Supreme Court of India
The State Of Punjab vs Davinder Singh on 1 August, 2024
Reportable
2024 INSC 562
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE / ORIGINAL JURISDICTION
Civil Appeal No. 2317 of 2011
The State of Punjab & Ors. …Appellants
Versus
Davinder Singh & Ors. …Respondents
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C.A. No.6936 of 2015
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C.A. No.5597 of 2010
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W.P.(C) No. 21 of 2023
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C.A. No.5593 of 2010
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S.L.P.(C) No.30766 of 2010
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S.L.P.(C) No. 8701 of 2011
Signature Not Verified
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S.L.P.(C) Nos.36500-36501 of 2011
Digitally signed by
Sanjay Kumar
Date: 2024.08.01
12:04:15 IST
Reason:
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T.C.(C) No.38 of 2011
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T.P.(C) No.464 of 2015
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W.P.(C) No.1477 of 2019
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C.A. No.5586 of 2010
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C.A. No.5598 of 2010
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C.A. Nos. 5595-5596 of 2010
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S.L.P.(C) Nos.5454-5459 of 2011
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C.A. No.289 of 2014
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W.P.(C) No.562 of 2022
2
JUDGMENT
Dr Dhananjaya Y Chandrachud, CJI
A. Background ................................................................................................ 5
i. Relevant constitutional provisions ........................................................... 5
ii. The genesis of the reference to the Constitution Bench ........................ 7
iii. The judgment in Chinnaiah .................................................................. 11
iv. The reference......................................................................................... 16
B. Submissions ............................................................................................. 18
i. Submissions of Petitioners ..................................................................... 18
ii. Submissions of Respondents ................................................................. 25
C. Issues ........................................................................................................ 31
D. Analysis..................................................................................................... 32
i. The jurisprudence on reservation .......................................................... 32
a. Reservation as an exposition of substantive equality ............................. 32
I. The competing visions of equality ........................................................ 32
II. The “efficiency” of reservation .............................................................. 38
III. The interplay of Article 16 and Article 335 ........................................ 44
ii. Permissibility of sub-classification under Article 14 ............................ 52
a. The contours of Article 14 ....................................................................... 53
b. Sub-classification as a facet of equality .................................................. 55
c. Micro-classification: the limits of sub-classification ................................. 61
iii. Sub-classification in reservations: tracing the journey through
Balaji, Vasanth Kumar and Indra Sawhney .................................................. 63
3
a. Indra Sawhney did not exclude sub-classification within the Scheduled
Castes ........................................................................................................... 69
iv. The import of the deeming fiction in Article 341 ................................ 72
a. Chinnaiah on the deeming fiction in Article 341 ....................................... 72
b. Scope of deeming fiction ........................................................................... 74
c. Article 341 does not create a deeming fiction ............................................ 76
d. Article 341(1) read with Article 341(2) only proscribes exclusion from and
inclusion in the Scheduled Castes List. ......................................................... 81
v. Historical and empirical evidence of inter-se backwardness within the
Scheduled Castes ........................................................................................... 88
a. Identification of the depressed classes ................................................... 89
b. Empirical evidence of heterogeneity ....................................................... 96
vi. The power of the State to sub-classify under Articles 15 and 16 ... 100
vii. Criteria for sub-classification ............................................................ 103
a. The meaning of “Backward Class” ........................................................ 104
b. Inadequacy of representation in services of the State .......................... 110
c. The requirement of “effective” representation ....................................... 115
d. Yardstick for sub-classification .............................................................. 120
viii. The limits of sub-classification .......................................................... 122
a. Model of special provisions ................................................................... 122
b. The caste-class conundrum .................................................................. 128
ix. Scope for judicial review .................................................................... 131
a. Inter-se backwardness .......................................................................... 131
b. Adequacy of representation .................................................................. 133
E. Conclusion .............................................................................................. 138
4
PART A
1. The reference to this Constitution Bench raises significant questions relating
to the right to equal opportunity guaranteed by the Constitution. The principal
issue is whether sub-classification of the Scheduled Castes for reservation is
constitutionally permissible.
A. Background
i. Relevant constitutional provisions
2. Article 14 of the Constitution stipulates that the State shall not deny to any
person equality before the law or the equal protection of laws within the
territory of India. Article 15(1) states that the State should not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of birth
or any of them. Article 15(4) stipulates that nothing in Article 15 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.1
3. Article 16 deals with equality of opportunity in matters of public employment.
Clause (1) of Article 16 guarantees equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
Clause (2) stipulates that no citizen shall be discriminated in or be ineligible
for any employment or office under the State on the grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them. Clause (4)
1
Article 15 (4) “Nothing in this article or in clause (2) of Article 29 shall prevent the State form 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.”
5
PART A
of the provision states that nothing in Article 16 shall prevent the State from
making any provision for the reservation of appointments or posts in favour of
any backward class of citizens, which in the opinion of the State, is not
adequately represented in the services under the State 2.
4. Article 366(24) of the Constitution defines the term ‘Scheduled Castes’ to
mean such castes, tribes or parts of or groups within such castes, races or
tribes as are deemed under Article 341 to be Scheduled Castes for the
purposes of the Constitution. Article 341(1) grants the President the power to
notify the castes, races or tribes (or parts of or groups within castes, races or
tribes) which shall be deemed to be Scheduled Castes for a State or a Union
Territory for the purposes of the Constitution. The President has been
empowered to issue the notification with respect to a State in consultation
with the Governor of the State. Article 341(2) stipulates that Parliament may
by law include or exclude any caste, race, or tribe (or part of or group within
any caste, race, or tribe) from the list of Scheduled Castes specified in the
notification and that a notification issued under clause (1) shall not be varied
by any subsequent notification. Article 341 is extracted below for reference:
“Article 341. Scheduled Castes.- (1) The President may
with respect to any State or Union Territory, and where
it is a State after consultation with the Governor thereof,
by public notification, specify the castes, races or
tribes, or parts of or groups within castes, races, tribes
which shall for the purposes of this Constitution be
deemed to be Scheduled Castes in relation to that
State or Union Territory, as the case may be.
2
Article 16 (4) “Nothing in this article shall prevent the State from making any provision for reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not
adequately represented in the services under the State.”
6
PART A
(2) Parliament may by law include or exclude from the
list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race, or tribe or part
of or group within any caste, race or tribe, but save as
aforesaid a notification issued under the said clause
shall not be varied by any subsequent notification.”
5. Articles 342 3 and 342-A 4 relate to notification of Scheduled Tribes and socially
and educationally backward classes respectively and contain provisions pari
materia to Article 341.
ii. The genesis of the reference to the Constitution Bench
6. The State Legislature of Punjab enacted the Punjab Scheduled Castes and
Backward Classes (Reservation in Services) Act 2006 5. The long title
stipulates that it is a statute to provide for reservation in services for the
members of the Scheduled Castes and Backward Classes and for matters
incidental thereto. Section 2(f) defines “Scheduled Castes” as Scheduled
Castes notified by the President under Article 341 of the Constitution by the
Constitution (Scheduled Castes) Order 1950, as amended from time to time.
3
Article 342. Scheduled Tribes.-(1) The President may with respect to any State or Union territory, and where
it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal
communities or parts of or groups within tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may
be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent
notification.
4
Article 342A. Socially and educationally backward classes.—(1) The President may with respect to any
State or Union territory, and where it is a State, after consultation with the Governor thereof, by public
notification, specify 6 [the socially and educationally backward classes in the Central List which shall for the
purposes of the Central Government] be deemed to be socially and educationally backward classes in
relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward
classes specified in a notification issued under clause (1) any socially and educationally backward class, but
save as aforesaid a notification issued under the said clause shall not be varied by any subsequent
notification.
5
“Punjab Act”
7
PART A
Section 4(2) provides that reservation of twenty-five percent shall be made
for the members of the Scheduled Castes and twelve percent for Backward
Classes while filing up vacancies by direct recruitment in services. Section
4(5) stipulates that fifty percent of the vacancies of the quota reserved for the
Scheduled Castes in direct recruitment shall be offered to Balmikis and
Mazhabi Sikhs, if available, as a first preference from amongst the Scheduled
Castes.
7. Proceedings were instituted under Article 226 of the Constitution for
challenging the validity of Section 4(5) of the Punjab Act. By a judgment dated
29 March 2010, the High Court of Punjab and Haryana declared Section 4(5)
unconstitutional, relying on the judgment of the Constitution Bench of this
Court in EV Chinniah v. State of Andhra Pradesh 6.
8. Opposing the State’s appeal against the order of the High Court, the
respondents relied upon the judgment of the Constitution Bench in Chinnaiah
(supra). The State submitted that Chinnaiah (supra) does not apply to the
controversy in hand and that the decision is in any event, not consistent with
the judgment of the nine-Judge Bench in Indra Sawhney v. Union of India.7
On 20 August 2014, a three-Judge Bench referred the correctness of
Chinnaiah (supra) for consideration by a larger Bench. The three-Judge
Bench observed that the judgment needs to be revisited, considering Article
338, the judgment of this Court in Indra Sawhney (supra) and the interplay
between Article 16 and Articles 338 and 341 of the Constitution.
6
(2005) 1 SCC 394
7
(1992) Supp (3) SCC 217
8
PART A
9. On 9 November 1994, the Government of Haryana issued a notification 8 by
which the Scheduled Castes in the State were classified into two categories -
Blocks A and B - for the purposes of reservation. Block B consisted of
Chamars, Jatia Chamars, Rahgars, Raigars, Ramdasias or Ravidasias. Block
A consisted of the remaining thirty-six castes in the list of Scheduled Castes
for the State. Within the quota reserved for Scheduled Castes in direct
recruitment for Government jobs, fifty percent of the vacancies were to be
offered to candidates from Block A and the other fifty percent were to be
offered to candidates from Block B. The notification further stipulated that in
case suitable candidates from Block A were unavailable, candidates from
Block B should be recruited against those vacancies. Similarly, in the event
that suitable candidates from Block B were unavailable, candidates from
Block A should be recruited against those vacancies. Thus, preference would
be given to castes belonging to Block A and Block B in the fifty per cent
earmarked for them. Proceedings were initiated under Article 226 for
challenging the constitutional validity of the notification. By a judgment dated
6 July 2006, the High Court of Punjab and Haryana quashed the notification
on the ground that the sub-classification of castes placed in the list of
Scheduled Castes is unconstitutional in view of the judgment of this Court in
Chinnaiah (supra). The Special Leave Petitions challenging the judgment of
the High Court of Punjab and Haryana were tagged with the appeals involving
the challenge to the Punjab Act.
8
Notification No.22/5590-3-GS/111
9
PART A
10. The State Legislature of Tamil Nadu enacted the Tamil Nadu Arunthathiyars
(Special Reservation of seats in educational institutions including private
educational Institutions and of appointments or posts in services under State
within the Reservation for the Scheduled Castes) Act 2009 9. The long title to
the legislation states that it is an Act to provide for reservation of seats to
Arunthathiyars in educational institutions, including private educational
institutions in the State and for appointment in services under the State. The
Tamil Nadu Act defines Arunthathiyars to mean the castes of Arunthathiyar,
Chakkiliyan, Madari, Madiga, Pagadi, Thoti and Adi Andhra from the list of
seventy-six Scheduled Castes notified by the President under Article 341, as
amended from time to time. 10 Section 3 stipulates that sixteen per cent of the
seats reserved for the Scheduled Castes in educational institutions shall be
offered to the Arunthathiyars, if available, having regard to the social and
educational backwardness of the community. Section 4 makes a similar
provision for the Arunthathiyars in recruitment to Government posts. 11
Proceedings under Article 32 of the Constitution were instituted before this
Court for challenging the constitutional validity of the Tamil Nadu Act on the
ground that it contravenes the judgment of this Court in Chinnaiah (supra).
9
“Tamil Nadu Act”
10
Tamil Nadu Act; Section 2(a)
11
4. Notwithstanding anything contained in the 1994 Act or the 2006 Act or in any other law for the time being
in force or in any judgment, decree or order of any Court or other authority, having regard to the social and
educational backwardness of Arunthathiyars included in the Scheduled Castes, sixteen per cent of the
appointments or posts reserved for the Scheduled Castes shall be offered to Arunthathiyars, if available, in
appointments or posts in the services under the State, on preferential basis amongst the Scheduled Castes,
in such manner as may be prescribed.
Explanation.- For the purposes of this Act, “services under the State” includes the services under-
(i) The Government
(ii) He legislature of the State
(iii) Any local authority
(iv) Any Corporation or Company owned or controlled by the Government; or
(v) Any other authority in respect of which the State Legislature has power to make laws
10
PART A
The batch of matters challenging the Tamil Nadu Act was tagged with the
batch of matters challenging the Punjab Act.
iii. The judgment in Chinnaiah
11. A three - judge Bench of this Court was called upon to adjudicate on the
validity of the Andhra Pradesh Scheduled Castes (Rationalisation of
Reservations) Act 2000. The Act was enacted following the recommendations
of the Ramachandran Raju Commission constituted by the State
Government. The Commission was tasked with ascertaining the groups
among the Scheduled Castes in the State who had failed to avail of the
benefits of reservations in college admissions and state public services. The
Commission found inter-se backwardness among the Scheduled Castes in
the state in matters of reservation in education and appointment. Accepting
its findings - that there were inequalities among the Scheduled Castes as far
as the distribution of the benefits of reservation was concerned - the State
Government promulgated the Andhra Pradesh Scheduled Castes
(Rationalisation of Reservations) Ordinance 1999. While proceedings
challenging the Ordinance were pending, the State enacted a law to replace
Ordinance. Section 3, which provided for ‘Rationalisation of Reservations,’
apportioned the benefits of reservation among Scheduled Castes into four
groups – Groups A, B, C and D - in varying percentages : 1% for Group A,
7% for Group B, 6% for Group C and 1% for Group D respectively, subject to
the availability of eligible candidates. The Andhra Pradesh High Court
rejected challenges to the Act, leading to appeals which came to be decided
by this Court in Chinnaiah (supra).
11
PART A
12. The appellants argued that the State legislature lacked legislative
competence to enact the law. They argued that once enumerated in the
Presidential List under Article 341 of the Constitution, the Scheduled Castes
constitute a homogenous class, which is incapable of further subdivision/sub-
classification. Such a classification, they argued, amounted to tinkering with
the Presidential List, in violation of Article 341(2) and Article 14 of the
Constitution.
13. The respondent-State on the other hand, argued that Article 341 allows the
President to identify certain castes as Scheduled Castes and only Parliament
can include or exclude entries from the List so created. The State argued that
it could, in exercise of powers under Articles 15(4) and 16(4) decide the scope
and extent of reservations. This power, they argued, was not limited by Article
341 which operates in an entirely different field. The State urged that the Act
of 2000 was a form of affirmative action and it did not exclude or include
anyone from the Presidential List under Article 341. Such a sub-classification
of the Scheduled Castes was claimed to be permissible under Article 16(4)
for the same reason that this Court had held in Indra Sawhney (supra) that
the backward classes could be divided into the ‘more backward’ and
‘backward’, depending on inter-se backwardness.
14. A Constitution Bench of this Court, speaking through Justice Santosh Hegde
(for himself, Justice SN Variava and Justice BP Singh), Justice HK Sema and
Justice SB Sinha unanimously held that the Andhra Pradesh Act was
unconstitutional.
12
PART A
15. Justice Hegde examined whether the Andhra Pradesh Act tinkered with the
Presidential List notified under Article 341 and held that the States have no
power to deal with the Scheduled Castes except the maintenance of efficiency
of administration. Justice Hegde observed that certain members of the
Constituent Assembly sought to give power to the States to interfere with the
list but the amendments to that effect were unsuccessful. Analysing the
opinion of Justice Hegde, the following formulations emerge:12
a. The Scheduled Castes form a class by themselves 13 as elucidated in
the opinions of Justice Krishna Iyer and Justice Fazl Ali in State of Kerala
v. NM Thomas;14
b. The purpose of the Act was to divide the castes in the Presidential List
and then to distribute the 15% reservations for the Scheduled Castes in
the state among four groups. The Act did not provide reservations for
the first time but redistributed them by sub-classifying the Scheduled
Castes. Reservations are not a constitutional mandate and once the
state has fulfilled the obligation to reserve certain seats under Articles
15(4) and 16(4), it cannot apportion reservations among sub-classes.
Notwithstanding the purpose of such sub-classification, the State cannot
claim legislative competence under Entry 41, List II and Entry 25, List III
of the Seventh Schedule in order to divide the Scheduled Castes’ List.
The pith and substance of the law in question was not traceable to these
entries; 15
12
Chinnaiah (supra) [Justice Hegde, 13-19].
13
Chinnaiah (supra) [Justice Hegde, 20-26].
14
Chinnaiah (supra) [Justice Hegde, 82, 135 and 169].
15
Chinnaiah (supra) [Justice Hegde, 30-31].
13
PART A
c. The Scheduled Castes constitute a class, and a classification already
exists. The issue was whether a further classification is permissible
within this class with the objective of providing reservations.16 The
rationale of Indra Sawhney (supra), to the extent that it permitted sub-
classification of the Other Backward Classes 17, did not apply to the
Scheduled Castes. 18 Sub-classification was akin to giving preference to
a ‘miniscule proportion’ of the Scheduled Castes, over other groups and
would be impermissible in view of Article 14; 19 and
d. The Constitution creates a legal fiction in terms of which the Scheduled
Castes constitute a “class as a whole”. The States cannot sub-divide
them. Such a sub-classification would tinker with the Presidential list and
violate Article 14. If the benefits of reservation are not being distributed
equitably, they can be supplemented by additional measures such as
training, which would not be contrary to Articles 14 and 15. 20 A further
sub-classification amongst the Scheduled Castes would not be
reasonable and a uniform yardstick must be adopted to give benefits to
the Scheduled Castes. 21
16. In his concurring opinion, Justice HK Sema held that the purpose of
reservations is to afford special protection to the members of the Scheduled
Castes and Scheduled Tribes as a homogenous class of persons. Further
classification of this class of people would amount to tinkering with the
16
Chinnaiah (supra) [Justice Hegde, 38].
17
“OBCs”
18
Chinnaiah (supra) [Justice Hegde, 38].
19
Chinnaiah (supra) [Justice Hegde, 39,40]
20
Chinnaiah (supra) [Justice Hegde, 43]
21
ibid.
14
PART A
Presidential List. This regrouping of a homogenous group would, also amount
to reverse discrimination and be violative of Article 14. 22
17. In his concurring opinion, Justice SB Sinha held that Indra Sawhney (supra),
while determining whether backward classes could be divided into more
backward and backward classes, was not dealing with Scheduled Castes.23
In that context, Justice Sinha observed:
a. Unlike the Other Backward Classes, Scheduled Castes and Scheduled
Tribes are treated as a separate class by the Scheduled Castes and
Tribes Orders; 24
b. The State had failed to establish the reasonableness of its classification
among the Scheduled Castes; 25
c. The Relli Community was the most backward community and hardly
received any benefits of reservations. On the other hand, the Adi Andhra
community was numerically larger and educationally better off compared
to the Rellis. Both these groups were placed in Group A and Group D
respectively and each was given the same 1% share in total
reservations. The Act thus wrongly treated them alike despite apparent
differences, without any basis; 26
d. Micro-classification was impermissible under Article 14; 27
22
Chinnaiah (supra) [Justice Sema, 49, 50]
23
Chinnaiah (supra) [Justice Sinha, 75]
24
Chinnaiah (supra) [Justice Sinha, 77]
25
Chinnaiah (supra) [Justice Sinha, 81]
26
Chinnaiah (supra) [Justice Sinha, 97].
27
Chinnaiah (supra) [Justice Sinha, 98]. Relied on Triloki Nath v. State of J&K 1969 1 SCR 103; State of UP
v. Pradip Tandon 1975 1 SCC 267; Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India (1981) 1
SCC 246.
15
PART A
e. Backwardness of the class was the link holding this class together and
a classification that is justifiable based on backwardness of the class
cannot be based on backwardness of the caste; 28
f. Article 16(4) must be read with Article 335 and efficiency of
administration cannot be sacrificed to benefit some castes out of the
homogenous Scheduled Castes; 29 and
g. The validity of the sub-classification and not the extent of the reservation
was in question. Therefore, the argument that the States have the
prerogative to decide the extent of reservations was inapplicable.30 The
State could certainly stipulate the legislative policy about the extent of
reservations but it could not take away the benefit of reservations on the
ground that certain groups among the Scheduled Castes have advanced
in the hierarchy.31
iv. The reference
18. On 27 August 2020, in State of Punjab v. Davinder Singh 32, a Constitution
Bench held that the judgment in Chinnaiah (supra) requires to be revisited
by a larger Bench of seven Judges because it failed to consider significant
aspects bearing on the issue. These aspects have been formulated thus:
a. In Indra Sawhney (supra),33 this Court held that it is constitutional to
classify the backward class into the ‘backward’ and the ‘more backward’
28
Chinnaiah (supra) [Justice Sinha, 104].
29
Chinnaiah (supra) [Justice Sinha, 105].
30
Chinnaiah (supra) [Justice Sinha, 112,113].
31
Chinnaiah (supra) [Justice Sinha, 114].
32
(2020) 8 SCC 1
33
(1992) Supp (3) SCC 217 [Justice Reddy,803];[Justice Sawant, 524 and 525]
16
PART A
class of citizens. The provisions of Articles 341, 342, and 342A are pari
materia. That being the case, this Court has to analyse how a contrary
conclusion to the effect that sub-classification is permissible within the
Backward Class but not within the Scheduled Castes, could be reached.
In Indra Sawhney (supra) the phrase “Backward Classes” in Article
16(4) was interpreted to include both socially and educationally
backward classes and the Scheduled Castes and Scheduled Tribes;34
b. The Scheduled Castes are not a homogenous class 35. Preferential
treatment can be given to the most downtrodden of the class who are
not adequately represented. Such a sub-classification is made to provide
equality of opportunity, so as to achieve the purpose of reservation;36
c. It would be open to the State, under Article 16(4), to grant the benefits
of reservation on a rational basis to certain castes within the Scheduled
Castes by fixing a reasonable quota of the reserved seats for them if
they are inadequately represented;37 and
34
(2020) 8 SCC 1 [42]
35
Relied on the observation of Justice Reddy in Indra Sawhney (supra)
36
(2020) 8 SCC 1 [50]
37
(2020) 8 SCC 1 [52, 56]
17
PART B
d. Preferential treatment to certain castes would not lead to the exclusion
of other castes from the list prepared under Article 341 38. In Jarnail
Singh v. Lachhmi Narain Gupta 39, this Court observed that the
exclusion of the “creamy layer” from the Scheduled Castes for securing
the benefit of reservation does not tinker with the Presidential List under
Article 341. All the castes included in the list of Scheduled Castes are
given the benefit of reservation even if they are sub-classified.
B. Submissions
19. The submissions of the counsel were restricted to the issue of whether the
judgment of this Court in Chinnaiah (supra) requires to be reconsidered since
the High Court had held that the Punjab Act and the Haryana Notification were
unconstitutional solely for the reason that they are contrary to the above
judgment.
i. Submissions of Petitioners
20. Mr Gurminder Singh, Advocate General for the State of Punjab and Mr
Shadan Farasat, Additional Advocate General made the following
submissions:
a. The judgment in Chinnaiah (supra) erroneously treats the Scheduled
Castes as an indivisible monolith/block;
38
(2020) 8 SCC 1 [35]
39
(2018) 10 SCC 396
18
PART B
b. Preferential treatment promotes substantive equality. Chinnaiah(supra)
is against the very idea of reservations which mandates protective
discrimination based on relative backwardness;
c. Justice SB Sinha’s judgment in Chinnaiah (supra) is self-contradictory.
While it recognizes inter-se disparity among the Scheduled Castes, it
holds the remedy to address this disparity to be unconstitutional. Once
inter-se disparity is acknowledged, sub-classification of the class would
be in pursuance of substantive equality;
d. The State has the power to sub-classify because the enabling power to
reserve seats includes ancillary and supplemental provisions such as
preferences, concessions and exemptions;
e. In Indra Sawhney (supra) this court has recognised internal differences
between castes. 40 Sub-classification within a class aligns with the
opinion of Justice Mathew in NM Thomas (supra) holding that further
classification within the class was possible; 41
f. The Scheduled Castes are not a homogenous group but face varying
degrees of discrimination. The first part of the obligation under Article
16(4) to ascertain backwardness has been accomplished by the
President and subsequently, by the Parliament under Article 341. The
second part of the enquiry about ‘inadequate representation’ is a
40
Relied on Indra Sawhney (supra) [Justice Reddy, 802].
41
Relied on NM Thomas (supra) [Justice Mathew, 43]
19
PART B
mandate for the States. If the Scheduled Castes list were to be treated
as a monolith, it would render the second part of Article 16(4) otiose and
make the role of the States redundant;
g. Sub-classification varies from the creamy layer principle since (i)
economic advancement does not offset social discrimination faced by
the Scheduled Castes; (ii) while the creamy layer excludes the socially
advanced, sub-classification aims to identify within the Scheduled
Castes, those who face the maximum social discrimination; (iii) sub-
classification mainstreams certain castes and creates a preference
based on qualitative inclusion, contradistinguished from exclusion of the
creamy layer; and (iv) preferential treatment identifies certain castes
within the Scheduled Castes’ list, while the creamy layer exclusion
applies to individuals;
h. Scheduled Castes do not lose their identity once enumerated because
caste is a sociological reality while the enumeration in the list is through
the operation of a legal fiction. The limited preference to some groups
by sub-classification because of their relative disadvantage will not
exclude the other Scheduled Castes in the List notified under Article 341;
i. The State Legislatures have the legislative competence to make
preferences for the purposes of laws in relation to Entry 41 of List II and
Entry 25 of List III of the Seventh Schedule; and
20
PART B
j. Article16(4) is not subject to Article 335. ‘Efficiency’ under Article 335
must be defined in an inclusive sense.
21. Mr Kapil Sibal, senior counsel made the following submissions:
a. The Constitution permits sub-classification. Article 366(34) which
defines the Scheduled Castes envisages that even a part of a caste or
a group may be included;
b. While Justice Mathew in NM Thomas (supra) noted that “they are no
castes in the Hindu fold but an amalgam of castes …”, in Chinnaiah
(supra), Justice Hegde replaced “they” with “there” in the above
paragraph and noted instead, “there are no castes…”. This replacement
completely alters the meaning of the quotation in NM Thomas (supra)
which was that the Scheduled Castes and Scheduled Tribes are a
conglomeration of groups placed outside of the caste hierarchy, and not
that Scheduled Castes/Scheduled Tribes are homogenous 42;
c. When Dr. B R Ambedkar stated in the Constituent Assembly that Article
341 is meant to “eliminate any kind of political factors” in “disturbing” the
List, he was referring to inclusion and exclusion from the List. Sub-
classification has no bearing on the power of inclusion and exclusion.
Potential political tinkering cannot obviate the present constitutional
need for acknowledging and remedying inter-se inequality among the
Scheduled Castes;
42
Chinnaiah (supra) [Justice Hegde, 22] relying on NM Thomas (supra) [Justice Iyer, 135]
21
PART B
d. Article 342A of the Constitution inserted by the Constitution (One
Hundred and Second Amendment) Act 2018 empowers the President to
notify socially and educationally backward classes. This Article is pari
materia to Article 341 and Article 342. Sub-classification is permissible
for Schedule Castes because Indra Sawhney (supra) permits sub-
classification for the Socially and Educationally Backward Classes and
after the inclusion of Article 342A, they are at par with the Scheduled
Castes; and
e. Chinnaiah (supra) is not in line with empirical data collected by the
State. According to the view of Justice Reddy in Indra Sawhney
(supra) 43, several castes or tribes within the Scheduled Castes and
Scheduled Tribes are not similarly situated.
22. Mr Shekhar Naphade, senior counsel appearing on behalf of the State of
Tamil Nadu submitted that:
a. Chinnaiah (supra) does not provide connecting links between Article
341 and subclassification. The plain meaning of Article 341 does not limit
the power of the State legislature to classify the listed Scheduled Castes;
and
43
Relied on Indra Sawhney (supra) [Justice Reddy, 795].
22
PART B
b. Classification based on inter-se backwardness is in pursuance of Article
14. This inter-se backwardness is not among individuals but among
groups in the Scheduled Castes. Indra Sawhney (supra) is applicable
to sub-classification of the Scheduled Castes.
23. Mr Gopal Sankaranarayanan, senior counsel submitted on behalf of
Intervenor Madiga Jana Seva Samiti that Scheduled Castes or Tribes are not
castes because Article 366(24) uses “deemed”. Article 16(2) uses “only”; thus,
a Scheduled Caste, identified due to historic untouchability, is not “caste”
under Articles 15(1) and16(2).
24. Mr KK Venugopal, learned senior counsel for the Petitioner Madiga
Reservation Porata Samithi submitted that Article 14 does not only mandate
equal treatment to all but also bars discrimination by equal treatment of
unequals. He submitted that Article 38(2) entitles those who are unequal in
status to special treatment to bring them on the same plane. Article 341 has
to be read along with Article 38(2).
25. Mr R Venkataramani, Attorney General of India submitted that Articles 14 to
16 and Articles 341 and 342 operate in different fields. Mere designation
under Article 341 does not entail homogeneity.
26. Mr Tushar Mehta, Solicitor General of India submitted that equality is not a
static concept. It has evolved from the judgment of this Court in Champakam
Dorairajan (supra), to Indra Sawhney (supra). Sub-classification is an issue
of rationalising the affirmative action regime.
23
PART B
27. Mr Nidhesh Gupta, Senior Counsel submitted that adequate representation is
a matter within the subjective satisfaction of the state, subject to
backwardness and inadequacy of representation. Courts cannot scrutinize
underlying data to reach that satisfaction of the state. Since Article 16(4)
refers to “backward classes of citizens” collectively, Scheduled Castes are at
par with the Backward Classes. Article 16(4) is a broader provision that
Articles 15 (4) and 15(5). While Articles 15(4), 15(5) refer to “any special
provisions for the Scheduled Castes..”, Article 16(4) uses “..any backward
class of citizens”. The use of “any” in Article 16(4), as opposed to the use of
the word “the” to qualify the beneficiary classes in Articles 15(4) and 15(5),
indicates that there is a greater discretionary power under Article 16(4).
28. Mr Vijay Hansaria, Senior Counsel submitted that the List under Article 341 is
not a constitutional provision in itself, but an executive order passed by the
President that can be modified by Parliament.
29. Dr S Muralidhar, Senior Counsel appearing on behalf of the State of Andhra
Pradesh submitted that the State has not enacted a new law consequent to
the decision in Chinnaiah (supra).
30. Mr Arun Bhardwaj, Senior Counsel appearing on behalf of the State of
Haryana submitted that there are disadvantaged groups within the Scheduled
Castes and the State should be allowed to alleviate their concerns.
31. Mr Kanu Agarwal, standing counsel for Chandigarh submitted that affirmative
action can be summarized as a two- step process including identification
24
PART B
(Articles 341 and 342) and extension (i.e. how affirmative action can be
undertaken).
32. Ms Shraddha Deshmukh, counsel submitted that rights cannot be bundled up
for the unequal members of the Scheduled Castes, without ensuring that the
rights accrue to them in proportion to their lack of representation. Sub-
classification is therefore, essential for better representation of the weaker
among the Scheduled Castes.
33. Mr Dama Sheshadri Naidu, Mr Rajesh Kumar Khanna, Mr Sidharth Luthra,
senior counsel, and Dr Vivek Sharma, Mr Shivam Singh and Mr Sanjay Jain,
counsel appearing on behalf of other Petitioners and Intervenors have
adopted the above submissions.
ii. Submissions of Respondents
34. Mr Manoj Swarup, senior counsel made the following submissions:
a. The Scheduled Castes constituted by a notification issued by the
President under Article 341(1) are a class in themselves. The latter part
of Article 341(2) stipulates that no variation to the List is permitted except
by a law enacted by Parliament. The class constituted by the
Presidential notification can be interfered with only by Parliament under
Article 341(2). As is evident from the Constituent Assembly debates on
Article 341, Parliament is solely vested with the power to alter the
Presidential list otherwise, the executive would tinker with the list to
achieve political ends;
25
PART B
b. Upon the issuance of a notification by the President under Article 341,
the castes notified are deemed to be Scheduled Castes for the purposes
of the Constitution. The castes which are included in the Presidential list
under Article 341 are heterogenous. However, once notified, the castes
are put in an artificial mould of homogeneity by the deeming fiction;
c. The necessary effect of the preferential treatment to Balmiki Sikhs and
Mazhabis in the fifty percent seats reserved for Scheduled Castes in
Punjab is that the persons belonging to other Scheduled Castes are
excluded from those seats;
d. None of the entries in the Seventh Schedule deal with Scheduled
Castes. The only entry under which a law on reservation for the
Scheduled Castes can be enacted is Entry 97 of List I. Thus, even if sub-
classification of the Scheduled Castes is permissible, only Parliament
and not the Legislature of the State has the power to enact such a law;
e. The National Commission for Scheduled Castes constituted under
Article 338 can consider any new data sets or experiences of the
Scheduled Castes and make recommendations. However, the power to
alter the list solely vests with Parliament;
f. Courts through a judicial exercise cannot include or exclude any caste
from the list of Scheduled Castes or Scheduled Tribes notified by the
President 44;
44
Bhaiyalal v. Harikishan Singh, (1965) 2 SCR 877; State of Maharashtra v, Milind, (2001) 1 SCC 4; Bir
Singh v. Dekhi Jal Board, (2018) 10 SCC 312
26
PART B
g. Classification within the Scheduled Castes is based on caste which is
impermissible by virtue of Article 16(2); and
h. Contrary to the submissions of the petitioners, Chinnaiah (supra)
discusses the interplay between Articles 16(4) and 341 of the
Constitution.
35. Mr Salil Sagar, senior counsel made the following submissions:
a. The direct impact and effects standard 45 must be used to decide the
issue of whether granting preference to certain castes amounts to
tinkering the Presidential List. Sub-classification, in effect, restricts the
scope and operation of the Presidential list in the following manner:
i. It has an exclusionary effect, disturbing the scheme of reservation
sought to be implemented;
ii. It disproportionately increases the share of reservation available to
certain communities and decreases the share available to the rest
of the communities; and
iii. The sub-grouping of castes violates the legal fiction in Article 341
by which a homogenous group is created for the purposes of the
Constitution.
b. In Indra Sawhney (supra), this Court held that sub-classification of other
backward classes is constitutionally valid. This Court cautioned against
45
Relied on IR Coelho v. State of Tamil Nadu, (2007) 2 SCC 1
27
PART B
the application of the same principles to Scheduled Castes and
Scheduled Tribes; and
c. Sub-classification of the Scheduled Castes cannot be held constitutional
merely because Articles 341, 342 and 342-A are pari materia. The
classes represented by the Scheduled Castes and the Other Backward
Classes are distinct. Castes which are notified as Scheduled Castes
have a feature of commonality; they all suffer from the historical injustice
of untouchability.
36. Dr KS Chauhan, senior counsel made the following submissions:
a. In Indra Sawhney (supra), this Court held that a caste can be a class
for the purposes of reservation under Article 16 if the caste is socially
and educationally backward 46; and
b. In Indra Sawhney (supra), Justice Jeevan Reddy observed that Article
16(4) of the Constitution mainly contemplates that reservation must be
on the grounds of social backwardness. There cannot be any further
classification of the Scheduled Castes since all the castes which are
notified as Scheduled Castes by the President share the commonality of
social backwardness in the form of untouchability.
46
(1992) Supp (3) SCC 217 [Justice Pandian, 57,60,67,82,95]; [Justice Jeevan Reddy, 782,784]
28
PART B
37. Mr Sanjay Hegde, senior counsel made the following submissions:
a. This Court in the judgments delivered after Indra Sawhney (supra) has
observed that it was limited in its application to Other Backward
Classes 47;
b. In State of Kerala v. NM Thomas 48, this Court held that the Scheduled
Castes constitute a class in themselves. Similar observations were
made in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India 49;
c. The notification issued by the President under Article 341 can be altered
only by law made by Parliament 50;
d. States must confer the benefits to members of all the castes notified by
the President under Article 341. If the State Government is of the opinion
that benefits are not required to be conferred to the caste, then it can
make a recommendation for its exclusion from the list of Scheduled
Castes; and
e. The purpose of conferring Parliament with the power to alter the list
issued by the President under Article 321 is to prevent the tinkering of
the list for political purposes.
47
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 [293, 393, 633]; Jarnail Singh v. Lachhmi Narain
Gupta, (2018) 10 SCC 396 [16, 24, 34]
48
(1976) 2 SCC 310
49
(1981) 1 SCC 246
50
Relied on B. Basavalingappa v. D. Munichinnapa, (1965) 1 SCR 316; Bhaiya Lal v. Harikrishnan Singh,
(1965) 2 SCR 877; Srish Kumar Chodhury v. State of Tripura, 1990 Supp SCC 220; Palghat Jilla Than dan
Samudhya Samrakshna Samiti v. State of Kerala, (1994) 1 SCC 359; State of Maharashtra v. Milind, (2001)
1 SCC 4 [15]; Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312
29
PART B
38. Mr Mallela Venkata Rao, counsel submitted that the opinion of Justice SB
Sinha in Chinnaiah (supra) that other forms of affirmative action must be
employed to remedy inter-se backwardness within the Scheduled Castes is
the appropriate and constitutional approach.
39. Mahendra Kumar Mitra, Petitioner-in-person appearing on behalf of Dr.
Ambedkar Scheduled Castes Federation, Karnataka submitted that the
recommendation of the Justice Usha Mehra Committee to include Clause (3)
to Article 341 providing Parliament the power to sub-categorize castes upon
a resolution received from the State was not accepted by the National
Commission for Scheduled Castes 51.
40. Anusuchit Jaati-Janjati Adhikari Evam Karamchari Sangh, a social welfare
association submitted that sub-classification of the Scheduled Castes defeats
the purpose of providing special reservation to Scheduled Castes.
41. Mr Saket Singh, appearing for the Haryana Pradesh Chamar Mahasabha,
submitted that the deeming fiction in Article 341 creates a common identity of
Scheduled Castes even though each caste within the list possesses a unique
identity. Counsel further submitted that the Constitution would expressly
provide a provision for the special treatment of certain castes where
necessary.
51
3rd meeting of the National Commission for Scheduled Castes held on 13.12.2010 under the Chairmanship
of Dr PL Punia.
30
PART C
42. Mr Vembadi Subramanian and Mr VK Biju, counsel, made submissions on
the same lines.
C. Issues
43. The Constitution Bench has to adjudicate upon whether the sub-classification
of Scheduled Castes for the purpose of providing affirmative action, including
reservation is valid. In this context, the following issues arise for
consideration:
a. Whether sub-classification of a reserved class is permissible under
Articles 14, 15 and 16;
b. Whether the Scheduled Castes constitute a homogenous or a
heterogenous grouping;
c. Whether Article 341 creates a homogenous class through the operation
of the deeming fiction; and
d. Whether there any limits on the scope of sub-classification.
31
PART D
D. Analysis
i. The jurisprudence on reservation
44. The jurisprudence surrounding reservations has undergone turbulations, both
inside and outside the courts. Two crucial issues have dominated the
jurisprudential debate – identifying the model of equality espoused by the
Constitution and the interplay of equality with ‘efficiency’ or ‘merit’. It is
important that we trace the core principles governing reservations in India
before we proceed to answer the issue of whether sub-classification of the
Scheduled Castes is violative of Articles 14,15 and 16. This would enable us
to analyze whether sub-classification furthers the constitutional promise of
equality.
a. Reservation as an exposition of substantive equality
45. The purpose of the equal opportunity principle in Article 16(1) and the
reservation provision in Article 16(4) has emerged as a focal point of the
jurisprudence on reservations in this Court. A discussion of the journey of the
competing models of equality that the Court has espoused and their evolution
over the course of the years is necessary to understand the constitutional
vision on equality.
I. The competing visions of equality
46. Articles 14, 15 and 16 of the Constitution encompass an equality code in
pursuance of the preambular values of equality of status and opportunity and
32
PART D
social justice. Article 14 lays down general principles governing equality by
postulating that there must be “equality before the law” and “equal protection
of law”. In its formative years, this Court interpreted Article 14 through the lens
of the classification doctrine 52 which is premised on the recognition that formal
equality in law, by which every person irrespective of their circumstances is
treated alike, does not translate to factual equality. The underlying foundation
of this doctrine is that two persons who are not similarly situated cannot be
treated alike. 53
47. Articles 15(1) and 16(1) were viewed as an elucidation of the equality principle
housed in Article 14. 54 However, the Courts were reticent in applying the
doctrine of reasonable classification and its underlying assumption that ‘not
all persons (and not all situations) are alike’ to the realm of reservation. The
reason for the hesitation was that the means adopted (that is, reservation)
were understood to not have relevance to securing equality of opportunity
which was defined in terms of formal equality and efficiency55. In the State of
Madras (now Tamil Nadu), seats in Medical and Engineering colleges were
apportioned among different groups in the proportion set forth in a
Government Order called the “Communal GO”. Seats were apportioned in
specific proportions for Non-Brahmins (Hindus), Backward Hindus, Brahmins,
Harijans, Anglo-Indians, Christians and Muslims. 56 In State of Madras v.
52
See State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75
53
Chiranjit Lal Chowdhury v. Union of India, 1950 SCC 833 [38,39]
54
Chiranjit Lal Chowdhury v. Union of India, 1950 SCC 833 [38,39]
55
General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; CA Rajendra v. Union of India, AIR
1968 SC 507
56
Non-Brahmin (Hindus): 6; Backward Hindus: 2; Brahmins: 2; Harijan: 2, Anglo-Indians and Indian
Christians (1); Muslims: 1.
33
PART D
Champakam Dorairajan 57, a Constitution Bench of this Court held the
reservation of seats in educational institutions on that basis to be
unconstitutional and violative Article 29(2) which stipulates that no citizen
shall be denied admission in any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race,
caste, language, or any of them. The Court observed that Article 29 does not
contain an exception clause such as Article 16(4) which would permit
reservation of seats in educational institutions.
48. The State of Madras also notified that vacancies to the post of District Munsif
would be filed on the basis of the Communal GO. In B Venkataramana v.
The State of Madras 58, reservation of seats in services based on the
Communal GO was challenged. The Constitution Bench observed that Article
16(4) permits the State to make provisions for ‘backward classes’ in the
services if they are not adequately represented in the opinion of the State and
that only Harijans and the backward Hindus can be considered as ‘backward
classes’. The denial of admission to seats other than those reserved for
Harijans and Backward Hindus, it was observed, would be a discrimination
based on “caste,” violating Articles 16(1) and 16(2).
49. The above judgments adopted a formalistic and reservation-limiting approach
in the reading of the constitutional provisions. In this approach, reservation
was viewed as an exception to the principle of equal opportunity in Articles
15(1) and 16(1). This Court had recognized the principle of reasonable
57
1951 SCR 525
58
AIR 1951 SC 229
34
PART D
classification in Article 14 before the decision in Champakam Dorairajan
(supra). However, it did not transpose the principle to the realm of
reservation. 59 Even in Venkataramana (supra), this Court held that
reservation in services is permissible only because the Constitution expressly
provides for it. Reservation or any other form of affirmative action was
regarded as antithetical to the equality principle and not a re-statement of it.
50. The Constitution was amended by the Constitution (First Amendment) Act
1951 to include Clause (4) in Article 15 to overcome the judgment in
Champakam Dorairajan (supra). Despite the inclusion of Article 15(4), a
formalistic reading of the equality code continued. In Balaji v. State of
Mysore 60, this Court observed that Articles 15(4) and 16(4) are special
provisions (or in other words, an exception to the principle of equality) while
prescribing a cap of fifty per cent on the total seats to be reserved. It was in
NM Thomas v. State of Kerala, 61 that this Court undertook an expansive and
substantive reading of the equality code. In that case, proceedings were
instituted for challenging the constitutional validity of Rule 13AA of the Kerala
State and Subordinate Services Rules 1958 by which the qualifying criteria
was relaxed for candidates belonging to the Scheduled Castes and
Scheduled Tribes. The majority constituting the seven-Judge Bench
interposed the principle of reasonable classification in Article 14 to Article
16(1)62 and observed that Article 16(4) is not an exception to the principle of
59
Article 15(4) was included in the Constitution by the Constitution (First Amendment) Act 1951 to overcome
the judgment in Champakam Dorairajan.
60
AIR 1963 SC 649
61
(1976) 2 SCC 310; the seeds of the expansive approach were sowed by Justice Subba Rao in T
Devadasan.
62
(1976) 2 SCC 310 [Ray CJI, 21]
35
PART D
equality of opportunity. Article 16(4), in the opinion of the Court, clarifies and
explains the principle in Article 16(1). 63 Chief Justice Ray observed that Article
16(1) will not be violated when the rule ensures “equality of representation in
the services for unrepresented classes after satisfying the basic needs of
efficiency of administration”.64 Chief Justice Ray’s opinion rests on two
conceptual foundations. First, the goal of Article 16(1) is to ensure equality of
representation while maintaining efficiency of service; and second, the
beneficiaries must be the unrepresented class. Equality of opportunity was
framed in the language of equal representation subject to these two caveats.
Justice K K Mathew adopted a different approach. The learned Judge broke
down the conceptual foundation of the equality provision in the following
manner:
a. A criterion which is relevant to the apportionment of the good (that is,
services) must be adopted 65;
b. It must be determined if the relevant criterion leads to an a priori
exclusion of a certain class. The State is required to identify if persons
of all classes have an equal chance of satisfying the chosen criteria 66;
and
63
(1976) 2 SCC 310 [Ray CJI, 37]
64
(1976) 2 SCC 310 [Ray CJI, 45]
65
(1976) 2 SCC 310 [Justice Mathew, 55]
66
(1976) 2 SCC 310 [ Justice Mathew, 58-59]
36
PART D
c. There is a violation of the right to equal opportunity if the relevant
criterion leads to a priori exclusion. In that case, a compensatory
provision must be made to offset the disadvantage. 67
51. In his concurring opinion, Justice Krishna Iyer observed that when two
interpretations of Article 16(1) are available, that which ensures equal
participation and fair representation in administration must be chosen. 68
52. Thus, at the end of the first phase, it was clarified that the Constitution
espouses a substantive vision of equality where reservation is not an
exception but, as Justice Krishna Iyer observed in NM Thomas (supra), an
“illustration of constitutionally sanctified” classification 69. However, the Judges
varied on the purpose of Article 16(1). While Chief Justice Ray defined
equality in opportunity in terms of equality in representation and efficiency of
service, Justice Mathew defined it in terms of equality in representation of the
backward class. Additionally, Chief Justice Ray identified the beneficiary class
as the ‘unrepresented’ class without laying down the basis of the under-
representation. Justice Mathew on the other hand, identified the beneficiary
class not merely on the basis of under-representation but on the cause for
under-representation. It was this difference in the opinions that brooded over
the post-NM Thomas era. In the subsequent section, we will discuss the
impact of Chief Justice Ray’s reading of the principle of efficiency into Article
16 on the scope of reservation policies.
67
(1976) 2 SCC 310 [ Justice Mathew, 74]
68
(1976) 2 SCC 310 [Justice Krishna Iyer, 120]
69
(1976) 2 SCC 310 [Justice Krishna Iyer, 136]
37
PART D
II. The “efficiency” of reservation
53. The expansive reading of the constitutional ideal of equality, noticed above,
was not sufficient to realize the full potential of affirmative action. A barrier
was raised through Article 335. Article 335 emphasizes that the State shall
maintain efficiency of administration while deciding the claims of the
Scheduled Castes and the Scheduled Tribes in appointments to services. 70
This Court, while deciding the following four important questions relating to
reservations, placed considerable emphasis on the efficiency of service to
limit the scope of reservation:
a. Whether reservation is limited to initial appointment;
b. If reservation is extendable to promotions, the method to be employed
to ascertain seniority;
c. Whether lowering the standard of evaluation for backward classes
violates the equal opportunity principle in Article 16; and
d. The permissible method for calculating vacancies to be filled through
reservation.
The central theme that governed these four issues was whether the expansion of
the scope of reservations would dilute the overall efficiency of the service.
70
335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into
consideration consistently with the maintenance of efficiency of service, in the making of appointments to
services and posts in connection with the affairs of the Union or of a State. Provided that nothing in this article
shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled
Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for
reservation in matters of promotion to any class or classes of services or posts in connection with the affairs
of the Union or of a State.
38
PART D
54. In General Manager, Southern Railway v. Rangachari 71, the issue was
whether Article 16(4) permits reservations in promotions. Writing for the
majority of the Constitution Bench, Justice Gajendragadkar observed that
though reservations in promotions are detrimental to “efficiency”, a reading of
Article 16(4) to include reservations in promotions would further substantive
equality 72:
“27. It is true that in providing for the reservation of
appointments or posts under Article 16(4) the State has
to take into consideration the claims of the members of
the backward classes consistently with the
maintenance of the efficiency of administration. It must
not be forgotten that the efficiency of administration is
of such paramount importance that it would be unwise
and impermissible to make any reservation at the cost
of efficiency of administration. That undoubtedly is the
effect of Article 335. Reservation of appointments or
posts may theoretically and conceivably mean
some impairment of efficiency; but the risk involved
in sacrificing efficiency of administration must always
be borne in mind when any State sets about making a
provision for reservation of appointments or posts.”
(emphasis supplied)
55. Both the majority and the minority (consisting of Justice Wanchoo and Justice
Ayyangar) agreed that reservations impair the efficiency of administration.
The learned Judges belonging to the minority only disagreed on the balance
which must be drawn between reservation and efficiency of service. Justice
71
(1962) 2 SCR 586
72
(1962) 2 SCR 586 [27]; See Article 335 which provides that that the claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State. The majority in Rangachari (supra), interpreted the
phrase “matters relating to employment” as it occurs in Article 16(1) to also include promotion. The next issue
which fell for the consideration of the Court was whether Article 16(4) covers promotion because the provision
only uses the phrases “appointments or posts”. This Court held that the phrase “posts” would - as held by
the High Court - not mean ex-cadre posts but posts in the services under the State because any other
interpretation would be contradictory to the purpose of Article 16(4) which is to ensure adequate
representation.
39
PART D
Gajendragadkar observed that though reservations in promotion will impair
efficiency of administration, the social benefit of reservation will trump the cost
of the impairment. Justice Wanchoo and Justice Ayyangar disagreed.
According to the minority, an interpretation of Article 16(4) to include
reservation in promotion would be contrary to the principles set out in Article
335. 73 Similarly, in CA Rajendran v. Union of India,74 this Court observed
that restricting reservations only to Class III and Class IV posts was justified
because Class I and Class II posts require candidates with higher efficiency
which would not be achieved if promotional posts are reserved.75
56. The judgment in Rangachari (supra) was overruled in Indra Sawhney
(supra). In Indra Sawhney (supra), this Court adopted the approach of the
minority in Rangachari (supra), holding that reservations in promotions would
dilute efficiency in administration. 76 By the Constitution (Seventy-seventh
Amendment) Act 1995, Parliament amended the Constitution to include
Clause (4-A) into Article 16 permitting reservation for the Scheduled Castes
and the Scheduled Tribes in promotion.
57. The issue whether members of the Scheduled Castes and Scheduled Tribes
should be considered senior to candidates of the general category (who were
senior to the candidates of the reserved category in the feeder category) 77
when they are being considered for subsequent promotion arose before this
73
(1962) 2 SCR 586 [Justice Wanchoo, 35]; [Justice Ayyangar, 41]
74
AIR 1968 SC 507
75
AIR 1968 SC 507 [9]
76
1992 Supp (3) SCC 217 [Justice Reddy, 827, 828]; [Justice Thommen,302]; [Justice Sawant,552]
77
The service rule by which the general category retains their seniority is called the catch-up rule. The service
rule by the seniority is measured based on the feeder pool is called consequential seniority.
40
PART D
Court. In Union of India v. Virpal Singh Chauhan 78, this Court held that
though the catch-up rule is not implicit in Article 16, it is a constitutionally valid
practice to maintain “efficiency”. 79 This was reiterated in Ajit Singh (I) v. State
of Punjab 80. Justice NP Singh, writing for the three-Judge Bench observed
that the process of appointments must balance both Article 16(4) and Article
335 and that the “principal object of a promotion system is to secure the best
possible incumbents for the higher position”. 81 Subsequently, Parliament
amended Article 16(4-A) by the Constitution (Eighty-fifth Amendment) Act
2001 to overcome a series of judgments of this Court where the rule of
consequential seniority in reservation was held to result in reverse-
discrimination. Article 16(4-A), as amended by the Constitution (Eighty-fifth
Amendment) Act 2001, enables the State to provide reservation in promotion
with consequential seniority.
58. In Indra Sawhney (supra), Justice Jeevan Reddy writing for four Judges
observed that relaxation of qualifying marks in promotion would result in
inefficiency of administration. This position was reiterated by a two-Judge
Bench in S Vinod Kumar v. Union of India 82. A proviso was included in
Article 335 by the Constitution (Eighty-second) Amendment Act 2000 to
overcome this aspect of the ruling in Indra Sawhney (supra) and Vinod
Kumar (supra). The proviso provides that Article 335 does not prevent the
78
(1995) 6 SCC 684
79
Also see Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209
80
(1996) 2 SCC 715; “it cannot be overlooked that at the first promotion from the basic grade, there was no
occasion to examine their merit and suitability for the purpose of promotion.”
81
(1996) 2 SCC 715 [15]
82
(1996) 6 SCC 580
41
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State from relaxing the qualifying marks in any examination for reservation in
promotion.
59. The method for calculating the permissible total percentage of reservation
was another issue in which the “efficiency of administration” was used to limit
the scope of reservation. This Court had held in Balaji (supra) and Indra
Sawhney (supra) that reservation must not exceed 50 per cent. The State
was faced with a peculiar situation where a sufficient number of persons from
the reserved category was not available to fill the seats reserved for them.
The issue was whether the unfilled seats of the reserved category could be
carried over to the next year, and whether the carried forward vacancies could
be counted while calculating the total percentage of reserved seats in that
year.
60. In T Devadasan v. Union of India 83, the majority held that a carry forward of
the unfilled vacancies of the reserved category to the next year will abrogate
the equal opportunity principle and impair efficiency. Justice Subba Rao while
dissenting, advocated for a harmonious reading of Articles 16, 46 and 335.
