Thol. Thirumavalavan MP Files Review Petition Against Supreme Court's Judgment Allowing Sub-Classification Of Scheduled Castes

Today, Thol Thirumavalavan, 2nd-time Member of Parliament and President of Viduthalai Chiruthaigal Katchi-the largest Dalit Party in Tamil Nadu has filed a review petition against the sub-classification judgment of the Supreme Court.  

A seven-judge bench of the Supreme Court(by 6-1) held that sub-classification of Scheduled Castes is permissible to grant separate quotas for more backwards within the Scheduled Castes category.

The Bench comprised of Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma.

The impugned judgment decided a reference to revisit this Court's judgment in E.V. Chinnaiah v. State of Andhra Pradesh(2005) which held that the State cannot apportion reservations among subclasses within the Scheduled Castes' list. While overruling the judgment in E.V. Chinniah, this Court declared that the sub-classification of the Scheduled Castes for the reservation is permissible.

Previously, a review petition was filed by lawyer Jaishri Patil, contending that the Supreme Court's interpretation in the Indra Sawhney case (1992) regarding the sub-classification of backward classes does not apply to SCs and STs.

The review petition states several grave and manifest errors of law in the impugned judgment that need to be corrected.

These are:

1. The judgment made an error by failing to establish an upper limit on the number of seats that can be reserved for the more backward castes within the overall Scheduled Castes quota.

2. The Court failed to observe that upper limit must be proportionate to the percentage of the population of the identified sub-class and such a limit ought to be prescribed by this Court to prevent the exclusion of other castes falling in the list of Scheduled Castes.

3. The judgment is contrary to the well-settled legal principles of 'reasonable classification' under Article 14 of the Constitution as it failed to assess the limitations of subclassification of the list of Scheduled Castes.

4. The judgment notes that there are two models of reservations for the sub-classified classes, the preference model and the exclusive model, and the CJI recognizes at para. 179 that “it needs to be analyzed if both models are constitutional” but erred in properly examining the constitutional limits of the two models.

5. The judgment correctly reasoned in para. 182 (CJI) that the constitutionality of the preference model or the exclusive model would depend on “whether the variation in-effect excludes any caste notified as a Scheduled Caste with respect to that State by the President under Article 341(1)” but it failed to note that when a certain caste or castes are allocated a disproportionate percentage of seats or disproportionate sub-quota vis-a-vis their population, it effectively leads to exclusion of other castes within the Scheduled Caste quota.

6. The Court, at para. 183 (CJI), describes the constitutionally permissible preference model as a model wherein “preference to certain castes is given only over a certain percentage of the seats” but the court failed to prescribe a limit for the preference to be given over a certain percentage of seats. It made a grave error in concluding that “this model does not have the effect of excluding any of the castes in Scheduled Castes List.” The judgment fails to prescribe the upper limit of preference over certain percentage of seats for the identified sub-castes or sub-class, which can lead to the exclusion of other castes within the Scheduled Caste quota.

7. The Court observed, in para. 187 (CJI), that “the constitutionality of the exclusive model depends on the percentage of reservation for the sub-categorized castes,” but it failed to note that the constitutionality of the exclusive model is hinged on the percentage allotted to the sub-classified castes which ought to be proportionate to their population.

8. The Court ignored the conditions of reasonable classification, as enunciated in the seven-judge bench of this Court in State of Kerala v. N.M. Thomas (1976) that the classification “must have a rational basis” and “it should  not select any person for hostile discrimination at the cost of others”.

9. The Court failed to consider that adequate representation can align with proportional representation, it cannot exceed the proportionate share, ensuring that the balance is maintained without overstepping the limits set by their population percentages. The Court should not conflate the necessity of proportional representation in sub-classification with the 50% cap on vertical reservations established in Indra Sawhney & Ors. v. Union of India & Ors.,(1992). In that case, the Court noted that while the combined population of SCs, STs, and OBCs may exceed 50% of the total population, the Constitution mandates adequate representation rather than proportional representation. But when it comes to sub-classification within Scheduled Castes, the principle of proportional representation is relevant only to the population of Scheduled Castes, not to the total population across all classes of citizens.

