After three days of hearing on the issue of whether sub-categorisation within Scheduled Caste is permissible, a Supreme Court Bench of seven judges has reserved the judgment.
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ON Day 3 of the hearings, senior advocate Manoj Swarup began his arguments against sub-classification within Scheduled Castes.
A Bench of seven judges headed by the Chief Justice of India (CJI) Dr D.Y. Chandrachud is currently hearing a reference made by a five-judge Bench in 2020 against its 2004 judgment which held that Scheduled Castes are a homogenous class and sub-classification within the class is a violation of Article 14 of the Indian Constitution.
The Bench also comprises Justice B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma.
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 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.”
Based on this, the Supreme Court upheld the constitutionality of the provisions of Section 4(5).
When castes are identified as Scheduled Castes, they become one
At the outset, Swarup told the court that the “birth point” of the identification of Scheduled Castes under Article 341 is indeed heterogeneous.
It is so because Article 341 does not just identify castes but races and tribes as well as Scheduled Castes.
As per Article 366, Scheduled Castes means “such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of this Constitution.”
He added that despite the starting point of the scheme of Article 341 being heterogeneous, the court must focus on the words ‘deemed’ used in the provision twice.
In Article 341(1) says that the President, with respect to any state or Union territory, and where it is a state, after consultation with the governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that state or Union territory, as the case may be.
Similarly, Article 366 also uses the word ‘deemed’.
Swarup argued that the purpose of using the word deemed was to specify that after the castes, races or tribes had been identified as Scheduled Caste, they would become a homogenous group.
He reasoned that at the birth point, in 1950, two colours were identified, the colour of Scheduled Castes and the colour of Scheduled Tribes. The castes, races or tribes existing within the subcontinent fell within the shades of the two colours. That is why even though tribes are included within the two categories, those tribes that were more akin to castes fell within the colour of Scheduled Castes.
He added that homogeneity begins at a point when the different shades fall within the two colours identified by the Constitution as Scheduled Castes and Scheduled Tribes.
As per Swarup, there is inherent heterogeneity within castes, races or tribes. But the moment they are either deemed as Scheduled Castes or Scheduled Tribes through an elaborate enquiry by the President in consultation with the governor, they become one homogenous unit.
He told the court that states are not mute spectators and they have a say in the enquiry that takes place under Article 341.
To this, the CJI responded that there is no such real caste as a Scheduled Caste in India. He added that the Constitution creates an artificial mould in the form of Scheduled Castes or Scheduled Tribes into which it puts existing castes, races and tribes.
He remarked that the word deemed is not for homogeneity but for the purpose of being considered as one combination under the Constitution.
The CJI asked the purpose of Article 341. Swarup answered that the purpose of Article 341 is identification but there are common traits that could be found in those combined as Scheduled Castes.
The CJI asserted that the purpose of Article 341 is identification alone.
He asked if Swarup could identify the common traits he had mentioned. Swarup identified two common traits backwardness and discrimination.
Further, he emphasised that Article 342(2) only uses the terms ‘include’ or ‘exclude’ in terms of castes, races or tribes that could be included or excluded by the Parliament from the list of Scheduled Castes.
He added that under Article 338, we now have a National Commission for the Scheduled Castes, which can look into the fresh candidates that the states wish to include in the list.
Interplay between Articles 341 and 16(4)
On the constitutional interlink between Articles 341 and 16(4), Swarup argued that the latter uses the term ‘Backward Class’ which encompasses Scheduled Castes, Scheduled Tribes and Other Backward Classes.
He pointed out that it is not permissible to read individual entries under Article 341 as ‘Backward Classes’ because Scheduled Castes are to be treated as one class under the Constitution.
This distinction indicates that if individual entries of Article 341 were to be recognised as Backward Classes, then it is permissible for a state to take special measures regarding them. Otherwise, if all the entries are to be treated as a class, a state could only take special measures for the class as a whole.
To this, the CJI remarked that the larger scheme of Article 16 indicates that states have the role to implement special measures for the Backward Classes.
Is the power of sub-categorisation implicit in Article 16(4)?
Justice Gavai asked Swarup if a state could provide preferential treatment in relation to Article 341.
Swarup answered that this exercise would be barred by Article 341 because the role of a state is limited to the Presidential inquiry that takes place under Article 341(1).
