Reservation was not contemplated for all the time by the framers of the Constitution: Supreme Court

New Delhi: "The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogeneous class," the Supreme Court on Thursday observed while favouring re-look of its 2004 verdict that had held that states do not have power to further classify Scheduled Castes and Scheduled Tribes to grant quota in jobs and admissions.

"In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread."

"The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogeneous class," a five-judge Constitution bench headed by Justice Arun Mishra said.

It said that right to quality under the constitution would be defeated if the persons, who have come up among SCs and STs after enjoying the fruits of the quota, are not excluded and the poorest among them are not promoted.

"Reservation was not contemplated for all the time by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal," said the bench which also comprised Justices Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose.

It said that the Constitution is an 'effective tool of social transformation and removal of inequalities' and the social realities cannot be ignored and overlooked while the organic documents aimed at the comprehensive removal of the disparities.

"The very purpose of providing reservation is to take care of disparities. The Constitution takes care of inequalities. There are unequals within the list of SCs, STs, and socially and educationally backward classes. Various reports indicate that SCs and STs do not constitute a homogenous group. The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream," it said.

Various castes by and large remain where they were, and they remain unequals, it said, asking 'are they destined to carry their backwardness till eternity'.

In the federal structure, the State, as well as Parliament, have a constitutional directive for the upliftment of SCs and STs and socially and backward classes, it said.

"The State government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal."

"By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the list under Articles 341, 342, and 342A as no enlisted caste is denied the benefit of reservation," the bench opined.

It, being a coordinate bench of equal strength, referred to a larger bench of the 2004 E V Chinnaiah judgment in which it was held that the states cannot give preference to certain SCs and STs as it would amount to tinkering with the Presidential list under the Constitution.

"The State's obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities. When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided," it said.