"In its ruling in Indra Sawhney and others v. Union of India, the Supreme Court noted that there is no constitutional or legal prohibition against a State categorizing backward classes into subcategories such as backward and more backward. The Court further observed that if a State opts to implement such sub-categorization, it is legally permissible.[1]"

In the light of the above statement the Author Attempted to analyse the landmark judgment by a seven-judge bench of the apex court, which, on August 1, 2024, redefined the operation of Scheduled Castes (SC) and Scheduled Tribes (ST) reservations for the first time since their constitutional introduction in 1950. In a 6:1 ruling led by Chief Justice of India D Y Chandrachud, the Bench authorized states to create sub-classifications within the SC and ST categories, establishing fixed sub-quotas to protect the most disadvantaged communities, overturning the 2004 decision in E V Chinnaiah v. State of Andhra Pradesh[2], which treated SC/ST groups as homogeneous entities.

This Article explores the historical context and implications of the judgment, focusing on four key issues: the treatment of castes within the SC list; state authority to sub-classify the Presidential list; the differentiation of social backwardness under Articles 15 and 16; and the potential application of the 'creamy layer' principle to SCs. The analysis includes an examination of the dissent by Justice Bela Trivedi, the rationale behind the majority opinion, and the anticipated impact on India's reservation policy and social justice framework. This judgment marks a significant shift in judicial interpretation, emphasizing the need for nuanced approaches to affirmative action that consider internal disparities among disadvantaged communities.

Introduction
In order, therefore, to have real equality and not theoretical or formal equality it was, in view of the Constitution, necessary to make special provision for the backward classes, the Scheduled Castes and the Scheduled Tribes. It must, however, be not forgotten that the backwardness, social and educational, is ultimately and primarily due to poverty.[3]

The idea of positive affirmation was given a major thrust in independent India through Articles 15(4), 15(5), 16(4), 16(4A), 16(4B), 330 and 332 of the Constitution of India. However, it would be incorrect to assume that such positive affirmation through reservations was introduced by the Constitution. As early as 1902, the King of Kolhapur - Chatrapati Sahuji Maharaj, introduced reservation to favour backward classes in state administration.[4] The basis of this reservation was more on the lines of economic status than purely on caste lines.[5]

While the need for reservations as a strategy to uplift the downtrodden sections of society has been justified for years on end, the biggest problem identified is its implementation as a policy. Though it is meant to be a socio-economic[6] classification of people who are presumably weaker than the rest of society, it has been misused by the upper echelons of this differentiated section to gain various advantages. There lives a dual society even within the reserved category, "a tiny elite gobbling up the benefits and the darker layers sleeping distance away from the special concessions".[7]

The Supreme Court has tried to defend the idea of excluding the creamy layer through the doctrine of classification.[8] According to this principle, a classification is reasonable if it satisfies two conditions. First, there must be an intelligible differentia in the class sought to be differentiated. Second, such a differentia must have a rational nexus with the object sought to be achieved by the statute or executive order. Recently, it was agreed that the object must be a reasonable object.[9] In State of Kerala v. N.M. Thomas, it was made explicit that if an intelligible differentia which separated a group within a class from the rest did exist and that differentia had nexus with the object of the classification, there could be no objection to a further classification within a class.[10]

Case Description
In 1975, the Punjab government restructured its 25% reservation for Scheduled Castes (SCs) into two distinct sub-categories through a notification. This reorganization allocated half of the reserved seats to Balmikis (Valmikis) and Mazhabi Sikhs, while the remaining seats were designated for other SC groups. This notification was in effect for 31 years until it was invalidated by the Supreme Court's five-judge bench in the case of E.V. Chinnaiah v. State of Andhra Pradesh[11]. The Court's ruling, which invalidated a similar law in Andhra Pradesh, established that sub-classification within the SC category was impermissible. Consequently, on July 25, 2006, the Punjab and Haryana High Court annulled the Punjab notification.