Laying the groundwork for the jurisprudential development in NM Thomas
(supra), the learned Judge observed that the phrase “any provision” in Article
16(4) is wide enough to include the carry forward rule. The observation of the
majority that carrying forward the vacancies to the subsequent year is
contrary to the equal opportunity principle was line with the judgment in Balaji
(supra) because the judgment was delivered in the pre-NM Thomas (supra)
83
(1964) 4 SCR 680
42
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era. However, besides the narrow interpretation of the equal opportunity
principle, the concept of “efficiency” also weighed with the Court.
61. By the Constitution (Eighty-first) Amendment Act 2000, the Constitution was
amended to include Article 16(5) by which the States are permitted to carry
forward the unfilled seats of the reserved category to be filled up in the
succeeding years. The challenge to the constitutional validity of Article 16(4-
A) and 16(4-B) was rejected by the Constitution Bench in M Nagaraj v. Union
of India 84 where it was held that the efficiency of administration is only relaxed
and not “obliterated” by the inclusion of Articles 16(4-A) and 16(4-B). 85
62. As is evident from the discussion above, the jurisprudence in the second
phase on questions involving the scope of reservation, evolved around the
idea that reservation dilutes the efficiency in administration or to put it
otherwise, reservation is anti-merit. The Constitution was amended to
overcome this Court’s holding on each of the above issues, thereby
overhauling the premise that reservation does not ensure efficiency in service.
The Constitution, after the numerous turbulations within each of the issues
traced, today advances a more substantive reading of the equality provision,
expanding the sphere and the scope of reservation to ensure that the benefits
trickle down to those who need it the most. However, traces of the friction
between merit and reservation continue to persist even after the amendments
to Articles 16 and 335. 86 This Court has, with a few divergences 87, continued
84
(2006) 8 SCC 212
85
(2006) 8 SCC 212 [108]
86
Nagaraj v. Union of India, (2006) 8 SCC 212
87
Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka, (2019) 16 SCC
129
43
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to uphold the binary of merit and reservations. The understanding of the
Courts at the end of this phase was that the scope of reservation must be
expanded to ensure substantive equality in spite of its dilution of efficiency 88,
thereby continuing to read the requirement of efficiency into Article 16(4).
III. The interplay of Article 16 and Article 335
63. In this section, we will discuss whether the principle in Article 335 must be
read as a limitation on the power of the State to provide reservations under
Article 16. Article 335 provides that the claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services. The proviso to the
Article states that the provision shall not prevent the “relaxation of qualifying
marks in any examination or lowering the standards of evaluation”, for
reservation of the Scheduled Castes and the Scheduled Tribes in matters of
promotion.
64. Reservations under Article 16(4) are not restricted to the Scheduled Castes
and Scheduled Tribes. The provision provides the State with the enabling
power to provide reservations for the “backward classes” which are not
adequately represented in the services of the State. The “backward class”
encompasses more than the Scheduled Castes and the Scheduled Tribes. It
encompasses all classes whose backwardness is attributable to social
88
See General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; T Devadasan v. Union of India,
(1964) 4 SCR 680 [Justice Subba Rao, 32]
44
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reasons. 89 This includes other socially and educationally backward classes
such as the Other Backward Class category, women and the disabled.
65. Applying the additional requirement of “efficiency of administration” only with
respect to the exercise of power under Article 16(4) vis-à-vis the Scheduled
Castes and the Scheduled Tribes would be discriminatory. Reading this
requirement into Article 16(4) assumes that a dilution of the principle of
efficiency in administration is the necessary effect of reservation for the
Scheduled Castes and Scheduled Tribes while the same standard is not
applied to reservations for Other Backward Classes. Though this Court has
not expressly stated so in as many words, efficiency of administration was
added as a requirement for the exercise of power under Article 16(4) to
prevent discrimination between the Scheduled Castes/Scheduled Tribes and
other Socially and Educationally Backward Classes. If the requirement of
efficiency of administration in Article 335 was not read into Article 16, then the
requirement would only apply to reservations for the Scheduled Castes and
the Scheduled Tribes but not for the reservation of other socially backward
beneficiary classes. 90
66. However, such an interpretative exercise (that is, applying the principle of
efficiency of service to restrict the power of the State to provide affirmative
action policies) is contrary to the express language of Article 335 which is
confined to the Scheduled Castes and the Scheduled Tribes. The preliminary
89
See Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [116,117,492,788, 859(3)(e)]
90
The opinion of Justice Sawant in Indra Sawhney (supra), highlights this aspect:” 434: […] It cannot,
however, be doubted that the same considerations will have to prevail while making provisions for reservation
in favour of all backward classes under Article 16(4). To hold otherwise would not only be irrational but
discriminatory between two classes of backward classes.”
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error is that the requirement of efficiency of administration was viewed as an
additional requirement and a roadblock to reservation provisions. Efficiency
was not understood as a facet of the principle of equal opportunity.
67. The meaning of the phrase “efficiency” as it occurs in Article 335 must be
determined to take this argument to its logical conclusion. Though the
Constitution does not define the phrase, the proviso to the Article offers
interpretative guidance. The proviso states that “relaxation in qualifying marks
in any examination or lowering the standards of evaluation” does not amount
to a reduction in the efficiency of administration. There can be two possible
deductions about the scope of the provision, based on a reading of the
proviso. One possible meaning that can be deduced is that marks in the
qualifying examination are not a marker of efficiency of administration
because if they were, then a reduction of the qualifying standards/marks
would also lead to a reduction in efficiency. Another possible interpretation
could be that the premise of the proviso is that while reduction or dilution of
the evaluating standards or the qualifying marks is not inconsistent with
maintenance of efficiency, a complete removal of the qualifying marks would
be. 91 Even if the latter interpretation is accepted, it only goes to establish that
securing higher marks in an examination does not contribute to higher
efficiency and that securing a minimum mark (and not the highest) in the
examination is sufficient to maintain efficiency of administration. Thus, a
91
See Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [835]; M Nagaraj v. Union of India, (2006)
8 SCC 212 [108]
46
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policy which allows for lower qualifying marks or standards of evaluation is by
the proviso to Article 335 not contrary to efficiency.
68. The only constitutional provision which refers to an examination for
appointments to posts in services is Article 320 which stipulates that the Union
and State Public Service Commissions must conduct examinations for
appointments to the services of the Union and the State. An examination is
an assessment to determine the proficiency of candidates and their suitability
for the post. The Constitution does not prescribe the exact method of
assessment which must be adopted for the examination. The Constitution
also does not prescribe that the examination must be framed in a manner
which would only assess skill sets accessible to certain classes of people.
The principle of equality in opportunity in Article 16(1) is therefore the guide
for the State while it is determining the method of examination. The
examination or any method of distribution of posts must ensure factual
equality. An examination leads to a priori exclusion if it only assesses the skill
set that is accessible to specific classes. It is to offset this disadvantage that
affirmative action policies are introduced for the distribution of posts.
69. The underlying premise of the decision in NM Thomas (supra) is that the
distribution of public resources including seats in educational institutions and
public services must be based on considerations of equality and justice. Thus,
Article 335 is not a limitation on the exercise of power under Articles 16(1)
and 16(4). Rather, it is a restatement of the necessity of considering the
claims of the Scheduled Castes and the Scheduled Tribes in public services.
47
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Efficiency of administration must not be viewed in terms of the narrow lense
of scores in an examination which a priori excludes certain classes but in
terms of inclusivity and equality as required by Article 16(1).
70. This Court has previously challenged the binary of reservation and merit. In
Devadasan (supra), Justice Subba Rao observed that there is no conflict
between the provisions of Articles 16(4) and 335 and that the latter has no
bearing on the interpretation of the former. Justice Rao observed that the
former provision, is directory while the latter is a mandatory provision by which
the State is required to consider the “claims” 92 of the Scheduled Castes and
Scheduled Tribes. 93 Subsequently, in Vasanth Kumar (supra) Justice
Chinnappa Reddy echoed this view. The learned Judge observed that
reservation cannot be viewed as a conflict between the principles of merit and
distributive justice. It is rather, the conflict between the haves and the have-
nots. 94
71. This line of reasoning was furthered in BK Pavitra (II) v. State of
Karnataka 95, where this Court observed that the assumption of the critiques
of reservation is that awarding opportunities in government services based on
“merit” results in an increase in administrative efficiency. 96 In BK Pavitra (II)
(supra) and Neil Aurelio Nunes v. Union of India 97, this Court highlighted
the folly of measuring “merit” based on the performance of candidates in a
92
Justice Krishna Iyer in NM Thomas (supra) observed that the usage of the phrase ‘claims’ in Article 335
indicates that reservation is a right and not the provision of charity or benevolence. [paragraph 128]
93
(1964) 4 SCR 680 [25]
94
1985 (Supp) SCC 714 [35, 36]
95
(2019) 16 SCC 129
96
(2019) 16 SCC 129 [129]
97
(2022) 4 SCC 1
48
PART D
seemingly “neutral” selection process which is factually not neutral since the
process does not provide equal opportunity to candidates belonging to
classes which face widespread inequalities in accessing facilities required
to ace the examinations. 98 In Neil Aurelio Nunes (supra), a two-Judge Bench
of this Court discussed the privileges that accrue to the advanced classes in
the form of cultural capital which ensures that a child is unconsciously trained
by the familial environment and the economic capital:
“24. […] the privileges that accrue to forward classes
are not limited to having access to quality schooling
and access to tutorials and coaching centres to prepare
for a competitive examination but also includes their
social networks and cultural capital) communication
skills, accent, books or academic accomplishments)
that they inherit from their family. […] Social networks
based on community linkages) become useful when
individuals seek guidance and advice on how to
prepare for examination and advance in their career.”
72. One of us (DY Chandrachud J) writing for the Bench, observed that while
examinations are a convenient method to allocate educational resources,
they are not effective markers of merit, and that merit should be understood
in terms of the social good of equality and inclusivity. 99
73. Before concluding the discussion in this section, we deem it necessary to
discuss the opinion of the nine-Judge Bench in Indra Sawhney (supra) on
the binary of merit and reservation because this Bench sitting in a composition
of seven is bound by the opinion of the larger Bench. The petitioners in that
case argued that the necessary effect of reservation is the appointment of
98
Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1
Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1 [28]; BK Pavitra (II) v. State of Karnataka (2019) 16
99
SCC 129 [131]
49
PART D
less meritorious persons while the respondents argued that marks obtained
in an examination do not represent the inherent merit of the candidate. Justice
B P Jeevan Reddy, authoring the plurality opinion, observed that it is not
necessary to express their view on the competing visions of reservation and
merit. However, the learned Judge observed that reservation is not anti-merit.
The learned Judge made two conceptual observations: first, even if merit is
not synonymous with efficiency in administration, its relevance and
significance cannot be ignored. Reservations imply the selection of a less
meritorious person100; and second, members of disadvantaged sections,
given the opportunity, would overcome the barriers and prove their merit.
74. Applying these two principles, Justice Jeevan Reddy held that: (a) the
removal of minimum marks in qualifying examinations for the backward class
is invalid; (b) there cannot be reservations in promotions101; and (c) there
cannot be any reservation in certain positions of services “where either on
account of the nature of duties attached to them or the level (in the hierarchy)”,
merit alone counts. The learned Judge also proceeded to give a non-
exhaustive list of such positions. The list included technical posts in research
and development organizations/departments/institutions; specialties and
super-specialties in medicine, engineering and other such courses in physical
sciences and mathematics; defense services; posts of professors; airline
pilots; and scientists and technicians in nuclear and space application.
100
Also see, Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420, Justice Khanna in NM Thomas v.
State of Kerala, (1976) 2 SCC 310; Justice Subba Rao in Devadasan v. Union of India, 1964 4 SCR 680
101
The holding that there shall not be reservations in promotions was based on the link between Article 16(4)
and Article 335. See, Justice Reddy [827] and Justice Sawant [552-224]
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Justice Pandian also agreed with this view 102, making it the view of the
majority.
75. Justice Jeevan Reddy recognized that reservation is not anti-merit. Two
constitutional amendments overruled the above aspects of the holding in
Indra Sawhney (supra). These amendments altered the intersection between
the exercise of power under Article 16(4) and Article 335. The Constitution
(Seventy-seventh Amendment) Act 1995 included Article 16(4-A) enabling
the State to provide reservations for the Scheduled Castes and the Scheduled
Tribes in promotions. The Constitution (Eighty-second) Amendment Act 2000
added the proviso to Article 335 stipulating that lowering the standards of
evaluation will not be inconsistent with the maintenance of efficiency. The
amendments recognize the difficulties and struggles faced by members of the
Scheduled Castes and the Scheduled Tribes during promotions. In a formal
sense, the criteria of selection for promotions a priori excludes the members
of the Scheduled Castes and Scheduled Tribes because the criteria which
are considered to be appropriate are not accessible to them. In a more
informal but substantive manner, the members of the Scheduled Castes and
the Scheduled Tribes are often unable to climb up the ladder because of the
stigma of incompetence held against candidates who are selected through
reservation. The stereotype operates against them because they are
externalized as “affirmative action beneficiaries” or “quota candidates”.103 The
amendments recognize the discrimination through the operation of both
102
Justice Pandian in Indra Sawhney, (1992) Supp (3) SCC 217 [243(11)]
103
See Ashwini Deshpande, Double Jeopardy? Stigma of Identity and Affirmative Action, The Review of
Black Political Economy 2019, Vol. 46(I) 38-64
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human conduct and recruitment processes. They are an emphatic repudiation
of the binary of reservation and merit.
ii. Permissibility of sub-classification under Article 14
76. In Chinnaiah (supra), one of the issues was “whether the impugned
enactment creates sub-classification or micro-classification of Scheduled
Castes”. 104 Justice Santosh Hegde, writing for himself and two other Judges
noted that according to the decision in NM Thomas (supra), all the castes in
the list acquired a special status as a ‘class’ and that a classification for the
purpose of reservation already existed. The learned Judge observed that the
Scheduled Castes form a class by themselves and any further classification
would violate the doctrine of reasonableness. 105 Justice Hegde observed that
a class cannot be sub-divided to give more preference to a “miniscule
proportion of the Scheduled Castes in preference to the other members of the
same class”. 106 In his concurring opinion, Justice Sema observed that further
classification of the Scheduled Castes, who constitute a homogenous group
would amount to “discrimination in reverse” and would run contrary to Article
14 107. Justice Sinha observed that the Constitution permitted additional
measures in respect of disadvantaged groups to bring them at par with the
advantaged groups, but the class which requires the benefits of additional
protection, cannot be discriminated inter se when both satisfy the test of
104
Chinnaiah (supra) [Justice Hegde J,32]
105
Chinnaiah (supra) [Justice Hegde,37,43].
106
Chinnaiah (supra) [Justice Hegde,36]
107
Chinnaiah (supra) [Justice Sema, 46-50].
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abysmal backwardness and inadequate representation in public service. 108
Justice Sinha further noted that the state had not discharged the burden of
proving reasonable classification and the nexus of the classification with the
purpose of the enactment. 109
77. In Chinnaiah (supra), this Court held that the Scheduled Castes cannot be
further classified for the purpose of reservation because they constitute an
internally homogenous class by virtue of their inclusion in the Presidential list
and thus, as a class, groups within the Scheduled Castes cannot be treated
differently. In view of the already existing classification of the Scheduled
Castes under the Constitution, further classification and consequent
preferential treatment were held to violate Article 14, as it would amount to a
constitutionally proscribed ‘micro-classification’. To appreciate the
correctness of this view of Article 14 and micro-classification, we must
analyze the contours of the equality guarantee and permissibility of sub-
classification under Article 14.
a. The contours of Article 14
78. Article 14 employs two expressions – equality before the law and equal
protection of the laws. Both different in content and sweep 110. “Equality before
the law”-, an expression derived from the English Common law, entails
absence of special privileges for any individual within the territory. It does not
mean that the same law should apply to everyone, but that the same law
108
Chinnaiah (supra) [Justice Sinha, 81]
109
ibid.
110
Indra Sawhney (supra) [Justice Reddy,643].
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should apply to those who are similarly situated. 111 The expression “equal
protection of the laws” means that among equals, laws must be equally
administered. It enjoins the State with the power to reasonably classify those
who are differently placed. The mandate of “equal protection of laws” casts a
positive obligation on the state to ensure that everyone may enjoy equal
protection of the laws, and no one is unfairly denied this protection. In
essence, the guarantee of equality entails that all persons in like
circumstances must be treated alike. That there must be a parity of treatment
under parity of conditions. 112 Equality does not entail sameness. The State is
allowed to classify in a manner that is not discriminatory. The doctrine of
classification gives content to the guarantee of equal protection of the laws. 113
Under this approach, the focus is on the equality of results or opportunities
over equality of treatment. 114
79. The Constitution permits valid classification if two conditions are fulfilled. First,
there must be an intelligible differentia which distinguishes persons grouped
together from others left out of the group. The phrase “intelligible differentia”
means difference capable of being understood. 115 The difference is capable
of being understood when there is a yardstick to differentiate the class
included and others excluded from the group. 116 In the absence of the
yardstick, the differentiation would be without a basis and hence,
111
Gauri Shankar v. Union of India, AIR 1995 SC 55.
112
Indra Sawhney (supra), [Thommen J, 260].
113
HM Seervai, Constitutional Law of India, 4th Edition, Volume I, page 439.
114
Sandra Fredman, Substantive Equality Revisited, International Journal of Constitutional Law, Volume 14,
Issue 3, 2016, 712-738.
115
State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCC 1.
116
Anwar Ali Sarkar (supra) (1952) 1 SCC 1, [Das J, 66].
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unreasonable. The basis of classification must be deducible from the
provisions of the statute; surrounding circumstances or matters of common
knowledge. 117 In making the classification, the State is free to recognize
degrees of harm.118 Though the classification need not be mathematical in
precision, there must be some difference between the persons grouped and
the persons left out, and the difference must be real and pertinent.119 The
classification is unreasonable if there is “little or no difference”. 120 Second, the
differentia must have a rational relation to the object sought to be achieved
by the law, that is, the basis of classification must have a nexus with the object
of the classification. 121
b. Sub-classification as a facet of equality
80. The first issue that arises for the consideration of this Court is whether the
principle of sub-classification per se violates Article 14. It is established
precept that Article 14 guarantees factual and not formal equality. Thus, if
persons are not similarly situated in reference to the purpose of the law,
classification is permissible. The same logic of classification equally applies
to sub-classification. The law can further classify a class that is already
created by law for a limited purpose if it is heterogeneous for another purpose.
117
Shri Ram Krishna Dalmia v. Shri SR Tandolkar 1958 SCC OnLine SC 6, [12].
118
Ibid; Special Courts Bill, 1978, In re, (1979) 1 SCC 380.
119
Moorthy Match Works v. CCE, (1974) 4 SCC 428.
120
Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
121
Indra Sawhney (supra) [Reddy J, 643]; State of Kerala v. N.M. Thomas (1976) 2 SCC 310; Ram Krishna
Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279; Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045
55
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This Court has in multiple judgments held that such classification within a
class is valid under Article 14. 122
81. To lay down the contours of the scope of sub-classification, it needs to be
determined if the class is an integrated homogenous class. In All India
Station Masters & Assistant Station Master’s Association v. General
Manager, Central Railways 123, the issue before a Constitution Bench of this
Court was whether ‘road-side Station Masters’ could be differentiated from
Guards for the purpose of promotion to the higher post of Station Masters.
Answering the issue in the affirmative, this Court held that the Station Masters
and Guards did not form an integrated class since they were recruited and
trained separately. Thus, a distinction between the two classes was held not
to be violative of the equality code which only requires the State to treat equals
equally. Similarly, in Mohd. Shujat Ali v. Union of India124, another
Constitution bench of this Court held that the distinction between graduate
and non-graduate Supervisors for the purpose of promotion to the post of
Assistant Engineer was valid because there was no integration between the
two categories. The pay scale and even the nomenclature for the two classes
were different.
82. In All India Station Masters (supra) and Mohd. Shujat Ali (supra), this Court
did not specifically answer the question of whether there could be sub-
classification within an integrated class. That issue arose for adjudication
122
State of Kerala v. NM Thomas [Justice Mathew J, 83]; DS Nakara v, Union of India 1983 1 SCC 305
[Justice Desai, 48].
123
AIR 1960 SC 384.
124
1975 3 SCC 76.
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before this Court in State of Jammu and Kashmir v. Triloki Nath Khosa125.
The rules provided that only Assistant Engineers who possessed a degree or
certain other qualifications were entitled to promotion to the post of Divisional
Engineer. However, the pool of Assistant Engineers consisted of both degree
and diploma holding graduates. The diploma holders among them challenged
the constitutionality of the rule on the ground that it classified within the class
of “Assistant Engineers” based on their educational qualification, and such a
classification within a class was violative of Article 14. It was argued that if
persons recruited from different sources are integrated into one class, they
cannot thereafter be classified to permit preferential treatment in favour of
some of them. This Court upheld the validity of the rule holding that the
classification based on educational qualifications, for the purpose of
promotions is not unreasonable. Justice YV Chandrachud (as he then was),
writing for the bench held that the classification had a reasonable nexus with
the objective of promotions, which was to achieve administrative efficiency in
engineering services.
83. It was also submitted that if persons recruited from different sources are
integrated into one class, no further classification can be made within that
class. In this case, the direct recruits to the post of Assistant Engineer were
required to hold a degree in civil engineering. However, the promotees were
drawn from the service which was open to both degree and diploma holders
(the latter did not require a civil engineering degree). Thus, it was argued that
125
1974 1 SCC 19.
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a classification based on educational qualifications is a classification which is
based on the source of service. This Court held that though persons were
appointed from various sources such as promotion and direct recruitment,
they came to be integrated into a common class of Assistant Engineers 126.
However, despite this integration into a class, they could be validly classified
based on educational qualifications because it was not a classification based
on the source of service.
84. In this context, this Court cautioned that the judgment ought not to be
interpreted as a justification for minute and microcosmic classifications and
that the theory of classification could not be evolved through “imperceptible
extensions”, diluting the very substance of the equality guarantee. 127
Distinguishing the judgment in Roshan Lal Tandon v. Union of India128, this
Court observed in Triloki Nath (supra) that the issue in the former was
whether the yardstick for integration (that is, the source of recruitment) could
be used as a yardstick for further integration, which was not the issue in
Triloki Nath (supra). Thus, Triloki Nath (supra) is the leading judgment for
the proposition that an integrated class can be further classified if there is
126
ibid, [YV Chandrachud J, 50]. “50. We are therefore of the opinion that though persons appointed directly
and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of
promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The
Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does
not violate Articles 14 and 16 of the Constitution and must be upheld.”
127
ibid, [YV Chandrachud J, 51]. “51. But we hope that this judgment will not be construed as a charter for
making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good
governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore
to be adopted in order to harmonize the requirements of public services with the aspirations of public
servants. But let us not evolve, through imperceptible extensions, a theory of classification which may
subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is
equality and so we must not be left to ask in wonderment: What after all is the operational residue of equality
and equal opportunity?”
128
(1968) 1 SCR 185
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intelligible differentia and if the yardstick used has a nexus to the object of the
provision. 129
85. It is not a given that appointees of different sources form an integrated class
merely upon their appointment to one post. Even upon integration, the groups
retain their separate identity for other purposes. In Katyani Sayal v. Union
of India 130, this Court held that the Assistant Officers of the Railways recruited
through a competitive examination and those recruited on the
recommendation of the Union Public Service Commission do not form an
integrated homogenous class because the objects of recruitment, the tenure
and even the appointing authority are different. In Col AS Iyer v. V
Balasubramanyam 131, a Constitution Bench of this Court upheld Survey of
India promotion rules that reserved 50% more posts for engineers drawn from
the military than for civilian engineers. Justice Krishna Iyer, writing for the
Bench, observed that the army engineers never merged into the Survey of
India service, along with their civilian counterparts.
86. The judgment of this Court in DS Nakara v. Union of India 132 has dwelt on
the issue of sub-classification. In Nakara 133, a scheme which divided
pensioners into two groups based on the date of retirement, to provide
pension was challenged. A Constitution Bench held that pensioners formed a
class. Notably, this Court, similar to Triloki Nath (supra), did not hold that
sub-classification is impermissible merely because the pensioners constitute
129
See NM Thomas [Justice Mathew, 83]
130
(1980) 3 SCC 245.
131
1980 1 SCC 634.
132
1983 1 SCC 305
133
ibid [48]
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a class in themselves. As opposed to the inherent impermissibility of sub-
classification, the particular basis of classification in that case namely, the
date of retirement, was found to be arbitrary considering the objective of
granting pensions. It was held that if this basis of classification was accepted
as valid, it would create an artificial distinction between two persons who
retired within forty-eight hours of each other. Writing for the Bench, Justice D
A Desai held that this Court while deciding if sub-classification is permissible
must determine if the class is homogenous for the purpose of the law. 134
87. Nakara (supra) goes a step further than Triloki Nath (supra) to state that the
scope of sub-classification does not hinge on the yardstick which is used to
integrate groups into a class but on the issue of whether the class is
homogenous or integrated for the specific objective of the law. When a law
integrates a class, such as diploma and degree holders, it integrates the class
for the purpose of that specific law and not for all purposes. Thus, a class
which is not similarly situated for the purpose of the law can be further
classified. The test that the Court must follow to determine the validity of the
sub-classification of a class is as follows:
a. Whether the class is “homogenous” or “similarly situated” for the
purpose of the specific law;
b. If the answer to ‘a’ above is in the affirmative, the class cannot be sub-
classified;
134
DS Nakara (supra) [Desai J,42] : “If it appears to be undisputable, as it does to us that the pensioners for
the purpose of pension benefits form a class, would its upward revision permit a homogenous class to be
divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification
be founded on some rational principle?”
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c. If the answer to ‘a’ above is in the negative, the class can be sub-
classified upon the fulfilment of the following standard:
i. There must be a yardstick (or intelligible differentia) further
classifying the class; and
ii. The yardstick must have a rational nexus with the object of the
statute.
c. Micro-classification: the limits of sub-classification
88. The next issue which arises is whether there are any limits to sub-
classification. In numerous judgments, this Court has held that the State must
not micro-classify since such classifications would denude (rather than
promote) the guarantee of equality, replacing the doctrine of equality with the
doctrine of classification. 135 When does sub-classification take the properties
of micro-classification?
89. In Nakara (supra), this Court incidentally illustrated what could be termed as
a microscopic classification. This Court observed that if each pensioner were
to be classified based on their individual dates of retirement or the month of
their retirement, it would be too microscopic a classification. Notably, it was
not the State’s argument that every individual pensioner retiring on a
particular date was a class unto themselves or that the date of retirement was
the basis of classification. Rather, the argument was that those retiring before
the designated date were a class, distinct from those retiring after that date:
135
Mohammad Shujat Ali and Others v. Union of India 1975 3 SCC 76 [Justice Bhagwati, 24-26].
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“9. Is this class of pensioners further divisible for the
purpose of “entitlement” and “payment” of pension into
those who retired by certain date and those who retired
after that date? If date of retirement can be accepted
as a valid criterion for classification, on retirement each
individual government servant would form a class by
himself because the date of retirement of each is
correlated to his birth date and on attaining a certain
age he had to retire. It is only after the
recommendations of the Third Central Pay
Commission were accepted by the Government of
India that the retirement dates have been specified to
be 12 in number being last day of each month in which
the birth date of the individual government servant
happens to fall. In other words, all government servants
who retire correlated to birth date on attaining the age
of superannuation in a given month shall not retire on
that date but shall retire on the last day of the month.
Now, if date of retirement is a valid criterion for
classification, those who retire at the end of every
month shall form a class by themselves. This is too
microscopic a classification to be upheld for any valid
purpose. Is it permissible or is it violative of Article 14?”
(emphasis supplied)
90. All persons are unequal in one or the other aspect. In a given situation, even
a single individual may be treated as a class by themselves. 136 In that case,
it is particularly important that laws do not micro-classify. The question of
whether the classification amounts to a micro-classification which is
impermissible under Article 14 would depend on the facts of each case.
However, the two crucial components of the standard of intelligible differentia
prescribe the limits of sub-classification. The two components are (a) the
purpose; and (b) the rational basis (or principle) for the differentiation. This
Court has previously held that the purpose must be independent of the
differentiation. 137 The Court grants the State sufficient latitude in identifying
136
Charanjit Chowdhury (supra) 833 [58]; Ram Krishna Dalmia (supra) [11].
137
Deepak Sibal v. Punjab University (1989) 2 SCC 145
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the purpose, including the degrees of harm. 138 The same degree of latitude is
not accorded to the principle underlying the differentiation. It is not sufficient
if the principle underlying the classification is relevant or shares a nexus to
the purpose. The principle underlying the classification must be reasonable
and rational. 139 In Nakara (supra), this Court questioned the rationale of
classifying the beneficiary class based on the date of retirement. In a
concurring opinion in Navtej Singh Johar v. Union of India140, Justice Indu
Malhotra held that a principle of differentiation based on “core and immutable”
characteristics is not rational. For example, if the law stipulates that the loan
of farmers from one specific village in a State will be fully waived, it must prove
through the submission of cogent material that there is a rational principle
distinguishing one village from other villages in the State. In this context, the
State will for example have to prove that location of the land is a rational
principle of categorization and then subsequently prove that the village is not
similarly situated for the purpose of the law. With this background, we proceed
to analyze the specific issue of whether the sub-classification within the
Scheduled Castes is constitutionally permissible.
iii. Sub-classification in reservations: tracing the journey through Balaji,
Vasanth Kumar and Indra Sawhney
91. The issue of whether the State can further sub-classify within a class for the
purpose of reservation first arose in MR Balaji (supra). The State of Mysore
138
See Anwar Ali Sarkar (Supra) [7]; Ram Krishna Dalmia (supra) [11]; State of Gujarat v. Shri Ambica Mills
(1974) 4 SCC 656 [61].
139
See DS Nakara (supra) [43]
140
(2019) 3 SCC 345.
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appointed the Mysore Backward Class Committee to advise it on the adoption
of criteria for the determination of the socially and educationally backward
class. Based on the report of the Committee, the State recommended the
sub-classification of the Backward Class into the Backward Class and More
Backward Class based on educational backwardness 141. In MR Balaji (supra)
the Constitution Bench held the sub-classification of the backward class to be
unconstitutional because it: (a) was solely based on caste142; and (b) devised
measures for the benefit of “all” classes of citizens who are less advanced
when compared to the most advanced class in the State which is not the
scope of Article 15(4) 143:
“ 29. In this connection, it is necessary to add that the
sub-classification made by the order between
Backward Classes and More Backward Classes does
not appear to the justified under Article 15(4). Article
15(4) authorises special provision being made for the
really backward classes. In introducing two categories
of Backward Classes what the impugned order, in
substance purports to do is to devise measures for the
benefit of all the classes of citizens who are less
advanced, compared to the most advanced classes in
the State, and that, in our opinion, is not the scope of
Article 15(4). The result of the method adopted by the
impugned order is that nearly 90% of the population of
the State is treated as backward, and that illustrates
how the order in fact divides the population of the State
into most advanced and the rest, and puts the latter into
two categories of Backward and More Backward. The
classification of the two categories, therefore, is not
warranted by Article 15(4).”
141
The criterion for the sub-classification was whether the standard of education in the community is less
than 50% of the State Average. If it is, the community must be regarded as a more backward community. If
it is not, then the community must be regarded as the backward community.
142
AIR 1963 SC 649 [25]
143
AIR 1963 SC 649 [29] This observation must be read along with the observation in Paragraph 21 where
this Court held that the test of relativity must not be used to determine the backward class: “21. In considering
the scope and extent of the expression “Backward Classes” under Article 15(4), it is necessary to remember
that the concept of backwardness is not intended to be relative in the sense that any classes who are
backward in relation to the most advanced classes of the society should be included in it. If such relative
tests were to be applied by reason of the most advanced classes, there would be several layers or strata of
backward classes and each one of them may claim to be included under Article 15(4).”
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92. This view was critiqued by Justice O Chinnappa Reddy in Vasanth Kumar
(supra). In Vasanth Kumar (supra), this Court was invited to deliver its
opinion on reservations which may serve as a guideline to the Commission
that the Government of Karnataka proposed to appoint for examining the
question of reservation in education and employment sectors. In his
concurring opinion, Justice Chinnappa Reddy observed that as a matter of
principle, sub-classification within a reserved class is valid provided that both
the classes are far behind the advanced class and that one of the classes is
ahead of the most backward class. 144 The learned Judge observed that the
validity of the classification of the Backward Class into Backward and More
Backward Classes may be open to adjudication on the facts of each case.
93. In Indra Sawhney (supra), an Office Memorandum which introduced a
criterion giving preference for the poorer of the Socially and Educationally
Backward Class was under challenge. The learned Judges diverged on the
interpretation of the phrase “poorer”. Justice Pandian construed the phrase
“poorer” in the Memorandum to mean economically weaker sections. Justice
B P Jeevan Reddy, authoring the plurality opinion, construed the phrase
“poorer” not in the economic sense but in the socio-economic sense. The
learned Judges adopted a different approach while dealing with the issue of
sub-classification owing to this divergence. Justice Pandian observed that
preference for a section of the socially and educationally backward section
would eliminate or exclude the other section of the class. 145 This observation
144
Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [55]
145
Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [207(5)]
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of the learned Judge must be read along with a previous observation that the
socially and educationally backward class shares a common characteristic of
social backwardness which cannot then be further divided solely based on
economic criteria. Thus, the learned Judge did not find the sub-classification
of the socially and educationally backward classes unconstitutional per se but
the sub-classification of the class based on economic criteria which is alien to
the determination of the beneficiary class. Another reason for the decision of
the learned Judge was the model of sub-classification which was prescribed
by the Office Memorandum. The Office Memorandum provided that the
poorer section would have preference over all the seats reserved for a class,
leaving the possibility of excluding the rest open.
94. Justice Jeevan Reddy observed that there is no constitutional or legal bar in
classifying the backward class into backward and most backward class. 146
The learned Judge held that sub-classification is valid for two reasons. First,
there may be inter-se backwardness within same class and in such a
situation, sub-classification ensures that the more backward of the class can
secure the benefit. 147 Second, the constitutional scheme expressly provides
for sub-classification. Article 16(4) only identifies the beneficiary class as the
“backward class” unlike Article 15(4) which expressly identifies the socially
146
Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [802]
147
“802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward
classes as backward and more backward. We are not saying that it ought to be done. We are concerned with
the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take
the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points
was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes
scored identical points. There may be some castes/groups/classes which have scored points between 20 to
22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be
denied that there is no difference between these two sets of castes/groups/classes.”
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and educationally backward class, the Scheduled Castes and the Scheduled
Tribes. The relevant observation is extracted below:
“803. There is another way of looking at this issue.
Article 16(4) recognises only one class viz., “backward
class of citizens”. It does not speak separately of
Scheduled Castes and Scheduled Tribes, as does
Article 15(4). Even so, it is beyond controversy that
Scheduled Castes and Scheduled Tribes are also
included in the expression “backward class of citizens”
and that separate reservations can be provided in their
favour. It is a well-accepted phenomenon throughout
the country. What is the logic behind it? It is that if
Scheduled Tribes, Scheduled Castes and Other
Backward Classes are lumped together, OBCs will take
away all the vacancies leaving Scheduled Castes and
Scheduled Tribes high and dry. The same logic also
warrants categorisation as between more backward
and backward. We do not mean to say — we may
reiterate — that this should be done. We are only
saying that if a State chooses to do it, it is not
impermissible in law.”
95. The learned Judge also construed the phrase “preference” in the Office
Memorandum to mean “equitable apportionment” such that preference does
not exclude the benefit to the less backward of the socially and educationally
backward class.
96. With respect to the sub-classification of the backward classes, Justice Sawant
observed that both the sub-categories must be substantially (and not
comparatively) backward when compared to the forward class and there must
be a substantial difference in backwardness between the sub-categories
themselves. The learned Judge notes that if these two criteria are fulfilled,
then it is not only advisable but imperative to sub-classify. Echoing the opinion
of Justice Jeevan Reddy, Justice Sawant observed that sub-classification
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would lead to the exclusion of classes if the preference model is followed
instead of the model whereby a percentage of seats are allotted to the most
backward. 148
97. The observations in Indra Sawhney (supra), elucidate the following three
principles with respect to sub-classification:
a. Sub-categorization within a class is a constitutional requirement to
secure substantive equality in the event that there is a distinction
between two sections of a class;
b. Sub-classification must not lead to the exclusion of one of the
categories in the class. A model that provides sufficient opportunities
to all categories of the class must be adopted; and
c. Sub-classification among a class must be on a reasonable basis.
Justice Sawant held that the distinction between the categories must
be substantial. Justice Jeevan Reddy held that the sub-
categorization must be reasonable.
148
“524.[…] To give an instance, the Mandal Commission has, on the basis of social, educational and
economic indicators evolved 22 points by giving different values to each of the three factors, viz., social,
educational and economic. Those social groups which secured 22 points or above have been listed there as
“socially and educationally backward” and the rest as “advanced”. Now, between 11 and 22 points some may
secure, say, 11 to 15 points while others may secure all 22 points. The difference in their backwardness is,
therefore, substantial. Yet another illustration which may be given is from Karnataka State Government order
dated October 13, 1986 on reservations issued after the decision in Vasanth Kumar [1985 Supp SCC 714 :
1985 Supp 1 SCR 352] where the backward classes are grouped into five categories, viz., A, B, C, D and E.
In category A, fall such castes or communities as that of Bairagi, Banjari and Lambadi which are nomadic
tribes, and Bedaru, Ramoshi which were formerly stigmatised as criminal tribes whereas in category D fall
such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special
provisions to the former, the latter taking away the entire benefits. On the other hand, to deny the status of
backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without
any seat or post. In such circumstances, the sub-classification of the backward classes into backward and
more or most backward is not only desirable but essential.”
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a. Indra Sawhney did not exclude sub-classification within the Scheduled
Castes
98. In Chinnaiah (supra), this Court observed that the principles in Indra
Sawhney (supra) on sub-classification of the Other Backward Class will not
apply to the Scheduled Castes because the judgment specifically observed
that it is only ruling on the sub-classification of the Other Backward Class and
not the Scheduled Castes and the Scheduled Tribes. 149 At two places in
Indra Sawhney (supra), Justice Jeevan Reddy limited the observations to the
Other Backward Classes and did not extend them to the Scheduled Castes
and Scheduled Tribes. While dealing with the identification of the backward
class of citizens under Article 16(4), the learned judge made the following
observations: 150
“781. At the outset, we may state that for the purpose
of this discussion, we keep aside the Scheduled Tribes
and Scheduled Castes (since they are admittedly
included within the backward classes), except to
remark that backward classes contemplated by Article
16(4) do comprise some castes – for it cannot be
denied that Scheduled Castes include quite a few
castes.”
99. These observations were made in the specific context of the recognition of
the Scheduled Castes and the Scheduled Tribes as a separate class of
beneficiaries under Article 15(5) and their absence in Article 16(4). Justice
Jeevan Reddy noted that it is admitted that the Backward Class in Article
149
Chinnaiah v. State of AP, (2005) 1 SCC 394 [Justice Santhosh Hegde, 38]; [Justice Sinha, 76]
150
(1992) Supp (3) SCC 217 [781]
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16(4) includes the Scheduled Castes and Scheduled Tribes even though the
provision does not expressly state so.
100. While discussing the issue of the exclusion of the creamy layer in the
identification of the beneficiary class under Article 16(4), Justice Jeevan
Reddy noted that the discussion is confined to the Other Backward Class and
does not have any relevance to the Scheduled Castes and the Scheduled
Tribes. 151 This observation must also be understood in the context in which it
was made. While discussing the necessity of the exclusion of the creamy
layer of the Other Backward Class for the purposes of reservation, Justice
Reddy observed that social backwardness is the connecting link in a class
identified under Article 16(4). The learned Judge remarked that the class does
not remain a homogenous class if some of the members of the class are
socially forward. This Court noted that economic advancement can be a
relevant criterion to exclude the creamy layer provided that the economic
advancement is so high as to cause social advancement. The observation
that this does not apply to the Scheduled Castes and Scheduled Tribes was
made because they suffer from a more egregious form of social
backwardness when compared to the Other Backward Class. The Court did
not deem it necessary to decide the issue of whether the financial
advancement of the members of the Scheduled Castes and Scheduled Tribes
would cause social advancement since the issue in Indra Sawhney (supra)
was only with respect to reservation for the Other Backward Class.
151
(1992) Supp (3) SCC 217 [792]
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101. The question then is whether there is any reason to not extend the principle
of sub-classification to the Scheduled Castes when a nine-Judge Bench of
this Court has already extended the principle to the beneficiary classes under
Articles 15 and 16. It is true that the social backwardness of the Other
Backward Class is not comparable to that of the Scheduled Castes since they
are more socially advanced than the Scheduled Castes. That is precisely why
the Constitution groups them into two separate classes in Article 15(4). It is
also true that the castes included within the class of Other Backward Class
do not suffer from a single form of social backwardness. The castes which
are included within the Other Backward Class suffer from a certain degree of
comparable backwardness but the form of social backwardness amongst
them may vary. As opposed to this position, the Scheduled Castes suffer from
a common form of social backwardness through untouchability.
102. It is one thing to argue that the Scheduled Castes cannot be sub-categorized
on account of their limited heterogeneity and common identity as opposed to
the Other Backward Class. But it is another issue to completely disregard the
application of the principle of sub-classification to the Scheduled Castes on
the ground that Indra Sawhney (supra) limited its application to the Other
Backward Class. We do not find that the purport of the observations in Indra
Sawhney (supra) on sub-classification was to limit it to the Other Backward
Classes, to the exclusion of the Scheduled Castes. The principle of sub-
classification was given judicial assent in Indra Sawhney (supra) to ensure
that the principle of substantive equality is fulfilled. The principle of sub-
classification will be applicable to the Scheduled Castes if the social positions
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of the constituents among the castes/groups is not comparable. In the
subsequent section, we will analyze if Article 341 through the operation of the
deeming fiction creates an integrated homogenous class that cannot be
further classified.
iv. The import of the deeming fiction in Article 341
103. Article 366(24) defines the Scheduled Castes as the castes, groups, races
or tribes which are deemed to be Scheduled Castes under Article 341(1). The
provision does not offer any assistance on the criteria which must be satisfied
by the castes, groups, races or tribes for them to be notified as a Scheduled
Caste under Article 341. The definition clause only refers to the deeming
fiction created by Article 341. Article 341(1) also does not lay down the criteria
for inclusion of a caste as a Scheduled Caste. Sub-clause (1) of Article 341
refers to the power of the President to specify the castes, races, tribes or
parts of or groups within these three groups. Specified as such, they shall be
deemed to be Scheduled Castes for the purpose of the Constitution in relation
to the state. The respondents submitted that the “deeming fiction” creates a
homogenous integrated class that cannot be further classified. The tenability
of the submission needs to be analyzed.
a. Chinnaiah on the deeming fiction in Article 341
104. In his opinion in Chinnaiah (supra), Justice Santosh Hegde relied on NM
Thomas (supra) to hold that the Scheduled Castes, though drawn from
various castes, races and tribes, attain a new status by the Presidential
notification. Justice Sema noted that once notified through a Presidential
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Notification under Article 341 (1), Scheduled Castes attain a homogenous
status. The learned Judge then held that the objective of the notification was
to afford special protection to the Scheduled Castes as a homogenous group,
which cannot be regrouped in the manner in which it was done by the Andhra
Pradesh Act. Justice Sinha noted that Scheduled Castes constitute a class of
persons entitled to special protection and could not be discriminated inter se,
as all of them satisfied the test of abysmal backwardness and inadequate
representation. He specifically observed that the Scheduled Castes are a
“single integrated class of most backward citizens”.
105. One of the issues in Jarnail Singh (supra) was whether the judgment in
Nagaraj (supra) was correct to apply the principle of the exclusion of the
creamy layer to the Scheduled Castes and Scheduled Tribes. It was argued
before the Court in Jarnail Singh (supra) that the application of the creamy
layer principle to the Scheduled Castes and Scheduled Tribes would have the
effect of amending the List, which is not permissible under Articles 341(2) and
342(2). The Constitution Bench held that the exclusion of the creamy layer
from the Scheduled Castes and the Scheduled Tribes is justified under the
equality code because the members of the creamy layer no longer require
reservation since they have moved “forward so that they may march hand in
hand with other citizens of India on an equal basis.” 152 Writing for the Bench,
Justice Nariman observed that the application of the principle of creamy layer
to reservations for the Scheduled Castes and the Scheduled Tribes per se
will not have the effect of tinkering with the Lists notified under Articles 341
152
(2018) 10 SCC 396 [26, 34].
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and 342 because a caste as a whole is not excluded from the List but only
persons who have overcome backwardness are excluded. 153
106. Thus, it needs to be determined if the interpretation of the scope of Article
341 in Chinnaiah (supra) is correct. We must decide, first, whether Article
341 creates a deeming fiction. Second, if it does, the purpose and effect of
the legal fiction created under Article 341 must be analyzed. That is, we must
decide whether the legal fiction creates a homogenous class which cannot be
further classified. Third, the scope of the prohibition under Article 341 (2) must
be determined in relation to the effect of the legal fiction created by Article
341(1).
b. Scope of deeming fiction
107. The use of the phrase “deemed to be” is not conclusive of a legal fiction. 154
The word deemed is used for many purposes, such as for the artificial
construction of a word and to clarify uncertain constructions, or plainly just to
mean “regarded as being”. 155 A legal fiction is essentially a presumption that
certain facts which do not exist in fact, will be treated as real and existing for
the purpose of law. Courts have evolved two principles on the operation of
legal fictions. The first principle is that a legal fiction must be confined to its
‘legitimate field’, for the specific purpose for which it was created.156 In Bengal
153
ibid [26].
154
See Consolidated Coffee Ltd v. Coffee Board, Bangalore, 1980 3 SCC 358 [11,12]; Bhuwalka Steel
Industries Limited v. Union of India, (2017) 5 SCC 598 [36,37,43,44]
155
St. Aubyn v. Attorney General, 1952 AC 15, 53 [Lord Radcliffe]
156
Industrial Supplies Private Limited v. Union of India, (1980) 4 SCC 341 [25]; K. Prabhakaran v. P.
Jayarajan, (2005) 1 SCC 754 [39]; See Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine
SC 2.
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Immunity Company Ltd v. State of Bihar157, a seven-Judge Bench of this
Court held that legal fictions are created only for a certain purpose and they
must be confined only to that “legitimate field”. In its decision in that case, this
Court held that the deeming fiction in the Explanation to Article 286(1)(a),
before the Constitution (Sixth Amendment) Act 1956, (by which a sale was
deemed to have taken place in the State where the goods were delivered
because of the direct sale) only applied to Article 286(1)(a) and not to Article
286(2). This Court held that the scope of Article 286(1)(a) which barred a
State from imposing tax on sales outside the State, was different from the
scope of Article 286 (2) which stated that unless otherwise provided by law,
State laws could not tax a sale or purchase which took place in the course of
inter-state trade or commerce.158
108. The second principle is that the scope of the legal fiction must be extended to
the consequences which “logically” flow from its creation. The opinion of Lord
Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council159 is
the leading case for this proposition. The Law Lord observed that the effect
of a legal fiction must not be limited to treating facts that do not exist as real
157
Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine SC 2 [Justice Das, 32].
158
52. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the
consequences which flow from that state of facts have got to be worked out to their logical extent. But due
regard must be had in this behalf to the purpose for which the legal fiction has been created. If the
purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose of sub-
clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read
into the provision any other purpose howsoever attractive it may be. The legal fiction which was created
here was only for the purpose of determining whether a particular sale was an outside sale or one
which could be deemed to have taken place inside the State and that was the only scope of the
provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was
also created for the purpose of converting the inter-State character of the transaction into an intra-
State one. This type of conversion could not have been in the contemplation of the Constitution-makers and
is contrary to the express purpose for which the legal fiction was created as set out in the Explanation to
Article 286(1)(a). [emphasis supplied]
159
LR 1952 AC 109.
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but must be expanded to understand the effects and consequences that flow
from the legal fiction.160 However, a law creating a deeming fiction cannot
create presumptions in favor of a legal consequence but only presumptions
about facts from which certain legal consequences may follow. In Delhi Cloth
& General Mills Co. Ltd v. State of Rajasthan 161, the constitutional validity
of the Kota Municipal Limits (Continued Existence) Validating Act of 1975 was
challenged. The Municipalities Act prescribed a mandatory procedure for
delimitation of municipalities including a public notice inviting objections. This
mandatory procedure was flouted in the inclusion and exclusion of certain
villages to and from the Kota municipality in the State. The Validating Act
provided that notwithstanding the mandatory provisions of the Municipalities
Act, those villages would be deemed to have always continued to exist as
they do within the limits of Kota municipality. The Court held that the
Validating Act required the deeming of a legal position rather than the
deeming of a fact from which such legal consequence would follow. The
Bench found that this was not a permissible creation of a fiction. Article 341
must be interpreted based on the above principles.
c. Article 341 does not create a deeming fiction
109. In Punit Rai v. Dinesh Chaudhary 162, the issue before a three-Judge Bench
of this Court was whether the Respondent, who contested an election for a
160
ibid at page 132. “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you
must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
161
1976 3 SCC 443.
162
2003 8 SCC 204.
76
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seat reserved for the Scheduled Castes in the Legislative Assembly,
belonged to the Scheduled Caste community. Justice Sinha, writing the
concurring opinion made a passing observation that Article 341(1) creates a
deeming fiction. 163 However, this observation does not form the ratio
decidendi of the judgment. Thus, it needs to be analyzed if Article 341(1)
creates a deeming fiction.
110. Article 341(1) consists of three parts. The first part lays down the procedure
for notifying a caste as a Scheduled Caste. The President, in consultation with
the Governor (if the notification is with respect to a State) is empowered to
specify castes which shall be Scheduled Castes. In the second part, a
provision similar to Article 366(26), provides some clarity on who could be
notified as a Scheduled Caste: a caste, race, or tribe or parts of or groups
within the caste, race or tribe. The third part, with the use of the words “for the
purposes of this Constitution be deemed to be Scheduled Castes” includes a
substantive provision. In the absence of the word “deemed”, the provision
would have solely been a procedural clause, empowering the President to
notify the Scheduled Castes. The use of the word “deemed” ensures that the
castes or groups of castes shall be regarded as Scheduled Castes by the
very act of notifying them. Thus, the inclusion of the word ‘deemed’ in Articles
341(2) and 342(2) does not create a legal fiction since it does not provide any
artificial construction. To that extent, the observations of the three-Judge
Bench of this Court in Punit Rai (supra) that Article 341(2) creates a deeming
fiction are erroneous.
163
ibid [Justice Sinha, 25].
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111. In Milind (supra), a Constitution Bench of this Court observed that the
purpose of Article 341(1) is to recognize and identify the Scheduled Castes
for the purpose of the Constitution and to prevent disputes as to who would
constitute a Scheduled Caste for the purpose of the benefits under the
Constitution. 164 The Indian social order consists of castes or groups which
suffer from varying degrees of social backwardness, ranging from
untouchability to occupational segregation. These castes are grouped into
different classes by the Constitution, such as the Scheduled Castes or the
Scheduled Tribes, based on the degree of marginalization for the purpose of
conferring benefits through affirmative action. A caste only becomes a
Scheduled Caste or a Scheduled Tribe or a socially and educationally
backward caste when the President issues a notification to that effect in the
exercise of the power under Articles 341, 342 and 342A respectively. Thus, it
could be argued that the word “deemed” in the provision creates a legal fiction
for creating a constitutional identity for the castes which are included in the
lists.
112. Even if it is accepted that the deeming fiction is used for the creation of a
constitutional identity, the fiction can neither be extended to other purposes
nor can it create legal consequences that do not logically flow from the fiction.
Accepting the respondents’ argument that once included in the List,
communities specified in the List of Scheduled Castes assume homogeneity
would be akin to extending the legal fiction to a purpose that was not
envisaged. The purpose of the deeming fiction is ‘identification’ of castes
164
ibid, [35]
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which are the Scheduled Castes. The logical corollary of the identification of
castes or groups as Scheduled Castes is not that this creates a homogenous
unit. The inclusion of certain castes within the Scheduled Caste category is
only to demarcate them from other castes which are not included in the
category. The inclusion does not automatically lead to the formation of a
uniform and internally homogenous class which cannot be further classified.
Article 341 creates a legal fiction for the limited purpose of identification of
Scheduled Castes by distinguishing them from other groups. It offers no
guidance on how the Scheduled Castes fare among themselves or on
heterogeneity among the Scheduled Castes for the purpose of the
Constitution. The legal fiction which assigns an identity to the Scheduled
Castes, separate from other categories cannot be stretched to draw
inferences about the existence or non-existence of internal differences among
the Scheduled Castes. The only logical consequence is that each of the
groups that is included in the list will receive the benefits that the Constitution
provides to the Scheduled Castes as a class.
113. In Chinnaiah (supra), Justice Santosh Hegde observed that the Castes
notified by the President in the exercise of power under Article 341 form a
class in themselves. For this purpose, the learned Judge relied on the
following observations of the Constitution Bench in NM Thomas (supra):
a. Justice Mathew observed that the members of the Scheduled Castes
attain a new status by the Presidential Notification; 165
165
NM Thomas (supra) [Justice Mathew, 82].
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b. Justice Krishna Iyer observed that the Scheduled Castes are not
castes within the Hindu fold but an amalgam of castes, races, groups,
tribes, communities or parts thereof found on investigation to be the
lowliest and in need of massive State aid and notified as such by the
President; 166 and
c. Justice Fazal Ali observed that the Scheduled Castes and the
Scheduled Tribes have been given a special status in the Constitution
and they constitute a class by themselves. 167
114. It is necessary to understand the context of the case to understand the import
of the above observations. In NM Thomas (supra), rules providing
concessions to the members of the Scheduled Castes for qualifying at the
entrance examination were challenged. One of the issues before the Court
was whether the concession to the members of the Scheduled Castes
violated Article 16(2) since it discriminates solely on the ground of “caste”. To
overcome the embargo placed by Article 16(2), the learned Judges observed
that provision for affirmative action is made in favour of the Scheduled Castes,
which once notified by the President in exercise of the power under Article
341 are not a “caste” but a class. The class that is constituted by the
Presidential notification as the Scheduled Castes consists of numerous
castes, thereby forming a class. The observations in NM Thomas (supra) do
not go further to state that it is a homogenous class that cannot be classified
166
NM Thomas (supra) [Justice Iyer, 135].
