Sub-classification Of Castes Would Amount To States Tinkering With Presidential List : Justice Bela Trivedi's Dissent

Justice Bela dissented.

Justice Bela's dissent

Justice Bela formulated three issues:

E.V. Chinnaiah did not require a reference to a larger bench

As per Justice Bela, the three judge bench in The State of Punjab & Ors v. Davinder Singh & Ors (2020), which made a reference to a five judge bench for revisiting E.V. Chinnaiah v. The State of Andhra Pradesh & Ors (2004),did not provide cogent reason why it disagreed with E.V. Chinnaiah's reasoning.

In E.V. Chinnaiah, the bench of Justices N. Santosh Hedge, S.N. Variava, B.P. Singh, H.K. Sema, and S.B. Sinha held that a sub-classification of the Scheduled Caste category is not permissible. The court held the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 unconstitutional in this case.

The Andhra Pradesh legislation apportioned the benefit of reservation among Scheduled Castes into four groups based on the recommendation of the Ramachandran Raju Commission constituted by the government. The commission found inter-se backwardness amongst the Scheduled Castes in the State in reservation in education and appointments. It was also the issue in E.V. Chinnaiah if the reasoning of Indra Sawhney v. UOI & Ors (1992), wherein the court permitted subclassification of Other Backward Communities as backward and more backward based on their comparative underdeveloped, could be applied for the sub-classification under the Scheduled Caste.

The court held that Indra Sawhney's judgment does not apply to the subclassification of Scheduled Caste because the judgment itself specified that subdivision of Other Backward Classes does not apply to Scheduled Castes and Scheduled Tribes.

However, the bench comprising Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, and Aniruddha Bose in Davinder Singh disagreed with the E.V. Chinnaiah judgment. In Davinder Singh, the validity of Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 was in question. The provision provided for 50 percent reservation out of the 25 percent reserved for the Scheduled Caste to Balmikis and Mazhabi Sikhs as the first preference amongst the Scheduled Castes. This was held unconstitutional by the High Court of Punjab and Haryana, which relied on E.V. Chinniah's judgment. The high court's order was challenged before the three-judge bench of the Supreme Court which stated that E.V. Chinnaiah needs to be revisited and referred a matter to a larger bench of five judges.

The Supreme Court bench of five judges held that in Indra Sawhney, the court admitted the word 'backward classes' included within it Scheduled Castes and Scheduled Tribes and they stood on the same footing in terms of the application of Article 16(4) which provides for reservation in public employment to backward classes.

The court had said: “The Scheduled Castes and Scheduled Tribes admittedly are backward, and the same yardstick would apply to all. In Indra Sawhney, it was held that it is permissible to make sub­classification within socially and educationally backward classes. That discussion would be applicable for Scheduled Castes and Scheduled Tribes as they admittedly fall under Article 16(4).”

The court also held that subclassification does not tinker with Article 341(1) of the Indian Constitution which grants the President of India the power to notify castes, races, or tribes as Scheduled Caste in consultation with the Governor of the State. The court in E.V. Chinnaiah held that once the caste is put on the Presidential List under Article 341(1), it becomes a homogenous class and there cannot be any further division of the said caste.

In this regard, Justice Bela noted: “It is noteworthy that the three-judge bench had referred the matters to the larger bench without assigning any reason much less cogent reason as to why it could not agree with the decision in E.V. Chinnaiah delivered by the Constitution bench. The law which was settled by the Constitution bench and was prevalent since 15 years was sought to be doubted and unsettled by a three judge bench by passing a very cryptic and perfunctory order not supported by any reason.”

She concluded: “When a law was settled by the previous Constitution bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney, and after investing substantial judicial time and resources, and when the same had held the field for a substantially long period of fifteen years, in my opinion, the very reference by the three judge Bench to the larger bench for reconsideration of the decision in E.V. Chinnaiah, that too without assigning any reason was inappropriate and not in consonance with the well settled doctrines of Precedents and Stare decisis.”

