While dissenting from the Supreme Court judgment permitting SC-ST sub-categorisation, Justice Bela M Trivedi said that the “Scheduled Castes” which is a homogenous class cannot be tinkered with by the States.

The 7-Judge Bench of the Supreme Court, with a 6:1 majority, has held that the sub-categorisation and sub-division of the Scheduled Castes ('SCs') and Scheduled Tribes('STs') are permissible and has overruled the judgment in EV Chinniah v. State of Andhra Pradesh (2006 SC). Justice Trivedi gave the dissenting opinion.

"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.", Justice Trivedi said.

The Bench of Chief Justice DY Chandrachud, Justice B.R. Gavai, Justice Vikram Nath, Justice Bela M Trivedi, Justice Pankaj Mithal, Justice Manoj Misra and Justice S.C. Sharma pronounced the judgment.

The judge also held, "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...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."

Justice Trivedi said that the affirmative actions of the States have to be within the Constitutional framework, and if they are not, the Courts cannot ratify the same by bending or moulding the specific mandates contained in the Constitution. Further, Article 142 even with the width of its amplitude cannot be used to build a new edifice where none existed earlier, by ignoring Constitutional provisions dealing with the subject and thereby achieving something indirectly which cannot be achieved directly.

Furthermore, the Judge observed that the removal of inequalities or remedy to remove inequalities cannot be permitted at the cost of violation of the specific provision of the Constitution. When the wordings of the provision of the statutes, in the instant case of Article 341 of the Constitution are clear, as also the intention of the draftsmen of the Constitution, the Court cannot add or subtract words from such provision to give it a meaning which the Court feels would achieve the goal of social transformation.

"In short, the affirmative action and the legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and Constitutionality.", Justice Trivedi added.

Upholding the judgment in EV Chinniah (supra), it was observed, "The Nine-Judge Bench in Indra Sawhney and the Five-Judge Bench in Jarnail Singh had not dealt with the issue of sub- classification of the “Scheduled Castes” in the context of Article 341, much less had dealt with the State’s powers to sub-classify or sub-divide or regroup the castes specified as “Scheduled Castes” under Article 341 of the Constitution, and therefore, it could not be held that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh...The power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. Even with the width of its amplitude, Article 142 cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with the subject, and thereby to achieve something indirectly which cannot be achieved directly. The action of the State, though well intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142."

It was also emphasized that the Presidential List specifying “Scheduled Castes” under Article 341 assumes finality on the publication of the notification, and the castes, races or tribes, or groups within castes, races or tribes specified in the notification are deemed to be the Scheduled Castes in relation to that State or Union Territory as the case may be, for the purposes of the Constitution and as such assume special status of Scheduled Castes. 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, she said.

Justice B.R. Gavai., Justice Vikram Nath, Justice Pankaj Mithal and Justice SC Sharma have also held that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action.

Justice Pankaj Mithal also held that the reservation must be limited only to the first generation and that it must be on some criteria other than caste since the Constitution does not have a caste system and the country has moved into a caste-less society.

The judgment was reserved on February 8, 2024. The matter was referred to a 7-judge bench by a 5-judge bench in the year 2020 in the case of State of Punjab v. Davinder Singh. The 5-judge bench held that the judgment of the coordinate bench in the case of E.V.Chinnaiah v. State of Andhra Pradesh, (2005 SC) observing that sub-classification was not permissible, was required to be reconsidered.

Cause Title: The State of Punjab and Ors. v. Davinder Singh and Ors. (Neutral Citation: 2024 INSC 562)

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Justice Bela M TrivediReservationScheduled CasteScheduled Tribe

Aastha Kaushik