DATE DOWNLOADED: Tue Oct 15 08:52:09 2024

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Pratik Kumar, State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes, 5 CALJ 107 (June 2021).

ALWD 7th ed.

Pratik Kumar, State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes, 5 CALJ 107 (2021).

APA 7th ed.

Kumar, Pratik. (2021). State of punjab v. davinder singh: step towards the
transfiguration of sub-classification of scheduled castes. Comparative Constitutional
Law and Administrative Law Journal, 5(2), 107-122.

Chicago 17th ed.

Pratik Kumar, "State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes," Comparative Constitutional Law and
Administrative Law Journal 5, no. 2 (June 2021): 107-122

McGill Guide 9th ed.

Pratik Kumar, "State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes" (2021) 5:2 CALJ 107.

AGLC 4th ed.

Pratik Kumar, 'State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes' (2021) 5(2) Comparative Constitutional Law
and Administrative Law Journal 107

MLA 9th ed.

Kumar, Pratik. "State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes." Comparative Constitutional Law and
Administrative Law Journal, vol. 5, no. 2, June 2021, pp. 107-122. HeinOnline.

OSCOLA 4th ed.

Pratik Kumar, 'State of Punjab v. Davinder Singh: A Step towards the Transfiguration
of Sub-Classification of Scheduled Castes' (2021) 5 CALJ 107 Please
note: citations are provided as a general guideline. Users should consult their
preferred citation format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 CALQ 5(2)

STATE OF PUNJAB V. DAVINDER SINGH: A STEP

TOWARDS THE TRANSFIGURATION OF SUB-
CLASSIFICATION OF SCHEDULED CASTES

PRATIK KUMARI

Historically, the scheduled castes have been viewed as a separatesocial and culturalgroup.
Consequenty, the modernpoliticaland legal setup also reflected this in its working. The
Constitution of India, by providing apresidentiallist underArticle 341 incorporatedit
at the time of its enactment. Since then, they have been accorded a constitutionalstatus
as a separategroup. In the 90s, afen states attempted to rationalisethe classi ication by
p re ering a en- n eaker castes among SCs. This n-as challenged before the Supreme Court
in E. i. Chinnaiah v. State of A. P. n-herein it n-as held that sub-classification of SCs
by states is notpermissible and it n /ouldbe unconstitutional. This has been aprecedent
for nearly sixteen years until the Supreme Court in the present case of DavinderSingh
referred this decision to a largerbench for striking it dozen.

This paper analyses the verdict of Davinder Singh by tracing the argument behind sub-
classification and its historicaldevelopment. First, thispaper shall highlight the issue of
contention in thisfollowed by itsfacts and centralissues. Next, the historicalevolution
of the judicial view on sub-classification shall be discussed. This paper will attempt to
rebut the reasoning of the Supreme Court in Chinnaiah by regularypointing to its
diferent views and narrow construction of the law. The conclusion will bring up the issues
that the Courtfaced in thispresent case and its disagreementwith the Chinnaiah.As
thepresent case was a referraldecisionfor rectification of Chinnaiah, thispapern'illfocus
mainy on deconstructing the case of Chinnaiahitsel.

INTRODUCTION

Within the existing scholarship on affirmative action in India, the exercise

concerning the sub-classification of the scheduled castes ("SCs") and

* Cite it as: Kumar, State of Punjab v. DavinderSingh: A Step Towards the Transfigurationof Sub-
Classfication ofScheduled Castes, 5(2) COMP. CoNST. L. & ADMIN. L.J. 107 (2021).
1 Pratik Kumar is a third year B.A., LL.B student at Dr. Ram Manohar Lohiya National
Law University. The author may be reached at <pratikpaul823@gmail.com>.
** The author is thankful to Stuti Rastogi for her valuable comments and support.
Additionally, the author would like to humbly acknowledge the editorial assistance of the
CALQ Team.

107
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

application of the creamy layer principle remains widely debated.2 This

debate, which touches the society as a whole instead of confining itself as
a hypothetical exercise, has also been moderated through periodical judicial
interventions. In all these decisions on affirmative action, courts have had
to perform a two-fold exercise; first, to adjudicate upon the matter before
it and second, to bridge the gap between textual interpretation and social
reality.

