Supreme Court holds sub-classification of Scheduled Castes/ Scheduled Tribes permissible; overrules EV Chinnaiah

In a landmark judgment, the Supreme Court on Thursday upheld the power of States to sub-classify reserved category groups, viz. the Scheduled Castes and Scheduled Tribes (SC/STs), into different groups based on their inter se backwardness for extending the benefits of reservation [State of Punjab and ors vs Davinder Singh and ors]..A seven-judge Constitution bench of Chief Justice of India (CJI) DY Chandrachud with Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma overruled the 2005 judgment of EV Chinnaiah v. State of Andhra Pradesh which had held that sub-classification of SC/STs is contrary to Article 341 of the Constitution which confers right on the President to prepare the list of SC/STs.Justice Bela Trivedi dissented from the majority and ruled that such sub-classification is not permissible."The members of SC/ST are not often able to climb up the ladder due to the systemic discrimination faced. Article 14 permits sub-classification of caste. Court must check if a class is homogeneous or and a class not integrated for a purpose can be further classified," the Bench said pronouncing its majority judgment.The Court said that historical evidence and social parameters clearly showed that all SC/STs do not constitute a homogenous class. "Historical evidence shows that depressed class were not homogenous class and social conditions show that all classes under that is not uniform. In state of Madhya Pradesh, out of 25 castes only 9 are scheduled castes," the Court noted.Thus-sub-classification of SC/STs by States will not fall foul of Article 341 which confers right on President to prepare the list of SC/STs, the Court said."We have also established through historical evidence that Scheduled Castes notified by the President are a heterogenous class. There is nothing in Article 15, 16 and 341 which prevents sub-classification for SCs if there is a rational for distinction and there is a rational nexus for the object sought to be achieved. State can sub- classify for the inadequate representation of some class," the Court stated. However, when a State does such sub-classification, the same has to be backed up by empirical data and should not be based on whims or to meet political ends. "State can adopt any measures to judge inter se backwardness. If the parameter is untouchability, it is not needed that inter se backwardness is also justified on the basis of that but State has to prove it by empirical and quantifiable data. State cannot act on its whims or political expediency and it is amenable to judicial review," the Court underscored.Based on all the above aspects, the Court proceeded to overrule the EV Chinnaiah judgment.Pertinently, four of the seven judges on the bench - Justices BR Gavai, Vikram Nath, Pankaj Mithal and Satish Chandra Sharma - called for identification of creamy lawyer among the SC/ST category to take them out of the fold of reservation. "State must evolve a policy to identify creamy layer among the SC ST category and take them out of the fold of affirmative action (reservation). This is the only way to gain true equality," Justice Gavai said in his concurring but separare judgment.Justice Vikram Nath too said the creamy layer principle applicable to OBCs should also apply to the SCs but the criteria for excluding creamy layer of SCs from the ambit of reservation could be different from that applicable to OBCs."I am also in agreement with the opinion of brother Justice Gavai that the creamy layer principle is also applicable to Schedule Castes and Scheduled Tribes and that the criteria for exclusion of creamy lawyer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes," Justice Nath said.Justice Mithal also echoed similar sentiments holding,"Reservation should be meant for only the first generation among a category and if the second generation has come up then benefits of reservation shall not be given and State should see if after reservation the second generation has come shoulder to shoulder with the general category."Justice Sharma too said that identification of creamy layer among SC/STs must become a constitutional imperative.In conclusion, the Court upheld the validity of laws which provide for such sub-classification in Punjab, Tamil Nadu and other States.The Court upheld the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 in this regard.Likewise, it upheld the Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State within the Reservation for the Scheduled Castes) Act, 2009 which provides reservation for Arunthathiyars in educational institutions and State government positions within the State's 18% reservation for Scheduled Castes. .BackgroundThe judgment came in a case concerning the validity of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which involved the sub-classification of reserved category communities. This law was