The Supreme Court’s 6:1 majority ruling overruled a 2004 judgment in E V Chinnaiah vs State of Andhra Pradesh which said there cannot be sub-classification of Scheduled Castes and Scheduled Tribes for reservation In a landmark 6-1 majority ruling Thursday, a seven-judge Constitution Bench of the Supreme Court held that Scheduled Castes do not constitute a socially homogeneous class and can be sub-classified by States for the purpose of providing reservation to the less privileged among them. It said there must be a “rational principle” for such differentiation and the principle must have “a nexus with the purpose of sub-classification”. Four of the majority ruling judges also favoured excluding the creamy layer from SCs and STs.

The majority verdict by Chief Justice of India D Y Chandrachud and Justices B R Gavai, Vikram Nath, Pankaj Mithal, Satish Chandra Sharma and Manoj Misra overruled the 2004 judgement in E V Chinnaiah vs State of Andhra Pradesh, wherein it was held that Scheduled Castes constituted a homogeneous group and cannot be sub-categorised. Justice Bela M Trivedi was the lone dissenter who, in her verdict, said Scheduled Castes constituted a homogeneous class and “cannot be tinkered with by the States”. The matter reached the 7-judge Bench after a 5-judge Bench, on August 27, 2020, in the State of Punjab vs Davinder Singh, said the judgement in Chinnaiah requires to be revisited by a larger Bench since it had failed to consider significant aspects with a bearing on the issue. The majority rejected the argument that once enumerated in the Presidential List under Article 341 of the Constitution, the Scheduled Castes constitute a homogeneous class, which is incapable of further subdivision/sub-classification and that any attempt to sub-categorise them would amount to tinkering with the Presidential List, in violation of Article 341 (2) and Article 14 of the Constitution. Writing for himself and Justice Misra, CJI Chandrachud said Article 341 does not create an integrated homogeneous class. “Empirical evidence indicates that there is inequality even within the Scheduled Castes. The Scheduled Castes are not a homogeneous integrated class,” he said. The ruling said “the power of Parliament to vary the list includes not merely the power to exclude or include ‘any caste, race or tribe’ but also the power to exclude or include ‘parts of or groups within any caste, race or tribe… Article 341(2) bars the State Legislature from removing or adding castes from and to the List respectively. Sub-classification within the Scheduled Castes for the purposes of affirmative action, including reservation, does not include or exclude any caste or group from the List”.

 It said “the State, in exercise of its power under Articles 15 and 16, is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified…”. “While the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot in other words merely act on its whims or as a matter of political expediency. The decision of the State is amenable to judicial review,” it said. The CJI said while the State can sub-classify based on inadequate representation of certain castes, it “must establish that the inadequacy of representation of a caste/group is because of its backwardness”. For this, the State must collect data on the inadequacy of representation in the “services of the State”, he said, adding “if the objective of Article 16 (4) is to be achieved in the truest sense, the inadequacy of representation must not be determined only on the basis of the total number of members of the backward class in the services of the State but by assessing the representation of the class across various posts”.

The ruling also pointed out that the inference in the M Nagaraj & Others vs Union Of India & Others, October 2006 case, “that cadre must be taken as the unit to determine inadequacy of representation … is misplaced”. It said “the cadre as a unit was considered only for the purpose of preparation of rosters to draw a balance between the reserved and open seats”. In a separate concurring judgement, Justice Gavai said, “I find that the attitude of the categories in the Presidential List opposing such a sub-classification is that of a person in the general compartment of the train. Firstly, the persons outside the compartment struggle to get into the general compartment. However, once they get inside it, they make every attempt possible to prevent the persons outside such a compartment from entering it.” He said “in fact, what the people belonging to the categories who are availing of large chunk of reservations and denying a special treatment to the less privileged among them are doing, is what the people from the higher castes have done to these people for centuries as a result of which backward classes were kept away from the mainstream of society for ages, for no fault of theirs”. Justice Gavai said “the categories in the Presidential List who have already enjoyed a major chunk of reservation should not object to the State providing a special treatment to those who have been deprived of such a benefit and particularly when such a benefit is not being taken away from them. Only part of that benefit is being reserved for percolating the same to the more disadvantageous and less represented”. He said “to achieve real equality as envisaged by this Court in various judicial pronouncements, sub-classification amongst the Scheduled Castes for giving more beneficial treatment is wholly permissible under the Constitution”. Justice Gavai said he is “therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as 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”.

While concurring with the majority view, Justice Pankaj Mithal, in a separate judgement, called for a “fresh re-look” at the existing reservation policy “and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities”. Until then, he said, “the system of reservation as prevailing may continue to occupy the field with power to permit sub-classification of a class particularly Scheduled Caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful”. Justice Mithal said “statistics proves that the deprived and the marginalised persons have not been able to achieve the benefit of reservation which is permissible at higher level as about 50% of the students from the most backward classes drop out of school before Class-V and 75% drop out before Class-VIII” and “only the children of some of the castes, who are already affluent or urbanised, are able to obtain higher education and the benefits of reservation”. The policy, he said, has also “burdened the judiciary at all levels specially the High Courts and the Supreme Courts with enormous litigation” besides leading to agitations in which “the peace and tranquillity of the entire country, at times, stood disturbed”. Justice Mithal said that “to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature” and “the misconstruction of the varna system as a caste system was a social defect that crept in with time and was not considered to be good as it divided the society and brought about discrimination and inequality”. He said “what is conceded once to appease any class cannot be taken back. So are the benefits extended to the reserved category of persons under the Constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also”. Pointing out that reservation is one of the modes of helping or uplifting the status of the OBCs/SCs/STs, he said “anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as ‘Anti Dalit’.” Justice Trivedi, in her dissenting judgement said the law laid down by the 5-judge Bench in Chinnaiah, “is the correct law and deserves to be confirmed”. She said there was no reason for the Bench in Davinder Singh to make the reference “that too without assigning any reason, much less cogent reason for their disagreement”. She said “the etymological and evolutionary history and the background of the nomenclature ‘Scheduled Castes’, coupled with the Presidential orders published under Article 341 of the Constitution, make the ‘Scheduled Castes’, a homogeneous class, which cannot be tinkered with by the States”.