Sub-classification within reserved categories | Day 3: States do not have legislative competence to create sub-classification, respondents argue

The constitutional scheme “eclipses” the heterogeneity of SCs

Opening arguments for the day, Swarup clarified that the respondents acknowledged that there was heterogeneity between the groups mentioned in the various entries of the SC List. There was no question that they were from different familial, vocational and educational backgrounds. 

He then pointed out that Articles 341 and 366(24) of the Constitution use the word “deemed” in the context of SCs. This meant that for the purposes of the Constitution, they were deemed as a homogenous group identified by the President under Article 341(1). This group, he submitted, was marked with the commonality of discrimination and backwardness. 

The differential “birthmarks” between them remained heterogenous, but at the constitutional level, they were homogenous and their heterogeneity was “eclipsed.” There could not be a sub-classification amongst them. The Chief remarked that this argument may be viable in the context of political reservations. He pointed out that Article 330 used the word “the” before SC and ST, so there was no further bifurcation possible within the group. 

During the discussion, CJI Chandrachud asked if, within the SC category, all groups suffered identically in aspects such as education, employment, and marriageable age.  “It is a battle of backwardness within backwardness,” he said. 

Justice Gavai offered an example. “It is like a general bogie of a railway compartment…we are in now, but we will not permit the others to come in.” Swarup said that this example translated differently to him: SCs were granted reservation and entered the bogie together but some of them would be excluded with sub-classification. 

Sanjay Hedge echoed Swarup’s arguments when his turn came in the afternoon. Hegde stated that there was a common distinction that marked the group—untouchability. He contended that all entries in the SC List had a common “taint” of untouchability, the degree of which may have varied historically. 

Can a ‘caste’ be a ‘class’?

A key discussion in the hearing was centred around the difference between “caste” under Article 16(2) and “backward class” under Article 16(4). 

Petitioners had contended that under Article 16(4), the phrase “backward class” was a wide term which included SCs, STs and Socially and Economically Backward Classes. Therefore, if within the SCs, it was found that certain castes were more backward than others, the state was not prevented from taking measures to provide for the reservation of these inadequately represented classes of citizens. 

Swarup submitted that as per Article 16(2), discrimination based on “caste” was prohibited. By creating subcategories within the SCs, the state in the present case had violated the principle enshrined under clause 2 of Article 16.

CJI Chandrachud pointed out that legislation would be unconstitutional under Article 16(2) if it was solely based on caste. But if there was another rationale which justified the reservation, then it is not discrimination only based on caste under 16(2). In this case, the other rationale was that certain castes (Balmikis and Mazhabi Sikhs) within SCs were inadequately represented. Therefore, they would be treated as a “backward class” under Article 16(4). 

Later, during his submissions, Chauhan suggested that while SCs were a homogenous class “born” from the Presidential List, they could not be backward classes under Article 16(4). To buttress his point, he stated that according to  Indra Sawhney v Union of India, (1992) it was clear that a “caste” could never be a “class” under Article 16(2).  

“There seems to be a bit of confusion here,” the Chief said. “They never say that a caste can never be a class.” Rather, if a caste satisfies the requirement of social and economic backwardness, then it becomes a “class” under 16(4). To further clarify, he drew Chauhan’s attention to a section of the Indra Sawhney judgement by Justice Jeevan Reddy which reads:

 “Unless ‘caste’ satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the ‘backward class’, a caste per se without satisfying the agreed formulae, generally cannot fall within the meaning of ‘backward class of citizens’ under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata—indicating the social backwardness.” 

Senior Advocate Nidhesh Gupta and Advocate Shadan Farasat, who were present in Court for the rejoinder arguments, were quick to jump in and agree with the Chief. Though in the middle of the respondents’ arguments, the Bench did not seem to mind the petitioners’ enthusiastic approval and allowed them to read excerpts from the judgement. 

Notably, Gupta drew the Court’s attention to a portion of Justice Reddy’s judgement in Indra Sawhney which reads: 

“The only basis for saying that caste should be excluded from consideration altogether while identifying the Backward Class of Citizens for the purpose of Article 16(4) is Clause (2) of Article 16. This argument, however, overlooks and ignores the true purport of Clause (2)….Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4).” 

Farasat highlighted another portion of the Justice Reddy’s judgement: 

“Indeed, there are very good reasons why the Constitution could not have used the expression ’castes’ or ’caste’ in Article 16(4) and why the word ‘class’ was the natural choice in the context. The Constitution was meant for the entire country and for all time to come.”

States do not have the legislative competence to create sub-classifications

Swarup also contended that Chinnaiah was right in holding that states did not have the legislative competence to create sub-classifications within reservations. The power to categorise SCs was vested solely with the President under Article 341. 

It was possible that as time evolved, fresh experiences would render some groups more forward than others. “It is not as if fresh experiences have no ventilation,” he said. However, he clarified that only Parliament had the power to include or exclude persons from this List. 

The Chief responded that the problem with this line of argument was that until Parliament made the necessary changes, states would be “bound” to give benefits to everyone in the SC group. 

Swarup responded that it was not as if the states had no role to play in the process. They would be consulted and their views would be taken into consideration. However, only a Constitutional Commission like the one established under Article 338 could recommend changes to Parliament, and not the states themselves. 

CJI Chandrachud: Tailor-made criteria are necessary

The Bench stated that they were not getting into state-specific legislations or the nitty-gritty of the data collected. They were only contemplating the constitutional question at hand. That clarified that even if Chinniah was overturned, it did not imply that the legislation in Andhra Pradesh would be reinstated. The individual cases would be sent back to the High Courts to be judged on constitutional principles.

However, the Bench acknowledged that some objective criteria were necessary. The states cannot act on their whims. “We’ll have to tailor it by laying down criteria,” the Chief said.  

He added that the authorities had to be careful about not leaving out groups while granting benefits to the most backward sections. “Otherwise this becomes a very dangerous trend,” he said, “the idea is not to allow popular politics to play out in grant of reservation…”

Rushed rejoinder

The working hours of the Court were coming to a close by the time the respondents concluded, but the Bench stayed on to hear the petitioners’ rejoinders. 

Gurminder Singh, the Advocate General of Punjab, claimed that the fact that Parliament could include or exclude groups from the President’s List proved that it was amenable to change. Further, he stressed that while a person’s caste by birth will never change, the “deemed status” of a SC for benefits under the Constitution can change. He also emphasised that under Article 16(4), the state had a wider power to make provisions for “backward classes.”

Shadan Farasat contended that the power under Article 16(4) included the power extended to granting reservation, not granting reservation and deciding the degree of granting reservation. If this “larger” power existed, then surely the “smaller” power to distribute the available seats amongst castes also existed. 

Senior Advocate Kapil Sibal urged that the respondent’s homogeneity argument “defeats itself” because if it was accepted, the distribution of benefits had to be proportionate to the population. Otherwise, it would amount to a violation of Article 14. 

Nidhesh Gupta highlighted that if the SCs are viewed as a “conglomerate”, then the words “not adequately represented” under Article 16(4) would be rendered redundant. 

After this, the Bench thanked the counsel on both sides and reserved judgement in the case.