Constitution Bench of SC comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah and Justice Aniruddha Bose, delivered a very Important Judgment today in the case State of Punjab v. Davinder Singh (Civil Appeal No. 2317/2011), holding that states can make laws to give preferential treatment to specific castes within the Scheduled Castes or can make sub categorization of specific castes with Scheduled caste. In view of the 2004 Constitution bench ruling in E.V.Chinnaiah vs State Of Andhra Pradesh, (2005) 1 SCC 394 that held otherwise, matter referred to a bench of seven judges or more.
The Punjab and Haryana High Court quashed Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 (hereafter ‘Act’) as unconstitutional. Section 4(5) of the aforesaid Act provides for ‘first preference’ to the “Balmikis” and “Mazbhi Sikhs” castes for Scheduled Caste reservations in public services.
The High Court reasoned that Section 4(5) created an unconstitutional sub-division within the Scheduled Castes, citing the precedent established by E.V.Chinnaiah vs State Of Andhra Pradesh, (2005) 1 SCC 394. The Supreme Court in E.V. Chinnaiah case held that any ‘sub-classification’ of the Scheduled Castes would violate Article 14 of the Constitution. It had stressed that only Parliament, not State Legislatures, can exclude castes deemed to be Scheduled Castes from the Presidential List under Article 341 of the Constitution.
The State of Punjab appealed the High Court’s judgment on the ground that E.V. Chinnaiah does not apply to the current case. It claims that its legislature had the competence to enact Section 4(5) of the Act. In addition, it has raised the issue of whether a seven-judge Bench of the Court needs to revisit E.V. Chinnaiah case.
- Whether the provisions contained under Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 are constitutionally valid?
- Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act?
- Whether the decision in E.V. Chinnaiah Vs. State of A. P. & Ors. reported in (2005) 1 SCC 394 is required to be revisited?”
Submissions in Favour of Sub Categorization and Preferential treatment of Specific Caste in SC/ST Category:
- Merely giving of preference does not tinker, rearrange, sub-classify, disturb or interfere with the Presidential List under Article 341 in any manner whatsoever since there is no inclusion or exclusion of any caste in the list as notified under the meaning of Article 341.
- The Punjab Act has been enacted under Article 16(1) and 16(4) read with Articles 245 and 246. The provisions of Section 4(5) of the Punjab Act are within the legislative competence of the State.
- The Court in E.V. Chinnaiah erred in correctly interpreting the majority ratio in Indra Sawney on the question of sub-classification within a class. At least five out of nine Judges in Indra Sawney held that amongst the backward, there may be some more backward, and when the State chooses to make such classification, it would be permissible in law.
- Article 16(4) covers all backward classes, including Scheduled Castes and Scheduled Tribes.
- The scope of Article 16(4) is wider in its ambit than Article 15(4). The expression “backward class of citizens” used in Article 16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes and other backward classes, including the socially and educationally backward class.
- The preferential treatment is a facet of equality under Article 14.
- It is permissible for the State to give preferential treatment within the list based on the comparative backwardness of any class, there is nothing in Article 341, which prohibits the same.
Submissions Against the Sub Categorization and Preferential treatment of Specific Caste in SC/ST Category:
- The Parliament alone has the power to exclude castes listed in the Schedule.The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the schedule so published by the President.
- In Indra Sawhney, the sub-classification was limited to socially and educationally backward classes. It was observed that none of its observations would apply to Scheduled Castes and Scheduled Tribes.
- The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes.
- The Governor is empowered only to make recommendations under Article 341 for alteration in the list. No further classification can be made once Scheduled Castes, and Scheduled Tribes are covered under Article 16(4).
- There is a difference between Scheduled Castes and Other Backward Classes. The Scheduled Castes are untouchables.
- It is not open to the Parliament or Legislature of States to make classification inter se Scheduled Castes/Scheduled Tribes once they are included in the Schedule.
- It is not permissible to leave one caste grouped within the list. The power has been exercised maliciously.
The Court Held:
The question arises how different opinions can be expressed with respect to Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes for the purposes of the classification. The provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. The authoritative pronouncement is required with respect to the effect of aforesaid provisions of the Constitution and whether subclassification is permissible only with respect to the socially and educationally backward classes covered under Article 342A read with Article 366(26C) and not with respect to Scheduled Castes and Scheduled Tribes covered under similar provisions, i.e., under Articles 341 and 342 read with Article 366(24) and 366(25) respectively. The question of immense public importance arises in view of the insertion of Article 342A. When we consider Indra Sawhney, permitting such classification of socially and educationally backward class, and provisions of Articles 341, 342, and 342A are part materia, the Court is required to have a fresh look on the decision rendered in E. V. Chinnaiah. In the spirit of constitutional provisions, the question is required to be re-examined authoritatively by this Court being of immense public importance. Thus, the case is required to be heard by a larger Bench than the one which decided E.V. Chinnaiah.
Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor. Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating that there is inequality inter se various castes included within the list of Scheduled Castes. They do not constitute homogenous class have been relied upon. Based on the report and to give adequate representation to those who continue to remain the most backward of the downtrodden class, the provisions containing a certain percentage of preferential treatment subject to availability without depriving others in the list were made.
Reservation was not contemplated for all the time by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal. In Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors., 2020 SCC OnLine SC 383, the necessity of revising lists was pointed out relying on Indra Sawney and Union of India & Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50.
There is cry, and caste struggle within the reserved class as benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation. The scavenger class given the name of Balmikis remains more or less where it was, and so on, disparity within Scheduled Caste is writ large from various reports. The sub-classification was made under Section 4(5) of the Punjab Act to ensure that the benefit of the reservation percolate down to the deprived section and do not remain on paper and to provide benefit to all and give them equal treatment, whether it is violative of Article 14? In our opinion, it would be permissible on rationale basis to make such sub-classification to provide benefit to all to bring equality, and it would not amount to exclusion from the list as no class (caste) is deprived of reservation in totality. In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread. The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class.
The Scheduled Castes as per Presidential List are not frozen for all the time, and neither they are a homogenous group as evident from the vast anthropological and statistical data collected by various Commissions. The State law of preferential treatment to a limited extent, does not amend the list. It adopts the list as it is. The State law intends to provide reservation for all Scheduled Castes in a pragmatic manner based on statistical data. It distributes the benefits of reservations based on the needs of each Scheduled Caste.
The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/ percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the list based on the rationale that would conform with the very spirit of Articles 14, 15, and 16 of the Constitution providing reservation. The State Government cannot temper with the list; it can neither include nor exclude any caste in the list or make enquiry whether any synonym exists as held in Milind.
The “inadequate representation” is the fulcrum of the provisions of Article 16(4). In our opinion, it would be open to the State to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.
We cannot revisit E.V. Chinnaiah being Bench of coordinate strength. We request the Hon’ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate.