Subclassification Necessary To Uplift Most Backward Among Scheduled Castes : State Of Punjab Tells Supreme Court [Day 1]

A 7-judge Constitution Bench of the Supreme Court on Tuesday (February 6) began hearing the referred matter on the permissibility of sub-classification among Scheduled Castes (SC)& Scheduled Tribes (ST).

The Bench led by Chief Justice of India DY Chandrachud also comprises Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma.

The matter was referred to a 7-judge bench by a 5-judge bench in 2020 in the case State of Punjab v. Davinder Singh. The 5-judge bench observed that the judgment of the coordinate bench in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that sub-classification was not permissible, was required to be reconsidered.

The arguments were opened by Gurminder Singh, the Advocate General of Punjab who engaged the bench in socio-legal nuances of the deeply rooted caste system in India. Highlighting the two perspectives on reservations, firstly of those who think they are entitled and secondly, those who are actually in need, Singh expressed that reservation cannot be seen as an act of benevolence.

“ Reservation is no benevolence, is not an act of benevolence by the entitled to the needy at all. If at all it is, it is the compensation for centuries of oppression of the needy…”

According to him, reservation was a tool in the hands of the state to achieve the ultimate goal of equality as enshrined under Article 14 of the Constitution.

Singh weaved the twin effect of reservations as a tool which not only ensures equal opportunities for the disadvantaged to enable equal status but also ensures a life of dignity.

Spotlighting the issue of 'Heredity of Caste', it was argued that caste-based occupations like that of cobblers, sweepers, blacksmiths etc have continued to be handed down to future generations of India. The evil, Singh expressed, lay in the rigid mindset of the society which has chained itself to the notion of caste-influenced fate.

Justice Gavai in a later part of the hearing also impressed upon the issue of carrying forward reservation advantages intergenerationally within the advanced sections among the Scheduled Castes. He opined :

“ Within a particular backward class, certain caste has reached that position and power, then they should move out but then that is only for the Parliament to decide...now what happens, a person from SC/ST gets into IAS / IPS etc, once your are into that, their children do not suffer the disadvantages that persons suffer from the other SC communities. But then, by virtue of reservation, they are also entitled to the second generation and again the third generation.”

Understanding Subclassification & State's Preferential Treatment

Referring to the main issue at hand, Singh submitted that Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 (Act of 2006) provides that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes.

He further explained that the reservation was done on a two-fold check and balance, 1. It was limited to 50% which in the development of law has become the lakshman rekha which were not advised to cross, 2. This was implemented on a preferential basis. He explained, “ This was not an act of exclusion, this was an act of inclusion of those who were the most backward of the backward to bring them up from where they stood.”

Picking from there, the CJI verbally observed the underlining nuance of equity wherein subclassification seeks to make an exclusion within the socially excluded, thus bringing into relevance the notion of relativeness backwardness within the backward sections of the society.

“We cannot gloss over the point of exclusion. The same exclusion that applies to reservation per se when courses are reserved for backward communities, there is necessarily an exclusion of the forward community in competing for those courses, yet our constitutional jurisprudence permits it. Why, because we treat equality as a substantive equality, not formal equality therefore.... the same applies for the reservation of the backward community... the block backwards v. forward would also apply within the backward community because what we are also doing here, by the measurement as brought in by Punjab legislature, was this that within the reservation of SCs, 15.5 % of the 50% is for Mazhbis and Valmikis so to that extent the reservation is exclusively carved out for them, the other backwards castes cannot compete for those seats .... the only question now is this - can that exclusion not be justified on the same yardstick which we have applied in the exclusion of the backward v. forward context.?”

EV Chinnaiah Misreads The Observations Indira Sawhney: Punjab Advocate General Illustrates

Tackling with the main issue in the decision of the Court in EV Chinnaiah v. State of Andhra Pradesh, Singh submitted that Chinnaiah wrongly reads the reasonings held in the landmark case of Indra Sahwney v. UOI .

Chinnaiah holds that sub-classification within the SCs cannot be done under the list created by the President as Scheduled Castes under Article 341 form one class of homogenous group. Since they are one complete class under the schedule, any further division of the said class would amount to tinkering with the Presidential List.

Singh highlighted that in Chinnaiah, the stand of the State of Andhra Pradesh in relying upon Indira Sawhney was rejected as the bench in Chinnaiah observed that Indra Sawhney permitted subclassification only to the extent of Other Backward Classes and not for SCs/STs.

The relevant portion of the reasoning goes as follows :

“On behalf of the respondents, it was pointed out that in Indra Sahani's case(supra), the court had permitted sub- classification of other backward communities, as backward and more backward based on their comparative under development, therefore, the similar classification amongst the class enumerated in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sahani's case for sub-classification of other backward classes can be applied as a precedent law for sub- classification or sub-grouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that sub-division of other backward classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason, i.e. Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.”

Fruit Chaat v Fruit Jam example
Singh, to buttress his argument against the presumption of homogeneity of SCs as a class, gave the example of how a fruit chaat differs from a jam. He said, “If the intention of the legislature was to make it into a jam once they come in a jar, then inclusion-exclusion becomes of no use. After the jam, you cannot take the apple out and leave the peach inside. But if the option is given to the parliament to remain one and take out the other, it is a fruit chaat and not a jam. But the court proceeded on the conclusion that once they come in one, birthmarks are lost which in my submission is an erroneous submission of 341”

To which the CJI remarked that “ Your contention is that parliament's power to designate is very different from the state's power to implement reservations under 16(4). ....Article 341 is all about the identification/ inclusion/exclusion of caste .”

Agreeing to the same, Singh took the bench to the discussion on the Creamy Layer that took place in the decision of Indra Sahwney, wherein the Court limited its analysis of creamy layer within OBCs.

Following are the relevant excerpts from the Judgment :

“…The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.

Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others…..

It is then argued for the Respondents that 'one swallow doesn't make the summer', and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that Clause (4) or Article 16 aims at group backwardness and not individual backwardness. While we agree that Clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of Clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes)."

The above discussion on the creamy layer pertained to whether it is the individual income or the income of the class as a whole that would define whether the cord between the class and the individual has snapped or not.  Singh stressed, “ These are the only two discussions where they exclude SCs otherwise Indira Sahwney, nowhere excludes the SCs for the purposes of subclassification”

Subclassification Would Ensure A Diverse And Efficient Governance - Highlights AAG Mr Shadan Farasat

Additional Advocate General, Shadan Farasat, highlighted the importance of having an efficient governance, and to get an efficient governance, it was quintessential that the government incorporates adequate representations through subclassifications as that would assure diversity to its fullest.

“ Efficiency in govt. administration will require a certain amount of diversity else there will be disastrous consequences….you are not the govt of A or B , you are the govt of everybody…efficiency in govt is not about efficiency in a group. when you are dealing with govt. efficiency means how the govt deals with all the people. We really do not know what real efficiency is because real equality has not arrived in our country.”

He argued that sub-classification is justified based on the very same logic of reservation. The principles applied in the context of reservation can be mirrored in the context of subclassification within the Scheduled Castes. Subclassification is not only constitutional but also desirable and necessary.

Farasat further referred to Gandhi's Talisman as cited in NCERT Textbooks to remind the Court that just like one should think of the plight of the weakest before taking a major step, the State is obligated to think of the weakest first.

The arguments will continue today.

Case Details: The State Of Punjab And Ors. v Davinder Singh And Ors. C.A. No. 2317/2011