Sub-Classification Permissible Within Scheduled Castes To Give Separate Quotas For More Backwards : Supreme Court

A 7-judge bench of the Supreme Court(by 6-1) held that sub-classification of Scheduled Castes is permissible to grant separate quotas for more backwards within the SC categories.

The verdict means that States can identify more backwards among the SC categories and can sub-classify them for separate quota within the quota.

The Court clarified that while allowing sub-classification, the State cannot earmark 100% reservation for a sub-class. Also, the State has to justify the sub-classification on the basis of empirical data regarding the inadequacy of representation of the sub-class.

Chief Justice of India DY Chandrachud stated that there are 6 judgments, all concurring. The majority has overruled the EV Chinniah judgment of 2004 which held that sub-classification is not permissible. Justice Bela Trivedi dissented.

The 7-judge Constitution Bench was considering essentially two aspects: (1) whether sub-classification with the reserved castes be allowed,  and (2) the correctness of the decision in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that 'Scheduled Castes' (SCs) notified under Article 341 formed one homogenous group and could not be sub-categorized further. 

The Bench comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma reserved the judgment on February 8 this year after hearing the matter for three days. 

Sub-classification does not violate Articles 14, 341 : CJI's opinion

CJI DY Chandrachud, in the judgment written for himself and Justice Misra, referred to historical evidence which suggested that scheduled castes are not a homogeneous class. Sub-classification does not violate the principle of equality enshrined under Article 14 of the Constitution. Also, sub-classification does not violate Article 341(2) of the Constitution. There is nothing in Articles 15 and 16 which prevents the State from sub-classifying a Caste.

The basis of subclassification has to be justified by quantifiable and demonstrable data by States that they are not adequately represented. State cannot act on its whims or political expediency and its decision is amenable to judicial review.

State can give more preferential treatment to more backward classes

Justice BR Gavai, in his concurring judgment, stated that it is the duty of the state to give preferential treatment to the more backward communities. Only a few people within the category of SC/ST are enjoying the reservations. The ground realities cannot be denied and there are categories within the SC/STs which have faced more oppression for centuries.

The basic error in EV Chinnaiah judgment is that it proceeded on the understanding that Article 341 is the basis of reservation. Article 341 only deals with the identification of castes for the purpose of reservation.

The grounds for sub-classification is that a group from the larger group faces more discrimination. 

Creamy layer must be made applicable to SC/STs : Justice Gavai

Justice Gavai opined that the State must evolve a policy to identify creamy layers among the SC/ ST category and take them out of the fold of affirmative action. This is the only way to gain true equality, he said.

Justice Vikram Nath also concurred with this view that the creamy layer principle as applicable to OBCs also applies to SCs. Similar view was expressed by Justice Pankaj Mithal, who said that reservation should be limited to one generation. If the 1st generation reached a higher status through the reservation, the 2nd generation should not be entitled to it, Justice Mithal said.

Justice Satish Chandra Sharma also supported this view.

Justice Trivedi's dissent

In her dissent, Justice Trivedi stated that the Presidential list of Scheduled Castes notified under Article 341 cannot be altered by the States. Castes can be included or excluded from the Presidential list only by a law enacted by the Parliament. Sub-classification will amount to tinkering of the Presidential list. The object of Article 341 was to eliminate any political factors playing a role in the SC-ST list

Justice Trivedi stated that the rule of plain and literal interpretation has to be kept in mind. 

Any preferential treatment for a sub-class within the Presidential list will lead to deprivation of the benefits of the other classes within the same category.

In the absence of executive or legislative power, the States do not have any competence to sub-classify the castes and sub-classify the benefits which are reserved for all of the SCs. Allowing States to do so will amount to allowing a colourable exercise of power. 

What Led To The Reference Of The Issue? 

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 referring bench reason that 'EV Chinniah' did not correctly apply the decision of Indira Sawhney v. UOI 

The reference took place in a case concerning the validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The provision stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates. 

In 2010, a division bench of the Punjab and Haryana High Court struck down the provision, relying on EV Chinnaiah judgment. 