10. Where States have created sub-class within Scheduled Caste quota that is proportionate to the population of the identified sub-class, however, the overall Scheduled Caste quota has not been increased based on their population which has led to the further narrowing down of opportunities and exclusion of the other castes within the Scheduled Castes.

11. The Court in addressing the heterogeneity and inter-se backwardness omitted the issue of vulnerability of Scheduled Castes with very small populations.

12. In addressing the heterogeneity within the Scheduled Caste community, the Court failed to address the heterogeneity within each caste.

13. The judgment, erred in directing the States to evolve a policy for identifying the creamy layer from the Scheduled Castes and Scheduled Tribes, excluding them from the benefits of affirmative action.

14. Since the application of “creamy layer” test was not a question that arose for consideration before the Court, the Court erred in exceeding its jurisdiction in discussing and passing a direction to the States to formulate a policy for identifying the creamy layer for Scheduled Castes and Scheduled Tribes. 

15. The Court did not afford the opportunity to the parties to the present matter to address the Court on the issue of “creamy layer.”

16. The Constitutional bodies, the National Commission for Scheduled Castes (Article 338) and the National Commission for Scheduled Tribes (Article 338A) not made party to the matter and not heard on issue of creamy latter. 

16. The Court made patent error made by referring to nine-judge bench judgment of Indra Sawhney. Justice Gavai in paras. 275-227 reiterated Indra Sawhney's reasoning as a justification for the application of the principle of the creamy layer to Scheduled Castes and Scheduled Tribes. 

17. In para. 281 (Justice Gavai), erred in relying upon M. Nagaraj v. Union of India (2006), a five-judge bench it was passed without any justification or reasoning, in direct contravention of the nine-judge bench judgment in Indra Sawhney.

18. The judgment has erred in not taking into account the decision of a five-judge bench in Ashok Kumar Thakur v. Union of India (2008), which clarified that the principle of 'creamy layer' does not apply to Scheduled Castes and Scheduled Tribes and the decision in M. Nagaraj cannot be construed to that effect.

19. The Court, in para. 282 (Justice Gavai), erred in relying upon Jarnail Singh v. Lachhmi Narain Gupta (2018), since the five-judge bench in that judgment completely ignored the discussion of 'creamy layer' that was stated in Indra Sawhney and instead relied upon a three-judge bench judgment of Indra Sawhney-II v. Union of India(2000).

20. The Court, in para. 282 (Justice Gavai), erred in relying upon the five-judge bench judgment in State of Punjab v. Davinder Singh (2020) which was devoid of any reasoning for exclusion of cream layer and was based on another judgment's observation on the state's discretion in reservation policies.

21. . The Court, in paras. 283-284 (Justice Gavai), erred in concluding the correctness of the view taken by Jarnail Singh and five-judge bench in Davinder Singh, on 'creamy layer' by binding itself to an observation in N.M. Thomas (1976)  which was just “a word of sociological caution”.

22. The Court, in paras. 283-284 (Justice Gavai), erred in concluding the correctness of the view taken by Jarnail Singh and Davinder Singh on 'creamy layer' by misreading the observations of Justice Chinnappa Reddy's opinion in K.C. Vasanth Kumar v. State of Karnataka 1985. Justice Chinappa Reddy called the test of creamy layer an elitist approach which goes against the objectives of reservation policy

23. The Court failed to cite any empirical data or reports to substantiate the claim that an improvement in the economic status of Scheduled Castes and Scheduled Tribes correlates with a reduction in their social backwardness

24. The Court has erred in directing the State to take steps to evolve a policy for identifying the creamy layer from the Scheduled Castes and Scheduled Tribes

25. The Court erred in not considering the principle of non-retrogression, which asserts that once a right or benefit has been granted, it should not be taken away. The imposition of the 'creamy layer' concept within the reservation policy represents a regressive step, as it effectively withdraws benefits from certain citizens who are rightly entitled to them

26. The Court has failed to clarify if the ratio of the impugned judgement is applicable to Scheduled Tribes as well.

The review petition was drafted by Disha Wadekar and  Ayush Singh, Advocates and filed through Ravi Prakash, Advocate.

Case Details: Thol. Thirumavalavan v. State of Punjab & Ors. REVIEW PETITION (CIVIL) NO. __OF 2024