On Tuesday (6th February), the Supreme Court stated that people in the backward castes who were eligible for reservation and have benefited from it should move out from the reserved category to allow others who remained backward to benefit from affirmative action.
On Tuesday, the Constitution bench, which consisted of Chief Justice of Indian DY Chandrachud and justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma, began the hearing on the permissibility of subclassification within the SC/ST reservation, making some significant remarks about the purpose of reservation for marginalised groups and the need for administrative efficiency. Punjab’s advocate general Gurminder Singh and the state’s additional advocate general Shadan Farasat argued in favour of subclassification within SC/ST reservations.
The Punjab Govt has filed a plea in the Supreme Court challenging a High Court order that cancelled priority reservation for more backward sub-groups within the SC-ST quota introduced by the Punjab govt. The state government passed a law in 2006 to give priority to the “extremely backward” sub-sects within the scheduled castes (SC) and scheduled tribes (ST) in the reservation system. However, the law was turned down by the Punjab and Haryana High Court citing a Supreme Court order ruling out such sub-categorisation.
During the first day of the hearing, Justice BR Gavai, who is reported to be a Dalit himself, remarked that a Dalit from one state might run for office in another state from a reserved seat, raising fundamental questions about reservations within the disadvantaged castes. He then raised the issue of children of high-ranking officials from the backward class getting reservation benefits. “Should the children of people who are already in relatively better circumstances get reservations? Should IAS and IPS officers’ children be granted reservations?” he asked.
“A person from the SC/ST community, after getting into central services like IAS and IPS, gets access to the best of facilities. Yet, his children and their children continue to get the benefits of reservation. Should this continue?” Justice Gavai asked.
On the second day of the hearing, senior attorney and former Attorney General KK Venugopal argued, quoting Justice Krishna Iyer, that there is a need to create a sub-category of disadvantaged Dalits because otherwise, the more powerful will reap the benefits while the weaker will be left helpless.
Punjab Advocate General Gurminder Singh stated that the most backward among backward-class communities must be recognised and provided with the resources to achieve equality in terms of employment opportunities. Senior advocate Nidhesh Gupta stated that SCs make up 33% of the Punjab population, with Balmikis (Churas and Bhangis) and Mazhabis (Sikhs) accounting for 29%. He stated that 43% of Scheduled Caste communities occupied 81% of SC positions in the state government.
During the hearing, Justice Vikram Nath asked Punjab’s advocate general if the state supported removing any SC/ST subcastes from the scope of reservation benefits if they have consistently performed better and are on par with unreserved categories.
“Why should not be there an exclusion? According to you [Advocate General Gurminder Singh], amongst a particular category, some of the sub-castes have done better. They are the forward in that category. They should come out of that and compete with the general. Why stay there? And let the remaining who are still backwards within the backward, let them get the reservation. Once you achieve the concept of reservation, you should pull out of that reservation…,” Justice Nath said.
To this, Singh responded, “That’s the aim, and if that aim is achieved, then the purpose for which the exercise was undertaken should come to an end.”
Justice Gavai also weighed in, stating that when some castes within a given backward class reach a certain level and are on par with forward castes, they should move out.
“But then, that is only for Parliament to decide… now what happens, a person from SC/ST gets into IAS/IPS, etc. Once you are there, their children do not suffer the disadvantages that persons from the other SC communities suffer. But, by virtue of reservation, they are also entitled to the benefits for the second generation and again the third generation,” Justice Gavai remarked.
Singh responded that, while it is up to the President to declare SC/ST groups under Article 341 and states cannot change that list, he agreed with the view that subgroups that have achieved forwardness should exit to make room for those who truly need quota benefits. Singh also stated that in the Jarnail Singh case (2018), a five-judge court applied the creamy layer test to reservations in SC/ST promotions.
Reacting to this, the CJI stated that there is an exclusion, which also applies to providing reservation to backward castes in comparison to forward castes, and asked if it might be extended to provide specific benefits to the more backward members of the backward class.
“…The only question really is…Can that exclusion not be justified on the same yardstick that we have applied for exclusion in the backward-versus-forward context?… Can the State not say I am not deleting your community from the list of Scheduled Castes which has been designated by the President… but within those communities, I am now making a classification that certain communities are more backward and, therefore, in greater need for protection on the same touchstone of substantial equality?” CJI Chandrachud said.
Advocate Gurminder Singh explained to the court that it is about relative backwardness. “Once we accept the relativity argument in backwardness, and it is the backwardness vis-a-vis forwardness that puts them in at 50 per cent, and it is the more backwardness that provides them the reservation within the reserved, then this argument has no problem,” Singh said adding that no one including the framers of the constitution saw reservations as a perpetual concept.
The Supreme Court of India ruled twenty years ago against the practice of giving priority to “extremely backward” sub-sects within scheduled castes (SC) and scheduled tribes (ST) in the reservation system. Two years later, in 2006, the Punjab Assembly passed legislation allowing reservations for such sub-groups under the SC-ST quota. The Punjab and Haryana High Courts, however, dismissed this law in 2010 based on the Supreme Court’s 2004 verdict in E.V. Chinnaiah v State of Andhra Pradesh case. The Punjab government then appealed this verdict in the Supreme Court, which is now being heard by a seven-judge Constitutional Bench.