STATE OF PUNJAB AND OTHERS VS DAVINDER SINGH & OTHERS: SUB-CATEGORIZATION OF THE SC EXPLAINED

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This article has been written by Astitva Kumar Rao is a third-year BA LLB (Hons.) student at Dr. B. R. Ambedkar National Law University, Sonipat, Haryana.

IN THE HON’BLE SUPREME COURT OF INDIA

“STATE OF PUNJAB AND OTHERS VS DAVINDER SINGH & OTHERS”

HON’BLE JUDGES –

BEFORE DR D.Y. CHANDRACHUD, C.J. AND MANOJ MISRA, B.R. GAVAI, VIKRAM NATH, BELA M. TRIVEDI, PANKAJ MITHAL AND SATISH CHANDRA SHARMA, JJ.

APPELLANT – STATE OF PUNJAB AND OTHERS

Vs.

RESPONDENT – DAVINDER SINGH AND OTHERS

CITATION –

MANU/SC/0620/2020

2020 SCC Online SC 677

Table of Contents

INTRODUCTION

In the present case, the Bench has found that the sub-categorization of the SC will result in the equitable distribution of the benefits of reservation among all the classes of the SC, and will help in the emancipation of the most backward classes which have been deprived and are suffering. It also found that a greater representation of the weaker sections within the Scheduled Castes will be made possible by effecting the sub-categorization.

However, in the case of E. V. CHINNAIH, the Supreme Court had decided that the Scheduled Castes formed one homogenous group and their sub-division for apportioning reservation proportionately would result in the violation of Article 14 of the Constitution. Furthermore, it was found that empowering the State legislature to sub-categorize the Scheduled Castes of their respective states would be contrary to the provisions of Article 341 of the Constitution.

The President of India, under Articles 341(1) and 342(1), specifies the list of the castes, races, tribes, or parts of groups within the race or caste which are to be deemed as SC/ST for that particular state. The states may not tinker with this list, however, under Article 15(4), they are empowered to make special arrangements for the promotion of interests of socially and educationally backward classes of the society such as SC/ST.

BACKGROUND

1975 – The Punjab government issues a notification dividing its 25% SC reservation into two categories. It was one of the first instances of existing reservations being ‘sub-classified’ by a state. While the notification remained in force for nearly 30 years, it ran into legal hurdles in 2004.
2004 – Supreme Court strikes down ANDHRA PRADESH SCHEDULED CASTES (RATIONALISATION OF RESERVATIONS) ACT, 2000, citing violation of the right to equality in the V. CHINNAIAH V STATE OF ANDHRA PRADESH and emphasised that the SC list should be treated as a single, homogeneous group. Later, the Punjab & Haryana High Court, in DR KISHAN PAL V. STATE OF PUNJAB, struck down the 1975 notification, supporting the E.V. Chinnaiah decision.
2006 – The Punjab government attempted to reintroduce sub-categorisation through the PUNJAB SCHEDULED CASTE AND BACKWARD CLASSES (RESERVATION IN SERVICES) ACT, 2006, but it was struck down in 2010.
2014 – The Supreme Court referred the matter to a five-judge constitution bench, questioning the correctness of the 2004 E.V. Chinnaiah decision.
2020 – The Constitution bench holds that the 2004 decision needs reconsideration, rejecting the idea of SCs being a homogeneous group and acknowledging the existence of “unequal” within the list. The “creamy layer” concept was also recommended by the Supreme Court for SCs and STs.
Present – A larger seven-judge bench is hearing the issue as only its judgement can prevail over the decision of a smaller bench. Sub-classification will impact various communities across states, including Balmikis and Mazhabi Sikhs in Punjab, Madiga in Andhra Pradesh, Paswans in Bihar, Jatavs in UP, and Arundhatiyars in Tamil Nadu.

FACTS

The Punjab Government by Circular No. 1818-SW-75/10451 dated 5.5.1975 provided that out of seats reserved for Scheduled Castes, fifty per cent of the vacancies would be offered to Balmikis and Mazhabi Sikhs. The Circular was struck down by a Division Bench of the Punjab and Haryana High Court and S.L.P. filed against the same was also dismissed. The PUNJAB SCHEDULED CASTES AND BACKWARD CLASSES (RESERVATION IN SERVICES) ACT, 2006 was notified on 5.10.2006. Section 4(5) of the Act made similar provisions as were made in the Circular, which was struck down. It stipulated that fifty per cent 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 the Scheduled Castes candidates. A Division Bench of the Punjab and Haryana High Court struck down the provisions contained in Section 4(5) of the Act after relying upon the decision in E.V. CHINNAIAH V. STATE OF A.P. AND ORS. Then the matter was referred to SC.

