A seven-judge Constitution Bench on Tuesday questioned why affluent sub-castes among backward classes should not be “excluded” from the reservation list and made to compete with the general category.
“Why should there be no exclusion [from the reservation list]? Some of these sub-castes have done better and gone forward. They should come out of reservation and compete with the general category… Why stay there?” asked Justice Vikram Nath, one of the seven judges on the Bench headed by Chief Justice of India D.Y. Chandrachud.
Justice Nath said that these advanced sub-castes could exit the domain of reservation to make room for sub-castes who were relatively more marginalised or most backward. “The remaining sub-castes who are still backward, let them have reservation,” Justice Nath said.
‘Exclusion implicit in reservation’
“Once a person gets into IPS or IAS, his children do not suffer from the disadvantages of others from his group who live in a village… Yet his family will get the benefits of reservation for generations,” Justice B.R. Gavai, on the Bench, remarked. He added that it was for the Parliament to decide whether a “powerful or influential” group should be excluded from the quota list or not.
Chief Justice Chandrachud indicated that exclusion may be implicit in the concept of reservation. The forward classes were necessarily excluded while reserving seats for backward classes, but this was approved by the Constitution as the nation believed in substantive equality and not formal equality, the Chief Justice observed orally.
The seven-judge Bench is examining the question of whether States can identify and sub-classify groups within the Scheduled Caste (SC) category who deserve greater reservation.
Punjab law sub-classifies SCs
The Punjab government opened arguments by submitting that States were empowered to identify sub-castes within the SC category and grant them more reservation on the ground that they were “relatively more marginalised than the marginalised”.
Punjab Advocate-General Gurminder Singh argued that, if communities could be classified into general and backward, the same could be done within the backward communities. The State argued that if sub-classification was permitted within the Socially and Educationally Backward categories, the same could be permitted for the Scheduled Castes and Scheduled Tribes.
The State is defending the validity of its law, the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act of 2006. Section 4(5) of the Act gave ‘first preference’ quota to Balmikis and Mazhabi Sikhs. Half of the reservation offered to the SC category went first to these two groups.
‘Aid to equality’
In 2010, the State High Court struck down the provision on the basis of a five-judge Constitution Bench judgment in the E.V. Chinnaiah case, which held that only the President was empowered to categorise a group as SC under Article 341 of the Constitution. The Constitution Bench had further declared that SCs were a “homogenous group” and that sub-classification would be a violation of the right to equality.
Mr. Singh argued that the sub-classification made in the 2006 Act was not in “breach of equality but as an aid to equality”. He said that by giving first preference to the “most backward among the backward or the weakest among the weak”, there was no exclusion practised.
“You are saying that in a federal structure, every State within a nation is peculiarly conversant with the castes and communities in that State. The President, under Articles 341 and 342, has designated castes and tribes for the entire nation. But that does not take away the power of the States to identify more backward sub-castes or groups among them who require special attention and benefits. The Constitution does not prevent it. A State has an obligation to look after all of its people,” Chief Justice Chandrachud addressed the Punjab side.
Weak vs weakest
Punjab Additional Advocate-General Shadan Farasat said that efficiency in government needed more diversity. Sub-classification was a mode to deepen the impact of reservation, so that the benefits could reach all the backward groups, he said. “We have not yet seen what true efficiency is because we are yet to arrive at true equality… The State here is helping the weakest person. The State should be inclusive… After all, the business of the State is its people,” Mr. Farasat argued.
The Bench however disagreed with the argument that there was no exclusion involved in the concept of reservation. “Even by providing 50% reservation to backward classes, are you not excluding 50% of the general class?” Justice Gavai quizzed.
But one of the lawyers submitted that the gulf between the forward castes and the backward groups was still substantial. “There is not much difference between the earnings of an SC and a downtrodden SC… The difference is between the weak and the weakest still,” he said.
