The Supreme Court’s judgement on Thursday permitting sub-classification within the Scheduled Castes and Scheduled Tribes for the purpose of reserving seats in educational institutions and public employment will have wide-ranging ramifications. It allows the state to reserve seats for specific sub-groups within the quotas earmarked for Scheduled Castes and Scheduled Tribes based on the sub-group’s more backward or disadvantaged status.
A seven-judge Constitution bench of the Supreme Court delivered this decision in a 6:1 verdict. The bench’s 565-page judgment comprises six separate opinions.
The judgments by Chief Justice of India DY Chandrachud, written on behalf of himself and Justice Manoj Misra, as well as those by Justices BR Gavai, Vikram Nath, Pankaj Mithal and Satish Chandra Sharma comprise the majority opinion. The sole dissenting opinion is contained in Justice Bela Trivedi’s judgment.
Gavai, Nath, Mithal and Sharma in their judgments also suggested that the state extend to reservations for the Scheduled Castes and the Scheduled Tribes the principle of the “creamy layer”, which aims to exclude the wealthier and more advanced members within a group from the benefits of affirmative action.
Since the application of the creamy layer principle was not one of the questions before the bench and there were no arguments advanced on this during the court hearings, these suggestions lack legal enforceability. Such directives also fail to account for the nature of discrimination faced by the Scheduled Castes and the Scheduled Tribes over centuries in India.
As many academics have noted, the entrenched and historical marginalisation of these groups over generations requires long-term efforts to overcome. It cannot be rectified through merely wealth or the availing of reservation benefits by one’s parents.
Scroll breaks down the judgment and its multiple strands.
Back to 1975
The judgment traces its genesis to a Punjab government decision in 1975 to divided the state’s 25% reservation for Scheduled Castes into two categories: half for members of the Balmiki community and Mazhabi Sikhs and half for other Scheduled Castes.
This stayed effective until the Supreme Court’s decision in EV Chinnaiah v State of Andhra Pradesh in 2004, which ruled against sub-classification within the Scheduled Castes. As a consequence, the Punjab and Haryana High Court in 2006 struck down Punjab’s notification.
The 2004 judgment, delivered by a five-judge Constitution bench, held that states cannot classify groups as Scheduled Castes since that is a power reserved for the President under Article 341 of the Constitution. It emphasised that the Scheduled Caste category is homogenous, so any sub-classification would violate equality rights.
However, Punjab went on to pass the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, reintroducing first preference reservations for Balmikis and Mazhabi Sikhs for half of the Scheduled Castes quoata. The Punjab and Haryana High Court struck this down in March 2010, leading to an appeal to the Supreme Court.
In August 2014, a three-judge bench of the Supreme Court referred the matter to a five-judge Constitution Bench.
In July 2020, the Constitution bench began hearings. In a judgment the next month, it noted that sub-classification was allowed for Socially and Educationally Backward Classes under Article 342A of the Constitution. It argued that since Articles 341, which refers to the Scheduled Castes and 342, which refers to the Scheduled Tribes, were similar to 342A, sub-classification should also be permitted for Scheduled Castes and Scheduled Tribes.
Since a bench of a constitutional court cannot overrule a previous judgment by a bench of the same strength, the five-judge bench referred the matter to a seven-judge bench.
In October 2023, the Supreme Court listed the matter for a seven-judge bench hearing to address the permissibility of sub-classifying Scheduled Castes and Scheduled Tribes and the competence of state legislatures to do so.
The hearings before the seven-judge bench took place over three days this February.
Sub-classification permissible
On Thursday, both Chandrachud and Gavai in their judgments offered substantive reasons for overruling the 2004 judgment and finding sub-classification of Scheduled Castes and Scheduled Tribes to be permissible and how sub-classification could be undertaken by states. Nath, Mittal and Sharma in their judgments concurred with Chandrachud and Gavai.
Chandrachud provided historical and empirical evidence showing the heterogeneity within the Scheduled Caste community, supporting the argument that treating the Scheduled Caste community as a monolithic block undermines the objective of reservations.
He emphasised the importance of substantive equality over formal equality. Formal equality treats everyone the same, regardless of their differing circumstances. Substantive equality, on the other hand, seeks to address these differences to achieve actual fairness.
Gavai, in a similar vein, held that the principle of equality under Articles 14 and 16 of the Constitution mandates that the benefits of affirmative action should reach those who are genuinely in need. Sub-classification is seen as a tool to achieve substantive equality.
He pointed out that some communities within these categories have advanced more than others, necessitating a more nuanced approach to reservations.
Acknowledging that not all Scheduled Caste communities are equally disadvantaged, both Chandrachud and Gavai noted that sub-classification helps target the benefits of reservation to the most disadvantaged, thus promoting substantive equality.
