Justice Bela M. Trivedi, the lone dissenting judge on the seven-judge bench, ruled that the State has no power to sub-classify the SCs or STs in the context of reservations and that Parliament alone has this power.

She upheld the five-judge constitution bench verdict in E.V. Chinniah vs State of Andhra Pradesh (2005) that ruled out any creamy layer screening among the Dalit or tribal communities.

In her 86-page judgment, Justice Trivedi said any such action by the State would amount not just to discrimination in reverse and violation of Article 14 (equality) of the Constitution but also to tinkering with Article 341.

Article 341 refers to the powers conferred on the President through Parliament to include or exclude any community in respect of the lists of SCs and STs.

“The mandate contained in Clause (2) of Article 341 specifically prohibits any variation in the notification issued under Clause (1) thereof, except by Parliament by law,” Justice Trivedi wrote.

“There is no provision in the Constitution which would empower the States to make any variation in such notification issued under Clause (1) of Article 341, for the purpose of reservations under Article 15 or 16.”

She added: “Though sub-classification or subdivision of castes from amongst the Scheduled Castes by the State for the purpose of reservation per se may
not amount to inclusion or exclusion of any caste from the Presidential List of Scheduled Castes, it would certainly amount to tinkering with or varying the notification notified under Clause (1), which is clearly prohibited under Clause (2).

“When all castes, races or tribes enumerated in the Presidential List are deemed to be the ‘Scheduled Castes’ for the purposes of the Constitution, any preference given to or any quota reserved for a particular caste or race or tribe out of the quota reserved for the entire class of the Scheduled Castes for the government jobs by the State, would certainly deprive the other members of the ‘Scheduled Castes’ from having the benefit of reservation to the extent the quota is reserved for such particular caste
or castes.

“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 and tinker with Article 341.

“Such power if exercised by the State in absence of any executive or legislative power would be colourable exercise of powers. It hardly needs to be reiterated that the idea conveyed by the ‘doctrine of colourable legislation’ is that although apparently a legislature in passing a statute, purports to act within the limits of its powers, yet in substance and in reality, it transgresses its powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise.”