The authors, Rajan Thakkar and Manasvi Verma, are fourth year students at Gujarat National Law University.

Featured Artwork: The New York Times

In the recent landmark decision, State of Punjab v. Davinder Singh, the Supreme Court of India made headlines with a 6:1 ruling that opened the door to sub-classification within the Scheduled Castes (‘SC’) and Scheduled Tribes (‘ST’), stirring both legal and social debate. This landmark judgment sparked considerable concern among the SC and ST communities, leading to widespread protests across the country.

Article 341 of the Indian Constitution allows the President to prepare a list of SC communities that have historically suffered from untouchability. The classification of SC communities was originally based on the presence of untouchability, and they were recognized as a constitutional group in the Government of India Act of 1935, following the 1911 Census. This categorization was maintained in the Indian Constitution and subsequent Presidential Orders, using data from the 1931 Census. According to the list, a reservation of 15% in education and public employment is provided. 

However, certain states and scholars such as A.M. Shah observed that some communities within the list were underrepresented. Based on such observations, states started sub-classifying communities to offer them exclusive portions within the reservation mentioned above.

The first such instance was encountered by the Supreme Court in the case of E.V. Chinnaiah (2004) wherein the state of Andhra Pradesh had passed the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (‘Act’) following the recommendations of the Ramachandran Raju Commission. This Commission had observed that there were varying levels of backwardness among SC communities in the state regarding educational and employment reservations.

This Act distributed reservation benefits among the SC community by dividing them into four categories—Groups A, B, C, and D—with different allocation rates: 1% for Group A, 7% for Group B, 6% for Group C, and 1% for Group D, contingent upon the presence of qualified or eligible candidates.

This Act was challenged before the Supreme Court and a 5-judge bench of the Supreme Court in E.V. Chinnaiah declared sub-classification unconstitutional for two reasons. 

Firstly, only the president can prepare the list and this power is “tinkered” with when states sub-classify the communities within the list. The court further held that if at all, any modifications to this list in the form of sub-classifications are to be made, only Parliament has the authority to exclude castes recognized as SC from the Presidential List. The underlying idea behind this rationale being that sub-classification inherently leads to modification as defined under Article 341.  

Secondly, earlier verdicts, i.e., N.M. Thomas & Indra Sawhney had held that the list under Article 341 is homogenous and any further “micro-classification” within the list would be a violation of Article 14 i.e., the right to equality. This inherently meant that Articles 15(4) and 16(4) did not empower the states to further classify within the list and since this class was understood to be a homogenous class, no scope for intelligible differentia was left. 

Punjab Government’s legislation for sub-classification

In 2006, the Punjab Government passed The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act (‘Act of 2006’) to provide half of the SC reservations to the communities of Balmikis and Mazhabi Sikhs. Even before this legislation, the Punjab government had tried to provide twenty-five percent of the SC reservation to the aforementioned communities via 1975 notification. However, following the Chinnaiah verdict, the Punjab and Haryana High Court struct this notification down. 

The Act of 2006 aimed to reinstate the reservation provided under the 1975 notification but with a greater portion of the pie. However, it met the same fate as its predecessor, the notification—demonstrating that the right to equality was perfectly upheld between the two, as both the Act of 2006 and the notification received equally disappointing slices of the pie. This was also struck down by the Punjab and Haryana High Court based on the Chinnaiah verdict. The Punjab Government filed an appeal before the Supreme Court and the matter was eventually referred to a 7-judge bench to reconsider Chinnaiah. There were two primary questions before the court. Firstly, whether sub-classification is constitutional, and secondly, whether the states can make classifications or whether would that amount to tinkering with the president’s power. It was clear that the seven-judge bench was going to assess whether the two legs on which the verdict in Chinnaiah stood were strong enough. 

The list is not homogenous, as shown by Chinnaiah’s incorrect interpretations 

The Apex Court, in Davinder, held that Chinnaiah incorrectly interpreted N.M. Thomas to declare the list is a class in itself. In N.M. Thomas, the court was considering whether concession to SC communities in an entrance exam violated the constitutional right to equality of opportunity, and in this context, it was held that the list becomes a unique “class” eligible for affirmative action. It cannot be interpreted that this “class” in itself is homogenous. 

It held that Chinnaiah also erroneously interpreted Indra Sawhney to have allowed sub-classification only for Other Backward Classes (‘OBC’) communities and not for SC communities. The question before the court in Indra Sawhney was limited to OBCs. 

The conclusion reached by the Apex Court in Chinnaiah raised a broader question about the concept of equality as enshrined under the constitution – as explored in the Apex Court’s analysis of sub-classification in Davinder.

Sub-classification as a facet of equality

The court observed that the first facet of the right to equality under the Indian Constitution means that the same law should apply to everyone who is similarly situated and the second facet means that the law must be administered equally amongst equal. These facets incorporate the concept of substantive equality i.e., equality of opportunity rather than equality of treatment. 

The court applied the judicially formulated equality tests of intelligible differential and rational nexus. “Intelligible differentia” refers to a clear and comprehensible distinction. This means a distinction is considered understandable when there is a specific and identifiable criterion or standard that sets apart those included from those excluded. “Rationale nexus” involves demonstrating a logical and coherent connection between the criteria used for classification and the ultimate purpose or objective of that classification.

While referring to Sawhney (which allowed the classification of backward classes into backward and more backward – sub-classifications within Socially and Economically Backward Classes), the court held that sub-classification is a facet of equality and the law can sub-classify a class for being heterogeneous – if the social positions of the communities in the list are different.

