The CJI raised a pertinent question:  “ 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?”

He stressed the need for cautious implementation of reservations based on subclassification, warning against political appeasement that could undermine the intended purpose of uplifting the weakest through such reservations.

The CJI expressed the necessity for the Court to establish criteria considering the arguments presented by both sides.

“ 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 backwards as the Valmiki why have you left us?Or vice versa... which means therefore that those who are excluded can always challenge their classification on the ground that, look we fulfil all the indicia of backwardness... but the State can also rebut it by saying that we can classify caste by looking at the extent 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 backwards are only given while others are left out, otherwise, this becomes a very dangerous trend in popular appeasement. Some state govt. will pick up a few castes others will pick the other caste, the idea is not to allow popular politics to play out in the grant of reservation.”

The CJI opined that it was essential for the Court to now lay down certain criteria taking into consideration the different moot points that have been argued by both sides so far.

“Undoubtedly there is some substance in what you all people are pointing out to us and we will have to tailor it by laying down criteria.”

The Bench led by Chief Justice of India DY Chandrachud also comprises Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma.

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.

Countering this, the CJI referred to para 82 of the decision in Indra Sawhney which states:

Indra Sawhney v. Union of India 1992 Supp (3) SCC 217

82. Collating the abovesaid views expressed by this Court in a catena of decisions as regards the relevance and significance of the caste criterion in the field of identification of 'socially and educationally backward classes' it may be stated that caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens. Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established accepted criteria to identify the 'backward class', a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of 'backward class of citizens' under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata — indicating the social backwardness.

Applying the above-laid principle to the present state of affairs of Valmikis and Mazhbi Sikhs, the CJI said that they do form a backward class even though they qualify as SCs. He explained that the issue was not whether other castes were more forward than Valmikis and Mazhbis, the issue was who amongst all these backward classes is the more backward.

“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, with everybody who is before us satisfies the indicia of backwardness, it is a battle between backward v. backward, not backwards v. forward”.

When it was pressed by the intervener that the sole test has to be of 'Untouchability', the CJI analysed that it was not necessary for every person within the SCs to experience untouchability in its “pristine form”. However, this would not negate the fact that such persons have continued to be discriminated against in different spheres.

“ 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.”

On the Diverse Shades of Scheduled Castes and Scheduled Tribes - Sr Advocate Manoj Swarup Explains

Presenting arguments from the side of the respondents, Sr Advocate Mr Manoj Swarup began by explaining that though heterogeneity does persist amongst the backward classes, Article 341 becomes the attachment point for all of them to be combined into one single category.

“ Birth of that category takes place in 341”

He further elaborated how SCs and STs could be seen as two different colour grades- red and green. However, recognizing the diversity within those categories, he said there existed a shade spectrum between the 'red' and the 'green'.

“ In 1950 two colours were being identified, the colour of SC and the colour of ST, there were shades of these colours... the colour of 341, the colour of 342. Now they are shades...therefore the occasion arose that the term tribe was mentioned in both ways ...when they were classifying they found that these tribes were more akin to caste, other more akin to tribe …”

To which the CJI observed, “ The distinction between green and red according to your simile is not black and white. They shade into each other, there are some tribes which resemble castes but there is no corresponding inclusion of castes into a tribe in 342. There are no castes which have been constitutionally treated as tribes”.

On being asked by the CJI, when homogeneity kicks in amongst the heterogenous backward classes, Mr Swarup answered the moment the Constitution recognizes the different groups as one common category, then that homogeneity prevails.

Constitutional Identification, The Purpose Of Presidential Order Under Article 341

The key purpose of the Presidential Order under Article 341 was 'identification', submitted Mr Swarup. The discussion on the same went as follows :

CJI: What is the purpose of the Presidential Order?

Swarup: Identification

CJI: You hit the nail on the head... the purpose of the presidential order is confined to identification and identification alone.

Swarup: And identification is complete in my respectful submission in 341, 342. There is no endeavour for anybody to enter the temple of 341, 342., except the parliament.”

The counsel further added that the two common things which require to be identified across the heterogeneity of class in discrimination and backwardness. Such a backwardness could be in any form, either social or educational etc.

Mr Swarup clarified that the exercise of identification should not be mistaken as of done unilaterally by the President. The deliberations to identify are far-reaching and even the say of the states is ensured.

“ The President of the country is consulting individual states and UTs, the Governors are being considered. They have the advantage of the local scenario ... it is an elaborate inquiry, and the state has a full say in it...they have a say, there are not mute spectators.”

Construction Of Article 341; States' Powers Differ Under Article 16 - A Rally of Contentions Between The Counsel and The Bench

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.

