'Right To Equality Guarantees Factual, Not Formal Equality', Says SC Favouring Sub-Classification For SCs

A Supreme Court seven-judge constitution bench headed by Chief Justice D Y Chandrachud, by a majority of 6:1, set aside its verdict in the EV Chinnaiah vs State of Andhra Pradesh case which had held that no sub-classification of Scheduled Castes (SCs) can be allowed.

New Delhi:The Supreme Court on Thursday ruled that states are constitutionally empowered to make sub-classifications within the Scheduled Castes, which form a socially heterogeneous class, for granting reservation and stressed that the fundamental right to equality guarantees "factual and not formal equality", and if different persons are not similarly situated, a classification is permissible.

A seven-judge constitution bench headed by Chief Justice D Y Chandrachud, by a majority of 6:1, set aside the apex court's five-judge bench verdict in the EV Chinnaiah vs State of Andhra Pradesh case which had held that no sub-classification of Scheduled Castes (SCs) can be allowed as they are a homogeneous class in themselves.

The six judgments, running into 565 pages, were penned on the contentious issue by the CJI, who wrote for himself and Justice Manoj Misra, and Justices BR Gavai, Vikram Nath, Pankaj Mithal, Satish Chandra Mishra and Bela M Trivedi. Except for Justice Trivedi, the other five judges concurred with the opinion of the CJI.

The CJI, in his opinion, dwelled upon the legal aspects to answer the core issue whether sub-classification of the scheduled castes is constitutionally permissible for the purposes of reservation. He clearly opined that the apex court in Indra Sawhney (1992) judgment never intended to limit the application of sub-classification to the other backward classes only. The CJI said Article 14 (right to equality) of the Constitution permits sub-classification of a class, which is not similarly situated for the purpose of the law.

He said if any class is not integrated it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution, so long persons in a class are not similarly situated.

The CJI said that there is no violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste as by such sub-classification no caste is being included or excluded from the list of scheduled castes. Article 341(1) grants the President the power to notify castes, races or tribes which shall be deemed to be SCs for a state or a Union Territory.

The CJI said Article 14 employs two expressions – equality before the law and equal protection of the laws and both are different in content and sweep. "Equality before the law.... entails absence of special privileges for any individual within the territory. It does not mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated," he said.

He said in essence, the guarantee of equality entails that all persons in like circumstances must be treated alike and equality does not entail sameness, and the state is allowed to classify in a manner that is not discriminatory.

"The first issue that arises for the consideration of this Court is whether the principle of sub-classification per se violates Article 14. It is established precept that Article 14 guarantees factual and not formal equality. Thus, if persons are not similarly situated in reference to the purpose of the law, classification is permissible. The same logic of classification equally applies to sub-classification," said the CJI, in the 140-page judgment.

He said the law can further classify a class that is already created by law for a limited purpose if it is heterogeneous for another purpose and this court has in multiple judgments held that such classification within a class is valid under Article 14.

Article 16 (4) provides the State with the enabling power to make provisions for reservations in appointments or posts in favour of "any backward class of citizens". The provision, unlike Article 15(4), does not distinguish amongst the Scheduled Castes, Scheduled Tribes, and other Socially and Educationally Backward Classes.

"The castes or groups within the Scheduled Castes form an integrated class for the limited purpose of constitutional identification. They do not form an integrated class for any other purpose. We have also established through historical and empirical evidence that the Scheduled Castes notified by the President under Article 341 are a heterogenous class where groups within the class suffer from varying degrees of social backwardness….," said the CJI.

He said the state in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified.

"If the Scheduled Castes are not similarly situated for the purposes of the law (or the specific harm identified), there is nothing in Articles 15, 16 and 341 which prevents the State from applying the principle of sub-classification to the class," said the CJI.

He said the Scheduled Castes can be further classified if: (a) there is a rational principle for differentiation; and (b) if the rational principle has a nexus with the purpose of sub-classification.

The CJI said the course of action adopted by the State, in the sub-classification process, is subject to judicial review when faced with a constitutional challenge.

"The basis of the sub-classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the State. In other words, while the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State”, said the CJI, adding that it cannot in other words merely act on its whims or as a matter of political expediency.

The CJI said the State must provide justification and the rationale for its determination and no State action can be manifestly arbitrary, and it must be based on intelligible differentia which underlie the sub-classification. “The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved”, he said.

The bench said the Constitution does not bar the allocation of a percentage of seats to a caste since every caste is a class. “However, the State must have sufficient material to prove inter-se backwardness between each of the castes," it added.

Justice Trivedi’s dissent

"It is only the Parliament by law which can include in or exclude from the list of the “Scheduled Castes” specified in the notification notified under Clause (1), any caste, race or tribe or part of or group within any caste, race or tribe. Such notification notified under Clause (1) cannot be varied even by the President by issuing any subsequent notification”, said Justice Trivedi.

She said it is by virtue of the notification of the President under Article 341 that the “Scheduled Castes” come into being. “Though the members of Scheduled Castes are drawn from different castes, races or tribes, they attain special status of ‘Scheduled Castes’ by virtue of Presidential Notification. The etymological and evolutionary history and the background of the nomenclature ‘Scheduled Castes’, coupled with the Presidential orders published under Article 341 of the Constitution, make the ‘Scheduled Castes’, a homogenous class, which cannot be tinkered with by the States”, she said.

Justice Trivedi said the States have no legislative competence to enact the law for providing reservation or giving preferential treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes” in the notification under Article 341.

She stressed that under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List, nor can tinker with Article 341 of the Constitution.