A seven-judge constitution bench headed by Chief Justice of India D Y Chandrachud will start to hear the case pertainting to the sub-categorisation among Scheduled Castes (SCs) from next week.
States have argued that there are some castes that are grossly underrepresented despite reservation in comparison to the so-called dominant scheduled castes. They want to create a separate quota for some castes within the SC quota of 15% to ensure that the benefits are equitably distributed among all castes.
The top court will decide if states have the power to create these sub-classifications when providing reservations or if such power is vested only with the President.
In 1975, the Punjab government issued a notification dividing its 25% SC reservation at that time into two categories. In the first category, seats were reserved solely for the Balmiki and Mazhbi Sikh communities, which were and continue to be considered two of the most economically and educationally backward communities in the state. As a result, they were to be given first preference for any reservations in education and public employment.
The second category consisted of the rest of the SC communities, which didn’t get this preferential treatment.
It was one of the first instances of existing reservations being ‘sub-classified’ by a state to provide benefits to certain communities beyond what was already being offered to scheduled caste communities as a whole.
While the notification remained in force for nearly 30 years, it ran into legal hurdles when in 2004, a five-judge constitution bench struck down a similar law introduced by Andhra Pradesh in 2000. In ‘E.V. Chinnaiah v State of Andhra Pradesh’, the Supreme Court struck down the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 for being violative of the right to equality. The law contained an expansive list of scheduled caste communities identified in the state and the quota of reservation benefits provided to each of them.
The Court held that the sub-classification would violate the right to equality by treating communities within this category differently and said that the SC list must be treated as a single, homogenous group. The rationale was that since the Constitution classifies certain castes in a Schedule as they historically faced discrimination due to the practice of untouchability, they cannot be treated differently from one another.
The court also drew attention to Article 341 of the Constitution which gives the President the power to create a list of SC communities for the purposes of reservation. The five-judge bench held that this meant states did not have the power to “interfere” or “disturb” this list, including through sub-classification, and that doing so would violate Article 341.
Two years after the apex court ruling, the Punjab & Haryana High Court in ‘Dr. Kishan Pal v. State of Punjab’ struck down the 1975 notification.
In October 2006, four months after the Punjab & Haryana High Court struck down the notification, the Punjab government attempted to bring back the law by passing the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. This Act reintroduced the first preference in reservations for the Balmiki and Mazhbi Sikh communities.
In 2010, the High Court once again struck down this provision. The Punjab government then moved the Supreme Court against the HC ruling arguing that the Supreme Court in 2004 had incorrectly concluded that Scheduled Caste quota cannot be sub-classified.
In 2014, the Supreme Court in ‘Davinder Singh v State of Punjab’, referred the appeal to a five-judge constitution bench to determine if the 2004 E V Chinnaiah decision required reconsideration since it needed an inquiry into the interplay of several constitutional provisions. Interpretation of the Constitution requires a bench of at least five-judges of the Supreme Court.
Reconsidering the E V Chinnaiah ruling
In 2020, the constitution bench headed by Justice Arun Mishra held that the court’s 2004 decision in E V Chinnaiah required reconsideration. The ruling noted that the Court and the state “cannot be a silent spectator and shut its eyes to stark realities.” The ruling disagreed with the premise that Scheduled Castes are a homogeneous group and said that there are “unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.”
Crucially, since the E V Chinnaiah decision, the concept of a “creamy layer” has also trickled down to SC reservations. In the landmark 2018 ruling in ‘Jarnail Singh v Lachhmi Narain Gupta’, the Supreme Court upheld the concept of “creamy layer” within SCs too. The ‘Creamy layer’ concept puts an income ceiling on those eligible for reservations. While this concept applies to Other Backward Castes (OBC), it was applied to promotions of SCs for the first time in 2018.
States have argued that the sub-classification is essentially an application of the creamy layer formula, where instead of excluding the better-off castes from the Scheduled Caste list, the state is merely giving preferential treatment to the most disadvantageous castes.
Since the Davinder Singh bench was also of five-judges (same as E V Chinnaiah), a larger seven-judge bench is now hearing the issue — only a larger bench’s judgement can prevail over the decision of a smaller bench.
Apart from Balmikis and Mazhabi Sikhs in Punjab and Madiga in Andhra Pradesh, Paswans in Bihar, the Jatavs in UP, and Arundhatiyars in Tamil Nadu will also be impacted by the sub-classification strategy.