Scheduled castes (SC) were considered to be a section of people in Hindu society who are not from four major varnas i.e., Brahmin, Kshatriya, Vaishya & Sudhra. Schedule caste (SC) have faced extreme social deprivation because of their ‘low status’. (SC’s) were also considered as ‘Untouchables’. They were not allowed to drink water from shared water sources. They were prohibited to enter or live in ‘Higher caste’.
The constitution provide help/ protection to (SC’s) under several provisions-
- Article 15- Says that State shall not discriminate on the basis of caste, religion. Race, or place of birth.
- Article 15(2) – Says that no citizen shall on grounds only of religion, race, caste, sex, place of birth be subject to any disability, liability, restriction or condition with regards to –
- Access of shops, public places like – Restaurants, Hotels, or Places of Entertainment.
- Use of wells, tanks, ghats, roads or public resort, maintained wholly or partly out of state funds or dedicated to use of public.
This above Article seeks social restriction from visiting common public places that SC`s were historically and are still subjected to India.
- Article 16- of constitution says that, they assure equal opportunity to all citizens for employment in any office under the State, without any discrimination based.
- Apart from this Article 46 of constitutions says that state shall promote the educational and economic interest of weaker sections like- schedule caste and schedule tribes.
WHAT IS RESERVATION?
Reservation is a system of fair action in India that provides education, employment, politics to lower castes people based in India. Reservation is basically applied to three groups in India-
- Schedule Castes
- Schedule Tribes
- Other Backward Classes.
These three groups are benefitted with this reservation. Indian constitution, it allows Indian government to pre-book/ reserved seats, quotas, which are needed in exams, jobs, etc. for socially and economically backward citizens.
FIRST LANDMARK CASE OF RESERVATION
STATE OF MADRAS VS. CHAMPAKAM DORAIRAJAN AND ORS.,
Provision of Madras government in1927 passed an order that they want to open admissions of engineering and medical colleges for aspirants so that they can give reservations to those, so that they can give appropriate lives. One aspirant challenge the provision.
It was held that that allocation of seats which were held by Madras government are violated at Article 15(1) and Article 29(2) because respondent didn’t get admission because she belongs to other caste. According to court Article 15(1) and Article 29(2) principals were discriminatory so they violated the order and strike out the case.
After the Judgment the judgment was inappropriate for reservation policy and law, to correct the that law government added new law to Indian constitution by the name of –
FIRST AMENDMENT ACT OF 1957
and introduce Article15(4):
After judgment, parliament respondent by adding Article29 shall prevent the state from making any socially and educationally backward classes of citizens or for SC’s and ST’s.
LAWS THAT WILL BE BENEFITTED IN PUBLIC EMPLOYMENT
Here we will talk specifically talk about Article16(4) which is more relevant for our topic.
Article16(4) is the exception to rule embodied in article (1) & (2) because government says that they will not discriminate public employment while giving jobs in government services.
It empowers the state to make special provision for appointment of post in favor of any backward classes of citizens which in opinions of states are not adequately represented in services under state.
Article16(4) of the Constitution of India, applies only in 2 conditions-
- Class of citizens should be backward.
- They are not adequately represented in the services of state.
DEVADASAN V. UNION OF INDIA,
Here, government introduces ‘Carry forward rule’.
Carry Forward Rule– it is a rule where we can carry unfilled seats forward to next year and added to the reserved quota for that year.
The carry forward rule was enabled in Article 16(4) and allows government to regulate appointment of person of background classes in government services.
- Court held that carry forward rule is unconstitutional because the power government vested under Article16(4) they cannot use to deny reasonable equality of opportunities for members of other than backward communities of public employment.
- Court said that recruitment which happen every year, must be considered and it ought to be less than 50% and will depend upon prevailing circumstances in each case.
Now, let’s see sub-classification SC’s and ST’s with case laws-
STATE OF PUNJAB ORS. V. DAVINDER SINGH,
- The case arises from the State of Punjab, files an appeal against a judgment in 2010 by Punjab & Haryana high court. High court strike down section 4(5) of act passed by Punjab schedule caste and backward classed, act 2006 section 4(5) of act provides first preferences to the Valmiki and Mazhabi Sikhs castes for schedule caste reservation in public services.
- There were 5 Judges- Justice Arun Mishra, Indra Banerjee, Vineet Saran, M.R. Shah, and Aniruddha Bose.
- On 27th August 2020, 5 judges decide to refer E.V. Chinnaiah to a larger bench.
- The scope of Article16(4) cover all schedule castes. It empowers states to provide reservation to backward classes in public employment.
- Relying on Indra Sawhney v. Union of India, the court noted backward classes like SC’s and ST’s Stand on the same footing, and they can’t be treated as different from others.
- Further it was held that Article 342A in 2018 strengthens the argument. Article 342A allows president to identify ‘socially and educationally backward classes’ for a state or union territory. This is similar to Article 341 and 342 which empower president to identify SC’s and ST’s.
- Court held that, Denial of Sub-classification is Denial of equality.
- Court held that, in Indra Sawhney case, the majority of opinion allowed for further classification in backward classes. Further classification will extend to SC’s and ST’s. The court acknowledge classes and noted further sub-classification in these groups to empower most backward among the backward would promote equality.
- Court further held that prohibiting sub- classification of caste and classes to treat the deserving one would lead to un-equality and can violate the principal of equality. Further invoking Jarnal Singh and Ors. V. Lacchmi Narain Gupta and Ors Singh, the court held that that ‘Creamy layer’ exception applied to SC’s and ST’s, extending argument to justify classification.
- Court held that, reservation is an ‘emancipatory too’ to achieve equality itself within caste/groups. By employing ‘distributive justice’ principal the benefits of reservation must not be concentrated in ‘few hands’, instead, state should redistribute and reallocate resources to provide equal justice to all.
- State have power to sub- classify –
- Court held that state legislature has the power to decide the percentage of reservation in given limit. Further court held that state have ‘concomitant power’ than central government to classify SC’s and ST’s and socially and educationally backward classes.
- Furthermore, he said that, presidential list of SC’s under Article 341 is not static. As you can demonstrate anthropological & statistically studies, s SC’s are not a homogenous group.
- Although states can’t amend presidential list, they can design reservation laws and policies backed up in a ‘pragmatic manner’. As states are better place to understand and fix reservation percentage within classes, groups, and castes. States may sub-classify SC’s, ST’s & Socially, educationally backward classes under Article 14, 15 16.
- For these reasons, the Court has referred E.V. Chinnaiah to a larger bench.
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Banasthali Vidyapith, Jaipur