‘Reverse discrimination’: Justice Bela Trivedi’s dissent in SC sub-classification case

Supreme Court ruled in favour of states' right to grant separate quotas to weakest among weaker castes. Trivedi was the only among 7 judges to dissent, saying it violates Article 14.

Justice Bela Trivedi | X/@@Are_Sambha

New Delhi: States do not have the power to bring a law giving preferential treatment to a particular caste within the Scheduled Castes notified by the President under the Constitution, Justice Bela Trivedi observed Thursday, dissenting from the other six judges on a seven-judge Constitution bench.

With a 6:1 majority, the bench Thursday ruled that states can grant separate quotas to subclassifications within the Scheduled Castes reserved categories to uplift the more underprivileged castes.

The only dissenting judge, Trivedi, however, said, “The states have no legislative competence to enact the law for providing reservation or giving preferential treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying or regrouping the castes, races or tribes enumerated as the ‘Scheduled Castes’ in the notification under Article 341.”

She held that under the guise of providing reservations to or the pretext of taking affirmative action for the weakest among the weaker sections of society, states can not introduce changes to the presidential list notifying Scheduled Castes under the Constitution.

She further said that any such sub-classification by the states would amount to “discrimination in reverse and violation of Article 14”.

“When all castes, races or tribes enumerated in the presidential list are deemed to be the ‘Scheduled Castes’ for the purposes of the Constitution, any preference given to or any quota reserved for a particular caste or race or tribe out of the quota reserved for the entire class of the Scheduled Castes for the government jobs by the state, would certainly deprive the other members of the ‘Scheduled Castes’ from having the benefit of reservation to the extent the quota is reserved for such particular caste or castes,” she said.

At the outset, Justice Trivedi said unanimity and consensus in the opinions expressed by the larger benches on Constitutional matters are desirable for the sake of certainty and emphasising the strength of the law laid down. However, she added that she believes that dissent “for well-chosen reasons would be equally important for an effective adjudication in a democratic functioning of judiciary, which would have a potential to develop the law in future.”

Earlier in 2020, a five-judge Supreme Court bench referred the issue of giving preferential treatment to certain sub-castes within the Scheduled Castes (SCs) to the larger seven-judge bench. While doing so, the five-judge bench, comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose, observed that “there are un-equals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes”.

At the time, the five-judge bench also said that reservations could be made for the sub-castes within the SCs. That observation, however, was the opposite of what another five-judge bench had held in the EV Chinnaiah v State of Andhra Pradesh case in 2004. Therefore, the issue was referred to the larger seven-judge bench in 2020.

The judgment in the EV Chinnaiah case came into question in the backdrop of a provision in Punjab, reserving 50 percent of the seats for the Scheduled Castes for Balmikis and Mazhabi Sikhs, subject to their availability, by giving them preference over the other Scheduled Castes candidates. A two-judge bench of the Punjab and Haryana High Court, however, on 29 March 2010, struck the provision down as unconstitutional, relying on the EV Chinnaiah case judgment. However, that verdict was challenged before the five-judge Supreme Court bench in 2020.

‘States cannot tinker’

Justice Trivedi raised and considered several questions.

Among other things, she considered whether states should be permitted to tinker with or vary the presidential list specifying the “Scheduled Castes” as notified under Article 341(1) of the Constitution.

Article 341 of the Constitution empowers the President to notify the “castes, races or tribes or parts of or groups within castes, races or tribes”, which will be considered Scheduled Castes in a state or a union territory. For states, the President consults with the Governor before issuing the notification. According to Clause 2 of Article 341, Parliament can make a law to include or exclude any caste or tribe from this list.

Similar provisions have been made for the Scheduled Tribes under Article 342 and for the socially and educationally backward classes under Article 342A.

Justice Trivedi asserted that the presidential list notified under Article 341 assumes finality on the publication of the notification and that it is only the Parliament that can, through a law, make inclusions or exclusions from the list of Scheduled Castes from the notification.

She then ruled that “the etymological and evolutionary history and the background of the nomenclature ‘Scheduled Castes’, coupled with the presidential orders published under Article 341 of the Constitution, make the ‘Scheduled Castes’, a homogenous class, which cannot be tinkered with by the states.”

‘A homogenous group’

On the other hand, Chief Justice of India D.Y. Chandrachud’s opinion said that historical and empirical evidence shows that Scheduled Castes are a socially heterogeneous class and so, the State, under Articles 15(4) and 16(4), can further classify the Scheduled Castes.

Articles 15(4) and 16(4) allow the government to make special provisions for reservation in admissions to higher academic places and appointments for those communities that are socially and educationally backward or are from Scheduled Castes or Scheduled Tribes and in the opinion of the state are not adequately represented in the services under the jurisdiction of the state.

However, Justice Trivedi said that Articles 15 and 16 are “merely enabling provisions, and could not be treated as the source of power to legislate the law for subdividing or reclassifying/sub-classifying or regrouping the castes, races or tribes enumerated as the ‘Scheduled Castes’, which have acquired special status by virtue of Article 341 of the Constitution.”

She added: “Article 341 brings out the quintessential concept that ‘Scheduled Castes’ is an amalgam of castes, races, groups, tribes, communities or parts thereof, and is a homogenous group, and that once notified by Presidential list, they acquire special status of ‘Scheduled Castes’ — which cannot be varied except by the Parliament by law.”

On the objective of Article 341, she said it was brought in to give new special status to the Scheduled Castes for purposes of the Constitution and to keep the political interference of the states outside the purview of the provision.

‘Cryptic and perfunctory order’

Another issue Justice Trivedi considered was whether the law laid down by the five-judge bench in the EV Chinnaiah case could have been doubted and referred to a larger five-judge bench by three Supreme Court judges in 2014, “without recording any cogent reasons for their disagreement” with the 2004 decision, which had been upheld for 15 years.

According to the sequence of events, the Punjab and Haryana High Court judgment striking down the special provision for Balmikis and Mazhabi Sikhs was initially challenged before the bench of those three judges, who then referred the matter of the correctness of the Chinnaiah verdict to the larger five-judge bench in 2014. The five-judge bench, on this reference, said in 2020 that the EV Chinnaiah verdict needs to be considered by the larger bench.

Justice Trivedi, however, said, “The law which was settled by the Constitution bench and was prevalent since 15 years was sought to be doubted and unsettled by a three-judge bench by passing a very cryptic and perfunctory order not supported by any reason.”

She said that when substantial judicial time and resources are spent on the references by the Constitution benches, it should not be further referred to a larger bench by a smaller bench in a casual or cavalier manner, without recording the reasons for disagreement. She said that such a disagreement has to be based on some justifiable reasons, for instance, if the earlier decision is found to be “manifestly wrong”.

She also opined that the reference by the three-judge bench was “not in consonance with the well-settled doctrines of precedents”, asserting that the law had been settled by a previous Constitution bench in the EV Chinnaiah case after considering all previous judgments and investing substantial judicial time and resources.

(Edited by Madhurita Goswami)