Will examine 2004 verdict on states' power to make sub-class in SCs, STs for quota: Supreme Court

New Delhi: The Supreme Court on Tuesday said it will examine the validity of its 2004 judgement holding that states do not have the power to further sub-classify the scheduled castes and scheduled tribes for grant of quotas.

A seven-judge Constitution bench headed by Chief Justice DY Chandrachud made clear that it will not get into the arguments related to the quantifiable data which led the Punjab government to provide for a 50 per cent quota inside the quota.

The bench, also comprising justices B R Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Mishra, was hearing 23 petitions, including the lead one filed by the Punjab government challenging the 2010 verdict of the Punjab and Haryana High Court.

The high court had struck down Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, which provided 50 per cent quota and the first preference to Valmikis and Mazhabi Sikhs castes in public jobs within the SC quota.

The high court had held the provision as unconstitutional on grounds, including that the provision violated a five-judge Constitution bench judgement of 2004 of the Supreme Court in the case of EV Chinnaiah vs. State of Andhra Pradesh.

The Chinnaiah judgement had held that any "sub-classification" of the scheduled castes would violate Article 14 (right to equality) of the Constitution.

The 2004 verdict had stated that only Parliament, and not state legislatures, can exclude castes deemed to be SC from the Presidential List under Article 341 of the Constitution.

The top court is examining questions whether sub-classification inside the scheduled caste and scheduled tribe categories be permitted like in the case of other backward classes (OBCs) and if the state assemblies are competent to introduce laws empowering the states to undertake this exercise.

The bench said in case of OBCs, the Indra Swahney (Mandal case) judgement provided that there can be sub-classification or exclusion of creamy layers to ensure that more backwards among the classes get the benefit of reservation.

However, this was not extended for SCs and STs, the bench said, adding that it cannot gloss over the point of exclusion of some castes inside SCs.

"The theme is the same, the sub-classification, which is permitted in Indira Sawhney judgement (Mandal case) for the OBC is not permitted in case of SCs and STs. Because, they say it (SCs and STs) is one homogenous class and once Parliament has designated a class, you cannot subdivide.

"And your (Punjab) contention is that Parliament's power to designate is very different from the state's power to implement reservations under the Constitution," the bench said.

The bench asked whether the state can give 100 per cent or 50 per cent quota of 15.5 per cent quota meant for SCs and STs to only few castes inside the group and said it may be hit by the exclusion principle.

"We cannot gloss over the point of exclusion. The same exclusion that applies to reservation per say when seats are reserved for backward communities (OBCs), because we treat equality as a substantive equality not formal equality," the bench said.

"The only question now is this - can that exclusion not be justified on the same yardstick which we have applied in the exclusion of the backward and forward context (meant for reservation for OBCs)," the bench said.

The CJI said there were two arguments and the first is that to attain substantive equality, the sub-classification among the SCs was also necessary.

"The second can be the federal argument that there was nothing in the constitutional structure to stop the state from making laws for its marginalised communities," the CJI said.

Once the bench asked whether Punjab has any data on what is the total population of SCs in the state and the break up of Valmikis and Mazhabi Sikhs.

However, later the bench said it will confine to the validity of the Chinnaiah judgement only.

Opening the arguments, Advocate General of Punjab Gurminder Singh referred to core issues, legal provisions and the reasons for making special provisions for two castes.

"Caste system has resulted in deep divides. Some castes have been marginalised and reduced to a situation of despair. What has come to those who have been marginalised is backwardness. Forwardness is an entitlement for those who have it and we need to look at backwardness which may be social, economical, educational, so on and so forth," he said.

The reservation in 2006 law was limited to 50 per cent and was implemented on a preferential basis and this was not an act of exclusion by any standards and meant to bring most backward of the backward on the forefront, he said.

"Exclusion is not the answer. Exclusion is there and 100 per cent will be absolute exclusion and 50 per cent also creates exclusion but to create entry for those who have been deprived," the bench said.

The state law officer said the arguments against the quota are flawed.

He said that it is argued as to how it would be fair to give a seat to someone with 56 per cent marks as compared to others with 99 per cent marks.

"It is fair because the person with 56 per cent did not have the same opportunities and access to a dignified life as that of the 99 per cent candidate. By reservation we are trying to make him employed and become a part of the governance," he said.

The hearing will resume on Wednesday.

The Punjab government, in 2011, had approached the top court assailing the high court's verdict, saying the apex court's 2004 judgement was not applicable to it.

Taking up the plea of the Punjab government, a five-judge bench headed by Justice Arun Mishra (since retired), on August 27, 2020, differed with the Chinnaiah judgement and referred it for adjudication by a larger bench of seven judges or more for an authoritative pronouncement.

In central government-funded higher education institutions, 22.5 per cent of available seats are reserved for scheduled caste and 7.5 per cent for scheduled tribe students.

The same yardstick is applied in the case of public employment as well.

In states like Punjab and Haryana, there is no ST population.