In light of this, the recent judgment of the Supreme Court in State of Punjab
v. DavinderSingb3 requires a close examination, wherein a constitution bench
substantially disagreed with the established law on the sub-classification as
laid down in the 2004 judgment of E. V. Chinnaiah v. State of A.p.4
Addressing the requirement of changed circumstances and marking a
notable shift from its earlier position, the Supreme Court in the present
case held that the restriction on sub-classification of SCs in the Chbinnaiah
case needs a referral.5 In upholding this, it further observed that the current
setup of their grouping under Article 341 of the Constitution requires a
change in light of new empirical data on heterogeneity among the different
SCs.` At a fundamental level, this decision assumes considerable importance
due to its potential effect on the interplay of equality and identity of SCs
within the constitutional framework.

Since this case was a review of Chbinnaiah and an elaborate clarification of

the judicial position on sub-classification of SCs, much of this paper will
necessarily revolve around the question of sub-classification. It will attempt
to address the central question before the Supreme Court in DavinderSingh,
i.e., whether a blanket ban on sub-classification of SCs as held in Chinnaiah
is proper per se. However, before the proposed analysis, it is pertinent to
get through the facts of this case.

2 See, Anup Surendranath, Judicial Discourse on India's Affirmative Action Policies: The
Challenge and Potential of Sub-Classification (2013)(Unpublished Ph.D. thesis, Balliol
College, Oxford University) (on file with Oxford University Research Archive).
3 State of Punjab v. Davinder Singh, (2020) 8 SCC 1.
4 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.
5 DavinderSingh, (2020) 8 SCC 1, ¶ 58.
6 Id. ¶¶51, 56-57.

108
 CALQ 5(2)

FACTS AND ISSUES

In recent decades, leading scholars have argued that the benefits of

reservation given to SCs are largely cornered by the influential castes within
them.7 The basis of their claim was the absence of percolation of the
benefits to the relatively weaker castes among the SCs.' Keeping this claim
in mind, soon after the categorisation of Other Backward Classes
("OBCs") as backward and more backward, the attention of the
policymakers turned towards rationalisation of the reservation for
SCs/Scheduled Tribes ("STs"). Consequently, many state governments
attempted to develop a systematic mechanism by further sub-categorising
them and giving preferential treatment to relatively weaker sections in the
SCs based on different committee reports.9

However, in 2004, one such attempt by Andhra Pradesh10 was declared

unconstitutional by the Supreme Court in Chinnaiah. In this case, soon after
its promulgation, the Andhra Pradesh Scheduled Castes (Rationalization of
Reservations) Act, 2000 ("Andhra Pradesh Act") was challenged by the
appellants. The primary purpose of the Andhra Pradesh Act was to
categorise the SCs in the state of Andhra Pradesh on the basis of the J.
Ramchandra Raju commission report." It was argued on behalf of the
appellants that it created micro-classifications within the SC class," thereby
violating Article 14 and partly depriving the other groups which received
less share of quota in this arrangement. 3 The state on the other hand
responded that although the inclusion and exclusion of castes from the
presidential list under Article 341 is the sole prerogative of the President or
Parliament; an internal adjustment of the castes for facilitating a better

7 CHRISTOPHE JAFFRELOT, INDIA'S SILENT REVOLUTION: THE RISE OF THE LOWER

CASTES IN NORTH INDIA 199 (2003); see generaly, SUKHDEO THORAT, DALITS IN INDIA:
SEARCH FOR A COMMON DESTINY (2009).
8 Davinder Singh, (2020) 8 SCC 1.
9 Id. ¶ 12.
10 Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000, No. 20,
Acts of Andhra Pradesh State Legislature, 2000 [hereinafter Andhra Pradesh Ace].
" E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, ¶¶ 1-2.
1 Id. ¶ 6.
13 Andhra Pradesh Act, supranote 10 (Four groups of all the SCs of A.P. were made under
the impugned Andhra Pradesh Act which shared the 15% SC quota between them. Group
A received 1%; Group B- 7%; Group C- 6%; and Group D- 1% respectively).

