Degree Of Backwardness Within Scheduled Castes May Vary, Says Supreme Court; Centre Supports Subclassification Within SCs/STs [Day 2]

The Supreme Court Constitution Bench on Tuesday (February 7) while hearing on the validity of subclassifications within SC/STs deliberated upon the notion of homogeneity of class and what Article 341 of the Constitution meant in light of communities designated as a “Scheduled Caste” Senior Advocate Kapil Sibal appearing from the petitioner's side, argued that there were two key mistakes in the decision of Chinnaiah v. State of Andhra Pradesh, which held that subclassification was not permissible within SC/ST categories. Firstly, it considered the SCs as a homogenous group without any factual data overlooking the inherent heterogeneity within the SCs; secondly, it correlated the Presidential Order with a limited purpose of providing reservation.Taking note of the same, the CJI observed, “Actually, the homogenous nature of all the entries is for the purposes of designation. They are homogenous in the sense that each one of them is a scheduled caste but your argument is that there is no homogeneity either in terms of the sociological profile, economic development etc” Justice Gavai also weighed in to observe that while all such communities were covered under the common umbrella of backwardness, there did exist a variance in the effect of backwardness within the classes. He said, “The common factor is social and economic backwardness but the degree may vary from one person to another”. Adding on the aspect of the purpose of designating Scheduled Castes under Article 341, the CJI remarked, “ The designation is only for the purpose of the Constitution. It is not only for reservation nor is it co-terminus with reservation.”Mr Sibal further mentioned how the purpose of Article 341 has nothing to do with reservation. It is Article 16(4) within which the preliminary powers of the Parliament are embedded. In a later part of the discussion, the CJI analysed that while Article 341 is a precondition for reservations, that in itself is not sufficient for the implementation of reservations. “It is a necessary but not a sufficient condition, designation under 341 is a necessary condition for reservation but it is not sufficient in itself. Because having been designated, there still exists an enabling power conferred upon the parliament or for that matter as my brother says the executive.” Heterogeneity Exists Within The Scheduled Castes - Mr Sibal Demonstrates Stressing the prevalence of diverse groups and their varied struggles and degrees of discrimination within the category of Scheduled Castes, Mr Sibal explained that occupational differences led to the creation of subclasses within the backward class. Noting this, the CJI verbally observed that the said heterogeneity is perhaps a result of the variance of multiple factors including resources, opportunities or the lack thereof. “ So there is heterogeneity in terms of the preexisting occupation, in terms of resources or lack of resources, in terms of all indicators in a backward class. The status of every caste may not be the same in the social hierarchy as well. Some may be a little more advanced, some a little less advanced, some may be particularly underprivileged in terms of infant mortality, maternal mortality etc” Mr Sibal then drew the attention of the bench to the observations of Justice Krishna Iyer in State of Kerala v. NM Thomas, the relevant excerpts of which are : “ We may clear the clog of Art. 16(2) as it stems from a confusion about caste in the terminology of Scheduled Castes and Scheduled Tribes. This latter expression has been defined in Arts. 341 and 342 A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backward-most social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Art. 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-Article. The discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion.” The CJI analysed that, by using the term 'Mix Bag' , Justice Krishna Iyer underscored the concept of homogeneity. Mr Sibal emphasized how the common thread amongst all such communities is social discrimination, but the degree of discrimination is different in different scenarios. “It is level of discrimination that runs through the entire list but their vocations may be different, they're historical backgrounds, extent of discrimination may...

Degree Of Backwardness Within Scheduled Castes May Vary, Says Supreme Court; Centre Supports Subclassification Within SCs/STs [Day 2]

Anmol Kaur Bawa

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