New Delhi: Giving states the power to sub-classify Scheduled Castes (SCs) and Scheduled Tribes (STs) for reservation in jobs and education, the Supreme Court Thursday said the move would provide “substantive equality of opportunity for the backward classes”.
A seven-judge bench, in a 6:1 order, overruled a 2005 five-judge bench verdict in the E.V. Chinnaiah case that outlawed the Andhra Pradesh government’s notification to sub-categorise SC/STs in the state. While quashing the notification, the Supreme Court had in 2005 said it was contrary to Article 341 of the Constitution, which confers the right to prepare a list of SC/STs to the President. Sub-classification, petitioner Chinnaiah had argued, tinkered with the President’s power.
Chief Justice of India D.Y. Chandrachud authored the majority opinion on behalf of his colleagues — justices B.R. Gavai, Vikram Nath, Pankaj Mithal, Manoj Mishra and Satish Chandra Sharma. Justice Bela Trivedi wrote a dissenting verdict. Though Gavai and Mithal agreed with the CJI’s final conclusions, they wrote separate, but concurring opinions, voicing their own reasons for the decision. Nath and Sharma signed a two-page view in support of both CJI Chandrachud and Gavai’s versions.
The three majority opinions set aside the finding in the Chinnaiah judgment that SCs/STs form a homogeneous group. A list of SCs/STs at the central level as well as at the state level is notified by the President. By virtue of this notification, the court held, it cannot be said that SCs/STs attain a homogeneous status.
Declaring SCs/STs to be a heterogeneous group, the majority verdict said its sub-categorisation is a constitutional requirement to secure substantive equality, provided it does not lead to the exclusion of one of the categories in the class.
The bench disagreed with Chinnaiah’s reasoning that sub-division of SCs/STs violated the Constitution as it interfered with the President’s powers to notify the SC/ST list both at the central and state level.
Sub-classification for the purposes of affirmative action, including reservation, does not include or exclude any caste or group from the SC/ST list, the SC held. In doing so, the bench extended the principle of sub-categorisation that was evolved in 1991 by the top court in the Indra Sawhney or the Mandal case. That judgment had, however, limited the sub-division formula to Other Backward Classes (OBCs) while it upheld the government’s move to introduce quota for the OBCs in jobs.
The bench said that sub-classification must not lead to the exclusion of one of the categories, must be on a reasonable basis and will have to be backed by empirical data gathered by the state.
“In other words, while the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot, in other words, merely act on its whims or as a matter of political expediency,” the majority ruling said, adding that the state’s decision “is amenable to judicial review”.
The Chinnaiah judgment
In the Chinnaiah judgment, the Supreme Court had observed that SCs form a class by themselves and any further classification would violate the doctrine of reasonableness, amount to “discrimination in reverse”, and would run contrary to Article 14 (equality provision).
The judgment referenced a 1975 ruling of the top court in the N. M. Thomas case, which held that SCs cannot be further classified for the purpose of reservation because they constitute an internally homogeneous class by virtue of their inclusion in the presidential list and thus, as a class, groups within the SCs cannot be treated differently.
Chinnaiah further said that the principle of sub-classification of OBCs in the Indra Sawhney case will not apply to SCs because that judgment specifically observed that it is only ruling on the sub-classification of OBCs and the order did not extend to SCs and STs.
Since SC/STs are notified by the President, the top court had said that the objective of the notification was to afford special protection to SCs as a homogeneous group, which cannot be regrouped in the manner in which it was done by the Andhra Pradesh Act.
Origins of latest case
Thursday’s judgment was delivered on a reference made by a three-judge bench to a larger bench in 2020, saying it was not convinced by the Chinnaiah decision. This three-judge bench was hearing an appeal arising from the Punjab and Haryana High Court, which in March 2010 quashed a Punjab legislation — called the Punjab and Scheduled Castes Backward Classes (Reservation in Services) Act 2006 — that was meant to provide for reservation in services for the Scheduled Castes and Backward Classes.
The Act said 25 percent reservation shall be made for members of the Scheduled Castes and twelve percent for Backward Classes while filling up vacancies by direct recruitment in services. Of the seats, fifty percent would be offered to Valmikis and Mazhabi Sikhs, subject to their availability, by providing them preference from amongst the SC candidates. The Punjab and Haryana HC struck down this law based on the Chinnaiah case.
Similarly, Tamil Nadu had also made a law in 2009, which said that 16 percent of the seats reserved for SCs in educational institutions shall be offered to Arunthathiyars, if available, due to the social and educational backwardness of the community. This was also challenged before the top court, on grounds that it violates the 2004 Chinnaiah judgment.
