KV Kailash Ramanathan*

Source : IPleaders

In State of Punjab vs Davinder Singh, the Supreme Court while upholding the Constitutionality of sub classification in reservation, treats Articles 15(4) and 16(4) as a standalone source of legislative power without regard to the scheme of subject matter distribution under Schedule VII. This piece analyses the ruling through a federalist lens and argues that the reasoning employed creates ambiguities and is bound to open the doors to a new realm of centre-state conflict.

I.  Introduction

Through its recent ruling in State of Punjab v. Davinder Singh (‘Davinder Singh’), the Hon’ble Supreme Court upheld the constitutionality of sub-classifying Scheduled Castes (‘SCs’) for granting reservations. The court broadly dealt with two constitutional issues, formulated as specific questions. The first is whether sub-classifying SCs would fall afoul of the equality code in Part III. This question was settled by employing empirical data to demonstrate that SCs are heterogeneous and their sub-classification can constitutionally have little demur when tested against Articles 14-16. The second issue was around the competence of the State Legislature to sub-classify SCs when Article 341 confers exclusive power on the President (and, in extension, the Union) to draw up a list of SCs with States expressly barred from tinkering with such list.

While answering the second question in favour of the States’ competence, the court has, even if fleetingly, employed an argument that may open the floodgates to a new arena of contested federalism and standoffs between the Union and State. In this piece, the author will explain the argument, analyse the conflict it will create between the Centre and State moving forward, its implications on the Schedule VII delineation of powers, and explore Article 254 as a potential solution.

II.  Article 15(4) and 16(4) as a source of legislative power

A major argument of the Supreme Court in EV Chinniah vs State of Andhra Pradesh (EV Chinniah) was that an act of sub-classification would amount to tinkering with the presidential list of SCs identified as per Article 341. The State Legislature lacks legislative competence to engage in such tinkering as it is expressly barred by Article 341. In Davinder Singh, the learned Chief Justice while overruling EV Chinniah, makes an interesting distinction between identifying SCs and their sub-classification. He explicates that the identification of SCs alone is dealt with by Article 341. Sub-classification is not an exercise in identification, but rather an apportionment of seats between groups of SCs already identified under Article 341.[1]

He then states that the power to sub-classify emanates from Articles 15(4) and 16(4).  In a catena of earlier judgements, the Supreme Court has recognised the above as an “Enabling Provision” which confers a discretionary power on the state to make special provisions.[2] Davinder Singh in overruling EV Chinniah, goes further by treating this power as standalone, without regard to the interplay it will have with the scheme of subject matter distribution under Article 246, or any other provision in the constitution.  This recognition of Article 15(4) as a standalone source of legislative power that may be exercised to further the wide objects stated therein can open a can of worms. For reference, Article 15(4) reads

“(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”

As reservation centric as the discourse around this article has remained, its ambit includes any special provision for the advancement of the marginalised. Before proceeding to the crux of the problem, it is apposite to note that Articles 15(4), as well as 16(4), confer parallel powers on both the Union and State governments to make provisions. This would be clear from a reading of Article 12 which defines State to include both levels, as well as from a general reading of Part III which uses the word “Parliament” when it wishes to exclusively deal with the Union Legislature. Article 35 further reinforces this position by expressly denuding State Legislatures of power to legislate on certain areas under Part III, with Articles 15(4) and 16(4) not being one of the prohibited areas.

III.  Room for Conflict

Under Articles 245 and 246, there is a clear distribution of legislative power between the two levels of State. Schedule VII draws up subject matters under the three lists, including a Concurrent List for which there are doctrines of interpretations that uphold the Union’s supremacy in case of conflict.

The challenge arises when either the Union or the State decides to exercise their wide legislative powers under Articles 15(4) or 16(4) to make laws that come into conflict with existing or future laws to be made by the other. For this law-making power coming under Part III, there are no doctrines set up either constitutionally or judicially to resolve conflict. The supremacy of the Union is not laid down for laws made in the exercise of Articles 15(4) and 16(4).

1. Breaching the Schedule VII Delineation

All entries under Schedule VII would include items incidental or ancillary to them.[3] This means advancement of backward classes within the realm of any of these entries may also be argued as an aspect that is ancillary or incidental to such respective entries. However, there is no clarity on whether to exercise legislative power under Articles 15(4) and 16(4), the respective government must first be competent under Article 246 to legislate on the relevant subject matter related to which the advancement of the backward classes is sought. Articles 15(4) and 16(4) being understood as conferring standalone legislative power, independent of the scheme under Article 246 could open a can of worms. The learned Chief Justice offers no guidance on this point but simply asserts that they confer law-making powers for the advancement of SC/ST and other backward classes.

To illustrate, Entry 66 of List I is “Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Now imagine, if a State Legislature were to purportedly set a different standard or impose additional standards over existing ones in higher education for the backward/scheduled classes specifically, they could make that law in the exercise of powers under Article 15(4). In such a case, will the entry and all its incidental matters being under List I result in the State law being void, or will the State law stand valid because it was made not in the exercise of legislative power under Article 246 but rather under Article 15(4)? The same situation can play out vice versa for items in List II.

