The Supreme Court on Thursday said individual States’ decision to provide preferential allotment of reservation benefits to the most backward groups or “the untouchables among the untouchables” will not amount to tinkering with the power of the Parliament to include or exclude Scheduled Castes or Scheduled Tribes from the Presidential list.
Articles 341 and 342 empower the President to draw up a list of Scheduled Castes and Scheduled Tribes, respectively. The inclusion or exclusion of any caste, race, or tribe from the Presidential list is done by the Parliament through legislation.
“In the list there are blacksmiths and scavengers… Did they face the same degree of discrimination when they were included in the list? Were the scavengers not the untouchables even among the untouchables? A State may recognise that and decide to provide the class preferential distribution of benefits… How is that tinkering with the list under Article 341? There is no entry or exit from the list,” Justice B.R. Gavai, one of the seven judges on the Constitution Bench headed by Chief Justice of India D.Y. Chandrachud, asked.
The Bench is examining the question whether States can sub-classify particularly backward groups within the Scheduled Caste category and extend them first preference in quota benefits.
The Bench dismissed the argument that preferential allotment to certain sub-castes within Scheduled Castes would lead to the “Balkanisation of the list”.
Homogenous group
Senior advocate Manoj Swarup, appearing for parties objecting to the sub-classification of backward groups by States, argued that Scheduled Castes (SC) were a homogenous group. Their different birthmarks and castemarks were erased the moment the communities found a place in the Presidential list. Preferential treatment to select groups within the SC would exclude others within the same category. Such special treatment to some sub-castes amounted to the practice of inequality by the State, he argued.
“A Scheduled Caste person whose child is studying in the best schools of Delhi and another whose child is studying in a gram panchayat school in a village. The first person’s family has got the benefit of reservation for the past 75 years through generations. Will the child in the village be able to compete with this man’s child? Should that child in the village live in conditions of perpetual inequality?’ Justice Gavai questioned.
Justice Vikram Nath said the idea behind sub-classification of Scheduled Castes by States was to give them equality, to “bring them up”.
Justice Gavai said it was not that the remaining sub-castes, who had been taking the advantages of reservation, would be deprived of anything merely because first preference was given to a group found to be more backward.
“It should not be like the general compartment of a train, where once you get in, you will not permit others less fortunate to get in,” Justice Gavai observed.
Political appeasement
Mr. Swarup further argued that certain States could use the power to sub-classify backward groups for political appeasement and to gain electoral brownie points.
“The High Courts under Article 226 of the Constitution can always examine whether the decisions taken by individual States are based on empirical data or not… It can always be examined if the action proposed has a nexus with the objective sought,” Justice Gavai responded.
Senior advocate Sanjay Hegde referred to the recent violence in Manipur, which was triggered by a move to include a certain community in the Scheduled Tribes list.
“If you leave the power in the hands of individual States without any reference to the Centre, then what we are asking for is effectively a Balkanisation of this list. India did not comprise only big States,” Mr. Hegde submitted.
However, Chief Justice Chandrachud, during the hearing, explained that States cannot create an “artificial” backward class.
“They [States] cannot say ‘for my purpose this is a class’. They must demonstrate that a class is backward on the basis of objective criteria like lack of representation. The High Court can review the decision of the State,” the Chief Justice observed.
The seven-judge Bench reserved the case for judgment.
