Supreme Court: In a batch of civil appeal and special leave petitions, the seven Judge Constitution Bench comprising of Dr. DY Chandrachud, CJI, B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma, JJ., by a majority of 6:1, held that sub-classification of Scheduled Castes among reserved categories is permissible for granting separate quotas for more backwards within the SC categories. Justice Bela M. Trivedi dissented holding that such sub-classification is not permissible.
CJI Dr. DY Chandrachud penned the judgment for himself and Justice Manoj Misra, to which B.R. Gavai, Vikram Nath, Pankaj Mithal, and Satish Chandra Sharma, JJ. agreed. However, Justice Gavai in his penned judgment held that ‘creamy layer’ principle is also applicable to SCs and STs and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.
Justice Gavai’s holding was agreed upon by Justices Vikram Nath, Pankaj Mithal and Satish Chandra Sharma.
The Majority agreeing with the CJI overruled the E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, wherein, it was held that SCs cannot be further classified for the purpose of reservation because they constitute an internally homogenous class by virtue of their inclusion in the Presidential list and thus, as a class, groups within the SCs cannot be treated differently and any further classification and consequent preferential treatment were held to violate Article 14, as it would amount to a constitutionally proscribed ‘micro-classification’.
For the question of reference to Larger Bench and background, refer to ‘Indra Sawhney did not limit sub-classification to OBCs; Sub-classification of SC/STs permissible’: A point wise breakdown of Majority Ruling in SC’s 6:1 Verdict
Analysis by Justice BR Gavai
Justice BR Gavai referred to Dr. BR Ambedkar’s speech on draft Article 300-A and draft Article 300-B (now Articles 341 and 342) and noted that backward community, in his view, is a community which is backward in the opinion of the Government. He also foresighted that if the local Government included in this category of reservations such a large number of seats, one could very well go to the Federal Court and the Supreme Court and contend that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed. It was also noted that it was stated that if any elimination was to be made from the list so notified or any addition was to be made then they must be made by Parliament and not by the President.
Justice Gavai noted that in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, it was observed that it is by virtue of the notification of the President that the SCs came into being. Though the members of the SCs are drawn from castes, races or tribes, they attain a new status by virtue of the Presidential Notification. It cannot be disputed that there is no caste by the name of “Scheduled Castes”, the term “Scheduled Castes” came on account of the 1936 Order and the 1950 Order. Once the castes, races, tribes or part of or groups of such castes, races or tribes are included in the Presidential Notification they shall be deemed to be Scheduled Castes for the purposes of the Constitution. Justice Gavai also noted that the majority in N.M. Thomas (supra) did not show that the SCs are homogeneous group, and sub-classification therein is not permissible. Further, he said that the 9-Judge Bench in Indra Sawhney v. Union of India (1992) Supp (3) SCC 217 has in unequivocal terms held that further classification of backward classes into more backward classes is permissible in law.
If SC/STs are a part of backward class of citizens under Article 16(4), why sub-classification which is permitted in case of OBCs cannot be permitted in case of SC and STs?
Justice Gavai noted that in N.M. Thomas (supra), the Bench took a view that Article 16(4) was not by way of exception to Article 16(1). It was held that the trinity of Articles 14 to 16 embodied the concept of equality. Equality does not mean equality to all. It was held that equality as enshrined under the Constitution did not mean formal equality but real equality. It was held that to bring real equality unequal treatment to unequals was what was contemplated under the Constitution. Referring to varied opinions of the Judges in several authorities of the Court, Justice Gavai said that it has been held that further classification of backward classes into backward and more backward classes is permissible under the Constitution. Further, in Indra Sawhney, it was noted that under Article 16(4) the Scheduled Castes are also included in the term ‘backward class of citizens’. Hence, Justice Gavai said that no justification was made out for holding in E.V. Chinnaiah (supra) that the State is not empowered to do the exercise of sub-classification among the Scheduled Castes. He pointed out that the basic error in E.V. Chinnaiah (supra) was that it proceeds on the understanding that Article 341 has to do with the reservation of the seats.
