Is Subclassification Permissible Within SC/ST Reservation ? Supreme Court Reserves Judgment [Live Updates Day 3]

CJI : so even if we dont accept your wider submission there is undoubtly there is some substance in what you all people are pointing out to us and we will have to tailor it by laying down a criteria.

CJI : suppose in this case they have picked out only valmikis and left out mazhbi sikhs, could the mazbhi not have argued that we are as backward as the valmiki why have you left us, we are only taking the valmikis, or visa versa... which means therefore that those who are excluded can always challenges their classification on the ground that look we fulfill all the indicia of backwardness but state can also rebut it by saying that we can classify caste by looking at the extend of backwardness, as Justice Gavai said we want to confer benefits on the most backward, but by conferring benefits on the most backward, you cannot ensure that some who are most backward are only given while others are left out, otherwise this becomes a very dangerous trend in popular appeasement, some state govt. will pick up few castes others will pick the other caste, the idea is not to allow popular politics to play out in grant of reservation

Intervenor : it is not in the discretion of the state to allow some persons and disallow some, if a person is forming part of a list then they cannot discriminate my lord.

CJI: this is a very valid point...suppose a state says out of 86 (castes) I am identifying only 7, you leave out others who are similarly circumstanced. Can the state do that ?  

Sr Adv Gupta interjects to mention Justice Jeevan Reddy's observations on caste being a backward class. He reads from the judgment

Intervenor : we have to test it only on the basis of untouchability

CJI : it is not that every other SC suffered from untouchability in its pristine form. They may have been many SC who did not suffer from the kind of untouchability that we associate with the social spectrum but they nonetheless suffered discrimination, it is a form of untouchability.  

CJI (referring to para 82) : now if we apply this test to the valmikis and mazhbi sikhs, they clearly form a class, because whatever they are trying to say in this para is not a general assertion that look a caste can never be a class. they say before you come to a conclusion that a caste can be a class that class must satisfy the yardstick of backwardness whether social, educational backwardness etc. In this case it is no one's case that you cannot satisfy the indicia of backwardness . so the fact that we are dealing today, everybody who is before us satisfies the indicia of backwardness, it is battle between backward v. backward , not backward v. forward 

CJI : there is a little bit of confusion here, they are not saying that a caste can never be a class. What they are saying is that you cannot treat a caste as a class unless it satisfies the social and economic backwardness.

CJI: very well celebrated statement of BR Ambedkar, the object is to eliminate any kind of political factor that may play as a matter of disturbance in the schedule so published by the president. Thats why you say you cannot tinker. Once you notify Dr Ambedkar said you cannot take away the power of the parliament.

Intervenor takes the bench to Indra Sawhney Decision

Intervenor takes the bench to CADs

Mr Sagar concludes. Intervenor no. 2 makes his submissions

Intervenor 2 : 1. whether Chinnaiah is correctly decided on not; 2. whether SC are class or castes - well settled that it is a class as per Indira Sawhney , class cannot be bifurcated as it will be hit by article 14 ; 4. the state cannot tinker with the list notified by the President; 5. The connecting thread for the notified castes is untouchability which is abolished by article 17; 6. caste based reservation is not permissible