ISSUES RAISED

Whether the decision in V. CHINNAIAH V. STATE OF A.P. AND ORS[1]., required to be revisited?
Whether the State had the legislative competence to enact provisions contained under Section 4(5)of The PUNJAB SCHEDULED CASTES AND BACKWARD CLASSES (RESERVATION IN SERVICES) ACT, 2006 are constitutionally valid?
Whether Backward Classes can be further divided into backward and more backward categories?
Whether the backwardness in Article 16(4)should be both social and educational?
Whether the preferential treatment to specific castes within the scheduled castes can be provided by state legislation or not?

APPELLANT ARGUMENTS

The decision in E.V. Chinnaiah erroneously proceeded on the premise that affirmative action was taken by the States by giving preference to certain Scheduled Castes Under Article 16(4) tinkers with the Presidential List Under Article 341. The Punjab Act has been enacted Under Articles 16(1) and 16(4) read with Articles 245 and 246. The provisions of Section 4(5) of the Punjab Act are within the legislative competence of the State.
The Court in E.V. Chinnaiah erred in interpreting the majority ratio in Indra Sawney on the question of sub-classification within a class. At least five out of nine Judges in Indra Sawney held that amongst the backward, there may be some more backward, and when State chooses to make such a classification, it would be permissible in law. Unequivocally in the majority, it was held that backward classes can be classified into more backward and less backward classes. The expression “backward class of citizens” used in Article 16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes and other backward classes, including the socially and educationally backward class.
Preferential treatment is a facet of equality Under Article 14. Any enactment by the State giving preference to more backwards amongst the backward fulfils the object of Article 16(4). Six out of nine Judges in Indra Sawney held that Article 16(4) is not an exception to Article 16(1). The preferential treatment given to certain Scheduled Castes/Scheduled Tribes does not violate Article 14. It intends to provide proportional equality. The classification is based on intelligible differentia. The decision in E.V. Chinnaiah is contrary to other binding judgments, such as C. VASANTH KUMAR AND ANR. V. STATE OF KARNATAKA[2], which was approved in Indra Sawney.
It’s assumed that all castes are homogeneous by being in the List within Article 341, it is only the addition or deletion of any caste in the list would be impermissible. It is permissible for the State to give preferential treatment within the list based on the comparative backwardness of any class, there is nothing in Article 341, which prohibits the same. Article 341 does not take away the power of the State Under Article 16(4) to make provisions for giving preference. Such preferential treatment is not only permissible but necessary to bring equality. There is no bar to grant a State’s preference Under Articles 341(2) and 342(2) of the Constitution. The Constitution does not forbid mere preference. The State Government cannot exercise power concerning inclusion and exclusion. This Court in Indra Sawney upheld a classification of the backward and more backward class Under Article 16(4).

RESPONDENTS ARGUMENTS

The Parliament alone has the power to exclude castes listed in the Schedule. Considering the binding precedent doctrine, the decision in E.V. Chinnaiah is not required to be revisited wherein a possible view has been taken. The judgment concerning the construction of statutes ought not to be overruled except in exceptional cases. The unforeseeable consequences would follow if the judgment is overruled. It requires to be revisited if it causes great uncertainty, or it relates to some broad issue or principle, or the same is unjust or outmoded, not otherwise.
In Indra Sawhney, the sub-classification was limited to socially and educationally backward classes. None of its observations would apply to Scheduled Castes and Scheduled Tribes. The Scheduled Castes and Scheduled Tribes are backward for the provisions of Article 16(4). The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes. The decision in Indra Sawhney was understood in the correct perspective in E.V. Chinnaiah.
In N.M. Thomas, it was held that Scheduled Castes and Scheduled Tribes are backward classes. No sub-classification can be made. The exclusion from the list is a prerogative of the Parliament. The object of Article 341(1) is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. In the Presidential Order, even the court cannot make any alteration. No enquiry is permissible to determine whether or not some particular community falls within the list or outside it as laid down in STATE OF MAHARASHTRA V. MILIND AND ORS[3].
The legal fiction created Under Article 341 is to be given full effect. The provisions of Section 4(5) of the Punjab Act cannot be said to be constitutionally valid. The Governor is empowered only to make recommendations Under Article 341 for alteration in the list. No further classification can be made once Scheduled Castes and Scheduled Tribes are covered Under Article 16(4). Sub-classification is not permissible in the caste grouped in one entry of the list. It is not permissible to leave one caste grouped within the list. The power has been exercised maliciously.