167
NM Thomas (supra) [Justice Fazal Ali, 169] : “If, therefore, the members of the scheduled castes and the
scheduled tribes are not castes, then it is open to the State to make reasonable classification in order to
advance or lift these classes so that they may be properly represented in the services under the State.”
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further. In fact, Justice Mathew observed in the very next paragraph that there
can be further classification within a class if there is an intelligible differentia
separating a group within a class from another group.168 Additionally, the
approach adopted in NM Thomas (supra) by this Court that the Scheduled
Castes are a class because they comprise of a collection of castes must be
read in the context of the nine-Judge Bench decision in Indra Sawhney
(supra), where this Court held that caste is itself a class. Therefore, we are of
the view that the inference drawn by Justice Hegde in Chinnaiah (supra) that
the Scheduled Castes are a homogenous class based on the above
observations in NM Thomas (supra) is erroneous.
d. Article 341(1) read with Article 341(2) only proscribes exclusion from and
inclusion in the Scheduled Castes List.
115. In Chinnaiah (supra), this Court held that sub-classification amounted to
tinkering with the Presidential list by the State legislature, and was therefore,
violative of Article 341(2) which exclusively vests power in Parliament. Article
341(2) prescribes the only manner in which the Presidential Notification under
Article 341(1) may be altered. The provision stipulates that castes, races or
tribes, or parts of or groups within them once notified by the President under
Article 341(1) may be included in or excluded from the List only by Parliament.
The latter half of the clause states by way of abundant caution that ‘save as
aforesaid’, the notification shall not be varied. The provision reads as follows:
“(2) Parliament may by law include in or exclude from
the list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part
168
NM Thomas (supra) [Justice Mathew, 83].
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of or group within any caste, race or tribe, but save as
aforesaid a notification issued under the said clause
shall not be varied by any subsequent notification.”
(emphasis supplied)
116. Dr B R Ambedkar, while proposing the inclusion of Articles 300A and 300B of
the Draft Constitution (which correspond to Articles 341 and 342 of the
Constitution), indicated that once notified, any elimination from the list or an
addition to the list was to be made by Parliament and not by the President.
This limitation, he noted was to eliminate “political factors” from disturbing the
list:
“..The only limitation that has been imposed is this: that
once a notification has been issued by the President,
which, undoubtedly, he will be issuing in consultation
with and on the advice of the government of each State,
thereafter, if any elimination was to be made from the
list so notified or any addition was to be made, that
must be made by Parliament and not by the President.
The object is to eliminate any kind of political factors
having a play in the matter of the disturbance in the
Schedule so published by the President.” 169
117. Unless amended in the manner prescribed under Article 341(2), the
Presidential List notified under Article 341(1) is conclusive of which
community is a Scheduled Caste and must be taken as it is. Article 341(2)
prescribes the scope of permissible changes to the List published under
Article 341(1) and exclusively vests the power to vary these lists in
Parliament.
169
Constituent Assembly Debates, Volume 9, page 1636 (17 September 1949)
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118. The prohibitions in Articles 341 (1) and 342 (2) are two-fold : first,
specification as a Scheduled Caste is circumscribed by the territorial limits of
the State or the region, specific to which a particular group has been
notified 170. For instance, Entry 23 of Part I of the Scheduled Castes Order for
the State of Andhra Pradesh enumerates: “Godagalli, Godagula (in the
districts of Srikakulam, Vizianagaram and Vishakhapatanam)”. Hence, the
enlisted communities (Godagalli and Godagula) are treated as a Scheduled
Caste for the districts named in the entry and not for the entire State. In Marri
Chandra Shekar Rao v. Dean, Seth GS Medical College171, a Constitution
Bench of this Court considered whether a member of the Gouda community,
recognized as a Scheduled Tribe in Andhra Pradesh, could seek admission
to a seat reserved for the Scheduled Tribes in Maharashtra. Answering it in
the negative, this Court observed that since the social conditions of caste
groups vary across the country, a caste or tribe could not be generalized as
a Scheduled Caste or Scheduled Tribe for the whole country. It held that the
expression “in relation to that State” in Articles 341 (1) and 342(1) could not
be rendered redundant by treating a caste specified as a Scheduled Caste in
one State to be entitled to the benefits for Scheduled Castes in another State,
where it was not so specified. 172 In Bir Singh v. Delhi Jal Board 173, one of
the issues before this Court was whether the power of the State to make
provisions for affirmative action for the Scheduled Castes and Scheduled
Tribes under Article 16(4) is impacted by the power of the President under
170
See Constitutional (Scheduled Castes) Order, 1950 [2,4].
171
(1990) 3 SCC 130
172
Marri (supra) [9]
173
2018 10 SCC 312.
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Articles 341(1) and 342(1) of the Constitution. The Constitution Bench held
that a State in exercise of its power under Article 16(4), cannot extend the
benefits accorded to the Scheduled Castes to a caste which is not
enumerated in the Presidential list notified under Article 341(1). The Court
held that the enabling provision under Article 16(4) must be harmoniously
read with Articles 341 and 342. Therefore, if a statute extends the policy of
affirmative action to groups not enumerated specifically with respect to that
State/Union Territory, it would circumvent the mandate of Article 341(2) and
would be an impermissible expansion of the List, contrary to the mandate of
Article 341(1). 174 Thus, this Court held that the benefit of reservation cannot
be extended to a caste which is not enumerated as a Scheduled Caste in that
State, though it finds a place in the Presidential List with respect to another
State.
119. Second, Article 341(2) provides that only Parliament can include in or
exclude from the List any caste, tribe, race or their parts or groups. The
Presidential notification cannot be varied by any subsequent notification,
other than by an inclusion or exclusion by Parliament. By completely vesting
in Parliament the power to include or exclude from the Presidential List, Article
341(2) correspondingly limits the power of the President (acting on the aid
and advice of the Council of Ministers at the Centre) and the Governor (acting
on the aid and advice of the State Government when consulted) to include or
exclude castes or sub-castes from the List.
174
ibid, [Justice Gogoi, 34]; [Justice Banumathi, 79, 81]
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120. In Chinnaiah (supra), this Court interpreted Article 341(2) as a limit on the
power of the President to “tinker” with the list. 175 Article 341(2) consists of two
parts. First, it grants only Parliament the power to “include or exclude” any
caste or group, or a part of the caste or group, and second, “save as
aforesaid”, a notification issued by the President under Article 341(1) shall not
be varied by any other subsequent notification. It is important to understand
the purport of the second part of the provision to understand the scope of
Article 342(2).
121. The second part of Article 341(2) must be read in the context of Article 367.
Article 367 provides that unless the context otherwise requires, the General
Clauses Act 1897 shall apply for the interpretation of the Constitution as it
applies to the interpretation of an Act of the Legislature of the Dominion of
India. Section 21 of the General Clauses Act 1897 states that the power to
issue notifications includes the power to add to, amend, vary or rescind the
notification. 176 By Article 341(1) read with Article 367 and Section 21 of the
General Clauses Act 1897, the President would have the power to add to,
amend, vary or rescind the notification. The first part of Article 341(2) removes
the power of the President to include in and exclude from the List and places
it in the domain of Parliament. This power is traceable to the words “add to”
or “amend” in Section 21 of the General Clauses Act. The second part of
Article 341(2) ensures that the President does not have any residual power
175
Chinnaiah (supra), [Justice Hegde, 43]
176
21. Power to issue, to include power to add to, amend, vary or rescind notifications orders, rules, or bye-
laws- Where, by any [Central Act] or Regulations a power to issue notifications, orders, rules, or bye-laws is
conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction
and conditions (if any), to add to , amend, vary or rescind any notifications, orders, rules, or bye-laws so
issued.
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to “vary” the List. The phrase “vary” in common parlance has a wider meaning
than exclusion or inclusion. It includes altering the list, even by partial
change. 177 However, the phrase “vary” in Article 341(2) takes the meaning of
inclusion in and exclusion from the List, and not the other way around. This is
clear with the use of the phrase “save as aforesaid” in the second part of the
provision. Thus, by Article 341(2), the President does not have the power to
vary the List notified under Article 341(1) by inclusion in and exclusion from
it.
122. The power of Parliament to vary the list includes not merely the power to
exclude or include “any caste, race or tribe” but also the power to exclude or
include “parts of or groups within any caste, race or tribe”. In Milind (supra),
the issue before this Court was whether an entry titled ‘Halba/Halbi’ in the
Scheduled Tribe Order relating to the State of Maharashtra could be read to
include the ‘Halba-Koshti’ tribe. This Court held that the Presidential list is to
be read as it is and no evidence could be allowed to establish that an entry in
the Scheduled Caste or Scheduled Tribe list included a particular group that
was not included specifically in the List. The Court held that any other
interpretation would infringe upon the power accorded solely to Parliament by
Article 341(2). Justice Shivraj V Patil, writing for the Bench, held that unless
a tribe is specified expressly in the List under Article 342, which is pari materia
to Article 341, no inquiry could be held or evidence led to establish that such
177
“Vary” - to make changes to something to make it slightly different. Oxford Learner’s Dictionary,
<https://www.oxfordlearnersdictionaries.com/definition/american_english/vary>; “vary” Merriam-Webster
Dictionary <https://www.merriam-webster.com/thesaurus/vary#thesaurus-entry-1-2>
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tribe, or any part thereof, is included within the meaning of an entry included
in the Presidential Order. 178 This Court underscored that the power of the
States is limited to making recommendations at the initial stage of
consultation, prior to the notification of the Presidential List under Article
341(1). This Court observed that the Constitution vests the power to make
any further changes to the List in Parliament to prevent alterations to the List
due to political pressure. 179
123. The prohibition under Article 341(2) entails that once a particular caste, race,
tribe or a part or group of it is specified in the Presidential List under Article
341(1), the list shall be read as it is with no additions or deletions. The benefit
of the special provisions shall not be given to any caste or sub-caste not
included in the List with respect to that State. Article 341(2) uses the words
“include in” or “exclude from” and “shall not be varied”. These terms contained
in the provision are unambiguous. An inclusion would occur if the State were
to enact a law that extends the benefits meant for Scheduled Castes in that
State to a community that is not enumerated as a Scheduled Caste for that
State. The only mechanism open to the State, in case it regards a community
fit for inclusion in the List notified for that State, is to make a proposal to that
effect to the central authorities. After due inquiry, the community may be
added to the List by Parliament, subject to its satisfaction that such a
modification is required. Until then, the State has to apply the Scheduled
Castes List as it is. 180 Thus, to summarize, Article 341(2) bars the State
178
Milind (supra) [12].
179
Milind (supra) [15].
180
Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala, 1994 1 SCC 359 [17, 18].
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Legislature from removing or adding castes from and to the List respectively.
Sub-classification within the Scheduled Castes for the purposes of affirmative
action, including reservation does not include or exclude any caste or group
from the List. Section D(iii) of this judgment deals with the different models of
sub-classification to determine if the operation of reservation upon sub-
classification in-effect leads to exclusion.
v. Historical and empirical evidence of inter-se backwardness within the
Scheduled Castes
124. Having held that Article 341 does not create an integrated homogenous class,
we will next decide whether there is an intelligible differentia to group the
castes within the Scheduled Castes. For this, it needs to be analyzed if the
Scheduled Castes are a heterogenous class. The respondents submitted that
there cannot be any sub-categorization of the Scheduled Castes because all
the castes face the same form of social backwardness based on
untouchability. The petitioners, on the other hand, submitted that there exists
inter-se backwardness within the Scheduled Castes.
125. The Constitution of India does not provide a definition of the Scheduled
Castes. Article 366(24) states that castes/groups notified under Article 341
shall be Scheduled Castes. However, neither Article 341 nor Article 366(24)
prescribes the criteria for their identification. The President issued the
Constitution (Scheduled Castes) Order 1950 which nearly corresponds to the
Government of India (Scheduled Castes) Order 1936 notified under the
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Government of India Act 1935. 181 It is important to identify the criteria for
inclusion of groups or castes in the Scheduled Castes Order 1936.
126. The Government of India Act 1935 did not define the criteria for the
identification of Scheduled Castes. Clause 26(1) of the First Schedule to it
defined the Scheduled Castes as castes that corresponded to the classes of
persons known as the “depressed classes”:
“the scheduled castes” means such castes, races or
tribes, or parts of or groups within castes, races or
tribes being castes, races, tribes, parts or groups which
appear to his Majesty in Council to correspond to the
classes of persons formerly known as the
depressed classes, as His Majesty in Council may
specify.”
(emphasis supplied)
127. It is necessary that we briefly refer to the historical material on how the
depressed classes were identified to analyze if the Scheduled Castes are a
heterogenous class and whether there is an intelligible differentia
distinguishing the sub-categories within the Scheduled Castes.
a. Identification of the depressed classes
128. In 1916, the definition of the depressed classes was raised in the Indian
Legislative Council. It was suggested during the discussion that the
expression should include criminal and wandering tribes, aboriginal tribes and
untouchables. 182 In 1917, Sir Henry Sharp, the Education Commissioner,
prepared a list of depressed classes which included the aboriginal or hill
181
Marc Galanter, Competing Equalities: Law and the Backward Classes in India, [Oxford University Press
(1984)] 130
182
Report of the Indian Franchise Committee (1932) Vol I, 112
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tribes, depressed classes and criminal tribes. While preparing the list, Sir
Henry stated that depressed classes “[…] includes communities which though
not absolutely outside the pale of caste, are backward and educationally poor
and despised and also certain classes of Muslims. Some have interpreted it
as simply educationally backward”. 183
129. In 1919, the Southborough Franchise Committee adopted the test of
untouchability to define the depressed class. The Indian Franchise
Committee 1932, inter alia, was appointed to ascertain if a separate electorate
must be provided to the depressed classes. The Committee also had to arrive
at a definition of “depressed classes”. The Committee interpreted the phrase
“depressed classes” as the 'untouchability class’, that is, the class whose
touch or approach is deemed to cause pollution as it exists in the United
Provinces. 184 The report stated that the depressed classes “should not include
primitive or aboriginal tribes nor should it include those Hindus who are only
economically poor and in other ways backward but are not regarded as
untouchables.” 185 The Committee accepted the tests of untouchability
formulated by Hutton 186. Hutton had submitted a Census Report in 1931 by
which depressed castes were defined as castes, contact with whom requires
purification. The instruction which was given to determine if the caste is an
untouchable caste was as follows:
“I have explained depressed castes as castes, contact
with whom entails purification on the part of high caste
Hindus. It is not intended that the term should have any
183
Ibid, 113
184
id
185
id
186
Ibid,Pg. 112
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reference to occupation as such but to those castes
which by reason of their traditional position in Hindu
society are denied access to temples, for instance, or
have to use separate wells or are not allowed to sit
inside a school but have to remain outside or which
suffer similar social disabilities. These disabilities vary
in different parts of India being much more severe in
the south of India than elsewhere.” 187
130. The following tests were directed to be considered to determine if the caste
faces untouchability:
a. Whether the caste or class in question can be served by clean
Brahmans;
b. Whether the caste or class in question can be served by the barbers,
water-carriers, tailors, etc., who serve the caste Hindus;
c. Whether the caste in question pollutes a high caste Hindu by contact
or by proximity;
d. Whether the caste or class in question is one from whose hands a
caste Hindu can take water;
e. Whether the caste or class in question is debarred from using public
conveniences such as, roads, ferries, wells, or schools;
f. Whether the caste or class in question is debarred from the use of
Hindu temples;
187
Hutton Censes Report (1931) 471
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g. Whether in ordinary social intercourse, a well-educated member of a
caste or class in question will be treated as an equal by high caste
men of the same educational qualifications;
h. Whether the caste or class in question is merely depressed on
account of its own ignorance, illiteracy or poverty and but for that
would be subject to no social disability; and
i. Whether it is depressed on account of the occupation followed and
whether but for that occupation it would be subject to no social
disability.
131. Though the test that was proposed to be used was that of untouchability, the
criteria above and in particular, criteria (f), (g) and (h) indicate that other forms
of social disability which cannot be strictly confined to untouchability were also
considered. The report recognized that there may be a variance in the degree
of restrictions based on the degree of untouchability. For example, a few
castes may have been denied entry to a temple as compared to castes which
were denied entry to the inner sanctuary of the temple.188
132. The Note submitted by Assam casts light upon the heterogeneity amongst the
castes which face untouchability. The Note states that untouchability as it
existed in Madras, where an untouchable’s touch necessitated immediate
purification, did not exist in Assam. Mr Maullan, the Census Superintendent
in Assam defined the depressed class (which he termed as “exterior castes”)
as castes whose water is not acceptable and in addition are so deficient in
188
Ibid, 472
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education, wealth, influence, or for some reason connected with their
traditional occupations which prevents them from acquiring any further social
privileges. The Superintendent further noted that there are influential and
wealthy castes even among the jal-achals (that is, those whose water was not
acceptable). The note also distinguished the untouchability which certain
castes faced from other untouchable castes: 189
“The exterior castes themselves are, however, guilty of
similar treatment to each other and an exterior caste
which considers itself to be on a higher social level than
another exterior caste adopts exactly the same attitude
as the higher castes do towards the exterior castes. A
case which recently happened in Sunamganj illustrates
this point. The local ferryman there (a patni by caste)
was prosecuted for refusing to row a Muchi and that it
has always been the practice, if a Muchi wanted to
cross the river, for the paddle to be given to him so that
he could row himself across.”
133. The Note of the Superintendent of Assam on Mahars further elucidated the
point that there was no “uniformity” in the untouchability faced by members of
various castes. The Note explained that Mahars were included in the list of
depressed class though they were jal-chal in the limited sense in as much as
a man of the forward caste “can smoke huka filled with water by a Mahar”.
They were included because they were untouchables with respect to
everything but for smoking requirements and they were a socially and
educationally backward community:190
“I have made close and careful enquiries and there is a
general consensus of opinion that the Mahars are not
jal-chal and are a depressed class. The story of Raja
Subid Narayan made them jal-chal for smoking
requirements only, seems to be true. If the Mahars are
189
Ibid, 495
190
Ibid, 498
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at all jal-chal, they are jalchal only in the sense that a
man of the higher caste can smoke a huka filled with
water by a Mahara. There is not a single graduate
among the Maharas in this subdivision and not even a
single matriculate can be found. The deputy Inspector
of Schools reports that the only educated Maharas he
has met in the whole subdivision are three persons
working as Vernacular teachers in Primary and Middle
English Schools. So the Maharas are depressed both
socially and educationally.”
134. The list prepared by Madras noted that castes to whom the “technical stigma
of untouchability” does not apply, had been excluded from the list. This
approach when juxtaposed with the approach adopted by Assam, varies with
respect to the stringency of the untouchability standard employed.191 It is
evident that there is no one “form” of untouchability. Untouchability, like other
forms of social disability differs in degree and severity.
135. Based on the tests for identifying untouchability laid down by Hutton, the
Provincial Committee prepared the provincial estimates of depressed
classes. In Madras, Bombay and the Central Province, there was a general
agreement between the Provincial Committees and the Local Governments
on the estimate of the depressed classes because the distinction between the
depressed and other classes of the Hindu Communities was clearly defined.
On the other hand, the States of Bihar, Orissa and Assam while stipulating
the castes which faced untouchability observed that untouchability in the
States did not exist in the same form as it existed in South India.
191
Ibid, 499
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136. Mr SB Rambe, Mr CY Chintamani and Mr RR Bakhale submitted a note of
dissent, inter alia, on the depressed classes in which they claim that the tests
for untouchability were not applied with uniformity. 192 They observed that
untouchability only existed in Madras, Bombay and the Central Province.
They claimed that in other states, untouchability was not an adjunct of a
person but the occupation that they pursued and thus, those castes should
not have been included in the list of the depressed classes. 193 It is here that
the Note submitted by Dr B R Ambedkar on depressed classes is of particular
importance for it encapsulates the heterogeneity within the castes which
suffer untouchability.
137. Dr B R Ambedkar highlighted that applying a uniform criterion to identify the
depressed class would be inappropriate. Dr Ambedkar observed that the
differences in the tests of untouchability do not indicate differences in the
conditions of the untouchables because the notion underlying both the
standards would be the same, that it is below the dignity to interact or touch
persons of certain castes. He observed that the difference in the rigidity with
which untouchability is practiced does not eliminate the notion of such a
practice. 194 This indicates that the depressed classes were identified based
on the notion of untouchability and not in the literal sense of the term. The
effect of adopting the notional and not the literal test is that the social condition
of all the castes included within the depressed classes is not uniform. Though
192
Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise
Committee, 231
193
id
194
Dr Ambedkar, Note on the Depressed Classes, Report of the Franchise Committee, 211
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the Government of India (Scheduled Castes) Order 1936 did not exactly
correspond to the List published by Hutton or the Provincial Franchise
Committees, the inclusions and exclusions to the list broadly matched.195
138. The heterogeneity within the class is also evident from the Constitution
(Scheduled Castes) Order 1950 where certain castes are notified as the
Scheduled Castes in specific localities. For example, in the State of Madhya
Pradesh, of the twenty-five castes, only nine are Scheduled Castes
throughout the State. The criteria used to identify the Scheduled Castes itself
indicates that the endeavor was not to include all castes that suffered from
identical forms of untouchability. Thus, the Scheduled Castes are not a
homogenous class.
b. Empirical evidence of heterogeneity
139. Field researchers have also accounted that the Scheduled Castes are not one
homogenous class. Studies indicate that certain castes of the Scheduled
Castes are not only sociologically backward vis-à-vis the forward castes but
also amongst the Scheduled Castes themselves. AM Shah recounts that
there was much less interaction between two Dalit castes in Gujarat than
there was between a Dalit caste and a forward class. The author observes
that the priests for the Dalits are placed high amongst the Dalit castes and the
195
Galanter, supra, 130
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scavengers are placed the lowest, with the leather-workers and the rope
makers occupying the intermediary positions: 196
“Briefly, the Dalits have reproduced among themselves
a hierarchy on the model of caste hierarchy in general.
There is at the top a small caste of garodas (derived
from the Sanskrit word ‘guru’), who are priests for other
dalit castes, […] Similarly, just as there are castes of
bards for the upper castes, there is a bardic caste of
dalit mendicants called dhed bava or sadhu. The
garudas, turi barots, and dhed sadhus are accorded
certain sacredness.
The bhangis (scavengers) are the bottom of the
hierarchy and the most under-privileged. Between the
garodas and bhangis there is a large caste, the higher
stratum of which is traditionally vankar (weavers) and
the lower stratum dhed (menial servants). […] The
chamars (leatherworkers) and senwas (rope-makers)
occupy positions intermediately between the vankar-
cum-dheds and bhangis. The bhangis are the most
oppressed.”
140. The Robert F Kennedy Centre for Justice and Human Rights in collaboration
with Navsarjan (an organization that promotes the rights of Dalits) undertook
an extensive study on caste discrimination in 1589 villages in Gujarat. The
census conducted by them produced results of horizontal discrimination, the
practice by which certain Dalit castes practiced untouchability against other
Dalit castes. The study identified that the practice of food, water and religion
related untouchability is emulated within the Dalits as well. For example,
Dalits of the lower sub-caste were prevented from sitting with the rest of the
Dalit community during meals. They were not given tea when they visited the
house of a higher sub-caste. It was also found that only in twelve percent of
196
AM Shah, The ‘Dalit” category and its Differentiation; Also see AM Shah, Untouchability, the Untouchables
and Social Change in Gujarat in Dimensions of Social Life, Essays in Honor of David G Mandelbaum (edited
by Paul Hockings)
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PART D
the villages could a Dalit belonging to a lower sub-caste receive water in the
house of a Dalit of a higher sub-caste. The study also found that in 92.4
percent of the villages studied, all the Dalits did not have access to all-Dalit
burial grounds and that the lower sub-castes were denied entry into to Dalit
Temples in 79 percent of the villages. 197
141. Similarly, in Tamil Nadu, when an Arunthathiyar man and a Paraiyar woman
(both the castes find a place in the Scheduled Castes list) eloped, the
woman’s family allegedly raped the women of the man’s family in
retaliation. 198 The inequality within the Scheduled Castes in Andhra Pradesh
has also been studied. Uma Ramaswamy draws on the inequality within the
Scheduled Castes by comparing the social positions of members of the Mala
and Madiga Castes. 199 The Madigas traditionally pursue the occupation of
leather work which is assigned a lower status when compared to the weaving
occupation of Malas. The author states that neither do members of both the
castes live in the same hamlet nor do they draw water from the same well.
The study found that the hierarchy between the castes translated to their
relative progress in education, employment and political activity. In 1961, 10
percent of Malas were literate as against 5.1 percent of Madigas. In 1971, the
proportion of literates among Malas had gone up to 12.9 per cent in
comparison to 6.2 percent among the Madigas. The author stated that
hierarchy exists even within the Mala caste. Mala Jangam and Mala Desari
197
Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive
Study of Practices and Conditions in 1589 Villages, 22-33
198
Ravinchandran Bathran, The many omissions of a concept: Discrimination amongst Scheduled Castes,
Economic & Political Weekly, (Vol L1 No. 47, November 19, 2016) 1342-1346
199
Uma Ramaswamy, Protection and Inequality among Backward Groups, Economic & Political Weekly (Vol.
21 No. 9, 9 March 1986)
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PART D
are priestly castes and are spiritual advisors to Mala satellite castes. Within
the Mala satellite castes, Mala Jangam is at the top, followed by Mala
Pambala, Masti and Gurra Malas. The sub-castes also follow rules of
untouchability amongst themselves: 200
“There are certain rules that restrict the taking of food,
water and access to the temples among the Dalits. The
Malas, higher caste Dalit do not take food or water from
the Madigas, the lower caste Dalit in village India. Mala
Jangam, Mala Dasari and Mithal Ayyalwar do not eat
or drink from Malas, Madigas and Dakkal. Similarly
other castes do not take cooked food or water from
these castes. Malas and Madigas have separate wells
and temples. Malas do not take food and water from
Mastu, Gurram Malas and Madigas. But all these
castes take food and water from priestly class of Malas.
The singari, the gurus to Madigas, strictly refrain from
eating food touched or cooked by Madigas or other
satellite caste. Bindla though enjoys higher social
status in Madigas satellite caste. The higher castes do
not take either cooked food or water from Bindlas.
Being worshippers of Shakti (the power) they do not
take food or water from the hands of their satellite
castes, since they consider themselves as sacred.
Sindhu, the entertaining caste of Madigas” do not take
food or water from Dakkals but their food or water is
acceptable for Madigas. Dakkals who occupied a
lowest social status in social hierarchy accept food and
water from all castes, except Vishwa Brahamaa. The
food or water of Dakkals is not acceptable to any other
caste. Dakkals have to take food or water standing
outside Madiga houses. Thus the higher caste Dalits
do not drink or dine in common. These commenalities
indicate the foundation of Panchama hierarchy and
heterogeneous caste cleavages within Scheduled
Castes in Andhra Pradesh.”
142. Empirical evidence indicates that there is inequality even within the
Scheduled Castes. The Scheduled Castes are not a homogenous integrated
class.
200
Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327]
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PART D
vi. The power of the State to sub-classify under Articles 15 and 16
143. Article 16(4) provides the State with the enabling power to make provisions
for reservations in appointments or posts in favour of “any backward class of
citizens”. The provision, unlike Article 15(4), does not distinguish amongst the
Scheduled Castes, Scheduled Tribes, and other Socially and Educationally
Backward Classes. In Indra Sawhney (supra), this Court defined the
backward class in terms of social backwardness. Social backwardness is
attributable to several identities such as caste, gender and disability. Though,
the backwardness caused due to these multiple identities are all collectively
within the ambit of the backward class for the purposes of Article 16(4), the
State is free to recognize the heterogeneity amongst the class and provide
separate reservation to women and the Scheduled Castes to deal with the
purpose.
144. Article 15(4) recognizes the power of the State to make “any” special
provisions for the advancement of “any” socially and educationally backward
classes of citizens or for “the” Scheduled Castes and “the” Scheduled Tribes.
Article 15(5) is similarly worded. It was submitted before this Court that the
use of the preposition “any” before the socially and educationally backward
class as opposed to the phrase “the” before Scheduled Castes and
Scheduled Tribes indicates the Scheduled Castes and Scheduled Tribes are
a homogenous integrated class. We do not agree with the submission. The
provision provides the State with the power to make “any” special provisions
for the Scheduled Castes and the Scheduled Tribes. Thereby, it recognizes
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the wide power of the State to employ a range of means to secure substantive
equality. This would include sub-classification within the Scheduled Castes.
145. The first prong of the test for sub-classification is whether the Scheduled
Castes form a homogenous integrated class for all purposes. We have held
above that even if Article 341 creates a deeming fiction, the provision does
not create an integrated class that cannot be further sub-classified. The
provision only puts certain castes or groups or parts of them into a group
called the Scheduled Castes. The castes or groups within the Scheduled
Castes form an integrated class for the limited purpose of constitutional
identification. They do not form an integrated class for any other purpose. We
have also established through historical and empirical evidence that the
Scheduled Castes notified by the President under Article 341 are a
heterogenous class where groups within the class suffer from varying degrees
of social backwardness. Thus, the first test is satisfied.
146. The State in exercise of its power under Articles 15 and 16 is free to identify
the different degrees of social backwardness and provide special provisions
(such as reservation) to achieve the specific degree of harm identified. If the
Scheduled Castes are not similarly situated for the purposes of the law (or the
specific harm identified), there is nothing in Articles 15, 16 and 341 which
prevents the State from applying the principle of sub-classification to the
class. Thus, the Scheduled Castes can be further classified if: (a) there is a
rational principle for differentiation; and (b) if the rational principle has a nexus
with the purpose of sub-classification.
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147. One of the issues before this Court in Chinnaiah (supra) was whether the
State has the legislative competence to sub-classify. Justice Santosh Hegde
observed that having once fulfilled the mandate of providing reservations
under Articles 15(4) and 16(4), the enactments were beyond the legislative
competence of the State because - first, the primary object of the law was
grouping of sub-castes and apportionment of reservations was merely
consequential and second, the State could not under Entry 41 of List II and
Entry 25 of List III (of the Seventh Schedule) dealing with State services and
education respectively, divide the Scheduled Castes List. 201 Justice Sinha
noted that the legislative competence of the State legislatures under Article
246 is subject to the other provisions of the Constitution, namely Article 341
of the Constitution. 202
148. The opinions in Chinnaiah (supra), conflate the issue of legislative
competence, which is referrable to Articles 245 and 246, with the power to
ensure substantive equality under Articles 15 and 16. Article 245 read with
the Seventh Schedule lays down the legislative competence of the State
Legislatures and Parliament. Articles 15(4) and 16(5) recognize the power of
the State to make special provisions for the advancement of the backward
class, including the Scheduled Castes. These provisions permit the State to
confer the benefit of affirmative action on classes where it is most necessary.
Thus, the power of the State to sub-classify the Scheduled Castes for the
purpose of affirmative action, including reservations, is traceable to Articles
201
Chinnaiah (supra) [Justice Hegde, 31]
202
Chinnaiah (supra) [Justice Sinha, 90]
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15(4) and 16(5) in the case of educational institutions and appointments,
respectively.
vii. Criteria for sub-classification
149. The object of the special provisions in Articles 15(4) and 16(4) is to provide
substantive equality to the beneficiary class. 203 Inter-se backwardness within
the class is a roadblock to achieving substantive equality. Sub-classification
is one of the means to achieve substantive equality. But the crucial question
is, what should be the rational principle to distinguish categories within the
Scheduled Caste? Should it be based on the form of untouchability or any
form of inter-se social backwardness? We will discuss the rational principle
which must be used for sub-categorization in this segment of the judgment.
150. It is important to understand the provision from the perspective of the
beneficiary class for whose advancement it has been adopted, to elucidate
the rational principle for differentiation. Though both Articles 15(4) and 16(4)
share a similarity to the extent that they enable the State to provide affirmative
action policies, there exist some dissimilarities in the language of the
provisions. Firstly, Articles 15(4) and 16(4) deal with different spheres. Article
15(4) is a general provision which gives effect to the principle of substantive
equality by recognizing that the non-discrimination provisions shall not
prevent the State from making “any special provision” for the advancement
of the beneficiary class. On the other hand, Article 16(4) deals specifically
203
See NM Thomas (supra)
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with matters of public employment. Secondly, Article 16(4) only deals with
reservation while Article 15(4) recognizes other forms of affirmative action.
Article 15(4) is broader and all-encompassing as compared to Article 16(4).
Thirdly, the beneficiary class under Article 15(4) must be “socially and
educationally backward” while the class under Article 16(4) is a backward
class which is not adequately represented. The Scheduled Castes and the
Scheduled Tribes are expressly carved out in Article 15(4), unlike Article
16(4), where they are encompassed within the “backward class”.
151. One of the issues that must be adjudicated while discussing the scope of the
provisions is whether the beneficiary classes in Articles 15(4) and 16(4) are
different. This issue must be decided with reference to:
a. The use of the qualifiers “socially and educationally” backward in
Article 15(4); and
b. The use of the qualifier “adequate representation” in Article 16(4).
a. The meaning of “Backward Class”
152. Article 15(4), unlike Article 16(4), provides that the beneficiary class for the
purposes of the provision must be socially and educationally backward. In
Balaji (supra), this Court held that the beneficiary class under Article 15(4)
must be both socially and educationally backward. Justice Gajendragadkar
observed that caste, occupation and poverty are important factors for
determining the socially backward class. 204 This was reiterated in Janki
204
MR Balaji v. State of Mysore, AIR 1963 SC 649 [24,25]
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Prasad Parimoo v. State of Jammu and Kashmir 205. Justice D G Palekar
writing for this Court made a crucial observation on the relationship between
social and educational backwardness. The learned Judge observed that
though the phrases ‘socially’ and ‘educationally’ are used cumulatively for the
purposes of identifying the backward class under Article 15(4), “if a class as
a whole is educationally advanced it is generally also socially advanced
because of the reformative effect of education on that class”. 206 The
relationship between social and educational backwardness where social
backwardness contributes to educational backwardness was reiterated in
Indra Sawhney (supra). Thus, though the criteria of socially and
educationally backward class must be cumulatively read for the purposes of
identifying the beneficiary class, they are not mutually exclusive concepts.
They have a causal relationship, where the educational backwardness of a
class is an impact of its social backwardness.
153. The next issue is whether the beneficiary classes in Article 15(4) and Article
16(4) are the same even though, unlike Article 15(4), Article 16(4) does not
include the qualifiers of “social” and “educational”. In Janki Prasad Parimoo
(supra), this Court read the requirement of social and educational
backwardness into Article 16(4).207 This was reiterated in Vasant Kumar v.
State of Karnataka208 by a Constitution Bench of this Court. However, in
205
(1973) 1 SCC 420
206
(1973) 1 SCC 420 [24]
207
(1968) 2 SCR 786
208
1985 Supp SCC 714; Justice Chinnappa Reddy observed that “backward classes of citizens referred to
in Article 16(4), despite the short description, are the same as the socially and educationally backward
classes of citizens and the Scheduled Castes and the Scheduled Tribes, so fully described in Article 15(4).”
Justice Sen and Justice Venkataramiah (as the learned Chief Justice then was) observed that Articles 15(4)
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Indra Sawhney (supra), Justice B P Jeevan Reddy speaking for four Judges
(Chief Justice Kania, Justice Venkatachaliah, Justice AM Ahmadi and
himself) observed that there is no basis for this assumption. The learned
Judge observed that Article 16(4) applies to a much larger class. The socially
and educationally backward class is one of the categories, to which Article
16(4) applies. The socially and educationally backward classes are included
within the broader class to which Article 16(4) applies. Justice Jeevan Reddy
also held that reading educational backwardness in Article 16(4), which deals
with reservation in appointments at any level, would not appropriate:
“787. […] “Backward class of citizens” in Article 16(4)
takes in Scheduled Tribes, Scheduled Castes and all
other backward classes of citizens including the
socially and educationally backward classes. Thus,
certain classes which may not qualify for Article 15(4)
may qualify for Article 16(4). They may not qualify for
Article 15(4) but they may qualify as backward class of
citizens for the purposes of Article 16(4). […] Thus,
SEBCs referred to in Article 340 is only [one] of the
categories for whom Article 16(4) was enacted: Article
16(4) applies to a much larger class than the one
contemplated by Article 340. It would, thus, be not
correct to say that ‘backward class of citizens’ in Article
16(4) are the same as the socially and educationally
backward classes in Article 15(4). Saying so would
mean and imply reading a limitation into a beneficial
provision like Article 16(4). Moreover, when speaking
of reservation in appointments/posts in the State
services- which may mean, at any level whatsoever-
insisting upon educational backwardness may not be
quite appropriate.”
154. The observation above must not be read in a vacuum. The purport of the
observation by Justice Jeevan Reddy is clarified in the subsequent paragraph
and 16(4) are intended for the benefit of those who belong to casts, communities which are traditionally
disfavored and which have suffered societal discrimination in the past.
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where the learned Judge observed that though educational backwardness is
not to be excluded as a criterion, social backwardness must have caused
educational backwardness:
“788. […] It goes without saying that in the Indian
context, social backwardness leads to educational
backwardness and both of them together lead to
poverty- which in turn breeds and perpetuates the
social and educational backwardness. They feel upon
each other constituting a vicious cycle. It is a well-
known fact that till independence the administrative
apparatus was manned almost exclusively by
members of the ‘upper’ castes. The Shudras, the
Scheduled Castes and the Scheduled Tribes and other
similar backward social groups among Muslims and
Christians had practically no entry into the
administrative apparatus. It was this imbalance which
was sought to be redressed by providing for
reservations in favour of such backward classes.[…]
We are, accordingly, of the opinion that the
backwardness contemplated by Article 16(4) is mainly
social backwardness. It would not be correct to say that
the backwardness under Article 16(4) should be both
social and educational.”
155. In Indra Sawhney (supra), Justice Pandian defined the backward class of
citizens as “a group of persons having common traits or attributes coupled
with retarded social, material (economic) and intellectual (educational)
development in the sense that not having so much of intellect and ability will
fall within the ambit of ‘any backward class of citizens’ under Article 16(4)”.209
The learned Judge further elucidated that the “primary consideration” in
identifying the backward class is social backwardness. 210 Justice Sawant also
observed that in identifying the beneficiary class under Article 16(4), social
backwardness must be given importance. Justice Sawant held that the
209
(1992) Supp (3) SCC 217 [58]
210
(1992) Supp (3) SCC 217 [117]
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criterion for the identification of the beneficiary class is whether it is socially
backward and whether the class which is educationally and economically
backward, is so because of its social backwardness. 211
156. Justice Kuldip Singh adopted a different approach. The learned Judge held
that the beneficiary classes in Articles 15(4) and 16(4) are different. Justice
Kuldeep Singh observed that unlike the determination of the beneficiary class
in Article 15(4) which must be socially and educationally backward, the class
identified for the purposes of Article 16(4) need not be backward because:
a. The Constituent Assembly Debates indicate that reservation under
Article 16(4) is to provide access to communities that have not had a
‘look in’ at the administration of the State. The object of including the
phrase “backward” in Article 16(4) - which did not find a place in the
initial draft - was only for the purpose of reducing the number of
claimants for the reserved posts; 212
b. Inadequate representation in the services of the State is the only test
for the identification of the beneficiary class under Article 16(4).
Inadequate representation can be identified based on occupation,
economic criterion, family income, political sufferers, border areas,
backward areas, communities kept out of State services or any other
means. 213 The ‘backward class’ must be culled out from the classes
which are inadequately represented214;
211
(1992) Supp (3) SCC 217, [Justice Thommen, 273]; [Justice Sawant 441,552]
212
(1992) Supp (3) SCC 217 [363]
213
(1992) Supp (3) SCC 217 [368]
214
(1992) Supp (3) SCC 217 [364]
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c. The backward class cannot be classified into adequately represented
and inadequately represented. A class that is adequately represented
cannot be considered backward. Reading the qualifier of inadequate
representation with respect to the backward class would render the
former expression redundant; and 215
d. The Constitution has expressly mentioned the Scheduled Castes and
the Scheduled Tribes whenever the Constitution grants protection to
the “weaker classes”.216
157. Contrary to the opinion of Justice Kuldeep Singh, which held that the
determining character of the class in Article 16(4) is not backwardness but
inadequacy of representation 217, the majority in Indra Sawhney (Justice
Reddy writing for four Judges, Justice Pandian and Justice Sawant) held that
the predominant factor which must be employed to identify the “backward
class” must be social backwardness. The majority also held that the backward
class in Article 16(4) subsumes the socially and educationally backward class
identified under Article 15(4).218 Thus, the objective of both Articles 15(4) and
16(4) is to ensure substantive equality by uplifting the socially backward class.
215
(1992) Supp (3) SCC 217 [366]
216
(1992) Supp (3) SCC 217 [367]
217
See opinion of CJ Ray in MN Thomas (supra)
218
(1992) Supp (3) SCC 217 [Justice Reddy,787]; [Justice Sahai, 583]
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b. Inadequacy of representation in services of the State
158. The issue on the identification of beneficiaries which will impact the scope of
reservation is whether the class is both backward and inadequately
represented. That is, whether they are mutually exclusive qualifiers. In Indra
Sawhney (supra), Justice Sawant writing the concurring opinion observed
that only classes which are inadequately represented must be provided
reservation under Article 16(4). In the opinion of the learned Judge, a class
that is backward will cease to be a beneficiary when the class becomes
adequately represented. This observation aligns with the argument that
reservation must not be provided once the goal of the provision, which is
securing adequate representation is achieved.
159. To navigate this issue, it is necessary that we refer to the debates of the Sub-
Committee of Minorities and Sub-Committee of Fundamental Rights to
ascertain the reason for the inclusion of the phrase “inadequate
representation” in Article 16(4). The Objectives Resolution which was
introduced by Mr Jawaharlal Nehru on 13 December 1946 resolved to provide
adequate safeguards for minorities, backward and tribal areas, and the
depressed and other backward classes. The equality provision in the first draft
report submitted by the Sub-Committee on Fundamental Rights did not
provide for reservation of seats for the backward community or the minorities.
Though the report included provisions emphasizing anti-discrimination and
equal opportunity, it did not recommend an enabling provision for affirmative
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action. 219 The Sub-Committee on Minorities along with the Fundamental
Rights Sub-Committee decided to examine the clauses recommended to
determine if any of them required to be amended to protect minority rights.
During the discussion, Mr KM Munshi stated that reservation may have to be
made for the minorities in public employment. 220 An Advisory Committee was
formed to make recommendations on how best to reconcile the anti-
discrimination provision with the provision for reservation. The Sub-
Committee on Minorities recommended that a proviso may have to be added
to meet the claims of representation of the marginalized communities.221
160. After the discussion, Dr Ambedkar representing the Advisory Committee,
suggested the inclusion of the following provision:
“Nothing herein contained shall prevent the State from
making provisions for reservation in public services in
favour of classes as may be prescribed by the
State.”
(emphasis supplied)
161. The Sub-Committee on Fundamental Rights debated two issues related to
the above clause. First, whether the word “minority” or “class” must be used
219
There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use
of wells, ranks, roads, schools and places of public resort maintained wholly or party out of public funds or
dedicated to the use of the general public
(b) There shall be equality of opportunity for all citizens-
(i) in matters of public employment
(ii) in the sercise or carrying on of any occupation, trade, business or profession;
and no citizen shall on any of the grounds aforesaid be ineligible for public office or be prohibited from
acquiring, holding or disposing of property or exercising or carrying on any occuptation, trade, business or
profession within the Union
(2) Any enactment, regulation, judgment, order, custom or interpretation of law, in force immediately before
the commencement of this Constitution by which any penalty, disadvantage, or disability is imposed upon or
any discrimination is made against any citizen on any of the grounds aforesaid shall cease to have effect.
220
B Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public
Administration] 221
221
Ibid, 258-259; KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason
which I gave was that minorities in India have come to have a specific meaning, that is to say, religious or
political minorities, Muslims, Sikhs etc.
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to signify the beneficiaries. The debates indicate that the phrase “class” was
preferred over “minority” because the latter has a specific connotation, that is,
religious or political minorities and this would exclude classes who constitute
the majority but are yet not adequately represented. The reason is best
explained by Dr Ambedkar in the Annexure to the Memorandum and Draft
Articles on the Rights of States and Minorities, where he noted that “to make
religious affiliation the determining factor for constitutional safeguards is to
overlook the fact that religious affiliation may be accompanied by an intense
degree of social separation and discrimination”. 222
162. The second issue was whether the provision must be qualified with the phrase
“adequately represented”. A few members expressed the fear that the use of
the phrase “adequate representation” would become litigious. 223 In spite of
this apprehension, the phrase was retained to restrict the discretion of the
State since the phrase “class” and not “minority” was adopted. Without the
phase “adequate representation”, the clause would have also included
reservations for adequately represented majorities for whom the benefit was
not intended. However, with the inclusion of the phrase “adequately
represented” qualifying the phrase “classes”, the benefit of the provision
extends to classes which may be considered ‘majorities’ but are yet
inadequately represented. 224
222
Shiva Rao, supra, 109
223
BR Ambedkar: “I am omitting the words “not adequately represented”. If we have the words “not
adequately represented”, any reservation made by the State may be open to be challenged in a court. The
court may say that reservation is made for a class although it is adequately represented.”
224
KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave was
that minorities in India have come to have a specific meaning, that is to say, religious or political minorities,
Muslims, Sikhs etc. Sikh, Muslim, Depressed Classes, either a political or religious minority. The meaning
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163. The debates in the Sub-Committee on Fundamental Rights and Sub-
Committee on Minorities indicate that the beneficiaries of reservation are
classes that are not “adequately represented” and this could include classes
which are numerical majorities. Provisions for reservation are now available
not only to the members of the Scheduled Castes and Scheduled Tribes but
also of the socially and educationally backward classes which are numerical
religious majorities. The phrase “backward” preceding “class” was absent in
the draft circulated by the Sub-Committee. The phrase was included in Article
10 of the Draft Constitution. The inclusion of the phrase backward along with
the qualifier of adequate representation clarifies the scope of the beneficiary
class.
164. Dr B R Ambedkar stated in the Constituent Assembly that reservations under
Article 10 of the Draft Constitution [Article 16 of the Constitution of India] are
given to those who have not had a “proper look-in” to the administration
because it has historically been controlled by a few communities. 225 Referring
to the above observations of Dr Ambedkar, Justice Jeevan Reddy held in
Indra Sawhney (supra) that the objective of Article 16(4) is to ensure that the
backward classes get the opportunity to share state power.226
has come to that. There may be among the majority, among the Hindus for example, many classes who have
not adequate representation in the services.”
225
CAD Vol 7. P. 701
226
Reddy J [694] “[…] In short, the objective behind Article 16(4) is empowerment of the deprived backward
communities- to give them a share in the administrative apparatus and in the governance of the community.”
Also see Paragraph 161 where Justice Pandian states that “inadequate representation is not confined to any
specific section of the people, but all those who fall under the group of backwardness whether they are
Shudras of Hindu community or similarly situated other backward classes of people in other communities,
namely, Muslims, Sikhs, Christians etc.
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165. It is clear from the debates extracted above that the purpose of the reservation
clause is to remedy the inadequate representation in public services of certain
“classes”. The cause for inadequate represented could be two-fold. First, it
may be a result of laws that expressly excluded certain classes from
accessing the good, that is posts in public service. Second, it may be the
result of a class being excluded not expressly by law but through social
exclusion. A class may be socially excluded from accessing skills which are
relevant for acquiring the good. These restrictions could either be in the form
of social and informal or legal and formal restrictions.
166. In Indra Sawhney (supra), Justice Jeevan Reddy observed that a class for
the purpose of securing reservations under Article 16(4) should not only be a
backward class but must also be inadequately represented in the services of
the State. 227 Thus, the beneficiary class is not to be determined solely on the
basis of whether the class is a numerical minority or a majority in the services
of the State. The focus instead is on identifying classes that have been
excluded from public services not as a matter of chance or choice but
because of the operation of the system of hierarchy. Thus, both the phrases,
“backward” and “not adequately represented,” in Article 16(4) cannot be
interpreted in a mutually exclusive manner in determining the beneficiary
class under Article 16(4). The intent of Article 16(4) is to cover those classes
which have been inadequately represented because of their backwardness.
227
Also see Nagaraj (supra) where this Court observed that the discretion of the State under Article 16(4) is
subject to the existence of “backwardness” which must be based on objective factors and “inadequacy of
representation” which must factually exist.
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Thus, the requirement of inadequate representation cannot be detached from
the requirement of backwardness.
c. The requirement of “effective” representation
167. Conventionally, the State has assessed if the class is adequately represented
by comparing the representation of the class in the services to the total
population of the State. 228 However, adequacy of representation when
determined purely from a numerical perspective without accounting for factors
such as representation vis-à-vis posts would dilute the purpose of the
provision. The objective of Article 16(4) is to ensure effective representation
of the class in the services of the State across posts and grades. Classes
which are socially backward occupy the lowest of the social strata primarily
because of the traditional occupation accorded to the class by social rules.
For example, certain Dalit castes are regarded as scavenger castes. Even
with the provision of reservation, it is very difficult for the backward classes to
shed the traditional occupation that is ascribed to them by society and
optimize the opportunities even at the lowest levels. The struggles that the
class faces do not disappear with their representation in the lower grades.
The endeavor is to ensure true and effective representation of the socially
backward classes across posts.
168. Opportunities for real and effective representation must be created in all posts
and grades. The objective of the provision is not to emulate the existing social
See RK Sabharwal v. State of Punjab, (1995) 2 SCC 745 [4]; BK Pavitra (II) v. State of Kerala, (2019) 16
228
SCC 129 [107]; Indra Sawhney, (1992) Supp (3) SCC 217 [807 and 808]
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hierarchy where the low-grade posts are occupied by the socially backward
while supervisory and managerial posts continue to be occupied by the
advanced classes. If the objective of Article 16(4) is to be achieved in the
truest sense, the inadequacy of representation must not be determined only
on the basis of the total number of members of the backward class in the
services of the State but by assessing the representation of the class across
various posts.
169. The meaning of the phrase “adequate representation” fell for the
consideration of this Court in Rangachari (supra). Writing for the majority,
Justice Gajendragadkar observed that adequate representation means not
only numerical representation but qualitative representation as well:
“25. […] This condition precedent may refer either to
the numerical inadequacy of representation in the
services or even to the qualitative inadequacy of
representation. The advancement of the socially
and educationally backward classes requires not
only that they should have adequate
representation in the lowest rung of services but
that they should aspire to secure adequate
representation in selection posts in the services as
well. In the context the expression “adequately
represented” imports considerations of “size” as well as
“values”, numbers as well as the nature of
appointments held and so it involves not merely the
numerical test but also the qualitative one. It is thus by
the operation of the numerical and a qualitative test that
the adequacy or otherwise of the representation of
backward classes in any service can be judged.”
(emphasis supplied)
170. On the other hand, Justice Wanchoo and Justice Rajgopala Ayyangar
observed that the phrase ‘adequate representation’ only conveys the
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meaning of inadequacy of representation in the quantitative sense and does
not convey any idea of equality. 229 In Triloki Nath v. State of Jammu and
Kashmir (I) 230, a reservation policy providing 50 percent of the seats to
Muslims from Jammu and Kashmir, 60 percent of the remaining fifty percent
seats to Hindus from Jammu and the remaining 40 percent of the 50 percent
to Kashmiri Pandits was challenged. The State contended that the sole test
of backwardness for the beneficiary class under Article 16(4) is inadequacy
of representation in the services of the State. The Constitution Bench rejected
the argument, observing that if it is accepted, the benefit would be conferred
only on the ‘rich and cultured’ who are socially and educationally advanced.
171. Justice Jeevan Reddy also adopted a value-ridden interpretation of the
phrase “adequately represented” in Indra Sawhney (supra). The learned
Judge held that the principal test to determine the adequacy of representation
is “effective representation or effective voice in the administration” and not
mere numerical presence. Effective representation can only be achieved, in
this view, when there is adequate representation at all levels or posts in the
administration. Justice Sawant also adopted a similar approach.231
229
Justice Wanchoo’s opinion “32. Therefore, when Article 16(4) says that reservation may be made in order
that any backward class of citizens may be adequately represented in the services it means that reservation
may be made in order to make the number of any backward class sufficient in the services under the State.
These words do not in my opinion convey any idea of equality […]; Justice Ayyangar [Paragraph 43]: “[…] I
have drawn attention to this because it pointedly demonstrates that the correct view is that when “inadequacy
of representation” is referred to in Article 16(4) as justifying a reservation, the only rational and reasonable
construction of the words are that it refers to a quantitative deficiency in the representation of the backward
classes in the service taken as a whole and not to an inadequate representation at each grade of service or
in respect of each post in the service.”
230
(1967) 2 SCR 265
231
(1992) Supp (3) SCC 217 [517]
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172. We are in complete agreement with the opinions of Justice Jeevan Reddy in
Indra Sawhney (supra) and Justice Gajendragadkar in Rangachari (supra)
on this aspect which is being discussed in the present segment. Adequate
representation means meaningful and effective representation. The sphere of
public services is a constitutionally recognized realm for reservation because
being a part of the administrative mechanism of the State is itself an indicator
of social power. It is for the same reason that the Constitution, when it was
adopted, guaranteed reservation in the legislature. However, there exists a
hierarchy in social power within the sphere of public service. Positions that
are higher up in the pyramid are positions that command greater authority.
For example, let us assume a situation where the Class III and Class IV posts
in the State are filled by members of a certain class while the higher positions
of authority and power are filled by members of a certain class. This
demographic of representation, if the service is taken as a whole unit, does
not paint a realistic picture of the inequality that persists within the sphere. If
numerical representation is used as an indicator, provision for representation
will have to be made in favour of classes which are unrepresented in Class III
and Class IV which does not align with the purpose of the provision. In fact,
that would be nothing but another indicator of the existence of unequal social
structures where members of the backward classes are subject to the
authority and power of the more advanced. Thus, a numeric-representation
focused interpretation of the phrase ‘inadequate representation’ does not
fulfill the purpose of the provision.
