Degree Of Backwardness Within Scheduled Castes May Vary, Says Supreme Court; Centre Supports Subclassification Within SCs/STs [Day 2]

The Supreme Court Constitution Bench on Tuesday (February 7) while hearing on the validity of subclassifications within SC/STs deliberated upon the notion of homogeneity of class and what Article 341 of the Constitution meant in light of communities designated as a “Scheduled Caste”

Senior Advocate Kapil Sibal appearing from the petitioner's side, argued that there were two key mistakes in the decision of Chinnaiah v. State of Andhra Pradesh, which held that subclassification was not permissible within SC/ST categories.  Firstly,  it considered the SCs as a homogenous group without any factual data overlooking the inherent heterogeneity within the SCs; secondly, it correlated the Presidential Order with a limited purpose of providing reservation.

Taking note of the same, the CJI observed, “Actually, the homogenous nature of all the entries is for the purposes of designation. They are homogenous in the sense that each one of them is a scheduled caste but your argument is that there is no homogeneity either in terms of the sociological profile, economic development etc”

Justice Gavai also weighed in to observe that while all such communities were covered under the common umbrella of backwardness, there did exist a variance in the effect of backwardness within the classes. He said, “The common factor is social and economic backwardness but the degree may vary from one person to another”.

Adding on the aspect of the purpose of designating Scheduled Castes under Article 341, the CJI remarked, “ The designation is only for the purpose of the Constitution. It is not only for reservation nor is it co-terminus with reservation.”

Mr Sibal further mentioned how the purpose of Article 341 has nothing to do with reservation. It is Article 16(4) within which the preliminary powers of the Parliament are embedded.

In a later part of the discussion, the CJI analysed that while Article 341 is a precondition for reservations, that in itself is not sufficient for the implementation of reservations.

“It is a necessary but not a sufficient condition, designation under 341 is a necessary condition for reservation but it is not sufficient in itself. Because having been designated, there still exists an enabling power conferred upon the parliament or for that matter as my brother says the executive.”

Heterogeneity Exists Within The Scheduled Castes - Mr Sibal Demonstrates

Stressing the prevalence of diverse groups and their varied struggles and degrees of discrimination within the category of Scheduled Castes, Mr Sibal explained that occupational differences led to the creation of subclasses within the backward class.

Noting this, the CJI verbally observed that the said heterogeneity is perhaps a result of the variance of multiple factors including resources, opportunities or the lack thereof.

“ So there is heterogeneity in terms of the preexisting occupation, in terms of resources or lack of resources, in terms of all indicators in a backward class. The status of every caste may not be the same in the social hierarchy as well. Some may be a little more advanced, some a little less advanced, some may be particularly underprivileged in terms of infant mortality, maternal mortality etc”

Mr Sibal then drew the attention of the bench to the observations of Justice Krishna Iyer in State of Kerala v. NM Thomas, the relevant excerpts of which are :

“ We may clear the clog of Art. 16(2) as it stems from a confusion about caste in the terminology of Scheduled Castes and Scheduled Tribes. This latter expression has been defined in Arts. 341 and 342 A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President.

To confuse this backward-most social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Art. 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-Article. The discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion.”

The CJI analysed that, by using the term 'Mix Bag' , Justice Krishna Iyer underscored the concept of homogeneity.

Mr Sibal emphasized how the common thread amongst all such communities is social discrimination, but the degree of discrimination is different in different scenarios.

“It is level of discrimination that runs through the entire list but their vocations may be different, they're historical backgrounds, extent of discrimination may be different…”

Referring to the history of Mazhbi Sikhs, Mr Sibal explained how initially the community of 'Chamaars' was brought into the fold of Sikhism by Guru Govind Singh Ji, the tenth Guru of the Sikhs. He narrated, “ The Mazhbi Sikhs, their origin is from Guru Teghbahadur Ji, his body was mutilated and the person brought that body to Guru Govind Singh Ji and he was a Chamaar, the person who brought that body was a Chamaar, who Guru Govind Singh took him in his fold, and the Chamaars became a part of the Sikhism... that's the historical context. Mazhbi means faithful.”

The bench was further apprised that 32% of the population in Punjab is of Dalits, which is more than any other state in this country. The senior advocate also mentioned that the phrase 'deemed to be Scheduled Castes' meant that the designation of a community as an SC could not be changed until the Parliament decided to. “ It's deemed to be, nobody can change the word.”

Reservation From The Lens Of Historic Untouchability - Sr Advocate Gopal S. Explains

Focusing on the census reports of 1891 and 1931 of the colonial times, Sr Advocate Mr Gopal Sankaranarayanan submitted that the concept of SCs has roots in 'Historic Untouchability' and the assumption of social and economic backwardness only came to be added later through Parliamentary Amendments.

He highlighted that the Supreme Court in Marri Chandra Shekhar Rao v. Seth G.S. Medical College underlined the issue of historic untouchability as the core factor in determining backwardness. The relevant portion reads as :

9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole.

