The story so far: A seven-judge Bench of the Supreme Court has ruled that States have the power to sub-divide Scheduled Castes (SC) into groups so that it can give sub-quotas within the quota for Dalits. In the process, the Bench overruled a 2004 judgment by a five-member Constitution Bench that said such sub-classification was impermissible as Parliament alone was empowered to modify the list of SCs notified by the President under Article 341 of the Constitution.
What was the 2004 judgment?
The Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Ordinance, 1999, and the Act that replaced it created four groups — A, B, C and D — of Scheduled Castes and earmarked varying percentages of reservation for each group. The rationale was that there were differences in the level of advancement among communities under the SC list and that such sub-classification will ensure representation for the weaker castes. The Andhra Pradesh High Court rejected the challenge against the Act.
Related Stories
However, in the Supreme Court, a Constitution Bench of five judges held the sub-classification was unconstitutional. The November 2004 judgment in E.V. Chinnaiah vs State of Andhra Pradesh noted that under Article 341 of the Constitution, the President notifies the list of Scheduled Castes. Once the list is notified, it shall not be modified through another notification, and the only way to include or exclude a community in that list was by an act of Parliament. The Bench then ruled that once enumerated under Article 341, SCs constitute a single homogeneous class, and that State legislatures were not competent to tinker with the list by further classifying them into groups.
How did it come up before a larger Bench?
The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, provided for 25% reservation for SCs and 12% for backward classes in direct recruitment to services. Half the jobs under the SC quota, the law said, would be given as first preference to Balmikis and Mazhabi Sikhs, if candidates were available. When this was challenged, the Punjab and Haryana High Court cited the judgment in E.V. Chinnaiah to hold that the relevant section on preference to two communities among SCs was unconstitutional. Similarly, in 2006, the High Court also struck down the Haryana government’s notification dividing SC communities into two blocks and earmarking 50% of the SC quota to each block.
Editorial | Weakest first: On judiciary and sub-categorisation within a class
In 2009, the Tamil Nadu Assembly enacted a law to provide a sub-quota in services and educational institutions for Arunthathiyars, a group of sub-castes considered the weakest among the Scheduled Castes in the State. This was challenged directly in the Supreme Court. In 2020, a Constitution Bench doubted the correctness of the Chinnaiah judgment, noting that the nine-judge Bench in Indra Sawhney (1992) had permitted sub-classification of backward classes. However, in Chinnaiah, the Bench had declined to use that as a precedent for sub-division of SC communities as Indra Sawhney was only concerned with OBC reservation. Hence, a larger Bench was constituted to revisit the earlier verdict.
What is the reasoning behind it?
Six of the seven judges have now ruled that the 2004 judgment was wrong. In his judgment on behalf of himself and Justice Manoj Mishra, Chief Justice D.Y. Chandrachud has held that SC communities are not a homogeneous class as ruled in the earlier judgment. He disagreed with the view that the act of notifying a list of SCs creates a deemed fiction that all of them have a similar status. It is true that they get a common constitutional identity as Scheduled Castes based on their experience of untouchability and discrimination, but this does not mean that there is no heterogeneity among them.
He cited historical and empirical evidence to show that there were inter se differences among SC communities. There were even instances of some sections of SCs being discriminated against by other SC communities. Therefore, sub-classification was permissible, but it should be based on an “intelligible differentia” (a clear characteristic that will mark one group as different from another) and should have a rational nexus to the purpose of doing it. Further, such sub-classification is subject to judicial review, and the State should be able to justify it using empirical data.
The CJI also held that sub-classification will not in any way amount to tinkering with the Presidential list and that it will not violate Article 341, which confers the power to notify Scheduled Castes exclusively on the President. The function of Article 341 was to identify who came under the category of Scheduled Castes, but States are free to identify those with different degrees of backwardness and make special provisions or extend reservation benefits to them. The new ruling is expected to encourage States to earmark sub-quotas for the most marginalised sections of Dalits who have not enjoyed the fruits of reservation so far.
In her dissent, Justice Bela Trivedi stands by the Chinnaiah docrine that it is impermissible to sub-classify a homogeneous class and that it would amount to tinkering with the President’s list under Article 341.
What about creamy layer exclusion?
The creamy layer concept is now applicable only to OBCs and so far has not been extended to Dalit communities. Justice B. R. Gavai, in a separate opinion in which he concurs with the Chief Justice, has written in detail about the need for identifying the more advanced among the Scheduled Castes and excluding them from the benefits of affirmative action.
Related Stories
Supreme Court judges’ take on creamy layer among SCs causes uproar
Chirag Paswan says his party will seek a review of the Supreme Court’s verdict on Dalit sub-groups
Disregard comments of the SC judges about creamy layer, Thirumavalavan tells Centre
Righteousness ultimately prevails, says MRPS leader on SC categorisation
Noting that equality would mean that unequals cannot be treated as equals, Justice Gavai has wondered whether the children of IAS or IPS officers could be treated the same way as children in remote villages even though they may belong to the same community. Underscoring the differences in access and resources to those in urban and rural areas, and those attending elite institutions and those in schools with limited facilities, he has said putting them in the same bracket would obliviate the equality principle. However, he also notes that the parameters for excluding the creamy layer for the SCs cannot be the same as those used to identify the well-off among the OBCs. Three other judges have agreed with his view. However, the opinions do not constitute a direction to the government to implement the creamy layer concept, as the issue did not directly arise in this case.
