A five judge bench of the Supreme Court in the matter of The State of Punjab and Ors. v. Davinder Singh and Ors has held that states can have sub-groups among SC/STs in the central List to provide preferential treatment to the “weakest of the weak.” The bench dissented with the judgment delivered by a coordinate bench in the case of E.V. Chinappa v. State of Andhra Pradesh and referred the matter to the Chief Justice to place it before a bench comprising 7 or more judges for a revisit. In the Chinappa’s case, it was held that sub-categorisation of castes is not permissible as castes notified by President under Article 341(1) formed one class of homogenous group and the same could not be further divided as it would amount to tinkering with the presidential list. The top court pointed out that the decision in Chinappa’s case is not in accord with 9 judge bench Indra Sawhney’s judgment wherein the sub-group among castes is permitted by states.
Background of the case
The Punjab Government by Circular No.1818SW75/10451 dated 5.5.1975 provided that out of seats reserved for Scheduled Castes, fifty per cent of the vacancies would be offered to Balmikis and Mazhabi Sikhs by providing first preference from amongst the Scheduled Castes candidates subject to its availability. The Circular was struck down by a Division Bench of the Punjab and Haryana High Court vide judgment dated 25.7.2006 by relying upon the judgment of Chinappa’s case.
How to trickle down the benefit of reservation to the bottom of the rung?
To quote Justice Mishra, the author of the judgment, he asks, “The million-dollar question is how to trickle down the benefit to the bottom rung?” To this he replies, “It is clear that caste, occupation, and poverty are interwoven. The State cannot be deprived pf the power of to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures.” He said that the reservation has created inequalities within the reserved castes itself.
Whether the castes in SCs/STs constitute a homogenous group?
To this point, the Supreme Court endorses the concept of ‘creamy layer’ and said, “Citizens cannot be treated to be socially and educationally backward till perpetuity; those who have come up must be excluded like the creamy layer… the entire basket of fruits cannot be given to the mighty at the cost of others under the guise of forming a homogenous class. In short, the Supre Court said the SCs/STs in the Central List do not constitute a “homogenous group.”
Whether sub-categorisation amounts to include or exclude the castes from the Central List
The Central List of castes is notified by the order of the President under Articles 341 and 342 for the SCs and STs. Any inclusion or exclusion of castes from the list can be made only by the approval of Parliament. The issue arose whether the creation of sub-groups amounts to inclusion or exclusion of castes by states. To this, the Supreme Court clarified that sub-classifications within the Presidential/Central List does not amount to “tinkering” with it. No caste is excluded from the list.