Article 341 Intends To Only Give 'Constitutional Identity' To Scheduled Castes; Not To Hold Them As 'Homogenous Class' : Supreme Court

The Supreme Court in its recent decision allowing sub-classification of Scheduled Castes(SCs), observed that Article 341 does not create a 'deeming fiction' and only bestows a 'constitutional identity' upon those backward communities which are listed as Scheduled Castes. 

The 7-judge Constitution Bench, by 6:1 majority, held that the purpose of Article 341 was to only give a legal recognition to the communities under the Presidential notification identified as Scheduled Castes and did not intend to hold them as a 'homogenous' class. 

The judgment was delivered by a bench comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma. Six judges upheld sub-classification, with Justice Trivedi dissenting.

The Judgement authored by CJI DY Chandrachud for himself and Justice Misra categorically observed that Article 341 only creates a class of backward communities eligible for the benefit of affirmative action when seen in constrast with the rest of the population. This does not imply that variance of backwardness within the Scheduled Castes or 'heterogeniety' could be overlooked. 

The Court answered three prelimiary questions - (1) whether Article 341 creates a 'deeming fiction'; (2) In the event that a deeming fiction is created, does the 'legal fiction' under Article 341 create a homogenous class which cannot be further classified; and (3)the scope of Prohibition under Article 341(2) in light of the effect such a legal fiction that Article 341(1) creates. 

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.

(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or group within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

Article 341(2) specifies that the Parliament may by way of a legal enactment 'include' or 'exclude' any caste, race, or tribe or part of such groups from the list of Schedule Catses as notified by the President under sub-clause 1 above. It also provides that such a Presidential notification 'shall not be varied by any subsequent notification'. 

A key point in the Court's decision was the interpretation of the phrase "deemed to be" in Article 341. The Court explained that this phrase does not always create a legal fiction. Sometimes it simply means "regarded as being." A legal fiction is when the law treats something as true even though it might not be in reality.

"The use of the phrase “deemed to be” is not conclusive of a legal fiction.The word deemed is used for many purposes, such as for the artificial construction of a word and to clarify uncertain constructions, or plainly just to mean “regarded as being”. A legal fiction is essentially a presumption that certain facts which do not exist in fact, will be treated as real and existing for the purpose of law." 

There are two core principles laid down by the Court on operation of legal fictions: (1) a legal fiction should only be used for the specific purpose it was created for and its application will be strictly confine the field it was created for. Court relied on the decision of Bengal Immunity Company Ltd v. State of Bihar which held that legal fictions must confine to only their 'legitimate field'. 

"The first principle is that a legal fiction must be confined to its 'legitimate field', for the specific purpose for which it was created."

(2) The second principle address the scope of a legal fiction.It states that the effects of a legal fiction must be extended to include the logical consequences that flow from its creation. Bench here placed relaince on the opinion of Lord Asquith in the case of East End Dwelling Co. Ltd. v. Finsbury Borough Council.

According to Lord Asquith's observation, the impact of a legal fiction should not be restricted to simply treating non-existent facts as real. Instead, it must be expanded to understand the effects and consequences that naturally result from the legal fiction. However, the Court clarified that a law creating a deeming fiction cannot create presumptions that are in favour  of a specific legal consequence. It can only create presumptions about the facts from which certain legal consequences may follow.

"The second principle is that the scope of the legal fiction must be extended to the consequences which “logically” flow from its creation. The opinion of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council is the leading case for this proposition. The Law Lord observed that the effect of a legal fiction must not be limited to treating facts that do not exist as real but must be expanded to understand the effects and consequences that flow from the legal fiction. However, a law creating a deeming fiction cannot create presumptions in favor of a legal consequence but only presumptions about facts from which certain legal consequences may follow ."

Article 341 Does Not Create A Deeming Fiction ; Provision Only Establishes A Clear Process For Legal Recognitition Of Scheduled Castes

The Court clarified that the previous decision of a 3 judge bench in Punit Rai v. Dinesh Chaudhary where it was suggested that Article 341 created a deeming fiction was erroneous and did not form the core reasoning of that judgment. The Court in Punit Rai was delaing with the issue of whether the Respondent, who contested an election for a seat reserved for the Scheduled Castes in the Legislative Assembly, belonged to the Scheduled Caste community. It was observed that the concurring opinion of Justice Sinha only mentioned of Article 341(1) creating a deeming fiction in passing and this was not part of the main reasoning of the judgement. 

"Justice Sinha, writing the concurring opinion made a passing observation that Article 341(1) creates a deeming fiction. However, this observation does not form the ratio decidendi of the judgment. Thus, it needs to be analyzed if Article 341(1) creates a deeming fiction." 