Chandrachud referred to the Supreme Court’s 1992 judgment in Indra Sawhney v. Union of India, in which a nine-judge Constitution bench of the court had allowed for sub-classification within the broader category of backward classes. He held that the 1992 judgment had not limited the application of sub-classification only to the Other Backward Classes.
Gavai clarified that the power of Parliament under Articles 341 and 342 to include or exclude communities from the Scheduled Castes and Scheduled Tribes lists did not preclude the states from making sub-classifications to ensure equitable distribution of reservation benefits.
However, both Chandrachud and Gavai’s judgments placed some constraints on states’ power to sub-classify.
The sub-classification of the Scheduled Castes would be allowed only if there is a rational principle for differentiation between the sub-groups and the principle is linked with the purpose of sub-classification, Chandrachud held. The sub-classification must be on the basis of empirical data relating to backwardness or representation in public services, not on the whim of government or political expediency, he said.
Similarly, Gavai stated that the state would have to justify on the basis of empirical data that the sub-group being given preferential treatment was inadequately represented compared to other castes in the list.
He expressly barred sub-classification to be conducted in a manner that reserves all the seats available for the Scheduled Castes for one sub-group and excludes the other castes in the list.
Creamy layer within SCs and STs?
The judgments by Gavai, Nath, Mithal and Sharma also dealt with the application of the creamy layer principle to the Scheduled Castes and Scheduled Tribes. This was unusual, since this was not the subject of litigation or part of the issues that had been framed for the bench to adjudicate.
Gavai, the only member of the bench who is a member of the Scheduled Castes, stated that several Supreme Court judgments had already extended the creamy layer principle to reservations in promotions for members of the Scheduled Castes and Scheduled Tribes in public services.
In 2018, a five-judge Constitution bench of the Supreme Court held that the state cannot extend reservations in promotions to individuals from the Scheduled Castes and the Scheduled Tribes who belong to the creamy layer.
Gavai said that the creamy layer principle would prevent reservation benefits being monopolised by a few and ensure that reservations do not perpetuate inequality within the Scheduled Castes and the Scheduled Tribes. It was intended to make sure that the truly disadvantaged get the benefits, he stated.
However, he clarified that the criteria for excluding the creamy layer from the Scheduled Castes and Scheduled Tribes for reservation could be different from the criteria applicable to the Other Backward Classes.
Nath, Mithal and Sharma, in their judgments, concurred with Gavai on this.
Mithal’s judgment, even more unusually, is almost entirely dedicated to examining the desirability of reservation as a tool of empowering backward communities – again, this was never the subject of the litigation.
It is worth reproducing some of his conclusions in entirety. He called for a “fresh re-look” at the policy of reservations and for the “evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to [Scheduled Castes/Scheduled Tribes/Other Backward Classes] communities”.
According to his judgment, “any facility or privilege for the promotion” of the Scheduled Castes, the Scheduled Tribes and Other Backward Classes “has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural)”.
He added that “reservation has to be limited only for the first generation or one generation” and not be made available to the succeeding generation of a beneficiary of reservation. Periodic exercises “to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category” must be undertaken by the state. he said.
Since this was outside the purview of the questions before the court, these opinions would fall firmly within the realm of obiter dicta – those sections of a judicial opinion that are not relevant to the court’s decision and would therefore lack the force of law.
3. There was no other question before the Court, including “creamy layer.” Nor have the four judges who’ve (unnecessarily) talked about “creamy layer” issued any binding or enforceable directives to the State. At the highest I think these have no more legal force than advisories.
— Gautam Bhatia (@gautambhatia88) August 1, 2024
Justice Trivedi dissents
In her dissenting judgment, Trivedi upheld the correctness of the Supreme Court’s 2004 judgment and noted that the Scheduled Castes and Scheduled Tribes lists could not be changed by states.
According to her judgment, the decision to refer the 2004 judgment to a larger bench by a three-judge bench was without cogent reasons and thus, bad in law. A Constitution Bench decision should not have been disregarded by a smaller bench without substantial reasons, she noted.
Differing from the other six judges, she held that the Presidential List specifying the Scheduled Castes under Article 341 attains finality upon publication. Only Parliament could alter this list and any subdivision or regrouping by the states is impermissible, she said.
According to Trivedi, the states lack the legislative competence to sub-classify the Scheduled Castes for the purposes of reservations. Any such action would undermine the uniformity and special status accorded to the Scheduled Castes by the Presidential List, disrupting the intended structure and protections under the Constitution, she stated.
She added that the Scheduled Castes, despite being drawn from different castes, form a homogenous class due to the Presidential Notification. Thus, they should not be sub-classified or regrouped by states for affirmative action.
