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

CJI : 16(4) may include some backward classes which are not SC/STs and strictly speaking around socially and educationally backward classes, thus 16(4) is wider than 16(2) 

Swarup reads from written submissions

Nath J : Why are you resisting it? Subcategorisation will aid others within that caste also to come up.. otherwise only the one of segment will get the benefits

Gavai J : it is not like that they will not get any benefits....all under SCs will get benefits you see

Swarup: the moment they pick up mazhbhi and valmiki the classification is on the basis of caste , second exception this role they are assuming to themselves, which is for the parliament.

CJI: 16(4) says any backward class, so it can be a class in a class aswell. it cannot be an artificial class.

CJI : for political representation all SCs are bunch together - the SCs it say

Swarup takes the bench to 366 (24) - they are talking of them as a whole for the purpose of the constitution. 

Swarup takes the bench to NM Thomas on the contention of lumping and birthmark theories

Swarup: the birthmarks are live and there but they stand eclipsed by the constitutional mandate, constitutional scheme, when the scheme says that now for the purposes of the constitution this is my list...the birthmark of the race, caste etc stand eclisped. So it is heterogeneous and homogeneous at the same time

Swarup : this the precise scheme of constitution, that we will identify ...this submission is questioning the scheme itself

Gavai J : no they do not question the scheme, their submission is that identification is not correct. they say that amongst that identification, there are certain classifications which are more deserving and therefore allow us to bring equality in the real sense.

Swarup: what is put to me is that there is 39 in Punjab , what is put to me is why cannot the state find that the valmikis and mazhbis deserve extra preference amongst the 50% in view of 16(4)? why is it not an quality doctrine? .....

Nath J : can the state not recognise another class which is not in 341, 342 and 342A?

Swarup: it is been said in Indira Sawhney - 1694) pls do not read it as limiting power

CJI: significantly 16(4) uses the expression backward class it doesn't use the socially and educationally backward classes.

Trivedi : at the same time it has used the word class, not caste or tribe , it would be a class as a whole... backward class which has to be adequately represented that has to be seen not particular caste.. the backward class will include ST/SC/SEBC so that will be class by itself it's not a caste 

CJI: while 341 left the designation with the parliament , 16 by itself recognised that the states will be implementing these spl measures or making any provision as 16(4) says ... so the role of the states is directly the recognised by 16(4)

Swarup : they have a role but what role is important, because that 341 picture is incomplete w/o 16(4) and 16(4) cannot be done w/o 341, so they re interrelated...can the state take up the identification process? no they have no role in it

Gavai J : no there is no question of identification, 16(4) is also an enabling provision. suppose the state decided to not provide the reservation that's the end of the matter. therefore can you deny the ground realities that in the list blacksmiths are there, scavengers they will face the same degree of discrimination when they are brought into the race, whether they are untouchables amongst untouchables , so therefore recognising the state decides to provide preferential treatment, would 341 come into that ?

Swarup : it would be barred by 341

Gavai J ; then it would perpetuate inequality amongst those classes.

Swarup : yes I am aware. ... my lord this submission from the other side is really questioning the 341 exercise.

Gavai J : not at all, After NM Thomas it was held that even if 16(4) was not there , still taking queue from article 14 and 16(1) it could have made reservations, the purpose is to remove inequalities and bring equality. so taking for example a particular caste in Maharashtra. For the last 75 yrs if they are taking reservations of 75-80% of the 13 % available reservation and there are some caste which have a sizable representation but they do not have even one or two percent reservation so would it not amount to perpetuating inequality amongst those classes identified under 341... 

Swarup : very advisedly, that it is in 2, that include or exclude, there can be no other shade of variation, the state has still no role, it will be done by the parliament. And parliament by law will only include or exclude, why ? because this is all homogenous now and deemed to be homogenous. - pls do not pierce that, either include or exclude and that fresh experience is not shut out , it is in 2, the fresh experience will be translated in this fashion.. the state govt will have a fresh experience , they will send it to a commission now, there was always a commission (338 Article), the commission is a constitutional body, a route created, the commissions report will then be put to parliament/ state legislature / president - president will exercise under 341 and will include and exclude. 

Swarup refers to para 165 of NM Thomas - why the word vary was not included in 341(2)? only include or exclude...why because this is a list born out of the constitution. never before it could have been caste mylords because it would have been a foul on 16(2). 16(2) specifically says pls do not discriminate on the basis of caste. Tribe incidentally not there in 16(2) but caste is there, therefore Thomas says very specifically, this is a class. This is a spl class - I am using the exact phraseology 

Swarup: they have a say, there are not mute spectators.. but what say, as I said before the scheme of the constitution.

Swarup then glosses over different provisions of the constitution including 342A (as amended in 2018)