The Concurrent List holds even more room for contention. For instance, Entry 15 deals with vagrancy, nomadic and migratory tribes. If the Union were to legislate upon this entry and occupy the field, that would not be the last word on it. The State can yet again legislate under 15(4) to regulate the affairs of nomadic and migratory tribes under the justification of their advancement. Entry 17A dealing with forests is presently held by the Centre’s Forest Act. Scheduled Tribes are key stakeholders in any regulation of forests and thus the States can once again interfere through the Article 15(4) route. Entry 28 pertaining to Religious and charitable endowments is an entry that allows the State to administer temples. States undertake highly controversial reform of religious institutions under this entry. If the Parliament were to make a central law on this subject overriding the State laws, can the State still come up with new measures to permit backward class appointments as priests in temples and so on in the exercise of the wide powers under Article 15(4)?

The above examples are purely illustrative and not comprehensive. Almost every entry can be subject to the same conflict when approached by creative and contentious lawmakers.

The door is opened wide for pugnacious governments to traverse a collision course with their Central/State counterpart. A potential conflict arises from two aspects of Schedule VII entries. On one hand, we have the entries themselves, which include their ancillary matters and are clearly assigned. On the other hand, we have backward class welfare connected to these entries. This latter aspect can be legislated upon using two different sources of legislative power: Article 246 and Article 15(4). This dual approach to legislation creates potential for conflict.

Even if backward class welfare is seen as entirely separate from any Schedule VII entry and solely traceable to Article 15(4), a problem still persists. In this scenario, both the Union and State governments would have parallel powers to legislate on the matter. Thus, regardless of how we interpret the connection between backward class welfare and Schedule VII entries, the dual approach to legislation remains problematic.

Consequent to the foregoing analysis, the unaddressed issues that could cause quarrels can be formulated in a two-fold manner. The first is whether the exercise of legislative power under Articles 15(4) and 16(4) would still be subject to the same constitutional distribution of powers under Schedule VII? Inextricably linked to the first is the second issue of whether the advancement of backward classes connected to a particular entry under Schedule VII is ancillary or incidental to such entry.? Two more such questions arise when a solution is excavated for in the depths of our constitutional text. These are discussed in the following section.

B. Article 254: A Potential Way Out?

The doctrines of repugnancy and occupied field could serve as a potential way out by upholding the supremacy of the Union and sanctifying the Schedule VII divisions as against legislative power under Articles 15(4) and 16(4). Article 254(1) in essence lays down that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, the law made by Parliament shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

While the wording of Article 254(1) seems wide enough to encompass any law made in the exercise of powers conferred under the constitution, judicial interpretation seems to confine the application of this article to the lists under Schedule VII. In Prem Nath Kaul vs State of J&K the court observed that Article 254(1) applies when there is a conflict between a State and Central law, specifically concerning matters in the Concurrent list. The term “repugnancy” refers to this conflict between the two laws.

The above position has also been confirmed in Hoechst Pharmaceuticals Ltd vs State of Bihar and the jurisprudence on the point appears to have crystallised. Nonetheless, the existing jurisprudence has been decided specifically in light of Schedule VII. It remains undecided whether the Doctrine of Repugnancy that would uphold the Union’s supremacy in case of conflict applies to laws made under Articles 15(4) and 16(4). 

A clarification on the following points would be expedient. Firstly, would doctrines like Repugnancy and Occupied field under Article 254(1) still apply to laws made under Articles 15(4) and 16(4) in case of conflict? Can Article 254(1) be interpreted textually and be made applicable to the entire constitution? As flexible and transformative as a constitution should be,[4] , uncertainty and ambiguity are antithetical to the rule of law and undesirable in constitutional interpretation. A textual interpretation of Article 254 would resolve the whole quandary and restore the Union’s supremacy.

V.  Conclusion

The Supreme Court’s ruling in Davinder Singh, while addressing the sub-classification of Scheduled Castes, has created new constitutional ambiguities. By recognizing Articles 15(4) and 16(4) as independent sources of legislative power, the court has inadvertently created a new arena for Centre-State conflicts. This interpretation raises critical questions about the interaction between these articles and the established legislative framework under Schedule VII.

Key issues remain unresolved, including the applicability of the Schedule VII’s power distribution to laws made under Articles 15(4) and 16(4), the relevance of doctrines like Repugnancy in this context, and the potential for a broader interpretation of Article 254(1). These ambiguities could lead to legal uncertainties and political standoffs in India’s federal structure.

Prompt resolution of these issues is crucial to maintain constitutional clarity and prevent potential misuse of this ruling. While constitutional flexibility is valuable, ambiguity in power distribution can undermine the rule of law and strain Centre-State relations. This case underscores the need for careful consideration of the broader constitutional implications when interpreting specific provisions.

[1] ¶¶ 147 and 148

[2] M. Nagaraj v. Union of India, (2006) 8 SCC 212.

[3] ¶ 61 State of Karnataka vs. State of Meghalaya, (2023) 4 SCC 416

[4] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

*Author name: KV Kailash Ramanathan 

Author Bio- Manager (Corporate Legal Group) at ICICI Bank. 

Disclaimer: All views expressed are solely those of the author and in no way represent the views of any organisation he is associated with.