On Day 2 of the hearings on the sub-classification of Scheduled Castes, Kapil Sibal and others continued to bat for sub-classification.
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ON Day 2 of the hearing on whether sub-classification within Scheduled Caste is ‘constitutionally justified’ through the substantive equality enshrined in Articles 14 and 15 and whether is it ‘permissible’ for a state to provide reservation to the “weakest of the weak” under Articles 15(4) and 16(4) of the Constitution, senior advocate Kapil Sibal began his arguments before the Supreme Court in favour of sub-classification.
Yesterday, the Advocate General for Punjab, Gurminder Singh Gerry, and Additional Advocate General for Punjab, Shadan Farasat, argued in favour of a sub-classification within the Scheduled Castes.
A Bench of seven judges headed by the Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising Justices B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma is hearing the matter.
Background
The issue arises from a reference made by a five-judge Bench of the Supreme Court in 2020 in The State of Punjab & Ors versus Davinder Singh & Ors, (Davinder Singh) against its other judgment in E.V. Chinnaiah versus The State of Andhra Pradesh & Ors, (2004) which held that any further division of the Scheduled Caste category is not permissible because it a homogenous class.
The Bench that pronounced the Davinder Singh judgment consisted of Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose.
In Davinder Singh, the issue before the court was a challenge to Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 (2006 Act).
The provision was based on a May 5, 1975 circular issued by the Punjab government, which provided that out of the reserved seats for Scheduled Castes, 50 percent of the vacancies would be offered to Balmikis and Mazhabi Sikhs.
Both Dalit communities are some of the most marginalised communities within the Scheduled Castes in Punjab. Their occupational profile is traditionally linked to sanitation and cleaning work.
Statistics indicate that Scheduled Castes in Punjab constitute approximately 32 percent of the total population. Nationally, 4.2 percent of the Scheduled Castes are from Punjab.
Of the 32 percent Scheduled Caste population in Punjab, 31.5 percent are Mazhabis Sikhs. Whereas, Balmiki Hindus make up 11 percent.
The circular was subsequently challenged and struck down by a division Bench of the Punjab and Haryana High Court on August 25, 2006.
A special leave petition against the high court Order was dismissed by the Supreme Court on March 10, 2008.
Meanwhile, the Punjab government notified the 2006 Act, which made similar provisions as were made in the circular.
It stipulated that 50 percent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst Scheduled Caste candidates.
Section 4(5) of the 2006 Act was challenged before a division Bench of the Punjab and Haryana High Court, which struck down the provision. It relied upon the decision of E.V. Chinnaiah.
In E.V. Chinnaiah, the Supreme Court relied on its judgment of Indra Sawhney versus Union of India & Ors (1992). In Indra Sawhney, it was held that it is permissible to make sub-classifications within socially and educationally backward classes.
E.V. Chinnaiah was decided by a Bench of Justices N. Santosh Hedge, S.N. Variava, B.P. Singh, H.K. Sema and S.B. Sinha.
Based on the Indra Sawhney judgment, the high court held: “We do not think the principles laid down in Indra Sawhney case, for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment has specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes.”
It stated that any sub-classification within the Scheduled Castes, which is declared so by the President under Article 341 (Scheduled Castes), would be violative of Article 14 (equality before law) of the Constitution.
Under Article 341, the President may issue a notification, after consultation with the Governor, in respect of a state or Union territory, specifying the list to be included in the Scheduled Caste under Article 341(1).
In Davinder Singh, the Supreme Court, however, disagreed with E.V. Chinnaiah’s judgment and stated that the latter had applied the reasoning of Indra Sawhney incorrectly.
The court stated that the Scheduled Castes and Scheduled Tribes are admittedly backward, and that is why, the same yardstick as applied to the socially and educationally backward classes would apply to the most backward castes and tribes within the umbrella category of Scheduled Castes and Scheduled Tribes.
The Supreme Court held that preferential treatment within the Scheduled Castes would not be tantamount to excluding other classes as total deprivation caused to any of the castes in the list of the Scheduled Caste under Article 341(2).
