Context: Recently, A five-judge Bench of the Supreme Court held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.

• The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
• The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs. 

Historical Background

• In the Indra Sawhney v. Union of India 1992 case, the Supreme Court held that it would be perfectly legal for the state to categorise backward classes as backward and more backward.
• It also upheld the concept of ‘creamy layer’ within OBC to those who have overcome their backwardness. However, the concept of creamy layer in SCs and STs has been in debate since then.
• In the E V Chinnaiah v State of Andhra Pradesh and Others 2005 case, the Supreme Court ruled that only the President has the power to notify the inclusion or exclusion of a caste as a Scheduled Caste, and states cannot tinker with the list.
• In the M.Nagaraj & Others vs Union Of India, 2006 case, the Supreme Court said that the government had to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
• However, in Jarnail Singh vs Lachhmi Narain Gupta, 2018 Supreme Court held that the government need not collect quantifiable data to demonstrate backwardness of public employees belonging to the SC/STs to provide reservations for them in promotions.
• It also observed that certain caste groups or subgroups have “come out of untouchability or backwardness by virtue of belonging to the creamy layer”.

Key highlights of the judgement

• The court ruled that there is a “caste struggle” within the reserved class as a benefit of reservation is being usurped by a few. 
• The constitutional goal of social transformation cannot be achieved without taking into account changing social realities. 
• The million-dollar question is how to trickle down the benefit to the bottom rung. It is clear that 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”.
• It mentions that “once a mortgage always a mortgage” cannot be pressed into service for submitting that once a backward class of citizens, always such a backward class and citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer. 
• The Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case. 
• The Chinnaiah judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list. 
• As two numerically equal Benches of judges holding contrary viewpoints, the issue has been referred to a seven-judge Bench of the court.

About the Sub-categorisation of SCs & its Need

• States have argued that among the Scheduled Castes, there are some that remain grossly under-represented despite reservation in comparison to other Scheduled Castes. 
• The inequality within the Scheduled Castes is underlined in several reports, and special quotas have been framed to address it.
• For example, in Andhra Pradesh, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits. 
• This sub-categorisation would achieve equitable representation of all SCs in government service.

What is the Presidential list?

• The Constitution, while providing for special treatment of SCs and STs to achieve equality, does not specify the castes and tribes that are to be called Scheduled Castes and Scheduled Tribes. This power is left to the central executive, the President. 
• The Central List of Scheduled Castes and Tribes is notified by the President under Articles 341 and 342 of the Constitution.
• The consent of the Parliament is required to exclude or include castes in the List so States cannot unilaterally add or pull outcastes from the List. 
• A caste notified as SC in one state may not be an SC in another state. These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.

Arguments against sub-categorisation

• The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes. 
• The special treatment is given to the SCs due to untouchability with which they suffer.
• n a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.”
• A watertight President’s list was envisaged to protect from such potential arbitrary change.

Important Constitutional Provisions regarding Reservations

• Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office.
• Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth.
• Articles 15(4) and 16(4) state that the equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favour of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
• Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.
• In the Indra Sawhney case of 1992, the Supreme Court fixed the upper limit for the combined reservation quota should not exceed 50% of seats.
• In 2019, the 103rd Constitution Amendment Act was passed empowering both Centre and the states to provide 10% reservation to the EWS category of society in government jobs and educational institutions.

Road Ahead

• The objective of reservation is to ensure that all backward classes march hand in hand and that will not be possible if only a select few get all the coveted services of the government.
• The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.