On September 24, 2024, the Supreme Court's 7-judge Constitution Bench of Chief Justice Dr. D.Y. Chandrachud, Justices B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma dismissed a batch of 33 review petitions filed against its judgment dated August 1, 2024 in The State of Punjab vs Davinder Singh (2024). The judgement had held that States are empowered to make sub-classifications within the Scheduled Castes (SCs) for granting reservations under the Constitution of India. Upon perusing the papers, it dismissed the review petitions. The dismissal order reads: "Applications for listing the review petitions in open Court are rejected....Having perused the review petitions, there is no error apparent on the face of the record. No case for review under Order XLVII Rule 1 of the Supreme Court Rules 2013 has been established. The review petitions are, therefore, dismissed."
The decision in The State of Punjab vs Davinder Singh (2024) has been deemed one of the 28 landmark judgements of the Supreme Court delivered in 2024. The Court dealt with the subject of States' power to sub-classify Scheduled Castes for providing reservation in its 565 page long judgement of August 1, 2024. The 7-judge bench adjudicated on the questions like: (i) Whether the sub-classification of SCs for providing reservation is allowed under the Constitution of India. (ii) Whether the States have the power under Articles 15 and 16 of the Constitution to sub-classify SCs. It concluded that it was permissible for States to sub-classify SCs when providing reservations.
The judgement refers to the reports of 21 Committees and Commissions set up by different States including the report of Bihar's Mungeri Lal Commission (1976),
identified 128 communities as backward and 94 of them as most backward.
It recommended 20% reservation in Government services and 24% in
professional institutions. It also refers to the report of Bihar's
Mahadalit Commission (2007)
identified the castes within the scheduled castes that lagged behind.
The Commission recommended inclusion of 18 castes as extremely weaker
castes from amongst the list of scheduled castes. It refers to Court's decisions in Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045, Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine SC 2, Bharat Coking Coal Ltd. vs. State of Bihar and Others (1990) and Ashoka Kumar Thakur vs. State of Bihar (1995) among other decisions. It also refers to The Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995. In Bihar, Scheduled Castes include Chamar, Halalkhor, Mochi, Chaupal, Hari, Musahar, Dhobi, Kanjar, Nat, Dusadh, Kurariar, Pasi, Dom, Lalbegi, Bauri, Bhumij, Rajwar, Bhogta, Ghasi, Turi, Bhuiya and Pan.
Article 341(1) of the Constitution of India grants the President the power to notify the castes, races or tribes which shall be deemed to be SCs in a State or a Union Territory. Article 341(2) states that Parliament can include or exclude any caste, race, or tribe from the list of SCs in the President’s notification. Various laws and schemes provide reservations in public employment to individuals from SCs.
Section 4(5) of the Punjab Act provided that fifty percent of the vacancies of the SC reservation shall be offered on first preference to Balmikis and Mazhabi Sikhs amongst the SCs. On March 29, 2010, the High Court of Punjab declared Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 unconstitutional. It relied on Supreme Court's decision in EV Chinnaiah v. State of Andhra Pradesh (2004 INSC 644) wherein a 5-judge Constitution Bench of the Supreme Court held that sub-classification amongst SCs by states is unconstitutional because: (i) SCs constitute a homogeneous class; (ii) sub-classifying them would amount to ‘tinkering’ with the Presidential list under Article 341 of the Constitution, which only Parliament can do; and (iii) the rationale of the Nine-Judge Bench in Indra Sawhney v. Union of India (1996 INSC 1273), which permitted sub-classification of the Other Backward Classes (“OBCs”), does not apply to SCs.
On August 20, 2014, a 3-judge Bench of the Supreme Court adjudicating the validity of the Punjab Act referred the correctness of decision in EV Chinnaiah case for consideration by a larger Bench. On August 27, 2020, in the State of Punjab v. Davinder Singh (2020 INSC 512), a 5-judge Constitution Bench held that the judgment in E.V. Chinnaiah case requires reconsideration by a larger Bench of 7-judges. A 7-judges Bench was constituted which heard several appeals which challenged similar
sub-classifications made in reservation policies of the States of
Haryana and Tamil Nadu along with The State of Punjab vs Davinder Singh (2024).
The 7-judge Bench, by a 6:1 majority, held that it was permissible for states to sub-classify SCs when providing reservations. Chief Justice Chandrachud authored a plurality opinion for himself and Justice Misra. Justice Gavai, Justice Mittal, Justice Nath and Justice Sharma each authored separate concurring opinions. Justice Bela Trivedi wrote a dissenting judgment which found sub-classification to be impermissible under the Constitution.
