The Supreme Court on Thursday reserved judgment on the question whether a state government is empowered to make a sub-classification in scheduled castes and scheduled tribes for grant of reservation for more deprived and weaker castes in these groups in admissions and public jobs.

A seven-judge constitution bench comprising Chief Justice D.Y. Chandrachud, Justice B.R. Gavai, Justice Vikram Nath, Justice Bela M. Trivedi, Justice Pankaj Mitha, Justice Manoj Misra and Justice Satish Chandra Sharma reserved the verdict upon the conclusion of the arguments that were spread over three days.

The top court was hearing references to revisit a 2004 five-judge constitution bench judgement in which it was held that SCs and STs are homogenous groups and hence, states cannot further sub-classify them to grant quota within the quota for more deprived and weaker castes in these groups.

The matter was referred to a 7-judge bench by a 5-judge bench in 2020 on the issues arising in the case of the State of Punjab vs. Davinder Singh.

The 2004 judgment was in the case of E.V. Chinnaiah vs. State of Andhra Pradesh. The five-judge constitution bench in Chinnaiah case had held that any sub-classification of the Scheduled Castes would violate Article 14 (right to equality) of the Constitution.

The 5-judge bench in the year 2020 had said that the 2004 judgment by a five-judge bench which held that sub-classification was not permissible, was required to be reconsidered. The matter was referred to a 7-judge bench as five-judge bench in 2020 could not have reconsidered the 2004 judgment by an earlier five-judge bench.

While the Punjab government was represented by Advocate General Gurminder Singh and Additional Advocate General Shadan Farasat, senior advocate Kapil Sibal, Shekhar Naphade, Sanjay Hegde, Gopal Sankaranarayanan, Siddharth Luthra, Salman Khurshid advanced arguments for different parties. The former Attorney General and senior advocate K.K. Venugopal too appeared for one of the parties in the case.

In the course of the hearing, senior advocate Sanjay Hegde said scheduled castes necessarily means that everybody has suffered the taint of untouchability – there were some people who were merely not seeable, while some were not touchable, some whose money can be touched. He said that “There are several judgments of the apex court which say that what distinguishes the scheduled castes from other classes is the taint of untouchably.”

He said that the basis of 2004 Chinnaiah judgment is that the court cannot add or subtract, neither the executive, nor the state can tinker in any manner with the reservation.

Chief Justice Chandrachud observed that even if we don’t accept your wider submission, undoubtedly there is some substance in what you all people are pointing out to us and we will have to tailor it by laying down a criteria.

CJI said: Suppose in this case they have picked out only Valmikis and left out Mazhabi Sikhs, could the Mazbhi not have argued that we are as backward as the Valmiki, why have you left us, we are only taking the Valmikis, or vice versa… which means therefore that those who are excluded can always challenge their classification on the ground that they fulfil all the criterion of backwardness but state can also rebut it by saying that we can classify caste by looking at the extend of backwardness.

Justice Gavai said, we want to confer benefits on the most backward, but by conferring these benefits, you cannot ensure that some who are most backward are only given while others are left out, otherwise this becomes a very dangerous trend in popular appeasement, some state governments will pick up few castes, others will pick the other caste, the idea is not to allow popular politics to play out in grant of reservation.

An intervenor said that it is not in the discretion of the state to allow some persons and disallow the others, if a person is forming part of a list, then they cannot be discriminated against.

Agreeing with it, CJI Chandrachud said that this is a very valid point. Suppose a state says out of 86 (castes) I am identifying only 7, you leave out others who are similarly circumstanced. Can the state do that?

The CJI further said that it is not that every other scheduled caste suffered from untouchability in its pristine form. There may have been many scheduled castes who did not suffer from the kind of untouchability that we associate with the social spectrum but they nonetheless suffered discrimination, it is a form of untouchability.