The states cannot make sub-classifications within the Scheduled Castes for granting quota to uplift socially and economically more backward castes inside the group, Supreme Court judge Justice Bela M Trivedi said in her dissenting verdict on Thursday.

She said the states cannot alter the Presidential List and tinker with Article 341 of the Constitution under the guise of providing reservation to SCs or STs.

A seven-judge Constitution bench headed by Chief Justice D Y Chandrachud held by a 6:1 majority that the further sub-classification of Scheduled Castes (SCs) and Scheduled Tribes (STs) by the states can be permitted to ensure grant of quota to more backward castes inside these groups.

In a majority verdict, the top court said the states are empowered to make sub-classifications of SCs and STs for granting quotas inside the reserved category to uplift the more underprivileged castes.

Dissenting with a majority verdict on sub-classifications of SCs and STs for granting quotas, Justice Trivedi said law was settled by the Constitution bench in the E V Chinnaiah vs State of Andhra Pradesh case and the same should not have been doubted and referred to the larger bench without assigning any reason.

The top court had heard a reference to revisit a five-judge Constitution bench judgment of 2004 in the case of E V Chinnaiah vs State of Andhra Pradesh in which it was held that the SCs and STs are homogenous groups and hence, the states cannot further sub-classify them to grant quota inside quota for more deprived and weaker castes in these groups.

Justice Trivedi said Articles 341 and 342 empower the President to draw up a list of SCs and STs respectively. The inclusion or exclusion of any caste, race or tribe from the Presidential list is done by Parliament through legislation, she added.

"The Presidential List specifying 'Scheduled Castes' under Article 41 assumes finality on the publication of the notification, and the castes, races or tribes, or groups within castes, races or tribes specified in the notification are deemed to be the 'Scheduled Castes' in relation to that State or Union Territory as the case may be, for the purposes of the Constitution and as such assume special status of 'Scheduled Castes'.

"It is only the Parliament by law which can include in or exclude from the list of the 'Scheduled Castes' specified in the notification notified under Clause (1), any caste, race or tribe or part of or group within any caste, race or tribe. Such notification notified under Clause (1) cannot be varied even by the President by issuing any subsequent notification," Justice Trivedi wrote in her separate 85-page judgment.

She said though the members of the SCs are drawn from different castes, races or tribes, they attain special status of "Scheduled Castes" by virtue of Presidential Notification.

"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.

"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," Justice Trivedi wrote.

She said the power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. Even with the width of its amplitude, Article 142 cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with the subject, and thereby to achieve something indirectly which cannot be achieved directly, she said.

"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," Justice Trivedi said.

She said it is by virtue of the notification of the President under Article 341 that the "Scheduled Castes" come into being and though the members of the SCs are drawn from different castes, races or tribes, they attain a new "Special Status" by virtue of the Presidential notification.

The top court judge said in the absence of any executive or legislative powers, the states are not competent to "divide/ sub-divide/ sub-classify/ regroup" the castes, races or tribes from amongst the "Scheduled Castes" nor could they give any preferential treatment by reserving a quota for a particular caste, race, tribe out of the quota reserved for the entire "Scheduled Castes".

She said any action of the states in the name of affirmative action, if not permitted by the Constitution, could not be validated or vindicated by the courts by moulding or tinkering with the specific provisions of the Constitution.

Justice Trivedi said the affirmative actions of the states have to be within the constitutional framework, and if they are not, the courts cannot ratify the same by bending or moulding the specific mandates contained in the Constitution.

"Article 142 even with the width of its amplitude cannot be used to build a new edifice where none existed earlier, by ignoring Constitutional provisions dealing with the subject and thereby achieve something indirectly which cannot be achieved directly...

"In short, the affirmative action and the legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and Constitutionality," she wrote.

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