A Seven Judge Bench of the Supreme Court has pronounced the judgment that sub-classification of the Scheduled Caste and Scheduled Tribe categories is permissible.

There are six opinions in the judgement. Justice Bela Trivedi has dissented. The majority held that sub-classification is permissible.

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.

CJI Chandrachud authored an opinion for himself and Justice Manoj Misra. Justice Gavai and Justice Mithal have authored separate concurring opinions. Justice Gavai and the CJI have agreed with each other's conclusion. Justice Nath and Justice Sharma have agreed with the opinions of the CJI and Justice Gavai, while Justice Trivedi dissented.

The majority overruled the decision in E.V.Chinnaiah v. State of Andhra Pradesh, (2005 SC). Senior Advocate Kapil Sibal and Solicitor General Tushar Metha, among others, were present in Court during the pronouncement. The Central government had argued during the hearing that it supports sub-classification.

The CJI first pronounced his opinion. The CJI held that Article 14 permits sub-classification of classes which are not similarly situated. He held that sub-classification can be done based on intelligible differential standards. He held that the Court in the case of Indra Sawhney did not bar sub-classification of SCs and STs. CJI directed the Registry to obtain orders for placing the matters before an appropriate bench for adjudication in terms of the decision.

Justice Gavai then pronounced his opinion concurring with the CJI while giving additional reasons, which the CJI has agreed with. He reiterated that Articles 341 and 342 do not deal with reservation. He also held that Indra Sawhney permits further classification of backwards classes into backwards more backward classes. He held that if the state finds that a sub-class is not adequately represented, it can sub-classify. He also held that no sub-category can be excluded by sub-classification. He rejected the argument that sub-classification will be politically misused. He also held that the state must frame a policy to exclude creamy layers from the SC and ST categories. He held that the state must justify sub-classification with empirical data about under-representation.

Justice Nath then read his concurring opinion. He also held that sub-classification must be supported by empirical data and that the criteria for excluding the creamy lawyer from the SC and ST must be different from that for the OBCs.

Justice Bela M Trivedi pronounced the dissenting opinion, and started by saying that dissent is important to strengthen the law in future for the democratic functioning of the judiciary. The judge held that the manner in which the three-judge bench referred the matter to a larger bench without assigning reasons was not proper. The Judge held that only the Parliament can modify the list of SCs or STs and that even the President cannot modify the same with a notification. She held that the sub-classification by the state will amount to tinkering with the notification issued by the President. She also held that sub-classification will amount to discrimination against the excluded categories. Justice Trivedi held that the decision in E.V.Chinnaiah v. State of Andhra Pradesh is correct.

Justice Pankaj Mithal then pronounced his opinion agreeing with the opinions of the CJI and Justice Gavai. This was followed by Justice Sharma.

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. (C.A. No. 2317/2011)

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Aastha Kaushik