States can introduce measures for sub-categorisation of SC/STs under Article 16(4): Supreme Court reserves judgment

The Supreme Court on Thursday reserved its verdict in a case involving questions on the legality of sub-classifying reserved category groups, viz. the Scheduled Castes and Scheduled Tribes [State of Punjab and ors vs Davinder Singh and ors]..A 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 reserved the judgment after three days of hearing..During Thursday's hearing, the CJI made a distinction between the "sub-classification" and "sub-categorisation" of communities. The CJI added that States may have to sub-categorise reserved category communities to ensure that reservation benefits reach more backward groups. "Article 342A (dealing with social and economically backward classes) deals with sub-classification and not sub-categorisation. The hypothesis is that there is nothing in 342A dealing with sub categorisation. Despite that, Indra Sawhney recognised categorisation of backward and more backward. Even more than the amendment (which introduced Article 342A), this Court recognised it and this Court located the power of sub-categorisation in Article 16(4). Otherwise what will happen is that the more advanced among the SCs will grab all the benefits," he said. .The observation was made in response to submissions by Senior Advocate Manoj Swarup who had argued that Article 341 (President's power to notify Scheduled Castes; parliament's power to include or exclude from list of Scheduled Castes) bars States from making sub-groups within Scheduled Castes..Swarup also argued a group notified as a Scheduled Caste becomes a homogenous group once they are so notified for quota benefits.The Court expressed reservations over this view. The CJI observed that a Scheduled Caste cannot be viewed as a single caste."What the Constitution does is that it deems certain castes as SCs and thus some are put in an artificial mould. The Constitution did not create another caste as it would be contrary to the sociological profile. Deeming is not for any other reason but for them to become a scheduled caste ... The only thing common is that they all have faced social discrimination.. apart from this what are the common traits? Social and education backwardness, age of marriage of women, mortality rate, life expectancy," the CJI observed.The Court also pointed out that although Article 341 left the designation of SCs to the Parliament, Article 16 (States can introduce reservations in employment for any backward class of citizens) still gave an enabling role to States."16(4) is an enabling provision. Thus, if States decide not to give reservation then it is the end of it. If States now want to give preferential treatment to a caste within a caste, then can Article 341 come as a bar?" Justice Gavai asked.The judge added that any such bar may lead to inequality."Would it not fall foul of the basic purpose of Article 14?" he remarked."Why are you resisting it? Sub-categorisation will aid in others within that caste also to come up, otherwise only the one segment will get the benefits," Justice Vikram Nath weighed in."There can be a class within class. Just that it cannot be an artificial class. They have to show it is a class by objective criteria. The consequences (if there is no proper sub-classification) will be the capture of benefits by a segment of dominant castes within a caste," the CJI further observed.He added that Article 16(4) makes it very clear that SCs and STs are very distinct from socially and educationally backward classes..The Court was dealing with 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 matter was eventually referred to a seven-judge bench of the top court in 2020. The seven-judge bench was called to hear the case after a five-judge bench disagreed with the decision rendered in the EV Chinnaiah case which had deemed sub-categorisation of castes as unconstitutional.On the first day of the hearing, the Supreme Court had orally observed that the Punjab government's law may have been aimed at excluding reserved category candidates who may have already benefited due to the relaxations granted by law.On February 7, the Central government defended reservation for downtrodden classes in India, while informing that it is in favour of having sub-classifications among Scheduled Tribes (STs) and Scheduled Castes (SCs)..During yesterday's hearing, the CJI noted that the inclusion or exclusion of communities should not be reduced to appeasement politics."If there are a host of backward classes, can the State pick out only two, for example? Those who are excluded can always challenge under Article 14 but the State can rebut by saying we are looking at the extent of backwardness. But while conferring benefits you cannot exclude, else it will become a dangerous trend of appeasement. The idea is not for popular politics to play out in this. We will have to tailor it by laying down criteria", the CJI said..Senior Advocate Sanjay Hegde argued that being in the reserved category would be meaningless without any reservation benefits. "If one continues to be a scheduled caste in the list, in name only, but no benefits are there for me, while it is there for other scheduled caste in the same list ... then I am rendered with the stigma of being an SC but there are no consequent benefits. This is like reverse pran prathistha," he said. The CJI then clarified that the challenge is not to the validity of sub-grouping reserved communities but to the manner in which it is carried out. One of the petitioners in the Chinnaiah case argued that reservation for Scheduled Castes does not come under Article 16(4). The bench refuted this strongly."If your argument is accepted, then reservation in educational institutions also goes away. What happens to the entire number of cases from NM Thomas onwards? We will go back to the era of Devdasis etc," Justice Gavai said..Punjab's Advocate General Gurminder Singh then stated,"Being born in the list will not give them the character of being homogenous. You cannot permanently designate someone as Scheduled Caste under the constitution. As long as the caste is there under article 341, a deemed status is attached to it."The CJI remarked then said he is not sure if recognising a class within a class is something that Article 16(4) permits."16(4) uses the term 'class.' This term 'class', for the purposes of reservation under 16(4), is different constitutionally. In Article 341, you identify different branches of castes in one schedule and that is scheduled caste and each is a caste on its own. 16(1) says there shall be equality of opportunity and thus they shall also have equality of opportunity," Senior Counsel Kapil Sibal said in response. Senior Advocate Nidhesh Gupta strongly contested Sibal's contention."If this point is accepted, then the entire discussion in Article 16(4) will be lost," he said..The bench then proceeded to reserve its judgment in the case..[Follow our live-coverage of today's hearing]