While allowing states to sub-categorise SCs and STs for the sake of reservation, four of the seven judges on the constitutional bench proposed the identification of creamy layers among SCs and STs to ensure that reservation truly reaches the deserving.
Four judges of the seven-judge constitutional bench, which ruled in favour of sub-categorisation of Scheduled Castes and Scheduled Tribes for the sake of reservation, called for the identification of creamy layers among SCs and STs, so that they can be taken out of the fold of reservation.
Justice B.R. Gavai, Justice Vikram Nath, Justice Pankaj Mithal and Justice Satish Chandra Sharma underlined that a creamy layer system akin to the one existing for Other Backward Classes (OBCs) must be put in place to ensure that reservations reach the most deserving among SCs and STs.
“State must evolve a policy to identify creamy layer among the SC ST category and take them out of the fold of affirmative action (reservation). This is the only way to gain true equality,” Justice Gavai said, according to Bar and Bench.
Justice Vikram Nath concurred with Justice Gavai. “I am also in agreement with the opinion of brother Justice Gavai that the creamy layer principle is also applicable to Schedule Castes and Scheduled Tribes and that the criteria for exclusion of creamy lawyer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes,” Justice Nath said.
Justice Mithal too shared the same opinion. “Reservation should be meant for only the first generation among a category and if the second generation has come up then benefits of reservation shall not be given and the State should see if after reservation the second generation has come shoulder to shoulder with the general category.”
Justice Sharma too said that the identification of creamy layer among SC and STs must become “a constitutional imperative”.
Landmark ruling on SC/ST sub-categorisation
In a landmark judgement, the Supreme Court on Thursday upheld the power of states to sub-categorise reserved groups of Scheduled Castes and Scheduled Tribes to provide wider representation for underrepresented groups.
In effect, a seven-judge bench which heard the matter overruled its own verdict of 2005 in the EV Chinnaiah v. State of Andhra Pradesh case, which had ruled that SC/ST sub-classification was contrary to Article 341 of the constitution. The particular Article confers the right on the President of India to prepare the list of SCs and STs.
While six of the seven judges allowed for the sub-classification, Justice Bela M Trivedi dissented from the majority and ruled that such sub-classification is not permissible. The Constitution bench was headed by Chief Justice D.Y. Chandrachud. The other judges on the bench were Justice B.R. Gavai, Justice Vikram Nath, Justice Bela M Trivedi, Justice Pankaj Mithal, Justice Manoj Misra, and Justice Satish Chandra Sharma.
“The members of SC/ST are not often able to climb up the ladder due to the systemic discrimination faced. Article 14 permits sub-classification of caste. Court must check if a class is homogeneous or and a class not integrated for a purpose can be further classified,” the Bench said pronouncing its majority judgment, according to Bar and Bench.
The court then went on to say there is historical evidence and social parameters to indicate clearly that all SC/STs do not constitute a homogenous class. “Historical evidence shows that depressed class were not homogenous class and social conditions show that all classes under that is not uniform. In state of Madhya Pradesh, out of 25 castes only 9 are scheduled castes,” the court added.
The court made it clear that the sub-categorisation of SCs and STs does not in any way violate Article 341 of the constitution.
“We have also established through historical evidence that Scheduled Castes notified by the President are a heterogenous class. There is nothing in Article 15, 16 and 341 which prevents sub-classification for SCs if there is a rational for distinction and there is a rational nexus for the object sought to be achieved. State can sub-classify for the inadequate representation of some class,” the court observed.
The court, however, issued a note of caution, saying that sub-classification by states has to be supported by empirical data and should be ensured that it is not based on “whims or political expediency”.
“State can adopt any measures to judge inter se backwardness. If the parameter is untouchability, it is not needed that inter se backwardness is also justified on the basis of that but State has to prove it by empirical and quantifiable data. State cannot act on its whims or political expediency and it is amenable to judicial review,” the court underlined.
The court ruling, in effect, provided legal sanctity to laws which provide for such sub-classification in Punjab, Tamil Nadu and other states.
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