The Supreme Court on Thursday ruled that the sub-classification of Scheduled Castes and Scheduled Tribes is permissible for providing reservations in government jobs and education, Live Law reported.

The seven-judge Constitution bench headed by Chief Justice DY Chandrachud in a 6:1 majority verdict, overruled the court’s 2004 judgement, which held that Scheduled Castes formed a homogenous group and hence could not be sub-divided into categories, The Indian Express reported.

Four of the seven judges also called for the identification of the creamy layer among the Scheduled Castes and Scheduled Tribes categories so that they could be removed from the reservation matrix, according to Bar and Bench.

Apart from Chandrachud, the bench comprised Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma.

Trivedi dissented from the majority, holding that such sub-classification was not permissible.

While pronouncing its verdict, the bench said that the members of the Scheduled Caste and Scheduled Tribe communities were often not able to “climb up the ladder due to the systemic discrimination faced”, Bar and Bench reported.

The court said that Article 14 of the Constitution, which pertains to equality before the law, permitted the sub-classification of caste, adding that historical evidence and social parameters showed that all Scheduled Castes and Scheduled Tribes did not constitute a homogeneous class.

The bench noted that the sub-classification of these groups also was not against Article 341, which conferred upon the president the right to make changes to the list Scheduled Castes and Scheduled Tribes.

“We have also established through historical evidence that Scheduled Castes notified by the president are a heterogenous class,” it said, according to Bar and Bench.

The bench added: “There is nothing in Articles 15, 16 and 341 which prevents sub-classification for SCs if there is a rational for distinction and there is a rational nexus for the object sought to be achieved.”

While Article 15 forbids discrimination on grounds of religion, race, caste, gender or place of birth, Article 16 allows for equal opportunity in employment in the government.

The court said that sub-classification by a state has to be backed by empirical data, adding that it should not be based on whims or to meet political ends.

In its judgement, the court held that Article 341 did not create any “deeming fiction” that all Scheduled Caste and Scheduled Tribe are a homogenous class. Article 341 allows the president to declare certain castes and classes as Scheduled Castes in a state or a Union territory.

“Deemed word does not create a legal fiction as it does not create an artificial distinction,” the court said in its judgement. “Even if it is assumed so, fiction cannot be taken to legal consequences. The inclusion does not automatically lead to an internal homogenous class.”

In her dissenting judgement, Trivedi held that states cannot tinker with the president’s list of Scheduled Castes and Scheduled Tribes under the guise of providing reservations, saying that this would amount to the “colourable exercise” of power, Bar and Bench reported.

“The whole doctrine of the colourable exercise of power is that what is not permitted directly cannot be done indirectly,” she said.

Affirmative action had to be within the constitutional fold, she added.

The case stems from a Punjab government notification in 1975 that divided its 25% quota for the Scheduled Castes at the time into two categories. The court reserved its judgement on the legality of the sub-classification in February.

The state had sought a review of the 2004 judgement that had ruled that all Scheduled Caste communities that were discriminated against for centuries represented a homogeneous class, which was incapable of being sub-categorised, The Hindu reported.

The bench had heard 23 petitions, including the one filed by the Punjab government.

On creamy layer

In his concurring but separate judgement, Gavai said that the state should formulate a policy to identify the creamy layer among the Scheduled Castes and Scheduled Tribes as this was the “only way to gain true equality”.

Nath said that the creamy layer principle that was applicable to those under the Other Backward Classes category should also be applicable to the Scheduled Castes and Scheduled Tribes.

“…the criteria for exclusion of creamy layer for the purpose of affirmative action [for Scheduled Castes and Scheduled Tribes] could be different from the criteria as applicable to the Other Backward Classes,” Nath said.

Mithal said that reservations should be given only to the first generation within a category. “If the second generation has come up then benefits of reservation shall not be given and state should see if after reservation the second generation has come shoulder to shoulder with the general category,” he said.

According to Sharma, the identification of the creamy layer among the two categories should become a “constitutional imperative”.