On August 1, a significant judgment was delivered by a 7-judge bench of the Supreme Court wherein, by the ratio of 6:1, it was held that sub-classification of Scheduled Castes (SC) is permissible to grant separate quotas for more backwards within the SC categories. The seven-judge bench was led by Chief Justice of India DY Chandrachud and comprised Justices B R Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma. Notably, a dissenting minority judgment was delivered by Justice Bela Trivedi. While this majority verdict has been widely welcomed what has been seriously critiqued is the unsolicited reference to the contentious and problematic “creamy layer among SCs” by four of the seven judges. More of that later in the piece.
As per the majority view of the bench, by allowing for the sub-categorisation of scheduled castes in reservations, a wider protection for underrepresented groups will now be possible. The detailed judgment in the case, which runs into a total of 565 pages, consists of six separate concurring judgments. The majority view has overruled the 18 year-old, E.V. Chinnaiah v. State of A.P., [(2005) 1 SCC 394] judgment, wherein a five-judge bench of the Supreme Court had held that Scheduled Castes form a homogenous class and there cannot be any sub-division amongst them. The five judge bench had further held that such sub-classification of SC/STs is contrary to Article 341 of the Constitution.
The present judgment in the case had essentially considered two aspects while hearing the case:
(1) whether sub-classification within the reserved castes be allowed, and
(2) the correctness of the decision in E.V. Chinnaiah case
The Supreme Court has now overturned the decision in E.V. Chinnaiah case and permitted for the sub-classification within the SCs in State Of Punjab And Ors. v Davinder Singh And Ors. The said ruling will significantly impact states aiming to provide greater protection to certain castes that remain significantly under-represented despite reservations, compared to the more dominant scheduled castes. The court noted that “historical and empirical evidence indicates that Scheduled Castes are not a homogenous group.” It also clarified that although sub-classification is permissible, states cannot allocate 100% reservation to a sub-group. A safeguard has also been introduced as the Court has necessitated that the state justifies the sub-classification with empirical data showing the sub-group’s inadequate representation.
Significantly, the three day long hearings in the case had taken place in the month of February 2024, and the judgments had been reserved on February 9, 2024.
Historically background of the issue at hand:
In the year 1975, the Punjab government had issued a notification that divided its 25% Scheduled Caste (SC) reservation into two categories. The first category reserved seats exclusively for the Balmiki and Mazhabi Sikh communities, recognizing the two categories to be the most economically and educationally backward communities in the state. As per the notification, these communities were given first preference for reservations in education and public employment. The second category had then comprised the remaining SC communities.
This notification remained effective for nearly 30 years but faced legal challenges in 2004. A five-judge Constitution Bench struck down a similar law introduced by Andhra Pradesh in the year 2000. E.V. Chinnaiah had contested the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (AP Act 20 of 2000). This Act was enacted following recommendations from a committee led by Justice Ramachandra Raju, wherein the committee had identified specific groups within the Scheduled Castes listed under Article 341 of the Indian Constitution who had not benefited from reservations in admissions to professional colleges and appointments to state services. In the E.V. Chinnaiah case, the Supreme Court had invalidated the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, holding in their judgment that it violated the right to equality. The Andhra law had created a detailed list of SC communities in the state and specified the quota of reservation benefits for each.
Through the E.V. Chinnaiah judgement, the bench comprising Justices N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema, S.B. Sinha had held that sub-classification violated the right to equality by treating communities within the SC category differently. It emphasized that the SC list should be treated as a single, homogenous group because the Constitution classified certain castes in a Schedule due to their historical discrimination and untouchability. Therefore, these communities could not be treated differently from one another. The court also highlighted Article 341 of the Constitution, which grants the President the power to create a list of SC communities for reservation purposes. The five-judge Bench concluded that this provision meant states could not “interfere” with or “disturb” this list, including through sub-classification.
