Is Sub-Classification Permissible Within SC/ST Categories? Live Updates From Supreme Court 7-Judge Bench Hearing [Day 1]

"102. The S.E.B.Cs. referred to by the impugned Memorandums are undoubtedly 'backward class of citizens' within the meaning of Article 16(4).

(d) 'Means' test and 'creamy layer':

86. 'Means test' in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as "the creamy layer" argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class - as forward as any other forward class member - and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree, almost every decision has accepted the validity of this submission." 

Punjab AG takes the bench to Indra Sawhney Etc. vs Union Of India And Others, Etc.  

CJI: theme is the same, the sub classification which is permitted in Indira Sahwney for OBC is not permitted in SC/ST , because they say its one homogenous class and once parliament has designated a class, you cannot sub divide, sub classify . And your contention is that parliament's power to designate is very different from the state's power to implement reservations under 16(4). ....article 341 is all about identification/ inclusion/exclusion of caste 

The Court resumes hearing

Punjab AG : here an example of fruit chaat and jam comes. if the intention of the legislature was to make it into a jam once they come in a jar, then inclusion -exclusion becomes of no use. After the jam, you cannot take the apple out and leave the peach inside. But if the option is given to the parliament to remain one and take out the other , it is a fruit chaat and not a jam. But the court proceeded on the conclusion that once they come in one, birthmarks are lost which in my submission is an erroneous submission of 341

"Thus from the scheme of the Constitution, Article 341 and above opinions of this Court in the case of N.M. Thomas (supra), it is clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List."

The Court Breaks for Lunch

"We will now consider whether the Scheduled Castes List prepared by the President under Article 341(1) forms one class of homogeneous group or does it still continue to be a list consisting of different castes, sub-castes, tribes etc. We have earlier noticed the fact that the Constitution has provided for only one list of Scheduled Castes to be prepared by the President with a limited power of inclusion and exclusion by the Parliament.

The Constitution intended that all the castes included in the said Schedule would be "deemed to be" one class of persons but arguments have been addressed to the contrary stating that in spite of the Presidential List these castes continue to hold their birth mark and remain to be separate and individual caste though put in one List by the President.

It is the contention of the respondents that by merely including them in a List by the President these castes do not become a homogeneous group, therefore, to fulfil the constitutional obligation of providing an opportunity to these castes more so to the weaker amongst them, it is permissible to make a classification within this class, as was made permissible in regard to other backward classes (OBC) by this Court in Indra Sawhney's case (supra). We cannot accept this argument for more than one reason."

"In the Draft Constitution, there was no Article similar to Article 341 as is found in the present Constitution. Noticing the need for creating a list of Scheduled Castes a Draft Article 300A was introduced in the Draft Constitution and while introducing the same Dr. Ambedkar stated the object of introducing the said Article in the following words : -

"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. 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 the Draft Constitution, there was no Article similar to Article 341 as is found in the present Constitution. Noticing the need for creating a list of Scheduled Castes a Draft Article 300A was introduced in the Draft Constitution and while introducing the same Dr. Ambedkar stated the object of introducing the said Article in the following words : -

"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. 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." " 

"From the pleadings on record and arguments addressed before us three questions arise for our consideration:-

(1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India?

(2) Whether the impugned enactment is constitutionally invalid for lack of legislation competence?

(3) Whether the impugned enactment creates sub-classification or micro classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?" 

"He further submitted that there is an obligation on the State under Article 16(4) to identify the group of backward class of citizens which in the opinion of the State is not adequately represented in the service under the State and make reservation in their favour for such appointments and under Article 15(4) of the Constitution there is an obligation on the State to make special provisions for the advancement of Scheduled Castes and Scheduled Tribes and what the State has sought to do under the impugned Act was only to make such a provisions to fulfil the constitutional obligation after due enquiry, hence, the allegation of violation of Article 14 cannot be sustained.

He strongly relied on the findings of fact recorded in Justice Raju Commission's report which according to him establishes that some particular groups within the Scheduled Castes have cornered all the benefits at the cost of others in the said List, therefore, with a view to see that the benefit of reservation percolates to the weaker of the weakest it had become necessary to enact the impugned law. The learned counsel submitted that by re- grouping the castes in the Scheduled Caste List there is no reclassification or micro classification as contended by the appellants."