On February 6, a seven-judge Constitution Bench headed by Chief Justice of India D Y Chandrachud began hearing a series of petitions regarding the validity of sub-classification of reserved categories vis-a-vis Scheduled Castes notified under Article 341 (2) of the Constitution. The other judges on the Bench are Justices B R Gavai, Vikram Nath, Pankaj Mithal, Manoj Misra, Satish Chandra Sharma and Sandeep Mehta.
Hand it to Chief Justice Chandrachud. He has elevated the Supreme Court to what it was meant to be, or ought to be, in the words and vision of our forefathers, namely that it should be the Constitutional Court of India.
After a spate of Constitution Bench hearings vide Article 245 (3), the present hearing is the latest of them. The Chief Justice has heard proceedings on a host of causes – same sex marriage, Article 370, the Assam Accord, the matter of immunity to legislators under Article 105(2), on Electoral Bonds (judgement reserved), on the minority status of Aligarh Muslim University, etc., and is now hearing on the matter of the power and competence of the states in the Union over sub-classification of Scheduled Castes.
Initially, a five-judge bench in State of Punjab vs Davinder Singh raised the issue on August 28, 2020, and referred the matter to a seven-judge bench due to its importance and legal complexity. The specific questions referred were: Can there be sub-classification within the Scheduled Castes (SCs) and Scheduled Tribes (STs) for reservation benefits? Does the Constitution permit states to introduce such sub-classification? The reference to the seven-judge bench arose in the wake of the Supreme Court's judgement in E V Chinnaiah vs State of Andhra Pradesh (2004), which dealt with the same issue.
In E Chinnaiah, it was held that Scheduled Castes listed under Article 341(2) form a single, homogenous group and cannot be sub-divided for reservation purposes. Any sub-classification within SCs, like the one challenged in the case, would violate Article 14 (equality before law).
The court believed that treating SCs as a homogenous group would ensure equal distribution of benefits and prevent internal competition. It viewed sub-classification as potentially harmful to some sub-castes within SCs. And opined that the President alone had the right to ‘notify’ any sub-classification and any done by states would be out of constitutional line.
This judgement in E Chinnaiah had significant implications for reservation policies across India. It prevented states from providing separate quotas for specific sub-castes within SCs. The decision has been criticised as hitting at the core of the principle of federalism.
Critics argued that the judgement ignored the social realities of varying socio-economic conditions among different sub-castes within SCs. They felt that neglecting these differences disadvantaged certain sub-castes within the broader SC category.
Some experts felt the judgement curtailed states' powers to address specific needs within SCs through tailored reservation policies. Meanwhile, notably, the Indra Sawhney judgement (2005) allowed sub-classification within Other Backward Classes (OBCs), highlighting differing approaches to classifying disadvantaged groups.
The Chinnaiah judgement remained a controversial issue. There have been calls since for a larger bench to revisit the decision. Some states have found workarounds by providing additional benefits (e.g., scholarships) to specific sub-castes within SCs, though not through direct reservation quotas. And now, the calls have culminated in the present hearings.
The landmark Indra Sawhney judgement delivered by the Supreme Court in 2005 addressed the contentious issue of sub-classification within OBCs for reservation benefits. Here's a summary highlighting the key points and differing approaches -- the main issue gone into was: Can the government create sub-categories within OBCs and allocate separate reservation quotas to them?
The majority opinion said -- Yes, sub-classification within OBCs is permissible, but it must meet certain strict conditions, such as being based on objective criteria. The classification must be based on clear, quantifiable data indicating backwardness within OBCs, like economic, social, and educational indicators. Reservation quotas allocated to sub-categories should be commensurate with their population and backwardness.
The minority, in dissent, said -- No, sub-classification within OBCs is not permissible. It violates the principle of equality enshrined in Article 14 of the Constitution. It fosters further caste divisions and hinders social integration. Economic criteria should be the primary basis for identifying backwardness, not caste.
In effect, the Indra Sawhney judgement paved the way for sub-classification within OBCs, albeit with strict conditions.
Esoteric submissions on substantive issues which impact the lives of the marginalised in our society have been made. Be they scavengers or menial workers, they may not even be aware of these proceedings, much like Kesavananda Bharati was himself oblivious of the matters before the full complement of 13 judges of the Supreme Court, arising from his case in 1973.
The decision of the seven-judge bench on this seminal issue will have a huge bearing on the power of the states in the Union to grant benefits to the oppressed communities in education and employment spheres. If the decision goes in favour of states getting the power to make sub-classifications among the reserved categories, namely the Scheduled Castes, they would be in a position to give ‘preferential’ treatment to, say, Valmikis, Masabi Sikhs in Punjab and/or Madigas in Karnataka, Arunthathiyars in Tamil Nadu, treating them as lagging behind even among the ‘homogeneous’ group of Scheduled Castes.
The ‘depressed’ classes (as originally identified since 1918) and the ‘more depressed’ among them may have their day under the sun. If they do, they may have Chief Justice of India D Y Chandrachud to thank, for he has single-mindedly focused on resolving seminal constitutional issues and ensured that Constitutional Bench hearings to answer long-pending references became a near-daily affair of ‘We, the People’.
(The writer is a practicing lawyer in the Madras High Court)
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