Two years after the Supreme Court ruling, in the year 2006, the Punjab and Haryana High Court had through their judgment in Dr. Kishan Pal v. State of Punjab had struck down the 1975 notification categorising the SC communities in Punjab. Only four months after the judgment striking down the notification was delivered by the Punjab and Haryana High Court, in October 2006, the Punjab government attempted to reinstate 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 Mazhabi Sikh communities. However, in 2010, the High Court once again struck down this provision. The Punjab government then appealed to the Supreme Court.
SC and reconsideration of the issue of the sub-categorization:
In 2014, the Supreme Court in Davinder Singh v. State of Punjab referred the appeal to a five-judge Constitution Bench to reconsider the E.V. Chinnaiah decision, as it involved examining various constitutional provisions. As the issue was regarding a constitutional interpretation, a bench of at least five judges was required to hear the matter.
In 2020, the Constitution Bench led by (retired) Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose had ruled that the E.V. Chinnaiah decision prohibiting sub-categorization required reconsideration. As per the decision delivered by the bench, the benefit of reservation was not percolating down to the neediest and poorest of the poor and the court and the state “cannot be silent spectators and ignore stark realities.” It was through the said judgment that the idea of Scheduled Castes being a homogeneous group was challenged as the Court had observed that there are “unequal within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.” The bench had also recommended the larger bench to consider the bearing of the judgment in Jarnail Singh v. Lachhmi Narain Gupta, wherein a 5-judge bench had observed that the exclusion of the “creamy layer” from the Scheduled Castes for securing the benefit of reservation does not tinker with the Presidential List under Article 341. All the castes included in the list of Scheduled Castes are given the benefit of reservation even if they are sub-classified.
The CJI Chandrachud led seven judge bench hearing the present matter. Both the previous Davinder Singh judgment as also the E V Chinnaiah judgment had been delivered by a five-judge bench, hence a review by a larger seven-judge Bench of the Supreme Court.
Notably, the sub-classification strategy will affect not only the Balmikis and Mazhabi Sikhs in Punjab and Madiga in Andhra Pradesh but also the Paswans in Bihar, the Jatavs in UP, and the Arundhatiyars in Tamil Nadu.
Observations of the Supreme Court:
Six broadly concurring judgments were delivered by the bench except on the contentious issue of “creamy layer” on which four of the even judges opined and two were silent. The details are as follows:
Chief Justice Chandrachud and Justice Misra: “Sub-classification is one of the means to achieve substantive equality”
The judgment authored by CJI Chandrachud begins by referencing Article 14 of the Constitution, which guarantees equality before the law and equal protection by the law. The judgment emphasizes that equality cannot be identical for individuals who are not similarly situated, underscoring the principle of substantive equality. The CJI states that the guarantee of equality means all persons in similar circumstances must be treated alike, ensuring parity of treatment under similar conditions. Equality does not imply sameness; the State can classify in a non-discriminatory manner. The doctrine of classification gives meaning to the guarantee of equal protection, focusing on equality of results or opportunities over equality of treatment.
Addressing whether sub-classification violates Article 14, the CJI asserts that Article 14 guarantees factual, not formal, equality. Thus, if individuals are not similarly situated concerning the law’s purpose, classification is permissible. This logic extends to sub-classification, allowing further classification of an already established class for a limited purpose if it is heterogeneous for another purpose.
The CJI also references Dr. B.R. Ambedkar’s ideology, highlighting Ambedkar’s view that applying a uniform criterion to identify the depressed class is inappropriate. Ambedkar noted that differences in tests of untouchability do not indicate differences in the conditions of the untouchables, as the underlying notion remains the same: it is beneath dignity to interact with or touch persons of certain castes. He observed that varying degrees of rigidity in practicing untouchability do not change the fundamental notion of the practice.
In conclusion, the following was held by CJI Chandrachud and Justice Misra through the judgement:
1. On the issue of sub classification within the Scheduled Castes, it was held that Scheduled Castes can be further classified if:
(a) there is a rational principle for differentiation
(b) if the rational principle has a nexus with the purpose of sub-classification
2. On the issue of Scheduled Castes being homogeneous, this judgement held that Scheduled Caste cannot be deemed to be a homogenous integrated class as enough empirical evidence indicates towards their being inequality within the Scheduled Caste itself. The judgment further provided that the inclusion of the Scheduled Castes within Article 341 does not automatically make lead to the formation of a uniform and internally homogenous class which cannot be further classified. Inclusion in Article 341 if for the purpose of identification of Scheduled Castes by distinguishing them from other groups.
