NE LEGAL BUREAU
NEW DELHI, AUG 27
In a significant verdict, the Supreme Court Thursday ruled that its 2004 verdict holding that states do not have the power to further sub-classify the Scheduled Castes and Scheduled Tribes for grant of quotas needed to be revisited by a seven or more judges bench.
The apex court said states should be allowed to provide preferential treatment to the “poorest of the poor” among SCs and STs and advocated that an “authoritative pronouncement” was needed with respect to the effect of Constitutional provisions and whether sub-classification is permissible only with respect to the socially and educationally backward classes and not with respect to SCs and STs.
The top court observed that the benefit of quota, by and large, is not percolating down to the “neediest and poorest of the poor” and it was “crystal clear” that creamy layer concept for excluding affluent people “can be applied to” SCs and STs.
A five-judge constitution bench headed by Justice Arun Mishra said the 2004 verdict of a bench of the same strength in the E V Chinnaiah case had held that states cannot give preference to certain Scheduled Castes as it would amount to “tinkering with” the Presidential list of SCs and STs under the Constitution and this required to be relooked.
“Reservation was not contemplated for all the time by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if subclassification is denied, it would defeat right to equality by treating unequal as equal,” the top court said.
It further said, “The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures.”
“We endorse the opinion of a Bench of three Judges that E V.Chinnaiah is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place.
“We cannot revisit E V Chinnaiah being Bench of coordinate strength. We request the Hon’ble Chief Justice to place the matters before a Bench comprising 7 Judges or more as considered appropriate,” said the bench which also included Justices Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose.
The top court was faced with the legal issues referred to it by a three-judge bench which was earlier hearing a batch of appeals including the one filed by the Punjab government.
The state government under Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 had provided that out of seats reserved for Scheduled Castes, fifty per cent of the vacancies would be offered to ”Balmikis” and ”Mazhabi Sikhs” and this was set aside by the high court by placing reliance on the 2004 verdict.
Dealing with apex court judgements in the Mandal and the Jarnail Singh cases (on quota for OBCs and exclusion of creamy layers from quota benefits in SCs and STs), it said, “The ”inadequate representation” is the fulcrum of the provisions of Article 16(4).
“In our opinion, it would be open to the State to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for the emancipation of the oppressed class. The benefit, by and large, is not percolating down to the neediest and poorest of the poor.”
Justice Mishra, in the 78-page judgement, referred to the constitutional amendment made to grant quota to the poor class of citizens and the Jarnail Singh judgements and said that it was “crystal clear” that creamy layer concept for excluding affluent people “can be applied to” SCs and STs.
The bench also referred to the different strata among SCs as well and said that there have been reports to that effect.
“There is cry, and caste struggle within the reserved class as the benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation. The scavenger class given the name of ”Balmikis” remains more or less where it was, and so on, disparity within Scheduled Caste is writ large from various reports.
“The sub-classification was made under Section 4(5) of the Punjab Act to ensure that the benefit of the reservation percolates down to the deprived section and does not remain on paper and to provide benefit to all and give them equal treatment…”.
Referring the vexatious issue to a larger bench, the court said that as per its opinion, it would be “permissible on a rational basis to make such subclassification to provide benefit to all to bring equality, and it would not amount to exclusion from the list as no class (caste) is deprived of reservation in totality.”
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