Is Subclassification Permissible Within SC/ST Reservation ? Supreme Court Reserves Judgment [Live Updates Day 3]

CJI: the validity of a constitutional provision can be challenged on three counts, 1. legislature doesn't have competence; 2. It is in violation of part 3; 3. It is in violation of any other substantive constitutional provision. What we are trying to tell you is that you cannot mix the first with the second 

CJI : why according to you is it lacking in legislative competence ?

Sagar: legislative competence is otherwise there but it is absolutely violative of the constitutional mandate of article 341

Gavai J : that has been elaborated by Mr sawrup. If you repeat it 10 times it doesn't mean it becomes more valuable. 

Adv. Sagar : my formulation, the state lacked legislative competence to enact the provisions contained in s.4(5) of the Act

CJI: tell us which is the entry under which it will fall?

Sagar: it will neither fall under 41 nor would it fall under the concurrent list 

CJI: the power of exclusion is not with the state. Mr Swarup has substantially argued that point

The Court resumes

The Court breaks for lunch

Mr Swarup Concludes.

Another senior counsel begins his arguments by referring to paras in Indra Sawhney on Creamy layer - it was observed how the creamy layer has arisen which led to the court on this conclusion that the backward class can be subdivided 

Swarup : yesterday intersectionality was argued, this does not qualify as intersectional reservation at all. This is subvertical reservation...horizontal -vertical when does it work ? That a horizontal position he can occupy in any of the verticals, here The Mazhabi and valmikis are only claiming reservation against one vertical which is SC. there is no question of intersectional

Swarup : the second submission- where is the bar is it repreadetly asked from the other side, the answer is 16(2), you are identifying on the basis of caste.

CJI : (giving the example of Nargesh Mirza) you cannot get away by using the only phrase under article 16(2) but adopting on some other ground of discrimination...here the discrimination not only on the basis of the caste but a factum recognised by the constitution. 

Swarup reads from NM Thomas

Swarup - 16(4) is only that you may a percentage of reservation, it is trying to find a route...

CJI: the constitution has used 3 expressions, backward class , SC/SCT and SEBC - backward class will include SC/ST perhaps the SC/ST as a grouping cannot fall under SEBCs, they are very distinct ... therefore when the state is exercising power under 342A (3) they cannot excludes SC/ST or a part thereof because 15(4) clearly specifies SC/ST as a distinct denomination from SEBC . 16(4) makes that very clear... because SC/ST are deemed to be part of SEBC there is no need for them to be a part of 15(4), 16(4) is much broader.