Sub-classification within reserved categories | Day 1: Petitioners argue Scheduled Castes are not an indivisible, homogenous class

“Reservation is not an act of benevolence”

Gurminder Singh opened arguments by patiently expounding on the need for reservations. Equality, he asserted, was a constitutional aspiration. To this end, reservation was a tool the State could use to reduce inequality. It was not an act of charity or benevolence, he contended. 

While acknowledging that social change at a grassroots level was essential, Singh emphasised that the primary obligation to combat disparities was on the State. 

Further, he claimed that inequality had another layer. It was no longer only about the advantaged and the disadvantaged but also about the “disadvantaged and the more disadvantaged.”

States have the right to cull out brackets based on ‘relative backwardness’ 

Singh then submitted that Section 4(5) of the Act had a two-tier check and balance system to ensure that it was not excluding anyone. First, it did not cross the 50 percent threshold laid down in Indra Sawhney v Union of India (1992) and second, it followed a preferential treatment of reservation. 

What does preferential reservation mean? Here is the example Singh used in Court. Let us assume 10 seats are reserved for the SC category. Per the Act, five of these are sub-reserved for the Balmikis and Mazhabi Sikhs, but only if they qualify with the requisite marks for that category. Otherwise, the seats are open to others in the SC category itself. Therefore, the 50 percent sub-classification reservation for the Balmikis and the Mazhabi Sikhs was a preference and not a mandate. 

The law, Singh asserted, was not in the nature of an exclusion. While the President had identified the Scheduled Castes in an Order in 1950, Parliament had the power to include and exclude certain categories from this list. States, on the other hand, had the right and obligation to cull out brackets within this group based on “relative backwardness.” 

CJI Chandrachud interjected at this juncture. “In a sense, there is an element of exclusion, let’s not gloss over it” he said. In the context of the Punjab legislation, he pointed out that others in the SC category were excluded from the preferential treatment. But the real question, he said, was if such exclusion could be justified with the same explanation as the one for the reservation of SCs, STs and OBCs. 

“Caste is not an indivisible category” 

In Chinnaiah, the Court had held that the Constitution (Scheduled Castes) Order 1950, issued by the President identifies state-wise SCs as a homogeneous group. A key consideration in holding that states could not create sub-classifications was that this homogeneous group could not be tinkered with. “…From the scheme of the Constitution… it is clear that the castes once included in the Presidential List, form a class by themselves,” the judgement said. 

Singh urged that this reasoning was erroneous. SCs as identified by the Presidential List , he claimed, was not a monolith—it was a “reversible” process. SCs varied from state to state and even district to district. Identifying them was a unilateral exercise undertaken by the President but Parliament has the power under Article 341 to exclude or include categories. 

Moreover, he pointed out that Article 341 uses the phrase “deemed to be Scheduled Castes.” He further said that this proved that a caste was not a perpetual concept but a “deeming fiction” that could be tinkered with from time to time. For instance, if a caste achieved a status where it was no longer “backward”, it could be removed from the list of SCs. This, however, does not change the sociological identity of the people belonging to the caste.  

Further, he claimed that under Articles 341 and 342, there is mention of Scheduled Tribes which are treated as SCs in some states. The Chief added that Article 341 includes not only castes but also “races or tribes or parts of or groups within castes, races or tribes.” This showed that caste was an “amorphous” group amenable to change, the Chief remarked.

“Chinnaiah ignores the interplay between Article 16(4) and 341” 

Singh then turned the lens on Chinnaiah’s conclusion that sub-classification amounted to tinkering with the SC list from the 1950 Presidential Order. The Court had reasoned that, as per Article 341, this power was vested solely with the President. But Singh claimed that the Court had ignored the relation between Article 341 and 16(4).

Article 16(4) reads “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” 

In this provision, Singh argued that “State” means the Union as well as state governments and “backward class” included SCs, STs and other inadequately represented classes. 

He emphasised that the provision uses the phrase “adequately” and not “equally.” Therefore, the governmental authority was not obligated to provide the same opportunities to all. Moreover, affording the same benefits to all groups within the category, Singh said, risked “lumping” the benefits into a part of a part. 

“Indra Sawhney was not confined to the Other Backward Classes category” 

In Chinnaiah, the Bench had concluded that Indra Sawhney permitted states to make subclassifications only within the OBC category, as they recognised that certain classes within the OBC category were more backward than others. However, this could not be extended to the SC and ST categories. 

Singh submitted that this reasoning was flawed because the Court in Indra Sawhney was simply not dealing with questions about the SC or ST categories. In fact, Singh pointed out that the Court actually recognised that states could sub-classify SCs and STs as well under the broad expression of  “backward class” under Article 16(4). 

He read from the relevant portions of the judgement: “Article 16(4) recognises only one class viz., ‘backward class of citizens’. It does speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression ‘backward class of citizens’ and that separate reservations can be provided in their favour…We do not mean to say—we may reiterate—that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.” 

CJI Chandrachud agreed with Justice Gavai’s remark that the law in Indra Sawhney was clear and was binding on them. During this discussion, the Bench contemplated the effect of ruling on the correctness of Chinnaiah—could the case then be sent back to the High Court or a Division Bench? Singh remarked that either was possible. “Anyway, we’ll hear the other side,” the Chief then said matter-of-factly.

The Chinnaiah judgement presents internal contradictions

Arguing for a little over half an hour towards the end of the day, Shadan Farasat made three key submissions. 

First, he claimed that Chinnaiah contradicted itself. In Chinnaiah, the Bench had noted the following: 

“If benefits of reservation are not percolating to them the more backward categories within the SC category equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalising the reservation to the Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated.”

Farasat contended that this portion of the judgement indicated a selective interpretation of Article 341. The Bench has essentially stated that for the upliftment of the backward categories within the SC category, the State could adopt other measures but reservations. Article 341, Farasat said, had to be adopted fully or not at all, and the Court could not say one remedy was available but the other was not.  

Second, he argued that the introduction of Article 342A in 2018 and its amendment in 2021 to include sub-clause 3 made it clear that the reasoning in Chinnaiah stood inoperative. Article 342A provides reservations for Socially and Educationally Backward Classes. Article 342A(3) empowers every state or Union Territory to prepare and maintain “ a list of socially and educationally backward classes, entries in which may be different from the Central List.” 

Lastly, Farasat highlighted the validity of sub-classifications in light of Article 335 of the Constitution. This provision stresses the “maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.” Farasat asserted that diversity played a huge role in maintaining the “efficiency of administration.” Diversity of representation, he claimed, was essential in ensuring that the problems faced by various communities were adequately addressed by the administration. 

With this, the hearings closed for the day. Senior Advocate Kapil Sibal will open the arguments for the petitioners on 7 February 2024.