The Supreme Court's decision in Chinnaiah was based on two main arguments. First, it emphasized that state governments do not have the authority to designate any group as Scheduled Castes; this power is exclusively vested in the President under Article 341. Second, the Court held that the SC category, as defined under Article 341, constitutes a "homogenous" group. Therefore, any internal sub-classification would lead to unequal treatment of individuals within the same category, violating the principle of equality.

Following the Chinnaiah decision, the Punjab government enacted the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006[12]. Section 4(5) of this Act reintroduced a "first preference" reservation for Balmikis and Mazhabi Sikhs, stipulating that these communities would receive half of the reserved seats within the SC category before any other SC groups. However, on March 29, 2010, the Punjab and Haryana High Court struck down this provision, adhering to the precedent set by Chinnaiah. The Punjab government subsequently appealed to the Supreme Court.

In its appeal, the Punjab government contended that the ruling in Chinnaiah was inconsistent with the Supreme Court's nine-judge bench decision in Indra Sawhney v. Union of India. In Indra Sawhney, the Court recognized that subgroups within the Other Backward Classes (OBC) category might face varying levels of disadvantage, thus permitting sub-classification within the OBC category. The Punjab government argued that Chinnaiah had incorrectly extended this principle to the SC category, suggesting that only the OBC category could be sub-classified.

On August 20, 2014, a three-judge bench referred the matter to a five-judge Constitution Bench to reassess the correctness of the Chinnaiah decision. On July 15, 2020, this bench, led by Justice Arun Mishra and including Justices Indira Banerjee, Vineet Saran, M.R. Shah, and Aniruddha Bose, began its review. The appellants argued that preferential treatment was part of the right to equality and that sub-classification within the SC category was permissible under Article 16(4) to achieve adequate representation. They also cited the Supreme Court's 2018 decision in Jarnail Singh v. Lacchmi Narain Gupta[13], which allowed for sub-classification within the SC category by recognizing the "creamy layer" concept.

The five-judge bench noted that sub-classification is permitted for Socially and Educationally Backward Classes (SEBCs) under Article 342A[14], introduced in 2018, which empowers the President to prepare a list of SEBCs. The bench reasoned that since the constitutional provisions for recognizing Scheduled Castes (Article 341), Scheduled Tribes (Article 342), and SEBCs (Article 342A) are pari materia (meaning "on the same subject matter"), they must be interpreted consistently. Therefore, if sub-classification is allowed within the SEBC category (as per Indra Sawhney), it cannot be prohibited for the SC and ST categories.[15]

Moreover, the bench observed that since the State has the authority to grant reservations for the SC and ST categories under Articles 15 and 16, it should also be empowered to introduce sub-classifications to fulfil the spirit of the right to equality. Consequently, the five-judge bench concluded that it was not competent to revisit the E.V. Chinnaiah decision, which was also rendered by a five-judge bench. On August 28, 2020, the matter was referred to a seven-judge bench for further consideration.

The Position of Law
The issues before the Supreme Court in the recent case of Davinder Singh v. State of Punjab[16]

ISSUE:1 Can Sub-classification be permitted for the SC and ST categories since the same is permitted for the SEBC category?
The Chief Justice of India (CJI)'s profound and insightful interpretation of Article 14[17] opens up new possibilities in the realm of sub-classification within reserved categories. Article 14, the CJI wrote, recognises two expressions: equality before the law and equal protection of laws. The former means that there are no special privileges for any individual within the territory. It does not, however, "mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated."

The second expression, the CJI noted, meant that laws must be administered equally among equals. Accordingly, this also "enjoins the State with the power to reasonably classify those who are differently placed."

Equality enshrined under Article 14, he said, does not entail "sameness" but that "there must be a parity of treatment under parity of conditions." The provision incorporated substantive equality—the equality of opportunities over equality of treatment.