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What the Constitution says
Article 341 of the Constitution empowers the President to notify the castes, races or tribes that will be considered as Scheduled Castes in a State or a Union territory. For states, the President is also required to consult with the governor before issuing the notification.
Clause 2 of Article 341 also says that the Parliament can make a law to include or exclude any caste or tribe from this list.
Similar provisions have been made for Scheduled Tribes under Article 342 and for socially and educationally backward classes under Article 342A.
The state legislatures can then, under Articles 15(4) and 16(4) provide for reservations for these notified SCs and STs. Articles 15(4) and 16(4) allow the state governments to make special provisions for reservation in admissions in higher academic places and appointments, for those communities which are socially, educationally backwards classes or are from Scheduled Castes or Scheduled Tribes, and in the opinion of the state, not adequately represented in the services under the state.
Reservations under Article 16(4) are not restricted to Scheduled Castes and Scheduled Tribes. The provision provides the State with the enabling power to provide reservations for the “backward classes” which are not adequately represented in the services of the State. The “backward classes” encompass more than SCs and STs.
The latest judgment
The seven-judge bench framed four legal questions for its consideration — whether sub-classification of a reserved category is permissible under Articles 14, 15 and 16 of the Constitution, whether the SCs constitute a homogeneous or a heterogeneous grouping, if Article 341 creates a homogeneous class through the operation of the deeming fiction, and if any limits can be imposed on the scope of sub-classification.
On analysing the contours of the equality guarantee and permissibility of sub-classification under Article 14, the bench declared that classification is constitutionally valid if two conditions are fulfilled. First, the court opined, there must be an intelligible differentia, which distinguishes persons grouped together from others left out of the group.
As for the second condition, the court added the differentia must have a rational relation to the object sought to be achieved by the law, that is, the basis of classification must have a nexus with the object of the classification.
Sub-classification is a facet of equality under Article 14 that “guarantees factual and not formal equality”, the court said. It allows classification of persons who are not similarly situated in reference to the purpose of law, the court said, as it applied the same logic to sub-classification.
But the court prescribed limits to sub-classification, which it cautioned, can denude equality instead of promoting it. According to the court, the two crucial components to determine sub-categorisation are the purpose and the rational basis for the differentiation.
On extending the principle laid down in the Indra Sawhney judgment, the bench said: “It is true that the social backwardness of the Other Backward Class is not comparable to that of the Scheduled Castes since they are more socially advanced than the Scheduled Castes.”
“It is also true that the castes included within the class of Other Backward Class do not suffer from a single form of social backwardness. The castes which are included within the Other Backward Class suffer from a certain degree of comparable backwardness but the form of social backwardness amongst them may vary. As opposed to this position, the Scheduled Castes suffer from a common form of social backwardness through untouchability,” said the court.
It disagreed with Chinnaiah that Indra Sawhney limited its views on sub-classification to the OBCs. “The principle of sub-classification was given judicial assent in Indra Sawhney (supra) to ensure that the principle of substantive equality is fulfilled. The principle of sub-classification will be applicable to the Scheduled Castes if the social positions of the constituents among the castes/groups is not comparable.”
Taking into account the historical, empirical evidence of inter se (between or among themselves) backwardness within the Scheduled Castes, the court concluded that there is “inequality even within the Scheduled Castes”.
Power of State to sub-classify & criteria for sub-classification
The bench examined the powers of the State under the Constitution and held that it can employ a range of means to secure substantive equality. This, it added, would include sub-classification within the Scheduled Castes.
“The State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified. If the Scheduled Castes are not similarly situated for the purposes of the law (or the specific harm identified), there is nothing in Articles 15, 16 and 341 which prevents the State from applying the principle of sub-classification to the class,” the court said.
The bench underscored that the State’s power to sub-classify is not prohibited under Article 341 and does not amount to including or excluding any caste or group from the list that is issued by the President to notify SCs/STs.
Discussing the rational principle that must be used for sub-categorisation of SCs/STs, the bench said inadequacy of representation in services of the State and requirement of “effective” representation must be the compelling factors for the sub-division. The criterion for sub-classification within a class must be an indicator of social backwardness, it said.
Moreover, the bench said, it is not necessary that the criteria for sub-classification and the criteria used to distinguish a class from other classes must be the same. “That is, if the criteria for recognising the Scheduled Castes as a backward class is untouchability, it is not necessary that the group can be sub-classified only if there is inter se backwardness due to the same identity (that is, untouchability),” the bench explained.
(Edited by Gitanjali Das)
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