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

It is further submitted that once the castes are put in the Presidential List, the said castes become one homogeneous class for all purposes under the Constitution, therefore, there could be no further division of the said castes in the Scheduled List by any Act of the State Legislature. His further submission was that in the guise of exercising its legislative competence under Entry 41 in List II or Entry 25 of List III the State Legislature cannot exercise its legislative power so as to make a law tinkering with the Presidential List because the said Entries do not permit any law being made in regard to Scheduled Castes. In the guise of providing opportunity to some of the castes in the list of Scheduled Castes the State can not invoke Entry 41 of List II and Entry 25 of List III to divide the Scheduled Castes. According to the learned counsel the impugned enactment does not really deal with the field of Legislation contemplated under the said Entries but in reality is targeted to sub-divide the Scheduled Castes. Alternatively, he submitted the classification or sub-grouping made by the State Legislature amounting to sub-classification or micro classification of the Scheduled Caste is violative of Article 14 of the Constitution of India. 

"The contentions advanced on behalf of the appellants are that the State Legislature has no competence to make any law in regard to bifurcation of the Presidential List of Scheduled Castes prepared under Article 341(1) of the Constitution, therefore the impugned legislation being one solely meant for sub-dividing or sub-grouping the castes enumerated in the Presidential List, the same suffers from lack of legislative competence."

Punjab AG takes the bench to E.V.Chinnaiah vs State Of Andhra Pradesh And Ors

Punjab AG takes the bench to article 335 of the Constitution

Punjab AG takes the bench to Order of 20 August 2014 of the Supreme Court by a 3 judge bench

"We are of the view that E.V. Chinnaiah needs to be revisited in the light of Article 338 of the Constitution of India and and, inter alia, exposit of law in Indra Sawhney"

Punjab AG takes the bench to the different schedules on reservation

Punjab AG explains how if tomorrow state is given the power to make reservations for the 12% population of a certain SC in the state, the state will become friendly- to avoid that mischief 341 as far as entry and exist is concerned is sacrosanct. No state in the federal structure will be able to tinker with the entry and exist of caste / part thereof while exercising the powers which are not vested in them .... it is not for conferring benefits at all which Chinnaiah interprets it to be. 341 and 16(4) operate in completely different legislative spheres. 

Punjab AG : a schedule caste is a caste which is included in the schedule that's it. there is not such "caste' as the Scheduled Caste... backwardness in the OBC is tested by backwardness in SC/ST is presumed. A state cannot go to the exercise of the determination of backwardness as one of the core parameters for grant of benefits. The word 'deemed' troubles me. why would the constitution makers use the word deemed, because that was an exercise in perpetuity so therefore a deeming fiction is attached to their caste.

Gavai J : or it could be deemed to be an SC in relation to that state. and not for the other state.

Punjab AG : why I say so is, otherwise if we take the word deemed out of it then it would change the sense of the article. then it would read that for the purposes of this constitution be SCs in relation to that state of UTs, why deemed? I could not come up with an explanation

Punjab AG : the brithmark philosphy that once you are born in SC family you become an SC, doesn't apply in 341 2 reasons why- 1. you have the benefit of the schedule only if you are within the definitions by the orders of the president as ascribed by the parliament; 2. why is not a monolithic because it is a reversible process, today you say that caste is schedule caste in 3 districts of Punjab, tomorrow you may say reverse that status for one of three districts also. 

State of Punjab : 341 decides who is entitled for benefits , who to be given how much within the entitled is the exercise by the state. unless this exercise is permitted, if you block it it will lead to lumping...all the benefits will be lumped to a part of the part, other truly deserving will never get it

State of Punjab takes the bench to S. 4 (5) of the 2006 State Reservation Act

AG for Punjab refers to various definitions within the 2006 Act

AG now refers to Article 341 of the Indian Constitution

Gavai J : within a particular backward class, certain caste have reached that position and power, then they should move out but then that is only for the parliament to decide...now what happens , a person from SC/ST gets into IAS / IPS etc, once your are into that their children do not suffer the disadvantages that persons suffer from the other SC communities but then by virtue of reservation they are also entitled to the second generation and again the third generation. 

CJI: do we have any data on what is the total population of SCs in Punjab and within that what is the break up of valmikis and mazhabi sikhs

State of Punjab : they are all available but why Iam not stressing upon that is because this is not a numerical argument. because first of all, can you do it? if you can then who will do it? how is that to be done