struck down by the Punjab and Haryana High Court, leading to an appeal by the Punjab government before the top court.The laws were challenged on the basis of the 2005 Constitution Bench judgment in EV Chinnaiah v. State of Andhra Pradesh which had held that sub-classification of SCs is contrary to Article 341 of the Constitution which confers right only on the President to prepare the list of SC/STs.The judgment in Chinnaiah said that all SCs form a homogenous class and cannot be sub-divided.The matter was eventually referred to a seven-judge bench of the top court in 2020, after a five-judge bench disagreed with the decision rendered in the EV Chinnaiah case, which had deemed sub-categorisation of castes unconstitutional.The Central government had defended reservation for downtrodden classes in India, while informing that it is in favour of having sub-classification.The States said that sub-classification of SC/STs does not violate Article 341 since it does not tinker with the list prepared by the President. Article 341 merely deals with preparation of list of SCs and the scope of the Article ends there and it does not prevent States from sub-classifying SCs based on their backwardness to extend reservation benefits, it was contended by States..Judgment.The Court in its judgment today agreed with the States' argument and held that Article 341 does not create any deeming fiction that all SC/STs are a homogenous class."Article 341(1) does not create a deeming fiction. Deemed word does not create a legal fiction as it does not create an artificial distinction. Even if it is assumed so, fiction cannot be taken to legal consequences. The inclusion does not automatically lead to an internal homogenous class. Sub- classification does not violate article 341(2)," the Court held.Justice BR Gavai in his separate concurring judgment said that Article 341 does not deal with reservation but it only provides for identification of SC/STs."Basic error in EV Chinnaiah is that it proceeds to understand that Article 341 deals with reservation of seats. Nut it is only concerned with identification of SC/STs. I repeat that Articles 341 and 342 do not deal with reservation,"He, therefore, said that sub-classification by States is permissible if a particular caste within SC/ST is not adequately represented. "I observe that this court in Indira Sawhney has held that sub classification in more backward classes etc is permitted. In the same way if State comes to a conclusion that a caste is not well represented then it is the duty of the state to give preferential treatment to backward classes and if only a few enjoy benefits among SC ST then cannot the state step in? Yes it can," he ruled.Hardships and backwardness suffered by some of the scheduled castes is different by each caste, he underlined. "EV Chinnaiah is wrongly decided. It was argued that a party can give reservation to a sub caste to gain political mileage. But I do not agree with this. The ultimate objective would be to realise real equality. As has been held by judicial pronouncements it has to be supported by empirical data," he held.Justice Trivedi in her dissenting judgment held that States cannot tinker with the Presidential list and the same will amount to colourable exercise of power. "Under the guise of providing reservation states cannot tinker with presidential list and it will be nothing but colorable exercise of power which is impermissible under law. The whole doctrine of the colorable exercise of power is that what is not permitted directly cannot be done indirectly," she held.Affirmative action of States has to be within the constitutional fold, Justice Trivedi emphasised."Thus, I hold law laid down in EV Chinnaiah was correct and deserves to be affirmed," she said..Lawyers.Solicitor General Tushar Mehta with Advocate Kanu Agrawal appeared for the Union government. Advocate General Gurminder Singh and Additional Advocate General Shadan Farasat with Advocates Abhishek Babbar and Harshit Anand appeared for the State of Punjab.Senior Advocate Shekhar Naphade, Purnima Krishna and MF Philip appeared for State of Tamil Nadu. Senior Advocate Arun Bharadwaj appeared for the State of Haryana.Senior Advocates Gopal Sankaranarayan, Nidesh Gupta, Kapil Sibal, Sanjay Hegde, Shekhar Naphade, Salman Khurshid, Vijay Hansaria and Dama Seshadri Naidu argued in favour of sub-categorisation.Senior Advocate Manoj Swarup and Advocate Saket Singh appeared for respondents opposed to sub-classification.Senior Advocate KK Venugopal appeared for the Madiga Reservation Porata Samithi, in support of sub-categorisation.Senior Advocate Sidharth Luthra appeared for the Telangana government, and Senior Advocate Dr S Muralidhar appeared for the Andhra Pradesh government.Advocate Shivam Singh appeared for activist GM Giri in support of sub-categorisation.Advocates Shraddha Deshmukh and Rakesh Khanna appeared for intervenors in support of sub-classification..[Read Judgment]