3. The judgment further held that 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. However, on the issue of scope of states on sub-classification of Scheduled Castes, the judgment held that the exercise of sub-classifying by the state can only be undertaken on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. The judgment specifically stated that the State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. The judgment also clarified that any such a model that excludes some Scheduled Castes from the benefit will be unconstitutional.
Justice BR Gavai: “Duty of the state to give preferential treatment to the more backward communities”
Justice B.R. Gavai, in his concurring judgment, begins by discussing the historical emergence of Scheduled Castes and Scheduled Tribes in the Constitution of India. He also acknowledges the movements led by B.R. Ambedkar against the dominant caste to combat the discrimination, exclusion, and mistreatment faced by marginalized communities.
As per J. Gavai, Dr. Ambedkar stressed the need for a formula that would balance equality of opportunity with providing reservations for communities that had been historically excluded from administration. He noted that the equality of opportunity must be harmonized with the demands of certain communities. It was highlighted by B.R. Ambedkar that due to historical factors, the administration had been dominated by one or a few communities, a situation that should be rectified to allow others an opportunity in public services. Therefore, Ambedkar argued that a qualifying term like “backward” was necessary to make reservations workable. He justified the Drafting Committee’s use of the word “backward,” stating that determining what constitutes a backward community would be the responsibility of each local government.
After analysing the significant judgments of the Supreme Court that have contributed to the evolution of reservation and the observations made by the judges in those judgments, J. Gavai stated in unequivocal terms held that preferential treatment for members of backward classes alone can mean equality of opportunity for all citizens. As provided in the judgment, if the State, in fulfilling its duty, discovers that certain groups within the Scheduled Castes and Scheduled Tribes are underrepresented while only a few groups are fully benefiting from the reservations, the State cannot be prevented from providing more preferential treatment to these underrepresented categories. As per J. Gavai’s view, doing the same would not interfere with the Presidential List of Scheduled Castes.
In his judgment, J. Gavai addresses the ground realities faced by marginalised communities in India, noting that even among the Scheduled Castes, certain groups have endured more inhumane treatment over centuries compared to others. He asserts that categories within the Presidential List that have already benefited significantly from reservations should not oppose the State’s provision of special treatment to those who have been deprived of such benefits, especially when it does not diminish their existing benefits. J. Gavai concludes that to achieve true equality, as envisioned by various judicial pronouncements, sub-classification among the Scheduled Castes to provide more beneficial treatment is entirely permissible under the Constitution.
In conclusion, the following was held by J. Gavai through the judgement:
- On the issue of the exclusive power of the President to identify SCs under Article 341 (2), J. Gavai stated that Articles 341 and 342 are only with regard to identification of the Scheduled Castes and Scheduled Tribes. Articles 341 and 342 read with clauses (24) and (25) of Article 366 of the Constitution provide that those castes included in the Presidential List shall be deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the Constitution. However, the aforementioned Articles 341 and 342 do not deal with reservation.
- Any exercise through which the State decides to provide 100% of the reservation for Scheduled Castes to one or more categories enlisted in the Presidential List in that State to the exclusion of some categories, the same would not be permissible. J. Gavai has provided that there are various judicial pronouncements that have emphasized that a reasonable classification is implicit in the trinity of Articles 14, 15 and 16 of the Constitution. Therefore, the same standards and benchmarks can be employed if somebody approaches the Court with the prayer to examine as to whether such a classification is reasonable or not.
- On the issue of Scheduled Castes being a homogenous group, J. Gavai has held the same to be untrue, by emphasising that the hardships and the backwardness which certain categories within the Scheduled Castes have suffered historically would differ from category to category.
