Context: A seven-judge constitution bench of the Supreme Court in the State of Punjab vs Davinder Singh judgement has held that sub-classification of SC and ST categories is permissible. Also, States have power to create these sub-classifications. Earlier, the Supreme Court in E. V. Chinnaiah vs State of Andhra Pradesh (2004) had ruled that sub-classification was not permissible in the SC category. The Davinder Singh Judgement has overturned the E. V. Chinnaiah judgement.
Present Status - reserved categories
- Currently, the entire Scheduled Castes and Scheduled Tribes are treated as one large class. There is no sub-categorisation among these communities.
- However, even among the SCs and STs there are communities which are relatively more backward. Thus, there has been an ongoing demand for allowing sub-categorisation in these communities enabling the relatively backward in these communities to apportion greater benefits.
Constitutional Status of Scheduled Castes
- Article 366 (24): Scheduled Castes are defined to mean such castes, tribes or parts or groups within such castes, races or tribes as deemed under Article 341 of the Constitution.
- Article 341(1): President has given the power to notify castes, races or tribes which shall be deemed to be Scheduled Castes for a State or UT. The President will notify the SCs for a State or UT in consultation with the Governor of the State.
- Article 341(2): Parliament may by law include or exclude any caste, race, or tribe from the list of Scheduled Castes specified in the Presidential notification issued under Article 341(1).
- Articles 342 and Article 342-A relate to notification of STs and SEBCs respectively and contain provisions similar to Article 341.
Judgement in EV Chinnaiah Case
- Scheduled Castes form a class by themselves.
- Sub-classification amounts to tinkering with the Presidential order issued under Article 341. States have no power to deal with State Legislature.
- Scheduled Castes constitute a class and further classification is not permissible among the SCs. Indira Sawhney judgement permitted the sub-classification of the Other Backward Classes, but this is not applicable to SCs. Sub-classification amounts to giving preference to a 'miniscule proportion' of the SCs, over other members of the SCs which would impermissible under Article 14.
SALIENT FEATURES OF DAVINDER SINGH JUDGEMENT
Article 14 of the Constitution:
- Article 14 is an amalgamation of two expressions - equality before law and equal protection of laws.
- Equality before law means absence of special privileges for any individual. However, it does not mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated.
- Equal protection of laws means that laws must be administered equally among equals. This also enjoins the State the with power to reasonably classify those who are differently placed.
- Thus, equality under Article 14 is not 'sameness' but that there must be a parity of treatment under parity of conditions. The substantive equality under the Article calls for equality of opportunities over equality of treatment.
- Thus, sub-classification is a facet of equality and law can further classify a class that is already created by law for a limited purpose. The classification should be based on intelligible differentia and rational nexus.
- Intelligible Differentia means a discernible and understandable distinction. Thus, the distinction should be based on clear criterion or standard.
- Rational nexus: There should be a clear and rational link between classification criterion and intended outcome or goal of the classification.
- The test to determine whether sub-classification within a class is justified under Article 14, is whether the class is homogenous or not.
Homogeneity of SCs
- There are historical and empirical evidence to show that SCs are homogenous.
- Some studies such as by AM Shah have highlighted that SCs are not a homogenous class.
- Hardships and backwardness which SCs have suffered historically would differ from category to category.
- Some communities are included in the Presidential list while the same community has not been included in SCs in other states highlighting the none homogenous nature of SCs.
- The word 'deemed' in Article 341 was not indicative of creation of legal fiction. The intention of this legal fiction created under Article 341 was for limited purpose of identifying the SCs and differentiating them from other groups. It was not indicator of homogeneity.
Sub-classification and States interference with SC list
- In the EV Chinnaiah judgement, the court opined that sub-classification amounts to states tinkering with Presidential List under Article 341. However, in the Davinder Singh Case, the SC held that sub-classification did not led to including or excluding any caste through legislation. Thus, did not amount to tinkering with the list.
- Also, States had the legislative power to create sub-classification as it did not amount to tampering with the Presidential List. This power stemmed from Article 15 and Article 16 of the Constitution.
Criteria for Sub-classification
- Article 15(4) provides that the beneficiary class for the purpose of the provision must be socially and educational backward. The social and educational backwardness should not be seen as mutually exclusive but together.
- The purpose of this Article is to ensure substantive equality by ameliorating social backwardness. Thus, the states need to prove varying degrees of backwardness and inadequate representation within the group based on empirical evidence.
- Although sub-classification with the SC category was permitted, however, it did not meant that that seats should be allocated for each caste group. Classes exhibiting similar level of backwardness, should be categorised together.
Creamy Layer among SCs
- State must evolve a policy for identifying creamy layer exception even from SCs/STs (Indira Sawhney judgement mandated creamy layers only for OBCs).
- Within the SCs, certain caste groups were reaping the benefits of reservation more than others. Thus, these caste groups should that they should walk away from special provisions making way for the needy.