The majority held that the judgment of the 9-Judge Bench in Indra Sawhney case did not create any bar on sub-classification of SCs because sub-classification of SCs was not an issue in that case. It ruled that Indra Sawhney case in fact utilised the principle of sub-classification in the context of OBCs to ensure meaningful and substantive equality was achieved where the various constituents within a caste group were not comparable.
In her dissenting opinion, Justice Trivedi found that the Court in Indra Sawhney case specifically excluded SCs from the scope of its judgment, and thus the decision could not be interpreted as permitting sub-classification.
The majority traced the observations in E.V. Chinnaiah case that SCs are a homogenous class to an earlier decision in State of Kerala v. N. M. Thomas (1975 INSC 224) The majority observed that the decision in N.M. Thomas case merely observed that SCs once notified by the President cumulatively constituted a distinct “class” (vis-a-vis the general category individuals). However, the decision in N.M. Thomas case did not say that SCs are a homogenous class which can not be further sub-classified.
The majority observed that Article 341 states that once a caste is notified as an SC by the President, such a caste shall be “deemed” to be an SC. The inclusion of a caste within the SC category is only to demarcate them from other castes which are not included in the category. This inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified. The inclusion does not mean the existence or non-existence of internal differences among the SCs. It only means that each of the groups that are included in the list will receive the benefits that the Constitution provides to the SCs as a class.
The majority observed that Article 341(2) grants Parliament the power to include or exclude groups from the President’s list. This is the power that has been reserved for Parliament and denied to the States. A State Legislature cannot add or remove groups from the President’s List of SCs. However, sub-classification within the SCs for reservation does not include or exclude any caste or group from the President’s List of SCs under Article 341. Sub-classification does not lead to exclusion of any caste which is already in the President’s List. Therefore, as long as a State that does not include communities not in the President’s list of SCs or exclude communities that the President has designated as SCs, the State does not violate Article 341(2) when sub-classifying.
The majority held that historical evidence confirms that inequality exists within the SCs. Therefore, there is an intelligible way to differentiate between various castes within the SCs. The majority held that if the SCs are not similarly situated then states can not be prevented under Articles 15, 16 and 341 from applying the principle of sub-classification amongst the SCs.
Justice Trivedi’s dissenting opinion ruled that although various castes had experienced differing levels of historical discrimination, once they were included in the Presidential List under Article 341, they became a homogeneous group. As a result, any form of sub-classification within this group was not permissible. She also concluded that the states lacked the legislative authority to create such sub-classifications, as neither the State List nor the Concurrent List of the Seventh Schedule, which lays out the State’s lawmaking powers granted them the power to do so.
Justice Bela Trivedi in her dissenting opinion stated that the SC/ST groups are already categorized as a 'backward class of citizens’ by the President’s notification. Consequently, the concept of excluding the creamy layer cannot be applied to them.
Justice Trivedi in her dissenting opinion ruled that the 3-judge Bench’s decision to refer E.V. Chinnaiah case to a larger Bench was inappropriate and not in consonance with the doctrines of precedent and judicial discipline She also held that the referral lacked sufficient justification for doubting the reasoning in E.V. Chinnaiah case.
The
majority found that the purpose of the reservation clause in the
Article 16(4) of the Constitution is to remedy the inadequate
representation in public services of certain “classes” which have been
inadequately represented because of their backwardness. The question is
not whether certain sections of society are a numerical minority in the
state administration, but whether groups are inadequately represented
because of their backwardness. Further, meaningful representation would
not be fulfilled by SCs occupying numerous lower grade posts, but must
be assessed across all posts, including senior posts.
The majority held that the States can identify inter-se backwardness amongst SCs through empirical data based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness. The State must prove that the group/caste carved out from the larger group of SCs is more disadvantaged and inadequately represented. The decision of the state for sub-classification would be subject to judicial review.
The majority cautioned the States that they can not adopt a policy of reservation which would allocate seats separately for each caste. It reasoned that this is because the social backwardness suffered by each caste is not so distinct to give reserved seats to each caste separately. It ruled that two castes will have to be grouped together if their social backwardness is comparable.
A majority of the Court held that certain castes have been reaping benefits of reservation more than others. Therefore, States must evolve a policy to exclude the creamy layer of the SC/ST groups from the benefit of reservation. It also held that the creamy layer principle also applies to SCs. However, the criteria should be different from that which is used for the OBC reservation.
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