- On the issue of standard for sub-classification of Scheduled Castes, J. Gavai held that in cases where the State makes a classification, it will have to be established that the group carved out from the larger group is more disadvantageous and not adequately represented. The classification would also have to be supported by empirical data. It was emphasised that the result of classification is to be to provide more preferential treatment to this more disadvantageous and less represented group, and the ultimate object would be to achieve real equality among all the sub-groups in the larger group.
Even though the only judgment whose correctness in question was E.V. Chinnaiah and the only issue of contention of the sub-classification of Scheduled Castes, the judgement of J. Gavai also speaks of the application of creamy layer to the Scheduled Castes. Justice Gavai noted that since the Constitution recognizes the Scheduled Castes and Scheduled Tribes as the most backward sections of society, the criteria for excluding individuals from affirmative action within these categories should differ from those applied to other classes. Providing instances, J. Gavai said that a person from such a category who attains a position like that of a peon or sweeper through reservation still remains socially, economically, and educationally backward. However, those who have benefited from reservations and have risen to high positions in life can no longer be considered socially, economically, and educationally backward to continue availing affirmative action benefits. Having reached a certain stage, they should voluntarily relinquish these special provisions to allow more deserving and needy individuals to benefit. - Based on this, Justice Gavai, therefore, opined that the State must develop a policy to identify the creamy layer within the Scheduled Castes and Scheduled Tribes to exclude them from affirmative action benefits. In his view, this is the only way to achieve true equality as envisioned by the Constitution. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)
Justice Vikram Nath: “sub-classification by the State to be supported by empirical data”
In his judgment, J. Nath stated that he was in agreement with the reasons and conclusions arrived at in the opinions of CJI Chandrachud and J. Gavai.
In conclusion, the following was held by J. Nath through the judgement:
- The judgment in E.V. Chinnaih case stands overruled and that sub-classification within Scheduled Castes was permissible.
- Any exercise involving sub-classification by the State must be supported by empirical data.
- J. Nath opined that ‘Creamy layer’ principle to be applicable to the Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)
Among the four of the seven judges, Justice Mithal is possibly the most regressive when it comes to identifying himself one generation as enough to classify privilege as “creamy layer!
Justice Pankaj Mithal: “It is to achieve the social objective of bringing every citizen on equal level that provision for reservation came to be made”
In his judgment, J. Mithal stated that the issue of sub-classification of scheduled castes has been appropriately answered by the Chief Justice and Justice Gavai in their separate opinions. However, since the matter in issue is basically concerning “reservation”, he wished it appropriate to pen down my own views separately. As a part of his judgment, he also wrote about the ramifications of reservations.
J. Mithal primarily focused on the objective behind bringing in the provision of reservation for the backward class of persons and scheduled castes as well as scheduled tribes through the path of the Constitution of India. He also provided a summary of the constitutional amendments carried out for the purposes of extending the benefit of reservation to the reserved categories would reveal that the Constitution has been amended as many as 9 times in order to implement the reservation policy in a fair and impartial manner so that the “so-called depressed classes” may be elevated at par with the forward classes.
Regarding the impact of reservation policies and their implementation in bringing the most marginalized groups into the mainstream, J. Mithal notes that regardless of the success or failure of these policies, one certainty is that they have significantly burdened the judiciary at all levels, especially the High Courts and the Supreme Court, with extensive litigation. This burden could have been avoided if a robust reservation policy with a clear vision had been established under the constitutional provisions from the outset, instead of making piecemeal changes over time.
As per the judgment, J. Mithal observed experience have shown that every selection and appointment process in government services and higher education admissions is often challenged in court due to alleged misapplication of reservation rules, and these legal challenges frequently cause significant delays in appointments and admissions, leaving vacancies unfilled for extended periods and leading to stop-gap or ad-hoc appointments, which in turn generate more litigation. Despite considerable efforts by all branches of the State to streamline and perfect the reservation process, the lack of a visionary approach for uplifting backward castes has created more difficulties than it has resolved.
