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

State of Punjab stresses on the concept of relative backwardness

CJI: this community is designated as SC, the other community is part of the designated community...the argument which seems to have been found in E.V.Chinnaiah was that if that is so, the state cannot classify within the list of communities within SC because that would lead to exclusion of other SCs communities

Nath J : why should not there by any exclusion, according to you amongst the particular category some of the subcastes have done better they have come forward in that category. So they should come out of it and compete with the general why stay there? those who are backward within the backward let them have the reservation

State of Punjab : yes that is the aim, and if the aim is achieved then the purpose of this exercise should come to an end.

CJI: your argument is at 2 levels. 1. equality argument which looks at the substantive equality part ; 2. the federal argument - nothing in the constitutional structure to stop the state for making laws for its marginalised communities 

CJI : we cannot gloss over the point of exclusion. The same exclusion that applies to reservation per say when courses are reserved for backward communities, there is necessarily an exclusion of the forward community in competing for those courses , yet our constitutional jurisprudence permits it why, because we treat equality as a substantive equality not formal equality therefore.... the same applies for the reservation of the backward community is the block backward v. forward would also apply within the backward community because what we are also doing here, by the measurement s brought in by Punjab legislature was this that within the reservation of SCs 15.5 % of the 50% is for mazhabis and valmikis so to that extent the reservation is exclusively carved out for them, the other backwards castes cannot compete for those seats .... the only question now is this - can that exclusion not be justified on the same yardstick which we have applied in the exclusion of the backward v. forward context.

CJI: how is it implemented on a preferential basis?

State of Punjab : suppose there are 10 vacancies for SC in a particular recruitment, 5 were reserved for Mazhabis and valmikis if they were available and if they were not available it would go to the other SCs like ramdasias etc... this preference based reservation was not at anybody's cost. If they could not make the cut off , a SC would only get it would be converted to general, those vacancies would then be carried forward etc. If you cannot give as much as preference to the needy without being at the cost of somebody and that Act of the state govt is what is correct , we urge that  

State of Punjab mentions of the Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 provides that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes.

State of Punjab - this reservation was done on a two fold check in balance, 1. was limited to 50% which in the development of law has become the lakshman rekha which were not advised to cross, 2. this was implemented on a preferential basis. This was not an act of exclusion, this was an act of inclusion of those who were the most backward of the backward to bring them if not at power at least up from where they stood. 

State of Punjab : there is an old saying that we can only take the horse to the water we cannot make him drink. But we will have to make an effort to make the horse drink because that horse has never seen water, horse doesn't know that it is this water that will quench his thrist for eventually becoming part of his governance. He is stuck in a cycle of occupational tragedy which society doesn't let him come out of. Though opportunities are available , they are not entitled to capitalise because the effectiveness of the implementation is lacking.  

State of Punjab mentions how to change the mindset, the teaching in each household about individual's dignity has to change. The state still has an obligation to aid and assist the change which either in the form of bringing about the law by the legislature, decisions of the executive and more importantly the laying down of the law by lordship, once your lordships lay it down the acceptance of the law goes up.

State of Punjab refers to how during arguments of reservation a plea is raised of how would it be fair to give a seat to someone with 56% marks as compared to other with 99% marks. It is fair because the person with 56% did not have the same opportunities and access to a dignified life as that of the 99% candidate. My reservation we are trying to make him employed and become a part of the governance. 

State of Punjab stressed that there is a reason why after 75 years of independence we couldn't achieve equality, because of the deep-rooted social discriminations

State of Punjab submits on the issue of heredity of caste- cobblers, sweepers, blacksmiths handed down an occupation in inheritance to the next generation which is difficult to overcome

State of Punjab : we have to change the mindset, the problem is the resistance to change that mindset . The problem is that it seems a huge shift in the societal mindset to steer ourselves away from it and think why everybody in the society cannot be equal and the core issue here is not only the advantaged and disadvantaged but the more advantages and more disadvantaged within the disadvantaged.

State of Punjab : Reservation is only a tool, only a means to achieve the sacrosanct end which is ideal, which is equality. A tool is of no consequence till in the hands of a good sculptor. merely providing for reservation is not the answer, the tool has to be used for the purpose of its design, to achieve the result we seek desperately which is equality. this implementation can be done most certainly through law, definitely through social action of state and through social debate. The constitutional framers had this intent very clear in mind ,while providing for reservation that the only reason which weighed with them was the realisation of the disparity that existed, that disparity that was hard to ignore , the disparity which was in the face of the country when we were independent. The effort was to achieve Bharat- India where eventually everyone has a right to equality

State of Punjab : Article 14 is what we strive to achieve and everything thereafter has been designed to achieve is equality of opportunities. somebody who has not played has definitely not won- that is not our case, the case here is -did he have a chance to play? the opportunity or even the power to the ground where the game was played ? the answer is no. when the privilege play the game and the top amongst them win , we think about those who couldn't even make it to the playground . equality of status and opportunity is the hallmark of our constitution. And the assurance that we propose to give is an assurance of dignity. Because no opportunity / status w/o dignity is complete. You cannot give opportunity as charity. because charity takes away the dignity. 

State of Punjab: nothing would correct of its self, so therefore the established requirement of affirmative action...the only way to provide supper to the needy is the affirmative action of which we will be addressing today. Why this has come up is not far to see especially in our country where caste system has prevailed for centuries and there has been deep divide, and the ramifications have resulted my lord where certain castes have been marginalised to a status of despair and almost of non-existence in the social sphere and fabric of the society .

State of Punjab : What has come to those who have been marginalised in the general sense of the word, will be called - backwardness ... as opposed to what we never talk about and taken for granted is forwardness. Forwardness is taken as an entitlement by those who have it, but we really need to look at backwardness- facets in many ways- social, economic, educational etc ...the issue is the cure, we have been trying to find this cure through series of judgements, legislations, executive decisions , what has been done is most certainly not enough 

State of Punjab : before we go into this, its important we look at the 2 perspectives of reservation- 1. those who think they are entitled ; 2. those who are actually in need. Reservation is no benevolence, is not an act of benevolence by the entitled to the needy at all. If at all it is the compensation for centuries of impression for the needy...