This interpretation hinges on recognizing these categories as a "backward class of citizens," which aligns seamlessly with the principles laid out in Article 14. The spirit of substantive equality, rather than mere sameness, is deeply embedded in this provision, in this context, the CJI noted that "sub-classification is a facet of equality." The law can further classify a class that is already created by law for a limited purpose (in this case the Scheduled Caste group) if it is heterogeneous for another purpose (varying levels of backwardness within this group). The test to be followed was that of intelligible differentia and rational nexus.

The litmus test employed to ascertain the justifiability of sub-classification within a particular category revolves around carefully evaluating the level of homogeneity within that class. By examining historical facts, empirical data, and distinct localities. The CJI noted that the Court in Chinnaiah wrongly held that Scheduled Castes were a homogeneous group because they were included in the Presidential List of 1950. He noted that the inclusion in the Presidential List "does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified." The CJI astutely observes that the Scheduled Castes do not exhibit the hallmark of homogeneity.

Justice Gavai Held that the: "hardships and the backwardness which these categories have suffered historically would differ from category to category."

In contrast, Justice Trivedi, who dissents, firmly believes that the Presidential List, as stipulated under Article 341, indicates that Scheduled Castes fundamentally comprise a unified and homogenous class. However, the CJI effectively counters this argument by positing that the legal fiction meticulously crafted under Article 341 was never intended to represent homogeneity within the group. Instead, its purpose solely revolves around the identification and differentiation of the Scheduled Castes from other groups, thereby facilitating the provision of constitutionally mandated benefits.

ISSUE 2: Are state legislatures competent to introduce sub-classification within the SC and ST categories?

1. The Power of States to Create Sub-Classification:
   The majority opinion in the case under discussion affirmed that states do possess the legislative authority to create sub-classifications within the Scheduled Caste (SC) group under Articles 15(4) and 16(4) of the Constitution. These provisions empower states to make special provisions for the advancement of socially and educationally backward classes, which includes the SCs. The rationale behind this authority lies in the recognition that the SCs are not a homogeneous group; rather, they consist of various sub-groups that may differ significantly in their degrees of social and educational backwardness.
   
   The majority held that this sub-classification is not only permissible but also necessary to ensure substantive equality. The Chief Justice emphasized that merely providing numerical representation does not achieve true equality if the varying degrees of backwardness among SC communities are not acknowledged and addressed. Therefore, sub-classification is seen as a tool to ensure that the most disadvantaged among the SCs receive the benefits intended for them, thus preventing the aggravation of inequality.
    
2. Sub-Classification and the Presidential List:
   The critical question regarding whether sub-classification constitutes "tinkering" with the Presidential List under Article 341 of the Constitution was also addressed by the Court. Article 341[18] establishes that the President, in consultation with the Governor, has the authority to specify the castes, races, or tribes that shall be deemed Scheduled Castes in a state or Union Territory. Parliament, under Article 341(2), holds the exclusive power to amend this list by including or excluding any caste.

The majority opinion clarified that sub-classification does not amount to modifying the Presidential List. It was asserted that sub-classification merely entails recognizing different degrees of disadvantage within the already recognized SCs and providing for preferential treatment accordingly. This process does not involve altering the list by adding or removing castes but rather focuses on how the benefits of reservation are distributed among those already listed.

Justice Gavai underscored that offering preferential treatment to more disadvantaged sub-groups within the SCs does not equate to tampering with the Presidential List. The Chief Justice echoed this view, stressing that sub-classification is not about including or excluding any caste from the list but about ensuring effective representation within the framework provided by the Constitution.

However, a notable dissent was registered by Justice Trivedi, who argued that states lack the constitutional authority to enact laws for sub-classification of SCs. She contended that any form of sub-classification by states amounts to an impermissible modification of the Presidential List, which is constitutionally reserved for Parliament under Article 341(2)[19]. Justice Trivedi maintained that while sub-classification might not directly alter the list, it effectively "tinkers" with it by altering the internal distribution of benefits among the SCs, a power that the states do not possess.

Does the 'creamy layer' principle apply to Scheduled Castes?
Only the opinion of Justice Gavai bats for introducing the 'creamy layer' exception for SCs (and STs) that is already followed for Other Backward Classes (OBCs).

