Top court upholds States’ right to sub-classify SCs for quota benefits

New Delhi 

A seven-judge Constitution Bench of the Supreme Court headed by Chief Justice of India DY Chandrachud, in a majority judgment on Thursday, held that States have a right to sub-classify Scheduled Castes notified in the Presidential List in order to provide them more preferential treatment in public employment and education.

Four of the seven judges on the Bench separately said the government should extend the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, like in the case of Other Backward Classes (OBC) category. It was necessary to exclude the affluent individuals or families from the benefits of reservation and make room for the really underprivileged within these classes.

“The State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution… Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village,” Justice BR Gavai asked. The view was backed by three other judges, Justices Vikram Nath, Pankaj Mithal and Satish Chandra Sharma on the Bench.

Chief Justice Chandrachud, who shared his opinion with Justice Manoj Misra, however remained silent on the aspect of introducing the creamy layer principle to Scheduled Castes and Scheduled Tribes.

Permissible for States

However, his joint opinion with Justice Misra that it was constitutionally permissible for States to sub-classify groups among Scheduled Castes was backed by four other judges.

Justice Gavai opined that unequals have to be treated unequally to bring “real equality”.

“It is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented,” Justice Gavai reasoned.

Justice Bela Trivedi remained the lone dissenter on the Bench, saying States did not have the power to tinker with the Presidential List of Scheduled Castes.

The Constitution Bench judgment followed a reference made to the seven-judge Bench in 2020 to examine the constitutionality of Tamil Nadu Arunthathiyars Reservation Act 2009 and the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006. The latter gave preferential quota to Balmikis and Mazhabi Sikhs.

Chief Justice Chandrachud traced the power of these States to sub-classify the Scheduled Castes for the purpose of affirmative action, including reservations, to Articles 15(4) [prohibition of discrimination on grounds of religion, caste, etc] and 16(5) [equal opportunity in public employment] of the Constitution.

The Chief Justice agreed that ‘Scheduled Castes’ was not an “indivisible monolith”. ‘Scheduled Castes’ notified by the President under Article 341(1) of the Constitution was composed of heterogeneous groups of castes, races or tribes with varying degrees of backwardness. Their inclusion in the President’s List by Parliament under Article 341(2) did not mean they were a “uniform and internally homogenous unit” incapable of further sub-classification.

“Article 341(2) does not create an integrated homogenous class. Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogeneous class. Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if there is a rational principle for differentiation and if the rational principle has a nexus with the purpose of sub-classification,” Chief Justice Chandrachud observed.

‘Political tinkering’

The court agreed that apprehensions of “potential political tinkering” by parties in power in States to expand vote banks cannot obviate the constitutional need for acknowledging and remedying inter-se inequality among Scheduled Castes.

The court observed that States, by addressing inter-se disparity among Scheduled Castes on the basis of quantifiable data and providing more preferential treatment to a comparatively more downtrodden group within the class, did not interfere with the Parliament’s power under Article 341(2) to make inclusions or exclusions in the Scheduled Castes List . They only work to promote “substantive equality”.

Besides, States have to produce empirical data to support their claim that a sub-class required more beneficial treatment. Again, a State was not entitled to reserve 100 per cent of the seats available for Scheduled Castes in favour of a group to the exclusion of other castes in the President’s List.

The majority judgment overruled a 2005 verdict in the E.V. Chinnaiah case, which had held that sub-classification amounted to tinkering with the Presidential list by the State legislature, and was therefore, violative of Article 341(2) which exclusively vests power in Parliament.

Chief Justice Chandrachud referred to how a nine-judge Bench in the Indra Sawhney case had held it constitutional to classify the backward class into the ‘backward’ and the ‘more backward’ class of citizens. The same principle would apply to Scheduled Castes.

“The principle of sub-classification will be applicable to Scheduled Castes if the social positions of the constituents among the castes/groups is not comparable… Sub-categorisation within a class is a constitutional requirement to secure substantive equality,” Chief Justice Chandrachud interpreted.