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173. In view of the discussion above, the following principles are summarized with
respect to the objective and yardstick for identifying the beneficiary class
under Articles 15(4) and 16(4):
a. The beneficiary class in Article 15(4) must be a socially and
educationally backward class. “Socially and educationally backward”
are not mutually exclusive concepts. The phrase constitutes a
constitutional recognition of the sociological reality that educational
backwardness is caused by the social backwardness of the class;
b. The beneficiary class in Article 16(4), similar to the class under Article
15(4), must predominantly be socially backward. The purpose of both
the provisions is to ensure substantive equality of opportunity to the
socially backward communities. The beneficiary class in Article 16(4)
subsumes the socially and educationally backward classes under
Article 15(4);
c. The qualifier of inadequate representation in Article 16(4) is not
mutually exclusive of the requirement of backwardness. The
inadequate representation of the class in the services of the State
must be because of social backwardness; and
d. The adequacy of representation must be determined based on the
standard of effective representation and not numerical representation.
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d. Yardstick for sub-classification
174. This takes us to the next question. What must be the rational basis for sub-
classification within the beneficiary classes? Since the purpose of Articles
15(4) and 16(4) is to ensure equality of opportunity of the socially backward
classes, the criterion for sub-classification within a class (be it the Other
Backward Classes or the Scheduled Castes or Tribes) must be an indicator
of social backwardness. The yardstick for classification must differentiate the
class based on inter-se social backwardness. The inter-se backwardness
could be identified based on the same or different identity. The State has
identified the Other Backward Classes, the Scheduled Castes and the
Scheduled Tribes. 232 Here, the State sub-classifies based on the same
identity, that is, social backwardness because of caste identity. Horizontal
reservation is provided to classes which face backwardness due to identities
other than caste such as gender233 and disability 234. Here, the State sub-
classified based on a different identity.
175. Though Article 16(4) only refers to the “backward class” collectively, the
Scheduled Castes are differentiated because they suffer from social
backwardness in the form of untouchability which leads to educational and
economic backwardness. The Scheduled tribes are classified as a separate
class because they suffer from social backwardness because of their spatial
and cultural isolation from the rest of the population. 235 Since the State can
232
See the Central Educational Institutions (Reservation in Admission) Act 2006
233
Seats have been reserved for women through executive notifications issued by various states.
234
See The Rights of Persons with Disabilities Act 2016, Sections 32, 34
235
Galanter,supra, 147
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use any yardstick to determine inter-se backwardness, it is not necessary that
the criteria for sub-classification and the criteria used to distinguish the class
from the other classes must be the same. That is, if the criteria for recognizing
the Scheduled Castes as a backward class is untouchability, it is not
necessary that the group can be sub-classified only if there is inter-se
backwardness due to the same identity (that is, untouchability).
176. The Scheduled Castes are a collection of castes, races or tribes or parts of
groups, races or tribes. 236 Caste is both a unit in the sense that it consists of
a homogenous group of people and is also an indicator of backwardness
because it is an occupational grouping.237 The nexus between caste and
occupation continues to persist, more predominantly in the rural areas. This
position has been expounded by numerous cases right from Balaji (supra) to
Indra Sawhney (supra). A caste whose traditional occupation is that of
scavenging and another caste whose traditional occupation is that of weaving
may both face the stigma of untouchability. However, the caste whose
traditional occupation is that of scavenging will be more socially backward
when compared to the weaver caste because of the caste-occupation-poverty
nexus.
177. How does the State identify inter-se social backwardness within the
Scheduled Castes? As discussed above, the inter-se backwardness can,
inter alia, be identified based on inadequacy of effective representation.
However, it must be proved that inadequacy of effective representation of a
236
Constitution of India 1950; Article 366(24)
237
(1992) Supp (3) SCC 217 [ Justice Jeevan Reddy, 779]
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caste is because of its social backwardness. I have had the benefit of reading
the erudite opinion of my learned Brother, Justice Gavai. My learned Brother
and I agree that the State must prove that the group/caste carved out from
the larger group of Scheduled Castes is more disadvantaged and
inadequately represented.
viii. The limits of sub-classification
178. Having held that sub-classification of the Scheduled Castes for the purposes
of reservation is valid and having laid down the yardstick which must be used
for further categorization, the next issue that falls for our consideration is its
scope. In this section, we will answer the following issues:
a. Whether the State should earmark seats for the each of the sub-
categorized classes or follow a preference model; and
b. Whether the State can allocate seats or preference for each of the
castes in the Scheduled Castes List.
This section is not intended to prescribe an inflexible criterion for the State. Our
analysis will lay down broad constitutional parameters without trenching on matters
of policy.
a. Model of special provisions
179. A crucial issue which arises for consideration is with respect to the model of
reservations for the sub-classified classes. There are two models that the
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State may employ while reserving seats for the sub-classified castes. It needs
to be analyzed if both the methods are constitutional.
180. In the first model, the class(es) that are more socially backward are given a
preference to all the seats that are reserved for the Scheduled Castes. There
are two variations of this model. In the first variation, certain castes are given
a preference over all the seats reserved for the category of Scheduled Castes.
In other words, the sub-categorized class will get the first bite at the apple. In
the second variation, the sub-categorized class will have a preference over a
certain percentage of seats. Any unfilled seats will be available to the other
categories.
181. In the second model, seats shall be exclusively available to certain castes.
The exclusive model differs from the preference model to the limited extent
that in the former, the seats that are not filled will be carried over to be filled
by the same castes in the subsequent year while in the latter, the seats that
are not filled will be available to the other castes within the same class. There
are two variations to this model as well. In the first variation, a certain
percentage of seats will be reserved for the sub-categorized class and the
State shall carry forward the unfilled seats, if any, to be filled by the same
class in the subsequent year. In the second variation, all the seats are
exclusively available to a certain caste from the category and the State shall
carry forward the unfilled seats.
182. Whether the preference or the exclusive model is unconstitutional would
depend on whether the variation in-effect excludes any caste notified as a
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Scheduled Caste with respect to that State by the President under Article
341(1). With respect to the preference model, the first variation by which
preference is given to certain castes to all the seats would be an
unconstitutional approach because there is a possibility that other categories
within the class of the Scheduled Castes are excluded. For example, if the
State grants preference to three of the thirty castes classified as the
Scheduled Castes over all the seats reserved for the Scheduled Castes, it is
possible that the three castes exercise their preference and fill up all the
seats. This would lead to a situation where the other twenty-seven castes
classified as the Scheduled Castes would be excluded from the benefit of
reservation. This model will be arbitrary and unreasonable also because the
Other Backward Classes which are socially advanced compared to the castes
classified as the Scheduled Castes would receive the benefit of reservation
but the castes or groups within the Scheduled Castes would not. The castes
classified as the Scheduled Castes must be given the opportunity to secure
the benefit. If not, the provision would become otiose for their purposes.
183. However, the second variation of the first model is differently placed vis-à-vis
the scope of Article 341(2). In the second variation, preference to certain
castes is given only over a certain percentage of the seats. Thus, castes for
whom preference is not given but which are included in the List of Scheduled
Castes will be able to compete for a certain percentage of seats. In addition
to those seats, they may get the opportunity to compete for the percentage of
seats reserved for the sub-classified caste, if they are left unfilled. Thus, this
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model does not have the effect of excluding any of the castes in the
Scheduled Castes List.
184. The difference between the first and the second model is the method in which
unfilled vacancies of the more-backward sub-category are to be filled. In the
former, the more backward sub-category only has a preference to a certain
percentage of seats while in the latter, a percentage of the seats is exclusively
available to them and the unfilled seats, if any, will not be available to be filled
by the more advanced category of the class. The State may carry forward the
unfilled vacancies to the subsequent year which will be available to the same
category for which the seats were reserved.
185. Article 16(4-B) provides that the State can consider carrying forward the
unfilled vacancies of the year, which were reserved to be filled by classes
under Article 16(4) and 16(4-A), to the subsequent year or years. The
provision further provides that the unfilled vacancies shall not be considered
together with the vacancies of the subsequent year for determining the ceiling
of fifty percent reservation on total vacancies for that year.
186. Article 16(4-B) does not make any distinction between a class and sub-
classified classes. The provision stipulates that the State can carry forward
vacancies of unfilled seats which were reserved to be filled under Articles
16(4) and 16(4-A) of the Constitution. As held in the preceding section, the
power of the State to sub-classify within the Scheduled Castes is traceable to
Article 16(4). Further, the seats that remain unfilled will not in any manner
reduce the seats which are available to the other sub-categories of the
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Scheduled Castes. The Constitutional validity of Article 16(4-B) was upheld
in Nagaraj (supra). Thus, there is no reason to prevent the State from
exercising its power under Article 16(4-B) of carrying forward the vacancies
which are reserved for a specific sub-category. Such an exercise will be legal
and valid.
187. Like the first model, the constitutionality of the exclusive model depends on
the percentage of reservation for the sub-categorized castes. The model of
sub-classification will be unconstitutional if it excludes some Scheduled
Castes from the benefit. This, similar to the first variant of the preference
model, would violate of Article 341(2), and would thus be unconstitutional.
However, the second version of the exclusive model in which only a certain
percentage of seats is exclusively allotted to the sub-classified castes would
be constitutional. For example, if ten percent of the seats reserved for the
Scheduled Castes are reserved for the more backward among Scheduled
Castes, the other castes will have the chance to compete for the other ninety
percent of the seats, thus, not excluding any of the castes. The sole test is
whether the operation of the policy has the effect of eliminating the possibility
of castes or groups competing for the seats reserved for the Scheduled
Castes.
188. Article 341(2), as we have noted above, unambiguously prevents inclusion in
and exclusion from the Scheduled Castes List by anyone except Parliament.
Inclusion could be by way of extending the benefits meant for Scheduled
Castes in the State, to a community that is not specifically mentioned in the
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State Scheduled Castes List (as was the case in Milind (supra)), by reading
as a part of an enumerated entry or by reading it as a synonym of an
enumerated entry. Such an exercise is not open to the States or for that matter
to the Courts. Only Parliament is entrusted with the power to make inclusions
to or exclusions from the Lists of Scheduled Castes and Tribes. The thrust of
the prohibition, as Dr Ambedkar also indicated, is a proscription on the
elimination of an entry or addition of an entry to the List. Such elimination or
addition, it was apprehended could arise out of political calculations in the
hope of short-term electoral gains. Therefore, only Parliament is invested with
the exclusive power to make such variations to the List. Any legislative effort
by the State that does not either include unspecified communities or exclude
specified communities from the Scheduled Castes List applicable to that State
does not fall foul of Article 341(2) of the Constitution.
189. The state has the power to follow either of the two permissible models
discussed above while reserving seats through sub-classification. The
decision of the State to choose from either of the two models will depend on
multiple considerations such as the degree of backwardness of certain castes
vis-à-vis the other castes and the total number of qualifying candidates
belonging to the Scheduled Castes (both the more backward castes of the
Scheduled Castes and the others).
190. The course of action adopted by the State is subject to judicial review, when
faced with a constitutional challenge. Where the action is challenged, the
State will have to justify the basis of its action. The basis of the sub-
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classification and the model which has been followed will have to be justified
on the basis of empirical data gathered by the State. In other words, while the
State may embark on an exercise of sub-classification, it must do so on the
basis of quantifiable and demonstrable data bearing on levels of
backwardness and representation in the services of the State. It cannot in
other words merely act on its whims or as a matter of political expediency.
The decision of the State is amenable to judicial review. When its action is
challenged under Article 226 or before this Court under Article 32, the State
must provide justification and the rationale for its determination. No State
action can be manifestly arbitrary. It must be based on intelligible differentia
which underlie the sub-classification. The basis of the sub-classification must
bear a reasonable nexus to the object sought to be achieved.
b. The caste-class conundrum
191. One of the issues that arises is whether the State may provide special
provisions for each caste within the class. In Indra Sawhney (supra), the
State classified the Other backward Castes into two categories – the
backward class and the more backward class. Thus, the class was only sub-
divided into two categories. Is it permissible to classify the Scheduled Castes
by providing preference or reservation in a percentage of seats to every
caste?
192. Both Articles 15(4) and 16(4) do not enable reservation based on castes but
only on classes. The absence of the use of “caste” in Articles 15(4) and 16(4)
when coupled with its use in Articles 15(2) and 16(2) led the courts to hold
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that caste cannot be the sole basis of reservation. 238 However, as Marc
Galanter notes, the court had erroneously fused the two distinct usages of
caste, as a unit or class, and as a criterion of backwardness. 239
193. In Balaji (supra), the criterion for the determination of social and educational
backwardness was in question. This Court held that caste is a relevant
consideration for determining social backwardness. However, the Court
observed that caste cannot be the sole basis for determining the beneficiary
class because it would perpetuate the vice of castes. Disagreeing with the
Nagan Gowda report, Justice Gajendragadkar writing for the Bench, held that
economic backwardness and not caste is the ultimate cause of social
backwardness. This interpretation of the permissibility of caste as a criterion
to determine the backward class was approved in Chitralekha v. State of
Mysore. 240 In P Rajendran v. State of Madras, 241 this Court deviated from
the approach adopted in Chitralekha (supra) and MR Balaji (supra)
observing that caste is a class because it is a homogenous “unit”.242 The
approach in P Rajendran (supra) was later approved by a nine-Judge Bench
in Indra Sawhney (supra), where this Court observed that to determine a
socially backward class, a caste can be identified as a unit since it is
homogenous and then the criteria for backwardness can be applied to it.243
238
Venkataramana v. State of Madras, AIR 1951 SC 226; Balaji v. State of Mysore, AIR 1963 SC 649
239
Galanter, supra, Pg. 189
240
AIR 1964 SC 1823
241
(1968) 2 SCR 786
242
“It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and
educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially
and educationally backward classes within the meaning of Article 15(4).”
243
(1992) Supp (3) SCC 217 [859]
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194. The Constitution does not bar the allocation of a percentage of seats to a
caste since every caste is a class. However, the State must have sufficient
material to prove inter-se backwardness between each of the castes. The
State must with the submission of cogent material prove that there is a
rationale principle which distinguishes the groups included and those
excluded from the class. However, the rational principle will have nexus with
the object only when the principle can identify the inter-se social
backwardness of the class. For example, if the State allocates a separate
percentage of seats for the dhobi caste and the barber caste, it must prove
that these two castes suffer from differing levels of social backwardness. It is
not merely sufficient for the State to base the classification on the difference
in the traditional occupation of the two castes. Rather, the State must on the
basis of quantifiable data prove that the castes suffer from different levels of
social backwardness. The State must also back this with the submission of
data on effective representation of the caste in the services of the State.
195. Though sub-categorization based on each caste is permissible, we are of the
opinion that there can never be a situation where seats are allocated for every
caste separately. Though each caste is a separate unit, the social
backwardness suffered by each of them is not substantially distinguishable to
warrant the State to reserve seats for each caste. If the social backwardness
of two or more classes is comparable, they must be grouped together for the
purposes of reservation.
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ix. Scope for judicial review
196. The scope of judicial review of reservation policies was laid down in Indra
Sawhney (supra). Justice Jeevan Reddy observed that a class for meriting
reservations must be both backward and inadequately represented in the
“services under the State”. In Nagaraj (supra), this Court held that
backwardness must be based on objective standards whereas inadequacy of
representation must factually exist. The Court held that the State must submit
quantifiable data to prove backwardness and inadequacy of representation.
This standard applies for classifying groups for the purpose of reservations
and would, equally apply for sub-classification within a group because it is
premised on the same principle of difference and inequality.
197. Two prominent considerations arise while discussing the scope of judicial
review of sub-classification of the Scheduled Castes and the Scheduled
Tribes. First, whether the State must prove inter-se backwardness given the
position of law laid down in Indra Sawhney (supra) that the backwardness of
the Scheduled Castes and the Scheduled Tribes is not required to be proved.
Second, whether the inadequacy of representation of the more backward of
the Scheduled Castes must be proved.
a. Inter-se backwardness
198. In Indra Sawhney (supra), this Court held that the requirement of social and
educational backwardness cannot be applied to the Scheduled Castes and
the Scheduled Tribes because they admittedly fall within the backward class
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of citizens. 244 One of the issues before the Constitution Bench of this Court in
Jarnail Singh v. Lachhmi Narain Gupta 245, was whether Nagaraj (supra) in
requiring the State to collect quantifiable data showing backwardness is
contrary to the decision in Indra Sawhney (supra), where this Court held that
backwardness of the Scheduled Castes and the Scheduled Tribes need not
be proved. In Jarnail Singh (supra), this Court held that observations in
Nagaraj (supra) that the State is required to collect quantifiable data to prove
the backwardness of the Scheduled Castes and the Scheduled Tribes is bad
in law because it is contrary to Indra Sawhney (supra).
199. The decision in Indra Sawhney (supra) exempts the State from having to
prove that the Scheduled Castes and the Scheduled Tribes are backward for
the purposes of securing benefits under Articles 15 and 16. The observations
do not exempt the State from having to justify the decision of sub-classifying
within the Scheduled Castes and Scheduled Tribes for the purposes of
reservation. The basis of sub-classification is that few of the castes or groups
within the class are more backward. Thus, though the State is not required to
collect quantifiable data to prove backwardness of the entire class of the
Scheduled Castes/Tribes, it is required to collect data to prove inter-se
backwardness within the class, where it seeks to make a sub-classification
within the class.
244
(1992) Supp (3) SCC 217 [Justice Reddy 781; 796-797]
245
(2018) 10 SCC 396
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b. Adequacy of representation
200. Justice Jeevan Reddy noted in Indra Sawhney (supra) that the issue of
whether a class is inadequately represented is a matter within the subjective
satisfaction of the State which is evident from the use of the phrase “in the
opinion of the State”, and that the subjective satisfaction of the executive
action must be judicially reviewed based on the standard laid down in Barium
Chemicals v. Company Law Board 246. In Barium Chemicals (supra), a
Constitution Bench of this Court while determining the validity of
administrative actions held that though the formation of opinion by the State
may be based on its subjective satisfaction, the State could not act based on
circumstances it ‘thinks’ existed. There must be apparent circumstances that
merit a certain inference by the State, and such circumstances, must be
shown to exist at least prima facie.247 In the preceding section, we have held
that inadequacy of effective representation is a criterion for determining inter-
se backwardness. Hence, quantifiable data for that purpose must be
submitted.
201. In Nagaraj (supra), this Court held that the State must submit quantifiable
data to satisfy the court that reservations are necessary “on account of
inadequacy of representation of the Scheduled Castes and Scheduled Tribes
in a particular class or classes of posts”. 248 However, in the subsequent
paragraphs, this Court held that the cadre strength must be taken as a unit to
246
AIR 1967 SC 295; (1992) Supp (3) SCC 217 [Justice Reddy, 798]
247
AIR 1967 SC 295 [28]
248
Nagaraj v. Union of India, (2006) 8 SCC 212 [117]
133
PART D
ascertain whether a given class or group is adequately represented. These
observations were made in the backdrop of RK Sabharwal (supra) where this
Court held that the entire cadre strength should be taken into account to
determine if the quota limit has been breached. The relevant observations are
delineated as under:
“82. Before dealing with the scope of the constitutional
amendments we need to recap the judgments in Indra
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] and R.K.
Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 :
(1995) 29 ATC 481] . In the former case the majority
held that 50% rule should be applied to each year
otherwise it may happen that the open competition
channel may get choked if the entire cadre strength is
taken as a unit. However, in R.K. Sabharwal [(1995) 2
SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]
this Court stated that the entire cadre strength should
be taken into account to determine whether the
reservation up to the quota limit has been reached. It
was clarified that the judgment in Indra Sawhney [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992)
22 ATC 385] was confined to initial appointments and
not to promotions. The operation of the roster for filling
the cadre strength, by itself, ensures that the
reservation remains within the ceiling limit of 50%.
83. In our view, the appropriate Government has to
apply the cadre strength as a unit in the operation of
the roster in order to ascertain whether a given
class/group is adequately represented in the
service. The cadre strength as a unit also ensures that
upper ceiling limit of 50% is not violated. Further, roster
has to be post-specific and not vacancy based.”
(emphasis supplied)
202. At this juncture, it is important that we clarify the observations in Nagaraj
(supra) extracted above. In Nagaraj (supra), this Court referred to the
judgment in RK Sabharwal while observing that the cadre must be taken as
134
PART D
a unit to determine the inadequacy of representation. However, the context in
which RK Sabharwal (supra) held cadre must be considered as a unit was
different. In that case, two issues were considered. First, whether
appointments of the backward classes in the general category must be
counted while working out the percentage of reservation for the backward
classes. Second, whether the reservation is complete when the posts
earmarked for the Scheduled Castes or Scheduled Tribes are filled. It is while
answering the second of the issues that this Court held that reservations must
operate in accordance with the roster maintained in the Department which will
be a running account every year to ensure that there is no excessive
reservation. This Court explained the working of the calculation of cadre-
based vacancy as follows: posts falling in specific serial numbers would be
reserved seats allotted to each class and when a reserved seat falls vacant,
it must be filled by the person of the same category:
“5. […]concept of “running account” in the impugned
instructions has to be so interpreted that it does not
result in excessive reservation. “16% of the posts …”
are reserved for members of the Scheduled Castes
and Backward Classes. In a lot of 100 posts those
falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51,
58, 65, 72, 80, 87 and 91 have been reserved and
earmarked in the roster for the Scheduled Castes.
Roster points 26 and 76 are reserved for the members
of Backward Classes. It is thus obvious that when
recruitment to a cadre starts then 14 posts earmarked
in the roster are to be filled from amongst the members
of the Scheduled Castes. To illustrate, first post in a
cadre must go to the Scheduled Caste and thereafter
the said class is entitled to 7th, 15th, 22nd and onwards
up to 91st post. When the total number of posts in a
cadre are filled by the operation of the roster then the
result envisaged by the impugned instructions is
achieved. In other words, in a cadre of 100 posts when
the posts earmarked in the roster for the Scheduled
135
PART D
Castes and the Backward Classes are filled the
percentage of reservation provided for the reserved
categories is achieved. We see no justification to
operate the roster thereafter. The “running account” is
to operate only till the quota provided under the
impugned instructions is reached and not thereafter.
[…] As and when there is a vacancy whether
permanent or temporary in a particular post the same
has to be filled from amongst the category to which the
post belonged in the roster. For example the
Scheduled Caste persons holding the posts at roster
points 1, 7, 15 retire then these slots are to be filled
from amongst the persons belonging to the Scheduled
Castes. Similarly, if the persons holding the post at
points 8 to 14 or 23 to 29 retire then these slots are to
be filled from among the general category. By following
this procedure there shall neither be shortfall nor
excess in the percentage of reservation.”
203. The inference in Nagaraj (supra) that cadre must be taken as a unit to
determine inadequacy of reservation based on the above observations in RK
Sabharwal (supra), in our respectful opinion, is misplaced. The cadre as a
unit was considered only for the purpose of preparation of roster to draw a
balance between the reserved and open seats. This Court did not hold that
cadre must be used as a unit for the purpose of determining the adequacy of
representation. In fact, RK Sabharwal (supra) says to the contrary. RK
Sabharwal (supra) observed that the State Government may take the total
population of a particular Backward Class and its representation in the State
Services while determining adequacy of representation:
“4. […] It is, therefore, incumbent on the State
Government to reach a conclusion that the Backward
Class/Classes for which the reservation is made is not
adequately represented in the State Services. While
doing so the State Government may take the total
population of a particular Backward Class and its
representation in the State Services.”
136
PART D
As observed above, the inadequacy of representation in the services of the
State is an indicator to determine the backwardness of the class in the
services of the State. When the cadre-strength is used, the inadequacy of
representation of the class is not determined. Rather, it determines the
inadequacy of representation in a cadre, thereby, merging the distinction
between quantitative and qualitative representation. Further, the observations
in Nagaraj (supra) that adequate reservation of the class or group must be
measured against the cadre is contrary to the plain language of Articles 16(4)
and 16(4-A). Both the provisions use the phrase “not adequately represented
in the services under the State”.
204. Thus, in view of the above discussion, the State for a valid exercise of power
to sub-classify under Article 16(4) is required to collect quantifiable data with
respect to the inadequacy of representation of the sub-categories in the
services of the State. As held in the preceding section, the inadequacy of
representation is an indicator of backwardness and thus, to use the cadre as
a unit to determine representation alters the purpose of the indicator itself.
The State while deciding if the class is adequately represented must calculate
adequacy based on effective and not quantitative representation.
137
PART E
E. Conclusion
205. In view of the discussion above, the following are our conclusions:
a. Article 14 of the Constitution permits sub-classification of a class which is not
similarly situated for the purpose of the law. The Court while testing the validity
of sub-classification must determine if the class is a homogenous integrated
class for fulfilling the objective of the sub-classification. If the class is not
integrated for the purpose, the class can be further classified upon the
fulfillment of the two-prong intelligible differentia standard;
b. In Indra Sawhney (supra), this Court did not limit the application of sub-
classification only to the Other Backward Class. This Court upheld the
application of the principle to beneficiary classes under Articles 15(4) and
16(4);
c. Article 341(1) does not create a deeming fiction. The phrase “deemed” is used
in the provision to mean that the castes or groups notified by the President
shall be “regarded as” the Scheduled Castes. Even if it is accepted that the
deeming fiction is used for the creation of a constitutional identity, the only
logical consequence that flows from it is that castes included in the list will
receive the benefits that the Constitution provides to the Scheduled Castes.
The operation of the provision does not create an integrated homogenous
class;
d. Sub-classification within the Scheduled Castes does not violate Article 341(2)
because the castes are not per se included in or excluded from the List. Sub-
138
PART E
classification would violate the provision only when either preference or
exclusive benefit is provided to certain castes or groups of the Scheduled
Castes over all the seats reserved for the class;
e. Historical and empirical evidence demonstrates that the Scheduled Castes
are a socially heterogenous class. Thus, the State in exercise of the power
under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a)
there is a rational principle for differentiation; and (b) the rational principle has
a nexus with the purpose of sub-classification; and
f. The holding in Chinnaiah (supra) that sub-classification of the Scheduled
Castes is impermissible is overruled. The scope of sub-classification of the
Scheduled Castes is summarized below:
i. The objective of any form of affirmative action including sub-
classification is to provide substantive equality of opportunity for the
backward classes. The State can sub-classify, inter alia, based on
inadequate representation of certain castes. However, the State must
establish that the inadequacy of representation of a caste/group is
because of its backwardness;
ii. The State must collect data on the inadequacy of representation in the
“services of the State” because it is used as an indicator of
backwardness; and
iii. Article 335 of the Constitution is not a limitation on the exercise of power
under Articles 16(1) and 16(4). Rather, it is a restatement of the
139
PART E
necessity of considering the claims of the Scheduled Castes and the
Scheduled Tribes in public services. Efficiency of administration must be
viewed in a manner which promotes inclusion and equality as required
by Article 16(1).
206. The Registry is directed to obtain administrative instructions from Chief
Justice for placing the matters before an appropriate Bench.
…….……………………………………CJI
[Dr Dhananjaya Y Chandrachud]
..….…………………………………………J
[Manoj Misra]
New Delhi;
August 01, 2024
140
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO.2317 OF 2011
THE STATE OF PUNJAB & ORS. ...APPELLANT(S)
VERSUS
DAVINDER SINGH & ORS. ...RESPONDENT(S)
WITH
C.A. NO.5593 OF 2010
S.L.P.(C) NO.8701 OF 2011
W.P.(C) NO.1477 OF 2019
W.P.(C) NO.21 OF 2023
W.P. (C) NO.562 OF 2022
C.A. NO.5586 OF 2010
C.A.NO.5597 OF 2010
C.A. NO. 5598 OF 2010
C.A.NO.5600 OF 2010
C.A. NO.5589 OF 2010
C.A. NO.5587 OF 2010
C.A. NO.5595-5596 OF 2010
C.A.NO.2324 OF 2011
C.A.NO. 6936 OF 2015
S.L.P.(C) NO.30766 OF 2010
S.L.P.(C) NO. 5454-5459 OF 2011
C.A. NO.2318 OF 2011
S.L.P.(C) NO. 36500-36501 OF 2011
C.A. NO.289 OF 2014
T.C.(C) NO.37 OF 2011
T.C.(C) NO.38 OF 2011
T.P.(C) NO.464 OF 2015
1
INDEX
I. BACKGROUND Paras 1 to 7
II. ARTICLE 341, ARTICLE 342 AND THE Paras 8 to 49
PRESIDENTIAL ORDER FOR SCHEDULED
CASTES AND SCHEDULED TRIBES
III. JUDICIAL PRECEDENTS Paras 50 to 168
A. M.R. Balaji vs. State of Mysore Paras 52 to 62
B. State of Kerala vs. N.M. Thomas Paras 63 to 99
C. Akhil Bharatiya Soshit Karamchari Sangh Paras 100 to 122
(Railway) vs. Union of India
D. K.C. Vasanth Kumar vs. State of Karnataka Paras 123 to 134
E. Indra Sawhney vs. Union of India Paras 135 to 147
F. E.V. Chinnaiah vs. State of A.P. Paras 148 to 162
G. M. Nagaraj vs. Union of India Paras 163 to 164
H. Jarnail Singh vs. Lachhmi Narain Gupta Paras 165 to 168
IV. PRESENT REFERENCE Paras 169 to 171
V. CONSIDERATION Paras 172 to 271
VI. THE WAY FORWARD Paras 272 to 295
VII. CONCLUSION Para 296
2
JUDGMENT
B.R. GAVAI, J.
I have gone through the erudite and scholarly judgment
authored by Hon’ble the Chief Justice of India. I am in agreement
with the views expressed by the Hon’ble the Chief Justice of India.
Taking into consideration the importance of the matter, I find it
apposite to express my opinion through this separate judgment.
Since the facts and submissions of the learned counsel
appearing on behalf of the parties have been elaborately considered
in the judgment of the Hon’ble the Chief Justice of India, in order to
avoid repetition, I have not referred to them.
I. BACKGROUND
“The third thing we must do is not to be content
with mere political democracy. We must make
our political democracy a social democracy as
well. Political democracy cannot last unless
there lies at the base of it social democracy.
What does social democracy mean? It means a
way of life which recognizes liberty, equality and
fraternity as the principles of life. These
principles of liberty, equality and fraternity are
not to be treated as separate items in a trinity.
They form a union of trinity in the sense that to
3
divorce one from the other is to defeat the very
purpose of democracy. Liberty cannot be
divorced from equality, equality cannot be
divorced from liberty. Nor can liberty and
equality be divorced from fraternity. Without
equality, liberty would produce the supremacy
of the few over the many. Equality without
liberty would kill individual initiative. Without
fraternity, liberty and equality could not become
a natural course of things. It would require a
constable to enforce them. We must begin by
acknowledging the fact that there is complete
absence of two things in Indian Society. One of
these is equality. On the social plane, we have
in India a society based on the principle of
graded inequality which means elevation for
some and degradation for others. On the
economic plane, we have a society in which
there are some who have immense wealth as
against many who live in abject poverty. On the
26th of January 1950, we are going to enter into
a life of contradictions. In politics we will have
equality and in social and economic life we will
have inequality. In politics we will be
recognizing the principle of one man one vote
and one vote one value. In our social and
economic life, we shall, by reason of our social
and economic structure, continue to deny the
principle of one man one value. How long shall
we continue to live this life of contradictions?
How long shall we continue to deny equality in
our social and economic life? If we continue to
deny it for long, we will do so only by putting
our political democracy in peril. We must
4
remove this contradiction at the earliest
possible moment or else those who suffer from
inequality will blow up the structure of political
democracy which this Assembly has so
laboriously built up.”
1. These are the words of warning, which Dr. B.R. Ambedkar,
the Chief Architect of the Indian Constitution, gave in his speech
on 25th November 1949, while replying to the debate on the final
draft of the Constitution. This was the day prior to 26th November
1949, on which day, the Constituent Assembly adopted, enacted,
and gave to our country the most cherished document for every
Indian, “the Constitution of India”.
2. He warned that we should not be content with mere political
democracy but make our political democracy a social democracy
as well. He emphasized that a social democracy would mean a
way of life which recognizes liberty, equality, and fraternity as the
principles of life. According to him, liberty, equality, and
fraternity, not individually but a trinity of the three was
necessary for converting our political democracy into social
5
democracy. He pointed out the contradictions in the country
about the social and economic structure. He warned that if we
continue to deny equality in social and economic life for long, we
will do so only by putting our political democracy in peril. He
therefore appealed to the nation to remove this contradiction at
the earliest possible moment. He warned that if we do not do so,
those who suffer from inequality will blow up the structure of
political democracy which the Constituent Assembly had so
laboriously built up.
3. Two months thereafter, the Constitution of India came into
force on 26th January 1950. On 26th November 2023, we have
completed 74 years from the date on which the Constitution of
India was enacted, adopted, and given to ourselves. On 26th
January 2024, we have completed 74 years from the date on
which the Constitution of India came into effect. We are now in
the 75th year of our Republic.
6
4. For the last 75 years, there has been a march towards
achieving social and economic equality. There have been efforts
to give social and economic justice to the millions of citizens who
on account of centuries and centuries of discrimination and
inhuman treatment were denied the legitimate right to come into
the mainstream of life. The trinity of Articles 14, 15, and 16 along
with Articles 46, 335, 338, 341 and 342 have provided a tool to
march towards social and economic equality; emphasis on
affirmative action so as to give a special treatment to the
underprivileged so that they can march forward; providing
reservations in the matters of education and in the matter of
public employment have been used so as to provide a special
treatment to these backward classes.
5. The present case raises a dispute amongst various classes
in the group of Scheduled Castes who claim to be more
underprivileged and therefore claim for a more differential
treatment qua the more advantageous in that group. Per contra,
7
the rival classes inside them claim that once the classes are
brought into the Presidential List of Scheduled Castes or
Scheduled Tribes, they become a part of homogeneous group,
and a further classification is not permissible under the
Constitution.
6. This quest of the underprivileged for more preferential
treatment as compared to the more advantageous in the larger
group falls for consideration in the present reference.
7. The 5-Judge Bench of this Court in the case of E.V.
Chinnaiah vs. State of A.P. and others1 has held that such a
further classification on the ground of more backwardness
among the backwards listed in the Presidential List is not
permissible. However, another 5-Judge Bench of this Court in
the case of The State of Punjab & Ors. vs. Davinder Singh &
Ors.2 has doubted the view in E.V. Chinnaiah (supra) and
1 (2005) 1 SCC 394.
2 (2020) 8 SCC 1.
8
referred the matter to a larger Bench. That is how these matters
came up for consideration before us.
ARTICLE 341, ARTICLE 342 AND THE PRESIDENTIAL
ORDER FOR SCHEDULED CASTES AND SCHEDULED TRIBES
8. For appreciating the rival submissions before us, it is to be
noted that while on one hand the struggle for gaining freedom for
India was going on; on the other hand, on account of social
discrimination prevailing since centuries, a quest for social
reforms was also going on.
9. In the beginning, a nomenclature often used by Christian
Missionaries was ‘depressed classes’ to describe the poor and
downtrodden section of the society. A wide array of untouchable
castes, aboriginal tribes, and other backward communities were
all lumped together under that label. In 1909, leaders like Gopal
Krishna Gokhale and Annie Besant also referred to low caste or
marginalized communities in India as the ‘depressed classes’.
Besant compared the ‘depressed classes’ in India to the
9
‘submerged tenth’ in England, i.e., unskilled labourers,
scavengers, sweepers, casual dock labourers, etc., constituting
10% of the population of that country. However, by 1918, the
term ‘depressed classes’ began to be used for only low-caste
Hindus who suffered from the stigma of untouchability. The
word ‘class’ in ‘depressed class’ was really a synonym for caste3.
10. It would be apposite to start with the Census Report of
1891. It refers to the manner of enumeration of castes including
castes, tribes and sub-divisions. It also refers to the scheme of
classification based on occupation divided into 60 categories.
Then the said report regroups these 60 categories into 21 groups.
The said report refers to Rajputs and Jats as tribes, larger than
castes. Class VII deals with “Leather Workers and Lower Village
Menials” and it includes the following groups:
“40. Leather workers
41. Watchmen and Village Menials
42. Scavengers”
3 Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of
India (Viking by Penguin Random House India 2023).
10
11. Thereafter comes the Indian Statutory Commission Report,
1930. The heading of Chapter 4 of Part I is “Caste and the
Depressed Classes”. The report specifically states that a Caste
has been described as “the foundation of the Indian social fabric”.
It further states that every Hindu necessarily belongs to the caste
of his parents, and in that caste he inevitably remains. It states
that no accumulation of wealth and no exercise of talents can
alter his caste status; and marriage outside his caste is
prohibited or severely discouraged. It further states that in some
cases, the application of the rule of caste seems almost to
prescribe the means of livelihood of its members; indeed, many
castes partake of the nature of occupational guilds. It states that
the caste system, which may have originated in the preservation
of ceremonial purity in social relations and in rules designed to
limit admixture of blood, has during ages developed into an
institution which assigns to each individual his duty and his
position in orthodox Hinduism. However, the boundary which
11
brings members of the same caste together also serves to
separate them from innumerable compartments embracing other
castes. It further states that this has resulted in a rigid and
detailed subdivision of Hindu society which strongly contrasts
with the theory of equalitarian ideas among Moslems and
Christians.
12. Paragraph 53 of the Report deals with “the depressed
classes”. It states that the depressed classes comprise about
20% of the total population of the British India or about 30% of
the Hindu population. They constitute the lowest castes
recognized as being within the Hindu religious and social system.
It further states that in origin these castes seem to be partly
“functional,’’ comprising those who followed occupations held to
be unclean or degrading, such as scavenging or leather working,
and partly “tribal,” i.e., aboriginal tribes absorbed into the Hindu
fold and transformed into an impure caste. It further states that
their essential characteristic is that, according to the tenets of
12
orthodox Hinduism, they are, though within the Hindu system,
“untouchable,” – that is to say, that for all other Hindus they
cause pollution by touch and defile food or water. They are
denied access to the interior of an ordinary Hindu temple. It
states that they are not only the lowest in the Hindu social and
religious system, but with few individual exceptions are also at
the bottom of the economic scale and are generally quite
uneducated. The Report shows that in the villages they are
normally segregated in a separate quarter and very frequently eat
food which would not be even touched by any other section of the
community.
13. A large proportion of them are landless agricultural
labourers employed by cultivators for small remuneration. It
states that it was not uncommon for a particular shed in a factory
to be reserved for depressed class workers.
14. Paragraph 54 of the Report deals with “Disabilities of the
Untouchables”. It states that the actual disabilities, other than
13
religious, suffered by the untouchables owing to their
untouchability vary very greatly in different parts of India, not
only from province to province, but also in different parts of the
same province and even sometimes in different parts of the same
district. It states that the two most widespread difficulties are
about water and schools. It states that in many places it was
customary for the untouchables to be denied access to the wells
or tanks used by the other castes and great difficulty has often
been found, when a new source of water supply has been
provided from public funds by local authorities, in arranging for
the untouchables to have use of it. The Report highlights that if
any village draws its water from a river, the untouchables will be
required to take their supply from a different point, lower down.
In many places the children of untouchables are either excluded
altogether from ordinary schools, although provided in whole or
in part from public funds, otherwise they would be required to sit
apart. In some cases, the untouchable children are required to
14
attend the classes standing outside the classroom. The Report
highlights that the difficulty of the administrator or political
reformer was much increased by the fact that the great body of
the untouchables yet accept their destiny as natural and
inevitable. The Report states that their state is indeed pitiable
inside the Hindu fold and yet not of it living on the edge of
starvation, and unaware of any hope of improving their lot.
15. Paragraph 55 of the Report highlights that the depressed
classes were most severely felt in Madras, and especially in
Malabar. In Malabar, is still found the phenomenon of
“unapproachability,’’ that is, the untouchable must not approach
within a certain distance of a high caste Hindu and would have
to leave the road to allow his passage, and even to shout to give
warning of the risk of pollution. The Report states that the local
authority in another part of Madras had preferred to leave the
roads un-mended rather than employ untouchable labourers to
repair them.
15
16. The Report further points out that in Bombay and the
Central Provinces, the position was more or less comparable with
that in Madras. The Report also refers to the telegrams from
Nasik and Poona, in the Bombay Presidency, wherein organized
action on the part of some untouchables was taken to assert a
claim to enter Hindu temples.
17. It may not be out of place to mention that during the
relevant period Dr. B.R. Ambedkar had also started a movement
for opening waterbodies to the untouchables and even
untouchables being permitted to enter the temples. One of such
agitations was about a public tank called ‘Chavder tank’ in
Mahad, held on 20th March 1927 and another was an attempt to
enter Kalaram temple at Nashik on 2nd March 1930.
18. The Report further states that in Bengal, Bihar and Orissa
and the United Provinces, although there were large numbers
belonging to untouchable castes, in general they do not seem to
suffer so universally or so severely as in the South. The Report,
16
however, states that the problem did exist in these areas also.
The Report also gives approximate percentage of population of
the number of untouchables. The Report excludes aboriginals
who are outside the Hindu fold.
19. The next document that requires a mention is ‘the Census
of India 1931’. The said Report coins the phrase ‘primitive tribes’,
who reside in hills, forests, and other nomadic groups. These
primitive tribes provide a foundation for Scheduled Tribes. It also
notes that the formerly depressed classes are now referred to as
the Scheduled Castes.
20. It could thus be seen that while the primitive tribes who
reside in hills, forests and remote areas provide a foundation for
Scheduled Tribes, the so-called depressed classes which are so
recognized on account of untouchability provide a foundation for
Scheduled Castes. The Report also states that the 1931 Census
Report remains the source material for present day Scheduled
Castes and Scheduled Tribes.
17
21. Then comes the Government of India Act, 1935 (hereinafter
referred to as “the 1935 Act”). Part II of the 1935 Act deals with
“The Federation of India”. Chapter I thereof deals with
“Establishment of Federation and Accession of Indian States”.
Section 5 of the 1935 Act deals with “Proclamation of Federation
of India” and Section 6 of the 1935 Act deals with “Accession of
Indian States”. Clause (a) of sub-section (2) of Section 5 of the
1935 Act provided that the States, the Rulers whereof will, in
accordance with the provisions contained in Part II of the First
Schedule to this Act, be entitled to choose not less than fifty-two
members of the Council of States. Clause (b) of sub-section (2)
of Section 5 of the 1935 Act provided that the States, the
aggregate population whereof, as ascertained in accordance with
the said provisions, amounts to at least one-half of the total
population of the States as so ascertained, have acceded to the
Federation.
18
22. Section 18 of the 1935 Act deals with “Constitution of the
Federal Legislature”. Sub-section (3) of Section 18 provided that
representatives to be provided to the Council of States and the
Federal Assembly shall be chosen in accordance with the
provisions in that behalf contained in the First Schedule of the
1935 Act.
23. Similarly, Section 60 of the 1935 Act deals with
“Constitution of Provincial Legislatures”. Section 61 of the 1935
Act provides for “Composition of Chambers of Provincial
Legislatures”. Sub-section (1) of Section 61 provided that the
composition of the Chamber or Chambers of the Legislature of a
Province shall be such as is specified in relation to that Province
in the Fifth Schedule to the 1935 Act.
24. The First Schedule to the 1935 Act provided for
“Composition of the Federal Legislature”. Clause 4 thereof inter
alia provides for seats for representatives of the Scheduled
Castes.
19
25. It will be relevant to reproduce Clause 8 of the First
Schedule to the 1935 Act, which reads thus:
“8. In any Province to which a seat to be filled
by a representative of the scheduled castes is
allotted, a person to fill that seat shall be chosen
by the members of those castes who hold seats
in the Chamber or, as the case may be, either
Chamber of the Legislature of that Province.”
26. It could thus be seen that the 1935 Act provided that in any
Province where seat(s) is/are to be filled by the representatives of
the Scheduled Castes where they are so allotted, shall be chosen
by the members of those castes who hold seats in the Chamber
or either Chamber of the Legislature of that Province.
27. Clause 18 of the First Schedule deals with “The Federal
Assembly”.
28. It could thus be seen that Clause 18 of First Schedule to the
1935 Act inter alia deals with seats reserved for members of the
Scheduled Castes.
20
29. Clause 26 of the First Schedule to the 1935 Act is the
interpretation clause. It defines “the Scheduled Castes” as under:
““the scheduled castes” means such castes,
races or tribes or parts of or groups within
castes, races or tribes, being castes, races,
tribes, parts or groups which appear to His
Majesty in Council to correspond to the classes
of persons formerly known as “the depressed
classes”, as His Majesty in Council may
specify;”
30. It is thus clear that the 1935 Act defines ‘the Scheduled
Castes” to mean such castes, races or tribes or parts of or groups
within castes, races or tribes, being castes, races, tribes, parts or
groups which appear to His Majesty in Council to correspond to
the classes of persons formerly known as “the depressed classes”,
as His Majesty in Council may specify.
31. It could thus be seen that the definition of “the Scheduled
Castes” can be traced to “the depressed classes”, which were
used in a generic sense earlier and again traced to the most
backward people suffering untouchability.
21
32. Then comes the Government of India (Scheduled Castes)
Order, 1936 (hereinafter referred to as “the 1936 Order”), notified
on 30th April 1936. It will be relevant to refer to the said order,
which is as under:
“THE GOVERNMENT OF INDIA (SCHEDULED
CASTES)
ORDER, 1936
______________
AT THE COURT AT BUCKINGHAM PALACE
The 30th day of April, 1936
Present,
THE KING’S MOST EXCELLENT MAJESTY
IN COUNCIL
Whereas by certain provisions in the First, Fifth
and Sixth Schedules to the Government of India Act,
1935, His Majesty in Council is empowered to specify
the castes, races or tribe or parts of or groups within
castes, races or tribes which are to be treated as the
scheduled castes for the purposes of those Schedules:
AND WHEREAS a draft of this Order was laid
before Parliament in accordance with the provisions of
subsection (1) of section three hundred and nine of the
said Act and an Address has been presented by both
22
Houses of Parliament praying that an Order may be
made in the terms of this Order :
NOW, THEREFORE, His Majesty, in the exercise of
the said powers and of all other powers enabling Him
in that behalf, is pleased by and with the advice of His
Privy Council to order, and it is hereby ordered, as
follows :-
1. This Order may be cited as “The Government of
India (Scheduled Castes) Order, 1936.”
2. Subject to the provisions of this Order, for the
purposes of the First, Fifth and Sixth Schedules to
the Government of India Act, 1935, the castes,
races or tribes, or parts of or groups within castes,
races or tribes specified in Parts I to IX of the
Schedule to this Order shall, in the Provinces to
which those Parts respectively relate, be deemed to
be scheduled castes so far as regards members
thereof resident in the localities specified in relation
to them respectively in those Parts of that Schedule.
3. Notwithstanding anything in the last preceding
paragraph-
(a) no Indian Christian shall be deemed to be a
member of a scheduled caste;
(b) in Bengal no person who professes Buddhism
or a tribal religion shall be deemed to be a
member of any scheduled caste;
23
and if any question should arise as to whether any
particular person does or does not profess
Buddhism or a tribal religion, that question shall
be determined according to the answers which he
may make, in the prescribed manner, to such
questions as may be prescribed.
4. In this Order the expression “Indian Christian”
has the same meaning as it has for the purposes of
Part I of the First Schedule to the Government of
India Act, 1935, and the expression “prescribed”
means prescribed by rules made by the Governor of
Bengal, exercising his individual judgment.
5. Any reference in the Schedule to this Order to
any division, district, subdivision, tahsil or
municipality shall be construed as a reference to
that division, district, subdivision, tahsil or
municipality as existing on the first day of July,
nineteen hundred and thirty-six.
SCHEDULE
PART I – MADRAS
(1) Scheduled castes throughout the Province :-
Adi-Andhra Gosangi Paidi
Adi-Dravida Haddi Painda
Adi-Karnataka Hasla Paky
Ajila Holeya Pallan
Arunthuthiyar Jaggali Pambada
24
Baira Jambuvulu Pamidi
Bakuda Kalladi Panchama
Bandi Kanakkan Paniyan
Bariki Kodalo Panniandi
Battada Koosa Paraiyan
Bavuri Koraga Paravan
Bellara Kudumban Pulayan
Byagari Kuravan Puthirai
Vannan
Chachati Madari Raneyar
Chakkiliyan Madiga Relli
Chalavadi Maila Samagara
Chamar Mala Samban
Chandala Mala Dasu Sapari
Cheruman Matangi Semman
Dandasi Moger Thoti
Devandrakulathan Muchi Tiruvalluvar
Ghasi Mundala Valluvan
Godagali Nalakeyava Valmiki
Godari Nayadi Vettuvan
Godda Paga dai
(2) Scheduled castes throughout the Province
except in any special constituency constituted under
the Government of India Act, 1935, for the election of
a representative of backward areas and backward
tribes to the Legislative Assembly of the Province :-
Aranadan Kattunayakan Kuruman
Dombo Kudiya Malasar
Kadan Kudubi Mavilan
Karimpalan Kurichchan Pano
25
PART II – BOMBAY
Scheduled Castes : -
(1) Throughout the Province : -
Asodi Dhor Mang Garudi
Bakad Garode Meghval, or
Menghwar
Bhambi Halleer Mini Madig
Bhangi Halsar, or Mukri
Haslar, or
Hulsavar
Chakrawadya – Holaya Nadia
Dasar
Chalvadi Khalpa Shenva, or
Shindhava
Chambhar, or Kolcha, or Shingdav, or
Mochigar, or Kolgha Shingadya
Samagar
Chena – Koli Dhor Sochi
Dasaru
Chuhar, or Lingader Timali
Chuhra
Dakaleru Madig, or Turi
Mang
Dhed Mahar Vankar
Dhegu-Mega Vitholia
(2) Throughout the Province except in the
Ahmedabad, Kaira, Broaoh and Panch Mahals and
Surat districts – Mochi.
(3) In the Kanara district – Kotegar.
26
PART III – Bengal
Scheduled castes throughout the Province : -
Agariya Hari Mal
Bagdi Ho Mallah
Bahelia Jalia Kaibartta Malpahariya
Baiti Jhalo Malo, or Mech
Malo
Bauri Kadar Mehtor
Bediya Kan Muchi
Beldar Kandh Munda
Berua Kandra Musahar
Bhatiya Kaora Nagesia
Bhuimali Kapuria Namasudra
Bhuiya Karenga Nat
Bhumij Kastha Nuniya
Bind Kaur Oraon
Binjhia Khaira Paliya
Chamar Khatik Pan
Dhenuar Koch Pasi
Dhoba Konai Patni
Doai Konwar Pod
Dom Kora Rabha
Dosadh Kotal Rajbanshi
Garo Lalbegi Rajwar
Ghasi Lodha Santal
Gonrhi Lohar Sunri
Hadi Mahar Tiyar
Hajang Mahli Turi
Halalkhor
27
PART IV – UNITED PROVINCES
Scheduled castes :-
(1) Throughout the Province :-
Agariya Chamar Kharot
Aheriya Chero Karwar (except
Benbansi)
Badi Dabgar Khatik
Badhik Dhangar Kol
Baheliya Dhanuk Korwa
(Bhangi)
Bajaniya Dharkar Lalbegi
Bajgi Dhobi Majhwar
Balahar Dom Nat
Balmiki Domar Pankha
Banmanus Gharami Parahiya
Bansphor Ghasiya Pasi
Barwar Gual Patari
Basor Habura Rawat
Bawariya Hari Saharya
Beldar Hela Sanaurhiya
Bengali Kalabaz Sansiya
Beriya Kanjar Shilpkar
Bhantu Kapariya Tharu
Bhuiya Karwal Turaiha
Bhuyiar Khairaha
Boriya
(2) Throughout the Province except in the Agra,
Meerut and Rohilkhand divisions – Kori
PART V – PUNJAB
28
Scheduled Castes throughout the Province : -
Ad Dharmis Marija or Khatik
Marecha
Bawaria Bangali Kori
Chamar Barar Nat
Chuhra, or Bazigar Pasi
Balmiki
Dagi and Koli Bhanjra Perna
Dumna Chanal Sapela
Od Dhanak Sirkiband
Sansi Gagra Meghs
Sarera Gandhila Ramdasis
PART VI – BIHAR
Scheduled Castes : -
(1) Throughout the Province :-
Chamar Halalkhor Mochi
Chaupal Hari Musahar
Dhobi Kanjar Nat
Dusadh Kurariar Pasi
Dom Lalbegi
(2) In the Patna and Tirhut divisions and the
Bhagalpur, Mong Palamau and Purnea district:-
Bauri Bhumij Rajwar
Bhogta Ghasi Turi
Bhuiya Pan
29
(3) In the Dhanbad subdivision of the Manbhum
district and the Central Manbhum general rural
constituency, and the Purulia and Raghunathpur
municipalities : -
Bauri Ghasi Rajwar
Bhogta Pan Turi
Bhuiya
PART VII – CENTRAL PROVINCES AND BERAR
Scheduled Castes Localities
Basor, or Burud
Chamar
Dom
Ganda Throughout the
Mang Province
Mehtar or Bhangi
Mochi
Satnami
Audhelia : In the Bilaspur district
Bahna : In the Amraoti district
Balahi, or Balai : In the Berar division
and the Balaghat,
Bhandara, Betul,
Chanda, Chhindwara,
Hoshangabad,
Jubbulpore, Mandla,
Nagpur, Nimar Saugor
and Wardha districts
Bedar : In the Akola, Amraoti
and Buldana districts.
30
Chadar : In the Bhandara and
Saugor districts
Chauhan : In the Drug district
Dahayat : In the Damoh
subdivision of Saugor
district.
Dewar : In the Bilaspur, Drug
and Raipur districts.
Dhanuk : In the Saugor district,
except in the Damoh
subdivision thereof.
Dhimar : In the Bhandara
district
Dhobi : In the Bhandara,
Bilaspur, Raipur and
Saugor districts, and
the Hoshangabad and
Seoni-Malwa tahsils of
the Hoshangabad
district.
Dohor : In the Berar division,
and the Balaghat,
Bhandara, Chanda,
Nagpur and Wardha
districts.
Ghasia : In the Berar division
and in the Balaghat,
Bhandara, Bilaspur,
Chanda, Drug,
Nagpur, Raipur and
Wardha districts.
Holiya : In the Balaghat and
Bhandara districts.
31
Jangam : In the Bhandara
district.
Kaikari : In the Berar division,
and in Bhandara,
Chanda, Nagpur and
Wardha districts.