Justice Gavai, while recognizing that the "creamy layer exclusion" principle established in the Indra Sawhney case was originally intended solely for Other Backward Classes (OBCs), asserted that the State should develop a policy to identify and exclude the creamy layer within the Scheduled Castes (SCs) and Scheduled Tribes (STs) from the benefits of affirmative action.

He observed that within the Scheduled Castes, certain sub-castes have disproportionately benefitted from reservations, often at the expense of others within the same group. According to Justice Gavai, some of these sub-castes have now reached a level of socio-economic advancement where they should voluntarily relinquish the benefits of reservation to allow the more disadvantaged sections within the SC community to access these opportunities.

Justice Gavai drew attention to the irony that some members of privileged sub-castes within the Scheduled Castes are now denying opportunities to those from less privileged sub-castes, effectively replicating the historical marginalization by upper castes that reservations were meant to address. He emphasized that excluding the creamy layer within the Scheduled Castes could foster genuine equality.[20]

Conclusion
The Supreme Court's decision permitting the sub-classification of Scheduled Castes (SCs) and Scheduled Tribes (STs) marks a pivotal shift in India's approach to affirmative action. By recognizing the varying levels of backwardness within these communities, the ruling enables states to tailor reservations more effectively, ensuring that the most disadvantaged groups receive targeted benefits.

This nuanced interpretation of reservation policies underscores the importance of empirical evidence in crafting social justice measures, while also introducing the concept of a 'creamy layer' within SCs and STs. However, the implementation of these sub-classifications poses significant challenges, including the need for precise criteria and robust data to avoid arbitrary decisions. The ruling not only redefines the landscape of affirmative action but also sets a precedent for future legal and policy frameworks aimed at achieving a more equitable distribution of resources and opportunities.

End Notes:

1. Indra Sawhney and others v. Union of India, (1992) Supp. (3) S.C.C. 217 (India).
2. E V Chinnaiah v. State of Andhra Pradesh, (2005) 1 S.C.C. 394 (India).
3. M.R. Balaji v. State of Mysore, A.I.R. 1963 S.C. 649 (India).
4. Veronique Benei, Reappropriating Colonial Documents in Kolhapur (Maharashtra): Variations on a Nationalist Theme, 33(4), MODERN ASIAN STUDIES, 913, 925 (October 1 1999).
5. Id.
6. Sukhdev Khanna, Reservations And Its Implications, 9 (Jain Law Agency, 1994).
7. State of Kerala v. N.M. Thomas, A.I.R. 1976 SC 490 (India).
8. State of Kerala v. N.M. Thomas, A.I.R. 1976 SC 490 (India).
9. Pramati Educational & Cultural Trust v. Union of India, (2014) 8 S.C.C. 1 (India).
10. Pavan Srinivas, Affirmative Action and the Marginalized Population: A Study on the Creamy Layer and its Relevance Today, 5(2), Christ University L. J., 45, 48 (2016).
11. E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 S.C.C. 394 (India).
12. Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, § 4(5).
13. Jarnail Singh v. Lacchmi Narain Gupta, (2018) 10 S.C.C 396 (India).
14. India Const. art. 342, cl. A.
15. Validity of Sub-Classification Within Reserved Categories, SUPREME COURT OBSERVER, (Aug. 24, 2024, 10:30 PM), https://www.scobserver.in/cases/punjab-davinder-singh-validity-of-sub-classification-within-reserved-categories-case-background.html.
16. Davinder Singh v. State of Punjab, (2024) I.N.S.C. 562 (India).
17. India Const. art. 14.
18. India Const. art. 341, cl. 1.
19. India Const. art. 341, cl. 2.
20. R. Sai Spandana, Sub-Classification Within Reserved Categories | Judgement Summary, Supreme Court Observer, (Aug. 2, 2024, 12:00 AM) https://www.scobserver.in/reports/sub-classification-within-reserved-categories-judgement-summary.html.