109
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

percolation of benefits is nowhere prohibited in the Constitution. 4 The

Apex Court after elaborating judicial pronouncements on the issues, came
to observe that while granting reservation, the social objective angle should
be followed having regard to the constitutional scheme and not as a
political scheme.1 5 Accordingly, it held that the legal fiction accorded to
SCs as a single class by virtue of Article 341 would be tinkered if they are
to be further sub-categorised.' Since then, similar measures by other states
were held to be ultra mires, and it was crystallized that the Parliament alone
had the legislative competence to sub-classify them.1 7 Finally, in 2014, a
three-judge bench of the Supreme Court reviewed its ratio and referred it
to a constitutional bench for revision.'8

This case came up before the Supreme Court through an appeal

challenging a Punjab and Haryana High Court judgment. 9 In this
judgment, the court had declared Section 4(5) of the Punjab Scheduled
Caste and Backward Classes (Reservation in Services) Act, 2006 ("Punjab
Act") unconstitutional as per the law laid down in Chinnaiah.The impugned
section had a provision that preferred Balmikis and Mahbabi Sikhbs among
SCs by providing them fifty per centes of the seats of the quota.2

"
Subsequently, the case came up before the Apex Court which clubbed the
question of its constitutionality with the referral order of 2014. The
Supreme Court framed three broad issues. The first issue dealt with the
constitutionality of the impugned section of the Punjab Act. The second
issue was for examining the legislative competence of the state to enact
such laws; the third and central issue was whether the decision in Chinnaiah

14 Chbinnaiah, (2005) 1 SCC 394,¶ 8.

15
Id. ¶42.
16
Id. ¶50.
17 See, Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312, ¶ 101; Atyant Pichhara Barg

Chhatra Sangh v. Jharkhand State Vaishya Federation, (2006) 6 SCC 718, ¶ 29 (The court,
however, in this case was concerned with OBCs and held the impugned resolution as
nullity); see also, State of Maharashtra v. Milind, (2001) 1 SCC 4, ¶ 36 (Though the
impugned Act dealt with STs, the court also gave its opinion for SCs in general).
18 State of Punjab v. Davinder Singh, (2020) 8 SCC 65.
19 Devinder Singh v. State of Punjab, 2010 SCC OnLine P&H 13127.
20 Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, § 4
cl. 5, No. 22, Acts of Punjab State Legislature, 2006.

110
 CALQ 5(2)

needed to be revisited or not. As evident, the legality of both issues rested

on the third one.

Writing for the Supreme Court, J. Arun Mishra expressed sharp

disagreement with the ratio of Chinnaiah. He remarked that the current
adjustment for SCs as a homogenous class needs modification. In a firm
unanimous decision, the bench viewed the earlier decision as detached
from the new developments in castes due to affirmative action. In
substance, it opined that the restriction placed on their division is hindering
the percolation of benefits to the lower strata of SCs.i Along with this
holding, it referred the case to a larger bench for an authoritative
settlement.

The view taken by the court in Davinder Singh is a considerable departure

from various judicial precedents wherein courts either restrained
themselves from engaging with the question of homogeneity of SCs or
chose to narrowly interpret it. It is equally important due to its bearing on
the status of SCs as a class for the purpose of the constitutional scheme.
Therefore, against this backdrop, the author shall now critically examine
the metamorphosised judicial position on the homogeneity of SCs and
their sub-classification by the state.

CRITICAL ANALYSIS OF THE VIEW TAKEN BY THE COURT

A. LEGAL BACKGROUND OF SCHEDULED CASTES AS A HOMOGENEOUS

CLASS

Historically, the position of the SCs, also loosely termed as

"untouchables/Daits", in the Hindu society has been determined through
various political and legal arrangements. In the pre-independence era, it
was the Poona Pact between Dr. Ambedkar and Mr. Gandhi that retained
the SCs within the Hindu fold with special treatment meted out to uplift
their position. Subsequently, the SCs gained legal recognition byway of the
enactment of the Government of India Act, 1935 wherein they were placed
under the umbrella term of "depressed classes". This term, "depressed classes",
encompassed within itself a number of lower castes. However, due to the

21 State of Punjab v. Davinder Singh, (2020) 8 SCC 1, ¶ 50.

22 Government of India Act 1935, 26 Geo. 5.c. 2, sch. 1, entry 26(1) (repealed).

111
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

flawed British caste census methods, some kind of obscurity always

surrounded this loosely defined class. 23 As a result of it, marginalized castes,
even with substantial differences in their position in the caste hierarchy
remained in the same class. Shortly thereafter, Article 341 was enacted
which gave constitutional status to this cluster of lower castes. It provided
for a list to be issued by the President in consultation with the governors
of different states containing different castes, tribes, or part of castes or
tribes to be deemed as a separate cluster, namely, SCs.