He added that Articles 341 and 342 are only regarding identification of the SCs and STs. Articles 341 and 342 read with clauses (24) and (25) of Article 366 of the Constitution provide that those castes included in the Presidential List shall be deemed to be SC and ST for the purposes of the Constitution. He reiterated that Articles 341 and 342 do not deal with reservation.
State’s power for making special provision for a caste, race within a caste or tribe
It was noted that in a catena of Judgments, it was held that State should take affirmative action by way of giving preference and reservation to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, to bring about real equality. Justice Gavai reiterated that it is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented. Regarding the question that if the State while discharging that duty finds that certain categories within SC/ STs re not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for SC/STs can the State be denied its right to give more preferential treatment for such categories, Justice Gavai answered the question in negative, since the same would not amount to tinkering with the Presidential List. However, he clarified that if the State provides 100% of the reservation for SCs to one or more categories enlisted in the Presidential List in that State to the exclusion of some categories, it may amount to tinkering with that list because, in effect, it will amount to denial of benefit of reservation to those SC categories which have been excluded, and would amount to deletion of the said categories from the Presidential List notified under Article 341 of the Constitution, which power is exclusively reserved with Parliament.
Therefore, he held that sub-classification amongst the SCs for giving more beneficial treatment is wholly permissible under the Constitution.
Applicability of creamy layer principle to the SCs and STs
Justice Gavai referred to Jeevan Reddy’s opinion in Indra Sawhney (supra), wherein he illustrated that if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises; he is no longer socially disadvantaged. His children would get full opportunity to realise their potential and in such a situation, his children are not to be given the benefit of reservation. By giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.
Justice Gavai observed that “the education facilities and the other facilities that would be available to a child of a parent of the first category would be much higher, maybe the facilities for additional coaching would also be available; the atmosphere in the house will be far superior and conducive for educational upliftment. Per contra, the child of parent of the second category would be having only the bare minimum education; the facilities of coaching, etc., would be totally unavailable to him. He will be living in the company of his parents who do not have education and have not even been in a position to guide such a child. Putting the children of the parents from the Scheduled Castes and Scheduled Tribes who on account of benefit of reservation have reached a high position and ceased to be socially, economically and educationally backward and the children of parents doing manual work in the villages in the same category would defeat the constitutional mandate.”
Justice Gavai said that Constitution itself recognizes the SCs and STs to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes. Hence, Justice Gavai said that the State must evolve a policy for identifying the creamy layer even from the SC/ STs so as exclude them from the benefit of affirmative action, viewing that only this and this alone can achieve the real equality as enshrined under the Constitution.
Conclusion
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E.V. Chinnaiah, holding that sub-classification amongst the SCs for the purpose of giving more beneficial treatment to a group in the larger group of the SCs is not permissible and does not lay down a good law.
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Sub-classification amongst the Scheduled Castes for giving more beneficial treatment is permissible in law and for doing so, the State will have to justify that the group for which more beneficial treatment is provided is inadequately represented as compared to the other castes in the said List. The State will have to justify the same on basis of empirical data that a sub-class in whose favour such more beneficial treatment is provided is not adequately represented.
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However, while providing for sub-classification, the State would not be entitled to reserve 100% seats available for SCs in favour of a sub-class to the exclusion of other castes in the List.
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Such a sub-classification would be permissible only if there is a reservation for a sub-class as well as the larger class.
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The findings in M. Nagaraj v. Union of India, (2006) 8 SCC 212, Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 and State of Punjab v. Davinder Singh, (2020) 8 SCC 1 to the effect that creamy layer principle is also applicable to SC/ STs lays down the correct position of law.
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The criteria for exclusion of the creamy layer from the SCs and STs for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.
[State of Punjab v. Davinder Singh, 2024 SCC OnLine SC 1860, Decided on: 01-08-2024]
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