Katia : In the Berar division,
in the Balaghat, Betul
Bhandara, Bilaspur,
Chanda, Drug,
Nagpur, Nimar, Raipur
and Wardha districts,
in the Hoshangabad
and Seoni-Malwa
tahsils of the
Hoshangabad district,
in the Chhindwara
district, except in the
Seoni subdivision
thereof, and in the
Saugor district, except
in the Damoh
subdivision thereof.
Khangar : In the Bhandara,
Buldhana and Saugor
districts and the
Hoshangabad and
Seoni-Malwa tahsils of
the Hoshangabad
district.
Khatik : In the Berar division,
in the Balaghat,
Bhandara, Chanda,
Nagpur and Wardha
32
districts, in the
Hoshangabad tahsil of
the Hoshangabad
district, in the
Chhindwara district,
except in the Seoni
subdivision thereof,
and in the Saugor
district, except in the
Damoh subdivision
thereof.
Koli : In the Bhandara and
Chanda district
Kori : In the Amraoti,
Balaghat, Betul,
Bhandara, Buldana,
Chhindwara,
Jubbulpore, Mandla,
Nimar, Raipur and
Saugor districts, and
in the Hoshangabad
district, except in the
Harda and Sohagpur
tahsils thereof.
Kumhar : In the Bhandara and
Saugor districts and
the Hoshangabad and
Seoni-Malwa tahsils of
the Hoshangabad
district.
Madgi : In the Berar division,
and in the Balaghat
Bhandara, Chanda,
33
Nagpur and Wardha
districts.
Mala : In the Balaghat, Betul,
Chhindwara,
Hoshangabad,
Jubbulpore, Mandla,
Nimar and Saugor
districts.
Mehra, or Mahar : Throughout the
Province, except in the
Harda and Sohagpur
tahsils of the
Hoshangabad district.
Nagarchi : In the Balaghat,
Bhandara,
Chhindwara, Mandla,
Nagpur and Raipur
districts.
Ojha : In the Balaghat,
Bhandara and Mandla
districts and the
Hoshangabad tahsil of
the Hoshangabad
district.
Panka : In the Berar division,
in the Balaghat,
Bhandara, Bilaspur,
Chanda, Drug,
Nagpur, Raipur,
Saugor and Wardha
districts and in the
Chhindwara district
except in the Seoni
subdivision thereof.
34
Pardhi : In the Narsinghpur
subdivision of the
Hoshangabad district.
Pradhan : In the Berar division,
in the Bhandara
Chanda, Nagpur,
Nimar, Raipur and
Wardha districts and
in the Chhindwara
district, except in the
Seoni subdivision
thereof.
Rujjhar : In the Sohagpur tahsil
of the Hoshangabad
district.
PART VIII – ASSAM
Scheduled Castes : -
(1) In the Assam Valley : -
Namasudra Hira Mehtar, or Bhangi
Kaibartta Lalbegi Bansphor
Bania, or
Brittial-Bania
(2) In the Surma Valley :-
Mali, or Sutradhar Kaibartta, or
Bhuimali Jaliya
Dhupi, or Dhobi Muchi Lalbegi
Dugla, or Dholi Patni Mehtar, or Bhangi
Jhalo and Malo Namasudra Bansphor
35
Mahara
PART IX – ORISSA
Scheduled castes : -
(1) Throughout the Province :-
Adi-Andhra Godra Mangan
Audhelia Gokha Mehra, or
Mahar
Bariki Haddi, or Hari Mehtar, or
Bhangi
Basor,or Burud Irika Mochi, or
Muchi
Bavuri Jaggali Paidi
Chachati Kandra Painda
Chamar Kantia Pamidi
Chandala Kela Panchama
Dandasi Kodalo Panka
Dewar Madari Relli
Dhoba, or Madiga Sapari
Dhobi
Ganda Mahuria Satnami
Ghusuria Mala Siyal
Godagali Mang Valamiki
Godari
(2) Throughout the Province except in the
Khondmals district, the district of Sambalpur, and
the areas transferred to Orissa under the provisions
of the Government of India (Constitution of Orissa)
36
Order, 1936, from the Vizagapatam and Ganjam
Agencies in the Presidency of Madras:-
Pan, or Pano
(3) Throughout the Province except in the
Khondmals district and the areas so transferred to
Orissa from the said Agencies : -
Dom, or Dombo
(4) Throughout the Province except in the district of
Sambalpur :
Bauri Bhumij Turi
Bhuiya Ghasi, or Ghasia
(5) In the Nawapara subdivision of the district of
Sambalpur: -
Kori Nagarchi Pradhau
C. K. Rhodes,
Joint Secy. to the Govt. of India”
33. It could thus be seen that for the purposes of the First, Fifth
and Sixth Schedules to the 1935 Act , the castes, races or tribes,
or parts of or groups within castes, races or tribes specified in
Parts I to IX of the Schedule to the 1936 Order were deemed to
37
be scheduled castes in the Provinces to which those Parts
respectively relate.
34. A perusal of the 1936 Order would reveal that for different
provinces different castes were notified as Scheduled Castes. In
some of the provinces, a particular caste was to be considered as
Scheduled Caste, except in the districts mentioned therein where
it was not to be considered as Scheduled Caste. Similarly, in
some of the cases, in particular areas or districts, the said castes
were deemed to be Scheduled Castes in the same province.
35. It can thus be seen that a same caste in the same province
could be a Scheduled Caste only in one or more districts and not
in the other districts.
36. It could be seen that insofar as the Bombay Province is
concerned, the caste ‘Mochi’ would be a Scheduled Caste
throughout the Province except in Ahmedabad, Kaira, Broaoh
and Panch Mahals and Surat districts. Similarly, a caste
38
‘Kotegar’ would be a Scheduled Caste only in the Kanara district
and not in the rest of the Province.
37. It could thus be seen that the 1936 Order formed the basis
of the Constitution (Scheduled Castes) Order, 1950 (hereinafter
referred to as “the 1950 Order”) issued under Article 341(1) after
the commencement of the Constitution.
38. Then comes the most important event i.e. the debate in the
Constituent Assembly on 17th September 1949, when Dr. B.R.
Ambedkar moved two new draft Articles being Articles 300A and
300B, which read thus:
“300A-Scheduled Castes
(1) The President may, after
consultation with the Governor or
Ruler of a State, by public
notification specify the castes, races
or tribes or Scheduled Castes parts
of or groups within castes, races or
tribes, which shall for purposes of
this Constitution be deemed to be
Scheduled Castes in relation to that
State.
39
(2) Parliament may by law include
in or exclude from the list of
Scheduled Castes specified in a
notification issued by the President
under clause (1) of this article any
caste, race or tribe or part of or group
within any caste, race or tribe, but
save as aforesaid a notification
issued under the said clause shall
not be varied by any subsequent
notification.
300B-Scheduled Tribes
(1) The President may after
consultation with the Governor or
Ruler of a State, by public
notification specify the tribes or
tribal communities or parts of or
groups within tribes or tribal
communities which shall for
purposes of this Constitution be
deemed to be scheduled tribes in
relation to that State.
(2) Parliament may by law include
in or exclude from the list of
scheduled tribes specified in a
notification issued by the President
under clause (1) of this article any
Tribe or Tribal community or part of
or group within any Tribe or Tribal
community but save as aforesaid a
notification issued under the said
40
clause shall not be varied by any
subsequent notification.”
39. While moving the said new draft Articles, Dr. B.R.
Ambedkar stated thus:
“The object of these two articles, as I
stated, was to eliminate the, necessity of
burdening the Constitution with long lists
of Scheduled Castes and Scheduled
Tribes. It is now proposed that the
President, in consultation with the
Governor or Ruler of a State should have,
the power to issue a general notification in
the Gazette specifying all the Castes and
tribes or groups thereof deemed to be
Scheduled Castes and Scheduled Tribes
for the purposes of the privileges which
have been defined for them in the
Constitution. The only limitation that has
been imposed is this : that once a
notification has been issued by the
President, which, undoubtedly, he will be
issuing in consultation with and on the
advice of the Government of each State,
thereafter, if any elimination was to be
made from the List so notified or any
addition was to be made, that must be
made by Parliament and not by the
President. The object is to eliminate any
kind of political factors having a play in
the matter of the disturbance in the
Schedule so published by the President.”
41
40. It could thus be seen that the idea behind draft Articles
300A and 300B, which are now Articles 341 and 342, was to
eliminate the necessity of burdening the Constitution with long
lists of Scheduled Castes and Scheduled Tribes. It was proposed
that the President, in consultation with the Governor or Ruler of
a State shall have the power to issue a general notification in the
Gazette specifying all the Castes and tribes or groups thereof
deemed to be Scheduled Castes and Scheduled Tribes for the
purposes of the privileges which have been defined for them in
the Constitution.
41. It is thus clear that the purpose of draft Article 300A (now
Article 341) and draft Article 300B (now Article 342) was for
identifying the castes, races, or tribes, or parts of or groups
within castes, races or tribes, which were entitled to the privileges
which had been defined for them in the Constitution.
42
42. It is thus clear that the purpose of draft Articles 300A and
300B (now Articles 341 and 342) was not providing the privileges
but only identifying the castes, races, or tribes, or parts of or
groups within castes, races or tribes, which would be entitled for
the privileges which were elsewhere provided under the
Constitution.
43. Dr. B.R. Ambedkar further observed that the only limitation
that has been imposed was that once a notification has been
issued by the President, which he would be issuing in
consultation with and on the advice of the Government of the
State, thereafter, if any elimination or addition was to be made in
the List so notified, the same can be done only by Parliament and
not by the President. The purpose was to eliminate any kind of
political factors having a play in the matter of the disturbance in
the Schedule so published by the President.
44. It is amply clear that the purpose behind the said provisions
was that once an identification has been done in the List so
43
notified, the Executive should not tinker with it and any addition
or deletion had to be made only by Parliament.
45. It will also be relevant to refer to the speech of Shri
V.I.Muniswami Pillai, given on the same day i.e. 17th September
1949 in support of the amendment, which reads as under:
“Shri V. I. Muniswami Pillai : Mr.
President, I come to support the
amendments that have been moved by the
Honourable Dr. Ambedkar. These
amendments deal with the definition of
Scheduled Castes. As far as I can see he
has made it clear that, according to the
second part of it, the President on the 26th
January 1950 will publish a list of such
communities that come under the
category of Scheduled Castes. But I would
like to inform this House of the
background which brought out the special
name of Scheduled Castes. It was the
intouchability, the, social evil that has
been practised by the Hindu Community
for ages, that was responsible for the
Government and the people to know the
section of people coming under the
category of Hindus and who were kept at
the outskirts of the Hindu society. Going
backwards to 1916 it was in that year
when Government found that something
had to be done for the untouchable
44
classes, (when they said untouchable
classes, they were always understood to be
Hindus,) and they had to be recognised. In
Madras there were six communities that
came under this classification. During the
Montago Chelmsford reforms they were
made ten. In 1930 when the great epoch-
making fast of Mahatma Gandhi came
about, then only the country saw who
were the real untouchable classes. And in
the 1935 Act, the Government thoroughly
examined the whole thing and as far as the
Province of Madras is concerned they
brought 86 communities into this list or
category, though there were some
touchable classes also. Now, after further
examination the Provincial Governments
have drawn up a list and I think according
to the amendment mover’s suggestions, all
those communities that come-under the
category of untouchables and those who
profess Hinduism will be the Scheduled
Castes, because I want to emphasise
about the religion. I emphasise this
because of late there have been some
movements here and there; there are
people who have left Scheduled Castes
and Hinduism and joined other religions
and they also are claiming to be scheduled
Castes. Such convert cannot come under
the scope of this definition. While I have no
objection to Government granting any
concessions to these converts, I feel
45
strongly that they should not be clubbed
along with Scheduled Castes.
Sir, I am grateful to the Drafting
Committee and also to the Chairman of
that Committee for making the second
portion of it very clear, that in future, after
the declaration by the President as to who
will be the Scheduled Castes, and when
there is need for including any other class
or to exclude, anybody or any community
from the list of Scheduled Castes that
must be by the word of Parliament. I feel
grateful to him for bringing in this clause,
because I know, as a matter of fact, when
Harijans behave independently or
asserting their right on some matters, the
Ministers in some Provinces not only take
note and action against those members,
but they bring the community to which
that particular individual belongs; and
thereby not only the individual, but also
the community that comes under that
category of Scheduled Castes are
harassed. By this provision, I think the
danger is removed.
I strongly oppose the amendment moved
by Pandit Bhargava. The reason is that he
wants to have the ten years period for
observing these amendments. But he has
entirely forgotten that under another
article that we have already passed, or will
pass the Constitution provides for the
46
appointment of a Special officer at the
Centre and also various officers in all the
Provinces to go into the various disabilities
of these communities and to submit a
report to the President who will then be
able to know whether the Scheduled
Castes have reached a stage when the
facilities now given to them could be
withdrawn. I do not think that the reasons
that he has advanced are fair and square
for the uplift of the Harijans.
With these few words, I support the
amendment.”
46. It can thus be seen that the Learned Member of the
Constituent Assembly refers to the background which brought
out the special name of Scheduled Castes. He refers to
untouchability, the social evil that has been practiced by the
Hindu Community for ages. He states that a section of people,
though Hindus, were kept at the outskirts of the Hindu society
and it was in the year 1916 when the Government found that
something had to be done for the untouchable classes. He refers
to the efforts made by Mahatma Gandhi. He identified as to who
47
were the actual untouchable classes. He refers to the 1935 Act
and the efforts of the Government in thoroughly examining the
whole thing and states that as far as the Province of Madras is
concerned they brought 86 communities into the list or category.
He states that according to the amendment mover’s suggestions,
all those communities that come-under the category of
untouchables and those who profess Hinduism will be the
Scheduled Castes. However, he opined that those people who
have left Hinduism and joined other religions should not be
entitled to claim the benefits of Scheduled Castes. He states that
if the Government wants to grant any concessions to these
converts, they should not be clubbed among the Scheduled
Castes.
47. He acknowledges the vision of the Drafting Committee and
its Chairman as to who will be the Scheduled Castes, and when
there is need for including any other class or to exclude anybody
or any community from the list of Scheduled Castes that must
48
be by the word of Parliament. He states that he is grateful to the
Chairman for bringing in this clause and that when Harijans
behave independently or assert their right on some matters, not
only the members of that community but their entire community
is harassed.
48. Having referred to the history of as to how the concept of
Scheduled Castes and Scheduled Tribes has emerged, I, now, for
the sake of convenience, refer to the provisions in the
Constitution of India dealing with the special treatment provided
to the Scheduled Castes, Scheduled Tribes and Other Backward
Classes. Since we are not concerned with political reservations,
I do not find it necessary to refer to the provisions dealing
therewith. Since Articles 341 and 342 are draft Articles 300A
and 300B, which were approved by the Constituent Assembly on
17th September 1949, I do not repeat the same here.
49
Article 15, 16, 46, 335, 338, Clauses 24
and 25 of Article 366
“15. Prohibition of discrimination on
grounds of religion, race, caste, sex or
place of birth.—(1) The State shall not
discriminate against any citizen on
grounds only of religion, race, caste, sex,
place of birth or any of them.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, place of birth or
any of them, be subject to any disability,
liability, restriction or condition with
regard to—
(a) access to shops, public
restaurants, hotels and places of
public entertainment; or
(b) the use of wells, tanks, bathing
ghats, roads and places of public
resort maintained wholly or partly
out of State funds or dedicated to the
use of the general public.
(3) Nothing in this article shall prevent the
State from making any special provision
for women and children.
(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
50
or for the Scheduled Castes and the
Scheduled Tribes.
(5) Nothing in this article or in sub-clause
(g) of clause (1) of Article 19 shall prevent
the State from making any special
provision, by law, for the advancement of
any socially and educationally backward
classes of citizens or for the Scheduled
Castes or the Scheduled Tribes insofar as
such special provisions relate to their
admission to educational institutions
including private educational institutions,
whether aided or unaided by the State,
other than the minority educational
institutions referred to in clause (1) of
Article 30.
(6) Nothing in this article or sub-clause (g)
of clause (1) of Article 19 or clause (2) of
Article 29 shall prevent the State from
making,—
(a) any special provision for the
advancement of any economically
weaker sections of citizens other
than the classes mentioned in
clauses (4) and (5); and
(b) any special provision for the
advancement of any economically
weaker sections of citizens other
than the classes mentioned in
clauses (4) and (5) insofar as such
special provisions relate to their
admission to educational institutions
51
including private educational
institutions, whether aided or
unaided by the State, other than the
minority educational institutions
referred to in clause (1) of Article 30,
which in the case of reservation
would be in addition to the existing
reservations and subject to a
maximum of ten per cent of the total
seats in each category.
Explanation.—For the purposes of this
article and Article 16, “economically
weaker sections” shall be such as may be
notified by the State from time to time on
the basis of family income and other
indicators of economic disadvantage.”
“16. Equality of opportunity in matters
of public employment.—(1) There shall
be equality of opportunity for all citizens in
matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, descent, place of
birth, residence or any of them, be
ineligible for, or discriminated against in
respect of, any employment or office under
the State.
(3) Nothing in this article shall prevent
Parliament from making any law
prescribing, in regard to a class or classes
52
of employment or appointment to an
office 14[under the Government of, or any
local or other authority within, a State or
Union territory, any requirement as to
residence within that State or Union
territory] prior to such employment or
appointment.
(4) Nothing in this article shall prevent the
State from making any provision for the
reservation of appointments or posts in
favour of any backward class of citizens
which, in the opinion of the State, is not
adequately represented in the services
under the State.
(4-A) Nothing in this article shall prevent
the State from making any provision for
reservation in matters of promotion, with
consequential seniority, to any class] or
classes of posts in the services under the
State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the
opinion of the State, are not adequately
represented in the services under the
State.
(4-B) Nothing in this article shall prevent
the State from considering any unfilled
vacancies of a year which are reserved for
being filled up in that year in accordance
with any provision for reservation made
under clause (4) or clause (4-A) as a
separate class of vacancies to be filled up
in any succeeding year or years and such
53
class of vacancies shall not be considered
together with the vacancies of the year in
which they are being filled up for
determining the ceiling of fifty per cent
reservation on total number of vacancies
of that year.
(5) Nothing in this article shall affect the
operation of any law which provides that
the incumbent of an office in connection
with the affairs of any religious or
denominational institution or any member
of the governing body thereof shall be a
person professing a particular religion or
belonging to a particular denomination.
(6) Nothing in this article shall prevent the
State from making any provision for the
reservation of appointments or posts in
favour of any economically weaker
sections of citizens other than the classes
mentioned in clause (4), in addition to the
existing reservation and subject to a
maximum of ten per cent of the posts in
each category.”
“46. Promotion of educational and
economic interests of Scheduled
Castes, Scheduled Tribes and other
weaker sections.—The State shall
promote with special care the educational
and economic interests of the weaker
sections of the people, and, in particular,
of the Scheduled Castes and the
54
Scheduled Tribes, and shall protect them
from social injustice and all forms of
exploitation.”
“335. Claims of Scheduled Castes and
Scheduled Tribes to services and
posts.—The claims of the members of the
Scheduled Castes and the Scheduled
Tribes shall be taken into consideration,
consistently with the maintenance of
efficiency of administration, in the making
of appointments to services and posts in
connection with the affairs of the Union or
of a State:
Provided that nothing in this article shall
prevent in making of any provision in
favour of the members of the Scheduled
Castes and the Scheduled Tribes for
relaxation in qualifying marks in any
examination or lowering the standards of
evaluation, for reservation in matters of
promotion to any class or classes of
services or posts in connection with the
affairs of the Union or of a State.”
“338. National Commission for
Scheduled Castes.—(1) There shall be a
Commission for the Scheduled Castes to
be known as the National Commission for
the Scheduled Castes.
(2) Subject to the provisions of any law
made in this behalf by Parliament, the
55
Commission shall consist of a
Chairperson, Vice-Chairperson and three
other Members and the conditions of
service and tenure of office of the
Chairperson, Vice-Chairperson and other
Members so appointed shall be such as
the President may by rule determine.]
(3) The Chairperson, Vice-Chairperson
and other Members of the Commission
shall be appointed by the President by
warrant under his hand and seal.
(4) The Commission shall have the power
to regulate its own procedure.
(5) It shall be duty of the Commission—
(a) to investigate and monitor all
matters relating to the safeguards
provided for the Scheduled
Castes under this Constitution or
under any other law for the time
being in force or under any order of
the Government and to evaluate the
working of such safeguards;
(b) to inquire into specific complaints
with respect to the deprivation of
rights and safeguards of the
Scheduled Castes ;
(c) to participate and advise on the
planning process of socio-economic
development of the Scheduled
Castes and to evaluate the progress
56
of their development under the Union
and any State;
(d) to present to the President,
annually and at such other times as
the Commission may deem fit,
reports upon the working of those
safeguards;
(e) to make in such report
recommendations as to the measures
that should be taken by the Union or
any State for the effective
implementation of those safeguards
and other measures for the
protection, welfare and socio-
economic development of the
Scheduled Castes; and
(f) to discharge such other functions
in relation to the protection, welfare
and development and advancement
of the Scheduled Castes as the
President may, subject to the
provisions of any law made by
Parliament, by rule specify.
(6) The President shall cause all such
reports to be laid before each House of
Parliament along with a memorandum
explaining the action taken or proposed to
be taken on the recommendations relating
to the Union and the reasons for the non-
acceptance, if any, of any of such
recommendations.
57
(7) Where any such report, or any part
thereof, relates to any matter with which
any State Government is concerned, a
copy of such report shall be forwarded to
the Governor of the State who shall cause
it to be laid before the Legislature of the
State along with a memorandum
explaining the action taken or proposed to
be taken on the recommendations relating
to the State and the reasons for the non-
acceptance, if any, of any of such
recommendations.
(8) The Commission shall, while
investigating any matter referred to in
sub-clause (a) or inquiring into any
complaint referred to in sub-clause (b) of
clause (5), have all the powers of a civil
court trying a suit and in particular in
respect of the following matters, namely:—
(a) summoning and enforcing the
attendance of any person from any
part of India and examining him on
oath;
(b) requiring the discovery and
production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record
or copy thereof from any court or
office;
58
(e) issuing commissions for the
examination of witnesses and
documents;
(f) any other matter which the
President may, by rule, determine.
(9) The Union and every State Government
shall consult the Commission on all major
policy matters affecting Scheduled Castes.
(10) In this article references to the
Scheduled Castes shall be construed as
including references to the Anglo-Indian
community.”
“366. Definitions.—In this Constitution,
unless the context otherwise requires, the
following expressions have the meanings
hereby respectively assigned to them, that
is to say—
********
(24) “Scheduled Castes” means such
castes, races or tribes or parts of or groups
within such castes, races or tribes as are
deemed under Article 341 to be Scheduled
Castes for the purposes of this
Constitution;
(25) “Scheduled Tribes” means such tribes
or tribal communities or parts of or groups
within such tribes or tribal communities
as are deemed under Article 342 to be
Scheduled Tribes for the purposes of this
Constitution;”
59
49. It will be relevant to note that in the draft definition of ‘the
Scheduled Castes’, the word used earlier was “specify”. However,
in the final clause (24) of Article 366, the word “specify” has been
changed to “deemed”.
III. JUDICIAL PRECEDENTS
50. In the last 74 years, the aforesaid constitutional provisions
have been considered by this Court on a number of occasions. It
will be relevant to refer to some of these judgments.
51. It will also be relevant to note that by the First Amendment
to the Constitution in the year 1951 by which clause (4) was
added to Article 15 was necessitated on account of the judgment
of this Court in the case of State of Madras vs. Smt.
Champakam Dorairajan4 wherein Government Order
specifying reservation for Harijans was set aside.
4 (1951) SCR 525.
60
A. M.R. Balaji vs. State of Mysore
52. In the case of M.R. Balaji and others vs. State of Mysore5,
the subject matter of challenge before the Constitution Bench of
this Court was an order issued by the State of Mysore under
Article 15(4) of the Constitution of India. Vide the said order, the
State reserved 68% of the seats in the engineering and medical
colleges and other technical institutions for the educationally and
socially backward classes and Scheduled Castes and Scheduled
Tribes and only 32% seats were available for the merit pool.
53. The Constitution Bench of this Court held that the
provisions contained in Articles 15(4) and 16(4) are similar
provisions. It further held that Article 15(4) is an enabling
provision and that it does not impose an obligation, but merely
leaves it to the discretion of the appropriate government to take
suitable action, if necessary.
5 1963 Supp. (1) SCR 439:1962 SCC OnLine 147: AIR 1963 SC 649.
61
54. It will be relevant to refer to the following observations of
this Court:
“20. Article 15(4) authorises the State to
make a special provision for the
advancement of any socially and
educationally backward classes of
citizens, as distinguished from the
Scheduled Castes and Scheduled Tribes.
No doubt, special provision can be made
for both categories of citizens, but in
specifying the categories, the first category
is distinguished from the second. Sub-
clauses (24) and (25) of Article 366 define
Scheduled Castes and Scheduled Tribes
respectively, but there is no clause
defining socially and educationally
backward classes of citizens, and so, in
determining the question as to whether a
particular provision has been validly made
under Article 15(4) or not, the first
question which falls to be determined is
whether the State has validly determined
who should be included in these
Backward Classes. It seems fairly clear
that the backward classes of citizens for
whom special provision is authorised to be
made are, by Article 15(4) itself, treated as
being similar to the Scheduled Castes and
Scheduled Tribes. Scheduled Castes and
62
Scheduled Tribes which have been defined
were known to be backward and the
Constitution-makers felt no doubt that
special provision had to be made for their
advancement. It was realised that in the
Indian Society there were other classes of
citizens who were equally, or may be
somewhat less, backward than the
Scheduled Castes and Tribes and it was
thought that some special provision ought
to be made even for them. Article 34(1)
provides for the issue of public notification
specifying the castes, races or tribes which
shall, for the purposes of this
Constitution, be deemed to be Scheduled
Castes either in the State or the Union
territory as the case may be. Similarly
Article 342 makes a provision for the issue
of public notification in respect of
Scheduled Tribes. Under Article 338(3), it
is provided that references to the
Scheduled Castes and Scheduled Tribes
shall be construed as including references
to such other Backward Classes as the
President may, on receipt of the report of a
commission appointed under Article
340(1) by order, specify and also to the
Anglo-Indian community. It would thus be
seen that this provision contemplates that
some Backward Classes may by the
Presidential order be included in
63
Scheduled Castes and Tribes. That helps
to bring out the point that the Backward
Classes for whose improvement special
provision is contemplated by Article 15(4)
are in the matter of their backwardness
comparable to Scheduled Castes and
Scheduled Tribes.”
55. This Court observed that the backward classes of citizens
for whom special provision is authorized to be made are, by
Article 15(4) itself, treated as being similar to the Scheduled
Castes and Scheduled Tribes. It has been observed that the
Scheduled Castes and Scheduled Tribes which have been defined
were known to be backward and the Constitution-makers felt no
doubt that special provision had to be made for their
advancement. However, it was realized that in the Indian Society
there were other classes of citizens who were equally, or may be
somewhat less backward than the Scheduled Castes and
Scheduled Tribes, and it was thought that some special provision
ought to be made even for them. The Court observed that the
Backward Classes for whose improvement special provision is
64
contemplated by Article 15(4) are in the matter of their
backwardness comparable to Scheduled Castes and Scheduled
Tribes.
56. It will also be apposite to refer to the following observations
of this Court:
“21. ……The backwardness under Article
15(4) must be social and educational. It is
not either social or educational, but it is
both social and educational; and that
takes us to the question as to how social
and educational backwardness has to
determined.”
57. It is thus clear that the Constitution Bench of this Court
observed that the backwardness under Article 15(4) must be
social and educational. It is neither social nor educational, but it
has to be both social and educational.
58. The Court then considered the question as to whether caste
can be made the sole basis for determining the social
backwardness was permissible or not. The Court observed that
65
the group of citizens to whom Article 15(4) applies are described
as “classes of citizens”, not as castes of citizens. The Court
observed that therefore in dealing with the question as to whether
any class of citizens is socially backward or not, it may not be
irrelevant to consider the caste of the said group of citizens. It
has been observed that though the caste of the group of citizens
may be relevant, its importance should not be exaggerated. The
Court further observed that social backwardness is, on the
ultimate analysis, the result of poverty to a very large extent. It
observed that the classes of citizens who are deplorably poor
automatically become socially backward. It observed that they do
not enjoy a status in society and have, therefore, to be content to
take a backward seat. The Court therefore held that both caste
and poverty are relevant in determining the backwardness of
citizens.
59. The Court further observed that the occupations of citizens
may also contribute to making classes of citizens socially
66
backward. It has been observed that there are some occupations
which are treated as inferior according to conventional beliefs
and classes of citizens who follow these occupations are apt to
become socially backward. It has been observed that the place of
habitation also plays a role in determining the backwardness of
a community of persons. It therefore held that the problem of
determining who are socially backward classes is very complex.
It has been held that sociological, social, and economic
considerations come into play in solving the problem, and
evolving proper criteria for determining which classes are socially
backward. However, it observed, that is the function of the State
which purports to act under Article 15(4) of the Constitution of
India.
60. In the facts of the said case, the Court found that the State
had applied the sole criteria of caste without regard to the other
factors. It was therefore held that the criteria of social
backwardness of the communities to whom the order impugned
67
therein was applied was not permissible under Article 15(4) of the
Constitution of India.
61. Insofar as the educational backwardness of the classes of
citizens is concerned, the State had applied the formula that all
castes whose average student population in the last three High
School classes of all High Schools in the State was less than the
State average of 6.9 per thousand should be regarded as
backward communities. Insofar as more backward communities
are concerned, the criteria applied was that if the average of any
community was less than 50% of the State average, it should be
regarded as constituting the more backward classes.
62. The Court held that the State was not justified in including
in the list of Backward Classes, castes, or communities whose
average of student population per thousand was slightly above,
or very near, or just below the State average.
68
B. State of Kerala vs. N.M. Thomas
63. Coming next to one of the most important judgments
dealing with the affirmative action which is the 7-Judge Bench
judgment of this Court in the case of State of Kerala and
another vs. N.M. Thomas and others6. In the said case, out of
the 7 Learned Judges, 5 Learned Judges upheld the provisions
made by the Kerala Government for providing affirmative action
to ameliorate the situation of Scheduled Castes and Scheduled
Tribes.
64. It will be apposite to refer to the following observation made
by A.N. Ray, C.J.:
“21. Articles 14, 15 and 16 form part of a
string of constitutional guaranteed rights.
These rights supplement each other.
Article 16 which ensures to all citizens
equality of opportunity in matters relating
to employment is an incident of guarantee
of equality contained in Article 14. Article
16(1) gives effect to Article 14. Both
Articles 14 and 16(1) permit reasonable
6 (1976) 2 SCC 310.
69
classification having a nexus to the objects
to be achieved. Under Article 16 there can
be a reasonable classification of the
employees in matters relating to
employment or appointment.
22. This Court in State of Gujarat v. Shri
Ambica Mills Ltd., Ahmedabad [(1974) 4
SCC 656 : 1974 SCC (L&S) 381] said: [SCC
p. 675: SCC (L&S) p. 400, para 53]
“The equal protection of the laws is a
pledge of the protection of equal laws.
But laws may classify. And the very idea
of classification is that of inequality. In
tackling this paradox the Court has
neither abandoned the demand for
equality nor denied the legislative right
to classify. It has taken a middle course.
It has resolved the contradictory
demands of legislative specialization
and constitutional generality by a
doctrine of reasonable classification.
(See Joseph Tussman and Jacobusten
Brook, The Equal Protection of the Laws,
37 California Rev. 341.)”
23. In Ambica Mills case [(1974) 4 SCC
656 : 1974 SCC (L&S) 381] this Court
explained reasonable classification to be
one which includes all who are similarly
70
situated and none who are not. The
question as to who are similarly situated
has been answered by stating that one
must look beyond the classification to the
purpose of law.
“The purpose of a law may be either
the elimination of a public mischief or
the achievement of some positive public
good.” [SCC p. 675: SCC (L&S) p. 400,
para 54]
24. Discrimination is the essence of
classification. Equality is violated if it rests
on unreasonable basis. The concept of
equality has an inherent limitation arising
from the very nature of the constitutional
guarantee. Those who are similarly
circumstanced are entitled to an equal
treatment. Equality is amongst equals.
Classification is, therefore, to be founded
on substantial differences which
distinguish persons grouped together from
those left out of the groups and such
differential attributes must bear a just and
rational relation to the object sought to be
achieved.
xxx xxx xxx
71
27. There is no denial of equality of
opportunity unless the person who
complains of discrimination is equally
situated with the person or persons who
are alleged to have been favoured. Article
16(1) does not bar a reasonable
classification of employees or reasonable
tests for their selection (State of
Mysore v. V.P. Narasing Rao [AIR 1968 SC
349 : (1968) 1 SCR 407 : (1968) 2 LLJ
120]).
28. This equality of opportunity need not
be confused with absolute equality. Article
16(1) does not prohibit the prescription of
reasonable rules for selection to any
employment or appointment to any office.
In regard to employment, like other terms
and conditions associated with and
incidental to it, the promotion to a
selection post is also included in the
matters relating to employment and even
in regard to such a promotion to a
selection post all that Article 16(1)
guarantees is equality of opportunity to all
citizens. Articles 16(1) and (2) give effect to
equality before law guaranteed by Article
14 and to the prohibition of discrimination
guaranteed by Article 15(1). Promotion to
selection post is covered by Article 16(1)
and (2).
72
29. The power to make reservation, which
is conferred on the State, under Article
16(4) can be exercised by the State in a
proper case not only by providing for
reservation of appointments but also by
providing for reservation of selection
posts. In providing for reservation of
appointments or posts under Article 16(4)
the State has to take into consideration
the claims of the Backward Classes
consistently with the maintenance of the
efficiency of administration. It must not be
forgotten that the efficiency of
administration is of such paramount
importance that it would be unwise and
impermissible to make any reservation at
the cost of efficiency of administration.
(General Manager, S. Rly.
v. Rangachari [AIR 1962 SC 36 : (1962) 2
SCR 586] .) The present case is not one of
reservation of posts by promotion.
30. Under Article 16(1) equality of
opportunity of employment means
equality as between members of the same
class of employees and not equality
between members of separate,
independent class. The Roadside Station
Masters and Guards are recruited
73
separately, trained separately and have
separate avenues of promotion. The
Station Masters claimed equality of
opportunity for promotion vis-à-vis the
guards on the ground that they were
entitled to equality of opportunity. It was
said the concept of equality can have no
existence except with reference to matters
which are common as between
individuals, between whom equality is
predicated. The Roadside Station Masters
and Guards were recruited separately.
Therefore, the two form distinct and
separate classes and there is no scope for
predicating equality or inequality of
opportunity in matters of promotion.
(See All India Station Masters and
Assistant Station Masters'
Association v. General Manager, Central
Railway [AIR 1960 SC 384 : (1960) 2 SCR
311].) The present case is not to create
separate avenues of promotion for these
persons.”
65. It could thus be seen that in the opinion of Ray, C.J.,
Articles 14, 15 and 16 form part of a string of constitutional
rights guaranteed by it, which supplement each other. His
Lordship observed that Article 16, which ensures to all citizens
74
equality of opportunity in matters relating to employment is an
incident of guarantee of equality contained in Article 14. In turn,
Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1)
permit reasonable classification having a nexus with the objects
to be achieved.
66. Referring to the judgment of this Court in the case of State
of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad7, His
Lordship explained the reasonable classification to be one which
includes all who are similarly situated and none who are not. He
further observed that discrimination is the essence of
classification, and that equality is violated if it rests on an
unreasonable basis. He observed that those who are similarly
circumstanced are entitled to an equal treatment and that
equality is amongst equals. He observed that the classification is,
therefore, to be founded on substantial differences which
distinguish persons grouped together from those left out of the
7 (1974) 4 SCC 656.
75
groups. He further observed that such differential attributes
must bear a just and rational relation to the object sought to be
achieved. He further observed that there is no denial of equality
of opportunity unless the person who complains of
discrimination is equally situated with the person or persons who
are alleged to have been favoured. He observed that Article 16(1)
does not bar a reasonable classification of employees or
reasonable tests for their selection. He observed that this
equality of opportunity need not be confused with absolute
equality. It is observed that power to make reservation, which is
conferred on the State, under Article 16(4) can be exercised by
the State in a proper case not only by providing for reservation of
appointments but also by providing for reservation of selection
posts. His Lordship observed that in providing for reservation of
appointments or posts under Article 16(4) the State has to take
into consideration the claims of the Backward Classes
76
consistently with the maintenance of the efficiency of
administration.
67. His Lordship further observed thus:
“38. The principle of equality is applicable
to employment at all stages and in all
respects, namely, initial recruitment,
promotion, retirement, payment of
pension and gratuity. With regard to
promotion the normal principles are either
merit-cum-seniority or seniority-cum-
merit. Seniority-cum-merit means that
given the minimum necessary merit
requisite for efficiency of administration,
the senior though the less meritorious
shall have priority. This will not violate
Articles 14, 16(1) and 16(2). A rule which
provides that given the necessary requisite
merit, a member of the backward class
shall get priority to ensure adequate
representation will not similarly violate
Article 14 or Article 16(1) and (2). The
relevant touchstone of validity is to find
out whether the rule of preference secures
adequate representation for the
unrepresented backward community or
goes beyond it.”
68. It is observed that the rule which provides that given the
necessary requisite merit, a member of the backward class shall
77
get priority so as to ensure adequate representation and the said
rule will not violate Article 14 or Article 16(1) and (2). The relevant
consideration would be to find out whether the rule of preference
secures adequate representation for the unrepresented backward
community or goes beyond it.
69. His Lordship further observed thus:
“43. Scheduled Castes and scheduled
tribes are not a caste within the ordinary
meaning of caste.
In Bhaiyalal v. Harikishan Singh [AIR
1965 SC 1557 : (1965) 2 SCR 877] this
Court held that an enquiry whether the
appellant there belonged to the Dohar
caste which was not recognised as a
scheduled caste and his declaration that
he belonged to the Chamar caste which
was a scheduled caste could not be
premitted because of the provisions
contained in Article 341. No court can
come to a finding that any caste or any
tribe is a scheduled caste or scheduled
tribe. Scheduled caste is a caste as notified
under Article 366(25). A notification is
issued by the President under Article 341
as a result of an elaborate enquiry. The
object of Article 341 is to provide
78
protection to the members of Scheduled
Castes having regard to the economic and
educational backwardness from which
they suffer.
44. Our Constitution aims at equality of
status and opportunity for all citizens
including those who are socially,
economically and educationally backward.
The claims of members of Backward
Classes require adequate representation
in legislative and executive bodies. If
members of Scheduled Castes and tribes,
who are said by this Court to be Backward
Classes, can maintain minimum
necessary requirement of administrative
efficiency, not only representation but also
preference may be given to them to enforce
equality and to eliminate inequality.
Article 15(4) and 16(4) bring out the
position of Backward Classes to merit
equality. Special provisions are made for
the advancement of Backward Classes
and reservations of appointments and
posts for them to secure adequate
representation. These provisions will bring
out the content of equality guaranteed by
Articles 14, 15(1) and 16(1). The basic
concept equality is equality of opportunity
for appointment. Preferential treatment for
members of Backward Classes with due
79
regard to administrative efficiency alone
can mean equality of opportunity for all
citizens. Equality under Article 16 could
not have a different content from equality
under Article 14. Equality of opportunity
for unequals can only mean aggravation of
inequality. Equality of opportunity admits
discrimination with reason and prohibits
discrimination without reason.
Discrimination with reasons means
rational classification for differential
treatment having nexus to the
constitutionally permissible object.
Preferential representation for the
Backward Classes in services with due
regard to administrative efficiency is
permissible object and Backward Classes
are a rational classification recognised by
our Constitution. Therefore, differential
treatment in standards of selection are
within the concept of equality.”
70. His Lordship clearly observed that Scheduled Castes and
Scheduled Tribes are not a caste within the ordinary meaning of
caste. He observed that no court can come to a finding that any
caste or any tribe is a scheduled caste or scheduled tribe. It is
observed that the object of Article 341 is to provide protection to
80
the members of Scheduled Castes having regard to the economic
and educational backwardness from which they suffer.
71. His Lordship (Ray, C.J.) further observed that our
Constitution aims at equality of status and opportunity for all
citizens including those who are socially, economically and
educationally backward. It has been held that if members of
Scheduled Castes and tribes, who are said by this Court to be
Backward Classes, can maintain minimum necessary
requirement of administrative efficiency, not only representation
but also preference may be given to them to enforce equality and
to eliminate inequality. It has been observed that special
provisions have been made for the advancement of Backward
Classes and reservations of appointments and posts for them to
secure adequate representation. It has been emphasized that
only such special provisions will bring out the content of equality
guaranteed by Articles 14, 15(1) and 16(1). His Lordship goes on
to say that preferential treatment for members of Backward
81
Classes with due regard to administrative efficiency alone can
mean equality of opportunity for all citizens. It has been observed
that equality of opportunity for unequals can only mean
aggravation of inequality and that equality of opportunity admits
discrimination with reason and prohibits discrimination without
reason. His Lordship held that discrimination with reasons
means rational classification for differential treatment having
nexus to the constitutionally permissible object. It has been held
that Preferential representation for the Backward Classes in
services with due regard to administrative efficiency is
permissible object and Backward Classes are a rational
classification recognized by the Constitution. It has been held
that the differential treatment in standards of selection is within
the concept of equality.
72. I now refer to the following observations of K.K. Mathew, J.:
“53. Formal equality is achieved by
treating all persons equally: “Each man to
count for one and no one to count for more
82
than one.” But men are not equal in all
respects. The claim for equality is in fact a
protest against unjust, undeserved and
unjustified inequalities. It is a symbol of
man's revolt against chance, fortuitous
disparity, unjust power and crystallised
privileges. Although the decision to grant
equality is motivated prima facie by the
alleged reason that all men are equal yet,
as soon as we clear up the confusion
between equality in the moral sense and
equality in the physical sense, we realise
that the opposite is the truth; for, we think
that it is just to promote certain equalities
precisely to compensate for the fact that
men are actually born different. We,
therefore, have to resort to some sort of
proportionate equality in many spheres to
achieve justice.
54. The principle of proportional equality
is attained only when equals are treated
equally and unequals unequally. This
would raise the baffling question: Equals
and unequals in what? The principle of
proportional equality therefore involves an
appeal to some criterion in terms of which
differential treatment is justified. If there
is no significant respect in which persons
concerned are distinguishable, differential
treatment would be unjustified. But what
83
is to be allowed as a significant difference
such as would justify differential
treatment?
55. In distributing the office of a State, not
any sort of personal equality is relevant;
for, unless we employ criteria appropriate
to the sphere in question, it would turn
out that a man's height or complexion
could determine his eligibility or suitability
for a post. As Aristotle said, claims to
political office cannot be based on prowess
in athletic contests. Candidates for office
should possess those qualities that go to
make up an effective use of the office. But
this principle also does not give any
satisfactory answer to the question when
differential treatment can be meted out. As
I said, the principle that if two persons are
being treated or are to be treated
differently there should be some relevant
difference between them is, no doubt,
unexceptionable. Otherwise, in the
absence of some differentiating feature
what is sauce for the goose is sauce for the
gander. The real difficulty arises in finding
out what constitutes a relevant difference.
56. If we are all to be treated in the same
manner, this must carry with it the
84
important requirement that none of us
should be better or worse in upbriging,
education, than anyone else which is an
unattainable ideal for human beings of
anything like the sort we now see. Some
people maintain that the concept of
equality of opportunity is an
unsatisfactory concept. For, a complete
formulation of it renders it incompatible
with any form of human society. Take for
instance, the case of equality of
opportunity for education. This equality
cannot start in schools and hence requires
uniform treatment in families which is an
evident impossibility. To remedy this, all
children might be brought up in State
nurseries, but, to achieve the purpose, the
nurseries would have to be run on
vigorously uniform lines. Could we
guarantee equality of opportunity to the
young even in those circumstances? The
idea is well expressed by Laski:
“Equality means, in the second place,
that adequate opportunities are laid
open to all. By adequate opportunities
we cannot imply equal opportunities in
a sense that implies identity of original
chance. The native endowments of men
are by no means equal. Children who
are brought up in an atmosphere where
things of the mind are accounted highly
85
are bound to start the race of life with
advantages no legislation can secure.
Parental character will inevitably affect
profoundly the equality of the children
whom it touches. So long, therefore, as
the family endures — and there seems
little reason to anticipate or to desire its
disappearance — the varying
environments it will create make the
notion of equal opportunities a fantastic
one. [ “Liberty and Equality” in Special
Problems and Public Policy : Inequality
and Justice, Ed. Lee Rainwater, pp. 26
to 31]
57. Though complete identity of equality
of opportunity is impossible in the world,
measures compensatory in character and
which are calculated to mitigate
surmountable obstacles to ensure equality
of opportunity can never incur the wrath
of Article 16(1).”
73. Mathew, J. observed that formal equality is achieved by
treating all persons equally. Formally, it requires that all men
have to be treated as the same. He observed that men are not
equal in all respects. The claim for equality is in fact a protest
86
against unjust, undeserved and unjustified inequalities. It is a
symbol of man's revolt against chance, fortuitous disparity,
unjust power and crystallized privileges. He observed that as
soon as we clear up the confusion between equality in the moral
sense and equality in the physical sense, it is just to promote
certain equalities precisely to compensate for the fact that men
are actually born different. He explains the theory of proportional
equality and observed that the principle of proportional equality
can be attained only when equals are treated equally and
unequals unequally. He observed that if there is no significant
respect in which persons concerned are distinguishable,
differential treatment would be unjustified. But if there is
significant respect in which persons concerned are
distinguishable, the same would justify differential treatment.
His Lordship observed that if two people are being treated or are
to be treated differently there should be some relevant difference
between them. Otherwise, in the absence of some differentiating
87
feature what is sauce for the goose is sauce for the gander. He
observed that the real difficulty arises in finding out what
constitutes a relevant difference.
74. His Lordship observed that if we all were to be treated in the
same manner, the same would carry with it the requirement that
none of us should be better or worse in upbringing and education
than anyone else. He observed that the equality of opportunity
for education cannot start in schools and hence requires uniform
treatment in families which is an evident impossibility. His
Lordship referred to Laski, who opined that parental character
will inevitably affect the equality of the children whom it touches.
His Lordship then observed that though complete identity of
equality of opportunity is impossible in the world, compensatory
measures in character calculated to mitigate surmountable
obstacles to ensure equality of opportunity would not violate
Article 16(1).
88
75. It will also be apposite to refer to the following observations
of Mathew, J. in N.M. Thomas (supra):
“64. It would follow that if we want to give
equality of opportunity for employment to
the members of the Scheduled Castes and
scheduled tribes, we will have to take note
of their social, educational and economic
environment. Not only is the directive
principle embodied in Article 46 binding
on the law-maker as ordinarily understood
but it should equally inform and
illuminate the approach of the court when
it makes a decision as the court also is
‘state’ within the meaning of Article 12 and
makes law even though “interstitially from
the molar to the molecular”. I have
explained at some length the reason why
court is “State” under Article 12 in my
judgment in His Holiness Kesavananda
Bharati Sripadagalavaru v. State of
Kerala [(1973) 4 SCC 225 : 1973 Supp
SCR 1] .
65. Equality of opportunity is not simply a
matter of legal equality. Its existence
depends, not merely on the absence of
disabilities, but on the presence of
abilities. It obtains insofar as, and only
insofar as, each member of a community,
89
whatever his birth or occupation or social
position, possesses in fact, and not merely
in form, equal chances of using to the full
his natural endowments of physique, of
character, and of intelligence. [ See R.H.
Tawney, “Equality”, (1965) pp. 103-04]
66. The guarantee of equality before the
law or the equal opportunity in matters of
employment is a guarantee of something
more than what is required by formal
equality. It implies differential treatment of
persons who are unequal. Egalitarian
principle has therefore enhanced the
growing belief that Government has an
affirmative duty to eliminate inequalities
and to provide opportunities for the
exercise of human rights and claims
Fundamental rights as enacted in Part III
of the Constitution are, by and large,
essentially negative in character. They
mark off a world in which the Government
should have no jurisdiction. In this realm,
it was assumed that a citizen has no claim
upon Government except to be left alone.
But the language of Article 16(1) is in
marked contrast with that of Article 14.
Whereas the accent in Article 14 is on the
injunction that the State shall not deny to
any person equality before the law or the
equal protection of the laws that is, on the
90
negative character of the duty of the State,
the emphasis in Article 16(1) is on the
mandatory aspect, namely, that there
shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State implying thereby that affirmative
action by the Government would be
consistent with the article if it is calculated
to achieve it. If we are to achieve equality,
we can never afford to relax:
“While inequality is easy since it
demands no more than to float with the
current, equality is difficult for it
involves swimming against it. [ R.H.
Tawney, “Equality”, (1952), p. 47] ”
67. Today, the political theory which
acknowledges the obligation of
Government under Part IV of the
Constitution to provide jobs, medical care,
old age pension, etc., extends to human
rights and imposes an affirmative
obligation to promote equality and liberty.
The force of the idea of a State with
obligation to help the weaker sections of
its members seems to have increasing
influence in constitutional law. The idea
finds expression in a number of cases in
America involving social discrimination
91
and also in the decisions requiring the
State to offset the effects of poverty by
providing counsel, transcript of appeal,
expert witnesses, etc. Today, the sense
that Government has affirmative
responsibility for elimination of
inequalities, social, economic or
otherwise, is one of the dominant forces in
constitutional law. While special
concessions for the underprivileged have
been easily permitted, they have not
traditionally been required. Decisions in
the areas of criminal procedure, voting
rights and education in America suggest
that the traditional approach may not be
completely adequate. In these areas, the
inquiry whether equality has been
achieved no longer ends with numerical
equality; rather the equality clause has
been held to require resort to a standard
of proportional equality which requires the
State, in framing legislation, to take into
account the private inequalities of wealth,
of education and other circumstances. [
See “Developments — Equal Protection”,
82 Harv LR 1165]
68. The idea of compensatory State action
to make people who are really unequal in
their wealth, education or social
environment, equal, in specified areas,
92
was developed by the Supreme Court of
the United States. Rousseau has said:
“It is precisely because the force of
circumstances tends to destroy equality
that force of legislation must always
tend to maintain it. [ Contract Social ii,
11] ””
76. His Lordship observed that if we want to give equality of
opportunity for employment to the members of the Scheduled
Castes and Scheduled Tribes, we will have to take note of their
social, educational, and economic environment. His Lordship
observed that the directive principle embodied in Article 46 is not
only binding on the lawmaker, but it should equally inform and
illuminate the approach of the court when it makes a decision.
Referring to the exposition in the case of His Holiness
Kesavananda Bharati Sripadagalavaru vs. State of Kerala8,
His Lordship states that the Court is also a ‘state’ when it makes
a decision within the meaning of Article 12.
8 (1973) 4 SCC 225 : 1973 Supp. SCR 1.
93
77. His Lordship observed that ‘equality of opportunity’ is not
simply a matter of legal equality and that its existence depends,
not merely on the absence of disabilities, but on the presence of
abilities. It has been observed that the guarantee of equality is
something more than what is required by ‘formal equality’. It
implies differential treatment of persons who are unequal. It has
been observed that egalitarian principle requires that the
Government has an affirmative duty to eliminate inequalities and
to provide opportunities for the exercise of human rights and
claim Fundamental rights as enacted in Part III of the
Constitution are, by and large, essentially negative in character.
His Lordship observed that the emphasis in Article 16(1) is on the
mandatory aspect that there shall be equality of opportunity for
all citizens in matters relating to employment or appointment to
any office under the State. It therefore implies that affirmative
action by the Government would be consistent with the article if
it is calculated to achieve it.
94
78. Referring to Article 14 of the Constitution, His Lordship
observed that the State is under obligation to help the members
of the weaker sections. His Lordship observed that under the
constitutional law, the Government has affirmative responsibility
for elimination of inequalities, social, economic or otherwise.
Referring to the concept of proportional equality, His Lordship
states that the State is required to frame legislation, to consider
the private inequalities of wealth, of education and other
circumstances.
79. Referring to the judgments of the Supreme Court of the
United States, His Lordship opined that the idea of compensatory
State action was to bring about the equality for the people who
are really unequal in their wealth, education or social
environment.
80. After referring to certain judgments of the United States
Supreme Court, Mathew, J. observed thus:
95
“73. There is no reason why this Court
should not also require the State to adopt
a standard of proportional equality which
takes account of the differing conditions
and circumstances of a class of citizens
whenever those conditions and
circumstances stand in the way of their
equal access to the enjoyment of basic
rights or claims.
74. The concept of equality of opportunity
in matters of employment is wide enough
to include within it compensatory
measures to put the members of the
Scheduled Castes and scheduled tribes on
par with the members of other
communities which would enable them to
get their share of representation in public
service. How can any member of the so-
called forward communities complain of a
compensatory measure made by the
Government to ensure the members of
Scheduled Castes and scheduled tribes
their due share of representation in public
services?
75. It is said that Article 16(4) specifically
provides for reservation of posts in favour
of Backward Classes which according to
the decision of this Court would include
96
the power of the State to make reservation
at the stage of promotion also and
therefore Article 16(1) cannot include
within its compass the power to give any
adventitious aids by legislation or
otherwise to the Backward Classes which
would derogate from strict numerical
equality. If reservation is necessary either
at the initial stage or at the stage of
promotion or at both to ensure for the
members of the Scheduled Castes and
scheduled tribes equality of opportunity in
the matter of employment, I see no reason
why that is not permissible under Article
16(1) as that alone might put them on a
parity with the forward communities in the
matter of achieving the result which
equality of opportunity would produce.
Whether there is equality of opportunity
can be gauged only by the equality
attained in the result. Formal equality of
opportunity simply enables people with
more education and intelligence to capture
all the posts and to win over the less
fortunate in education and talent even
when the competition is fair. Equality of
result is the test of equality of opportunity.
76. Daniel P. Moynihan, one of America's
leading urban scholars, spelled out the
problem in a widely publicized study that
97
he prepared while he was Assistant
Secretary of Labour. The Moynihan
Report, as it came to be known, made the
point in a passage that deserves full
quotation:
“It is increasingly demanded that the
distribution of success and failure
within one group be roughly
comparable to that within other groups.