Once SCs were accorded this status by the presidential notification, they
remained in the list until excluded by another notification or parliamentary
intervention thereby forming a separate class for the purpose of their
treatment by the state. Since the constitutional enactment, this scheme has
not been altered and as a corollary to this adjustment, the government and
courts treat them as a separate homogenous class as per the list under
Article 341.

The working of this scheme came to be scrutinized for the first time in the
case of N.M Thomas v. State of Kerala24, where the Apex Court pronounced
that for reservation under Article 16(1), SCs in this list cannot be viewed
as different castes. In Thomas, the court was confronted with a puzzling
question regarding the interpretation of Article 16.25 The State of Kerala
had enacted a measure that was not a plain provision giving reservation but
in the nature of partial concession given to the SCs. The impugned
concession (Kerala State and Subordinate Services Rules, 1958) exempted
the lower categories from the need of clearing departmental tests in order
to get promoted.2 6 The respondents viewed such concessions as
discriminatory as many SC clerks were promoted without passing the
required examinations. 27 The challenge, therefore, was based on the scope
and interpretation of Article 16(1), Article 16(2) and Article 16(4) of the

23 Ram B. Bhagat, Census and caste enumeration: BitishLegacy and Contemporary Practicein India,
62 GENuS 119, 134 (2006).
24 State of Kerala & Anr. v. N.M. Thomas & Ors., (1976) 2 SCC 310.
25 Id.
26 Id ¶ 7.
27 Id ¶ 13.

112
 CALQ 5(2)

Constitution. Article 16(1) provides for equality of opportunity in matters

of public employment subject to reasonable classification in favour of
weaker sections. Article 16(4) allows the state to make provisions of
reservation in favour of them. On this basis, the Apex Court had to adjudge
the question of which among these two provisions would be more
appropriate to sustain the impugned measure. After a lengthy analysis, the
majority represented by Chief Justice Ray upheld the concession under
Article 16(1), which allows reasonable classification of castes by the state
in public employment." On the other hand, J. Beg (partially differing on
this) also upheld the concession but as a facet of reservation under Article
16(4)." This variance in the approach had the seeds of the present
conundrum of sub-classification. 30 Once the majority held that the measure
was not covered by Article 16(4) which deals only with reservation by state,
and not concessions or partial reservation like the impugned one before
the court, the judges were forced to reach the conclusion that SCs were a
class and not a group of castes in order to justify the measure under Article
16(1).31 If the majority would have treated them as a bunch of different
castes, the measure would have contravened Article 16(2), which prohibits
discrimination on the basis of caste, sex and other such grounds.32
However, J. Beg acknowledged that such concessions or measures also fall
in the category of reservation under Article 16(4), thereby, not
contravening Article 16(2).33

The next landmark case was of Indira Sawbneg, 34 where a nine-judge bench
interpreted the law on classification among OBCs. Although the Apex
Court mentioned that the discussion did not cover SCs, 35 a few points in
the discussion are important for understanding the rationale advanced by
the court. In its discussion, the majority re-affirmed that Article 16(4) is not
an exception to Article 16 and also held that in the case of SCs, a "caste itself

28 Id. ¶¶ 28-29 (per C.J. Ray), ¶ 102 (per Justice KK Mathew), ¶ 35, ¶ 165 (per Justice
Krishna Iyer), ¶ 185 (per Justice Fazal Ali).
29 Id. ¶¶ 100-102.
30 Anup Surendranath, supranote 2, at 264.
31 Thomas, (1976) 2 SCC, ¶ 46.
32 Anup Surendranath, supranote 2, at 264.
33 Thomas, (1976) 2 SCC, ¶ 100.
34 Indra Sawhney v. Union of India & Ors., (1992) Supp (3) SCC 217.
35
Id. ¶791.