JUDGEMENT

In a 6:1 majority, this 7-judge Constitutional bench said –

Scheduled Castes can be further classified without violating the Constitution’s equality principle (Article 14) or Article 341(2). There is no conflict with Articles 15 and 16 in creating sub-categories within a caste. Also, states must provide concrete evidence of underrepresentation when forming these sub-groups, not based on arbitrary or political reasons. Additionally, such decisions are subject to judicial review.
The state has to give preferential treatment to the more backward communities. Only a few people of SC/STare enjoying reservations. The mistake in EV Chinnaiah’s judgment was thinking that Article 341 is the basis of reservation, but it only identifies castes for reservation. The grounds for sub-classification is that a group from the larger group faces more discrimination. Some judges from the Bench opinioned that, the State needs to implement a policy for identifying and excluding the creamy layers within the SC/ST categories. Reservations should be limited to one generation. If the first generation reached a higher status through the reservation, the second generation should not be entitled to it.
In dissent, Justice Trivedi said that the States cannot alter the Presidential list of Scheduled Castes notified under Article 341. Castes can be included or excluded from the Presidential list only by a law passed by the Parliament. Sub-classification will amount to change in the Presidential list unnecessarily. Article 341 was meant to keep political factors out of the SC-ST list. Any preferential treatment for a subclass within the Presidential list will deprive the other classes within the same category of the benefits.

ANALYSIS

Reservation in the education and service sector is a highly debated question in India but it is known well to all that the benefits of these provisions reach only the elite backwards who have better financial status and the backward classes are stalled to the same position where they were. The Supreme Court in this judgement addressed a similar situation where sub-categorisation of backward within the backward classes was questioned. 50% reservation to Balmikis and Mzhabi Sikhs out of the seats reserved was held unconstitutional by the Punjab and Haryana High Court, which was the subject of the appeal. The question of preferential treatment was put up. To answer this contention, the Supreme Court referred to MARRI CHANDRA SHEKHAR RAO V. DEAN, SETH G.S. MEDICAL COLLEGE & ORS[4]., in which it was stated that Article 15 prevents the state from discriminating based on religion, race, caste, sex or place of birth but 15(4) also makes sure it shall not prevent the state from making provisions in favour of socially and educationally backward classes. The court rightly stated that what is necessary is to take into account de facto inequalities which exist in society and to take affirmative action by way of giving preference and reservation to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, to bring about real equality.

The competence of state legislature to sub-classify and whether sub-classification is tinkering with the list was raised under Article 341 that only the President can classify caste within castes and only Parliament is bestowed with the power to alter the list. To answer this question the Court said that castes and sub-groups were present and continue exactly as they were before the list. The question is how to trickle down the benefit to the bottom rung. The reports indicate that the benefit is being usurped by those castes or classes who have come up and adequately represented. Caste, occupation, and poverty are interwoven. The State cannot be deprived of the power to take care of the qualitative and quantitative differences between different classes to take ameliorative measures. Allotting a specific percentage out of reserved seats and providing preferential treatment to a particular class, cannot be said to be violative of the list under Articles 341, 342, and 342A as no enlisted caste is denied the benefit of reservation. The scheduled caste as per the presidential list is not frozen and they are not a homogenous group. The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolved the very concept of reservation. Whether the sub-classification would be a further extension of the principle of said dynamics is the question to be considered authoritatively by the Court. The State Government is the best judge of the disparities in different areas. It is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give preferential treatment to a particular class more backwards out of Scheduled Castes without depriving others of benefit.

CONCLUSION

At the heart of the whole debate of sub-categorization as well as the exclusion of the creamy layer, lie two basic arguments which need to be weighed against one another. The SC/ST communities are the most backwards among the backward classes and they were granted reservations to enable them to recover from centuries of social injustice, their social and economic standing does not serve as the right measure to determine their eligibility for reservation. The framers of the Constitution envisioned reservation as a temporary means of giving opportunities and resources to the backward classes of society so that they can permanently stand on an equal footing, in every aspect, with the other classes of society. This judgement very prudentially recognizes the purpose of reservation. If the unequal among the list of the scheduled castes and if they are ignored under the garb of statutory provision, the concept of reservation would be merely a tool for political agenda. Also, the approach of the court in recognizing the capacity of the state legislature for making sub-classifications is acknowledged. Every state in India has a different culture, tribes and class. The state can understand the status of the classes better and has the mandate to empower them socially and educationally backwards and establish equality. While the matter of reservation will always be debatable in a country which is divided into so many classes, it is always just to empower those who have suffered at the hands of casteism and bring all of them to equal ground in all aspects and provide dignity to all classes. The emancipation of SC/ST communities is the main goal of the reservation system. However, the argument ignores the principle of equality by treating unequals as equals. There is no denying that the system of reservation has benefitted many members of the backward classes and has helped them rise to an equal social and economic status with the upper classes of society. The further generations of such households have the means and opportunities to access the resources of the society equally as the other classes in the society.

REFERENCES