Chief Justice DY Chandrachud in his judgment on sub-classification of caste in State of Punjab v Davinder Singh (2024), suggested two models of sub-classification.
The CJI wrote-
A crucial issue which arises for consideration is with respect to the model of reservations for the sub-classified classes. There are two models that the State may employ while reserving seats for the sub-classified castes. It needs to be analyzed if both the methods are constitutional.
First Model
In the first model, the class(es) that are more socially backward are given a preference to all the seats that are reserved for the Scheduled Castes. There are two variations of this model.
- In the first variation, certain castes are given a preference over all the seats reserved for the category of Scheduled Castes. In other words, the sub-categorized class will get the first bite at the apple.
- In the second variation, the sub-categorized class will have a preference over a certain percentage of seats. Any unfilled seats will be available to the other categories.
Second Model
In the second model, seats shall be exclusively available to certain castes. The exclusive model differs from the preference model to the limited extent that in the former, the seats that are not filled will be carried over to be filled by the same castes in the subsequent year while in the latter, the seats that are not filled will be available to the other castes within the same class. There are two variations to this model as well.
- In the first variation, a certain percentage of seats will be reserved for the sub-categorized class and the State shall carry forward the unfilled seats, if any, to be filled by the same class in the subsequent year.
- In the second variation, all the seats are exclusively available to a certain caste from the category and the State shall carry forward the unfilled seats.
Possible Preferences and Unconstitutionality
Whether the preference or the exclusive model is unconstitutional would depend on whether the variation in-effect excludes any caste notified as a Scheduled Caste with respect to that State by the President under Article 341(1). With respect to the preference model, the first variation by which preference is given to certain castes to all the seats would be an unconstitutional approach because there is a possibility that other categories within the class of the Scheduled Castes are excluded.
For example, if the State grants preference to three of the thirty castes classified as the Scheduled Castes over all the seats reserved for the Scheduled Castes, it is possible that the three castes exercise their preference and fill up all the seats. This would lead to a situation where the other twenty-seven castes classified as the Scheduled Castes would be excluded from the benefit of reservation. This model will be arbitrary and unreasonable also because the Other Backward Classes which are socially advanced compared to the castes classified as the Scheduled Castes would receive the benefit of reservation but the castes or groups within the Scheduled Castes would not. The castes classified as the Scheduled Castes must be given the opportunity to secure the benefit. If not, the provision would become otiose for their purposes.
However, the second variation of the first model is differently placed vis-à-vis the scope of Article 341(2). In the second variation, preference to certain castes is given only over a certain percentage of the seats. Thus, castes for whom preference is not given but which are included in the List of Scheduled Castes will be able to compete for a certain percentage of seats.
In addition to those seats, they may get the opportunity to compete for the percentage of seats reserved for the sub-classified caste, if they are left unfilled. Thus, this model does not have the effect of excluding any of the castes in the Scheduled Castes List.
Effect of Carry-Forward Rule
The difference between the first and the second model is the method in which unfilled vacancies of the more-backward sub-category are to be filled. In the former, the more backward sub-category only has a preference to a certain percentage of seats while in the latter, a percentage of the seats is exclusively available to them and the unfilled seats, if any, will not be available to be filled by the more advanced category of the class. The State may carry forward the unfilled vacancies to the subsequent year which will be available to the same category for which the seats were reserved.
Article 16(4-B) provides that the State can consider carrying forward the unfilled vacancies of the year, which were reserved to be filled by classes under Article 16(4) and 16(4-A), to the subsequent year or years. The provision further provides that the unfilled vacancies shall not be considered together with the vacancies of the subsequent year for determining the ceiling of fifty percent reservation on total vacancies for that year.
Article 16(4-B) does not make any distinction between a class and sub-classified classes. The provision stipulates that the State can carry forward vacancies of unfilled seats which were reserved to be filled under Articles 16(4) and 16(4-A) of the Constitution. As held in the preceding section, the power of the State to sub-classify within the Scheduled Castes is traceable to Article 16(4).
Further, the seats that remain unfilled will not in any manner reduce the seats which are available to the other sub-categories of the Scheduled Castes. The Constitutional validity of Article 16(4-B) was upheld in Nagarajun case. Thus, there is no reason to prevent the State from exercising its power under Article 16(4-B) of carrying forward the vacancies which are reserved for a specific sub-category. Such an exercise will be legal and valid.
Constitutionality of the exclusive model
Like the first model, the constitutionality of the exclusive model depends on the percentage of reservation for the sub-categorized castes. The model of sub-classification will be unconstitutional if it excludes some Scheduled Castes from the benefit. This, similar to the first variant of the preference model, would violate of Article 341(2), and would thus be unconstitutional. However, the second version of the exclusive model in which only a certain percentage of seats is exclusively allotted to the sub-classified castes would be constitutional.
For example, if ten percent of the seats reserved for the Scheduled Castes are reserved for the more backward among Scheduled Castes, the other castes will have the chance to compete for the other ninety percent of the seats, thus, not excluding any of the castes. The sole test is whether the operation of the policy has the effect of eliminating the possibility of castes or groups competing for the seats reserved for the Scheduled Castes.
Article 341(2), as we have noted above, unambiguously prevents inclusion in and exclusion from the Scheduled Castes List by anyone except Parliament. Inclusion could be by way of extending the benefits meant for Scheduled Castes in the State, to a community that is not specifically mentioned in the State Scheduled Castes List, by reading as a part of an enumerated entry or by reading it as a synonym of an enumerated entry. Such an exercise is not open to the States or for that matter to the Courts. Only Parliament is entrusted with the power to make inclusions to or exclusions from the Lists of Scheduled Castes and Tribes.
The thrust of the prohibition, as Dr Ambedkar also indicated, is a proscription on the elimination of an entry or addition of an entry to the List. Such elimination or addition, it was apprehended could arise out of political calculations in the hope of short-term electoral gains. Therefore, only Parliament is invested with the exclusive power to make such variations to the List. Any legislative effort by the State that does not either include unspecified communities or exclude specified communities from the Scheduled Castes List applicable to that State does not fall foul of Article 341(2) of the Constitution.
Basis of any model
The state has the power to follow either of the two permissible models discussed above while reserving seats through sub-classification. The decision of the State to choose from either of the two models will depend on multiple considerations such as the degree of backwardness of certain castes vis-à-vis the other castes and the total number of qualifying candidates belonging to the Scheduled Castes (both the more backward castes of the Scheduled Castes and the others) The course of action adopted by the State is subject to judicial review, when faced with a constitutional challenge. Where the action is challenged, the State will have to justify the basis of its action.
The basis of the sub-classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the State. In other words, while the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot in other words merely act on its whims or as a matter of political expediency.
The decision of the State is amenable to judicial review. When its action is challenged under Article 226 or before this Court under Article 32, the State must provide justification and the rationale for its determination. No State action can be manifestly arbitrary. It must be based on intelligible differentia which underlie the sub-classification. The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved.
Reference
State of Punjab v. Davinder Singh (2024)