113
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

may be seen as a class".36 This was in sharp contrast with the earlier decisions
of the Court wherein it was held that though caste is a dominant factor, it
cannot form the sole basis of reservation. 37 Behind this rebuttal, the
rationale was that unlike the OBCs, birth itself in a particular caste,
especially those included in the SCs list makes the person backward for
special treatment.38 However, the sole criterion of caste for determining
backwardness was held to be unreasonable in the case of OBCs.39

Aside from these questions, while discussing the central issue in the
decision, the Court dealt with the question of sub-classification among the
OBCs. In response to it, it ruled that it is permissible to further classify
them as "backward" and "more backward' in order to protect the interests of
the weaker groups from the advanced OBC groups.40 It also agreed that
SCs and OBCs could not be placed similarly as the dominant group
between these two (OBCs) would usurp the benefits given to backward
classes as a whole.4' It is unclear that why this rationale was not adopted by
the Apex Court in Chinnaiah, even when Justice Jeevan Reddy (for the
majority) in an important observation noted that:

"As a matter offact, neither the several castes/groups/tribeswithin the

Scheduled Castes and Scheduled tribes are similary situated nor are the
Scheduled Castes and Scheduled Tribes similary situated."42

Combining this reading with the view of the Court that for SCs, the "caste
is a class in itself' necessarily gives rise to a new presumption. With a
combined reading, it can be implied that the list under Article 341 is
nothing but an amalgam of sub-classes. In other words, by accepting that
SCs are a group of castes and as "caste is a class in itsejf', it admitted the
presence of different sub-classes within the SC class. After this decision, to
sustain the argument of homogeneity and rebuttal of the presumption of

36 Id. ¶ 82.
37 State of U.P. v. Pradip Tandon, (1975) 1 SCC 267.
38 Indira, (1992) Supp (3) SCC 217, ¶ 82.
39
Id. ¶799.
40 Id. ¶¶ 801-802.

41 Id. ¶ 803.
42
Id. ¶795.

114
 CALQ 5(2)

sub-classes, it became necessary for the Court to come up with new

reasoning, i.e., the differences between them are not substantial in nature
or the differences are micro-distinctions, and therefore, a thread of
homogeneity runs through all these castes. In Chinnaiah, the Apex Court
based its ratio on the same lines. Cautioning against the sub-classification
within SCs, it relied on State of &K v. Triloki Nath Khosa,43 wherein the Apex
Court had observed that:

"Classification, howaever, isfraught with the danger that it may produce

artificial inequalities ... and Classification, therefore, must be truy
founded on substantial diferences. Mini classifications based on micro-
distinctions are false to our egalitarianfaith and only substantialand
straightforwardclassificationsplainy promoting relevantgoals can have
constitutionalvalidity. To overdo classification is to undo equality.""

Clearly, in the changed circumstances, any decision based on the

abovementioned extract appears to be vacuous. Various reasons such as
empirical evidence of substantial differences within the SCs as reflected in
findings of various government-appointed commissions; 45 gradual
"Sanskriti ation" of few castes within SCs;` vote-bank politics and
asymmetric distribution of benefits; 47 religious conversions have made
considerable differences among SCs which were ignored in this case. It was
due to similar reasons that the rationale in Chinnaiahwhich inclined towards
the presence of homogeneity and negation of substantial distinction among
SCs was strongly rebutted by the Supreme Court in JarnailSingh v. Lachbmi
Narain Gupta.48 JarnailSinghis important as it has unsettled the established
law on the sub-categorisation and made it an intricate and complex issue.
Given this, it is requisite to go into the very heart of this conundrum of

4 State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19.

44
1d. ¶31.
45 Commissions such as the J. Usha Mehra Commission and J. Ramchandra Raju
Commission.
46 Rajesh Sharma & Sandhya Dixit, Scenario of SanskritiZation at Shaktzpeeths- A step towards
empowerment ofMarginaliZed, 4(10) IJSRP 1(2014).
47 Christophe Jaffrelot, Anxieties of the dominant, THE INDIAN EXPRESS (Jan. 3,
2018), https://indianexpress.com/article/opinion/columns/pune- maratha- dalit- clash-
koregaon-bhima-mahars-protest-5009169/.
48
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

115
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

sub-classification to understand why Davbnder Singh is a pathbreaking

judgment.