Relying upon the same, Mr Gopal S. explained, “ The parameter which is required to be applied to SC/STs with regards to 15 and 16 (Articles) is historic untouchability. Because there has been a general sense that social and educational backwardness is the determinant of SC/ST. that's not true, for being an SC/ST is about historical backwardness and its constitutional attornment for discrimination, so determining who an SC is, it says that it is the historic untouchability that is for the determination of SCs, social and educational backwardness defined in Article 366, came in by way of amendment after the Indra Sahwney judgement”

Addressing the earlier discussion on the Creamy layer by Justice Gavai, Mr Gopal S. also brought to the attention of the bench that as per his knowledge, there has been no Office Memorandum which has been issued for the removal of the creamy layer amongst the SC/STs. The only one so far dates back to 1992 which removed the creamy layer in OBCs.

On Article 341 & Absence of Test of Reasonableness In Chinnaiah - Sr Advocate Shekhar Naphade

During the hearing, a key discussion took place over the purpose of Article 341 and its limitations on designation regarding SCs. Sr. Advocate Shekhar Naphade argued that Article 341 only empowers the president to identify and notify the particular communities as SCs. The provision is only the starting process of granting reservations. After designation, the legislative competence of the state gets activated under Articles 246 read with Lists 2 and 3 of the 7th Schedule in light of the Fundamental Rights enshrined under Articles 15(4) and 16(4).

“ 341 is merely a fetter to identify a particular caste as SC and it stops there.”

In terms of the errors made in the decision of Chinnaiah, Mr Naphade contended that,

“Chinnaiah holds that subclassification is inconsistent with Article 341. Now the wording of Article 341 and the conclusion that the subclassification is inconsistent with article 341, there is no connecting link.”

He expanded this proposition by highlighting how the decision of the High Court in Chinnaiah was based upon detailed empirical data on backward classes in the Investigative Report of Justice Ramchandra Raju. This aspect was also detailed by former Attorney General and Sr. Advocate KK Venugopal who submitted that the said report became the basis for recognising subclassification by the High Court.

As per Naphade, the Supreme Court's ruling of Chinnaiah failed to apply the twin test of reasonable classification before coming to the conclusion that an attempt to subclassify within SC/STs would be violative of Article 14.

He contended, “Now it is settled law that SCs are also a class and 15(4) and 16(4) deal with also class. In the Chinnaiah case there was a report of Justice Raju who collected imperial data...on the basis of which the classification was made into A, B, C, and D. Now this classification of the SC must also pass the test of classification with lordships have laid down - intelligible differential, nexus to the object if these two tests are satisfied where is the question of going into subclassification and say it is violative of 14. .... the court has not taken to account empirical data, no factual foundation, the court has not applied the test of Article 14”

Mr Naphade stressed the fact that while the Court in Indra Sahwney tested classifications of OBC under Article 14's test why didn't the same be done in Chinnaiah?

Centre Supports Subclassification, Committed To Reservations - Solicitor General Tushar Mehta Clarifies 

Appearing on behalf of the Union of India, Solicitor General (SG) Tushar Mehta informed the Court about the stand of the government on the ongoing issue of the validity of subclassification within SC/STs. 

" We are committed to reservations. We are here only on subclassification and this was bothering this court". 

He further added how rationalisation is quintessential to achieving the objective behind reservations, he expressed, " The subclassification of the said benefits is a key measure which goes a long way to achieve the said objective. This ensures that there is a trickle-down effect of reservations". 

The Attorney General of India, Mr R Venkataramani also made brief submissions on the relevant judicial precedents underlying the issue of subclassification. 

The remainder of the hearings was covered by arguments of the intervenors who submitted on the same lines as most of the other main counsels. Sr Advocate Siddharth Luthra appearing for the State of Telangana also mentioned that in Telangana a similar issue of subclassification could be seen in Madigah Community which constitutes 70% of the population among backward classes but only gets 20% of seats.

Sr Advocate Dr. Murlidhar appearing for Andhra Pradesh mentioned that the state no longer continues with subclassification after the Chinnaiah decision as far as reservations are concerned and will abide by the judgement of this court which will be delivered.

Background

A 7-judge Constitution Bench of the Supreme Court on Tuesday (February 6) began hearing the referred matter on the permissibility of sub-classification among Scheduled Castes (SC)& Scheduled Tribes (ST). The Bench led by Chief Justice of India DY Chandrachud also comprises Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma. The matter was referred to a 7-judge bench by a 5-judge bench in 2020 in the case State of Punjab v. Davinder Singh.

The 5 judge bench observed that the judgment of the coordinate bench in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that sub-classification was not permissible, was required to be reconsidered.

The arguments will continue today. Report about the arguments on Day 1 can be read here.

Case Details: The State Of Punjab And Ors. v Davinder Singh And Ors. C.A. No. 2317/2011