the Chinnaiah judgment.
The respondents, however, had argued that sub-classification would be tantamount to tinkering within the SC/ST list, while the power to do so is, under Article 341, vested only with the President.
Senior counsel Kapil Sibal submitted that SCs are not homogenous, because there are varying levels of educational, economic and social development among the castes grouped under the SCs. Secondly, he argued that the 1950 presidential order, which lists state-wise SCs, is meant for identification, and not for extending reservation benefits. Therefore, he said that in Chinnaiah, the court wrongly concluded that sub-classification amounted to tinkering with the presidential list.
Sibal was representing Mazhabi Sikhs and Balmiki 12.5% Rakhvankaran Bachao Morcha.
Advocate Gopal Sankaranarayanan, representing Madiga Jana Seva Samithi, an intervening party, questioned the practice of extending reservation benefits to castes within the SCs that are already adequately represented, because the State is helpless in identifying the most backward among them deserving more reservation within the quota.
Sub-classification, he felt, eventually would pave the way for doing away with the reservation altogether, because those castes which are forward enough could be deprived of excessive reservation.
Senior counsel K.K. Venugopal, arguing for Madiga Reservation Porata Samiti, said, “When there is no sub-categorisation, the weakest of the weak will fall to the ground and the stronger ones therein will end up getting the lion’s share, thereby negating the entire reason why the reservation was there in the first place.”
He submitted that the State was bound to sub-classify in view of the constitutional mandate under Article 38(2), to eliminate inequalities in income and status amongst groups of people.
The Tamil Nadu Arunthathiyars Act, 2009, which allocated a certain number of seats in educational institutions and government services to the Arunthathiyar community within the SCs in the State, is also under challenge before the Supreme Court. Its counsel Shekhar Naphade submitted that if sub-classification is supported by empirical data, then it should be valid.
Arguments against sub-classification
The respondents, who submitted that Chinnaiah was correctly decided by the court, relied on the homogenous character of SCs, which shared the common stigma of ‘untouchability’.
Senior counsel Sanjay Hegde, for instance, argued that constitution-makers did not go into the question of the degree of suffering of ‘untouchability’ by these castes, to determine their inclusion in the SC category, and therefore, it is not permissible to bring in fresh criteria to differentiate among them to determine who among them deserve greater reservation benefits.
Hegde also argued against sub-classification of SCs on the apprehension that it could lead to balkanisation and pitting one SC against another after the violence witnessed in Manipur recently, which occurred after the high court’s directive to the state government to include the Meitei community in the ST list.
This pitted the Meiteis against the Kukis, who were already in the ST list, and who feared that Meiteis would be able to purchase land in the prohibited hilly areas, if included in the ST list. Inclusion and exclusion of castes from the SC and ST list should be done only by Parliament, and not by the state governments, he submitted.
Others among the respondents said that if sub-classification is permitted, it could lead to discrimination against certain castes within the SCs and STs, depriving their entitlement to the entire reservation quota meant for SCs and STs.
In response, the Punjab government submitted that both Articles 15(4) and 16(4) permitted greater discretion on behalf of the Union and state governments to identify backward classes among the SCs and STs.
The Punjab government submitted that the language of Article 15(4) suggests that the State can make any special provision for the “advancement” of any caste among the SCs and STs. However, CJI Chandrachud disagreed and told its Advocate General, Gurminder Singh, that the word “advancement of any ” used in this article pertained only to SEBCs [socially and educationally backward classes] and not for SCs and STs, as the latter has been conceived in a homogenous manner.
However, the CJI agreed with Singh regarding his interpretation of the language adopted in Article 16(4), which states that nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
As the SCs and STs are included within the “backward class of citizens” in this Article, Singh contended that it conferred maximum discretion on the governments to identify those castes within the SC/ST fold who are not adequately represented, and confer greater reservation on them.