B. E.V. CHINNAIAH, THE "MYTH OF HOMOGENEITY" AND THE

NEED FOR SUB-CATEGORIZATION

The very idea and spirit of affirmative action was the percolation of its
benefits down to the last person in the society.49 The Constitution
mandates that the benefits of steps by the state should reach the
downtrodden in the society.50 The grouping of citizens into OBCs, SCs and
STs with a different set of provisions for each of them is reflective of this
vision.

At a fundamental level, the working of affirmative action within the SCs

works in two ways. Firstly, in SCs as a homogenous class vis-d-vis other caste
Hindus; and secondly within the SCs themselves. Therefore, as a necessary
consideration behind the implementation of the constitutional scheme of
categorisation, every angle, including the effect of reservation within the
SCs should have formed the part of the discussion in a decision on sub-
classification. In recognizing this, one must acknowledge from the
appointment of various governmental commissions, that a true
ascertainment of benefits to the lower strata within a category can be done
only through empirical and sociological evidence. In one sense, it leads us
to the conclusion that any decision on sub-classification for widening the
scope of benefits must be taken on this empirical basis rather than an
abstract or textual interpretation of the law.

For years, these empirical evidences have been an essential part of the
decisions of the court. As a settled practice, it was necessary that during
judicial scrutiny, beneficiary measures for a group must match with the
quantifiable data in favour of their reservation. 51 To put it simply, the state,
through the surveys of its commission, had to show that the affected class
needed reservation. However, the Apex Court in EV Chinnaiah chose not

49 State of Punjab v. Davinder Singh, (2020) 8 SCC 1, ¶ 47.

50 INDIA CONST. arts. 38, 39, 46.
51 Indra Sawhney v. Union of India & Ors., (1992) Supp (3) SCC 217.

11(6
 CALQ 5(2)

to follow the practice of considering empirical evidence and limited its

interpretation by resorting to a textualist approach. As a summary of its
judgment, the majority observed that:

"The vey fact that the members of the Scheduled Castes are most
backward amongst the backward classes... afurther classification by way
ofmicro-classiication is notpermissible. Such classification of the members
of diferent classes ofpeople based on their respective castes would also be
violative of the doctrine of reasonableness. A uniform yardstick must be
adoptedforgiving benefits to the members of the Scheduled Castesfor the
pu/pose of the Constitution."52

At the outset, it appears that the Apex Court doesn't permit micro-
classifications that are based on micro-distinctions. However, as the vast
statistical and anthropological findings of various commissions show, the
differences between the castes within the SC list are no longer based on
micro-distinctions only. 53 Seen this way, the reasoning given by the Apex
Court in Chinnaiah, which incomprehensibly ignored the idea of
rationalisation is untenable and opens up the possibility of a narrow
interpretation. It must not be forgotten that affirmative action is a matter
of legislative policy, and therefore, the rationalisation of the reserved quota
falls exclusively within the domain of the state. 54 As a settled practice,
generally it is done on the basis of findings of various commissions. 55 In
DavinderSingh, the Apex Court had accepted this, and noted by relying on
Indira Sawhney that:

"Where to draw the line and hoar to affect the sub-classification is,
however, a matterfor the commission and the State-andas long as it is
reasonably done, the Court ma not intervene. "56

As has been flagged above, the Apex Court in Chinnaiah did not engage
with the question of the reasonableness of the sub-classification based on
the findings of the concerned commission. Thus, in effect, the judgment

52 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, ¶ 43.

53 DavinderSingh, (2020) 8 SCC 1, ¶ 51.
54 INDIA CONST. art. 16, cl. 4.
55 See, Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1, ¶ 18.
56 Indira, (1992) Supp (3) SCC 217.

117
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

rendered by the Apex Court seems to be an unpersuasive precedent on its

face due to its reluctance to engage with statistical and empirical evidence.
This was repeatedly pointed out in its review in DavinderSingh, where the
Apex Court accepted that empirical data as collected by various
commissions cannot be ignored which reflects inequality within the SC
class. 57 This also seems practical in light of the diversity of SC class spread
across the states.

