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Synopsis

A review petition has been filed against August 1, 2024 judgment by the Supreme Court, which by a majority of 6:1, allowed the States to undertake sub classification of Scheduled Castes and Scheduled Tribes so as to provide preferential treatment to the disadvantaged groups among them in public jobs and education.

The petition filed by Mumbai's Jaishri Laxmanrao Patil has stated that since the powers are exclusively vested with the President under Article 341 and 342 of the Constitution to identify the Scheduled Castes and Scheduled Tribes, they are not further available to identify by the States.

"The question of sub classification and exclusion of creamy layer is a question of identification of a backward class and power to identify the Scheduled Castes and Scheduled Tribes is not available to the states by implication of Article 341 and 342 and more specifically due to prohibition contained under clause 2 of those Articles," it said.

The plea has said that when this court in Indra Sawhney (1992) held that the backward classes can be further sub divided, it meant the Other Backward Classes or the SEBCs and not the Scheduled Castes and Scheduled Tribes. 

"The power to deal with the 1950's Scheduled Castes and Scheduled Tribes Orders is not available to anyone, the Union Government or the State (including State Legislature) except the Parliament. Indra Sawhney didn't deal with the sub-division or sub classification of SC/ST and it remain limited to the OBCs," the plea said.

It also stated even if the phrase, "backward classes" in Article 16(4) is construed to be including the Scheduled Castes and Scheduled Tribes, it will not allow the State to apply the test of backwardness on the SC/STs as they are already defined on the relevant criteria of identification and except untouchability, backwardness of any kind was never a test of their identification. 

"Therefore, to further classify them on the criteria other that historic criteria of untouchability will not be permissible. Also, any classification of the castes, races or tribes or parts of or groups within castes, races or tribes included in the Scheduled Castes or Scheduled Tribes, Order, 1950 is not permissible," it said.

The plea further asserted that since, the powers are exclusively vested with the President under Article 341 and 342 of the constitution to identify the Scheduled Castes and Scheduled Tribes, they are not further available to identify by the States. The question of sub-classification is essentially a question of identification as held by this court in Indra Sawhney. For this reason alone, the State has no competence while dealing the SC/STs under Article 16(4) or 15(4) of the Constitution, it emphasised.

"Any sub-classification of SC/ST is an attempt to relook at the Presidential Powers under Article 341 and 342 of the Constitution and violates deeming fiction found in those Articles. It is an attempt by the States to pierce the list made by the President using Article 16(4) and therefore, it is a colorable exercise of power. What is not directly available to the States is being exercised indirectly through Article 16 (4) and 15 (4) of the Constitution and hence, violates the constitution," it said.

The review petition also contended the question of "creamy layer" was not before this court and the only question was whether the EV Chinnaiah required reconsideration. 

"The exclusion of creamy was never in issue before this court and hence any direction to exclude the creamy layer from the Scheduled Castes and Scheduled Tribes is patently illegal. Also, the said direction runs counter to the Indra Sawhney judgment of the Supreme Court," it said.

The petition also said the Constitution doesn't carve out any exception for reservation or affirmative action to Article 15 (1) and 16 (2) of the Constitution except the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes of People or the Backward Class of Citizens and hence a new group which will be a collection of caste will not be permissible because that group will not be Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes of people or the Backward Class of citizens.

It has been averred that if any community has advanced or ceased to be a part of Scheduled Castes or Tribes, the Parliament has got the exclusive power to include in or exclude from such community from the 1950 Order. The concurrent exercise is not contemplated by the States, it said.

"The Supreme Court is not a parallel Constituent Assembly to substitute the Constituent Assembly's opinion with its own opinion to lay down that the States have been kept away from the powers under Article 341 and 342 to avoid political factors and political interference in the SC/ST List. The Supreme Court must respect the wisdom of the Constituent Assembly," the petition said.

In a landmark verdict, the Supreme Court has on August 1, 2024 held sub-classification of the Scheduled Castes and Scheduled Tribes on account of reservations is constitutionally permissible.

A seven-judge bench of Chief Justice of India DY Chandrachud with Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma has accordingly overruled the 2005 judgment of EV Chinnaiah vs. State of Andhra Pradesh which held such sub-classification to be contrary to Article 341 of the Constitution of India.

It has been held that state legislatures are competent to introduce sub-classification within the Scheduled Caste and Scheduled Tribe categories.

 

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