Mr Swarup underlined his contention on the strict prescription of non-variance by States in the notification list by relying upon para 165 of State of Kerala v. NM Thomas which reads :

165. ……The scheduled caste is not caste as mentioned in Article 16(2). I am inclined to agree with the argument advanced by the Advocate-General that the word 'caste' appearing after “scheduled” is really a misnomer and has been used only for the purpose of identifying this particular class of citizens which has a special history of several hundred years behind it. The scheduled castes and scheduled tribes have been a special class of citizens who have been so included and described that they have come to be identified as the most backward classes of citizens that we have in our country….”

Buttressing this argument on the above observation, Mr Swarup stressed that Article 341 (2) did not provide for any variance in the list and stuck to the expression 'include or exclude' because the list was born out of the Constitution alone. He further submitted that Scheduled Caste is to be recognised as a special class in itself.

The senior advocate then elaborated on how subclassification is only within the ambit of the Parliament and not the states. 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.

“ Very advisedly, that it is in Article 341(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. - please do not pierce that, either include or exclude and that fresh experience is not shut out. It is in 341(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 commission's report will then be put to Parliament/ State Legislature/President - the President will exercise under 341 and will include and exclude.”

This was then followed by a discussion on the role of states in promoting the cause of reservations under Article 16(4) and whether the above contentions had any bearing on the State's power to subclassify.

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

Swarup: They have a role but what role is important, because the 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, scavengers 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.”

On the aspect of the powers of the states to make reservations despite the observations in NM Thomas, Justice Gavai emphasized that a twin reading of Articles 14 and 16(1) would still enable the States to make reservations to advance social equality irrespective of the limitations under Article 16(4).

Justice Gavai further illustrated this by explaining :

“ 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 castes which have a sizable representation but they do not have even one or two per cent reservations, so would it not amount to perpetuating inequality amongst those classes identified under 341…”

CJI also weighed to remark that the expression used under Article 16(4) is 'Backward class'. “It doesn't use the socially and educationally backward classes”.

Justice Bela Trivedi further observed the emphasis on 'Class' under Article 16(4) and not caste or tribe, connoting the fact it would be a class as a whole. She explained,

“ It is the backward class which has to be adequately represented that has to be seen, not a particular caste.. the backward class will include ST/SC/SEBC so that will be class by itself it's not a caste.”

Subclassification Does Not Mean That The ' Less Weak' Be Devoid Of Reservations - The Bench Observes

One of the arguments made by Sr Advocate Mr Swarup was that the reservations created for Valmikis and Mazhbi Sikhs under S.4(5) of the 2006 Punjab Act were an “ exercise to puncture the SC List”, which is to be only created through Article 341.

Replying to which, Justice Nath expressed, “ Why are you resisting it? Subcategorisation will aid others within that caste also to come up.. otherwise, only the one of the segment will get the benefits.”

Justice Gavai supplemented by saying that it is not that the other classes under the SC category will not get any benefits, “ All under SCs will get benefits you see”.

Allowing Subclassification Would Mean A Reverse 'Pran-Pratishtha' - Sr. Advocate Sanjay Hegde Intervenes

Appearing for one of the interveners, Sr Advocate Mr Sanjay Hegde explained that the reason the sole designation of SCs was bestowed to the President under Article 341 was to ensure that the homogenous nature of the SC category remains intact and not be subjected to alterations either through state executive or judiciary.

“ Once there was a taint of untouchability, how untouchable were you? the constitution and the makers at that time decided not to go into that question. They form one homogenous class, and that homogenous class they said that you could possibly include or exclude through parliamentary enactment but in no manner, therefore a court could not add or subtract, neither executive nor state tinker in any manner..that is the basis of Chinnaiah”

He stressed that 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. As per him, this would mean a 'reverse Pran-Pratishtha'.

“If I continue to be an SC on the list in name only but no benefits are conferred on me while benefits are conferred on another SC in the same list, I am effectively rendered the stigma of an SC but no consequent benefits in the sense it is a reverse Pran-Pratishtha”

The hearing for day 3 also saw other interveners making submissions on similar lines to the contentions submitted by Mr Swarup.

In terms of the rejoinder arguments, Punjab Advocate General Mr Gurminder Singh mainly highlighted that it would be incorrect to consider that someone being born on the list will give them the character of being homogenous by default. He added how two 'fors' existed under Article 15(4) and 16(4) one for the advancement of SEBC/ SC/STs and the other for reservations, thus underpinning the power of states to make a special provision.

The hearings concluded after other short rejoinders were submitted by AAG Shadan Farasat, Sr Advocates Kapil Sibal and Nidhesh Gupta

The matter is now reserved for Judgement.

Subclassification Necessary To Uplift Most Backward Among Scheduled Castes : State Of Punjab Tells Supreme Court [Day 1]

Degree Of Backwardness Within Scheduled Castes May Vary, Says Supreme Court; Centre Supports Subclassification Within SCs/STs [Day 2]