Presidential list cannot be tinkered

Justice Bela has held that the Presidential list under Article 341 cannot be tinkered with by allowing the sub-classification of Scheduled Castes.

She held: “Though, the members of the Scheduled Castes are drawn from different castes, races or tribes, they attain a new Special Status by virtue of the Presidential notification. A bare reading of Article 341 brings out the quintessential concept that “Scheduled Castes” is an amalgam of castes, races, groups, tribes, communities or parts thereof, and is a homogenous group, and that once notified by Presidential List, they acquire Special Status of “Scheduled Castes” which cannot be varied except by the Parliament by law.”

Justice Bela referred to the Constituent Assembly debates on Article 341 (draft Article 300A). Article 300A was introduced by Dr A.B. Ambedkar in the Constituent Assembly on September 17, 1949. While introducing Article 300A, Dr Ambedkar said: “The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution.”

Dr Ambedkar added: “The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”

In this regard, Justice Bela noted that the Presidential List once notified by the President assumes finality. Only the Parliament can exercise its own to include or exclude any caste, race or tribe from the list under Article 341(2).

She further pointed out that the term 'Scheduled Caste' was given because of the social evil of untouchability practised by the Hindu community. The 'Scheduled Caste' was earlier termed as 'depressed classes' under the Government of India Act, 1935. Thereafter, the identification of different cases for inclusion as Scheduled Castes was based on an elaborate exercise conducted for each province under the 1935 Act. Subsequently, a gazette notification was published on June 6, 1936 promulgating the Government of India (Scheduled Castes) Order, 1936 notifying the list of castes that were to be considered as the “Scheduled Castes”.

After the Constitution was enforced, the Constitution (Scheduled Castes) Order 1950 was introduced in pursuant to Article 341.

Justice Bela noted: “The very language employed in Article 341 that “the castes, races or tribes or parts of or groups within castes, races or tribes, shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be”, mandates that each caste, each race, each tribe or each part of or group within the castes, races or tribes shall by the deeming fiction be the “Scheduled Castes” for the purposes of the Constitution, irrespective of the parameters by which such caste/ race or tribe is recognised as “Scheduled Caste” in relation to that State.”

She further noted State does not have any executive or legislative power under the Constitution to subclassify castes, races, or tribes from amongst the Scheduled Castes specified under Article 341. In respect to whether Articles and 16 gives power to States to sub-classify Scheduled Castes in order to benefit the weakest of the weak, Justice Bela said: “These provisions under Article 15 and 16 are merely enabling provisions, and could not be treated as the source of power to legislate the law for subdividing or reclassifying/ sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes”, which have acquired special status by virtue of Article 341 of the Constitution.”

Therefore, she stated that any preference given to or any quota reserved for a particular caste, race or tribe out of the Scheduled Castes list would deprive the other members of the Scheduled Castes from having the benefit of reservation.

Justice Bela stated: “Any such action on the part of the State would not only tantamount to discrimination in reverse and violation of Article 14 but would also tantamount to tinkering with Article 341 of the Constitution.”

Therefore, she concluded: “Under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List and tinker with Article 341. Such power if exercised by the State in absence of any executive or legislative power would be colourable exercise of powers.”

She added that doing otherwise would be an act of colourable legislation.

Indra Sawhney did not deal with Scheduled Castes

Justice Bela stated that E.V. Chinnaiah needs not to be revisited in the light of the court's judgment in Indra Sawhney because the latter did not deal with the issue of subclassification of Scheduled Caste.

She said: “I am of the opinion that though Indra Sawhney had sought to define “backward class” in terms of social backwardness, while considering the ambit of “backward class” for the purpose of Article 16(4), it did not deal with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the light of Article 341/342, rather it categorically kept the Scheduled Castes/ Scheduled Tribes outside the purview of consideration.”

Other reports on the judgment can be read here.

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

Citation : 2024 LiveLaw (SC) 538

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