Is Sub-Classification Permissible Within SC/ST Categories? Live Updates From Supreme Court 7-Judge Bench Hearing [Day 1]

Punjab AG now takes the bench to the reference order of State of Punjab vs Davinder Singh and others and connected cases. 

Punjab AG cites the relevant portions of the decision to show case that differentiation on the basis of achieving the constitutional object is permissible , which I am citing for the present case that there are unequal within the unequal class

Punjab AG then takes the Bench to the Decision of KM Nagraj v. State of Karnataka

Punjab AG takes the bench to State Of Kerala & Anr vs N. M. Thomas & Ors

CJI : there will be data at two levels, one are the SCs as a group in Punjab adequately represented in the services of the state; two, within the group of SCs is there a fair representation to the valmikis and mazhibhi sikhs. they would have collected data.

bench is then informed that Mazhibhi sikhs constitute 39% amongst the SCs but their representation in services is very very minuscule , the posts they occupy are of scavengers 

CJI: unless they say they have raised other valid challenges which were not adjudication, for which we will have to restore the petition. So one thing is clear that the HC has gone only on that ... the other way is that we restore it to a two judge bench, two judge bench will decide all the other questions , but one person looses the right of appeal then

Gavai J : there is no challenge wrt quantifiable data and all ?

Punjab AG : no not to my knowledge

Sr. Advocate : there cannot be because in Punjab SC are only 38% and the reservations are only 25% 

CJI : HC has non suited you only on the basis of Chinnaiah, so if we come to the conclusion that Chinnaiah is wrongly decided we still have to HC for any other challenges right, any other challenges which are there to the statute. Otherwise we would be deciding adequate representations, what about other challenges there are.

AG : what I can suggest is that once your lordships sets aside the judgement on the basis that Chinnaiah itself is set aside and leave the question open, if somebody challenges it in litigation we will deal with it.

CJI: the original petitioners before the HC are represented here?

Counsels : yes yes

CJI: so we will see what was their challenge. Chinnaiah was the fundamental basis of their petition, then we can conclude it here and then if somebody wants to challenge it they file a petition there why do we ...

AG ; my lord may grant them liberty if any additional issues arise other than chinnaiah, Im sure there is no bar in challenging that would be a fresh challenge. 

"There is another way of looking at this issue. Article 16(4) recognises only one class viz., "backward class of citizens". It does speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression "backward class of citizens" and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, O.B.Cs. will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say - we may reiterate - that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law."  

"Question No. 5: Whether Backward Classes can be further divided into backward and more backward categories?

92. In Balaji it was held "that the sub-classification made by the order between Backward Classes and more backward classes does not appear to be justified under Article 15(4). Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of backward classes, what the impugned order, in substance, purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced compared to the more advanced classes in the State and that, in our opinion, is not the scope of Article 15(4).

The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of backward and more backward. The classification of the two categories, therefore, is not warranted by Article 15(4)." The correctness of this holding is questioned before us by the counsel for the respondents. It is submitted that in principle there is no justification for the said holding. It is submitted that even among backward classes there are some who are more backward than the others and that the backwardness is not and cannot be uniform throughout the country nor even within a State. In support of this contention, the Respondents rely upon the observations of Chinnappa Reddy, J. in Vasant Kumar, where the learned judge said:

We do not see why on principle there cannot be a classification into Backward Classes and More Backward Classes, if both classes are not merely a little behind, but far far behind the most advanced classes. In fact such a classification would be necessary to help the More Backward Classes; otherwise those of the Backward Classes who might be a little more advanced than the More Backward Classes might walk away with all the seats."

"It is then argued for the Respondents that 'one swallow doesn't make the summer', and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that Clause (4) or Article 16 aims at group backwardness and not individual backwardness. While we agree that Clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of Clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes)."

AG : so this discussion is on creamy layer, whether the individual income or the income of the class as whole and the parameters which would define whether the cord and the thread between the class and the individual has snapped or not. these are the only two discussions where they exclude SCs otherwise Indira Sahwney no where excludes the SCs for the purposes of subclassification  

"In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class - a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps.

They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.

Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others."

AG : they are going into a subjective satisfaction , at which stage the cord between the individual and backwardness breaks