State Must Show Data On Inadequate Representation Of Castes In Services To Sub-Classify : Supreme Court

The Supreme Court in its recent decision allowing sub-classification of  Scheduled Castes(SCs), held that the States are required to base their justification of sub-classification on effective and qualitative data indicating 'inadequate representation' of the sub-classified backward classes in state services.

The 7-judge Constitution Bench, by 6:1 majority, held that 'inadequate representation' of certain SCs across appointments in state services was a key indicator of proving 'backwardness' within the Schedule Caste.  The States are required to prove an 'inter se' backwardness within the SCs in order to make reservations for a specific sub-classified group within the SCs. 

The judgment was delivered by a bench comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma. Six judges upheld sub-classification, with Justice Trivedi dissenting.

The Court examined two key issues on the extent of justification required to be given by the States in making sub-classifications within a caste for a reservation : (1) should the state prove 'inter se backwardness' as opposed to the decision in Indra Sawhney v, Union of India which held such backwardness is not required to be 'proven' for SC/STs; (2) Whether it is necessary to prove the 'inadequacy of representation of the more backward with the Scheduled Castes? 

The Court held that while the decision in Indra Sawhney decision allows the State to give benefits to Scheduled Castes and Scheduled Tribes without proving they're backward, the decision makes no express exception for the States to sub-classify without giving a reasonable justification.

"The decision in Indra Sawhney (supra) exempts the State from having to prove that the Scheduled Castes and the Scheduled Tribes are backward for the purposes of securing benefits under Articles 15 and 16. The observations do not exempt the State from having to justify the decision of sub-classifying within the Scheduled Castes and Scheduled Tribes for the purposes of reservation."

It further held that sub-classification is premised on the notion that there exists a hierarchy within the scheduled castes, where certain castes or groups have even more backwardness than the other. Thus it was made clear that while the State doesn't need data to prove the entire class is backward, it must collect data to show differences in backwardness within the class if it wants to sub-classify. Such quantifiable data was necessary to establish the variance in backwardness with the backward classes or 'inter se' backwardness.

"The basis of sub-classification is that few of the castes or groups within the class are more backward. Thus, though the State is not required to collect quantifiable data to prove backwardness of the entire class of the Scheduled Castes/Tribes, it is required to collect data to prove inter-se backwardness within the class, where it seeks to make a sub-classification within the class." 

It may be noted that the 9-judge bench in Indra Sawhney (1992) held that the requirement to prove social and educational backwardness for a class to be considered under 'Other Backward Classes' (OBCs) cannot be applied for SCs/STs as they admittedly fall under the category of backward class of citizens as mentioned in the Constitution. 

However, the decision of a 5-judge bench in M. Nagaraj & Others vs Union Of India (2006) held a contrary observation. In the case relating to reservations for Scheduled Castes and Scheduled Tribes in promotions, the Court held that the State doesn't need to make reservations for SC/ST in matters of promotions. However, it had added that if the State did wish to exercise its discretion, it is supposed to gather quantifiable data showing the class's backwardness and inadequacy of that class's representation in public employment, in addition to compliance with the requirement of maintaining administrative efficiency as per Article 335.

Subsequently, another 5-judge bench in the case of Jarnail Singh v. Lachhmi Narain Gupta (2018) invalidated the above conclusion in M Nagaraj. It opined that this was contrary to the finding arrived at by the nine-judge bench in Indra Sawhney v. Union of India.

It noted that the bench in Indra Sawhney had categorically ruled, “[t]he test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens.”

State Must Use Effective, Not Just Quantitative Data To Identify Inadequate Representation; Decision In Nagaraj Wrongly Infers The Observations In RK Sabarwal: Court Clarifies 

The judgment authored by CJI DY Chandrachud (for himself and Justice Misra) also clarified that states must use 'effective data' and not just quantitative data to identify inadequate representation of Scheduled Castes and Scheduled Tribes in government posts.

The Court expressly held that to justify sub-classification under the contours of Article 16(4), the state must collect measurable data. This data should necessarily show 'inadequate representation' of the sub-categories in state services. Such an inadequate representation is a key indicator of 'backwardness'.

Cadre Can't Be Used As a Unit To Assess Representation 

It further held that using cadre as a unit of assessing the representation of backward classes in state services defeats the purpose of the indicator, as it's not a display of the ground realities. Therefore adequate representation has to be based on effective or qualitative data as against quantitative data. This would ensure the quality representation of backward classes.