In EV Chinnaiah, the bench of Justices N.Santosh Hegde, S.N.Variava, B.P.Singh, H.K.Sema, S.B.Sinha held that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further subdivided. Under Article 341(1), the President of India can officially designate certain groups as Scheduled Castes in any State or Union territory. The said designation of SCs for states has to be done in consultation with the Governor and then be publicly notified. The designation can be done amongst the categories of castes, races, tribes, or their sub-groups. 

It was further held therein that any such legislation concerning Entry 41 of List II (State Public Services; State Public Service Commission) or Entry 25 of List III ( Education)  of the Seventh Schedule to the Constitution would be violative of Article 14 of the Constitution. 

Arguments Made By The Petitioners 

The key contentions of the petitioners can be summarised as follows :

(1) EV Chinnaiah wrongly interpreted the observations in Indra Sahwney - the petitioners highlighted that that in Chinnaiah, the stand of the State of Andhra Pradesh in relying upon Indira Sawhney was rejected as the bench in Chinnaiah observed that Indra Sawhney permitted subclassification only to the extent of Other Backward Classes and not for SCs/STs. 

The petitioners argued that this reasoning in EV Chinnaiah is flawed as Indra Sahwney does not make an express exclusion of SCs when discussing the issue of sub-classification. The Court in Indra Sawhney excluded SCs only when it limited it's analysis of the 'creamy layer' within OBCs.

(2) Subclassification Would Ensure A Diverse And Efficient Governance -  The petitioners stressed the importance of having an efficient governance, and to get an efficient governance, it was quintessential that the government incorporates adequate representations through subclassifications as that would assure diversity to its fullest.

(3) Heterogeneity Exists Within The Scheduled Castes-  the prevalence of diverse groups and their varied struggles and degrees of discrimination within the category of Scheduled Castes was emphasized. It was argued that occupational differences led to the creation of subclasses within the backward class.

(4) On Article 341 & Absence of Test of Reasonableness In Chinnaiah- It was 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) .

Supreme Court's ruling of Chinnaiah failed to apply the twin test of reasonable classification before concluding that an attempt to subclassify within SC/STs would be violative of Article 14. The Apex Court overlooked the existence of social data to back its conclusion. This was in contrast to the detailed empirical data on backward classes in the Investigative Report of Justice Ramchandra Raju which the High Court originally relied upon when EV Chinnaiah originally came before it for consideration.

The state of Punjab was represented by Advocate General Mr Gurminder Singh, along with Additional Advocate General Mr Shadan Farasat. Several senior advocates including Mr. Kapil Sibal, Mr Gopal Sanakaranarayanan, Mr Shekhar Naphade, Former Attorney General Mr Venugopal, Mr. Siddharth Luthra, Mr Salman Khurshid , Dr Murlidhar also made their submissions from the petitioners' side.

Attorney General for India Mr. R Venkataramani and Solicitor General Mr Tushar Mehta appeared on behalf of the Union, supporting the cause of subclassification in reservations.

Arguments Made By The Respondents 

The respondents on the other hand contended that the purpose of Article 341 was to identify the common thread across the diverse groups/ 'heterogeneity' within the SCs- that is the commonality of discrimination and backwardness which could be in any form either social, educational etc. 

As per the respondents, the correct reading of Article 341(1) means that 'homogeneity' is established the moment a set of diverse groups are put together under a common class/ 'Scheduled Class' altogether.  

It was further stressed that subclassification is only within the ambit of the Parliament and not the states as provided under Article 341(2). The discretion to include or exclude a particular backward class within the list of SCs lies constitutionally with the President. This, however, did not prevent the state governments from raising concerns on new identifications to the list, but rather through a different route. 

Article 341 (2) provides - Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

An additional argument made was how subclassification would end up making reservations a fruitless exercise for other subclasses within the SC category, as there would not be a unified implementation of benefits. This would mean a 'reverse Pran-Pratishtha'.

From the side of respondents, Senior Advocate Manoj Swarup made substantial submissions which were followed by other intervenors including Sr. Advocate Mr Sanjay Hegde amongst a few others.

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

Citation : 2024 LiveLaw (SC) 538

Click here to read the judgment 

Other reports about the judgment can be read here.

Reports of hearing :