States can't tinker with SC list on pretext of promoting weaker of the weakest: dissenting judge

New Delhi: A Supreme Court judge, Justice Bela M Trivedi, who dissented with majority view on sub classification of SC/STs for the reservation, on Thursday said under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List, nor can tinker with Article 341 of the Constitution.

In her judgment, she said though unanimity and consensus are desirable for the sake of certainty and strength of the law she believed that the “dissent” would be equally important for an effective adjudication in a democratic functioning of judiciary, which would have a potential to develop the law in future.

In her opinion, she said the states have no legislative competence to enact the law for providing reservation or giving preferential treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes” in the notification under Article 341.

Only Parliament by law can include in or exclude from the list of the “Scheduled Castes” specified in the notification notified under Clause (1) of Article 341 of the Constitution, she said.

"The etymological and evolutionary history and the background of the nomenclature “Scheduled Castes”, coupled with the Presidential orders published under Article 341 of the Constitution, make the “Scheduled Castes”, a homogenous class, which cannot be tinkered with by the States," Justice Trivedi said.

She further held that the action of the State, though well intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142.

The judge felt that the law laid down by the five-Judge bench in E V Chinnaiah is the correct law and deserves to be confirmed.

She opined that though Indra Sawhney (Mandal case) had sought to define “backward class” in terms of social backwardness, while considering the ambit of “backward class” for the purpose of Article 16(4), it did not deal with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the light of Article 341/342, rather it categorically kept the Scheduled Castes/ Scheduled Tribes outside the purview of consideration.

"The Scheduled Castes being the most backward class amongst the backward classes, and having acquired a special status by virtue of Article 341, the question of defining “backward class” qua the “Scheduled Castes” did not arise, and rightly not dealt with in Indra Sawhney for the purposes of Article 16(4) of the Constitution," she said.