Sub-classification within reserved categories | Day 2: Petitioners endorse “unequal treatment for unequals”; stress that presidential list does not preclude sub-classification

Validity of Sub-Classification Within Reserved Categories

Judges: D.Y. Chandrachud CJI, B.R. Gavai J, Vikram Nath J, B.M. Trivedi J, Pankaj Mithal J, Manoj Misra J, S.C. Sharma J

On 7 February 2024, the seven-judge Constitution Bench led by Chief Justice D.Y. Chandrachud continued hearing arguments to decide if states could create sub-classifications within reserved categories. 

This Bench heard arguments against its decision in E.V. Chinnaiah v State of Andhra Pradesh (2004), where a five-judge bench had held that creating sub-classifications within the Scheduled Caste (SC) category was constitutionally impermissible. 

Previously, Gurminder Singh, the Advocate General of Punjab and Shadan Farasat, the Additional Advocate General of the state, argued that the decision in Chinnaiah wrongly interpreted SCs as a homogeneous class.

Several other counsels argued on behalf of various states and civil society organisations against the correctness of the decision in Chinnaiah. They included Senior Advocates Kapil Sibal, Gopal Sankaranarayanan, K.K. Venugopal, Shekhar Naphade, Siddharth Luthra, Salman Khurshid, S. Muralidhar. Attorney General R. Venkataramani and Solicitor General Tushar Mehta also advanced brief submissions in support of sub-classification. 

Eager to wrap up the petitioners’ arguments, the Chief persistently reminded each counsel about the ticking clock and alerted them about repetitive arguments. These efforts paid off, and the petitioners concluded their arguments yesterday. 

Background

In 1975, the government of Punjab issued a notification dividing its existing 25 percent reservation for Scheduled Castes (SC) into two categories: 50 percent toBalmikis (Valmikis) and Mazhabi Sikhs and the other half for the remaining groups within the SC category. 

Almost three decades later, in E.V. Chinnaiah v State of Andhra Pradesh (2004), a five-judge set aside a similar law in Andhra Pradesh reasoning that sub-classification within the SC category was not permitted. Subsequently, the Punjab and Haryana High Court struck down the Punjab notification on 25 July 2006. 

Following this decision, the Punjab government passed the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 (the Act). Section 4(5) of the Act reintroduced 50 percent “first preference” reservations for Balmikis and Mazhabi Sikhs.

On 29 March 2010, the Punjab and Haryana High Court struck down this provision, relying on the Chinnaiah judgement. The Punjab government moved the Supreme Court on appeal. 

In August 2014, a three-judge bench referred the matter to a five-judge Constitution Bench to assess the correctness of E.V. Chinnaiah. On 15 July 2020, a five-judge bench led by Justice Arun Mishra began hearing the matter and referred the case to a seven-judge bench on 28 August 2020. 

On 6 February 2024, a seven-judge bench led by Chief Justice D.Y. Chandrachud began hearing the case. 

Sibal: The assumptions made in Chinnaiah are constitutionally flawed

Appearing for Gurbachan Singh (associated with Mazhabi Sikhs & Balmiki 12.5% Rakhvankaran Bachao Morcha), Sibal opened the arguments for the day. He contended that Chinnaiah invalidated sub-classification on two assumptions. First, that Bench had assumed that SCs as a whole were a homogenous group. Second, it equated the 1950 Presidential Order—which lists state-wise SCs—with reservations. He asserted that both these assumptions were constitutionally flawed. 

He pointed out that the first assumption was flawed, as within the SC group, there were varying levels of educational, economic and social development. Those with a higher degree of backwardness face dual discrimination—from the upper castes and the less backward of the SCs. The second assumption was faulty because a mention in the presidential list does not guarantee a reservation for that group. The list was only a “designation” of class, not an indication of reservation.

He also asserted that in Chinnaiah, the Court wrongly viewed sub-classification as “tinkering” with the presidential list. Sub-classification was a way for states to accord preferential treatment to castes already falling within the category of SC. It did not involve varying the list in any way.

Sankaranarayanan: The historical context of SC and ST identities is important

Sankaranarayanan appeared for the Madiga Jana Seva Samithi, an intervening party. The category of SC had its origins in the 1891 Census Report which demarcated the population based on occupations. This report used the phrase “depressed classes” to categorise groups engaged in “menial” occupations. The concept of ST was conceived in the 1931 Census Report which used the phrase “primitive tribes” to describe nomadic tribes. 

Ultimately, these categories found their way into the Schedule of the Government of India Act, 1935 and so these groups came to be known as the “Schedule Castes” and “Scheduled Tribes”. This Act, Sankaranarayanan claimed, was the basis of the SC (and ST list) in the Constitution. It was a “constitutional atonement” to historical backwardness spanning centuries. 

He submitted that it becomes incumbent on the state to not repetitively grant benefits to the groups that are adequately represented. 

