Supreme Court Live Updates - SC/ST Reservation Subclassification : 7-Judge Bench Hearing [Day 2]

Sibal : Scheme of the constitution is clear, 341 , it is meant to identify heterogeneity of those communities, castes or tribes which have been dehumanized over centuries . the power of reservation is found in 16(4)

Nath J : is there nay state in which under article 330 , reservations are made specifying the communities included in SC based upon their population or so, ex Valmikis are 5 seat etc

Gavai J : as a matter of fact even an SC from Punjab can contest an election in Maharashtra

Sibal : that is right, because when we talk about reservation we talk about education and employment not representation...

Sibal takes the bench to Part 16 of the Constitution- wherever the constitution wanted to provide reservation. it said so, I'm not saying the union govt cannot, that's not the point, that power the Union has, that power of the parliament is not issue.  

Sibal continues reading from KN Thomas (para 24)

Sibal : i have demonstrated heterogeneity and I have demonstrated that on the basis of the judgment that there is homogeneity, that assumption is wrong. On that ground alone the judgement must go.

Sibal reads Article 341 to show what Justice Krishna Iyer says is consistent with 341

Sibal : why is there a word deemed there? because my lords it cannot be changed till the parliament changes it . it's deemed to be, nobody can change the word.

CJI : not to deny that they form a class, but they form a class for the purpose of article 341, so there maybe a class for certain purposes there may not be class for certain purposes

Sibal : it is level of discrimination that runs through the entire list but their vocations may be different, they're historical backgrounds, extent of discrimination may be different... for example the Mazhbi sikh, their origin is from Guru Teghbahadur Ji, his body was mutilated and he brought that body to Guru Govind Singh Ji and he was a chammar, the person who brought that body was a chammar, who Guru Govind Singh took him in his fold, and the chammars became a part of the sikhism... that's the historical context. Mazhbi means faithful.

Gavai J : we will also need to cater to chammars in Punjab

Sibal : 32% of the population in Punjab is dalits. More than any other state in this country. 

Sibal takes the bench to State of Kerala v. KN Thomas

We may clear the clog of Art. 16(2) as it stems from a confusion about caste in the terminology of Scheduled Castes and Scheduled Tribes. This latter expression has been defined in Arts. 341 and 342 A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. The confuse this backward-most social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Art. 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-Article. The discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion.

CJI: infact by using this expression mixed bag the learned judge is really underscoring the homogeneity

Sibal takes the bench to his chart which shows heterogeneity within the backward castes

CJI: so there is heterogeneity in terms of the preexisting occupation, in terms of resources or lack of resources, in terms of all indicators in a backward class. The status of every caste may not be the same in the social hierarchy aswell. Some may be a little more advanced, some little less advanced, some maybe particularly underprivileged in terms of infant mortality, maternal mortality which sort of defines

Sibal : now that assumption made in the observation of Justice Krishna Iyer in Thomas.  

Sibal : may so, but that is not part of the notification, that's nothing to do with the reservation

Gavai J : that may not be correct because unless there is an entry for SC find a place in the presidential order ....

Sibal : I'll just demonstrate your lordships, wherever they have wanted to give reservations they have given it.

CJI: it is a necessary but not a sufficient condition, designation under 341 is a necessary condition for reservation but it is not sufficient in itself. Because having been designated, there still exists an enabling power conferred upon the parliament or for that matter as my brother says the executive

Sibal : but it's from the union or the parliament, the order itself has no reference to reservation and I'll show that from the chapter itself. 

Gavai J : the common factor is social and economic backwardness but the degree may vary from one person to another

Sibal ; the assumption of homogeneity in Chinnaiah itself is constitutionally flawed, first mistake. The second mistake is that it correlated the presidential order with reservation...neither of these are valid.

CJI: because the designation is only for the purpose of the constitution. It is not only for reservation nor is it co-terminus with reservation.

Sibal : it has nothing to do with reservation. reservation emanates from the preliminary power of the parliament which is in 16(4)

Gavai J : but indira sahwney says that it could be done by executive instruction

Sibal : not anymore my lords , because parliament has to make a law my lords

Gavai J : Indra sahwney goes on to say that it is not necessary that it has to be done by legislation. it can be done by executive means 

Sr Advocate Kapil Sibal makes his submissions

Sibal : I think that the constitution makers realised this and they also realised that this is not going to stop. They knew that it is unlikely going to stop anytime soon. There are two basic assumptions that Chinnaiah made which were wrong - 1. they considered the SCs in the order as homogenous group, they assumed they represent a homogenous group, that assumption is based on no factual data, no analysis of that data, infact heterogeneity in inherent in that

CJI: actually homogenous nature of all the entries is for the purposes of designation. They are homogenous in the sense that each one of them is a scheduled caste but your argument is that there is no homogeneity either in terms of the sociological profile, economic development etc