The next infirmity of the decision of the Apex Court in Chinnaiah is its
perceivable narrow interpretation by adopting a textual stance. As it is
commonly understood, provisions regarding serious issues in the
Constitution such as affirmative action should be construed liberally so that
the benefits may reach the lower strata.58 The bench, however, held that
the interpretation of the Constitution is subject to textual consideration.59
Advancing its reasoning on the same lines, it opined that:

"Article 341 provides that exclusion even of a part or a group of castes

from the PresidentialList can be done ony by Parliament. The logical
corollary thereofwould be that the State Legislatures areforbiddenfrom
doing that....[The impugned legislation being contrary to the above
constitutionalscheme cannot, therefore, be sustained."*

From an alternate perspective, in holding so, it practically ended any scope

of discussion on future attempts of reasonable sub-classifications.
Addressing this shortfall, DavinderSingh's judgment chose to adopt a liberal
construction of Article 341 of the Constitution.6 Rejecting the textual
stance of the Apex Court in Chinnaiah, the Court produced the following
passage from GVK Industries Ltd. v. CIT:

"In intepreting any lav, including the Constitution, the text of the
provision under consideration would be the primary sourcefor discerning

57 DavinderSingh, (2020) 8 SCC 1, ¶ 51.

58 GVK Industries Ltd. v. CIT, (2011) 4 SCC 36, ¶ 37.
59 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, ¶ 84.
60 Chinnaiah, (2005) 1 SCC 394, ¶ 43.
61 DavinderSingh, (2020) 8 SCC 1, ¶¶ 40-41.

118
 CALQ 5(2)

the meanings thatinhere in the enactment. However, in light of the serious

issues it would always be prudent, as a matter of constitutionalnecessity,
to widen the search for the true meaning, puport and ambit of the
provision under consideration."62

At the same time, the bench in Chinnaiah relied on the speech of Dr.
Ambedkar where he had said that the object of empowering only the
parliament instead of the president to change the list was to "eliminate any
kind ofpoliticalinterferences".63 While there is some merit in this argument that
sub-classification can turn into a political weapon for electoral benefits,
there are other checks on the state. For instance, the Apex Court in M.
Nagraj v. Union of India64 had observed that enactments giving reservation
must satisfy the quantifiability criterion. In other words, the state has to
show that the findings of the government appointed commission should
reflect a need for reservation for the backward section. 65 It appears that the
Apex Court erred in its interpretation by similarly placing the act of sub-
classification with exclusion from the list. Nowhere did the various state
laws similar to the impugned Punjab Act, in this case, have excluded the
remaining castes from the list under Article 341. In any case, the position
of castes in the list remains intact in case of further categorisation without
exclusion for the purpose of reservation. Recognizing this argument, the
Court in DavinderSingh observed that:

"The State law of preferential treatment to a limited extent, does not

amend the List. It adopts the List as it is. The State law intends to
provide reservationfor all Scheduled Castes in apragmaticmanner based
on statisticaldata. It distributes the benefits of reservationsbased on the
needs of each Scheduled Caste."6 6

Even on a plain reading of Article 341, there appears to be no bar on the

states to classify the castes included in the list without denying the benefits
of reservation to any caste, even the creamy layer. Therefore, such an extreme
approach taken by the court through a strict reading of provisions only

62 GI7K, (2011) 4 SCC 36, ¶ 37.

63 Chinnaiab, (2005) 1 SCC 394, ¶ 14.
64 M. Nagraj v. Union of India, (2006) 8 SCC 212.
65 Id. ¶ 107.
66 DavinderSingh, (2020) 8 SCC 1, ¶ 51.

119
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

defeats the core intention of the makers. A few more observations in

Chbinnaiah through which the Apex Court reached its conclusion appear to
be in discord with the idea of affirmative action. It noted in its decision
that instead of rationalisation of reservation, the state should give adequate
training and provide other facilities like scholarships and hostels to them.67
Such remarks by the Apex Court only reflect passive insensitivity towards
the most downtrodden among the SCs. To put it in a straightforward
manner, if the idea of reservation could be supplemented by training and
other facilities, there was no need for the categorization of backward
classes into OBC/SC/ST in the first place. By advancing such arguments,
the Apex Court overlooked the genuine requirements of those SCs who
find themselves at the bottom in the guise of false homogeneity. Afterall,
the idea behind reservation was not only to remove oppression but also to
free individuals from shackles of group identity."

