Explained: Supreme Court’s verdict on sub-classification of SCs and STs

The ruling had six separate opinions — five in favour of sub-classification, and a lone dissent by Justice Bela Trivedi.

Some context

Article 341 of the Constitution allows the President, through a public notification, to list as SC “castes, races or tribes” that suffered from the historical injustice of untouchability. SC groups are jointly accorded 15% reservation in education and public employment.

Over the years, some groups within the SC list have been underrepresented compared to others. States have made attempts to extend more protection to these groups, but the issue has run into judicial scrutiny.

In 1975, Punjab issued a notification giving first preference in SC reservations to the Balmiki and Mazhabi Sikh communities, two of the most backward communities in the state. This was challenged in 2004 after the apex court struck down a similar law in Andhra Pradesh in E V Chinnnaiah.

The court had held that any attempts to create a differentiation within the SC list would essentially amount to tinkering with it, for which the Constitution did not empower states. Article 341 only empowers the President to issue such a notification, and Parliament to make additions or deletions to the list. The court also said that sub-classifying SCs violates the right to equality under Article 14.

Based on this ruling, in 2006, the Punjab & Haryana High Court in Dr. Kishan Pal v State of Punjab struck down the aforementioned 1975 notification. However, the very same year, the Punjab government again passed the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, reintroducing the first preference in reservations for the Balmiki and Mazhabi Sikh communities.

This Act was challenged by Davinder Singh, a member of a non-Balmiki, non-Mazhabi Sikh SC community. The HC, in 2010, struck down the Act, leading to an appeal at the Supreme Court. In 2014, the case was referred to a five-judge Constitution Bench to determine if the E V Chinnaiah decision had to be reconsidered.

In 2020, the Justice Arun Mishra-headed Constitution Bench in Davinder Singh v State of Punjab held that the court’s 2004 decision required reconsideration. The ruling noted that the court and the state “cannot be a silent spectator and shut its eyes to stark realities”. Crucially, it disagreed with the premise that SC are a homogeneous group, saying there are “unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.”

But since this Bench, like in E V Chinnaiah, comprised five judges, a seven-judge Bench heard the issue in February 2024. Here are the key issues which were before the Bench.

Issue 1: Are all castes in the SC list to be treated similarly?

Article 341(1) of the Constitution gives the President the power to “specify the castes, races or tribes” in a state, which shall “for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be”. Following such a notification, Article 341(2) states that only Parliament can include or exclude “any caste, race or tribe” from the list of SCs.

The court in E V Chinnaiah held that SC must be treated identically since the Constitution envisaged the same benefits for them, without taking into account their individual relative backwardness. In Thursday’s judgement, CJI Chandrachud rejected this premise, stating that “The inclusion [in the Presidential list] does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified”.

The CJI termed the Presidential list of SCs a “legal fiction” — something that does not exist in actuality but is “treated as real and existing for the purpose of law”. A Scheduled Caste is not something that existed before the Constitution came into force, and is recognised so that benefits can be provided to communities in the list. CJI Chandrachud said this legal fiction cannot be “stretched” to claim that there are no “internal differences” among SCs.

Issue 2: Can states ‘tinker’ with or sub-classify the Presidential list?

Articles 15(4) of the Constitution gives states the power to make “any special provision” for the advancement of SCs. Article 16(4) gives states the specific power to provide “reservations of appointments or posts in favour of any backward class of citizens which…is not adequately represented in the services of the State”.

The court, in E V Chinnaiah, had held that the power under these articles was limited to providing quotas in education and public employment to the state’s backward classes. It held that once reservations have been provided to SCs as a whole, “it is not open to the State to sub-classify a class already recognised by the Constitution and allot a portion of the already reserved quota amongst the State created sub-class” within the SC list.

On Thursday, the majority opinion held that “the State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified”.

Justice Gavai said that equality of opportunity (Article 16) must account for the varying social positions of different communities. When the same opportunities are provided to SC communities that are on different footings it “can only mean aggravation of inequality”.

On the subject of SC communities that oppose sub-classification, he said that their “attitude” is akin to “that of a person in the general compartment of the train. Firstly, the persons outside the compartment struggled to get into the general compartment. However, once they get inside it, they make every attempt possible to prevent the persons outside such a compartment from entering it”.

Issue 3: What is the yardstick for sub-classification?

The majority opinion drew stringent redlines for states on how to work out the sub-quotas. States will have to demonstrate a need for wider protections, bring empirical evidence, and have a “reasonable” rationale for classifying sub-groups. This reasoning can be further be tested in court.

The CJI underlined that any form of representation in public services must be in the form of “effective representation”, not merely “numerical representation”. As a result, even if an SC community is represented adequately just by the numbers, they may be barred from achieving “effective” representation by being promoted to higher posts. So the state must prove that the “group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented, and this must be based on quantifiable data”.

Issue 4: Does the ‘creamy layer’ principle apply to Scheduled Castes?

Only the opinion of Justice Gavai bats for introducing the ‘creamy layer’ exception for SCs (and STs) that is already followed for Other Backward Classes (OBCs). This concept places an income ceiling on reservation eligibility, ensuring that the beneficiaries are those in a community that need quotas the most.

Four of the seven judges — Justices Vikram Nath, Pankaj Mithal and Satish Chandra Sharma — agreed with Justice Gavai’s opinion on the matter.