States have the power to sub-classify

The court held that the power under Article 341 is limited to including and excluding communities. Sub-classification by states will not include or exclude communities from the list prepared by the president under Article 341 and hence, the president’s power is not “tinkered” with. It held that the state’s power to sub-classify stems from Articles 15 and 16, which empower the states to make provisions for reservation in favor of any backward classes. This extends to providing exclusive reservations to the more backward class within the list itself. 

Test for sub-classification

While referring to Sawhney, the court observed that it did not exempt the legislature from the burden of constitutionally justifying the sub-classification. 

The court held that the states would have to ‘empirically’ justify that there was:

1. varying backwardness and 
2. absence of adequate representation.

While the first condition is inferable from Articles 16(4) and 15(4), the subtext of the element of “adequate representation” is important to understand. The connotation is that adequate representation shouldn’t solely be assessed based on numerical representation but also based on qualitative representation.  

Consider a scenario where two groups, Group A and Group B, are given reservations. If Group A fills the lower-level positions and Group B occupies the higher-level roles, simply examining the numbers won’t offer a full perspective. The real situation reveals that Group B holds the top positions while Group A is relegated to the lower ones, raising questions about the overall quality of representation.

Scope of Sub-Classification 

In Davinder, the court outlined two sub-classification approaches: the preferential model, where socially backward classes are prioritized for all reserved seats, and the exclusive model, where seats are reserved exclusively for certain castes. Unfilled seats in the exclusive model carry over to the next year for the same castes, while in the preferential model, they are available to other reserved category castes. The court held that sub-classification models are unconstitutional if they exclude certain SC communities under Article 341, as only Parliament can determine such exclusions. Sub-classification must involve reservations for both sub-groups and the broader category, subject to judicial review. 

Furthermore, the court held that the Constitution allows percentage-based seat allocation to a caste, as each is a class, but the state must prove intra-category backwardness. Sub-classification is allowed, but seats cannot be allocated separately to every caste; similar backwardness classes should be grouped for reservations.

Justice Bela Trivedi’s Minority Opinion  

Justice Bela Trivedi delivered a dissenting opinion, highlighting that the Chinnaiah case was treated as authoritative law, but the bench that referred the case to a seven-judge bench only briefly mentioned it without a thorough explanation. Justice Trivedi argued that the Constitution does not allow state legislatures to alter the list of reservations under Articles 15 and 16. 

She took an opposing stance, asserting that the historical context of the term “Scheduled Caste” and the Presidential List under Article 341 create a unified category that cannot be changed by state governments. According to her, a straightforward reading of Article 341 indicates that “Scheduled Castes” includes various castes, races, tribes, and communities. Despite differences among members, they all gain a distinct status through the Presidential Notification. 

Justice Trivedi also pointed out that the Indra Sawhney case addressed the scope of “backward class” under Article 16(4) and did not consider the SC and ST communities in the context of Article 341. She maintained that states lack the authority to enact affirmative action laws that subdivide or modify the castes, races, or tribes listed under Article 341, as only Parliament has the power to amend this list. While sub-classification does not directly alter the inclusion or exclusion of any caste from the Scheduled Castes list, it is considered interference with the Presidential List, which is prohibited by Article 342(2). Justice Trivedi reiterated that state legislatures do not have the power to amend the list for reservation purposes under Articles 15 and 16. 

Understanding the concerns

Associations have demanded that the judgment be nullified, citing a lack of resources for empirical analysis – something which the lone dissenting judge also observed in Davinder Singh. There are concerns that the problem of unfilled reserved seats might worsen. 

Three of the judges also suggested extending the ‘creamy layer’ principle to SC communities (economically better-off groups excluded from reservations), citing M. Nagaraj. It is pertinent to note that such a suggestion is in direct conflict with the Sawhney judgment. It is important to highlight that discrimination doesn’t disappear with being better off. Even economically and professionally well-off individuals face discrimination, for instance, when Bihar’s Dalit CM visited a temple, it was later ‘purified’. After the widespread concerns, the central government has assured that the ‘creamy layer’ principle won’t be applied to the SC quota. However, the concerns relating to sub-classification remain unanswered. 

The introduction of sub-classification could potentially lead to a myriad of legal and administrative challenges. In the absence of updated data from the 2021 Census, it is imperative that the current demographic figures of sub-castes be determined through a comprehensive enumeration process, effectively necessitating a caste census, which the ruling government has been constantly “shying away from”. Such data would be instrumental in evaluating the sufficiency of existing provisions, thereby rendering the implementation of this judgment a complex and protracted endeavor.

The representation of SC and ST communities within state services has yet to reach the mandated levels. The introduction of economic criteria, the application of the creamy layer concept, and sub-classification could adversely affect the pool of eligible candidates, potentially exacerbating the issue of unfilled positions in institutions such as the Indian Institutes of Technology, Indian Institutes of Management, universities, and research bodies. Currently, many reserved positions remain vacant due to ongoing discrimination against individuals from historically oppressed castes.

Conclusion

In light of the foregoing, it is evident that the Supreme Court’s judgment in the State of Punjab v. Davinder Singh represents a pivotal shift in the constitutional framework governing reservations for SC and ST communities. The contentious introduction of sub-classification within this judgment, coupled with the looming specter of the ‘creamy layer’ principle, presents a Pandora’s box of legal, administrative, and socio-political challenges. The unresolved concerns surrounding empirical data, coupled with the central government’s ambiguous stance, underscore the pressing need for a meticulous, data-driven approach to actualize the court’s mandate while safeguarding the principles of equality and social justice enshrined in the Constitution.