Pursuant to this, J. Mithal highlights that reservation benefits often do not reach the most deprived and marginalized individuals. Statistics reveal that about 50% of students from the most backward classes drop out before Class V, 75% before Class VIII, and up to 95% before high school. Consequently, only children from relatively affluent or urbanized castes benefit from higher education and reservation advantages. It is clarified by J. Mithal that by highlighting these points, he is not suggesting for ending the upliftment efforts or abandoning the reservation policy. Rather, J. Mithal is pointing to the challenge lies in how to effectively promote equality and development and how the government has relied on caste for upliftment rather than focusing on vocational or socioeconomic conditions to identify those truly in need. In his opinion, this approach has led to complications such as sub-classification within reserved castes, where the relatively better-off within these groups often occupy most of the reserved vacancies, leaving the most disadvantaged with minimal benefits.
Justice Mithal – in seemingly unwanted references – comments that primitive India had no caste system, and the varna system that was encouraged by the Bhagwat Gita and was based on occupation, was misinterpreted as a caste system. After independence, efforts to create a casteless society were undermined as the reservation policy, intended to uplift depressed and backward classes, inadvertently reinforced caste divisions. According to him, once privileges like reservations are granted, they tend to expand and become entrenched. Thus, the judgment of J. Mithal states that while reservation aims to help OBCs, SCs, and STs, its implementation has revived casteism rather than eliminating it.
In conclusion, the following was held by J. Mithal through the judgement:
- On the issue of sub-classification within the Scheduled Castes, J. Mithal stated that sub-classification has become the order of the day to uplift the backward of the backwards within the Scheduled Castes.
- On the issue of there being a violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste, J. Mithal held the same to not be the case as by such sub-classification no caste is being included or excluded from the list of scheduled castes.
- It was opined by J. Mithal, in addition to the observations made by J. Gavai in his judgment that the caste to which this person belongs may not be excluded as a whole from the benefit of reservation but certainly the family which has obtained the benefit once shall not be allowed to take advantage of reservation in the next generation. Accordingly, J Mithal stated that the reservation to such families has to be confined to one generation only. He further gave the observation that the policy of reservation, as enshrined under the Constitution and by its various amendments, requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of re-looking reservation.)
Justice Satish Chandra Sharma: “sub-classification by the State must be supported by empirical data that underscores the more ‘disadvantaged’ status of the sub-group”
In his judgment, J. Sharma stated that he was in agreement with the lucid and detailed opinion(s) of CJI Chandrachud and J. Gavai.
In conclusion, the following was held by J. Nath through the judgement:
- Validity of sub-classification within Scheduled Castes held to be constitutionally permissible.
- Any exercise involving sub-classification by the State must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole.
- J. Nath opined that he was in agreement with J. Gavai regarding the issue of ‘Creamy layer’ principle to be applicable to the Scheduled Castes and Scheduled Tribes, and that for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)
The lone dissenting judgment in this case was delivered by Justice Bela Trivedi. This has been analysed later in this analyses.
Arguments put forth in the Supreme Court:
During three days of hearings, the petitioners presented their arguments over two days, while the respondents had one day to make their case. A brief rejoinder was submitted at the end of the third day, after which the judgment was reserved. Although the union and state governments usually oppose each other on such issues, they, along with the petitioners, united in support of sub-classifications within the reserved categories. They contended that the court’s jurisprudence had evolved to acknowledge that some groups within the legally recognized backward classes are more disadvantaged than others. The detailed arguments are as follows:
By the Petitioners-
- Need for sub-classification to ensure adequate representation: The petitioners argued that sub-classification was essential to ensure adequate representation of the most disadvantaged groups within the Scheduled Caste category. They maintained that it addressed the issue of varying degrees of backwardness within the category. The petitioners highlighted the diversity within the Scheduled Castes and the different levels of discrimination faced by these groups, highlighting those occupational differences contributed to the formation of subclasses within the broader backward class. Furthermore, the petitioners argued that although Scheduled Castes share a history of discrimination, they are not a homogeneous group. Each caste within the category experiences varying degrees of discrimination and differing levels of economic, social, and educational development.