Justice Gavai responded that this would perpetuate inequality.
He explained that after the judgment in N.M Thomas, the law would look at the larger equality scheme under the Constitution. So, even if Article 16(4) was not present, states would be able to take special measures, reading Article 14 together with Article 16(1).
Justice Nath inquired whether under Article 16(4), a state could identify other classes as Backward Classes for the purposes of Articles 341, 342 (Scheduled Tribes) and 342A (Socially and Educationally Backward Classes).
As per Justice Nath, the term ‘Backward Class’ is used in its widest meaning.
Swarup told the court that as per Indra Sawhney, the term ‘Backward Class’ should not be read as limiting the power of the states to provide reservations.
At this point, the CJI and Justice Trivedi both added that Article 16(4) uses the terms ‘backward’ and ‘class’ and not caste. However, both asserted a different point.
As per the CJI, Backward Class is a broader term. Whereas, Justice Trivedi emphasised that Article 16(4) uses the term ‘class’ for the purpose that a state could provide special measures to a class and not to a singular caste.
Based on all these arguments, the court asked if Indra Sawhney continues to hold good in law considering that it allows sub-categorisation within Other Backward Classes.
The court asked if Indra Sawhney had been overturned through the Constitution (One Hundred and Second Amendment) Act, 2018, which added Article 342A.
Swarup said that the 2018 amendment substantially overruled Indra Sawhney. However, the court did not agree and stated that Indra Sawhney continues to be good in law.
The CJI explained that Article 342A basically bifurcates the powers to give powers to state governments.
He asserted that the 2018 amendment could have taken away the power of sub-categorisation of the Other Backward Classes but they chose not to do it.
This indicates that the power of sub-categorisation is implicit in Article 16(4) because the court had identified it even before Article 342A in Indra Sawhney. The power is located in Article 16(4).
Rejoinder arguments
Arguments of Gurminder Singh Gerry
Advocate General of Punjab, Gurminder Singh Gerry, countered the argument of Swarup that Scheduled Castes form a homogenous group because their ‘birthplace’ is Article 341.
Gerry said that this is factually and legally incorrect. He said the fact that more castes, races or tribes could be added to the list under Article 342(2) by the Parliament is indicative of the fact that it is not a homogeneous category.
On the argument of the term ‘deemed’, he said that by mere inclusion in the Article 341 list, a caste’s ‘birthmark’ does not get obliterated. The caste remains what it was, except that now it has obtained ‘deemed’ status, thereby accruing benefits.
The deemed status of a Scheduled Caste could be removed by the Parliament under Article 342(2).
Arguments of Shadan Farasat
Additional Advocate General of Punjab Shadan Farasat briefly referred to how the court in Indra Sawhney defined backwardness.
He said that there are two levels of identification. First, who is defined as backward. Second, who is defined as backward within the backward.
He stated that the first level of identification of who is backward would not apply to Scheduled Castes because there is already a presumption of backwardness.
However, the second level of identification equally applies to Scheduled Castes and Scheduled Tribes along with the identification of inadequate representation.
Arguments of Kapil Sibal
Senior advocate Kapil Sibal countered the arguments on homogeneity. He submitted that if the Scheduled Castes are to be considered homogenous, then the distribution of benefits must be equal or else it will violate Article 14.
He pointed out that the percentage of reservations for all groups categorised as Scheduled Castes is not equal because the factor of Untouchability is not the same.
Lastly, he concluded that Scheduled Castes is a class only for the purpose of identification under Article 341 and not for the purpose of providing occupational benefits under Article 16(4).
What has happened so far?
On Day 1, the court stated that the parties need to acknowledge that sub-division within Scheduled Castes is a form of exclusion.
It added that the parties will have to determine whether that exclusion is constitutionally justified or not.
Based on this, it identified two core issues. First, whether the substantive equality enshrined in Articles 14 and 15 allows a sub-classification within the Scheduled Castes.
Second, whether the federal structure allows for states to provide reservation to the “weakest of the weak” under Articles 15(4) and 16(4) of the Constitution.
Yesterday, the parties along with the court contemplated whether the designation of some castes as Scheduled Castes by the President under Article 341 has anything to do with the enabling power of states to provide reservation as affirmative action under Article 16(4).
The matter has been reserved for judgment.