"The State for a valid exercise of power to sub-classify under Article 16(4) is required to collect quantifiable data with respect to the inadequacy of representation of the sub-categories in the services of the State. As held in the preceding section, the inadequacy of representation is an indicator of backwardness and thus, to use the cadre as a unit to determine representation alters the purpose of the indicator itself. The State while deciding if the class is adequately represented must calculate adequacy based on effective and not quantitative representation." 

The observation was made with specific reference to the misinterpretation of the decision in RK Sabharwal v. State of Punjab by the 5-judge bench in M Nagaraj. In the Nagaraj case, the Court had previously said that states must provide quantifiable data to show the need for reservations. However, relying upon the observations in RK Sabharwal, the bench held that cadre strength must be taken as a unit to ascertain whether a given class or group is adequately represented.

It may be noted that in RK Sabharwal, the Court had talked about using cadre strength to assess whether the quota limit was breached. The court was dealing with two issues there, (1) in counting the reserved posts for backward classes, should there be an inclusion of the general category appointments of backward class individuals; (2) can the reservation quota be considered fulfilled when all reserved posts SCs/STs are appointed? 

It is on the second issue that the Court in RK Sabharwal mentioned the use of cadre to ensure reservations. It observed that reservations should follow the department's roster system. This roster is a list which tracks reserved positions. The said roster is ongoing and updated yearly to prevent over-reservation. The bench gave a cadre-based calculation for the working of the roster - certain positions in the roster are earmarked for certain groups; When a reserved position becomes vacant, it must be filled by someone from that same group.

The Court observed that the use of cadre as mentioned in RK Sabharwal was not meant to determine if the representation of SCs/STs was adequate for a post, it was only meant for creating a balanced roster of reserved and open seats. Thus the inference drawn by the bench in Nagaraj was misplaced. 

"The inference in Nagaraj (supra) that cadre must be taken as a unit to determine inadequacy of reservation based on the above observations in RK Sabharwal (supra), in our respectful opinion, is misplaced.The cadre as a unit was considered only for the purpose of preparation of roster to draw a balance between the reserved and open seats. This Court did not hold that cadre must be used as a unit for the purpose of determining the adequacy of representation." 

On the other hand, the Court pointed out that the decision in RK Sabhawaral specifically holds that state governments could consider the total population of a particular backward class and its representation in state services when assessing the adequacy of representation. Reliance was placed on the following paragraph from RK Sabharwal : 

“4. […] It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services.”

Accordingly, the Court concluded that using only cadre strength to measure representation is insufficient. This approach fails to distinguish between quantitative and qualitative representation, potentially overlooking the accurate extent of a group's backwardness in state services. Using a cadre as a unit of assessment would only reflect the proportion of representation of the backward classes within that cadre. The Court highlighted that Articles 16(4) and 16(4-A) of the Constitution specifically refer to adequate representation "in the services under the State." thus indicating the need for a broader assessment of representation beyond the specific cadres. 

"As observed above, the inadequacy of representation in the services of the State is an indicator to determine the backwardness of the class in the services of the State. When the cadre-strength is used, the inadequacy of representation of the class is not determined. Rather, it determines the inadequacy of representation in a cadre, thereby, merging the distinction between quantitative and qualitative representation. Further, the observations in Nagaraj (supra) that adequate reservation of the class or group must be measured against the cadre is contrary to the plain language of Articles 16(4) and 16(4-A). Both the provisions use the phrase “not adequately represented in the services under the State" 

The scope of sub-classification of the Scheduled Castes was summarized by CJI DY Chandrachud as below:

i. The objective of any form of affirmative action including sub- classification is to provide substantive equality of opportunity for the backward classes. The State can sub-classify, inter alia, based on inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness;

ii. The State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness; and

iii. Article 335 of the Constitution is not a limitation on the exercise of power under Articles 16(1) and 16(4). Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services. Efficiency of administration must be viewed in a manner which promotes inclusion and equality as required by Article 16(1).

Other reports on the judgement can be read here. 

Case Details : State Of Punjab And Ors. v Davinder Singh And Ors. C.A. No. 2317/2011

Citation : 2024 LiveLaw (SC) 538 

Click here to read the judgment