Today the Supreme Court began hearing the issue of whether it is permissible to have a sub-division of Scheduled Castes. Punjab argued in favour of a sub-division for Balmikis and Mazhabi Sikhs.
TODAY, the Supreme Court began hearing the issue of whether there could be a permissible sub-division of Scheduled Castes to provide reservation under Articles15(4) and 16(4) of the Indian Constitution to the “weakest out of the weak”.
A seven-judge Constitution Bench 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.
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 ofIndra 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 underArticle 341 (Scheduled Castes), would be violative ofArticle 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).
What are the two questions identified by the court?
The CJI has identified two arguments that the Punjab government should address.
First, whether the notion of substantive equality allows the State to identify a relatively backward class of persons within backward classes to provide them with the benefit of the reservation.
Second, whether the federal structure, where the Parliament has designated castes and tribes for the entire country, leaves it to the states to designate within their territory relatively marginalised communities worth of welfare benefits.
What did Punjab argue today?
Gurminder Singh Gerry’s arguments
At the outset, the Advocate General for the State of Punjab, Gurminder Singh Gerry, highlighted two core issues before the court.
First, the efficacy of the measures, concerning reservations, taken by the State to eradicate inequality since independence. Second, the interplay of the constitutional provisions regarding the powers of the federal structure of the country for the identification and implementation of the measures so taken.
Before addressing the arguments, he listed two perspectives from which he said reservations need to be looked at.
The first perspective is of those who believe they are entitled to reservation. The other perspective is of those who are actually in need of reservation.
Gerry submitted that reservation is not an act of benevolence to the needy. “It is compensation for the centuries of suppression for the needy,” he asserted.
He explained that the effects of centuries of suppression cannot be corrected by themselves. So affirmative action is required on the part of the State.
The Punjab government is addressing the issue of why there is a need for affirmative action to provide reservation to the “weakest of the weak”, he said.
The caste system has led to a deep divide between the people and the ramifications of it are marginalisation and backwardness, he asserted.
Gerry submitted that reservation is one of the tools to cure backwardness, which allows for achieving the ideals of equality enshrined inArticle 14 (equality before law) of the Indian Constitution.
He underscored that it was not their case that those who got an opportunity failed to make use of it. Their case is: Did they [the people in need] even get a ‘chance’, ‘opportunity’ or ‘means’ to play?’ Did they even have a ‘path’ to the ground where the game was played?
Referring to an old saying which goes ‘you can only take the horse to the water, but you cannot make it drink’, Gerry said that for a horse that has never seen water, positive efforts need to be made for it to take the water.
He told the court that the cap of 50 percent in terms of the development of law is the “Lakshman Rekha” that cannot be crossed. The second consideration was that the 2006 Act was implemented on a preferential basis.
Considering both points, the law cannot be considered as excluding any community at the cost of others.
The CJI asked if Gerry could explain what preferential basis meant.
Gerry responded by stating that in a case where 10 seats are reserved for Scheduled Castes, five of them would go to Balmikis and Mazhabi Sikhs if candidates from these communities had applied.
If not, the seats would go to other Scheduled Caste communities.
He reasoned that this is not a case where if the seats do not go to Balmikis and Mazhabi Sikhs, they would not go to anyone else within the Scheduled Caste category.
To this, the CJI said that there is an element of exclusion, however, that exclusion is constitutionally justified.
He said: “The same exclusion that applies to reservation per se, there is necessarily an exclusion of the forward community. Yet, our constitutional jurisprudence permits it. Why? Because we treat equality as substantive equality and not formal equality.”
He added: “Reservation is not a breach of equality. It is in aid of equality.”
He clarified that the issue is not whether the 2006 Act leads to the exclusion of the backward community. Rather, he asserted, the issue is whether the exclusion of certain backward communities to provide reservation to those that are relatively more backward is justified or not.
Shadan Farasat’s arguments
Additional Advocate General for Punjab Shadan Farasat told the court that it could use two approaches to the case. The first approach ensures that the benefits go to the right people, those who are in need. The court here is primarily concerned with preventing the misuse of reservations. This is called the cautious approach.
The second approach, which he termed as the deepening approach, is for the court to determine how deep the impact of reservation is to all groups.
On the second approach, he argued that sub-classification is constitutional, whatever the route the court takes to determine it.