- Incorrect application of rationale in E.V. Chinnaiah judgment considering Indra Sawhney case: The petitioners pointed out that the logic applied in E.V. Chinnaiah case, in light of the Indra Sawhney judgment, was flawed. It is essential to note that in the E.V. Chinnaiah case, the Andhra Pradesh government’s reliance on Indra Sawhney judgment was rejected as the bench in Chinnaiah had noted that Indra Sawhney allowed sub-classification only for Other Backward Classes, not for SCs/STs.
- State government’s best positioned to assess community backwardness: In both E.V. Chinnaiah case and Davinder Singh case, the Andhra Pradesh and Punjab governments had, respectively, enacted laws creating quotas for specific castes within the Scheduled Caste groups. The petitioners asserted that states were best positioned to assess the backwardness of a community at the local level. It was also submitted by the petitioners that since sub-classification did not involve creating or identifying new castes within the presidential list, the same does not go against the mandate of the Constitution of India. That power to subscribe Schedule Castes remained with the president. Similarly, inclusion or exclusion from the list was a power reserved for Parliament, while the states were merely adjusting the distribution of available resources to ensure those who had not adequately benefited from reservations could do so.Notably, Article 341 (2) provides that “Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
- Article 16 (4) allows for sub-classification: The petitioners had also underscored the language that had been used in Article 16(4) of the Constitution, and contending that the Article allows the State to provide reservations for backward classes who are not “adequately represented” in State services. As the phrase used is “adequately” and not “equally”, the petitioners had argued that there was no obligation to provide the same opportunities to every community in the Presidential list. They further argued that under Article 16(4) of the Constitution, “state” includes all local governments.In addition to the abovementioned, the petitioners had also highlighted the recently introduced Article 342A of the Constitution, through which States and Union Territories have been specifically empowered to maintain a list of Socially and Economically Backward Classes which may be different from the Presidential list.
- Preferential treatment does not impact reservation, is rather a concept akin to creamy layer: In another crucial 2018 ruling in Jarnail Singh v. Lachhmi Narain Gupta, the Supreme Court bench led by Justice Nariman had upheld the “creamy layer” principle within the SCs, introducing an income ceiling for reservation eligibility, which was applied to SC promotions for the first time in 2018. During the hearing, the petitioners had argued that sub-classification within the SCs was similar to applying the creamy layer formula, where instead of excluding the better-off castes from the Scheduled Caste list, preferential treatment is given to the most disadvantaged castes. It was the opening provided by this judgement that led to four of the seven judges in the present case to bring up the issue of creamy layer even when it was not a specific issue at all argued by the petitioners before the court.
- Failure to apply the twin test of reasonable classification in E.V. Chinnaiah case: The petitioners argued that the Supreme Court’s ruling in E.V. Chinnaiah failed to apply the twin test of reasonable classification before concluding that sub classification within SC/STs would violate Article 14. As per the petitioners, the court had overlooked the existence of social data supporting its conclusion. This was in contrast to the detailed empirical data on backward classes presented in the Investigative Report of Justice Ramachandra Raju, which the High Court had originally relied upon when considering E.V. Chinnaiah.
By the Respondents-
- Schedule castes deemed a homogeneous group: According to the respondents, Article 341(1) establishes homogeneity by grouping diverse castes into a single “Scheduled Class.” Supporting the Supreme Court’s judgment in E.V. Chinnaiah, it was argued by the respondents that despite differences among castes within the Scheduled Caste list, they are “deemed” a homogeneous group under the Constitution of India. As per the respondents, the same was done because they share a commonality of discrimination and backwardness, as was also marked by their inclusion in the presidential list for Scheduled Castes. Thus, any differences are overshadowed by the constitutional framework. Furthermore, the respondents had argued that the purpose of Article 341 was to highlight the common thread of discrimination and backwardness across diverse groups within the SCs, whether social, educational, or otherwise.
