Supreme Court letting states subclassify SCs-STs. I call it ‘Constitution amendment by stealth’

Including a new criterion of economic well-being is an addendum to the previously defined criteria. These can be changed, but is the court competent to make such amendments?

File photo of the Supreme Court of India | Manisha Mondal | ThePrint

On 1 August, a seven-judge Constitution bench of the Supreme Court overturned a 2004 decision by a five-judge bench in Chinnaiah vs State of Andhra Pradesh, which had ruled that sub-classification of Scheduled Castes and Scheduled Tribes was not permissible. The top court ruled that states can sub-classify SCs and STs for separate quotas. Four of the seven judges also suggested extending the “creamy layer principle” to SCs and STs, similar to Other Backward Classes, to exclude affluent individuals and ensure reservation benefits the truly underprivileged.

I will not argue whether the classification is right or wrong or whether the creamy layer principle can be applied to SCs and STs. It’s not because I don’t have views on these matters but because I want to focus on something more important, which has larger ramifications for the Constitution, democracy, and nationhood. I argue that this is yet another attempt by the Supreme Court to rewrite the Constitution and assume the role of the constituent assembly and Parliament, which it is not.

The word of the Constitution

SCs and STs are well defined in the Constitution. There is a separate article (366) that provides definitions for these and other technical terms. According to Article 366(24), ‘Scheduled Castes’ means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. And (25) states that ‘Scheduled Tribes’ means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.

Now, Article 341 clearly states that the president, after consulting the governor, can specify SCs for any state or Union territory, and Parliament can amend this list, but such a notification by the president cannot be altered by any subsequent notification. Likewise, Article 342 empowers the president and Parliament in this regard.

The problem with the recent judgment is that it changes the definition of SCs and STs without any constitutional amendment. The definition itself is self-explanatory: SC and ST lists are to be notified only by the president and amended only by Parliament. If the power to amend the list is now being given to the states, this amounts to a change in the definition, but without changing a word in the Constitution.

Justice Bela Trivedi’s dissenting judgment highlights this issue, noting that the states do not have the authority to alter the presidential list of SCs and that sub-classification by states is contrary to Article 341 of the Constitution.

While it’s not that states cannot act on their own, they can only do so after an amendment to the Constitution, which hasn’t been done.

‘Constitution amendment by stealth’

So, the scenario is like this: According to the Constitution, even now, the states cannot tinker with the SC and ST lists, but the Supreme Court order allows the states to do so. This I call a “Constitution amendment by stealth!” It is unconstitutional, as Article 368 gives the power to amend the Constitution to Parliament, and in specific cases, they have to exercise this power with the state legislatures. The makers of the Constitution did not entrust the Supreme Court to amend the Constitution, as the legislature reflects the will of the people, which is supreme as far as lawmaking and constitutional amendments are concerned. The Supreme Court does not reflect the will of the people.

The introduction of the concept of the creamy layer in the context of SC and ST again violates the idea of the separation of powers as envisaged by the Constitution. The SC and ST lists have evolved through a historical process, and the criteria for identification are well documented. Including a new criterion of economic well-being or other factors is certainly an addendum to the previously defined criteria. These can be changed, but is the court competent to make such amendments? My contention is that it is not.

This problem has been aptly articulated by political scientist Arvind Kumar who wrote: “The framers of the Constitution granted the Supreme Court the power of judicial review, which allows it to determine the constitutionality of laws passed by Parliament. The Supreme Court has now transformed this power of judicial review into constitutional review. It is now overriding the provisions established by the Constituent Assembly.”

Two more instances

This brings us to another question: Is this the first instance when the Supreme Court has tried to act as the Constituent Assembly or take over the law-making role of Parliament? Instantly, I can recall two major instances when the court de facto amended the Constitution without any amendment passed by Parliament.

The first major instance was the introduction of the Basic Structure Doctrine in the Kesavananda Bharati case, which limited the power of the legislature to amend the Constitution. The framers of the Constitution had envisaged it as a living document, with all articles subject to amendment through the due process by the legislature. However, in Kesavananda Bharati, the Supreme Court changed this and limited the power of Parliament.

Another instance was the Second Judges Case, in which the Supreme Court usurped the power of the president in the appointment of judges through another invention now popularly known as the Collegium System. The procedure for appointing judges is well laid out in the Constitution, but the court decided to change the process by redefining the word “consultation”. This change should have been done through a constitutional amendment, but it came through judicial pronouncement instead.

Both these alterations to the Constitution have limited the power of Parliament and, thus, the will of the people. That is nothing but a judicial coup.

There are many such instances, and this poses a threat to the constitutional structure, which defines the roles of each branch of the state. My final argument is that as the process of deepening democracy gathers momentum, the traditional ruling class is losing its grip over the legislature and, to some extent, over the executive and bureaucracy. These institutions are becoming more democratic and diversified. However, they may be lacking in rational authority. Perhaps this gap is being filled or rather exploited by elites through the higher judiciary, an organ that has largely remained elite and undemocratic.

This might explain why we are seeing more and more cases of the judiciary venturing into the realms of the legislature and executive. The concept of judicial activism can also be explained in this context.

This hypothesis needs further inquiry.

Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. He tweets @Profdilipmandal. Views are personal.

(Edited by Humra Laeeq)