On day one, the Bench had asked whether it would be valid to preserve all reserved seats for just two communities. In Sankaranarayanan’s view, the answer was a “yes”. This is because the constitutional scheme was to ensure that “one day, the 100 different backward castes” would be forward enough to not need reservation anymore.

Venugopal: Sub-classification enables the enforcement of Directive Principles

Representing the Madiga Reservation Porata Samiti, Venugopal argued next. He submitted that from the very inception of the Constitution, the founding fathers had examined the disabilities of various groups and provided for their upliftment. They sought to ensure that “unequals were treated unequally”, suggesting that sub-classifications were necessary to ensure this unequal treatment in service of Article 14. 

Venugopal contended that sub-classifications were also necessary because, according to the Directive Principle of State Policy in Article 38(2), there was an obligation on the State to “strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status…not only amongst individuals but also amongst groups of people….” 

Venkataramani: There is an obligation on Union and states to eradicate inequalities

During his turn, the Attorney General read out his five-page-long written submissions. He stated that the fields of Articles 341 and 342 on the one hand, and Articles 14, 15 and 16 on the other, were different. The former was confined to the “enumeration” of the SCs and STs but the latter was the “equality charter of the Constitution” responsible for the “effectuation” of their empowerment. “Therefore, Article 341 is not to be seen as a limitation or constraint on what can be done or what needs to be done under the equality charter of the Constitution under Articles 14 to 16,” he read. 

Further, he claimed that the decision in Chinnaiah needed reconsideration as it viewed SCs as a homogenous group. “There is no homogeneity amidst them in a sociological sense,” he read. “Mere clubbing of distinct castes or tribes by itself will not render them homogenous.” This distinction, he submitted, needed to be addressed by the equality charter. 

Mehta: Sub-classification does not affect the finality of Article 341

During his brief arguments just before the Bench broke for lunch, Mehta twice clarified that the Union was not “against reservation” but was here to argue on the constitutional permissibility of sub-classifications within reservations. 

He stressed on the difference between the exercise of identifying SCs and the exercise of extending reservations to the identified classes. The power to conduct the first exercise, Mehta stressed, was with the President, in consultation with the Governor of the state or Union Territory, and was final under Article 341. The second exercise was a prerogative of the Union and state governments but had to be preceded by the first exercise. 

Mehta also took the Court through a series of judgements including State of Madras v Srimathi Champakam Dorairajan (1951), M.R. Balaji v State of Mysore, (1963), State of Kerala v N.M. Thomas (1976), Indra Sawhney v Union of India (1992), M. Nagaraj v Union of India (2006) to highlight that, over the years, the Court had evolved jurisprudence to focus more on the “backward amongst backwards.”

Naphade: The reasoning in Chinnaiah goes against the “basic concept of classification”

Representing the state of Tamil Nadu, Naphade first highlighted the benefits of sub-classification with the example of the Tamil Nadu Arunthathiyars Act, 2009, which allocated a certain number of seats in educational institutions and government positions for the Arunthathiyar community. (The challenge to this Tamil Nadu legislation was one of the petitions tagged to the Punjab Government’s appeal in the Supreme Court.) 

He then claimed that the Chinnaiah conclusion of sub-classification not being permitted because the SCs were a homogenous group was flawed. Naphade contended that the real test was one of intelligible differentia and rational nexus established under Article 14. As long as there was a rational reason to create a classification based on empirical evidence and the classification was in service of the goal of the legislation, it was valid. 

Battery of counsel squeeze in a quick word 

The Bench then heard a number of quick submissions from a battery of counsel. 

Senior Advocate Nidhesh Gupta, appearing for the Mazhabi Sikhs & Balmiki 12.5% Rakhvankaran Bachao Morcha, submitted that the decision in Chinnaiah was bad law in view of the constitutional scheme. He claimed that the expression “backward classes” under Article 16(4) encompassed SCs, STs and socially and economically backward classes.

Advocate Shraddha Deshmukh, representing the Karnataka Madar Mahasabha, highlighted Chinnaiah’s reasoning that sub-classification benefitted only a “minuscule proportion of the Scheduled Castes” was erroneous as rights were not based on proportionality. 

Senior Advocates Salman Khurshid and Rakesh Khanna explained that reservations could be horizontal or vertical. Horizontal reservations do not involve the creation of new classes or groups. Sub-classifications were a form of horizontal reservation and were therefore permissible. 

Advocate Shivam Singh urged that sub-reservations were needed since they adopt an intersectional approach to equality. 

Senior Advocates Dama Seshadri Naidu, Siddharth Luthra (for Telangana), Vijay Hansaria, S. Muralidhar (for Andhra Pradesh) and Advocate Kanu Agarwal also made fleeting submissions for petitioners. 

With this, the petitioners concluded their arguments in support of sub-classification within reserved categories. The respondents will commence arguments in support of Chinnaiah on Thursday, 8 February 2024.