[Reservation]Can Preferential Treatment Be Given To Specific Castes/Tribes Within SC-STs? Constitution Bench To Hear On Feb 11[Read Order]

The Constitution Bench of Supreme Court is currently hearing the issue whether any preferential treatment can be given to a specific caste/castes within the Scheduled Castes?

The five judge bench headed by Justice Arun Mishra, on Tuesday, partly heard the reference which raised the following issues:

• Whether the provisions contained under Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 are constitutionally valid?
• Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act?
• Whether the decision in E.V. Chinnaiah Vs. State of A. P. & Ors. reported in (2005) 1 SCC 394 is required to be revisited?

The case is listed for further hearing, subject to availability of the Bench, on 11.02.2020.

HC Judgment

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. While holding this provision as unconstitutional, the Punjab and Haryana High Court relied on E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, wherein it was held that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further sub divided. It was further held therein that any such legislation with reference to Entry 41 of List II or Entry 25 of List III of the Seventh Schedule to the Constitution would be violative of Article 14 of the Constitution.

E.V.Chinnaiah judgment

While striking down a similar Andhra legislation, the Supreme Court had observed thus:

• The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the Legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub divided or sub-classified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List. Such sub-classification would be violative of Article 14 of the Constitution of India. It may be true, as has been observed by the High Court, that the caste system has got stuck up in the Society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalizing the reservation to the Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated.
• Reservation must be considered from the social objective angle, having regard to the constitutional scheme, and not as a political issue and, thus, adequate representation must be given to the members of the Scheduled Castes as a group and not to two or more groups of persons or members of castes.
• The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India, a further classification by way of micro classification is not permissible. Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List can be done only by the Parliament. The logical corollary thereof would be that the State Legislatures are forbidden from doing that. A uniform yardstick must be adopted for giving benefits to the members of the Scheduled Castes for the purpose of Constitution. The impugned legislation being contrary to the above constitutional scheme cannot, therefore, be sustained

Reference

The three judge bench, which heard the appeal filed by the state of Punjab, while referring the case to five judge bench, observed that E.V. Chinnaiah judgment needs to be re-visited.

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