The Supreme Court of India | Photo: Manisha Mondal | ThePrint
The Supreme Court of India | Manisha Mondal | ThePrint
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New Delhi: Disagreeing with its 2004 Constitution Bench verdict, the Supreme Court Thursday referred the issue of giving preferential treatment to certain sub-castes within the Scheduled Castes (SCs) and Scheduled Tribes (STs), to a larger bench.

In doing so, a bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose asserted that “there are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes”.

“In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread,” the bench observed.

“The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogeneous class,” it added.

The court said reservations can be made for the sub-castes within the SCs. This is the opposite of what another five-judge bench had held in EV Chinnaiah v State of Andhra Pradesh in 2004.

The court requested Chief Justice of India S.A. Bobde to place the matter before a bench comprising seven judges or more to decide the issue. This larger bench will look into several issues, including the state government’s powers to provide for such a sub-classification and the concept of creamy layer.


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Constitutional provisions involved

The larger bench will look at the interpretation of Articles 14 (equality before law), 15, 16, 338, 341, 342, and 342A 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” 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 says 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 socially and educationally backward classes under Article 342A.

Articles 15(4) and 16(4) allow the government 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 are not adequately represented in the services under the state.

Article 338 provides for the constitution of a National Commission for Scheduled Castes, which makes recommendations on the measures that should be taken by the Centre or the states for the SCs.

What did the 2004 verdict say

In EV Chinnaiah, a five-judge bench considered the validity of an Andhra law that further divided the list of Scheduled Castes into 4 categories — A, B, C and D. The 15 per cent reservation for Scheduled Castes in educational institutions and government jobs was then differently divided among these categories — 1 per cent for Group A, 7 per cent for Group B, 6 per cent for Group C and 1 per cent for Group D.

Declaring this law as unconstitutional in 2004, the Supreme Court held that any further classification within the Scheduled Castes list notified by the President under Article 341 would amount to tinkering with the notification.

The court had called the Presidential list “homogenous” and said only Parliament can exclude a caste or a part or group of castes from this list.

Sub-classification, it further said, would violate Article 14 of the Constitution as it would “tantamount to discrimination in reverse”.


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The Punjab law in question

In the latest judgment, the question before the Supreme Court was on the constitutional validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.

The provision said 50 per cent of the seats reserved for Scheduled Castes would be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing them preference from among the Scheduled Castes candidates.

A two-judge bench of the Punjab and Haryana High Court had struck down the provisions as unconstitutional on 29 March 2010, relying on the Supreme Court judgment in EV Chinnaiah case.

The creamy layer debate

The concept has its genesis in a 1992 Supreme Court judgment in Indira Sawhney v Union of India.

In the case, a nine-judge bench had upheld reservations for OBCs, but ruled that ‘creamy layer’ among backward class of citizens must be excluded “by fixation of proper income, property or status criteria” by the central government. It asserted that on these specifications, the people falling in the creamy layer would cease to be members of the backward class of citizens.

In the 2018 Jarnail Singh judgment, the Supreme Court had held that creamy layer exclusion applies to SCs and STs as well. This, the court had said, does not amount to tinkering with the Presidential Lists under Articles 341 and 342.

The central government has sought a review of the 2018 verdict and the case is currently pending.

Those arguing in favour of the Punjab law in the Supreme Court had now said the preference given to the “Balmikis and Mazhabi Sikhs, i.e., the most backward amongst the Scheduled Castes, is in substance an application of the principle of creamy layer”.

Taking note of this, the five-judge bench Thursday asked whether sub-classification would still amount to tinkering of the Presidential lists, in view of the Supreme Court judgments in Indra Sawhney and Jarnail Singh cases having approved of the creamy layer concept.


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Different opinions on SCs, STs and SEBCs?

In its latest judgment, the court has also noted that Articles 341, 342 and 342A are pari materia (on the same subject or matter).

The reservation for socially and educationally backward classes was the subject matter under consideration in the Indra Sawhney judgment, in which it was held that “there is no Constitutional bar to classify the backward classes of citizens into backward and more backward categories”.

In the latest judgment, the court observed, “Thus, the question arises how different opinions can be expressed with respect to Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes for the purposes of the classification.”

Is sub-classification equal to exclusion?

The court also raised the question of whether sub-classification or preferential treatment within SCs and STs amounts to excluding them from the Presidential lists.

The question was raised because Articles 341(2), 342(2) and 342A(2) allows only the Parliament to make a law for excluding or including any castes, tribes, races, tribal communities or groups from these Presidential lists.

The five-judge bench said the preferential treatment would not amount to excluding other classes.

“All the castes included in the list of Scheduled Caste are given the benefit of reservation as per representation in service, but only specific percentage fixed for preferential treatment to a caste/class which was not able to enjoy the benefit of reservation on account of their being more backward within the backward classes of Scheduled Castes,” it explained.

‘Destined to carry their backwardness till eternity?’

In its judgment, the court asserted that the benefit of reservation is “not percolating down to the neediest and poorest of the poor”.

“…various castes by and large remain where they were, and they remain unequals, are they destined to carry their backwardness till eternity?” the court asked.

It therefore said it would be open to state governments to “provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services”.

“In our opinion, it is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit,” the court added.


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