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Reservation - Sub Classification

“ A Constitutional Court declares law as contained in the Constitution, but in doing so, it rightly reflects that a Constitution is a living and organic thing, which of all instruments has the greatest claim to be construed broadly and liberally” 

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SUPREME COURT OF INDIA

CONSTITUTION BENCH 

Decided; 27.08.2020

Reported on 27.8.2020 in 2020 SCeJournal 1443 

 

(i) Constitution of India, 1950, Articles 15(4) and 16(4) and also Articles 341(1) and 342(1)   -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  - Judgment of  5-Judge Bench in E.V. Chinnaiah vs. State of A.P. and Ors., (2005) 1 SCC 394, is required to be revisited in the light of Article 338 of the Constitution of India, and not correctly following the exposition of the law in Indra Sawhney and Ors. vs. Union of India & Ors., 1992 Suppl. (3) SCC 217   - It 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 -  Request the Hon'ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate. #2020 SCeJ 1443 

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 (ii) Constitution of India, 1950, Articles 15(4) and 16(4) and also Articles 341(1) and 342(1)   -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  -  Whether sub-classification for providing benefit to all castes can be said to be tinkering with the list under Articles 341, 342 and 342A? ‘ - Caste, occupation, and poverty are interwoven -  The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures - Reservation -  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 sub-classification is denied, it would defeat right to equality by treating unequal as equal - There is cry, and caste struggle within the reserved class as 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 percolate down to the deprived section and do not remain on paper and to provide benefit to all and give them equal treatment, whether it is violative of Article 14? In our opinion, it would be permissible on rationale basis to make such sub-classification 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 - In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread - The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class. #2020 SCeJ 1443 

 

 

 

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(iii) Constitution of India, 1950, Articles 15(4) and 16(4) and also Articles 341(1) and 342(1)   -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  -Reservation – Sub classification - The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye - The social realities cannot be ignored and overlooked while the Constitution aims at the comprehensive removal of the disparities -  The very purpose of providing reservation is to take care of disparities -  The Constitution takes care of inequalities -  There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes -  Various reports indicate that Scheduled Castes and Scheduled Tribes do not constitute a homogenous group -  The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream-  At the same time, various castes by and large remain where they were, and they remain unequals, are they destined to carry their backwardness till eternity? - The State's obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities - When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub-classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided - It involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil the very purpose of the constitutional mandate of equal justice to all. #2020 SCeJ 1443 

 

(iv) Constitution of India, 1950, Articles 15(4) and 16(4) and also Articles 341(1) and 342(1)   -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  -Reservation – Sub-classification - Providing a percentage of the reservation within permissible limit is within the powers of the State legislatures - It cannot be deprived of its concomitant power to make reasonable classification within the particular classes of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes without depriving others in the list - To achieve the real purpose of reservation, within constitutional dynamics, needy can always be given benefit; otherwise, it would mean that inequality being perpetuated within the class if preferential classification is not made ensuring benefit to all - The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolved the very concept of reservation. #2020 SCeJ 1443 

 

(v) Constitution of India, 1950, Articles 15(4) and 16(4) and also Articles 341(1) and 342(1)   -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  - Reservation –Sub classification  - The Scheduled Castes as per Presidential List are not frozen for all the time, and neither they are a homogenous group as evident from the vast anthropological and statistical data collected by various Commissions -  The State law of preferential treatment to a limited extent, does not amend the list - It adopts the list as it is - The State law intends to provide reservation for all Scheduled Castes in a pragmatic manner based on statistical data -  It distributes the benefits of reservations based on the needs of each Scheduled Caste - The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1) - It prescribes the extent/ percentage of reservation to different classes - The State Government can decide the manner and quantum of reservation -  As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the list based on the rationale that would conform with the very spirit of Articles 14, 15, and 16 of the Constitution providing reservation -  The State Government cannot temper with the list; it can neither include nor exclude any caste in the list or make enquiry whether any synonym exists as held in Milind. #2020 SCeJ 1443 

 

(vi) Constitution of India, 1950,  Article 16(4) -  Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5)  - Reservation on Rotational basis  - The "inadequate representation" is the fulcrum of the provisions of Article 16(4) -  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 emancipation of the oppressed class -  The benefit by and large is not percolating down to the neediest and poorest of the poor. #2020 SCeJ 1443  

 

(vii) Constitution of India, 1950,  Articles 14, 15, 16, 338, 341, 342, and 342A  - Stare Decisis -  The interpretation of Articles 14, 15, 16, 338, 341, 342, and 342A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney and other decisions -  Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities -  The constitutional goal of social transformation cannot be achieved without taking into account changing social realities – reservation – Sub classification - Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006,  Section 4(5) . #2020 SCeJ 1443 [Para 51]

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