It held: “Caste is nothing but a class. It is the case of classification to provide benefit to all and those deprived of the benefit of reservation, being the poorest of the poor.”
On the basis of this, the Supreme Court upheld the constitutionality of the provisions of Section 4(5).
Kapil Sibal’s arguments
Does the presidential notification for designating Scheduled Castes have a corelation with reservations?
At the outset, Sibal told the court that the Constitution makers knew that the deeply-rooted caste system was not going to end anytime soon. That is why, he pointed out, the Parliament was given the power of reservations way back in the 1950s.
He then proceeded to directly argue that the E.V. Chinnaiah made two wrongful assumptions.
First, the court incorrectly considered Scheduled Castes as a homogeneous group without any factual or numerical data supporting it. Sibal told the court that the element of heterogeneity is inherent within Scheduled Castes.
To this, the CJI pointed out that homogeneity as regards the Scheduled Castes is mainly to designate them as a class to whom reservations have been conferred.
Justice Gavai too responded that there may be common elements of social and economic backwardness in terms of considering Scheduled Caste as a homogenous class. However, those elements may still vary from one person to another.
Sibal referred to a list of castes that have been ostracised for centuries to make an argument that there is no homogeneity in terms of the social, economic and educational parameters.
To this, the CJI responded that there is heterogeneity in terms of the indicators of backwardness such as preexisting occupation and availability of resources.
On this, Sibal took the court to the judgment of the Supreme Court in State of Kerala and Anr., versus N.M. Thomas & Ors (1975).
He pointed out that in N.M. Thomas, Justice V.R. Krishnaiyer opined in terms of Article 16(4) that the Scheduled Castes and Scheduled Tribes 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.”
Further, the court had added: “Article 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.”
Sibal told the court that this paragraph had been quoted by Justice Hegde in E.V. Chinnaiah but still, he concluded that Scheduled Castes are a homogenous class.
Second, he pointed out that the E.V. Chinnaiah wrongly co-related the power of the President to declare certain castes as Scheduled Castes within Article 341(1) with the power to provide reservations under Articles 16(4) of the Indian Constitution.
Sibal submitted that designation as Scheduled Caste has nothing to do with reservation, the preliminary power of which rests with the Union Parliament under Article 16(4).
To this, Justice Gavai stated that the power of reservation as per Indra Sawhney judgment may be exercised by the Executive.
Sibal responded that that is not the case because the Parliament has to necessarily make a law for the Executive to exercise that power.
He added that assuming the Executive could exercise the powers, it may not be through a Presidential notification under Article 341.
Justice Gavai, however, disagreed and asserted that unless a particular caste is designated by the President as a Scheduled Caste under Article 341, it could not avail reservation.
To this, CJI responded that designation as Scheduled Caste by the President under Article 341 is a ‘necessary condition’ for reservation.
He added that this may, however, not be sufficient in itself. It is because after being designed as a Scheduled Caste, there still exists an ‘enabling power’ with the legislature or the Executive.
Scheduled Caste may be a homogenous class for designation under Article 341 but the vocations of discrimination may be different
Sibal continued to argue that Scheduled Castes do not form a homogenous class. He narrated the historical origins of Mazhabi Sikhs. As per Sibal, Dalits form 32 percent of Punjab population and their share in the population of Punjab is more than the share of Dalits in the population of any other state.
Sibal said that the origin of Mazhabi Sikhs’ could be traced to Guru Tegh Bahadur, the ninth of the ten gurus of Sikhism. He said that Guru Tegh Bahadur’s body was mutilated and the one who took his body to Guru Govind Singh, the tenth Guru, was a “chamar” (untouchable).
Sibal told the court that Guru Govind Singh embraced the person who brought the body and that is how Mazhabis, who were originally Hindus, became a part of the Sikh community.
He said: “Mazhabi means faithful.”
To this, Justice Gavai remarked: “We will also need to cater to chamars in Punjab.”
