Supreme Court: In a batch of civil appeals and special leave petitions, the seven Judge Constitution Bench comprising of Dr. DY Chandrachud, CJI, B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma, JJ., by a majority of 6:1 held that sub-classification of Scheduled Castes among reserved categories is permissible for granting separate quotas for more backwards within the SC categories and overruled the E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.
However, Justice Bela M. Trivedi being the lone dissenter held that such sub-classifications within the SC/STs is impermissible, holding EV Chinnaiah to be a good law. It was held that when the law was settled by the Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in State of Punjab v. Davinder Singh (2020) 8 SCC 65 and that too without assigning any reason much less cogent reason for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis.
Further, it was held by Justice Trivedi that 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. The affirmative action and legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and constitutionality.
Analysis- Justice Bela M. Trivedi
1. Whether the law laid down by the five-judge Bench in E.V. Chinnaiah (supra) could have been referred to the larger Bench by the Bench of three judges, without recording any cogent reasons for disagreement with E.V. Chinnaiah more particularly when the said decision held the field for a long period of fifteen years?
Justice Trivedi noted that the Three-Judge Bench Davinder Singh (supra) had referred the matters to the larger Bench without assigning any reason much less cogent reason as to why it could not agree with the decision in E.V. Chinnaiah delivered by the Constitution Bench. Justice Trivedi said that the law which was settled by the Constitution Bench and was prevalent for 15 years was sought to be doubted and unsettled by a Three-Judge Bench by passing a very cryptic and perfunctory order not supported by any reason. Referring to Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1, it was noted that while examining the propriety of the Bench of two Judges doubting the correctness of a decision of a Bench of three Judges and directly referring the matter to the Bench of five Judges, had observed that judicial discipline and propriety demands that a Bench of two Judges should follow a decision of a Bench of three Judges, but if a Bench of two Judges concludes that an earlier judgment of three Judges is so very incorrect that in no circumstances, can it be followed, the proper course for it to adopt would be to refer the matter before it to a Bench of three Judges setting out, the reasons why it could not agree with the earlier judgment.
Justice Trivedi stated that “the doctrines of Precedents and Stare decisis are the core values of our legal system. Time and again it has been emphasized that when a decision is rendered by this Court, it acquires a reliance interest and the society organizes itself based on such legal order. When substantial judicial time and resources are spent on the References by the Constitution Benches, the same should not be further referred to the larger Bench by a smaller Bench, in a casual or cavalier manner, and without recording the reasons for disagreement.”
Referring to a catena of judgments on the question, Justice Trivedi said that it is clear that the doctrines of binding Precedents and Stare decisis, as also the judicial discipline and propriety, warrant that the decision of larger Bench should be followed by the smaller Bench. If the smaller bench had any doubt or disagreement with a decision of the larger bench, it could refer the same for reconsideration to the larger bench, however, after setting out the reasons and justification as to why it could not agree or follow the decision of earlier larger Bench, such disagreement also has to be based on some justifiable reasons, like where the earlier decision of larger Bench is found to be manifestly wrong or where the contextual values giving birth to the earlier view had altered substantially etc. Hence, Justice Trivedi held that in the matter at hand, the reference was made by Three-Judge Bench to the larger Bench for revisitation of the earlier decision of Constitution Bench in E.V. Chinnaiah (supra), without assigning any reason and in a very casual and cavalier manner, and that too after fifteen years of its attaining finality. Such reference could not and should not have been countenanced by the subsequent Five-Judge Bench for reference to the Seven-Judge Bench. Justice Trivedi opined that when a law was settled by the previous Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney (supra), and after investing substantial judicial time and resources, and when the same had held the field for a substantially long period of fifteen years, the very reference by the Three-Judge Bench to the larger bench for reconsideration of the decision in E.V. Chinnaiah, that too without assigning any reason was inappropriate and not in consonance with the well settled doctrines of Precedents and Stare decisis.
2. Whether the States should be permitted to tinker with or vary the presidential list specifying the “scheduled castes,” as notified under Article 341(1) by sub-classifying or sub-dividing or re-grouping the castes under the guise of providing reservation for the weaker of the weakest?
Object, Purpose and Limits of Article 341
On perusal of the text of Article 341 and Constitutional Assembly Debate around the same, Justice Trivedi said that it is clearly discernible that power of the President is limited to specify the castes or the tribes which shall, for the purposes of the Constitution, be deemed to be SCs or STs in relation to a State or a Union Territory as the case may be. Once the notification is issued under Article 341(1), it is only the Parliament which can by law, include in or exclude from the list of Scheduled Castes specified in the notification, any caste, race or tribe or part of or group within any caste, race or tribe, and the notification issued under Clause (1) could not be varied by any subsequent notification. Further, she said that the object of inserting Article 341 was to eliminate the necessity of burdening the Constitution with long list of Scheduled Castes and Scheduled Tribes. It was proposed that the President, in consultation with the Governor or Ruler of a State should have power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be SC/ STs for the purposes of the privileges which have been defined for them in the Constitution. The only limitation put was that once a notification has been issued by the President, any elimination from or any addition in the list must be made by the Parliament and not by the President.