CONCLUSION

In Chinnaiah, the primary failure of the Court is apparent from the fact that
nowhere in the judgment, has it rebutted the sociological findings through
a plausible counter-argument. In doing so, it conveniently sidestepped the
question of the genuine need for sub-classification in future cases even if
the same can be shown through empirical findings.

As pointed out before, the main issue with its ratio is that even if caste A
and B in the SCs list share substantial differences, the state would find itself
unable to do anything for caste B due to the bar in Chinnaiah.Therefore, in
practice, its ratio has paved the way for a blanket ban on sub-classification
despite the fact that findings of the government appointed commissions
suggest otherwise. Going against judicial precedents wherein courts have
reviewed the empirical findings for adjudicating the claims of
rationalization of reservation, the decision rendered in Chinnaiah seems to
diverge from the settled principles of law. This approach of the Court only
aggravates the situation. Through such a decision, it neither let
marginalized groups come up in the mainstream nor gave any solution or

67 Chbinnaiah, (2005) 1 SCC 394, ¶ 114.

68 MADHAV KHOSLA, INDIA'S FOUNDING MOMENT 142 (Harvard University Press 2020).

1 20
 CALQ 5(2)

reasoning while doing so. The crux of its position lies in a doctrinal rigidity
and an overemphasis on the codification of reservation, which itself is
understood in a narrow sense.

Davinder Singh comes as a welcome step towards effectuating the

reservation in its true spirit. As the judgment in this case reflects, reliance
placed by the courts on a static and textualist decision such as Chinnaiah
has only served as an impediment towards the upliftment of weaker castes
among SCs. Along with this, by holding that the "State can't be deprived of its
concomitantpourer to make reasonable classification",69 it has advanced a step
towards the emancipation of weaker sections among the SCs. If the states
would be barred from sub-classification of SCs perpetually as the ratio of
Chinnaiah seeks to do in effect if not in theory, then the benefits of
reservation would never trickle down to the lowest caste in the list of SCs.
This view found resonance in its holding when it was observed that:

"There is cry, and caste struggle within the reserved class as benefit of
reservationin services and education is being enjoyed, who are doing better
hereditaryoccupation... In case benefit which is meantfor the emancipation
of all the castes, included in the List of Scheduled Castes, ispermitted to
be usurped by fea castes those who are adequately represented, have
advanced and belonged to the creamy layer, then it would tantamountto
creatinginequaliy whereas in case of hunger evey person is requiredto be
fed and provided bread. The entire basket offruits cannot be given to
mighty at the cost of others under the guise offorming a homogeneous
class." 70

Undoubtedly, the argument put forth by the Apex Court in Chinnaiahthat

"To overdo classification is to undo equalify"is attractive and appears cogent, but
it is equally true that "to treat unequal equaly is to deny equaliy". When the
various government appointed committees and commissions have reached
a common ground that substantial differences exist within the SCs, the
maintenance of status quo by not permitting required sub-classification
would amount to injustice. The Apex Court repeatedly raised its concern
and ultimately observed that:

69 DavinderSingh, (2020) 8 SCC 1, ¶ 43.

70
d. ¶ 46.

121
 STATE OF PUNJAB V. DAVINDER SINGH: A STEP TOWARDS
THE TRANSFIGURATION OF SUB-CLASSIFICATION OF
SCHEDULED CASTES

"The social realities cannot be ignored and overlooked while the

Constitution aims at the comprehensive removal of the
disparities...Various castes by and large remain where they were, and
they remain unequals, are they destined to cary their backwardness till
eternit?."7
'

In supporting its viewpoint, and in proving the precedent laid down in

Chinnaiah as a bad law, the Apex Court produced a catena of judgments
with different holdings.7 2 Though its review could have been more
structured and pinpointed, nonetheless through its decision, the Apex
Court has advanced its step for turning the de jure equality into de facto
equality.

71 Id ¶47.
72 Id ¶¶ 36-37.

1 22