The Court analysed that Article 341(1) serves three main purposes : (1) It outlines the process for designationg a caste as a Scheduled Caste; (2) It specifies who can be classified as a Scheduled Caste and (3) its includes a substantive provision which confers a legal status to the notified classes- this is done through the phrase 'for the purposes of this Constitution be deemed to be Scheduled Castes'.

It further observed that the expressed 'deemed' ensures that the casts or groups of castes are given a legal recognition as 'Scheduled Castes' through the process of presidential notification. If the term 'deemed' was removed the provision of Article 341(1) would only become of a procedural nature where President had the power to merely notify the Scheduled Castes. The use of "deemed" in Articles 341(2) and 342(2) is not meant to provide an artificial construction. It was therefore held that the observation in Punit Rai holding that deeming fiction is created under Article 341 was incorrect in terms of reasoning as well. 

"In the absence of the word “deemed”, the provision would have solely been a procedural clause, empowering the President to notify the Scheduled Castes. The use of the word “deemed” ensures that the castes or groups of castes shall be regarded as Scheduled Castes by the very act of notifying them. Thus, the inclusion of the word 'deemed' in Articles 341(2) and 342(2) does not create a legal fiction since it does not provide any artificial construction. To that extent, the observations of the three-Judge Bench of this Court in Punit Rai (supra) that Article 341(2) creates a deeming fiction are erroneous." 

The Court explained the complex nature of India's social order, which consists of castes experiencing various degrees of social backwardness. The Constitution groups these castes into different classes, such as Scheduled Castes or Scheduled Tribes, based on their level of marginalization in order to grant them the advantage of affirmative action under the various Constitutional provisions. It was stressed that for a caste to become officially recognised as Scheduled Caste/ Tribe or socially and educationally backward caste, the Presidential notification act as the final seal on grant of their constitutional status. Therefore the word 'deemed' creates a legal fiction to bestow a 'constitutional identity' for the castes included in the list. 

"A caste only becomes a Scheduled Caste or a Scheduled Tribe or a socially and educationally backward caste when the President issues a notification to that effect in the exercise of the power under Articles 341, 342 and 342A respectively. Thus, it could be argued that the word “deemed” in the provision creates a legal fiction for creating a constitutional identity for the castes which are included in the lists." 

'Deeming Fiction' Underlining Article 341 Is Only For Identification Of Scheduled Castes; Its Purpose Is Not To Conclude That SCs Are A Homogenous Class 

The court emphasized that Article 341 creates a 'deeming fiction' solely for identifying Scheduled Castes. This legal concept is not meant to suggest that all Scheduled Castes form a uniform group. Rather, its main purpose is to distinguish Scheduled Castes from other social categories.

It was clarified that including certain castes in the Scheduled Caste list does not automatically create a homogeneous unit. Instead, it simply sets these castes apart from those not included in the category. This distinction does not prevent further classification within the Scheduled Caste group.

"The purpose of the deeming fiction is 'identification' of castes which are the Scheduled Castes. The logical corollary of the identification of castes or groups as Scheduled Castes is not that this creates a homogenous unit. The inclusion of certain castes within the Scheduled Caste category is only to demarcate them from other castes which are not included in the category. The inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified." 

The court stressed that Article 341's legal fiction cannot be extended beyond its intended purpose of identification. The provision does not provide any information about how different Scheduled Castes compare to each other or about any dynamics on the 'heterogeneity' or internal differences within the Schedule Castes. The provision can only be interpreted to the extent of concluding that those groups identified as 'Scheduled Castes' would recieve the benefit of affirmative action. 

"Article 341 creates a legal fiction for the limited purpose of identification of Scheduled Castes by distinguishing them from other groups. It offers no guidance on how the Scheduled Castes fare among themselves or on heterogeneity among the Scheduled Castes for the purpose of the Constitution. The legal fiction which assigns an identity to the Scheduled Castes, separate from other categories cannot be stretched to draw inferences about the existence or non-existence of internal differences among the Scheduled Castes. The only logical consequence is that each of the groups that is included in the list will receive the benefits that the Constitution provides to the Scheduled Castes as a class." 

Decision In NM Thomas Wrongly Interpreted By The Court In Its Ruling Of EV Chinnaiah

In overruling the decision in E.V.Chinnaiah v. State of Andhra Pradesh, which held that sub-classification was not permissible, the Court also clarified the that the decision wrongly construed the essence of the observations in State of Kerala v. NM Thomas . 

In EV Chinnaiah, Justice Santosh Hegde observed that the Castes notified by the President in the exercise of power under Article 341 form a class in themselves. To reach this conclusion, Justice Hegde relied upon the observations in NM Thomas. 

In the NM Thomas case, the Court had observed that Scheduled Castes, once notified by the President under Article 341, form a class. However, this was primarily to overcome the restrictions of Article 16(2) regarding discrimination based on caste. In the said case, rules providing concessions to the members of the Scheduled Castes for qualifying at the entrance examination were challenged. The Court had made this observation while dealing with the issue of whether the concession to the members of the Scheduled Castes violated Article 16(2) since it discriminates solely on the ground of “caste”.