It is not enough that all individuals
start out on even terms, if the members
of one group almost invariably end up
well to the fore and those of another far
to the rear. This is what ethnic politics
are all about in America, and in the
main the Negro American demands are
being put forth in this new traditional
and established framework.
Here a point of semantics must be
grasped. The demand for equality of
opportunity has been generally
perceived by White Americans as a
demand for liberty, a demand not to be
excluded from the competitions of life —
at the polling place, in the scholarship
examinations, at the personnel office,
on the housing market. Liberty does, of
course, demand that everyone be free to
try his luck, or test his skill in such
matters. But these opportunities do not
necessarily produce equality: on the
98
contrary, to the extent that winners
imply losers, equality of opportunity
almost insures inequality of results.
The point of semantics is that
equality of opportunity now has a
different meaning for Negroes than it
has for Whites. It is not (or at least no
longer) a demand for liberty alone, but
also for equality — in terms of group
results. In Bayard Rustin's terms, ‘It is
now concerned not merely with
removing the barriers to full
opportunity but with achieving the fact
of equality’. By equality Rustin means a
distribution of achievements among
Negroes roughly comparable to that
among Whites. [ The Moynihan Report
and the Politics of Controversy, Eds. Lee
Rainwater and William L. Yancey, p.
49]”
77. Beginning most notably with the
Supreme Court's condemnation of school
segregation in 1954, the United States has
finally begun to correct the discrepancy
between its ideals and its treatment of the
black man. The first steps, as reflected in
the decisions of the courts and the civil
rights laws of Congress, merely removed
the legal and quasi-legal forms of racial
99
discrimination. These actions while not
producing true equality, or even equality
of opportunity, logically dictated the next
step: positive use of government power to
create the possibility of a real equality. In
the words of Professor Lipset:
“Perhaps the most important fact to
recognise about the current situation of
the American Negro is that (legal)
equality is not enough to insure his
movement into larger society.” [ “The
American Democracy”, Mcgrath,
Cornwell and Goodman, p. 18]
78. I agree that Article 16(4) is capable of
being interpreted as an exception to Article
16(1) if the equality of opportunity
visualized in Article 16(1) is a sterile one,
geared to the concept of numerical
equality which takes no account of the
social, economic, educational background
of the members of Scheduled Castes and
scheduled tribes. If equality of opportunity
guaranteed under Article 16(1) means
effective material equality, then Article
16(4) is not an exception to Article 16(1). It
is only an emphatic way of putting the
extent to which equality of opportunity
could be carried viz., even up to the point
of making reservation.
100
79. The State can adopt any measure
which would ensure the adequate
representation in public service of the
members of the Scheduled Castes and
scheduled tribes and justify it as a
compensatory measure to ensure equality
of opportunity provided the measure does
not dispense with the acquisition of the
minimum basic qualification necessary for
the efficiency of administration.”
81. His Lordship observed that there is no reason why this
Court should not require the State to adopt a standard of
proportional equality which takes account of the differing
conditions and circumstances of a class of citizens. His Lordship
observed that whenever differing conditions and circumstances
stand in the way of a class of citizens in their equal access to the
enjoyment of basic rights or claims, the State would be required
to adopt a standard of proportional equality.
82. He observed that no member of the forward classes or
communities should complain against a compensatory measure
101
made by the Government to ensure that the members of
Scheduled Castes and Scheduled Tribes get their due share of
representation in public services.
83. His Lordship observed that if reservation is necessary either
at the initial stage or at the stage of promotion or at both, to
ensure for the members of the Scheduled Castes and Scheduled
Tribes equality of opportunity, then this would be permissible
under Article 16(1) as that alone would put them on a parity with
the forward communities in the matter of achieving the result
which equality of opportunity would produce. It is observed that
the formal equality of opportunity simply enables people with
more education and intelligence to capture all the posts and to
win over the less fortunate in education and talent even when the
competition is fair. He observed that the equality of result is the
test of equality of opportunity.
84. Mathew, J. rejects the contention that Article 16(4) is an
exception to Article 16(1). He states that such an interpretation
102
does not consider the social, economic, educational background
of the members of the Scheduled Castes and Scheduled Tribes.
He held that if equality of opportunity guaranteed under Article
16(1) means effective material equality, then Article 16(4) is not
an exception to Article 16(1) and that it is only an emphatic way
of putting the extent to which equality of opportunity could be
carried i.e., even up to the point of making reservation.
85. His Lordship observed that the State can adopt any
measure which would ensure the adequate representation in
public service of the members of the Scheduled Castes and
Scheduled Tribes and justify it as a compensatory measure to
ensure equality of opportunity provided the measure does not
dispense with the acquisition of the minimum basic qualification
necessary for the efficiency of administration.
86. Mathew, J. further observed thus:
“83. A classification is reasonable if it
includes all persons who are similarly
situated with respect to the purpose of the
103
law. In other words, the classification
must be founded on some reasonable
ground which distinguishes persons who
are grouped together and the ground of
distinction must have rational relation to
the object sought to be achieved by the
rule or even the rules in question. It is a
mistake to assume a priori that there can
be no classification within a class, say, the
lower division clerks. If there are
intelligible differentia which separates a
group within that class from the rest and
that differentia have nexus with the object
of classification, I see no objection to a
further classification within the class. It is
no doubt a paradox that though in one
sense classification brings about
inequality, it is promotive of equality if its
object is to bring those who share a
common characteristic under a class for
differential treatment for sufficient and
justifiable reasons. In this view, I have no
doubt that the principle laid down in All
India Station Masters and Assistant
Station Masters Association v. General
Manager, Central Railway [(1960) 2 SCR
311 : AIR 1960 SC 384.] ; S.G.
Jaisinghani v. Union of India and State of
J&K. v. Triloki Nath Khosa [(1974) 1 SCC
19 : 1974 SCC (L&S) 49 : (1974) 1 SCR
771.] has no application here.”
104
87. It has been observed that a classification is reasonable if it
includes all persons who are similarly situated with respect to
the purpose of the law. It has been observed that the
classification must be founded on some reasonable ground which
distinguishes persons who are grouped together and the ground
of distinction must have rational relation to the object sought to
be achieved by the rule. It specifically observed that it is a
mistake to assume a priori that there can be no classification
within a class. He held that if there are intelligible differentia
which separates a group within that class from the rest and that
differentia have nexus with the object of classification, such a
further classification within the class would be permissible in
law. He observed that though in one sense classification brings
about inequality it is promotive of equality if its object is to bring
those who share a common characteristic under a class, for
differential treatment for sufficient and justifiable reasons.
105
88. V.R. Krishna Iyer, J. in his concurring judgment observed
thus:
“124. A word of sociological caution. In the
light of experience, here and elsewhere,
the danger of “reservation”, it seems to me,
is threefold. Its benefits, by and large, are
snatched away by the top creamy layer of
the “backward” caste or class, thus
keeping the weakest among the weak
always weak and leaving the fortunate
layers to consume the whole cake.
Secondly, this claim is overplayed
extravagantly in democracy by large and
vocal groups whose burden of
backwardness has been substantially
lightened by the march of time and
measures of better education and more
opportunities of employment, but wish to
wear the “weaker section” label as a means
to score over their near-equals formally
categorised as the upper brackets. Lastly,
a lasting solution to the problem comes
only from improvement of social
environment, added educational facilities
and cross-fertilisation of castes by inter-
caste and inter-class marriages sponsored
as a massive State programme, and this
solution is calculatedly hidden from view
by the higher “backward” groups with a
vested interest in the plums of
backwardism. But social science research,
not judicial impressionism, will alone tell
106
the whole truth and a constant process of
objective re-evaluation of progress
registered by the “underdog” categories is
essential lest a once deserving
“reservation” should be degraded into
“reverse discrimination”. Innovations in
administrative strategy to help the really
untouched, most backward classes also
emerge from such socio-legal studies and
audit exercises, if dispassionately made.
In fact, research conducted by the A.N.
Sinha Institute of Social Studies, Patna,
has revealed a dual society among
harijans, a tiny elite gobbling up the
benefits and the darker layers sleeping
distances away from the special
concessions. For them, Articles 46 and
335 remain a “noble romance” [ As Huxley
called it in “Administrative Nihilism”
(Methods and Results, Vol. 4 of Collected
Essays).] , the bonanza going to the
“higher” harijans. I mention this in the
present case because lower division clerks
are likely to be drawn from the lowest
levels of harijan humanity and promotion
prospects being accelerated by
withdrawing, for a time, “test”
qualifications for this category may
perhaps delve deeper. An equalitarian
breakthrough in a hierarchical structure
has to use many weapons and Rule 13-AA
perhaps is one.
107
125. The core conclusion I seek to
emphasise is that every step needed to
achieve in action actual, equal,
partnership for the harijans, alone
amounts to social justice — not
enshrinement of great rights in Part III and
good goals in Part IV. Otherwise, the
solemn undertakings in Articles 14 to 16
read with Articles 46 and 335 may be
reduced to a “teasing illusion or promise of
unreality”. A clear vision of the true
intendment of these provisions demands a
deep understanding of the Indian
spiritual-secular idea that divinity dwells
in all and that ancient environmental
pollution and social placement, which the
State must extirpate, account for the
current socio-economic backwardness of
the blacked-out human areas described
euphemistically as scheduled castes and
scheduled tribes. The roots of our
constitutional ideas — at least some of
them — can be traced to our ancient
culture. The noble Upanishadic behest of
collective acquisition of cultural strength
(सह वीर्य करवावहे) is involved in and must
evolve out of “equality”, if we are true to
the subtle substance of our finer heritage.”
89. His Lordship categorizes three-fold danger of reservation.
According to him, firstly the benefits, by and large, are snatched
108
away by the top creamy layer of the “backward” caste or class,
thus keeping the weakest among the weak always weak and
leaving the fortunate layers to consume the whole cake.
Secondly, this claim of backwardness is overplayed extravagantly
in democracy by large and vocal groups whose burden of
backwardness has been substantially lightened by the march of
time and measures of better education and more opportunities of
employment. However, they wish to wear the “weaker section”
label to score over their near-equals formally categorized as the
upper brackets. Thirdly, according to him, a lasting solution to
the problem would come only from improvement of social
environment, added educational facilities and cross-fertilization
of castes by inter-caste and inter-class marriages sponsored as a
massive State program.
90. His Lordship observed that every step needed to achieve in
action actual, equal, partnership for the harijans, alone amounts
to social justice. He observed that if this is not done, the solemn
109
undertakings in Articles 14 to 16 read with Articles 46 and 335
may be reduced to a “teasing illusion or promise of unreality”.
91. His Lordship further observed thus:
“136. The next hurdle in the appellant's
path relates to Article 16(4). To my mind,
this sub-article serves not as an exception
but as an emphatic statement, one mode
of reconciling the claims of backward
people and the opportunity for free
competition the forward sections are
ordinarily entitled to. In the language of
Subba Rao, J. (as he then was),
in Devadasan [AIR 1964 SC 179: (1964) 4
SCR 680, 700 : (1965) 2 LLJ 560] .
“The expression ‘nothing in this
article’ is a legislative device to express
its intention in a most emphatic way
that the power conferred thereunder is
not limited in any way by the main
provision but falls outside it. It has not
really carved out an exception, but has
preserved a power untrammelled by the
other provisions of the article.”
True, it may be loosely said that Article
16(4) is an exception but, closely
examined, it is an illustration of
constitutionally sanctified classification.
Public services have been a fascination for
Indians even in British days, being a
110
symbol of State power and so a special
article has been devoted to it. Article 16(4)
need not be a saving clause but put in due
to the over-anxiety of the draftsman to
make matters clear beyond possibility of
doubt (see, for instance, CIT v. Shaw
Wallace & Co. [59 IA 206: AIR 1932 PC
138] ).
137. “Reservation” based on classification
of backward and forward classes, without
detriment to administrative standards (as
this Court has underscored) is but an
application of the principle of equality
within a class and grouping based on a
rational differentia, the object being
advancement of backward classes
consistently with efficiency. Article 16(1)
and (4) are concordant. This Court has
viewed Article 16(4)as an exception to
Article 16(1). Does classification based on
desperate backwardness render Article
16(4) redundant? No. Reservation
confers pro tanto monopoly, but
classification grants under Article 16(1)
ordinarily a lesser order of advantage. The
former is more rigid, the latter more
flexible, although they may overlap
sometimes. Article 16(4) covers all
backward classes; but to earn the benefit
of grouping under Article 16(1) based on
Articles 46 and 335 as I have explained,
the twin considerations of terrible
111
backwardness of the type harijans endure
and maintenance of administrative
efficiency must be satisfied.”
92. Referring to the observation of Subba Rao, J. in the case of
T. Devadasan vs. Union of India9, Krishna Iyer, J. observed
that Article 16(4) serves not as an exception but as an emphatic
statement, one mode of reconciling the claims of backward people
and the opportunity for free competition the forward sections are
ordinarily entitled to.
93. He observed that on a closer examination, it can be seen
that clause (4) of Article 16 is an illustration of constitutionally
sanctified classification. He observed that Article 16(4) need not
be a saving clause but put in due to the over-anxiety of the
draftsman to make matters clear beyond possibility of doubt.
94. It is observed that the “Reservation” based on classification
of backward and forward classes, without detriment to
administrative standards is an application of the principle of
9 (1964) 4 SCR 680 : AIR 1964 SC 55.
112
equality within a class and grouping based on a rational
differentia, the object being advancement of backward classes
consistently with efficiency. His Lordship further observed that
Article 16(4) covers all backward classes. He however states that
for earning the benefit of grouping under Article 16(1) based on
Articles 46 and 335, the twin considerations of terrible
backwardness of the type harijans endure and maintenance of
administrative efficiency must be satisfied.
95. His Lordship also held that Articles 14 to 16 are a common
code of guaranteed equality, the first laying down the broad
doctrine, whereas the other two applying it to sensitive areas
which are historically important and politically polemical in a
climate of communalism and jobbery.
96. Fazal Ali, J. in his concurring judgment observed thus:
“178. The concept of equality or equal
opportunity as contained in Article 16
does not mean that same laws must be
applicable to all persons under every
circumstance. Indeed if this artificial
113
interpretation is put on the scope and
ambit of Article 16 it will lead to
channelisation of legislation or
polarisation of rules. Differences and
disparities exist among men and things
and they cannot be treated alike by the
application of the same laws but the law
has to come to terms with life and must be
able to recognise the genuine differences
and disparities that exist in human
nature. Legislature has also to enact
legislation to meet specific ends by making
a reasonable and rational classification.
In Morey v. Doud [354 US 457, 473] it was
so aptly observed:
“To recognise marked differences
that exist in fact is living law; to
disregard practical differences and
concentrate on some abstract identities
is lifeless logic.”
179. Coming now to Article 16 it may be
analysed into three separate categories so
far as the facts of the present case are
concerned:
Category I—clause (1) of Article 16
Category II—clause (2) of Article 16.
Category Ill—clause (4) of Article 16.
114
180. Clause (1) of Article 16 clearly
provides for equality of opportunity to all
citizens in the services under the State. It
is important to note that the Constitution
uses the words “equality of opportunity
for all citizens”. This inherently implies
that the opportunity must be given not
only to a particular section of the society
or a particular class of citizens who may
be advanced or otherwise more affluent
but to all classes of citizens. This,
therefore, can be achieved by making a
reasonable classification so that every
class of citizens is duly represented in
services which will enable equality of
opportunity to all citizens. The
classification, however, must be a
reasonable one and must fulfil the
following conditions:
(i) It must have a rational basis;
(ii) it must have a close nexus with
the object sought to be achieved;
(iii) it should not select any person for
hostile discrimination at the cost of
others.”
97. His Lordship observed that differences and disparities exist
among men and things, and they cannot be treated alike by the
application of the same laws. He observed that the law must
115
come to terms with life and must be able to recognize the genuine
differences and disparities that exist in human nature. He
observed that the Legislature has also to enact legislation to meet
specific ends by making a reasonable and rational classification.
98. It has been observed that clause (1) of Article 16 clearly
provides for equality of opportunity to all citizens in the services
under the State. His Lordship emphasized that the words
“equality of opportunity for all citizens” used in the Constitution
imply that the opportunity must be given not only to a particular
section of the society or a particular class of citizens who may be
advanced or otherwise more affluent but to all classes of citizens.
According to the Learned Judge, this can be achieved by making
a reasonable classification so that every class of citizens is duly
represented in services which will enable equality of opportunity
to all citizens. He however culls out three conditions, viz., (i) it
must have a rational basis; (ii) it must have a close nexus with
116
the object sought to be achieved; and (iii) it should not select any
person for hostile discrimination at the cost of others.
99. Echoing the sentiments of the other Learned Judges, by
holding that Article 16(4) is not a proviso to Article 16(1), the
Learned Judge observed thus:
“187. For these reasons, therefore, I
respectfully agree with the observations of
Subba Rao, J., as he then was, in T.
Devadasan v. Union of India [AIR 1964 SC
179 : (1964) 4 SCR 680 : (1965) 2 LLJ 560]
where he observed:
“That is why the makers of the
Constitution introduced clause (4) in
Article 16. The expression ‘nothing in
this article’ is a legislative device to
express its intention in a most emphatic
way that the power conferred
thereunder is not limited in any way by
the main provision but falls outside it.
It has not really carved out an
exception, but has preserved a power
untrammelled by the other provisions of
the article.”
My view that Article 16(4) is not a proviso
to Article 16(1) but that this clause covers
the whole field of Article 16 is amply
supported by the decision of this Court
in General Manager, Southern
117
Railway v. Ranga-chari where it was
observed: (p. 599)
“It is common ground that Article
16(4) does not cover the entire field
covered by Article 16(1) and (2). Some of
the matters relating to employment in
respect of which equality of opportunity
has been guaranteed by Article 16(1)
and (2) do not fall within the mischief of
non-obstantive clause in Article 16(4).”
C. Akhil Bharatiya Soshit Karamchari Sangh (Railway)
vs. Union of India
100. Next is the case of Akhil Bharatiya Soshit Karamchari
Sangh (Railway) represented by its Assistant General
Secretary on behalf of the Association vs. Union of India and
others10, where a bench of 3 Learned Judges of this Court was
considering the policy directives issued by the Railway Board
introducing reservation in cases of selection as well as non-
selection posts and other related issues regarding affirmative
action.
10 (1981) 1 SCC 246.
118
101. Krishna Iyer, J. in paragraph 12, observed thus:
“12. Granville Austin [ Granville Austin :
The Indian Constitution — Cornerstone of
a Nation] quotes profusely from the
Constituent Assembly proceedings to
prove the goal of the Indian Constitution
to be social revolution. Radhakrishnan,
representing the broad consensus, said
that: [ Ibid, p. 27]
“India must have a ‘socio-economic
revolution’ designed not only to bring
about the real satisfaction of the
fundamental needs of the common
man, but to go much deeper and bring
about ‘a fundamental change in the
structure of Indian society’.”
102. The Learned Judge refers to the speech of Dr.
Radhakrishnan, representing the broad consensus, wherein he
said that India must have a ‘socio-economic revolution’ designed
not only to bring about the real satisfaction of the fundamental
needs of the common man, but to go much deeper and bring
about ‘a fundamental change in the structure of Indian society’.
103. Explaining the inter-relation between Articles 16(1) and
16(4), the Learned Judge observed thus:
119
“21. The preamble which promises justice,
liberty and equality of status and
opportunity within the framework of
secular, socialist republic projects a
holistic perspective. Article 16 which
guarantees equal opportunity for all
citizens in matters of State service
inherently implies equalisation as a
process towards equality but also hastens
to harmonize the realistic need to jack up
“depressed” classes to overcome initial
handicaps and join the national race
towards progress on an equal footing and
devotes Article 16(4) for this specific
purpose. In a given situation of large social
categories being submerged for long, the
guarantee of equality with the rest is myth,
not reality, unless it is combined with
affirmative State action for equalisation
geared to promotion of eventual equality.
Article 16(4) is not a jarring note but
auxiliary to fair fulfilment of Article 16(1).
The prescription of Article 16(1) needs, in
the living conditions of India, the concrete
sanction of Article 16(4) so that those
wallowing in the social quagmire are
enabled to rise to levels of equality with the
rest and march together with their
brethren whom history had not so harshly
hamstrung. To bury this truth is to
120
sloganise Article 16(1) and sacrifice the
facts of life.
22. This is not mere harmonious statutory
construction of Article 16(1) and (4) but
insightful perception of our constitutional
culture, reflecting the current of resurgent
India bent on making, out of a sick and
stratified society of inequality and poverty,
a brave new Bharat. If freedom, justice
and equal opportunity to unfold one's own
personality belong alike
to bhangi and brahmin, prince and
pauper, if the panchama proletariat is
to feel the social transformation Article
16(4) promises, the State must apply
equalising techniques which will enlarge
their opportunities and thereby
progressively diminish the need for props.
The success of State action under Article
16(4) consists in the speed with which
result-oriented reservation withers away
as no longer a need, not in the
everwidening and everlasting operation of
an exception [Article 16(4)] as if it were a
super-fundamental right to continue
backward all the time. To lend immortality
to the reservation policy is to defeat its
raison d'etre, to politicise this provision for
communal support and Party ends is to
subvert the solemn undertaking of Article
121
16(1), to casteify “reservation” even
beyond the dismal groups of
backwardmost people, euphemistically
described as SC & ST, is to run a grave
constitutional risk. Caste, ipso facto, is
not class in a secular State.
23. The authentic voice of our culture,
voiced by all the great builders of modern
India, stood for abolition of the hardships
of the pariah, the mlecha, the bonded
labour, the hungry, hard-working half-
slave, whose liberation was integral to our
independence. To interpret the
Constitution rightly we must understand
the people for whom it is made — the finer
ethos, the frustrations, the aspirations,
the parameters set by the Constitution for
the principled solution of social
disabilities. This synthesis of ends and
means, of life's maladies and law's
remedies is a part of the know-how of
constitutional interpretation if alienation
from the people were not to afflict the
justicing process: [ J. Landis : Note on
Statutory Interpretation, 43 Harv L Rev
886, 891 (1930)]
A statute rarely stands alone. Back of
Minerva was the brain of Jove, and
122
behind Venus was the spume of the
ocean.”
104. The Learned Judge observed that the guarantee of equal
opportunity provided under Article 16 for all citizens in matters
of State service inherently implies equalization as a process
towards equality. However, he also emphasizes the need to
harmonize the realistic need to jack up “depressed” classes to
overcome initial handicaps and join the national race towards
progress on an equal footing. He states that Article 16(4) has
been devoted for this very specific purpose. He observed that the
guarantee of equality to the large social categories being
submerged for long, with the rest, would be myth and not reality,
unless it is combined with affirmative State action for
equalization geared to promotion of eventual equality. He
observed that Article 16(4) is not a jarring note but auxiliary to
fair fulfilment of Article 16(1). He observed that the prescription
of Article 16(1) needs the concrete sanction of Article 16(4) so that
123
those wallowing in the social quagmire are enabled to rise to
levels of equality with the rest and march together with their
brethren whom history had not so harshly hamstrung.
105. The Learned Judge observed that this is not mere
harmonious statutory construction of Article 16(1) and (4) but an
insightful perception of our constitutional culture. He
emphasized that the State must apply equalizing techniques
which will enlarge their opportunities and thereby progressively
diminish the need for props. He further emphasized that to
casteify “reservation” even beyond the dismal groups of
backwardmost people, euphemistically described as SC & ST, is
to run a grave constitutional risk. He further emphasized that to
interpret the Constitution rightly we must understand the people
for whom it is made. He observed that the synthesis of ends and
means, of life's maladies and law's remedies is a part of the know-
how of constitutional interpretation.
124
106. Krishna Iyer, J. further observed thus:
“34. Special provisions for depressed
classes and even other castes have a pre-
Constitution history. After the
Constitution was enacted the legality of
old rules based on caste became moot and
the Central Government revised its policy.
The post-Constitution reincarnation of the
communal G.O. concentrated not on caste
orientation but on elimination of socio-
economic suppression and the diverse
ways to achieve this objective.
xxx xxx xxx
36. Articles 14 to 16 form a code by
themselves and embody the distilled
essence of the Constitution's casteless and
classless egalitarianism. Nevertheless, our
founding fathers were realists, and so did
not declare the proposition of equality in
its bald universality but subjected it to
certain special provisions, not
contradicting the soul of equality, but
adapting that never-changing principle to
the ever-changing social milieu. That is
how Articles 15(4) and 16(4) have to be
read together with Articles 15(1) and 16(1).
The first sub-article speaks of equality and
the second sub-article amplifies its
content by expressly interdicting caste as
a ground of discrimination. Article 16(4)
125
imparts to the seemingly static equality
embedded in Article 16(1) a dynamic
quality by importing equalisation
strategies geared to the eventual
achievement of equality as permissible
State action, viewed as an amplification of
Article 16(1) or as an exception to it. The
same observation will hold good for the
sub-articles of Article 15. Thus we have a
constitutional fundamental guarantee in
Articles 14 to 16; but it is a notorious fact
of our cultural heritage that the Scheduled
Castes and the Scheduled Tribes have
been in unfree India nearly dehumanised,
and a facet of the struggle for Freedom has
been the restoration of full personhood to
them together with the right to share in
the social and economic development of
the country. Article 46 is a Directive
Principle contained in Part IV. Every
Directive Principle is fundamental in the
governance of the country and it shall be
the duty of the State to apply that principle
in making laws. Article 46, in emphatic
terms, obligates the State “to promote with
special care the educational and economic
interests of the weaker sections of the
people, and, in particular, of
the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social
injustice and all forms of exploitation”.
126
Reading Article 46 together with Article
16(4) the luscent intent of the
Constitution-framers emerges that the
exploited lot of the harijan-girijan groups
in the past shall be extirpated with special
care by the State. The inference is obvious
that administrative participation by SC &
ST shall be promoted with special care by
the State. Of course, reservations under
Article 16(4) and promotional strategies
envisaged by Article 46 may be important
but shall not run berserk and imperil
administrative efficiency in the name of
concessions to backward classes. Article
335 enters a caveat in this behalf:
“335. The claims of the members of
the Scheduled Castes and the
Scheduled Tribes shall be taken into
consideration, consistently with the
maintenance of efficiency of
administration, in the making of
appointments to services and posts in
connection with the affairs of the Union
or of a State.”
The positive accent of this article is that
the claims of SC & ST to equalisation of
representation in services under the State,
having regard to their sunken social
status and impotence in the power system,
shall be taken into consideration. The
negative element, which is part of the
127
article, is that measures taken by the
State, pursuant to the mandate of Articles
16(4), 46 and 335, shall be consistent with
and not subversive of “the maintenance of
efficiency of administration”.
xxx xxx xxx
39. Article 341 makes it clear that a
“scheduled Caste” need not be a “caste” in
the conventional sense and, therefore,
may not be a caste within the meaning of
Article 15(2) or 16(2). Scheduled Castes
become such only if the President specifies
any castes, races or tribes
or parts or groups within castes, races or
tribes for the purpose of the Constitution.
So, a group or a section of a group, which
need not be a caste and may even be a
hotchpotch of many castes or tribes or
even races, may still be a Scheduled Caste
under Article 341. Likewise, races or tribal
communities or parts thereof or part or
parts of groups within them may still be
Scheduled Tribes (Article 342) for the
purpose of the Constitution. Under this
definition, one group in a caste may be a
Scheduled Caste and another from the
same caste may not be. It is the socio-
economic backwardness of a social
bracket, not mere birth in a caste, that is
decisive. Conceptual errors creep in when
128
traditional obsessions obfuscate the
vision.”
107. The Learned Judge refers to the pre-Constitution history
wherein special provisions for depressed classes and even other
castes were made. He stated that after the Constitution was
enacted the legality of old rules based on caste became moot and
the Central Government revised its policy. He stated that the
post-Constitution reincarnation of the communal G.O.
concentrated not on caste orientation but on elimination of socio-
economic suppression and the diverse ways to achieve this
objective.
108. He then stated that Articles 14 to 16 form a code by
themselves and embody the distilled essence of the Constitution's
casteless and classless egalitarianism. He then considered the
interplay between Articles 15(4) and 16(4) on the one hand and
Articles 15(1) and 16(1) on the other hand. He thereafter refers
to the notorious fact of our cultural heritage that the Scheduled
129
Castes and the Scheduled Tribes have been in unfree India nearly
dehumanized, and a facet of the struggle for freedom has been
the restoration of full personhood to them together with the right
to share in the social and economic development of the country.
He thereafter refers to Article 46 and the importance of the said
Directive Principle in the governance of the country and observes
that it shall be the duty of the State to apply that principle in
making laws. He stated that reading Article 46 together with
Article 16(4) expresses the intention of the Constitution-framers
that the exploitation of the harijan-girijan groups in the past shall
be extirpated with special care by the State. For completeness,
he then refers to Article 335 to state that measures taken by the
State, pursuant to the mandate of Articles 16(4), 46 and 335,
shall be consistent with and not subversive of “the maintenance
of efficiency of administration”.
109. Krishna Iyer, J. then observed that Article 341 makes it
clear that a “Scheduled Caste” need not be a “caste” in the
130
conventional sense and, therefore, may not be a caste within the
meaning of Article 15(2) or 16(2). He states that Scheduled
Castes become such only if the President specifies any castes,
races or tribes or parts or groups within castes, races or tribes for
the purpose of the Constitution. He observed that under the
definition, one group in a caste may be a Scheduled Caste and
another from the same caste may not be and that it is the socio-
economic backwardness of a social bracket, not mere birth in a
caste, that is decisive.
110. In paragraph 73, he refers to Dr. Ambedkar’s address to the
Constituent Assembly, which has already been extracted by us
in the beginning of the judgment. Paragraph 73 is reproduced
hereunder:
“73. A luminous preface to the
constitutional values nullified by social
realities is found in Dr Ambedkar's
address to the Constituent Assembly
earlier extracted, which draws poignant
attention to the life of contradictions
between the explosive social and economic
131
inequalities and the processes of political
democracy. “How long shall we continue to
live this life of contradictions? How long
shall we continue to deny equality in our
social and economic life?” was the
interrogation before the framers of the
Constitution and they wanted to enforce
the principle of “one man, one value”. This
perspective must inform the code of
equality contained in Articles 14 to 16.
Equality being a dynamic concept with
flexible import this Court has read into
Articles 14 to 16 the pragmatic doctrine of
classification and equal treatment to all
who fall within each class. But care must
be taken to see that classification is not
pushed to such an extreme point as to
make the fundamental right to equality
cave in and collapse (see observations
in Triloki Nath Khosa v. State of
J&K [(1974) 1 SCC 19 : 1974 SCC (L&S)
49 : (1974) 1 SCR 771] . Ray, C.J.,
in Kerala v. Thomas [(1976) 2 SCC 310,
331, 332, 333, 334 : 1976 SCC (L&S) 227,
248 249, 250, 251 : (1976) 1 SCR 906,
926-29] epitomised the position in a few
passages: [SCC pp. 331, 332, 333 & 334:
SCC (L&S) pp. 248, 249, 250 & 251, paras
21, 24, 27, 28, 30 & 31
“Articles 14, 15 and 16 from part of a
string of constitutional guaranteed
rights. These rights supplement each
other. Article 16 which ensures to all
citizens equality of opportunity in
132
matters relating to employment is an
incident of guarantee of equality
contained in Article 14. Article 16(1)
gives effect to Article 14. Both Articles
14 and 16(1) permit reasonable
classification having a nexus to be the
object to be achieved.
***
Discrimination is the essence of
classification.... Classification is,
therefore, to be founded on substantial
differences which distinguish persons
grouped together from those left out of
the groups and such differential
attributes must bear a just and rational
relation to the object sought to be
achieved.
***
There is no denial of equality of
opportunity unless the person who
complains of discrimination is equally
situated with the person or persons who
are alleged to have been favoured.
Article 16(1) does not bar a reasonable
classification of employees or
reasonable tests for their selection
(State of Mysore v. V.P. Narasing
Rao [AIR 1968 SC 349 : (1968) 1 SCR
407] ).
This equality of opportunity need not
be confused with absolute equality....
Under Article 16(1) equality of
opportunity of employment means
133
equality as between members of the
same class of employees and not
equality between members of separate,
independent class....
The rule of parity is the equal
treatment of equals in equal
circumstances. The rule of
differentiation is enacting laws
differentiating between different
persons or things in different
circumstances. The circumstances
which govern one set of persons or
objects may not necessarily be the same
as governing another set of persons or
objects so that the question of unequal
treatment does not really arise between
persons governed by different
conditions and different sets of
circumstances.... A classification in
order to be constitutional must rest
upon distinctions that are substantial
and not merely illusory. The test is
whether it has a reasonable basis free
from artificiality and arbitrariness
embracing all and omitting none
naturally falling into that category.”
The learned Chief Justice relied upon
earlier decisions to substantiate this
proposition. In Triloki Nath Khosa v. State
of J&K [(1976) 2 SCC 310, 337 : 1976 SCC
(L&S) 227, 254 : (1976) 1 SCR 906, 932]
this Court had held that the State may
make rules guided by realities just as the
134
legislature “is free to recognise degrees of
harm and it may confine its restrictions to
those classes of cases where the need is
deemed to be the clearest”. Thus we arrive
at the constitutional truism that the State
may classify, based upon substantial
differentia, groups or classes and this
process does not necessarily spell violation
of Articles 14 to 16.”
111. After referring to Dr. Ambedkar’s speech, the Learned Judge
observed that equality being a dynamic concept with flexible
import, this Court has read into Articles 14 to 16 the pragmatic
doctrine of classification and equal treatment to all who fall
within each class. He, however, warns that classification should
not be pushed to such an extreme point as to make the
fundamental right to equality cave in and collapse.
112. The Learned Judge further observed as under:
“76. Proceeding on this footing, the
fundamental right of equality of
opportunity has to be read as justifying
the categorisation of SCs & STs separately
for the purpose of “adequate
representation” in the services under the
State. The object is constitutionally
135
sanctioned in terms, as Articles 16 (4) and
46 specificate. The classification is just
and reasonable. We may, however, have to
test whether the means used to reach the
end are reasonable and do not outrun the
purposes of the classification. Thus the
scope of the case is narrowed down.”
113. His Lordship observed that the fundamental right of
equality of opportunity must be read as justifying the
categorization of SCs & STs separately for the purpose of
“adequate representation” in the services under the State. He
observed that the object is constitutionally sanctioned in terms,
as Articles 16 (4) and 46 specificate.
114. While rejecting the argument that reservation in favour of
Scheduled Castes and Scheduled Tribes could affect the
efficiency in the administration, the Learned Judge observed
thus:
“94. It is fashionable to say — and there
is, perhaps, some truth in it — that from
generation to generation there is a
deterioration in efficiency in all walks of
life from politics to pedagogy to officialdom
136
and other professions. Nevertheless, the
world has been going forward and only
parties whose personal interest is affected
forecast a doom on account of progressive
deficiency in efficiency. We are not
impressed with the misfortune predicted
about governmental personnel being
manned by morons merely because a
sprinkling of harijans/girijans happen to
find their way into the services. Their
apathy and backwardness are such that in
spite of these favourable provisions, the
unfortunates have neither the awareness
nor qualified members to take their
rightful place in the administration of the
country. The malady of modern India lies
elsewhere, and the merit-mongers are
greater risks in many respects than the
naive tribals and the slightly better off low
castes. Nor does the specious plea that
because a few harijans are better off,
therefore, the bulk at the bottom
deserves no jack-up provisions merit
scrutiny. A swallow does not make a
summer. Maybe, the State may, when
social conditions warrant, justifiably
restrict harijan benefits to the harijans
among the harijans and forbid the
higher harijans from robbing the
lowlier brethren.”
[emphasis supplied]
137
115. The Learned Judge rejected the contention that merely
because a sprinkling of harijans/girijans happen to find their
way into the services, the efficiency of the administration of the
country would be affected. On the contrary, he states that the
merit-mongers are greater risks in many respects than the naive
tribals and the slightly better off low castes.
116. It is pertinent to note the observations made by the Learned
Judge towards the end of paragraph 94 and in paragraph 98 are
most important for the purposes of the present reference.
Paragraph 98 reads thus:
“98. The argument is that there are rich
and influential harijans who rob all the
privileges leaving the serf-level sufferers as
suppressed as ever. The Administration
may well innovate and classify to weed out
the creamy layer of SCs/STs but the court
cannot force the State in that behalf.”
117. Chinnappa Reddy, J. in his separate concurring judgment
observed thus:
138
“123. Because fundamental rights are
justiciable and directive principles are not,
it was assumed, in the beginning, that
fundamental rights held a superior
position under the Constitution than the
directive principles, and that the latter
were only of secondary importance as
compared with the Fundamental Rights.
That way of thinking is of the past and has
become obsolete. It is now universally
recognised that the difference between the
Fundamental rights and directive
principles lies in this that Fundamental
rights are primarily aimed at assuring
political freedom to the citizens by
protecting them against excessive State
action while the directive principles are
aimed at securing social and economic
freedoms by appropriate State action. The
Fundamental rights are intended to foster
the ideal of a political democracy and to
prevent the establishment of authoritarian
rule but they are of no value unless they
can be enforced by resort to courts. So
they are made justiciable. But, it is also
evident that notwithstanding their great
importance, the directive principles
cannot in the very nature of things be
enforced in a court of law. It is
unimaginable that any court can compel a
legislature to make a law. If the court can
139
compel Parliament to make laws then
parliamentary democracy would soon be
reduced to an oligarchy of Judges. It is in
that sense that the Constitution says that
the directive principles shall not be
enforceable by courts. It does not mean
that directive principles are less important
than Fundamental rights or that they are
not binding on the various organs of the
State. Article 37 of the Constitution
emphatically states that directive
principles are nevertheless fundamental
in the governance of the country and it
shall be the duty of the State to apply
these principles in making laws. It follows
that it becomes the duty of the court to
apply the directive principles in
interpreting the Constitution and the laws.
The directive principles should serve the
courts as a code of interpretation.
Fundamental rights should thus be
interpreted in the light of the directive
principles and the latter should, whenever
and wherever possible, be read into the
former. Every law attacked on the ground
of infringement of a Fundamental Right
should, among other considerations, be
examined to find out if the law does not
advance one or other of the directive
principles or if it is not in discharge of
some of the undoubted obligations of the
140
State, constitutional or otherwise, towards
its citizens or sections of its citizens,
flowing out of the preamble, the directive
principles and other provisions of the
Constitution.
124. So, we have it that the constitutional
goal is the establishment of a socialist
democracy in which Justice, economic,
social and political is secure and all men
are equal and have equal opportunity.
Inequality, whether of status, facility or
opportunity, is to end, privilege is to cease
and exploitation is to go. The
underprivileged, the deprived and the
exploited are to be protected and
nourished so as to take their place in an
egalitarian society. State action is to be
towards those ends. It is in this context
that Article 16 has to be interpreted when
State action is questioned as contravening
Article 16.”
118. The Learned Judge discussed the interplay between the
Fundamental Rights and the Directive Principles. He observed
that the Fundamental Rights are primarily aimed at assuring
political freedom to the citizens by protecting them against
141
excessive State action while the Directive Principles are aimed at
securing social and economic freedoms by appropriate State
action. The Learned Judge observed that merely because the
Directive Principles are not enforceable by Courts, it does not
mean that Directive Principles are less important than
Fundamental rights or that they are not binding on the various
organs of the State. Referring to Article 37 of the Constitution,
the Learned Judge states that the Directive Principles are
nevertheless fundamental in the governance of the country, and
it shall be the duty of the State to apply these principles in
making laws. He held that it becomes the duty of the court to
apply the directive principles in interpreting the Constitution and
the laws; that the directive principles should serve the courts as
a code of interpretation. He held that the Fundamental rights
should thus be interpreted in the light of the directive principles
and the latter should, whenever and wherever possible, be read
into the former.
142
119. He observed that the constitutional goal is the
establishment of a socialist democracy in which Justice,
economic, social and political is to secure and all men are equal
and have equal opportunity. He further observed that the
inequality, whether of status, facility or opportunity, is to end,
privilege is to cease, and exploitation is to go. He further observed
that the underprivileged, the deprived and the exploited are to be
protected and nourished to take their place in an egalitarian
society.
120. Thereafter, the Learned Judge then while referring to
interplay between Article 16(1) and Article 16(4) observed thus:
“125. Let us now take a look at Article
16(1) and Article 16(4). Article 16(1)
guarantees equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State. To the class of citizens who are
economically and socially backward this
guarantee will be no more than mere
wishful thinking, and mere “vanity ... wind
and confusion”, if it is not translated into
reality by necessary State action to protect
143
and nurture such class of citizens so as to
enable them to shake off the heart-
crushing burden of a thousand years'
deprivation from their shoulders and to
claim a fair proportion of participation in
the administration. Reservation of posts
and all other measures designed to
promote the participation of the Scheduled
Castes and the Scheduled Tribes in the
Public Services at all levels are in our
opinion necessary consequences flowing
from the Fundamental Right guaranteed
by Article 16(1). This very idea is
emphasised further by Article 16(4).
Article 16(4) is not in the nature of an
exception to Article 16(1). It is a facet of
Article 16(1) which fosters and furthers
the idea of equality of opportunity with
special reference to an underprivileged
and deprived class of citizens to whom
egalite de droit (formal or legal equality) is
not egalite de fait (practical or factual
equality). It is illustrative of what the State
must do to wipe out the distinction
between egalite de droit and egalite de fait.
It recognises that the right to equality of
opportunity includes the right of the
underprivileged to conditions comparable
to or compensatory of those enjoyed by the
privileged. Equality of opportunity must be
such as to yield “Equality of Results” and
not that which simply enables people,
socially and economically better placed, to
win against the less fortunate, even when
144
the competition is itself otherwise
equitable. John Rawls in A Theory Of
Justice demands the priority of equality in
a distributive sense and the setting up of
the social system “so that no one gains or
loses from his arbitrary place in the
distribution of natural assets or his own
initial position in society without giving or
receiving compensatory advantages in
return”. His basic principle of social
justice is: “All social primary goods —
liberty and opportunity, income and
wealth, and the bases of self-respect — are
to be distributed equally unless an
unequal distribution of any or all these
goods is to the advantage of the least
favoured.” One of the essential elements of
his conception of social justice is what he
calls the principle of redress: “This is the
principle that undeserved inequalities call
for redress; and since inequalities of birth
and natural endowment are undeserved,
these inequalities are somehow to be
compensated for.” Society must, therefore,
treat more favourably those with fewer
native assets and those born into less
favourable social positions. If the
statement that “Equality of Opportunity
must yield Equality of Results” and if the
fulfilment of Article 16(1) in Article 16(4)
ever needed a philosophical foundation it
is furnished by Rawls' theory of justice and
the redress Principle.”
145
121. The Learned Judge observed that reading Article 16(1) and
Article 16(4) together would reveal that they recognize that the
right to equality of opportunity includes the right of the
underprivileged to conditions comparable to or compensatory of
those enjoyed by the privileged. It is observed that the equality
of opportunity must be such as to yield “Equality of Results” and
not that which simply enables people, socially and economically
better placed, to win against the less fortunate, even when the
competition is itself otherwise equitable.
122. The Learned Judge thereafter refers to “A Theory of Justice”
by John Rawls. He also refers to the ‘Principle of Redress’
according to which underserved inequalities call for redress; and
since inequalities of birth and natural endowment are
undeserved, these inequalities are somehow to be compensated
for.
146
D. K.C. Vasanth Kumar vs. State of Karnataka
123. The next judgment of the Constitution Bench of this Court
that requires consideration is the case of K.C. Vasanth Kumar
and another vs. State of Karnataka11. In the said case, the
Court was invited not so much to deliver judgment but to express
its opinion on the issue of reservations in the context of Articles
15(4) and 16(4), which would serve as a guideline to the
Commission which the Government of Karnataka had proposed
to appoint, for examining the question of affording better
employment and educational opportunities to Scheduled Castes,
Scheduled Tribes and Other Backward Classes. Each of the 5
Learned Judges comprising the Constitution Bench of this Court
rendered their separate opinions.
124. Y.V. Chandrachud, C.J. laid down certain propositions. It
will be relevant to refer to paragraph 2, which reads thus:
“2. I would state my opinion in the shape
of the following propositions:
11 1985 (Supp) SCC 714.
147
(1) The reservation in favour of
Scheduled Castes and Scheduled
Tribes must continue as at present,
there is, without the application of a
means test, for a further period not
exceeding fifteen years. Another
fifteen years will make it fifty years
after the advent of the Constitution,
a period reasonably long for the
upper crust of the oppressed classes
to overcome the baneful effects of
social oppression, isolation and
humiliation.
(2) The means test, that is to say, the
test of economic backwardness
ought to be made applicable even to
the Scheduled Castes and Scheduled
Tribes after the period mentioned in
(1) above. It is essential that the
privileged section of the
underprivileged society should not be
permitted to monopolise preferential
benefits for an indefinite period of
time.
(3) Insofar as the other backward
classes are concerned, two tests
should be conjunctively applied for
identifying them for the purpose of
reservations in employment and
education: One, that they should be
148
comparable to the Scheduled Castes
and Scheduled Tribes in the matter
of their backwardness; and two, that
they should satisfy the means test
such as a State Government may lay
down in the context of prevailing
economic conditions.
(4) The policy of reservations in
employment, education and
legislative institutions should be
reviewed every five years or so. That
will at once afford an opportunity (i)
to the State to rectify distortions
arising out of particular facets of the
reservation policy and (ii) to the
people, both backward and non-
backward, to ventilate their views in
a public debate on the practical
impact of the policy of reservations.”
125. The Learned C.J. observed that for a further period of 15
years, the reservation in favour of Scheduled Castes and
Scheduled Tribes must continue. He further observed that the
means test, i.e., the test of economic backwardness ought to be
made applicable even to the Scheduled Castes and Scheduled
Tribes after the period of 15 years, as mentioned in clause (1).
149
Insofar as the Other Backward Classes are concerned, the
Learned C.J. observed that the twin tests should be applied; one,
that they should be comparable to the Scheduled Castes and
Scheduled Tribes in the matter of their backwardness; and two,
that they should satisfy the means test such as a State
Government may lay down in the context of prevailing economic
conditions. It is also observed that the policy of reservations in
employment, education and legislative institutions should be
reviewed every 5 years or so.
126. It will also be appropriate to refer to the observations of D.A.
Desai, J. made in paragraphs 30 and 31, which read thus:
“30. Let me conclude. If economic
criterion for compensatory discrimination
or affirmative action is accepted, it would
strike at the root cause of social and
educational backwardness, and
simultaneously take a vital step in the
direction of destruction of caste structure
which in turn would advance the secular
character of the Nation. This approach
seeks to translate into reality the twin
150
constitutional goals: one, to strike at the
perpetuation of the caste stratification of
the Indian Society so as to arrest
regressive movement and to take a firm
step towards establishing a casteless
society; and two, to progressively eliminate
poverty by giving an opportunity to the
disadvantaged sections of the society to
raise their position and be part of the
mainstream of life which means
eradication of poverty.
31. Let me make abundantly clear that
this approach does not deal with
reservation in favour of Scheduled Castes
and Scheduled Tribes. Thousands of years
of discrimination and exploitation cannot
be wiped out in one generation. But even
here economic criterion is worth applying
byrefusing preferred treatment to those
amongst them who have already benefited
by it and improved their position. And
finally reservation must have a time span
otherwise concessions tend to become
vested interests. This is not a judgment in
a lis in an adversary system. When the
arguments concluded, a statement was
made that the Government of State of
Karnataka would appoint a Commission to
determine constitutionally sound and
nationally acceptable criteria for
151
identifying socially and educationally
backward classes of citizens for whose
benefit the State action would be taken.
This does not purport to be an exhaustive
essay on guide lines but may point to some
extent, the direction in which the proposed
Commission should move.”
127. It could thus be seen that the Learned Judge supports
applying the economic criterion for the purpose of compensatory
discrimination or affirmative action. According to the Learned
Judge, it would strike at the root cause of social and educational
backwardness. He further states that simultaneously it would
be a vital step in the direction of destruction of caste structure
which in turn would advance the secular character of the Nation.
128. Though he cautioned that such an approach does not deal
with reservation in favour of Scheduled Castes and Scheduled
Tribes, however, even in their cases, economic criterion is worth
applying by refusing preferred treatment to those amongst them
who have already benefited by it and improved their position.
152
129. Rejecting the contention that the reservation is anti-
imperialist, Chinnappa Reddy, J. observed thus:
“35. One of the results of the superior,
elitist approach is that the question of
reservation is invariably viewed as the
conflict between the meritarian principle
and the compensatory principle. No, it is
not so. The real conflict is between the
class of people, who have never been in or
who have already moved out of the desert
of poverty, illiteracy and backwardness
and are entrenched in the oasis of
convenient living and those who are still in
the desert and want to reach the oasis.
There is not enough fruit in the garden
and so those who are in, want to keep out
those who are out. The disastrous
consequences of the so-called meritarian
principle to the vast majority of the under-
nourished, poverty-stricken, barely
literate and vulnerable people of our
country are too obvious to be stated. And,
what is merit? There is no merit in a
system which brings about such
consequences. Is not a child of the
Scheduled Castes, Scheduled Tribes or
other backward classes who has been
brought up in an atmosphere of penury,
illiteracy and anti-culture, who is looked
down upon by tradition and Society, who
has no books and magazines to read at
home, no radio to listen, no TV to watch,
153
no one to help him with his home work,
who goes to the nearest local board school
and college, whose parents are either
illiterate or so ignorant and ill-informed
that he cannot even hope to seek their
advice on any matter of importance, a
child who must perforce trudge to the
nearest public reading room to read a
newspaper to know what is happening in
the world, has not this child got merit if
he, with all his disadvantages is able to
secure the qualifying 40 per cent or 50 per
cent of the marks at a competitive
examination where the children of the
upper classes who have all the
advantages, who go to St. Paul's High
School and St. Stephen's College, and who
have perhaps been specially coached for
the examination may secure 70, 80 or even
90 per cent of the marks? Surely, a child
who has been able to jump so many
hurdles may be expected to do better and
better as he progresses in life. If spring
flower he cannot be, autumn flower he
may be. Why then, should he be stopped
at the threshold on an alleged meritarian
principle? The requirements of efficiency
may always be safeguarded by the
prescription of minimum standards.
Mediocrity has always triumphed in the
past in the case of the upper classes. But
why should the so-called meritarian
principle be put against mediocrity when
154
we come to Scheduled Castes, Scheduled
Tribes and backward classes?”
130. The Learned Judge observed that the disastrous
consequences of the so-called meritarian principle to the vast
majority of the under-nourished, poverty-stricken, barely literate
and vulnerable people of our country are too obvious to be stated.
The Learned Judge compared a child of the Scheduled Castes,
Scheduled Tribes or other backward classes who has been
brought up in an atmosphere of penury, illiteracy and anti-
culture, who is looked down upon by tradition and Society, who
has no books and magazines to read at home, no radio to listen,
no TV to watch, no one to help him with his homework, who goes
to the nearest local board school and college, whose parents are
either illiterate or so ignorant and ill-informed that he cannot
even hope to seek their advice on any matter of importance. The
Learned Judge observed that with all these disadvantages, if he
is able to secure the qualifying 40% or 50% of the marks at a
155
competitive examination, he cannot be said to have no merit,
especially if he be compared with the children of the upper
classes who have all the advantages, who go to St. Paul's High
School and St. Stephen's College, and who have perhaps been
specially coached for the examination and may secure 70, 80 or
even 90% of the marks. The Learned Judge further observed that
the requirements of efficiency may always be safeguarded by the
prescription of minimum standards.
131. Emphasizing on the position of the Scheduled Castes, the
Learned Judge observed thus:
“51. …….Now, anyone acquainted with
the rural scene in India would at once
recognise the position that the Scheduled
Castes occupy a peculiarly degraded
position and are treated, not as persons of
caste at all, but as outcastes. Even the
other admittedly backward classes shun
them and treat them as inferior beings. It
was because of the special degradation to
which they had been subjected that the
Constitution itself had to come forward to
make special provision for them. There is
no point in attempting to determine the
156
social backwardness of other classes by
applying the test of nearness to the
conditions of existence of the Scheduled
Castes. Such a test would practically
nullify the provision for reservation for
socially and educationally backward
classes other than Scheduled Castes and
Tribes. Such a test would perpetuate the
dominance of the existing upper classes.
Such a test would take a substantial
majority of the classes who are between
the upper classes and the Scheduled
Castes and Tribes out of the category of
backward classes and put them at a
permanent disadvantage. Only the
“enlightened” classes will capture all the
“open” posts and seats and the reserved
posts and seats will go to the Scheduled
Castes and Tribes and those very near the
Scheduled Castes and Tribes. The bulk of
those behind the “enlightened” classes
and ahead of the near Scheduled Castes
and Tribes would be left high and dry, with
never a chance of imposing themselves.”
132. The Learned Judge rejects the argument that insofar as
Other Backward Classes are concerned, their social
backwardness has to be ascertained by applying the test of
nearness to the conditions of existence of the Scheduled Castes.
157
The Learned Judge observed that such a test would practically
nullify the provision for reservation for socially and educationally
backward classes other than Scheduled Castes and Scheduled
Tribes. He observed that such a test would take a substantial
majority of the classes, who are between the upper classes and
the Scheduled Castes and Tribes, out of the category of backward
classes and put them at a permanent disadvantage. He observed
that only the “enlightened” classes will capture all the “open”
posts and seats and the reserved posts and seats will go to the
Scheduled Castes and Tribes and those very near the Scheduled
Castes and Tribes. However, the bulk of those behind the
“enlightened” classes and ahead of the near Scheduled Castes
and Tribes would be left high and dry.
133. It will also be relevant to refer to the following observations
of Venkataramiah, J. (as His Lordship then was) in the case of
K.C. Vasanth Kumar (supra):
158
“143. This view is in conformity with the
intention underlying clause (6) of the
resolution regarding the aims and objects
of the Constitution moved by Jawaharlal
Nehru on December 13, 1946 which asked
the Constituent Assembly to frame a
Constitution providing adequate
safeguards for minorities, backward and
tribal areas and depressed and other
backward classes and also with the
provisions of Article 338 and Article 340 of
the Constitution. Unless the above
restriction is imposed on the Government,
it would become possible for the
Government to call any caste or group or
community which constitutes a powerful
political lobby in the State as backward
even though in fact it may be an advanced
caste or group or community but just
below some other forward community.