- President power to identify SCs under Article 341 (2): The respondents asserted that the presidential list of Scheduled Castes, which includes state-specific entries, is immutable and only the president has the authority to identify castes for inclusion under Article 341(2). Any changes to this list, such as inclusion or exclusion of castes, fall under the jurisdiction of Parliament, not the state governments. While state governments may be consulted, they lack the power to create sub-classifications independently. Sub classification authority is exclusively within the domain of Parliament as stipulated by Article 341(2). Although state governments can raise concerns about new identifications, they must do so through proper channels.
- Violation of Article 16(2): The respondents contended that while Scheduled Castes are presumed to be backward, an individual caste cannot be treated as a class under Article 16(4). Enacting laws for specific castes within the Scheduled Caste lists would, they argued, violate Article 16(2).
- Sub-classification undermines reservation: Another argument put forth was that sub classification would render reservations ineffective for other subclasses within the SC category, as it would prevent a unified implementation of benefits. This would undermine the purpose of reservations.
Creamy layer – Is it another way to exclude?
Arguably, two historical and contemporary realities ought not to permit the applicability of the criterion of “creamy layer” to the SCs. Articles 15(4) and 16(4) of the Constitution guarantee affirmative action to the socially and educationally backward classes of society by the state. While Article 15(4) makes special reference to SCs and STs, the term backwardness subsumes SC and STs in Article 16 (4).
In defining social backwardness, the social impediments caused by the practice of untouchability and the consequent educational, and social backwardness, this phenomenon has given rise to, are duly recognised. While enacting these Articles of the Constitution -given the rigid caste system existing in the country—Constitution framers observed that even though economic and educational mobility of the SCs would be possible by reservation and other affirmative action by the state to a small beneficiary segment of SCs, this will not bring in social mobility for the same class. Hence, the creamy layer which by definition presumes not only relative better economic and education status, but also social status, should not or cannot be applied for the SCs. This was the rationale.
This also has a flip side. This social predicament of the SCs’ perpetual social immobility precludes the benefits of reservation perpetuating to a tiny class within the SCs without allowing it to percolate further down, hence creating a vested interest against the application of creamy layer to the SC category.
Denying adequate representation?
This pertinent question which would eventually find an answer in the argument of “creamy layer,” does not, however, provide a satisfactory answer for the negative implications of such an exclusion of the creamy layer within the SCs for reservation/affirmative action. This is about the emergence of an existing situation which is already witnessing a lack of suitable SC candidates in the middle and higher cadres. This ‘dearth of suitable candidates’ would multiply if the post in the previous cadre is not filled due to the application of the creamy layer principle. This would then increase the backlog without fulfilling the reservation or making the post general category for want of a suitable SC candidate.
Thus it would lead to inadequate representation overall that would defeat the very purpose of Article 16(4) which urges states to appoint backward classes which aren’t adequately represented. Hence while there is much discussion among privileged sections on the question of “creamy layer” among SCs, the stated purpose of introducing the creamy layer gets defeated by its execution and the same principle is manipulated by the forward caste for their benefit. In this era of neoliberalism and increasing withdrawal of the State from employment sectors, such a creamy layer policy would be a recipe for the regression of the rights of Dalits.
Both these questions of principles of SC backwardness and the pragmatic questions of retaining the opportunity for the next in the ladder ought to have been adequately addressed by the SC before invoking the creamy layer principle in deciding of sub-classification. The SC has unnecessarily passed its opinions and judgements without dealing with or answering the above Constitutional issues satisfactorily.
In fact, as stated before, the question of the creamy layer for the SCs was not before the bench at all.
Multiple opinions or directions?
Not only did the judges of the bench not answer the basic Constitutional questions that arose out of bringing in or applying the creamy layer category to the SCs, they also provided different solutions leaving the implementing authorities perplexed about what is to be followed. This could also pave the way for a problematic implementation of this verdict.
