New Delhi: In a landmark verdict Thursday, the Supreme Court ruled that states have the power to sub-classify Scheduled Castes (SCs) and Scheduled Tribes (STs) for reservation in government jobs and state-run educational institutions.
The judgment was passed by a seven-judge Constitution bench headed by Chief Justice of India D.Y. Chandrachud, who authored an opinion on behalf of himself and Justice Manoj Misra. Justices B.R. Gavai, Vikram Nath, Satish Chandra Sharma and Pankaj Mithal wrote separate opinions supporting the majority verdict, while Justice Bela Trivedi dissented.
The judgment will allow state legislatures to bring in laws giving preference to some castes — which may be more socially backward when compared to other castes within the SC and ST lists — over a certain percentage of reserved seats in state-run educational institutions and government jobs in these specific states.
However, it asserted that states can do so only on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the state. This sub-classification can be based on empirical data of relative marginalisation.
“It (state legislature) cannot, in other words, merely act on its whims or as a matter of political expediency,” the CJI cautioned in his opinion.
The court has also clarified that any such action by the states would be subject to judicial review, and if the action is challenged in a court, the states will have to justify the basis of action on the basis of empirical data gathered.
In doing so, the Supreme Court overruled its 2004 judgment in the E.V. Chinnaiah v State of Andhra Pradesh case, which held such sub-classification to be unconstitutional.
Here, ThePrint explains what this sub-classification will look like on the ground, and what will be the yardstick for it.
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What can states do now
CJI Chandrachud’s opinion spoke about the model of reservation for the sub-classified classes.
He noted that the permissible mode of such sub-classification would be if preference is given to certain castes only over a certain percentage of the total reserved seats.
Another variation, which he said would be constitutional, is when a certain percentage of seats is exclusively allotted to the sub-classified castes. He explained: “For example, if 10 percent of seats reserved for the Scheduled Castes are reserved for the more backward among the Scheduled Castes, the other castes will have the chance to compete for the other 90 percent of the seats, thus, not excluding any of the castes.”
However, he clarified that any preference given to certain castes for all the seats would be unconstitutional, because there is a possibility that other groups within SCs are excluded.
He explained that if the state grants preference to three of the 30 castes classified as SCs over all the seats reserved for the SCs, it is possible that the three castes exercise their preference and fill up all the seats.
As for what such state laws can look like, take for instance the judgment in the Chinnaiah case. It had struck down an Andhra law which further divided the list of SCs into four categories — A, B, C and D. The 15 percent reservation for SCs in educational institutions and government jobs was then differently divided among these categories — 1 percent for Group A, 7 percent for Group B, 6 percent for Group C and 1 percent for Group D.
Another example is a Tamil Nadu law — Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions Including Private Educational Institutions and of Appointments or Posts in Services Under State Within the Reservation for the SCs) Act, 2009.
It states that 16 percent of seats reserved for SCs in educational institutions and government posts shall be offered to Arunthathiyars, if available, due to the social and educational backwardness of the community.
This law was also challenged before the Supreme Court, and its validity will now be considered on the basis of the principles laid down by the court in Thursday’s verdict.
Yardstick for sub-classification
Chief Justice Chandrachud’s opinion elaborated on the yardstick that can be employed for such sub-classification.
He explained that since the purpose of Articles 15(4) and 16(4) of the Constitution is to ensure equality of opportunity for the socially backward classes, the criterion for sub-classification within a class must be an indicator of inter-se social backwardness.
“A caste whose traditional occupation is that of scavenging and another caste whose traditional occupation is that of weaving may both face the stigma of untouchability. However, the caste whose traditional occupation is that of scavenging will be more socially backward when compared to the weaver caste because of the caste-occupation-poverty nexus,” he explained, by way of an example.
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 and educationally backward or are from the SCs or STs and in the opinion of the state are not adequately represented in services under the state.
He asserted that the state must prove that the group/caste carved out from the larger group of SCs was more disadvantaged and inadequately represented.
The CJI further noted that conventionally, the state has assessed if a class is adequately represented by comparing the representation of the class in the services to the total population of the state. However, he asserted that now adequacy of representation when determined purely from a numerical perspective without accounting for factors such as representation in specific posts would dilute the purpose of the provision.
He explained: “For example, certain Dalit castes are regarded as scavenger castes. Even with the provision of reservation, it is very difficult for the backward classes to shed the traditional occupation that is ascribed to them by society and optimise the opportunities even at the lowest levels.”
The endeavour, he asserted, is “to ensure true and effective representation of the socially backward classes across posts”.
His conclusion, therefore, was that the state must collect data on the inadequacy of representation in the “services of the state” because it is used as an indicator of backwardness.
How did issue reach SC
The genesis of this case lies in a Punjab law — the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. This law said that of the seats reserved for SCs, 50 percent would be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing them preference from among the SC candidates.
A two-judge bench of the Punjab and Haryana High Court struck down the provisions as unconstitutional on 29 March, 2010, relying on the Supreme Court judgment in the Chinnaiah case.
On the state’s appeal to the Supreme Court, a three-judge bench referred the appeal to a five-judge bench to determine if the Chinnaiah judgment needed reconsideration.
This five-judge bench, in 2020, disagreed with the ruling in the Chinnaiah case, and referred the issue of preferential treatment given to certain sub-castes within the SCs and 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”.
Why SC allowed sub-classification
CJI Chandrachud’s opinion said that historical and empirical evidence shows that SCs are a socially heterogeneous class, and so, the state, under Articles 15(4) and 16(4), can further classify the SCs.
The court also opined that sub-classification within the SCs does not violate Article 341(2) because the castes are not per se included in or excluded from the SC list.
Article 341 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 SCs in a state or 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 STs under Article 342 and for socially and educationally backward classes under Article 342A.
The court opined that sub-classification would violate the provision only when either preference or exclusive benefit is provided to certain castes or groups of SCs over all the seats reserved for the class.
Or, in other words, it would violate Article 341 only if 100 percent seats available for SCs are reserved in favour of a sub-class, excluding other castes within the SC or ST lists.
(Edited by Nida Fatima Siddiqui)
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