Petition in Supreme Court seeks review of its verdict allowing sub-classification in SCs/STs quota

Tribune News Service

New Delhi, August 21

As the National Confederation of Dalit and Adivasi Organisations on Wednesday organised a nationwide protest against the Supreme Court’s ruling allowing the State to sub-classify SCs/STs to ensure greater reservations for some SC/ST groups over others in public employment and education, a petition has been filed in the seeking review of the verdict.

Filed by advocate Jaishri Patil, the review petition pointed out that the Supreme Court’s interpretation of sub-classification of backward classes in the Indra Sawhney case (Mandal Case-1992) did not apply to SCs and STs and the term “backward class” as used in Article 16(4) of the Constitution was intended to be distinct from SCs, which were separately defined under Articles 341 and 342 of the Constitution.

Patil submitted that “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.”

The review petition also raised questions over the top court’s views on exclusion of creamy layer from SC/ST reservations, saying it was contrary to the Mandal verdict.

Holding that SCs and STs are not homogenous groups, the Supreme Court had on August 1 ruled that the State can sub-classify them to ensure greater reservations for some SC/ST groups over others in public employment and admission to government-run educational institutions.

By a 6:1 majority, the Bench had, however, said such sub-classification can’t be based on the whims of governments.

“The objective of any form of affirmative action including sub-classification is to provide substantive equality of opportunity for the backward classes. The State can sub-classify, inter alia, based on inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness,” the Bench said, adding, “The State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness.”

Four of the six judges on the seven-judge Bench also said that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of reservation.

Currently, creamy layer criteria are applicable only to Other Backward Classes (OBCs) in order to exclude the better offs among them from quota benefits, in terms of the 1992 nine-judge Constitution Bench verdict of the Supreme Court in the Indira Sawhney case.

The majority overruled the top court’s five-judge Bench verdict in EV Chinnaiah vs State of Andhra Pradesh (2004) which had ruled that SC/ST communities which suffered ostracisation, discrimination and humiliation for centuries formed homogeneous groups, incapable of being sub-categorised.

The verdict had come on a batch of petitions on the contentious issue, including one filed by the Punjab Government challenging the Punjab and Haryana High Court’s 2010 verdict declaring unconstitutional the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 which provided for 50 percent reservation with the first preference’ to ‘Valmikis’ and ‘Mazhabi Sikhs’—who constitute 41.9% of the total Scheduled Castes population in Punjab—in public employment within the quota meant for SCs.

Similarly, the Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State within the Reservation for the Scheduled Castes) Act, 2009 which gave reservation to Arunthathiyars in educational institutions and State Government jobs within the state’s 18% quota for SCs was also challenged before the top court.

After laying down the law on the issue, the Constitution Bench left it to the CJI to send the individual cases to appropriate Benches for adjudication.