For example, the leading judgement by the CJI and Justice Mishra deliberates about the applicability of the creamy layer to the SCs and stops at underlining the understanding of the Indira Sawhney judgement on the issue. The Sawhney judgement had clearly held that the creamy layer did not apply to the SCs since their social mobility was not possible despite economic and educational mobility induced by reservation. The conclusion and direction given by the CJI and Justice Manoj Mishra do not have any reference to creamy layer at all!
The case for the applicability of creamy layer to the SCs is forcibly argued by another senior and the only Scheduled Caste judge on the bench, Justice BR Gavai. He concludes:
“…that the finding of M Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law.”
Justice Gavai, however, gives some concession to the SCs by saying:
“that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”
Justice Vikram Nath who concurs with CJI in the rest of the matter, takes the side of Justice Gavai by stating:
“I am also in agreement with the opinion of Brother Justice Gavai that the ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”
Justice Satish Chandra Sharma also follows Justice Gavai by stating:
“However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.”
It is Justice Pankaj Mittal who goes several steps ahead in this pursuit of excluding SCs from the ambit of reservation. He states in his judgement that:
“The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and (iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.”
By this logic, even sons and daughters of a D grade employee who would have got the job due to reservation shall not be qualified for the benefits of reservations in future!
Dissenting Judgement of Justice Bela Trivedi:
- Trivedi, in her dissenting judgment, questioned the reference through which the present case was being heard by the Supreme Court. The doctrines of binding Precedents and Stare decisis, as well as judicial discipline and propriety developed over the years, require that a smaller Bench follows the decision of a larger Bench. If the smaller Bench has doubts or disagreements with a decision of a larger Bench, it may refer the matter for reconsideration to the larger Bench, but only after providing reasons and justification for why it could not agree or follow the earlier decision. Such disagreements must be based on justifiable reasons, such as the earlier decision being manifestly wrong or substantial changes in the contextual values that led to the earlier view. A casual exercise of referring the matter to a larger Bench without recording reasons or simply because the later view seems more reasonable can create legal uncertainty and confusion, which should be avoided.
According to her, three-bench referred to the larger Bench without providing any reason, much less a cogent one, as to why it could not agree with the decision in E.V. Chinnaiah, which was delivered by the Constitution Bench. It was highlighted by her that the law established by a Constitution Bench and upheld for 15 years was questioned and unsettled by the three-judge Bench through a very brief and perfunctory order lacking any reasoning.
Referring to the case at present, she stated that the present reference should not have been entertained by the subsequent five-judge bench in Davinder Singh case, which was then referred to the seven-judge bench.
In conclusion, the following was held by J. Trivedi through the judgement:
- On the issue of the reference made against the E.V. Chinnaiah case, which led to the present hearing, J. Trivedi held that the three-judge bench in the Davinder Singh case should not have doubted and referred the matter to the larger bench without providing any reasons, much less cogent ones, for their disagreement, thereby disregarding the well-settled doctrines of Precedents and Stare decisis.
- Regarding the exclusive power of the President under Article 341 to identify and notify “Scheduled Castes” and the notion of Scheduled Castes as a homogenous group, the judgment stated that the etymological and evolutionary history and background of the term “Scheduled Castes,” along with the Presidential orders issued under Article 341, make the “Scheduled Castes” a homogenous class that cannot be altered by the States.
- On the issue of the States’ legislative competence to enact laws providing for reservation, J. Trivedi stated that the States do not have the authority to give preferential treatment to a particular caste or castes by dividing, subdividing, subclassifying, or regrouping the castes, races, or tribes listed as Scheduled Castes in the notification under Article 341. The judgment emphasized that under the guise of providing reservation or taking affirmative action for the weakest sections of society, the State cannot modify the Presidential List or tamper with Article 341 of the Constitution.
- J. Trivedi held that the power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. According to her, even with its broad scope, Article 142 cannot be employed to construct a new framework where none existed before, by disregarding explicit statutory provisions related to the subject, and thereby achieving indirectly what cannot be achieved directly. The State’s action, even if well-intentioned and affirmative in nature, cannot be validated by the Supreme Court under Article 142 if it violates specific provisions of the Constitution.
The complete judgment can be read as below:
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