There is another important reason why
such advanced castes or groups or
communities should not be included in
the list of backward classes and that is
that if castes or groups and communities
which are fairly well advanced and castes
and groups and communities which are
really backward being at the rock-bottom
level are classified together as backward
classes, the benefit of reservation would
invariably be eaten up by the more
advanced sections and the really deserving
sections would practically go without any
benefit as more number of children of the
159
more advanced castes or groups or
communities amongst them would have
scored higher marks than the children of
more backward castes or groups or
communities. In that event the whole
object of reservation would become
frustrated. It is stated that it was with a
view to avoiding this anomalous situation,
the Government of Devaraj Urs had to
appoint the Havanur Commission to make
recommendations for the purpose of
effectively implementing the objects of
Article 15(4) and Article 16(4). Hence as far
as possible while preparing the list of
backward classes, the State Government
has to bear in mind the above principle as
a guiding factor. The adoption of the above
principle will not unduly reduce the
number of persons who will be eligible for
the benefits under Article 15(4) and Article
16(4) of the Constitution since over the
years the level of the Scheduled Castes
and Scheduled Tribes is also going up by
reason of several remedial measures taken
in regard to them by the State and Central
Governments. At the same time, it will also
release the really backward castes, groups
and communities from the stranglehold of
many advanced groups which have had
the advantage of reservation along with
the really backward classes for nearly
three decades. It is time that more
attention is given to those castes, groups
and communities who have been at the
160
lowest level suffering from all the
disadvantages and disabilities (except
perhaps untouchability) to which many of
the Scheduled Castes and Scheduled
Tribes have been exposed but without the
same or similar advantages that flow from
being included in the list of the Scheduled
Castes and the Scheduled Tribes.
144. Since economic condition is also a
relevant criterion, it would be appropriate
to incorporate a “means test” as one of the
tests in determining the backwardness as
was done by the Kerala Government
in Jayasree case63. These two tests
namely, that the conditions of caste or
group or community should be more or
less similar to the conditions in which the
Scheduled Castes or Scheduled Tribes are
situated and that the income of the family
to which the candidate belongs does not
exceed the specified limit would serve as
useful criteria in determining beneficiaries
of any reservation to be made under
Article 15(4). For the purpose of Article
16(4) however, it should also be shown
that the backward class in question is in
the opinion of the Government not
adequately represented in the Government
services.”
161
134. The Learned Judge observed that two tests namely, that the
conditions of caste or group or community should be more or less
similar to the conditions in which the Scheduled Castes or
Scheduled Tribes are situated and that the income of the family
to which the candidate belongs does not exceed the specified limit
would serve as useful criteria in determining beneficiaries of any
reservation to be made under Article 15(4). The Learned Judge
observed that insofar as Article 16(4) is concerned, it should also
be shown that the backward class in question is in the opinion
of the Government not adequately represented in the
Government services.
E. Indra Sawhney vs. Union of India
135. Then next comes the 9-Judge Bench judgment of this Court
in the case of Indra Sawhney and others vs. Union of India
and others12, which could be considered as an important
milestone laying down the law about reservations for Other
12 1992 Supp (3) SCC 217.
162
Backward Classes. The extracts from the said judgment of 9-
Judge Bench have in-extenso been reproduced in the referral
judgment (The State of Punjab & Ors. vs. Davinder Singh &
Ors.13).
136. I will refer to some of the observations made by B.P. Jeevan
Reddy, J., who has authored the judgment for himself and M.H.
Kania, C.J., M.N. Venkatachaliah, J. and A.M. Ahmadi, J. (as
Their Lordships then were).
“781. At the outset, we may state that for
the purpose of this discussion, we keep
aside the Scheduled Tribes and Scheduled
Castes (since they are admittedly included
within the backward classes), except to
remark that backward classes
contemplated by Article 16(4) do comprise
some castes — for it cannot be denied that
Scheduled Castes include quite a few
castes.”
137. His Lordship (Jeevan Reddy, J.) observed that with regard
to identification of ‘backward class of citizens’, we keep aside the
13 (2020) 8 SCC 1.
163
Scheduled Tribes and Scheduled Castes. It will be relevant to
note that in the said part of the judgment His Lordship (Jeevan
Reddy, J.) was considering an issue with regard to identification
of backward class of citizens. In this background, it was observed
that the court was keeping aside Scheduled Tribes and
Scheduled Castes since they are admittedly included within the
backward classes. It was further observed that backward classes
contemplated by Article 16(4) do comprise some castes since it
cannot be denied that Scheduled Castes include quite a few
castes.
138. From paragraph 790 onwards, His Lordship considered the
‘Means-test’ and ‘creamy layer’. It will be apposite to reproduce
paragraph 792, which reads thus:
“792. In our opinion, it is not a question
of permissibility or desirability of such test
but one of proper and more appropriate
identification of a class — a backward
class. The very concept of a class denotes
a number of persons having certain
common traits which distinguish them
164
from the others. In a backward class
under clause (4) of Article 16, if the
connecting link is the social
backwardness, it should broadly be the
same in a given class. If some of the
members are far too advanced socially
(which in the context, necessarily means
economically and, may also mean
educationally) the connecting thread
between them and the remaining class
snaps. They would be misfits in the class.
After excluding them alone, would the
class be a compact class. In fact, such
exclusion benefits the truly backward.
Difficulty, however, really lies in drawing
the line — how and where to draw the line?
For, while drawing the line, it should be
ensured that it does not result in taking
away with one hand what is given by the
other. The basis of exclusion should not
merely be economic, unless, of course, the
economic advancement is so high that it
necessarily means social advancement.
Let us illustrate the point. A member of
backward class, say a member of
carpenter caste, goes to Middle East and
works there as a carpenter. If you take his
annual income in rupees, it would be fairly
high from the Indian standard. Is he to be
excluded from the Backward Class? Are
his children in India to be deprived of the
benefit of Article 16(4)? Situation may,
however, be different, if he rises so high
economically as to become — say a factory
165
owner himself. In such a situation, his
social status also rises. He himself would
be in a position to provide employment to
others. In such a case, his income is
merely a measure of his social status.
Even otherwise there are several practical
difficulties too in imposing an income
ceiling. For example, annual income of Rs
36,000 may not count for much in a city
like Bombay, Delhi or Calcutta whereas it
may be a handsome income in rural India
anywhere. The line to be drawn must be a
realistic one. Another question would be,
should such a line be uniform for the
entire country or a given State or should it
differ from rural to urban areas and so on.
Further, income from agriculture may be
difficult to assess and, therefore, in the
case of agriculturists, the line may have to
be drawn with reference to the extent of
holding. While the income of a person can
be taken as a measure of his social
advancement, the limit to be prescribed
should not be such as to result in taking
away with one hand what is given with the
other. The income limit must be such as
to mean and signify social advancement.
At the same time, it must be recognised
that there are certain positions, the
occupants of which can be treated as
socially advanced without any further
enquiry. For example, if a member of a
designated backward class becomes a
member of IAS or IPS or any other All India
166
Service, his status is society (social status)
rises; he is no longer socially
disadvantaged. His children get full
opportunity to realise their potential. They
are in no way handicapped in the race of
life. His salary is also such that he is above
want. It is but logical that in such a
situation, his children are not given the
benefit of reservation. For by giving them
the benefit of reservation, other
disadvantaged members of that backward
class may be deprived of that benefit. It is
then argued for the respondents that ‘one
swallow doesn't make the summer’, and
that merely because a few members of a
caste or class become socially advanced,
the class/caste as such does not cease to
be backward. It is pointed out that clause
(4) of Article 16 aims at group
backwardness and not individual
backwardness. While we agree that clause
(4) aims at group backwardness, we feel
that exclusion of such socially advanced
members will make the ‘class’ a truly
backward class and would more
appropriately serve the purpose and object
of clause (4). (This discussion is confined
to Other Backward Classes only and has
no relevance in the case of Scheduled
Tribes and Scheduled Castes).”
167
139. His Lordship observed that if some of the members in a
class are far too advanced socially, the connecting thread
between them and the remaining class snaps. The Court
observed that ‘too advanced socially’ means economically and
may also mean educationally. It has been observed that they
would be misfits in the class. The Court considered the difficulty
in drawing the line. It is observed that it should not amount to
taking away with one hand what is given with the other. The
Court observed that the basis of exclusion should not merely be
economic, unless, of course, the economic advancement is so
high that it necessarily means social advancement. The Court
observed that the line to be drawn must be a realistic one. The
Court posed a question as to whether such a line should be
uniform for the entire country or a given State or should it differ
from rural to urban areas and so on. It has been observed that
since it is difficult to assess income from agriculture, in the case
of agriculturists, the line may have to be drawn with reference to
168
the extent of holding. It is observed that the income limit must
be such as to mean and signify social advancement. The Court
observed that at the same time, it must be recognized that there
are certain positions, the occupants of which can be treated as
socially advanced without any further enquiry. It has been
observed that if a member of a designated backward class would
become a member of IAS or IPS or any other All India Service, his
status in the society rises and he is no longer socially
disadvantaged. The Court observed that clause (4) of Article 16
aims at group backwardness, the exclusion of such socially
advanced members will make the ‘class’ a truly backward class
and would more appropriately serve the purpose and object of
clause (4). No doubt, it has been specified that the said
discussion was confined to Other Backward Classes only and had
no relevance in the case of Scheduled Tribes and Scheduled
Castes.
169
140. Then the question as to whether Backward Classes can be
further divided into backward and more backward categories has
been answered thus:
“802. We are of the opinion that there is
no constitutional or legal bar to a State
categorising the backward classes as
backward and more backward. We are not
saying that it ought to be done. We are
concerned with the question if a State
makes such a categorisation, whether it
would be invalid? We think not. Let us
take the criteria evolved by Mandal
Commission. Any caste, group or class
which scored eleven or more points was
treated as a backward class. Now, it is not
as if all the several thousands of
castes/groups/classes scored identical
points. There may be some
castes/groups/classes which have scored
points between 20 to 22 and there may be
some who have scored points between
eleven and thirteen. It cannot reasonably
be denied that there is no difference
between these two sets of
castes/groups/classes. To give an
illustration, take two occupational groups
viz., goldsmiths and vaddes (traditional
stone-cutters in Andhra Pradesh) both
170
included within Other Backward Classes.
None can deny that goldsmiths are far less
backward than vaddes. If both of them are
grouped together and reservation
provided, the inevitable result would be
that goldsmiths would take away all the
reserved posts leaving none for vaddes. In
such a situation, a State may think it
advisable to make a categorisation even
among other backward classes so as to
ensure that the more backward among the
backward classes obtain the benefits
intended for them. Where to draw the line
and how to effect the sub-classification is,
however, a matter for the Commission and
the State — and so long as it is reasonably
done, the Court may not intervene. In this
connection, reference may be made to the
categorisation obtaining in Andhra
Pradesh. The Backward Classes have been
divided into four categories. Group A
comprises “Aboriginal tribes, Vimukta
jatis, nomadic and semi-nomadic tribes
etc.” Group B comprises professional
group like tappers, weavers, carpenters,
ironsmiths, goldsmiths, kamsalins etc.
Group C pertains to “Scheduled Castes
converts to Christianity and their
progeny”, while Group D comprises all
other classes/communities/groups,
which are not included in Groups A, B and
171
C. The 25% vacancies reserved for
backward classes are sub-divided between
them in proportion to their respective
population. This categorisation was
justified in Balram [(1972) 1 SCC 660 :
(1972) 3 SCR 247] . This is merely to show
that even among backward classes, there
can be a sub-classification on a
reasonable basis.
803. There is another way of looking at
this issue. Article 16(4) recognises only
one class viz., “backward class of citizens”.
It does not speak separately of Scheduled
Castes and Scheduled Tribes, as does
Article 15(4). Even so, it is beyond
controversy that Scheduled Castes and
Scheduled Tribes are also included in the
expression “backward class of citizens”
and that separate reservations can be
provided in their favour. It is a well-
accepted phenomenon throughout the
country. What is the logic behind it? It is
that if Scheduled Tribes, Scheduled
Castes and Other Backward Classes are
lumped together, OBCs will take away all
the vacancies leaving Scheduled Castes
and Scheduled Tribes high and dry. The
same logic also warrants categorisation as
between more backward and backward.
We do not mean to say — we may reiterate
172
— that this should be done. We are only
saying that if a State chooses to do it, it is
not impermissible in law.”
141. The Court in unequivocal terms held that even among
backward classes, there can be a sub-classification on a
reasonable basis. The Court held that there can be backward and
more backward classes and the State may think it advisable to
provide a special benefit to the more backward among the
backward classes. It has been observed that where to draw the
line and how to effect the sub-classification is, however, a matter
for the Commission and the State, and so long as it is reasonably
done, the Court may not intervene.
142. The Court observed that Article 16(4) recognizes only one
class i.e., “backward class of citizens”. It is observed that it does
not speak separately of Scheduled Castes and Scheduled Tribes,
as does Article 15(4). It has therefore been observed that it is
beyond controversy that Scheduled Castes and Scheduled Tribes
173
are also included in the expression “backward class of citizens”
and that separate reservations can be provided in their favour.
143. It has also been observed that if Scheduled Tribes,
Scheduled Castes and Other Backward Classes are lumped
together, the OBCs will take away all the vacancies leaving
Scheduled Castes and Scheduled Tribes high and dry. It has been
observed that the same logic also warrants categorization as
between more backward and backward. The Court, however,
cautioned that it may not be construed as implying that the State
should do it, but it was only saying that if the State chooses to
do so, it is not impermissible in law.
144. Similar view has also been expressed by P.B. Sawant, J. in
paragraphs 523, 524 and 525, which read thus:
“523. As regards the second part of the
question, in Balaji [1963 Supp 1 SCR 439 :
AIR 1963 SC 649] it was observed that the
backward classes cannot be further
classified in backward and more backward
classes. These observations, although
made in the context of Article 15(4) which
174
fell for consideration there, will no doubt
be equally applicable to Article 16(4). The
observations were made while dealing with
the recommendations of the Nagan Gowda
Committee appointed by the State of
Karnataka which had recommended the
classification of the backward
communities into two divisions, the
Backward and the More Backward. While
making those recommendations the
Committee had applied one test, viz., “Was
the standard of education in the
community in question less than 50% of
the State average? If it was, the
community was regarded as more
backward; if it was not, the community
was regarded as backward.” The Court
opined that the sub-classification made by
the Report and the order based thereupon
was not justified under Article 15(4) which
authorises special provision being made
for ‘really backward classes’. The Court
further observed that in introducing two
categories of backward classes, what the
impugned order in substance purported to
do was to devise measures “for the benefit
of all the classes of citizens who are less
advanced compared to the most advanced
classes in the State”. That, according to
the Court, was not the scope of Article
15(4). The result of the method adopted by
175
the impugned order was that nearly 90%
of the population of the State was treated
as Backward and that, observed the
Court, illustrated how the order in fact
divided the population of the State into
most advanced and the rest, putting the
latter into two categories of the Backward
and the More Backward. Thus, the view
taken there against the sub-classification
was on the facts of that case which showed
that almost 90% of the population of the
State was classified as backward, the
backwardness of the Backward (as against
that of the More Backward) being
measured in comparison to the most
advanced classes in the State. Those who
were less advanced than the most
advanced, were all classified as Backward.
The Court held that it is the More
Backward or who were really backward
who alone would be entitled to the benefit
of the provisions of Article 15(4). In other
words, while the More Backward were
classified there rightly as backward, the
Backward were not classified rightly as
backward.
524. It may be pointed out that
in Vasanth Kumar [1985 Supp SCC 714 :
1985 Supp 1 SCR 352] Chinnappa Reddy,
J after referring to the aforesaid view
176
in Balaji [1963 Supp 1 SCR 439 : AIR
1963 SC 649] observed that the propriety
of such test may be open to question on
the facts of each case but there was no
reason why on principle there cannot be a
classification into Backwards and More
Backwards if both classes are not merely
a little behind, but far far behind the most
advanced classes. He further observed
that in fact, such a classification would be
necessary to help the more backward
classes; otherwise those of the backward
classes who might be a little more
advanced than the more backward
classes, would walk away with all the seats
just as if reservation was confined to the
more backward classes and no reservation
was made to the slightly more advanced of
the backward classes, the backward
classes would gain no seats since the
advanced classes would walk away with all
the seats available for the general
category. With respect, this is the correct
view of the matter. Whether the backward
classes can be classified into Backward
and More Backward, would depend upon
the facts of each case. So long as both
backward and more backward classes are
not only comparatively but substantially
backward than the advanced classes, and
further, between themselves, there is a
177
substantial difference in backwardness,
not only it is advisable but also imperative
to make the sub-classification if all the
backward classes are to gain equitable
benefit of the special provisions under the
Constitution. To give an instance, the
Mandal Commission has, on the basis of
social, educational and economic
indicators evolved 22 points by giving
different values to each of the three
factors, viz., social, educational and
economic. Those social groups which
secured 22 points or above have been
listed there as “socially and educationally
backward” and the rest as “advanced”.
Now, between 11 and 22 points some may
secure, say, 11 to 15 points while others
may secure all 22 points. The difference in
their backwardness is, therefore,
substantial. Yet another illustration which
may be given is from Karnataka State
Government order dated October 13, 1986
on reservations issued after the decision
in Vasanth Kumar [1985 Supp SCC 714 :
1985 Supp 1 SCR 352] where the
backward classes are grouped into five
categories, viz., A, B, C, D and E. In
category A, fall such castes or
communities as that of Bairagi, Banjari
and Lambadi which are nomadic tribes,
and Bedaru, Ramoshi which were formerly
178
stigmatised as criminal tribes whereas in
category D fall such castes as Kshatriya
and Rajput. To lump both together would
be to deny totally the benefit of special
provisions to the former, the latter taking
away the entire benefits. On the other
hand, to deny the status of backwardness
to the latter and ask them to compete with
the advanced classes, would leave the
latter without any seat or post. In such
circumstances, the sub-classification of
the backward classes into backward and
more or most backward is not only
desirable but essential. However, for each
of them a special quota has to be
prescribed as is done in the Karnataka
Government order. If it is not done, as in
the present case, and the reserved posts
are first offered to the more backward and
only the remaining to the backward or less
backward, the more backward may take
away all the posts leaving the backward
with no posts. The backward will neither
get his post in the reserved quota nor in
the general category for want of capacity to
compete with the forward.
525. Hence, it will have to be held that
depending upon the facts of each case,
sub-classification of the backward classes
into the backward and more or most
179
backward would be justifiable provided
separate quotas are prescribed for each of
them.”
145. His Lordship held that sub-classification of the backward
classes into the backward and more or most backward would be
justifiable provided separate quotas are prescribed for each of
them.
146. The question as to whether Backward Classes can be
further divided into backward and more backward categories has
been answered by P.B. Sawant, J. as under (Paragraph 552):
“Question 5:
Article 16(4) permits classification of
backward classes into backward and more
or most backward classes. However, this
classification is permitted only on the
basis of the degrees of social
backwardness and not on the basis of the
economic consideration alone.
If backward classes are classified into
backward and more or most backward
classes, separate quotas of reservations
will have to be kept for each of such
classes. In the absence of such separate
quotas, the reservations will be illegal.
180
It is not permissible to classify
backward classes or a backward class
social group into an advanced section and
a backward section either on economic or
any other consideration. The test of
advancement lies in the capacity to
compete with the forward classes. If the
advanced section in a backward class is so
advanced as to be able to compete with the
forward classes, the advanced section
from the backward class no longer belongs
to the backward class and should cease to
be considered so and denied the benefit of
reservations under Article 16(4).”
147. It could thus be seen that Sawant, J. observed that if the
advanced section in a backward class is so advanced as to be
able to compete with the forward classes, the advanced section
from the backward class no longer belongs to the backward class
and should cease to be considered so and denied the benefit of
reservations under Article 16(4).
F. E.V. Chinnaiah vs. State of A.P.
148. In the case of E.V. Chinnaiah, the validity of the Andhra
Pradesh Scheduled Castes (Rationalisation of Reservations) Act,
181
2000 (A.P. Act 20 of 2000) was challenged before the High Court
of Andhra Pradesh at Hyderabad. The same was dismissed by
the 5-Judge Bench by a majority of 4:1. Under the said Act, the
castes in the Presidential List of Scheduled Castes came to be
classified in 4 groups. The seats were apportioned in different
proportions amongst the said 4 groups.
149. N. Santosh Hegde, J. for himself, S.N. Variava, and B.P.
Singh, JJ. (as Their Lordships then were) observed thus:
“13. We will first consider the effect of
Article 341 of the Constitution and
examine whether the State could, in the
guise of providing reservation for the
weaker of the weakest, tinker with the
Presidential List by subdividing the castes
mentioned in the Presidential List into
different groups. Article 341 which is
found in Part XVI of the Constitution
refers to special provisions relating to
certain classes which includes the
Scheduled Castes. This article provides
that the President may with respect to any
State or Union Territory after consultation
with the Governor thereof by public
notification, specify the castes, races or
tribes or parts of or groups within castes,
182
races or tribes which shall for the
purposes of this Constitution be deemed
to be Scheduled Castes in relation to that
State or Union Territory. This indicates
that there can be only one list of
Scheduled Castes in regard to a State and
that list should include all specified
castes, races or tribes or part or groups
notified in that Presidential List. Any
inclusion or exclusion from the said list
can only be done by Parliament under
Article 341(2) of the Constitution. In the
entire Constitution wherever reference has
been made to “Scheduled Castes” it refers
only to the list prepared by the President
under Article 341 and there is no reference
to any subclassification or division in the
said list except, maybe, for the limited
purpose of Article 330, which refers to
reservation of seats for Scheduled Castes
in the House of the People, which is not
applicable to the facts of this case. It is
also clear from Article 341 that except for
a limited power of making an exclusion or
inclusion in the list by an Act of
Parliament there is no provision either to
subdivide, subclassify or subgroup these
castes which are found in the Presidential
List of Scheduled Castes. Therefore, it is
clear that the Constitution intended all the
castes including the subcastes, races and
tribes mentioned in the list to be members
of one group for the purpose of the
Constitution and this group could not be
183
subdivided for any purpose. A reference to
the Constituent Assembly in this regard
may be useful at this stage.”
150. His Lordship observed that from the perusal of Article 341
of the Constitution, there can be only one list of Scheduled Castes
regarding a State and that list should include all specified castes,
races or tribes or part or groups notified in that Presidential List.
It has been observed that any inclusion or exclusion from the
said list can only be done by Parliament under Article 341(2) of
the Constitution. It is observed that it is also clear from Article
341 that except for a limited power of making an exclusion or
inclusion in the list by an Act of Parliament there is no provision
either to subdivide, subclassify or subgroup these castes which
are found in the Presidential List of Scheduled Castes. It has been
observed that the Constitution intended all the castes including
the subcastes, races and tribes mentioned in the list to be
members of one group for the purpose of the Constitution and
that the said group could not be subdivided for any purpose.
184
151. In paragraph 26, it has been observed thus:
“26. Thus from the scheme of the
Constitution, Article 341 and above
opinions of this Court in the case of N.M.
Thomas [(1976) 2 SCC 310 : 1976 SCC
(L&S) 227] it is clear that the castes once
included in the Presidential List, form a
class by themselves. If they are one class
under the Constitution, any division of
these classes of persons based on any
consideration would amount to tinkering
with the Presidential List.”
152. The Court, relying on Article 341 and the opinions
expressed in the case of N.M. Thomas, observed that it was clear
that the castes once included in the Presidential List, form a class
by themselves. It has been observed that if they are one class
under the Constitution, any division of these classes of persons
based on any consideration would amount to ‘tinkering’ with the
Presidential List.
153. In paragraph 31, the Court observed thus:
“31. On a detailed perusal of the Act it is
seen that Section 3 is the only substantive
provision in the Act, rest of the provisions
185
are only procedural. Section 3 of the Act
provides for the creation of 4 groups out of
the castes enumerated in the Presidential
List of the State. After the regrouping it
provides for the proportionate allotment of
the reservation already made in favour of
the Scheduled Castes amongst these 4
groups. Beyond that the Act does not
provide for anything else. Since the State
had already allotted 15% of the total quota
of the reservation available for the
backward classes to the Scheduled Castes
the question of allotting any reservation
under this enactment to the backward
classes does not arise. Therefore, it is clear
that the purpose or the true intendment of
this Act is only to first divide the castes in
the Presidential List of the Scheduled
Castes into 4 groups and then divide 15%
of reservation allotted to the Scheduled
Castes as a class, amongst these 4 groups.
Thus it is clear that the Act does not for
the first time provide for reservation to the
Scheduled Castes but only intends to
redistribute the reservation already made
by subclassifying the Scheduled Castes
which is otherwise held to be a class by
itself. It is a well-settled principle in law
that reservation to a backward class is not
a constitutional mandate. It is the
prerogative of the State concerned if it so
desires, with an object of providing
opportunity of advancement in the society
to certain backward classes which
186
includes the Scheduled Castes, to reserve
certain seats in educational institutions
under Article 15(4) and in public services
of the State under Article 16(4). That part
of its constitutional obligation, as stated
above, has already been fulfilled by the
State. Having done so, it is not open to the
State to subclassify a class already
recognised by the Constitution and allot a
portion of the already reserved quota
amongst the State-created subclass within
the list of Scheduled Castes. From the
discussion hereinabove, it is clear that the
primary object of the impugned enactment
is to create groups of subcastes in the list
of Scheduled Castes applicable to the
State and, in our opinion, apportionment
of the reservation is only secondary and
consequential. Whatever may be the object
of this subclassification and
apportionment of the reservation, we think
the State cannot claim legislative power to
make a law dividing the Scheduled Castes
List of the State by tracing its legislative
competence to Entry 41 of List II or Entry
25 of List III. Therefore, we are of the
opinion that in pith and substance the
enactment is not a law governing the field
of education or the field of State public
services.”
187
154. It can thus be seen that this Court held that whatever may
be the object of the sub-classification and apportionment of the
reservation, the State cannot claim legislative power to make a
law dividing the Scheduled Castes List of the State by tracing its
legislative competence to Entry 41 of List II or Entry 25 of List III.
The Court held that, in pith and substance the enactment is not
a law governing the field of education or the field of State public
services.
155. Then the Court posed a question as to whether the
impugned enactment creates sub-classification or micro-
classification of the Scheduled Castes so as to violate Article 14
of the Constitution. The same is answered as under:
“41. The conglomeration of castes given in
the Presidential Order, in our opinion,
should be considered as representing a
class as a whole. The contrary approach of
the High Court, in our opinion, was not
correct. The very fact that a legal fiction
has been created is itself suggestive of the
fact that the legislature of a State cannot
take any action which would be contrary
188
to or inconsistent therewith. The very idea
of placing different castes or tribes or
group or part thereof in a State as a
conglomeration by way of a deeming
definition clearly suggests that they are
not to be subdivided or subclassified
further. If a class within a class of
members of the Scheduled Castes is
created, the same would amount to
tinkering with the list. Such
subclassification would be violative of
Article 14 of the Constitution. It may be
true, as has been observed by the High
Court, that the caste system has got stuck
up in the society but with a view to do
away with the evil effect thereof, a
legislation which does not answer the
constitutional scheme cannot be upheld.
It is also difficult to agree with the High
Court that for the purpose of identifying
backwardness, a further inquiry can be
made by appointing a commission as to
who amongst the members of the
Scheduled Castes is more backward. If
benefits of reservation are not percolating
to them equitably, measures should be
taken to see that they are given such
adequate or additional training so as to
enable them to compete with the others
but the same would not mean that in the
process of rationalising the reservation to
189
the Scheduled Castes the constitutional
mandate of Articles 14, 15 and 16 could be
violated.
42. Reservation must be considered from
the social objective angle, having regard to
the constitutional scheme, and not as a
political issue and, thus, adequate
representation must be given to the
members of the Scheduled Castes as a
group and not to two or more groups of
persons or members of castes.
43. The very fact that the members of the
Scheduled Castes are most backward
amongst the backward classes and the
impugned legislation having already
proceeded on the basis that they are not
adequately represented both in terms of
clause (4) of Article 15 and clause (4) of
Article 16 of the Constitution, a further
classification by way of micro-
classification is not permissible. Such
classification of the members of different
classes of people based on their respective
castes would also be violative of the
doctrine of reasonableness. Article 341
provides that exclusion even of a part or a
group of castes from the Presidential List
can be done only by Parliament. The
190
logical corollary thereof would be that the
State Legislatures are forbidden from
doing that. A uniform yardstick must be
adopted for giving benefits to the members
of the Scheduled Castes for the purpose of
the Constitution. The impugned
legislation being contrary to the above
constitutional scheme cannot, therefore,
be sustained.”
156. It has been held that the conglomeration of castes given in
the Presidential Order should be considered as representing a
class as a whole. It has been held that the very idea of placing
different castes or tribes or group or part thereof in a State as a
conglomeration by way of a deeming definition clearly suggests
that they are not to be subdivided or subclassified further. It has
been held that if a class within a class of members of the
Scheduled Castes is created, the same would amount to tinkering
with the list. Such subclassification would be violative of Article
14 of the Constitution.
191
157. The Court also held that classification of the members of
different classes of people based on their respective castes would
also be violative of the doctrine of reasonableness.
158. S.B. Sinha, J. in his separate concurring opinion held thus:
“93. Scheduled Caste, however, is not a
caste in terms of its definition as contained
in Article 366(24) of the Constitution. They
are brought within the purview of the said
category by reason of their abysmal
backwardness. Scheduled Caste consists
of not only the people who belong to some
backward caste but also race or tribe or
part of or groups within castes, races or
tribes. They are not merely backward but
the backwardmost. A person even does not
cease to be a Scheduled Caste
automatically even on his conversion to
another religion. (See Punit Rai v. Dinesh
Chaudhary [(2003) 8 SCC 204] and State
of Kerala v. Chandramohanan [(2004) 3
SCC 429 : 2004 SCC (Cri) 818 : AIR 2004
SC 1672].)”
159. It could thus be seen that His Lordship has also recognized
that the Scheduled Caste consists of not only the people who
belong to some backward caste but also race or tribe or part of
192
or groups within castes, races or tribes and that they are not
merely backward but the backwardmost.
160. After referring to the observations of this Court in Indra
Sawhney (supra) regarding the applicability of ‘means test’ and
‘creamy-layer test’, the Learned Judge observed thus:
“96. But we must state that whenever
such a situation arises in respect of
Scheduled Caste, it will be Parliament
alone to take the necessary legislative
steps in terms of clause (2) of Article 341
of the Constitution. The States concededly
do not have the legislative competence
therefor.”
161. It is further observed in paragraph 113 thus:
“113. The power of the State Legislature to
decide as regards grant of benefit of
reservation in jobs or in educational
institutions to the backward classes is not
in dispute. It is furthermore not in dispute
that if such a decision is made the State
can also lay down a legislative policy as
regards extent of reservation to be made
for different members of the backward
classes including Scheduled Castes. But it
cannot take away the said benefit on the
premise that one or the other group
193
amongst the members of the Scheduled
Castes has advanced and, thus, is not
entitled to the entire benefit of reservation.
The impugned legislation, thus, must be
held to be unconstitutional.”
162. The Learned Judge observed that the State can lay down a
legislative policy as regards extent of reservation to be made for
different members of the backward classes including Scheduled
Castes. However, it cannot take away the said benefit on the
premise that one or the other group amongst the members of the
Scheduled Castes has advanced and, thus, is not entitled to the
entire benefit of reservation.
G. M. Nagaraj vs. Union of India
163. Next in line is the case of M. Nagaraj and others vs. Union
of India and others14, where the Constitution Bench of this
Court was considering, inter alia, the constitutional validity of the
Constitution (Seventy-Seventh Amendment) Act, 1995, the
Constitution (Eighty-first Amendment) Act, 2000, the
14 (2006) 8 SCC 212.
194
Constitution (Eighty-second Amendment) Act, 2000, and the
Constitution (Eighty-fifth Amendment) Act, 2001. Answering the
aforesaid, the Court observed thus:
“121. The impugned constitutional
amendments by which Articles 16(4-A)
and 16(4-B) have been inserted flow from
Article 16(4). They do not alter the
structure of Article 16(4). They retain the
controlling factors or the compelling
reasons, namely, backwardness and
inadequacy of representation which
enables the States to provide for
reservation keeping in mind the overall
efficiency of the State administration
under Article 335. These impugned
amendments are confined only to SCs and
STs. They do not obliterate any of the
constitutional requirements, namely,
ceiling limit of 50% (quantitative
limitation), the concept of creamy layer
(qualitative exclusion), the sub-
classification between OBCs on one hand
and SCs and STs on the other hand as
held in Indra Sawhney [1992 Supp (3)
SCC 217 : 1992 SCC (L&S) Supp 1 : (1992)
22 ATC 385] , the concept of post-based
roster with inbuilt concept of replacement
as held in R.K. Sabharwal [(1995) 2 SCC
195
745 : 1995 SCC (L&S) 548 : (1995) 29 ATC
481] .
122. We reiterate that the ceiling limit of
50%, the concept of creamy layer and the
compelling reasons, namely,
backwardness, inadequacy of
representation and overall administrative
efficiency are all constitutional
requirements without which the structure
of equality of opportunity in Article 16
would collapse.
123. However, in this case, as stated
above, the main issue concerns the “extent
of reservation”. In this regard the State
concerned will have to show in each case
the existence of the compelling reasons,
namely, backwardness, inadequacy of
representation and overall administrative
efficiency before making provision for
reservation. As stated above, the
impugned provision is an enabling
provision. The State is not bound to make
reservation for SCs/STs in matters of
promotions. However, if they wish to
exercise their discretion and make such
provision, the State has to collect
quantifiable data showing backwardness
of the class and inadequacy of
196
representation of that class in public
employment in addition to compliance
with Article 335. It is made clear that even
if the State has compelling reasons, as
stated above, the State will have to see
that its reservation provision does not lead
to excessiveness so as to breach the ceiling
limit of 50% or obliterate the creamy layer
or extend the reservation indefinitely.
124. Subject to the above, we uphold the
constitutional validity of the Constitution
(Seventy-seventh Amendment) Act, 1995;
the Constitution (Eighty-first Amendment)
Act, 2000; the Constitution (Eighty-
second Amendment) Act, 2000 and the
Constitution (Eighty-fifth Amendment)
Act, 2001.”
164. It could thus be seen that in M. Nagaraj (supra), the Court
applied the test of creamy layer and the requirement for collection
of quantifiable data showing backwardness of the class and
inadequacy of representation of that class even insofar as the
Scheduled Castes and Scheduled Tribes are concerned.
197
H. Jarnail Singh vs. Lachhmi Narain Gupta
165. The correctness of the decision in M. Nagaraj was referred
to the Constitution Bench in the case of Jarnail Singh and
others vs. Lachhmi Narain Gupta and others15. The
Constitution Bench in the said case considered two issues:
firstly, with regard to the correctness of the view taken in M.
Nagaraj about the requirement of collecting quantifiable data
showing backwardness and inadequacy of representation of
Scheduled Castes and Scheduled Tribes in public employment;
and secondly, with regard to applicability of the creamy layer
principle even to the Scheduled Castes and Scheduled Tribes.
166. The Court, insofar as the first issue is concerned, held that
the requirement of collection of quantifiable data on
backwardness and inadequacy of representation of Scheduled
Castes and Scheduled Tribes in public employment is concerned,
is contrary to the 9-Judge Bench judgment in the case of Indra
15 (2018) 10 SCC 396.
198
Sawhney and liable to be struck down to that extent. However,
insofar as the second issue regarding making the creamy layer
principle applicable even to Scheduled Castes and Scheduled
Tribes is concerned, the Court observed thus:
“26. The whole object of reservation is to
see that Backward Classes of citizens
move forward so that they may march
hand in hand with other citizens of India
on an equal basis. This will not be possible
if only the creamy layer within that class
bag all the coveted jobs in the public sector
and perpetuate themselves, leaving the
rest of the class as backward as they
always were. This being the case, it is clear
that when a court applies the creamy layer
principle to Scheduled Castes and
Scheduled Tribes, it does not in any
manner tinker with the Presidential List
under Articles 341 or 342 of the
Constitution of India. The caste or group
or sub-group named in the said List
continues exactly as before. It is only those
persons within that group or sub-group,
who have come out of untouchability or
backwardness by virtue of belonging to the
creamy layer, who are excluded from the
benefit of reservation. Even these persons
199
who are contained within the group or
sub-group in the Presidential Lists
continue to be within those Lists. It is only
when it comes to the application of the
reservation principle under Articles 14
and 16 that the creamy layer within that
sub-group is not given the benefit of such
reservation.
27. We do not think it necessary to go into
whether Parliament may or may not
exclude the creamy layer from the
Presidential Lists contained under Articles
341 and 342. Even on the assumption that
Articles 341 and 342 empower Parliament
to exclude the creamy layer from the
groups or sub-groups contained within
these Lists, it is clear that constitutional
courts, applying Articles 14 and 16 of the
Constitution to exclude the creamy layer
cannot be said to be thwarted in this
exercise by the fact that persons stated to
be within a particular group or sub-group
in the Presidential List may be kept out by
Parliament on application of the creamy
layer principle. One of the most important
principles that has been frequently
applied in constitutional law is the
doctrine of harmonious interpretation.
When Articles 14 and 16 are harmoniously
interpreted along with other Articles 341
200
and 342, it is clear that Parliament will
have complete freedom to include or
exclude persons from the Presidential
Lists based on relevant factors. Similarly,
constitutional courts, when applying the
principle of reservation, will be well within
their jurisdiction to exclude the creamy
layer from such groups or sub-groups
when applying the principles of equality
under Articles 14 and 16 of the
Constitution of India. We do not agree with
Balakrishnan, C.J.'s statement in Ashoka
Kumar Thakur [Ashoka Kumar
Thakur v. Union of India, (2008) 6 SCC 1 :
3 SCEC 35] that the creamy layer principle
is merely a principle of identification and
not a principle of equality.
28. Therefore, when Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC
212 : (2007) 1 SCC (L&S) 1013] applied the
creamy layer test to Scheduled Castes and
Scheduled Tribes in exercise of application
of the basic structure test to uphold the
constitutional amendments leading to
Articles 16(4-A) and 16(4-B), it did not in
any manner interfere with Parliament's
power under Article 341 or Article 342. We
are, therefore, clearly of the opinion that
this part of the judgment does not need to
be revisited, and consequently, there is no
201
need to refer Nagaraj [M. Nagaraj v. Union
of India, (2006) 8 SCC 212 : (2007) 1 SCC
(L&S) 1013] to a seven-Judge Bench. We
may also add at this juncture
that Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] is a unanimous judgment of five
learned Judges of this Court which has
held sway since the year 2006. This
judgment has been repeatedly followed
and applied by a number of judgments of
this Court, namely:
28.1.Anil Chandra v. Radha Krishna
Gaur [Anil Chandra v. Radha Krishna
Gaur, (2009) 9 SCC 454 : (2009) 2 SCC
(L&S) 683] (two-Judge Bench) (see paras
17 and 18).
28.2.Suraj Bhan Meena v. State of
Rajasthan [Suraj Bhan Meena v. State of
Rajasthan, (2011) 1 SCC 467 : (2011) 1
SCC (L&S) 1] (two-Judge Bench) (see paras
10, 50, and 67).
28.3.U.P. Power Corpn. Ltd. v. Rajesh
Kumar [U.P. Power Corpn. Ltd. v. Rajesh
Kumar, (2012) 7 SCC 1 : (2012) 2 SCC
(L&S) 289] (two-Judge Bench) [see paras
61, 81(ix), and 86].
202
28.4.S. Panneer Selvam v. State of T.N. [S.
Panneer Selvam v. State of T.N., (2015) 10
SCC 292 : (2016) 1 SCC (L&S) 76] (two-
Judge Bench) (see paras 18, 19, and 36).
28.5.Central Bank of India v. SC/ST
Employees Welfare Assn. [Central Bank of
India v. SC/ST Employees Welfare Assn.,
(2015) 12 SCC 308 : (2016) 1 SCC (L&S)
355] (two-Judge Bench) (see paras 9 and
26).
28.6.Suresh Chand Gautam v. State of
U.P. [Suresh Chand Gautam v. State of
U.P., (2016) 11 SCC 113 : (2016) 2 SCC
(L&S) 291] (two-Judge Bench) (see paras 2
and 45).
28.7.B.K. Pavitra v. Union of India [B.K.
Pavitra v. Union of India, (2017) 4 SCC 620
: (2017) 2 SCC (L&S) 128] (two-Judge
Bench) (see paras 17 to 22).”
167. The Court in unequivocal terms held that when a court
applies the creamy layer principle to Scheduled Castes and
Scheduled Tribes, it does not in any manner tinker with the
203
Presidential List under Articles 341 or 342 of the Constitution of
India. It is observed that the caste or group or sub-group named
in the said List continues exactly as before. It has been further
observed that it is only those persons within that group or sub-
group, who, on account of belonging to the creamy layer, have
come out of untouchability or backwardness would be excluded
from the benefit of reservation.
168. The Court observed that even if we assume that Articles 341
and 342 empower Parliament to exclude the creamy layer from
the groups or sub-groups contained within the lists notified
under Articles 341 and 342, constitutional courts, applying
Articles 14 and 16 of the Constitution would be entitled to
exclude the creamy layer. It has been held that the
Constitutional Courts, when applying the principle of
reservation, will be well within their jurisdiction to exclude the
creamy layer from such groups or sub-groups when applying the
204
principles of equality under Articles 14 and 16 of the Constitution
of India.
IV. PRESENT REFERENCE
169. A 3-Judge Bench of this Court in the case of State of
Punjab and others vs. Davinder Singh and others16 vide order
dated 20th August 2014, doubted the correctness of the
Constitution Bench decision of this Court in the case of E.V.
Chinnaiah and referred it to the larger Bench. The larger Bench
of 5-Learned Judges proposed the following issues17.
“1.1. (i) Whether the provisions contained
under Section 4(5) of the Punjab
Scheduled Castes and Backward Classes
(Reservation in Services) Act, 2006 are
constitutionally valid?
1.2. (ii) Whether the State had the
legislative competence to enact the
provisions contained under Section 4(5) of
the Act?
16 (2020) 8 SCC 65.
17 (2020) 8 SCC 63.
205
1.3. (iii) Whether the decision in E.V.
Chinnaiah v. State of A.P. [E.V.
Chinnaiah v. State of A.P., (2005) 1 SCC
394 : (2008) 2 SCC (L&S) 329] is required
to be revisited?”
170. Vide the judgment in The State of Punjab & Ors. vs.
Davinder Singh & Ors.18, the Constitution Bench observed
thus:
“52. The State has the competence to
grant reservation benefit to the Scheduled
Castes and Scheduled Tribes in terms of
Articles 15(4) and 16(4) and also Articles
341(1) and 342(1). It prescribes the
extent/percentage of reservation to
different classes. The State Government
can decide the manner and quantum of
reservation. As such, the State can also
make sub-classification when providing
reservation to all Scheduled Castes in the
List based on the rationale that would
conform with the very spirit of Articles 14,
15 and 16 of the Constitution providing
reservation. The State Government cannot
tamper with the List; it can neither include
nor exclude any caste in the List or make
enquiry whether any synonym exists as
18 (2020) 8 SCC 1.
206
held in Milind [State of
Maharashtra v. Milind, (2001) 1 SCC 4 :
2001 SCC (L&S) 117] .
53. The State Government is conferred
with the power to provide reservation and
to distribute it equitably. The State
Government is the best judge as to the
disparities in different areas. In our
opinion, it is for the State Government to
judge the equitable manner in which
reservation has to be distributed. It can
work out its methodology and give the
preferential treatment to a particular class
more backward out of Scheduled Castes
without depriving others of benefit.
54. Apart from that, the other class out of
Scheduled Castes/Scheduled
Tribes/socially and educationally
backward classes, who is not denied the
benefit of reservation, cannot claim that
whole or a particular percentage of
reservation should have been made
available to them. The State can provide
such preference on rational criteria to the
class within Lists requiring upliftment.
There is no vested right to claim that
reservation should be at a particular
percentage. It has to accord with ground
207
reality as no one can claim the right to
enjoy the whole reservation, it can be
proportionate one as per requirement. The
State cannot be deprived of measures for
upliftment of various classes, at the same
time, which is the very purpose of
providing such measure. The spirit of the
reservation is the upliftment of all the
classes essential for the nation's progress.
55. In the federal structure, the State, as
well as Parliament, have a constitutional
directive for the upliftment of Scheduled
Castes, Scheduled Tribes, and socially and
(sic educationally) backward classes. Only
inclusion or exclusion in the Presidential
notification is by Parliament. 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 342-A as no enlisted caste is denied
the benefit of reservation.
208
56. The “inadequate representation” is the
fulcrum of the provisions of Article 16(4).
In our opinion, it would be open to the
State to provide on a rational basis the
preferential treatment by fixing reasonable
quota out of reserved seats to ensure
adequate representation in services.
Reservation is a very effective tool for
emancipation of the oppressed class. The
benefit by and large is not percolating
down to the neediest and poorest of the
poor.
57. The interpretation of Articles 14, 15,
16, 338, 341, 342 and 342-A is a matter of
immense public importance, and correct
interpretation of binding precedents
in Indra Sawhney [Indra
Sawhney v. Union of India, 1992 Supp (3)
SCC 217 : 1992 SCC (L&S) Supp 1] and
other decisions. Though we have full
respect for the principle of stare decisis, at
the same time, the Court cannot be a
silent spectator and shut eyes to stark
realities. The constitutional goal of social
transformation cannot be achieved
without taking into account changing
social realities.”
209
171. Recording the above observations, the Constitution Bench
requested the Hon’ble Chief Justice to place the matter before the
7 Judges or more as considered appropriate. The matter was
thus placed before the present Bench.
V. CONSIDERATION
172. At one stage, the atrocious caste discrimination in India had
even surpassed the racial discrimination and the slave trade,
premised on the colour of skin, in other parts of the world. For
centuries the people belonging to certain castes were inhumanly
treated by the upper classes in society. They have been treated
worse than animals. They were not permitted to be touched by
the upper classes. In some areas, even the upper classes did not
permit the shadow of such people to fall on them. As such, while
walking, they were required to maintain a distance so that their
shadow does not pollute the upper caste. In some areas, they
were required to tie a broom to their back so that they clean the
path after they travel from the same.
210
173. These people were also denied water from the common
places. In the villages where the water was drawn from the rivers,
they were required to draw water from the downstream so that
the water taken by the people from higher classes is not polluted.
They were also denied the right to education. In schools, either
they were required to sit separately or take their lessons standing
outside their classroom.
174. While India was struggling to gain freedom from the colonial
rulers, the country also witnessed a parallel movement for
eradication of these inequalities and upliftment of the classes
which were being treated inhumanly.
175. It would be apposite to refer to the statement by Dr. B.R.
Ambedkar in ‘Evidence before the Southborough Committee’
(1919), where he gave several examples of the unjust treatment
meted out to the untouchables by the oppressor castes as thus19:
19B.R. Ambedkar, ‘Evidence before the Southborough Committee on Franchise’ in Dr.
Babasaheb Ambedkar: Writings and Speeches, ed. Vasant Moon, Ministry of Social Justice
and Empowerment 2019, Vol.I, p. 255.
211
“From an untouchable trader no Hindu
will buy. An untouchable cannot be
engaged in lucrative service. Military
service had been the monopoly of the
untouchables since the days of the East
India Company. They had joined the Army
in such large numbers … But after the
mutiny when the British were able to
secure soldiers from the ranks of the
Marathas, the position of the low-caste
men who had been the prop of the Bombay
Army became precarious, not because the
Marathas were better soldiers but because
their theological bias prevented them from
serving under low-caste officers. The
prejudice was so strong that even the non-
caste British had to stop recruitment from
the untouchable classes. In like manner,
the untouchables are refused service in
the Police Force. In a great many of the
Government offices it is impossible for an
untouchable to get a place. Even in the
mills a distinction is observed. The
untouchables are not admitted in Weaving
Departments of the Cotton Mills though
many of them are professional weavers.
An instance at hand may be cited from the
school system of the Bombay
Municipality. This most cosmopolitan city
ruled by a Corporation with a greater
freedom than any other Corporation in
India has two different sets of schools …
one for the children of touchables and the
other for those of the untouchables. This
212
in itself is a point worthy of note. But
there is something yet more noteworthy.
Following the division of schools it has
divided its teaching staff into
untouchables and touchables. As the
untouchable teachers are short of the
demand, some of the untouchable schools
are manned by teachers from the
touchable class. The heart-killing fun of it
is that if there is a higher grade open in
untouchable school service, as there is
bound to be because of a few untouchable
trained teachers, a touchable teacher can
be thrust into the grade. But if a higher
grade is open in the touchable school
service, no untouchable teacher can be
thrust into that grade. He must wait till a
vacancy occurs in the untouchable
service! Such is the ethics of the Hindu
social life.”
176. Dr. Ambedkar in order to fight against the inhuman
treatment of untouchables, who were not even allowed to draw
water from the common place, held an agitation at Mahad known
as “Mahad Satyagraha” on 20th March 1927 so that the
untouchables could be permitted to draw water from a public
tank at Mahad.
213
177. Dr. Ambedkar also led agitations for opening the doors of
places of worship to the untouchables. One such agitation which
he led was in Nashik and was popularly known as “Kalaram
Temple Satyagraha”.
178. Dr. Ambedkar was of the view that if untouchables come
out of that stigma and participate in nation-building, they will
only contribute to the progress of the nation. He was of the view
that the movement for removal of untouchability is in true sense
a movement for nation-building and fraternity.
179. I can gainfully refer to the collection of views of Dr.
Ambedkar as put together lucidly by Anurag Bhaskar in the book
appropriately titled as “The Foresighted Ambedkar”20, which
reads thus:
“He asserted that the issue of temple entry
or access to public resources is an issue of
equality. He stated:
“Another argument these Touchables
give is that even if they do not allow
20 Anurag Bhaskar, The Foresighted Ambedkar: Ideas that shaped Indian constitutional
Discourse (Viking by Penguin Random House 2024).
214
the Untouchables into their temples,
all are free to build a temple for
themselves. I would like to ask those
so-called learned ones why they
object to Railways for having
separate coaches for Whites and
Indians? …There is only one answer
to this and that is: it is not a matter
of travel only, it is a matter of
equality! … The Untouchables have
the same reason for demanding the
right to worship God in the same
temple. They want to prove that the
temple is not defiled by their entry
….. The Untouchables are not
servants … On the basis of this alone
they should accept the rights of the
Untouchables. And when there are
rights there is no question of custom
of usage.”21
He further added that public property
cannot be used as the private property of
the oppressor castes. He noted:
“Legally, the right to public property
is not required to be established by
any deed; it is available
automatically to everybody. Even if
he has no usage or it was not
continuous, it does not deprive him
of that right. Suppose, somebody did
21 Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark Publishers
Pvt. Ltd. 2014).
215
not walk on a particular road, does
that mean he can never use that
road? Therefore, it would be quite
idiotic to say that since
Untouchables never went to the
temple or never drew water from the
public wells, so now they cannot do
that.”22
Dr. Ambedkar also dismissed the
contention of the oppressor castes that the
Untouchables should wait for them to
change and allow equal rights. He referred
to the Thirteenth Amendment to the
American Constitution, which abolished
slavery, to demand accountability and
action from the oppressor castes. He
stated:
“I am aware that some Touchables
are suggesting that the matter of
equal rights for the Untouchables
should be allowed to be resolved by
the Touchables amongst themselves.
It cannot be resolved by the
movement of the Untouchables. The
Untouchables should wait till the
Touchables willingly allow them such
equal rights. How can it be trusted
that they will willingly grant such
rights to the Untouchables? It will be
sheer stupidity to wait for such a
miracle to happen … Another section
22 Ibid.
216
of the Touchables tells us that even if
we launch our movement, we will not
succeed. If we launch a struggle,
whatever few Touchables who have
sympathy with our cause will feel
offended and we will lose their
sympathy. The progressive
Touchables will then join the
orthodox Hindus against us. I want
to tell them that if they have
sympathy for us, if they feel
anguished about the injustice
caused to us, then they should
support us wholeheartedly like the
Whites supported the Blacks in
America to end slavery. Otherwise, it
does not matter whether you have
sympathy or hatred towards us.””23
180. Accordingly, when I consider the present issue, I will have
to consider it in this background.
181. It is a matter of great coincidence that Dr. Ambedkar, who
fought for the cause of social equality and eradication of inhuman
treatment for generations, got an opportunity to work as the
Chief Architect of the Constitution of India.
23 Ibid.
217
182. I have already referred to his speech on draft Article 300A
and draft Article 300B (now Articles 341 and 342). It will also be
apposite to refer to the relevant part of Dr. Ambedkar’s speech on
30th November 1948 on Article 16 (which was draft Article 10),
which reads thus:
“Article 16 (Article 10 in Draft
Constitution)
The Hon’ble Dr. B.R. Ambedkar: ……..As I
said, the Drafting Committee had to
produce a formula which would reconcile
these three points of view, firstly, that
there shall be equality of opportunity,
secondly that there shall be reservations
in favour of certain communities which
have not so far had a ‘proper look-in’ so to
say into the administration. If honourable
Members will bear these facts in mind–the
three principles, we had to reconcile,–they
will see that no better formula could be
produced than the one that is embodied in
sub-clause (3) of article 10 of the
Constitution; they will find that the view of
those who believe and hold that there shall
be equality of opportunity, has been
embodied in sub-clause (1) of Article 10. It
is a generic principle. At the same time, as
I said, we had to reconcile this formula
with the demand made by certain
218
communities that the administration
which has now–for historical reasons–
been controlled by one community or a few
communities, that situation should
disappear and that the others also must
have an opportunity of getting into the
public services. Supposing, for instance,
we were to concede in full the demand of
those communities who have not been so
far employed in the public services to the
fullest extent, what would really happen
is, we shall be completely destroying the
first proposition upon which we are all
agreed, namely, that there shall be an
equality of opportunity. Let me give an
illustration. Supposing, for instance,
reservations were made for a community
or a collection of communities, the total of
which came to something like 70 per cent
of the total posts under the State and only
30 per cent are retained as the unreserved.
Could anybody say that the reservation of
30 per cent as open to general competition
would be satisfactory from the point of
view of giving effect to the first principle,
namely, that there shall be equality of
opportunity? It cannot be in my judgment.
