NEW DELHI, Feb 7: A seven-judge Constitution Bench of the Supreme Court headed by the Chief Justice of India D.Y. Chandrachud has observed that Scheduled Castes cannot be treated as a “homogenous group” for granting reservation as some may have advanced in society while others continue to remain “particularly underprivileged.”
The observation was made during the Constitution Bench examining the question whether individual States could identify and sub-classify backward classes within the Scheduled Caste category in order to give them more preference in reservation. The Centre has assured the court it was “committed” to the reservation policy. The Tamil Nadu government, in its turn, said the reservation policy should evolve with the time or would get “fossilised.”
The court said the diverse groups, clubbed together in the Presidential list under Article 341 of the Constitution as “Scheduled Castes”, cannot be treated alike. “What we have in the Presidential list is various castes, who have suffered humiliation and dehumanisation, put together… Sapera [snake charmer], Bazigar [acrobat], Batwal [watchman]… all with different occupations… The heterogeneity is clear from the Presidential list itself,” senior advocate Kapil Sibal, for a petitioner, highlighted.
The Chief Justice agreed they were heterogeneous in terms of their pre-existing occupations, social status and social indicators of backwardness or development. Over the decades, some of them had advanced while others continued to remain “particularly underprivileged,” Chief Justice Chandrachud noted. The Chief Justice said social indicators like infant mortality, maternal mortality, and fertility rates would also broadly show whether there had been progress. “The status of every caste may not be the same in the social hierarchy,” the CJI noted.
The debate revealed that the Bench was exploring a diametrically opposite view from that held in a 2004 Constitution Bench judgment in the E.V. Chinnaiah case. In this verdict, 20 years ago, a five-judge Bench had held that Scheduled Castes were a “homogenous group” and sub-classification would be a violation of the right to equality.
Solicitor-General Tushar Mehta, for the Centre, acknowledged it was the duty of the State to remove barriers for the upliftment of the backward classes. Mr Mehta said it was for a State to identify and recommend a backward group. The Parliament enacts the legislation including declaring the group in the Scheduled Caste category. The State concerned has to implement the reservation, he explained.
Senior advocate Shekhar Naphade, for Tamil Nadu, said it was within the prerogative of a State government to identify and sub-classify groups within the Scheduled Caste category in order to aid the “weakest of the weak.” “It has been the consistent policy of the Government of Tamil Nadu to ensure the upliftment of the lowest-rung sections of the society,” Mr Naphade submitted in court.
The State was referring to the Tamil Nadu Arunthathiyars (Special Reservation) Act of 2009. The Act had been brought into force to provide preferential reservation for the Arunthathiyars community, a historically oppressed class within Tamil Nadu, to get them on a par with other Scheduled Castes.
The constitution had also questioned why affluent sub-castes among backward classes should not be “excluded” from the reservation list and made to compete with the general category. “Why should there be no exclusion [from the reservation list]? Some of these sub-castes have done better and gone forward. They should come out of reservation and compete with the general category… Why stay there?” asked Justice Vikram Nath, one of the seven judges on the Bench.
Justice Nath said these advanced sub-castes could exit the domain of reservation to make room for sub-castes who were relatively more marginalised or most backward. “The remaining sub-castes who are still backward, let them have reservation,” Justice Nath said.
“Once a person gets into IPS or IAS, his children do not suffer from the disadvantages of others from his group who live in a village… Yet his family will get the benefits of reservation for generations,” Justice B.R. Gavai, on the Bench, remarked. He added that it was for the Parliament to decide whether a “powerful or influential” group should be excluded from the quota list or not.
Chief Justice Chandrachud indicated that exclusion may be implicit in the concept of reservation. The forward classes were necessarily excluded while reserving seats for backward classes, but this was approved by the Constitution as the nation believed in substantive equality and not formal equality, the Chief Justice observed orally.
Punjab, however, supported classifications of sub-groups within the Scheduled castes in a bid to defend its 2006 law, “the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act. Section 4(5) of the Act which gave ‘first preference’ quota to Balmikis and Mazhabi Sikhs. Half of the reservation offered to the SC category went first to these two groups.
The Punjab government opened arguments by submitting that States were empowered to identify sub-castes within the SC category and grant them more reservation on the ground that they were “relatively more marginalised than the marginalised.”
Punjab Advocate-General Gurminder Singh argued that, if communities could be classified into general and backward, the same could be done within the backward communities. The State argued that if sub-classification was permitted within the Socially and Educationally Backward categories, the same could be permitted for the Scheduled Castes and Scheduled Tribes.
In 2010, the State High Court had struck down the provision on the basis of a five-judge Constitution Bench judgment in the E.V. Chinnaiah case, which held that only the President was empowered to categorise a group as SC under Article 341 of the Constitution. The Constitution Bench had further declared that SCs were a “homogenous group” and that sub-classification would be a violation of the right to equality.
Mr Singh argued that the sub-classification made in the 2006 Act was not in “breach of equality but as an aid to equality,” He said that by giving first preference to the “most backward among the backward or the weakest among the weak,” there was no exclusion practised.
“You are saying that in a federal structure, every State within a nation is peculiarly conversant with the castes and communities in that State. The President, under Articles 341 and 342, has designated castes and tribes for the entire nation. But that does not take away the power of the States to identify more backward sub-castes or groups among them who require special attention and benefits. The Constitution does not prevent it. A State has an obligation to look after all of its people,” Chief Justice Chandrachud addressed the Punjab side.
The Bench however disagreed with the argument that there was no exclusion involved in the concept of reservation. “Even by providing 50% reservation to backward classes, are you not excluding 50% of the general class?” Justice Gavai quizzed. But one of the lawyers submitted that the gulf between the forward castes and the backward groups was still substantial.