"To overcome the embargo placed by Article 16(2), the learned Judges observed that provision for affirmative action is made in favour of the Scheduled Castes, which once notified by the President in exercise of the power under Article 341 are not a “caste” but a class. The class that is constituted by the Presidential notification as the Scheduled Castes consists of numerous castes, thereby forming a class." 

The Court expressly clarified that while NM Thomas held SCs to form a class seperate from the non-notified groups of citizens, it nowhere meant that SCs were a homogenous group that can't be further classified. Perhaps, it was highlighted that Justice Mathew in the NM Thomas case had explicitly stated that further classification within a class is possible if there's a reasonable basis for it.

"The observations in NM Thomas (supra) do,not go further to state that it is a homogenous class that cannot be classified further. In fact, Justice Mathew observed in the very next paragraph that there can be further classification within a class if there is an intelligible differential separating a group within a class from another group."

It may be noted that in the above observation the Court was referring to Paragraph 83 of Justice Mathew's opinion. 

Moreover, the Court emphasized that the approach taken in NM Thomas of viewing Scheduled Castes as a class because they comprise multiple castes must be understood in light of the decision in Indra Sawhney v. Union of India . In Indra Sawhney, the court allowed the State to give benefits to Scheduled Castes and Scheduled Tribes without proving they're backward as they were already recognised as a deprived class under the Constitution. 

"Additionally, the approach adopted in NM Thomas (supra) by this Court that the Scheduled Castes are a class because they comprise of a collection of castes must be read in the context of the nine-Judge Bench decision in Indra Sawhney (supra), where this Court held that caste is itself a class. Therefore, we are of the view that the inference drawn by Justice Hegde in Chinnaiah (supra) that the Scheduled Castes are a homogenous class based on the above observations in NM Thomas (supra) is erroneous." 

Court Culls Out The Self-Imposed Restrictions Under Article 341(1) read with Article 341(2)

The Court observed that there were self imposed restrictions under Article 341(1) and (2) . Under Sub-clause (1), the Scheduled Castes status is confined to specific states or regions. A community or caste listed as a Scheduled Caste in one state may not enjoy the same status in other states. Under  Sub-clause (2) the name of the communities can only be added or excluded by the President's notification. Parliament may then modify this list by law.

The referred to the decision in Marri Chandra Shekar Rao v. Dean, Seth GS Medical College to conclude 3 crucial aspects : (1) a caste recognized as a Scheduled Caste in one state cannot automatically claim the same status in another state; (2) State Governments individually cannot expand or shorten the SCs list as per their whims, the power to modify strictly lies with the Parliament ; (3) reservation benefits in a state cannot be extended to caste not elisted as an SC for that particular state. 

"Therefore, if a statute extends the policy of affirmative action to groups not enumerated specifically with respect to that State/Union Territory, it would circumvent the mandate of Article 341(2) and would be an impermissible expansion of the List, contrary to the mandate of Article 341(1).Thus, this Court held that the benefit of reservation cannot be extended to a caste which is not enumerated as a Scheduled Caste in that State, though it finds a place in the Presidential List with respect to another State." 

In Marri Chandra, while the Court held that while the Gouda community was recognized as a Scheduled Tribe in Andhra Pradesh, a member of this community could not claim Scheduled Tribe status for educational reservations in Maharashtra. Court noted that social backwardness of caste groups vary across different states in the Country, thus there cannot be a general assumption that a caste recognised in the SCs List is disadvantaged uniformly in all parts of the country. 

Further, the Court analysed that Article 341(2) gives Parliament the sole power to add or remove any caste, tribe, race, or their parts or groups from the list. This means that once the President issues a notification, it cannot be changed by another notification. Only Parliament has the authority to make changes to the list. The President acts on the advice of the central government, while Governors act on the advice of state governments when consulted. However, their role in changing the list is now clearly restricted by the exclusive mofication powers granted to the Parliament. 

"The Presidential notification cannot be varied by any subsequent notification, other than by an inclusion or exclusion by Parliament. By completely vesting in Parliament the power to include or exclude from the Presidential List, Article 341(2) correspondingly limits the power of the President (acting on the aid and advice of the Council of Ministers at the Centre) and the Governor (acting on the aid and advice of the State Government when consulted) to include or exclude castes or sub-castes from the List."

Pertinently, the Court also drew attention to the Dr BR Ambedkar's intent for limiting the powers of modification soley to the Parliament. As per Dr Ambedkar, the said limitation was imposed to eliminate any 'political factors' that may be involved which may lead to unbriddled variance of the lists for political agendas. The relavnt portion relied by the Court reads as follows: 

“..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.” 

Other reports on the judgement 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

Click here to read the judgment