Supreme Court judge from SC community questions intergenerational benefits due to reservation; Punjab AG says creamy layer addresses it

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The Supreme Court on Tuesday observed that Punjab government’s law on sub-classification within the reserved categories may have been aimed at excluding those whose one generation has already benefited due to the relaxations granted by law. [State of Punjab and ors vs Davinder Singh and ors].

The bench of Chief Justice of India (CJI) DY Chandrachud with Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma today began hearing the case dealing with the question of whether Scheduled Castes (SCs) and Scheduled Tribes (STs) can be sub-classified by State governments.

During the hearing, a debate also ensued on continuing reservation for those whose one generation may have already benefited.

Justice Nath particularly asked whether the State’s aim behind the sub-classification was that amongst a particular category, some of the sub-castes may have now done better and as a result should come out and compete with the General Category.

“My lordships are absolutely right … that is the aim,” Punjab Advocate General Gurminder Singh said in response.

Justice Gavai at this stage also joined the conversation and remarked that State’s argument appears to be that amongst the backward, some are more backward and therefore require a more special treatment.

At a later stage, the judge, who himself is from Dalit community, expressed his thoughts on intergenerational benefits due to continuing reservation.

“What happens is a person from Scheduled Caste or Scheduled Tribe gets into IAS, IPS. Once he is an IAS or IPS or IFS, his children no more suffer the disadvantages that the persons from the category who are residing in the villages but then by virtue of reservation they are also entitled to get it in second generation or third generation,” Justice Gavai said.

Senior Advocate Kapil Sibal and AG submitted that such persons would fall under creamy layer and get excluded as per the Supreme Court’s judgment in Jarnail Singh v Lacchmi Narain Gupta.

The AG also said that any exclusion was parliament’s prerogative, but States can “exert control on the ones who are already there within the room.”

During the day one of the hearing, the Court also asked whether a State can breach the 50-percent cap within the reserved categories while sub-classifying them and grant 100 percent reservation to a particular community within a reserved category

It also remarked that the State governments may see the need to sub-classify the reserved categories to ensure that the most backward among them also get the benefit of reservation.

“State may feel backward class as a whole is well represented in the state but backward class within that class is not represented at all and thus that skewed representation needs to be corrected,” the CJI opined.

The legal question related to the sub-classification has its origins in a law passed by Punjab legislative assembly in 2006.

However, the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act was later was struck down by the Punjab and Haryana High Court.

This led to an appeal by the Punjab government before the top court.

In its appeal, the State of Punjab has relied on the top court’s nine-judge bench decision in Indra Sawhney v Union of India (1992) that allowed subcategories within Other Backward Classes (OBC).

On August 20, 2014, a three-judge bench hearing the appeal referred the matter to a five-judge Constitution Bench to assess the correctness of an earlier 7-judge bench decision in EV Chinnaiah that deemed caste sub-categories unconstitutional.

The decision in Chinnaiah had been relied upon by the High Court to quash the law.

In August 2020, the matter was referred to a 7-judge bench, after the 5-judge bench of the apex court disagreed with the Chinnaiah bench.

Hearing today

Punjab Advocate General (AG) Gurminder Singh today began arguments for the State government.

“There are two core issues which eventually settle arguments in this case: as regards reservations, what is the efficacy of measures taken by govt to weed away inequality. Next is the interplay of the constitutional provisions regarding the powers in the federal structure for identification and implementation of the measures so taken,” he said.

The AG stressed that reservation is not an exercise of benevolence or entitlement but compensation for the centuries of suppression of the needy to ensure equality of opportunity and status.

“Nothing would correct itself on its own and that is why what is required is affirmative action and the only way to provide succour to the needy is affirmative action to the needy. Caste system has resulted in deep divide. Some castes have been marginalised and reduced to a situation of despair. What has come to those who have been marginalised is backwardness.”

The AG explained that the reservation in the 2006 Act was limited to 50 per cent and implemented on a preferential basis.

“This was not an act of exclusion by any standards. It was to bring most backward of the backward on the forefront … If there were 10 SC-ST vacancies, five were kept for Valmikis or Mazhabis; this preference based reservation was not at anyone’s cost, it was not that if they do not get it, no one would get it.”

The CJI then remarked,

“There is an element of exclusion. There is an exclusion of forward community for competing for those posts, but the Constitution allows it because we treat equality as a substantive equality.”

The CJI also asked whether States can give 100 per cent reservation to a particular community within a reserved category, to which the AG replied saying it would lead to exclusion.

“Can the State say that we are giving 100 percent reservation out of the Scheduled Castes only to these two communities,” asked the CJI.

On AG’s response that a State cannot do so as it will lead to exclusion, the CJI said there is still some exclusion even if not 100 percent.

“100 per cent is an absolute exclusion but 50 per cent is an exclusion qua those who can’t compete for that 50 percent within the backward community. So we will have to answer, if we have to, in saying that Chinnaiah has perhaps overlooked over jurisdiction,” the CJI then remarked.

The CJI also asked whether a State can breach the 50-percent limit within the backward category.

“Is the State bound by the 50-percent cap while applying the distribution of benefits within the 50 percent? … Can the State not say ‘look in my state these are the truly marginalised communities. I want the benefits to go to them’… Can the State do that or can they not do it”

AG in response submitted there is no mandate in law for providing reservation, only enabling provisions like Articles 15 and 16.

In this context of prioritising certain communities within a reserved category, AG also said otherwise benefits will continue to reach only few.

“Unless this exercise is permitted by law… If you block it, what will happen is it will be lumping. Then all the benefits will be lumped upon a part of the part and the others who are truly deserving, for whom the provisions have been made to achieve the eventual end of equality, will never get it. Even if somebody is an Inspector, his family has made it, his children will go to a good school … but for somebody still in that part of village, where you are not allowed even to draw water from the well, he is the one who needs it. You cannot allow lumping of benefits with a certain class within a class.”

Justice Nath during the hearing also asked about any studies undertaken to identify the backward among the backward, and the parameters of the same.

“They continue to be backward and instead of affirmative action they are not still represented and thus there is something lacking and that is what the state seeks to address,” the AG replied.

Punjab Additional Advocate General (AAG) Shadan Farasat also made arguments today and submitted that the requirement of efficiency in administration of government requires and mandates sub-classification.

“The postulate of the constitution is not that those who are from marginalised are less efficient. It is quite the opposite,” the CJI said.

Farasat explained that efficiency in administration requires some degree of diversity and is not concerned with the efficiency of a particular group.

“We really do not know what real efficiency is because we have not seen real equality yet,” he said.

The hearing will resume tomorrow.

The CJI today asked the counsel to allot time in a such a manner that the hearing concludes by tomorrow.

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