Gopal Sankaranarayanan’s arguments
Continuing from Sibal’s argument, senior advocate Gopal Sankaranarayanan emphasised the historical context for identifying Scheduled Castes and Scheduled Tribes.
At the outset, he briefly enumerated some points that he felt the court needed to look at. First, the historical context of how certain castes came to be referred to as Scheduled Castes.
Sankaranarayanan pointed out that the word comes from the census report, 1891 and then the Government of India Act, 1935.
Further, he said that this would answer the question that the court posed yesterday on how the term ‘tribes’ comes within Scheduled Caste.
He referred to the census report of 1891 and 1931 and pointed out that in the former case, certain classes were identified as “Depressed Classes” whereas in the latter case, certain classes were identified as “Primitive Tribes”.
He also referred to a 1930 statutory report that dealt with the Depressed Classes in detail and looked at the various kinds of disabilities that the group had been suffering.
The 1891 report primarily looked at the occupation of the people and found that certain “Depressed Classes” such as Rajputs and Jats suffered from occupational discrimination. At that time, Rajputs and Jats were referred to as tribes.
The term ‘Depressed Class’ was eventually recognised as Scheduled Castes in the 1931 report. Whereas, the 1931 report also identified Primitive Tribes, which were later referred to as Scheduled Tribes.
Because of this, in Scheduled I of the Government of India Act, 1935 various communities were represented.
Second, he submitted that since the very beginning, the Scheduled Castes and Scheduled Tribes formed an integral part of the constitution-making process, starting from the Poona Pact, 1932.
The pact was a political settlement arrived at by Dr B.R. Ambedkar and Mahatma Gandhi to not have separate electorates for the Depressed Class.
Sankaranarayanan told the court that Articles 15 and 17 (abolition of untouchability) have provisions inspired by the Poona Pact.
Here he pointed out that the court must acknowledge that there is a difference in how Articles 15 and 16 apply.
He explained that these provisions are not automatically applied, that is, they do not automatically give a right to a member of a backward community. It is for the states to make a law under Articles 15(4) and 16(4).
Third, Sankaranarayanan told the court that in E.V. Chinnaiah the court concluded that Scheduled Castes are a homogenous group based on an editorial error.
Arguments of senior advocate KK Venugopal
Senior advocate K.K. Venugopal informed the court that he had appeared before the Andhra Pradesh High Court which upheld the sub-categorisation.
Attorney General of India’s argument
Attorney General of India R. Venkataramani clarified the position of the Union government on sub-classification. He argued that Article 341 should not be seen as a constraint to what needs to be done by the State under Article 16(4).
He stated that the position in E.V. Chinnaiah is that once the classes are notified, they would constitute a homogenous group that would freeze to extend benefits to those in need within them.
As per the Attorney General’s argument, the sub-division within the Scheduled Caste would require the State to provide distinct treatment based on the enquiry of the need and desperation required.
Solicitor General of India’s argument
Solicitor General of India Tushar Mehta confined his arguments to whether a sub-classification is permissible or not.
He referred to various judgments of the court and stated that with time, the court has identified the issue of sub-classification as a matter of equality.
Arguments of Shekhar Naphade
Senior advocate Shekhar Naphade represented the State of Tamil Nadu and spoke on The Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions Including Private Educational Institutions And of Appointment Or Posts in The Service Under The State Within The Reservation For the Scheduled Castes) Act, 2009.
He told the court that Arunthathiyars is a group of castes under the 76 Scheduled Castes notified under Article 341.
Naphade argued in favour of the sub-classification and informed the court that the Tamil Nadu government extended reservation to Arunthathiyars on the ground that on the basis of a state report, it was found that they had not received the benefit of reservation.
Naphade submitted that the E.V. Chinnaiah was wrongly interpreted under Article 341. He stated that after the President notifies the list under Article 341, the States’ legislative competence gets triggered under Article 246 read with List II and III of Schedule VII.
Senior advocate Dama Seshadri Naidu, as an intervenor, also argued a similar position that Arunthatiyas form a sub-division of the Scheduled Castes as they have been treated as Untouchables.