Hence, Justice Trivedi held that the Presidential List as notified under Article 341 assumes finality on the publication of the notification, and that the castes, races or tribes or parts of or groups within castes, races or tribes specified in the notification are, for the purposes of the Constitution, deemed to be the “SCs” in relation to that State or Union Territory as the case may be. It is only the Parliament by law which can include in or exclude from the list of SCs 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.
Special Status of “Scheduled Castes”
Justice Trivedi after referring to N.M. Thomas, said that there was no doubt that “SCs” are not a caste within the ordinary meaning of caste. It is by virtue of the notification of the President under Article 341 that the “SCs” come into being. Though, the members of the SCs are drawn from different castes, races or tribes, they attain a new Special Status by virtue of the Presidential notification. Further, she said that Article 341 clarifies that “SCs” is an amalgam of castes, races, groups, tribes, communities or parts thereof, and is a homogenous group, and that once notified by Presidential List, they acquire special status of “SCs” which cannot be varied except by the Parliament by law.
State’s competence to sub-classify or sub-divide or re-group the castes specified as “scheduled castes” in the presidential list for providing the reservation under Articles 15 and 16
Justice Trivedi said that in absence of any executive or legislative powers, the States are not competent to divide/ sub-divide/ sub-classify/ regroup the castes, races or tribes from amongst the “SCs” nor could they give any preferential treatment by reserving a quota for a particular caste, race, tribe out of the quota reserved for the entire SCs. However, she added that such sub-classification or sub division of castes from amongst the SCs by the State for the purpose of reservation per se may not amount to inclusion or exclusion of any caste from the Presidential List of Scheduled Castes, it would certainly amount to tinkering with or varying the notification notified under Clause (1), which is clearly prohibited under Clause (2). When all castes, races or tribes enumerated in the Presidential List are deemed to be the “SCs” for the purposes of the Constitution, any preference given to or any quota reserved for a particular caste or race or tribe out of the quota reserved for the entire class of the SCs for the government jobs by the State, would certainly deprive the other members of the SC from having the benefit of reservation to the extent the quota is reserved for such particular caste or castes. Justice Trivedi held that any such action on the part of the State would not only tantamount to discrimination in reverse and violation of Article 14 but would also tantamount to tinkering with Article 341 of the Constitution.
Further, she elaborated that if any State makes special provision of reservation by fixing quota for the entire SCs for admission to educational institutions or for the appointments on the posts in the public services as permitted under Article 15 and 16, such quota of reservation should be made available to all the members of the SCs specified in the Presidential List, as all the members of the castes, races and tribes specified in such List are deemed to be SCs for the purposes of the Constitution, and the State has no power to further sub-classify or sub-divide them for giving preferential treatment to a particular caste from the said list. She stated that 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 and tinker with Article 341. Such power if exercised by the State in absence of any executive or legislative power would be colourable exercise of powers.
3. Whether EV Chinnaiah is required to be revisited in view of certain observations made in Indra Sawhney (supra) concerning “other backward classes”?
Justice Trivedi opined that Indra Sawhney (supra) had not dealt with the issue of sub-classification of the Scheduled Castes much less had dealt with the State’s power to sub-classify or sub-divide or re-group the Castes specified as SCs under Article
Further, she said that Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 opinion as to non-agreement with Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 that the creamy layer principle is merely a principle of identification and not a principle of equality and agreed with that part of decision in M. Nagaraj v. Union of India (2006) 8 SCC 212 which held that the creamy layer test is applicable to the SC/STs in exercise of application of the basic structure test, and that “it would clearly be contrary to Indra Sawhney (supra), which had held that the requirement of social and educational backwardness cannot be applied to SC/ STs who inevitably fall within the expression “Backward Class of Citizens” and therefore the decision the judgment in Nagaraj would have to be declared to be bad on this ground”, were self-contradictory.
Hence, upon noting that the issue of sub-classification of SCs in context of Article 341 was neither raised nor argued, in Indra Sawhney (supra) and Jarnail Singh (supra), she held that it would be a fallacy to hold that the law laid down in E.V. Chinnaiah (supra) was not in consonance with Indra Sawhney (supra) and Jarnail Singh (supra).
[State of Punjab v. Davinder Singh, 2024 SCC OnLine SC 1860, Decided on: 01-08-2024]
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