Therefore the seats to be reserved, if the
reservation is to be consistent with sub-
clause (1) of Article 10, must be confined
to a minority of seats. It is then only that
the first principle could find its place in the
Constitution and effective in operation. If
honourable Members understand this
219
position that we have to safeguard two
things namely, the principle of equality of
opportunity and at the same time satisfy
the demand of communities which have
not had so far representation in the State,
then, I am sure they will agree that unless
you use some such qualifying phrase as
“backward” the exception made in favour
of reservation will ultimately eat up the
rule altogether. Nothing of the rule will
remain. That I think, if I may say so, is the
justification why the Drafting Committee
undertook on its own shoulders the
responsibility of introducing the word
`backward’ which, I admit, did not
originally find a place in the fundamental
right in the way in which it was passed by
this Assembly………..”
183. It could thus be seen that Dr. Ambedkar emphasized that a
formula was required to be produced which would reconcile these
three points of view, firstly, that there shall be equality of
opportunity, secondly that there shall be reservations in favour
of certain communities which have not so far had a ‘proper look-
in’ so to say into the administration. Dr. Ambedkar states that
the equality of opportunity as specified in clause (1) has to be
reconciled with the demand made by certain communities. He
220
states that on account of historical reasons, the administration
has been controlled by one community or a few communities,
that such a situation should disappear and that the others also
must have an opportunity of getting into the public services.
However, he states that if the demand of such communities, in
full, is accepted, it will destroy the first principle of equality
guaranteed in clause (1). He gives an instance that if certain
communities which are unrepresented or a group of communities
have a population of 70% and if 70% reservation is provided for
such communities, leaving only 30% for the open competition, it
will destroy the very concept of equality of opportunity. He
therefore advocates for confinement of reservation to a minority
of seats. He therefore states that unless some qualifying phrase
as “backward” is used for making reservation, the entire rule
would be unworkable. He therefore justifies the efforts of the
Drafting Committee in employing the word ‘backward’.
221
184. It will further be apposite to refer to the following
observation in the said speech.
Article 16 (Article 10 in Draft
Constitution)
“The Hon’ble Dr. B.R. Ambedkar:
……..Somebody asked me: “What is a
backward community”? Well, I think
anyone who reads the language of the
draft itself will find that we have left it to
be determined by each local Government.
A backward community is a community
which is backward in the opinion of the
Government. My honourable Friend, Mr.
T. T. Krishnamachari asked me whether
this rule will be justiciable. It is rather
difficult to give a dogmatic answer.
Personally I think it would be a justiciable
matter. If the local Government included
in this category of reservations such a
large number of seats, I think one could
very well go to the Federal Court and the
Supreme Court and say that the
reservation is of such a magnitude that the
rule regarding equality of opportunity has
been destroyed and the court will then
come to the conclusion whether the local
Government or the State Government has
acted in a reasonable and prudent
manner. …………”
222
185. Dr. Ambedkar observed that “what is a backward
community” will have to be determined by each local
Government. A backward community, in his view, is a
community which is backward in the opinion of the Government.
He also foresighted that if the local Government included in this
category of reservations such a large number of seats, one could
very well go to the Federal Court and the Supreme Court and
contend that the reservation is of such a magnitude that the rule
regarding equality of opportunity has been destroyed. He also
foresighted that the court will then conclude whether the local
Government or the State Government has acted in a reasonable
and prudent manner.
186. His foresight as to the debate regarding the identification of
the backward classes and the extent of reservations can be
judged from the spate of litigations that this country has
witnessed for last 74 years.
223
187. It could thus be seen that initially insofar as the issue
regarding the identification of the backward classes except the
Scheduled Castes and Scheduled Tribes was concerned, the
same was left to the Executive. Insofar as the identification of
Scheduled Castes and Scheduled Tribes is concerned, the
Constitution of India under Articles 341 and 342 provided the
issuance of a general notification specifying all the castes and
tribes or groups thereof to be Scheduled Castes and Scheduled
Tribes for the purposes of privileges which have been defined in
the Constitution.
188. I have already referred to Dr. Ambedkar’s speech about the
introduction of the said provisions. He, however, stated that if
any elimination was to be made from the list so notified or any
addition was to be made then they must be made by Parliament
and not by the President. He stated that the object behind the
same was to eliminate any kind of political factors having play in
the matter.
224
189. As already discussed herein above, the question insofar as
identification of Other Backward Classes is concerned, was left
to the State. Insofar as the identification of Scheduled Castes
and Scheduled Tribes is concerned, the same was complete at
the stage of enactment of the Constitution in view of Articles 341
and 342 and any addition or alteration to the said notified list
was permissible only by an Act of Parliament. It is further to be
noted that the foundation of the Presidential List issued under
Articles 341 and 342 finds place in the 1936 Order issued under
the provisions of the 1935 Act.
190. No doubt that by the Constitution (One hundred and
Second Amendment) Act, 2018, Article 342A regarding socially
and educationally backward classes has been inserted. Clause
(26C) in Article 366 of the Constitution of India has also been
inserted by the said Amendment insofar as socially and
educationally backward classes are concerned. It was sought to
be argued before us that in view of the Constitution (One hundred
225
and Second Amendment) Act, 2018, read with the law laid down
by this Court in the case of Indra Sawhney regarding Other
Backward Classes, the judgment of this Court in E.V. Chinnaiah
needs a relook.
191. I do not find it necessary to go into that aspect of the matter,
since I find that E.V. Chinnaiah does not correctly consider the
provisions of Articles 46, 335, 14, 15 and 16 of the Constitution
of India, as have been interpreted by the earlier precedents of this
Court. I have discussed hereinbelow in depth as to how E.V.
Chinnaiah incorrectly interpreted the earlier precedents.
192. This Court in E.V. Chinnaiah in paragraph 13, while
considering the effect of Article 341 of the Constitution, held that
there can be only one list of Scheduled Castes in regard to a State
and that list should include all specified castes, races or tribes or
part or groups notified in that Presidential List. It is further
observed that any inclusion or exclusion from the said list can
only be done by Parliament under Article 341(2) of the
226
Constitution. This Court held that there is no reference to any
sub-classification or division in the said list in any of the
provisions of the Constitution except, maybe, for the limited
purpose of Article 330, which refers to reservation of seats for
Scheduled Castes in the House of the People. This Court held
that it was clear to it that the Constitution intended all the castes
including the subcastes, races and tribes mentioned in the list to
be members of one group for the purpose of the Constitution and
this group could not be subdivided for any purpose.
193. Thereafter, referring to the view expressed by Mathew, J.,
Krishna Iyer, J and Fazal Ali, J. in the case of N.M. Thomas, it
is held in paragraph 26 that castes once included in the
Presidential List, form a class by themselves. Then the Court
held that if they are one class under the Constitution, any
division of these classes of persons based on any consideration
would amount to tinkering with the Presidential List.
227
194. In paragraph 31, it is observed that once the State reserve
certain seats in educational institutions under Article 15(4) and
in public services of the State under Article 16(4) in fulfillment of
its constitutional obligation, it is not open to the State to
subclassify a class already recognized by the Constitution and
allot a portion of the already reserved quota amongst the State-
created subclass within the list of Scheduled Castes.
195. In paragraph 38, this Court after referring to the case of
Indra Sawhney held that the principles laid down in Indra
Sawhney for sub-classification of Other Backward Classes
cannot be applied for subclassification or subgrouping of
Scheduled Castes in the Presidential List because that very
judgment itself specifically held that subdivision of Other
Backward Classes is not applicable to Scheduled Castes and
Scheduled Tribes.
196. In paragraph 41, this Court held that the conglomeration of
castes given in the Presidential Order, in their opinion, should be
228
considered as representing a class as a whole. It is held that the
very idea of placing different castes or tribes or group or part
thereof in a State as a conglomeration by way of a deeming
definition clearly suggested that they were not to be subdivided
or subclassified further. It goes on to hold that if a class within a
class of members of the Scheduled Castes is created, the same
would amount to tinkering with the list and would amount to
violation of Article 14 of the Constitution. The Court then
disagreed with the High Court that for the purpose of identifying
backwardness, a further inquiry can be made by appointing a
commission as to who amongst the members of the Scheduled
Castes is more backward. The Court, taking note of the fact that
the benefits of reservation are not percolating to them equitably,
suggested that measures should be taken to see that they are
given such adequate or additional training to enable them to
compete with the others.
229
197. This Court in paragraph 43 observed that the very fact that
the members of the Scheduled Castes are most backward
amongst the backward classes and the impugned legislation
having already proceeded on the basis that they are not
adequately represented, a further classification by way of micro-
classification was not permissible.
198. To ascertain if E.V. Chinnaiah is good law, I will have to
first examine whether the finding in E.V. Chinnaiah that N.M.
Thomas held the Scheduled Castes to be a homogeneous group
is correct or not.
199. E.V. Chinnaiah relies on the judgment of Mathew, J. in
N.M. Thomas. In paragraph 82, what Mathew, J. observed is
that it is by virtue of the notification of the President that the
Scheduled Castes come into being. It has been observed that
though the members of the Scheduled Castes are drawn from
castes, races or tribes, they attain a new status by virtue of the
Presidential Notification.
230
200. It cannot be disputed that there is no caste by the name of
“Scheduled Castes”. As has been discussed in earlier paragraphs,
the term “Scheduled Castes” has come on account of the 1936
Order and the 1950 Order.
201. There can be no doubt that once the castes, races, tribes or
part of or groups of such castes, races or tribes are included in
the Presidential Notification they shall be deemed to be
Scheduled Castes for the purposes of the Constitution.
202. Then E.V. Chinnaiah refers to the judgment of Krishna
Iyer, J. in N.M. Thomas. Krishna Iyer, J. in paragraph 135
observed that a bare reading of Article 341 and 342 shows that
there are no castes in the Hindu fold but an amalgam of castes,
races, groups, tribes, communities or parts thereof found on
investigation to be the lowliest and in need of massive State aid
and notified as such by the President. The Learned Judge
observed that to confuse this backwardmost social composition
with castes is to commit a constitutional error.
231
203. The observations made by the Learned Judge are in the
context of the arguments that any special treatment on the
ground of caste is prohibited under Article 16(2). The Learned
Judge observed that Article 16(2) was not coming in the way to
extend protective discrimination to this mixed bag of tribes,
races, groups, communities and non-castes outside the four-fold
Hindu division. The Learned Judge further observed that the
Indian jurisprudence has generally regarded Scheduled Castes
and Scheduled Tribes not as caste but as a large backward group
deserving of societal compassion.
204. E.V. Chinnaiah thereafter relies on Fazal Ali, J.’s
judgment.
205. Again, the observations made by Fazal Ali, J. in paragraph
169, are with regard to the arguments based on prohibition of
Article 16(2). It is observed that the Scheduled Castes and
Scheduled Tribes do not fall with the purview of Article 16(2) of
the Constitution, which prohibits discrimination between the
232
members of the same caste. It is observed that if, therefore, the
members of the Scheduled Castes and the Scheduled Tribes are
not castes, then it is open to the State to make reasonable
classification to advance or lift these classes so that they may be
able to be properly represented in the services under the State.
206. However, on reading of the majority judgments in N.M.
Thomas it does not show that the Scheduled Castes are
homogeneous group and sub-classification therein is not
permissible.
207. In paragraph 44 of the judgment in N.M. Thomas, Ray, C.J.
observed that the equality of opportunity for unequals can only
mean aggravation of inequality; equality of opportunity admits
discrimination with reason and prohibits discrimination without
reason; and discrimination with reasons means rational
classification for differential treatment having nexus to the
constitutionally permissible object. It is observed that
preferential representation for the Backward Classes in services
233
with due regard to administrative efficiency is permissible object
and Backward Classes are a rational classification recognized by
the Constitution. He therefore held that the differential treatment
in standards of selection is within the concept of equality.
208. Mathew, J. in paragraph 54, refers to the principle of
proportional equality and held that it can be attained only when
equals are treated equally and unequals unequally. He held that
differential treatment would be allowed if there is significant
difference among the persons who are treated differentially.
209. In paragraph 73, the Learned Judge observed that the State
should adopt a standard of proportional equality which takes
account of the differing conditions and circumstances of a class
of citizens whenever those conditions and circumstances stand
in the way of their equal access to the enjoyment of basic rights
or claims.
210. In paragraph 75, the Learned Judge observed that such sort
of preferential treatment would be permissible under Article 16(1)
234
as such a preferential treatment alone would put the backward
class people on a parity with the forward communities. The
Learned Judge observed that whether there is equality of
opportunity can be gauged only by the equality attained in the
result. He states that formal equality of opportunity simply
enables people with more education and intelligence to capture
all the posts and to win over the less fortunate in education and
talent even when the competition is fair. It is observed that the
equality of result is the test of equality of opportunity.
211. Krishna Iyer, J. in paragraph 119 refers to the concept of
‘social engineering’. He quotes from a book that “One law for the
Lion and Ox is oppression”.
212. In paragraph 129, after considering the constitutional
scheme, the Learned Judge observed that the Constitution itself
demarcates harijans from others. That this is based on the stark
backwardness of this bottom layer of the community. It is
observed that the differentiation has been made to cover
235
specifically the area of appointments to posts under the State.
He further held that the twin objects, blended into one, are the
claims of harijans to be considered in such posts and the
maintenance of administrative efficiency. The Learned Judge
observed that the State has been obligated to promote the
economic interests of harijans and like backward classes.
213. In paragraph 142, the Learned Judge observed that the
genius of Articles 14 to 16 consists not in literal equality but in
progressive elimination of pronounced inequality. He observed
that to treat sharply dissimilar persons equally is subtle
injustice.
214. In paragraph 149, Krishna Iyer, J. while concluding
observed that “the heady upper berth occupants from ‘backward’
classes do double injury. They beguile the broad community into
believing that backwardness is being banished. They rob the
need-based bulk of the backward of the ‘office’ advantages the
nation, by classification, reserves or proffers”.
236
215. Fazal Ali, J. in paragraph 165, referring to clauses (24) and
(25) of Article 366 of the Constitution observed that the said
provisions create a presumption in favour of Scheduled Castes
and Scheduled Tribes that they are backward classes of citizens.
It is observed that it is not disputed that the members of the
Scheduled Castes and Scheduled Tribes are specified in the
notifications issued under Articles 341 and 342 of the
Constitution and, therefore, they must be deemed to be
Scheduled Castes and Scheduled Tribes for the purposes of the
Constitution.
216. In paragraph 178, the Learned Judge observed that the
concept of equality or equal opportunity as contained in Article
16 does not mean that same laws must be applicable to all
persons under every circumstance. He observed that if this
artificial interpretation is put on the scope and ambit of Article
16 it will lead to channelization of legislation or polarization of
rules. It is observed that differences and disparities exist among
237
men and things, and they cannot be treated alike by the
application of the same laws. He observed that the law has to
come to terms with life and must be able to recognize the genuine
differences and disparities that exist in human nature.
217. The Learned Judge also held that the equality enshrined in
clause (1) of Article 16 of the Constitution inherently implies that
the opportunity must be given not only to a particular section of
the society or a particular class of citizens who may be advanced
or otherwise more affluent but to all classes of citizens. He
observed that that this can be achieved by making a reasonable
classification so that every class of citizens is duly represented in
services which will enable equality of opportunity to all citizens.
He lays down the conditions for the classification to be a
reasonable one.
218. It can thus be seen that in none of the judgments in N.M.
Thomas it is held that the Scheduled Castes are a homogeneous
class. It has been held that once the Scheduled Castes and
238
Scheduled Tribes have been identified and they find a place in
the Presidential List, they will continue to be the Scheduled
Castes and Scheduled Tribes. It has been held that by the very
fact of they being included in the Presidential List, they are
deemed to be backward and no further enquiry regarding their
backwardness would be warranted.
219. In Akhil Bharatiya Soshit Karamchari Sangh (supra),
Krishna Iyer, J., in paragraph 94, rejects the plea that because a
few harijans are better off, therefore, the bulk at the bottom
deserves no jack-up provisions and that a swallow does not make
a summer. He further observed that maybe, the State may, when
social conditions warrant, justifiably restrict harijan benefits to
the harijans among the harijans and forbid the higher harijans
from robbing the lowlier brethren.
220. Again, in paragraph 98, he considered the argument that
there are rich and influential harijans who rob all the privileges
leaving the serf-level sufferers as suppressed as ever. He advised
239
the Administration to innovate and classify to weed out the
creamy layer of Scheduled Castes/Scheduled Tribes. However,
he observed that the Court cannot force the State in that behalf.
221. In K.C. Vasanth Kumar, Chandrachud, C.J. in paragraph
2, observed that the reservation in employment and education in
favour of Scheduled Castes and Scheduled Tribes must continue
without the application of a means test for a further period not
exceeding 15 years. He observed that after the said period of 15
years, the test of economic backwardness ought to be made
applicable even to the Scheduled Castes and Scheduled Tribes.
Insofar as Other Backward Classes are concerned, he stated that
two tests should be conjunctively applied for identifying them for
the purpose of reservations in employment and education: One,
that they should be comparable to the Scheduled Castes and
Scheduled Tribes in the matter of their backwardness; and two,
that they should satisfy the means test such as a State
240
Government may lay down in the context of prevailing economic
conditions.
222. Desai, J. in paragraph 31, observed that the approach
suggested by him does not deal with reservation in favour of
Scheduled Castes and Scheduled Tribes since thousands of years
of discrimination and exploitation cannot be wiped out in one
generation. However, he suggested that even in their cases
economic criterion is worth applying by refusing preferred
treatment to those amongst them who have already benefited by
it and improved their position.
223. Chinnappa Reddy, J. in paragraph 51 did not agree with the
view that while determining the social backwardness of other
classes, the test to be applied is nearness to the conditions of
existence of the Scheduled Castes. He observed that such a test
would practically nullify the provision for reservation for socially
and educationally backward classes other than Scheduled
Castes and Tribes.
241
224. Chinnappa Reddy, J. in paragraph 79, notes that a few
members of those castes or social groups may have progressed
far enough and forged ahead to compare favourably with the
leading forward class economically, socially and educationally.
He suggests that in such cases, perhaps an upper income ceiling
would secure the benefit of reservation to such of those members
of the class who really deserve it.
225. As already discussed hereinabove, the 9-Judge Bench of
this Court in Indra Sawhney has in unequivocal terms held that
further classification of backward classes into more backward
classes is permissible in law.
226. Jeevan Reddy, J. in paragraph 802, in the case of Indra
Sawhney, gives an illustration with regard to two occupational
groups viz., goldsmiths and vaddes (traditional stonecutters in
Andhra Pradesh). He stated that both are included within Other
Backward Classes. He observed that none can deny that
goldsmiths are far less backward than vaddes and so if both are
242
grouped together and reservation provided, the inevitable result
would be that goldsmiths would take away all the reserved posts
leaving none for vaddes. The Learned Judge further observed
that in such a situation, a State may think it advisable to make
a categorization even among other backward classes so as to
ensure that the more backward among the backward classes
obtain the benefits intended for them. He stated that where to
draw the line and how to effect the sub-classification, however,
is a matter for the Commission and the State and so long as it is
reasonably done, the Court may not intervene.
227. It will also be relevant to note that in paragraph 803, the
Learned Judge observed that Article 16(4) recognizes only one
class i.e., “backward class of citizens”. It does not speak
separately of Scheduled Castes and Scheduled Tribes, as does
Article 15(4). The Learned Judge observed that it is beyond
controversy that Scheduled Castes and Scheduled Tribes are also
included in the expression “backward class of citizens” and that
243
separate reservations can be provided in their favour. The
Learned Judge observed that if Scheduled Tribes, Scheduled
Castes and Other Backward Classes are lumped together, OBCs
will take away all the vacancies leaving Scheduled Castes and
Scheduled Tribes high and dry. He states that the same logic also
warrants categorization as between more backward and
backward.
228. As has already been noted before, in paragraph 781 of
Indra Sawhney, Jeevan Reddy, J. states that for the purpose of
the discussion in the judgment, the Scheduled Castes and
Scheduled Tribes, which were admittedly included within the
backward classes, were kept aside.
229. It is pertinent to note that the said discussion in the
judgment was pertaining to “identification” of backward classes
of citizens. As discussed hereinabove, insofar as the Scheduled
Castes and Scheduled Tribes are concerned, identification is
244
already covered by the Presidential List issued under Artiles 341
and 342.
230. Sawant, J. in his judgment also held that Article 16(4)
permits classification of backward classes into backward and
more or most backward classes. However, this classification is
permitted only because of the degrees of social backwardness
and not based on economic consideration alone. He held that if
backward classes are classified into backward and more or most
backward classes, separate quotas of reservations would be kept
for each of such classes. In the absence of such separate quotas,
the reservations will be illegal.
231. This Court in E.V. Chinnaiah has observed that the law
laid down in the case of Indra Sawhney would not be applicable
since Jeevan Reddy, J. in his judgment has himself stated that
the same would not be applicable to Scheduled Castes and
Scheduled Tribes in paragraph 781, which paragraph deals with
identification of backward classes of citizens. Jeevan Reddy, J.
245
states that for the purpose of the said discussion, we keep aside
the Scheduled Castes and Scheduled Tribes. He observed that
this was done since they are admittedly included within the
backward classes. However, in paragraph 803, he specifically
observed that under Article 16(4) there is no mention of
Scheduled Castes and Scheduled Tribes and that Scheduled
Castes and Scheduled Tribes are also part of backward class of
citizens.
232. Insofar as the observation in paragraph 792 wherein Jeevan
Reddy, J. observed that the said discussion has no relevance in
the case of Scheduled Tribes and Scheduled Castes is concerned,
the said discussion was regarding applicability of the ‘means test’
or ‘creamy layer test’.
233. That being the case, if the Scheduled Castes and Scheduled
Tribes are a part of backward class of citizens under Article 16(4),
then the question would be, as to why sub-classification which
246
is permitted in case of Other Backward Classes cannot be
permitted in case of Scheduled Castes and Scheduled Tribes?
234. Though the initial view of this Court was that Article 16(4)
is by way of exception to Article 16(1), the same has undergone a
thorough change, particularly after the judgment of this Court in
the case of His Holiness Kesavananda Bharati
Sripadagalavaru vs. State of Kerala24 in relation to interplay
between the Fundamental Rights and the Directive Principles.
Shortly after the judgment in Kesavananda Bharati, came the
judgment of 7-Judge Bench of this Court in N.M. Thomas
wherein the 5-Learned Judges took a view that Article 16(4) was
not by way of exception to Article 16(1). It was held that the
trinity of Articles 14 to 16 embodied the concept of equality. It
was emphasized that equality does not mean equality to all. It
was held that equality as enshrined under the Constitution did
not mean formal equality but real equality. It was held that to
24 (1973) 4 SCC 225 : 1973 Supp. SCR 1.
247
bring real equality unequal treatment to unequals was what was
contemplated under the Constitution. It was held that if
unequals are to be treated equally it will lead to nothing else but
perpetuating inequality. It was held that only giving an unequal
treatment to unequals so that they can march ahead can bring
out real equality.
235. This Court in unequivocal terms held that preferential
treatment for members of backward classes alone can mean
equality of opportunity for all citizens. The Court held that clause
(4) of Article 16 was an emphatic way of stating a principle
implicit in Article 16 (1).
236. Ray, C.J. observed that all legitimate methods were
available for equality of opportunity in services under Article
16(1). He stated that Article 16(4) indicates one of the methods of
achieving equality embodied in Article 16(1)
237. Mathew, J. observed that the claim for equality is in fact a
protest against unjust, underserved and unjustified inequalities.
248
It is a symbol of man’s revolt against chance, fortuitous disparity,
unjust power and crystallized privileges. He stated that if
equality of opportunity guaranteed under Article 16(1) means
effective material equality, then Article 16(4) is not an exception
to Article 16(1). It is only an emphatic way of putting the extent
to which equality of opportunity could be carried i.e., even up to
the point of making reservation.
238. In paragraph 83, he emphatically states that it is a mistake
to assume a priori that there can be no classification within a
class. He states that if there are intelligible differentia which
separates a group within that class from the rest and that
differentia has nexus with the object of classification, then there
should be no objection to a further classification within the class.
239. Krishna Iyer, J. in paragraph 124 refers to the research
conducted by the A.N. Sinha Institute of Social Studies, Patna
which would reveal a dual society among harijans, a tiny elite
gobbling up the benefits and the darker layers sleeping distances
249
away from the special concessions. He observed that, for them,
Articles 46 and 335 remain a ‘noble romance’, the bonanza going
to the ‘higher’ harijans. He states in paragraph 136 that Article
16(4) need not be a saving clause but put in due to the over-
anxiety of the draftsman to make matters clear beyond possibility
of doubt. He observes in paragraph 142 that the genius of
Articles 14 to 16 consists not in literal equality but in progressive
elimination of pronounced inequality. According to him, to treat
sharply dissimilar persons equally is subtle injustice. He held
that if Article 16(4) admits of reasonable classification, so does
Article 16(1).
240. In K.C. Vasanth Kumar, Y.V. Chandrachud, C.J. observed
that the test of economic backwardness ought to be made
applicable even to the Scheduled Castes and Scheduled Tribes
after a period of 15 years from the date of the judgment. Desai,
J. in the said judgment observed that even in the case of
Scheduled Castes and Scheduled Tribes the economic criterion
250
was worth applying by refusing preferred treatment to those
amongst them who have already benefitted by it and improved
their position.
241. Fazal Ali, J., after referring to all the judgments of the
Learned Judges in Kesavananda Bharati with regard to
interplay between Part III and Part IV of the Constitution, held
that Fundamental Rights guaranteed by the Constitution has to
be read in harmony with the Directive Principles contained in
Part IV. He also reiterates that Article 16(4) is not a proviso to
Article 16(1).
242. M.H. Beg, J. concurs with the views expressed by the
aforesaid Learned Judges.
243. Further, Krishya Iyer, J. in Akhil Bharatiya Soshit
Karamchari Sangh reiterates that Articles 14 to 16 form a code
by themselves and embody the distilled essence of the
Constitution’s casteless and classless egalitarianism. He states
that Article 46, in emphatic terms, obligates the State “to
251
promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular,
of the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of exploitation”.
He states that reading Article 46 together with Article 16(4), the
inference is obvious that administrative participation by the
Scheduled Castes and Scheduled Tribes shall be promoted with
special care by the State.
244. While considering the criticism that there are rich and
influential harijans who rob all the privileges leaving the serf-level
sufferers as suppressed as ever, he suggested that the
Administration may well innovate and classify to weed out the
creamy layer of SCs/STs. However, records a caution that the
Court cannot force the State in that behalf.
245. Chinnappa Reddy, J. in the same judgment states that it
becomes the duty of the Court to apply the Directive Principles
in interpreting the Constitution and the laws. He states that the
252
Directive Principles should serve the courts as a code of
interpretation. He states that the Fundamental Rights should be
interpreted in the light of the Directive Principles and the latter
should, whenever and wherever possible, be read into the former.
246. Chinnappa Reddy, J advocates that the State action should
be towards protection and nourishment of the underprivileged,
the deprived and the exploited so that they can take their place
in an egalitarian society.
247. In Indra Sawhney, 7 Learned Judges affirmed the position
as laid down in N.M. Thomas that clause (4) of Article 16 is not
by way of an exception to clause (1) of Article 16, but it is an
emphatic way of stating a principle implicit in Article 16(1).
248. As already discussed hereinabove, it has been held that
further classification of backward classes into backward and
more backward classes is permissible under the Constitution.
The only caveat put by Sawant, J. is that if it is done there has
to be a reservation for both backward as well as for more or most
253
backward classes. It has been held in Indra Sawhney that
under Article 16(4) the Scheduled Castes are also included in the
term ‘backward class of citizens’.
249. If that be so, I find no justification in E.V. Chinnaiah
holding that the State is not empowered to do the exercise of sub-
classification among the Scheduled Castes.
250. The basic error that appears to have been committed in E.V.
Chinnaiah is that it proceeds on the understanding that Article
341 has to do with the reservation of the seats.
251. As already discussed hereinabove, Articles 341 and 342 are
only with regard to identification of the Scheduled Castes and
Scheduled Tribes. Articles 341 and 342 read with clauses (24)
and (25) of Article 366 of the Constitution provide that those
castes included in the Presidential List shall be deemed to be
Scheduled Castes and Scheduled Tribes for the purposes of the
Constitution. However, at the cost of repetition, I reiterate that
Articles 341 and 342 do not deal with reservation.
254
252. The provisions of affirmative action including reservations
in the matter of public employment are contained in Article 16 of
the Constitution of India.
253. As already discussed herein above, this Court in Indra
Sawhney has held that further classification of backward classes
into backward and more backward classes is permissible in law.
254. By that corollary, if a State finds that any of the castes,
races, tribes or part of or groups within the castes, races or tribes
are not adequately represented, could the State be denied its
right to make a special provision for that?
255. In a catena of decisions, this Court held that the State must
resort to compensatory State action for the purpose of making
people who are factually unequal in their wealth, education or
social environment, equal in specified areas. It has been held that
State should take affirmative action by way of giving preference
and reservation to the socially and economically disadvantaged
persons or inflicting handicaps on those more advantageously
255
placed, to bring about real equality. Reference in this respect
may be made to the Constitution Bench judgment of this Court
in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G.S.
Medical College and others25, wherein this Court observed
thus:
“20. …. Reservations should and must be
adopted to advance the prospects of
weaker sections of society, but while doing
so care should be taken not to exclude the
legitimate expectations of the other
segments of the community.”
256. Some startling facts have been brought to our notice.
Though the Presidential List for the State of Andhra Pradesh has
a list of 60 Scheduled Castes, Justice Usha Mehra Commission
Report26 shows that out of these 60 Scheduled Castes, only 4 or
5 had availed the benefits of reservation, leaving the rest of the
Scheduled Castes in the Presidential List high and dry. The
25 (1990) 3 SCC 130.
26 Report of Justice Usha Mehra National Commission on Sub-Categorization of Scheduled
Castes in Andhra Pradesh (submitted to Ministry of Social Justice and Empowerment,
Government of India on 1st May 2008).
256
Report shows that the same has resulted in an anomaly that
none of the majority caste despite their inclusion in the
Presidential List for the State of Andhra Pradesh, have been able
to seek reservation benefits including entry into Government
service under the State except for the job of Sweepers and/or
Farash.
257. Insofar as the State of Punjab is concerned, it is sought to
be urged on behalf of the State of Punjab that though Balmikis
and Mazhabi Sikhs constitute 41.9% of the total population of
the Scheduled Castes, the percentage of these categories in
public employment is totally disproportionate to their population
among the Scheduled Castes. In any case, it is urged that what
is provided under the Act27 was only differential treatment insofar
as 50% of the vacancies reserved for Scheduled Castes is
concerned. Only if the candidates from these categories are
27Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in
Services) Act, 2006 (Punjab Act No. 22 of 2006).
257
available, the seats would go to these categories. On account of
non-availability of the candidates from these categories, the seats
would fall into the other categories of the Scheduled Castes.
258. I find that, as has been observed by this Court in various
judgments, it is the duty of the State to give preferential
treatment to the backward class of citizens who are not
adequately represented. If the State while discharging that duty
finds that certain categories within the Scheduled Castes and
Scheduled Tribes are not adequately represented and only the
people belonging to few of the categories are enjoying the entire
benefit reserved for Scheduled Castes and Scheduled Tribes, can
the State be denied its right to give more preferential treatment
for such categories? In my view, the answer would be in the
negative, since the same would not amount to tinkering with the
Presidential List.
259. No doubt that if the State decides to provide 100% of the
reservation for Scheduled Castes to one or more categories
258
enlisted in the Presidential List in that State to the exclusion of
some categories, it may amount to tinkering with that list
because, in effect, it would amount to denial of benefit of
reservation to those Scheduled Caste categories which have been
excluded. In my view, that would, in effect, amount to deletion
of the said categories from the Presidential List notified under
Article 341 of the Constitution, which power is exclusively
reserved with Parliament, in my opinion, such an exercise would
not be permissible.
260. In this respect, I may take support from the observations
made by Sawant, J. in Indra Sawhney. He held that if the
reservation is provided only for the more or most backward
classes, then the people belonging to higher echelons would grab
the open seats whereas the people from more or most backward
classes would eat up the entire reservation, leaving the other
backward classes high and dry. He therefore held that the sub-
classification of backward classes would be permissible provided
259
the reserved seats are available for backward classes as well as
more or most backward classes. I am therefore of the considered
view that merely because more preferential treatment is provided
to the more backward or more inadequately represented among
the Scheduled Castes, it would not amount to tinkering with the
Presidential List. In my view, the same would be permissible in
view of the law laid down by the 9-Judge Bench in the case of
Indra Sawhney.
261. The ground realities cannot be denied. Even among the
Scheduled Castes, there are some categories who have received
more inhuman treatment for centuries and generations as
compared to the other categories. The hardships and the
backwardness which these categories have suffered historically
would differ from category to category. In my view, therefore,
merely because they are part of a single or a combined
Presidential List, it cannot be said that they form part of a
260
homogeneous group. I therefore have no hesitation in holding
that E.V. Chinnaiah has been wrongly decided.
262. The concept of sub-classification was sought to be attacked
on the ground that this would lead to giving reservation for
political reasons. It was argued that a political party in power to
gain political advantage may provide special treatment to a
particular class in the list of Scheduled Castes. I see no merit in
the argument.
263. Dr. Ambedkar had foreseen such a difficulty. In his speech
in the Constituent Assembly, Dr. B.R. Ambedkar said that
‘backward community” will have to be left to be determined by
each local government. On a query by Shri T.T. Krishnamachari,
as to whether this rule will be justiciable, he observed that it
would be a justiciable matter. He stated that if the local
Government included in this category of reservations such a large
number of seats, one could very well go to the Federal Court and
the Supreme Court and say that the reservation is of such a
261
magnitude that the rule regarding equality of opportunity has
been destroyed and the court will then come to the conclusion
whether the local Government or the State Government has acted
in a reasonable and prudent manner.
264. Various judicial pronouncements referred to hereinabove
have emphasized that a reasonable classification is implicit in the
trinity of Articles 14 to 16. Therefore, if somebody approaches the
Court, the Court can always examine as to whether such a
classification is reasonable or not.
265. For a classification to be reasonable, it will have to be
established that any group or sub-group carved out in the larger
group is significantly different than the larger group and that the
classification has a nexus with the object to be achieved.
266. In a case, like the present one, if a classification is made, it
will have to be established that the group carved out from the
larger group is more disadvantageous and not adequately
represented. The result of classification would be to provide more
262
preferential treatment to this more disadvantageous and less
represented group. The ultimate object would be to achieve real
equality among all the sub-groups in the larger group.
267. In any case, as has been held by judicial pronouncements,
when the State does such an exercise, it will have to be supported
by an empirical data. Unless the State or the Commission comes
to a finding that the group carved out needs special treatment is
more disadvantageous and not adequately represented as
compared to the other categories in the group, such a sub-
classification would not stand the scrutiny of the law. I,
therefore, find that the fear that is posed is not substantiated.
268. I find that the attitude of the categories in the Presidential
List opposing such a sub-classification is that of a person in the
general compartment of the train. Firstly, the persons outside
the compartment struggled to get into the general compartment.
However, once they get inside it, they make every attempt
263
possible to prevent the persons outside such a compartment from
entering it.
269. In fact, what the people belonging to the categories who are
availing of large chunk of reservations and denying a special
treatment to the less privileged among them are doing, is what
the people from the higher castes have done to these people for
centuries as a result of which backward classes were kept away
from the mainstream of society for ages, for no fault of theirs.
Only on account of the principle of social and economic justice
as enshrined under the Constitution, they have availed
themselves of the benefits of special treatment. However, when
the State endeavours to ensure that the said benefit percolates
to the more underprivileged and less adequately represented, the
sections from the Scheduled Castes who oppose them, stand in
the shoes of those who oppressed them.
270. The categories in the Presidential List who have already
enjoyed a major chunk of reservations should not object to the
264
State providing a special treatment to those who have been
deprived of such a benefit and particularly when such a benefit
is not being taken away from them. Only part of that benefit is
being reserved for percolating the same to the more
disadvantageous and less represented.
271. I find that to achieve real equality as envisaged by this Court
in various judicial pronouncements, sub-classification amongst
the Scheduled Castes for giving more beneficial treatment is
wholly permissible under the Constitution.
VI. THE WAY FORWARD
272. That leaves us with the question regarding the applicability
of creamy layer principle to the Scheduled Castes and Scheduled
Tribes.
273. No doubt that in Indra Sawhney, Jeevan Reddy, J. while
considering the applicability of ‘means test’ and ‘creamy layer’
has observed that the discussion therein is confined only to Other
265
Backward Classes, and it has no relevance in the case of
Scheduled Castes and Scheduled Tribes.
274. In paragraph 792, Jeevan Reddy, J. observed thus:
“792. In our opinion, it is not a question
of permissibility or desirability of such test
but one of proper and more appropriate
identification of a class — a backward
class. The very concept of a class denotes
a number of persons having certain
common traits which distinguish them
from the others. In a backward class
under clause (4) of Article 16, if the
connecting link is the social
backwardness, it should broadly be the
same in a given class. If some of the
members are far too advanced socially
(which in the context, necessarily means
economically and, may also mean
educationally) the connecting thread
between them and the remaining class
snaps. They would be misfits in the class.
After excluding them alone, would the
class be a compact class. In fact, such
exclusion benefits the truly backward.
Difficulty, however, really lies in drawing
the line — how and where to draw the line?
For, while drawing the line, it should be
ensured that it does not result in taking
away with one hand what is given by the
other. The basis of exclusion should not
266
merely be economic, unless, of course, the
economic advancement is so high that it
necessarily means social advancement.
Let us illustrate the point. A member of
backward class, say a member of
carpenter caste, goes to Middle East and
works there as a carpenter. If you take his
annual income in rupees, it would be fairly
high from the Indian standard. Is he to be
excluded from the Backward Class? Are
his children in India to be deprived of the
benefit of Article 16(4)? Situation may,
however, be different, if he rises so high
economically as to become — say a factory
owner himself. In such a situation, his
social status also rises. He himself would
be in a position to provide employment to
others. In such a case, his income is
merely a measure of his social status.
Even otherwise there are several practical
difficulties too in imposing an income
ceiling. For example, annual income of Rs
36,000 may not count for much in a city
like Bombay, Delhi or Calcutta whereas it
may be a handsome income in rural India
anywhere. The line to be drawn must be a
realistic one. Another question would be,
should such a line be uniform for the
entire country or a given State or should it
differ from rural to urban areas and so on.
Further, income from agriculture may be
difficult to assess and, therefore, in the
case of agriculturists, the line may have to
be drawn with reference to the extent of
267
holding. While the income of a person can
be taken as a measure of his social
advancement, the limit to be prescribed
should not be such as to result in taking
away with one hand what is given with the
other. The income limit must be such as
to mean and signify social advancement.
At the same time, it must be recognised
that there are certain positions, the
occupants of which can be treated as
socially advanced without any further
enquiry. For example, if a member of a
designated backward class becomes a
member of IAS or IPS or any other All India
Service, his status is society (social status)
rises; he is no longer socially
disadvantaged. His children get full
opportunity to realise their potential. They
are in no way handicapped in the race of
life. His salary is also such that he is above
want. It is but logical that in such a
situation, his children are not given the
benefit of reservation. For by giving them
the benefit of reservation, other
disadvantaged members of that backward
class may be deprived of that benefit. It is
then argued for the respondents that ‘one
swallow doesn't make the summer’, and
that merely because a few members of a
caste or class become socially advanced,
the class/caste as such does not cease to
be backward. It is pointed out that clause
(4) of Article 16 aims at group
backwardness and not individual
268
backwardness. While we agree that clause
(4) aims at group backwardness, we feel
that exclusion of such socially advanced
members will make the ‘class’ a truly
backward class and would more
appropriately serve the purpose and object
of clause (4). (This discussion is confined
to Other Backward Classes only and has
no relevance in the case of Scheduled
Tribes and Scheduled Castes).”
275. It has been observed that the very concept of a class denotes
a number of persons having certain common traits which
distinguish them from the others. It is observed that if some of
the members are far too advanced socially (which in the context,
necessarily means economically and may also mean
educationally) the connecting thread between them and the
remaining class snaps. He observed that they would be misfits in
the class. It is further observed that after excluding them alone,
would the class be a compact class. It is observed that in fact,
such exclusion would benefit the truly backward.
269
276. His Lordship gave an example that, if a member of a
designated backward class becomes a member of IAS or IPS or
any other All India Service, his status in society rises; he is no
longer socially disadvantaged. His children would get full
opportunity to realize their potential. They are in no way
handicapped in the race of life. It is observed that it is logical that
in such a situation, his children are not given the benefit of
reservation. It is further observed that by giving them the benefit
of reservation, other disadvantaged members of that backward
class may be deprived of that benefit.
277. Rejecting the argument of ‘one swallow doesn't make the
summer’, i.e. merely because few members of a caste/class
become socially advanced the caste/class as such does not cease
to be backward, the Learned Judge answered that though clause
(4) of Article 16 aims at group backwardness, he was of the view
that exclusion of such socially advanced members will make the
270
‘class’ a truly backward class and would more appropriately serve
the purpose and object of clause (4) of Article 16.
278. As early as in 1981, in Akhil Bharatiya Soshit
Karamchari Sangh, Krishna Iyer, J., in paragraph 94, while
rejecting the argument that because a few harijans are better off,
therefore, the bulk at the bottom deserves no jack-up provisions,
had observed that the State may, when social conditions warrant,
justifiably restrict harijan benefits to the harijans among the
harijans and forbid the higher harijans from robbing the lowlier
brethren.
279. Again, in paragraph 98, he observed that the
Administration may well innovate and classify to weed out the
creamy layer of Scheduled Castes and Scheduled Tribes.
However, he cautioned that the Court cannot force the State in
that behalf.
280. Chinnappa Reddy, J. also records that a few members of
those castes or social groups may have progressed far enough
271
and forged ahead so as to compare favourably with the leading
forward class economically, socially and educationally. He
observed that in such cases, perhaps an upper income ceiling
would secure the benefit of reservation to such of those members
of the class who really deserve it.
281. In M. Nagaraj, the Court also applied the principle of
quantifiable data and creamy layer even in the case of Scheduled
Castes and Scheduled Tribes. The correctness of the same was
considered in Jarnail Singh.
282. Though Jarnail Singh held that insofar as applicability of
quantifiable data on backwardness insofar as Scheduled Castes
and Scheduled Tribes is concerned, M. Nagaraj was not correct,
however, insofar as the applicability of creamy layer principle
even to Scheduled Castes and Scheduled Tribes is concerned, it
upheld the view taken in M. Nagaraj. In doing so, Jarnail Singh
is basically relying on the judgment of 7-Judge Bench of this
272
Court in N.M. Thomas. The view taken in Jarnail Singh has
also been approved in Davinder Singh.
283. The correctness of the view taken in Jarnail Singh and
Davinder Singh is not questioned. However, since in the present
reference we are dealing with the question about equality among
the group of unequals, I find it appropriate to consider the said
issue also.
284. I have already referred hereinabove to the observations
made by Krishna Iyer, J. in N.M. Thomas and the observations
made by Chinnappa Reddy, J. in K.C. Vasanth Kumar regarding
applicability of creamy layer principle. It is worthwhile to note
that the 7-Judge Bench in N.M. Thomas was considering the
question about affirmative action in case of Scheduled Castes
and Scheduled Tribes.
285. In N.M. Thomas, Krishna Iyer, J., in more than one place,
had observed that the State is entitled to take steps for weeding
out the socially, economically and educationally advanced
273
sections of the Scheduled Castes and Scheduled Tribes from the
applicability of reservation.
286. Krishna Iyer, J. has again reiterated this position in
paragraphs 94 and 98 in Akhil Bharatiya Soshit Karamchari
Sangh.
287. When the 9-Judge Bench in Indra Sawhney held that
applicability of such a test insofar as Other Backward Classes
are concerned would advance equality as enshrined in the
Constitution, then why such a test should not also be made
applicable to the Scheduled Castes and Scheduled Tribes.
288. As observed hereinabove, there are stark ground realities,
and we cannot be ignorant of them. Nearly 75 years have elapsed
from the day on which the Constitution was brought into effect.
Special provisions have been made for the advancement of the
Scheduled Castes and Scheduled Tribes and backward class of
citizens. By judicial interpretation, the equality enshrined in the
trinity of Articles 14 to 16 of the Constitution has been
274
considered to be equal treatment among equals and unequal
treatment among unequals. The question that will have to be
posed is, whether equal treatment to unequals in the category of
Scheduled Castes would advance the constitutional objective of
equality or would thwart it? Can a child of IAS/IPS or Civil
Service Officers be equated with a child of a disadvantaged
member belonging to Scheduled Castes, studying in a Gram
Panchayat/Zilla Parishad school in a village?
289. The education facilities and the other facilities that would
be available to a child of a parent of the first category would be
much higher, maybe the facilities for additional coaching would
also be available; the atmosphere in the house will be far superior
and conducive for educational upliftment.
290. Per contra, the child of parent of the second category would
be having only the bare minimum education; the facilities of
coaching, etc., would be totally unavailable to him. He will be
275
living in the company of his parents who do not have education
and have not even been in a position to guide such a child.
291. As observed by Chinnappa Reddy, J., in K.C. Vasanth
Kumar, a child studying in the St. Paul's High School and St.
Stephen's College cannot be equated with a child studying in a
rural school. He observed that if a child of the first category
secures 90% marks and the child of the second category secures
50% of the marks, would treating both by the same standard
achieve real justice.
292. It is also commonly known that disparities and social
discrimination, which is highly prevalent in the rural areas, start
diminishing when one travels to the urban and metropolitan
areas. I have no hesitation to hold that putting a child studying
in St. Paul's High School and St. Stephen's College and a child
studying in a small village in the backward and remote area of
the country in the same bracket would obliviate the equality
principle enshrined in the Constitution.
276
293. I may note that some of the officers from the Scheduled
Castes and Scheduled Tribes categories, who after receiving the
benefit of reservation under the Constitution have reached high
positions, are doing their bit to pay back to society. They are
providing coaching and other facilities to the less advantaged so
that they can compete and come up in their life. However,
putting the children of the parents from the Scheduled Castes
and Scheduled Tribes who on account of benefit of reservation
have reached a high position and ceased to be socially,
economically and educationally backward and the children of
parents doing manual work in the villages in the same category
would defeat the constitutional mandate.
294. However, I may observe that taking into consideration that
the Constitution itself recognizes the Scheduled Castes and
Scheduled Tribes to be the most backward section of the society,
the parameters for exclusion from affirmative action of the person
belonging to this category may not be the same that is applicable
277
to the other classes. If a person from such a category, by bagging
the benefit of reservation achieved a position of a peon or maybe
a sweeper, he would continue to belong to a socially,
economically and educationally backward class. At the same
time, the people from this category, who after having availed the
benefits of reservation have reached the high echelons in life
cannot be considered to be socially, economically and
educationally backward so as to continue availing the benefit of
affirmative action. They have already reached a stage where on
their own accord they should walk out of the special provisions
and give way to the deserving and needy. I may gainfully refer to
the observations of Dr. B.R. Ambedkar as under:
“History shows that where ethics and
economics come in conflict, victory is
always with economics. Vested interests
have never been known to have willingly
divested themselves unless there was
sufficient force to compel them.”28
28 What Gandhi and Congress have done to Untouchables, Chap. VII.
278
295. I am therefore of the view that the State must evolve a policy
for identifying the creamy layer even from the Scheduled Castes
and Scheduled Tribes so as exclude them from the benefit of
affirmative action. In my view, only this and this alone can
achieve the real equality as enshrined under the Constitution.
VII. CONCLUSION
296. I, therefore, hold:
(i) that E.V. Chinnaiah, which held that sub-classification
amongst the Scheduled Castes for the purpose of giving
more beneficial treatment to a group in the larger group
of the Scheduled Castes is not permissible, does not lay
down a good law;
(ii) that sub-classification amongst the Scheduled Castes for
giving more beneficial treatment is permissible in law;
(iii) that for doing so, the State will have to justify that the
group for which more beneficial treatment is provided is
279
inadequately represented as compared to the other
castes in the said List;
(iv) that while doing so, the State will have to justify the same
on the basis of empirical data that a sub-class in whose
favour such more beneficial treatment is provided is not
adequately represented;
(v) that, however, while providing for sub-classification, the
State would not be entitled to reserve 100% seats
available for Scheduled Castes in favour of a sub-class to
the exclusion of other castes in the List;
(vi) that such a sub-classification would be permissible only
if there is a reservation for a sub-class as well as the
larger class;
(vii) that the finding of M. Nagaraj, Jarnail Singh and
Davinder Singh to the effect that creamy layer principle
is also applicable to Scheduled Castes and Scheduled
Tribes lays down the correct position of law;
280
(viii) that the criteria for exclusion of the creamy layer from
the Scheduled Castes and Scheduled Tribes for the
purpose of affirmative action could be different from the
criteria as applicable to the Other Backward Classes.
297. Before I part with the judgment, I place on record my deep
appreciation for the valuable assistance rendered by learned
counsel appearing for the parties.
……………………….J.
[B.R. GAVAI]
NEW DELHI;
AUGUST 01, 2024
281
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.2317 OF 2011ETC.ETC.
THE STATE OF
PUNJAB & ORS. …APPELLANT (S)
VERSUS
DAVINDER SINGH & ORS …RESPONDENT(S)
JUDGMENT
VIKRAM NATH, J.
1. I am generally in agreement with the reasons and conclusions arrived at in the opinions of Hon’ble the Chief Justice and Brother Justice Gavai in particular that the holding in E.V.Chinnaih, that sub-classification within Scheduled Castes was impermissible, does not lay down good law and stands over-ruled. Further, any exercise involving sub-classification by the State must be supported by empirical data.
2. I am also in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is CIVIL APPEAL NO.2317 OF 2011ETC.ETC.
also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.
……….…………J. (VIKRAM NATH) NEW DELHI AUGUST 01, 2024 CIVIL APPEAL NO.2317 OF 2011ETC.ETC.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2317 OF 2011 THE STATE OF PUNJAB AND OTHERS …APPELLANT(S) VERSUS DAVINDER SINGH AND OTHERS …RESPONDENT(S) WITH C.A. No. 5593/2010 SLP (C) No. 8701/2011 W.P. (C) No. 1477/2019 W.P.(C) No. 21/2023 W.P. (C) No. 562/2022 C.A. No. 5586/2010 C.A. No. 5597/2010 C.A. No. 5589/2010 C.A. No. 5600/2010 C.A. No. 5598/2010 C.A. No. 5587/2010 C.A. No. 5595-5596/2010 C.A. No. 2324/2011 C.A. No. 6936/2015 SLP (C) No. 30766/2010 SLP (C) No. 5454-5459/2011 C.A. No. 2318/2011 SLP (C) No. 36500-36501/2011 C.A. No. 289/2014 T.C. (C) No. 37/2011 T.C. (C) No. 38/2011 T.P. (C) No. 464/2015 1 JUDGMENT BELA M. TRIVEDI, J.
1. Though unanimity and consensus in the opinions expressed by the larger Benches on the Constitutional matters are desirable for the sake of certainty and strength of the law laid down, I for one, believe that the “dissent” for well-chosen reasons 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.
2. Justice William O. Douglas of the US Supreme Court1, a great dissenter who had written as many as 486 dissenting opinions, had stated:
“The right to dissent is the only thing that makes life tolerable for a Judge of an Appellate Court…………. It is the right of dissent, not the right or duty to conform, which gives dignity, worth, and individuality to man”.
3. Justice Oliver Wendell Holmes, another great dissenter, in his first dissent in the Supreme Court in Northern Securities Company Vs. The United States (1903)2 had stated:
“I am unable to agree with the judgment of the majority of the Court, and although I think it useless and undesirable, as a rule, 1 Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law P.283 2 193 U.S. 197 (1903) 2 to express dissent, I feel bound to do so in this case and to give my reasons for it………”
4. With somewhat similar feelings, and with due respect, I beg to differ from the erudite expression of opinions expressed by the Learned Chief Justice and my esteemed Brothers Justice B.R. Gavai and Justice Pankaj Mithal, and pen down my own opinion with reasons for my dissent.
5. For the sake of brevity and avoid repetition, the facts and the submissions made by the learned advocates for the parties as narrated in the opinion expressed by the learned Chief Justice, are not reiterated. At the outset, it may be noted that neither the Referral Order made in the State of Punjab and Others vs. Davinder Singh and Others,3 contains a formulation of precise questions nor the Order dated 12.10.2023 made in the Reference case sets out specific questions for consideration by this Bench. Hence, having regard to the opinions expressed in Davinder Singh and in E.V. Chinnaiah vs. State of Andhra Pradesh and Others4, and having regard to the submissions - oral and written - made by the learned advocates for the parties, following substantial questions of law are formulated for consideration. 3 (2020) 8 SCC 65 4 (2005) 1 SCC 394 3 (I) Whether the law laid down by the Five-Judge Bench in E.V. Chinnaiah could have been doubted and referred to the larger Bench by the Bench of three judges, without recording any cogent reasons for their disagreement with the said decision in E.V. Chinnaiah, more particularly when the said decision held the field for a long period of fifteen years?
(II) Whether the States should be permitted to tinker with or vary the Presidential List specifying the “Scheduled Castes” as notified under Clause (1) of Article 341, by sub-classifying or sub-dividing or re-grouping the castes conglomerated in the said list, under the guise of providing reservation for the weaker of the weakest, and thereby commit the breach of the mandate contained in Clause (2) of Article 341?
(III) Whether the decision in E.V. Chinnaiah is required to be revisited in view of certain observations made by the Nine-Judge Bench in Indra Sawhney Vs. Union of India and Others5 concerning the Other Backward Class?
5 (1992) Suppl. 3 SCC 217 4
6. Before embarking on the issues involved, let us go through the trajectory of the Reference made by the Five-Judge Bench in the State of Punjab and Others vs. Davinder Singh and Others6 to this Bench. TRAJECTORY OF THE REFERENCE TO SEVEN JUDGES
7. The State of Andhra Pradesh passed an enactment, namely the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 on 02.05.2000 dividing 57 castes enumerated in the Presidential List prepared under Article 341(1) of the Constitution, into 4 groups based on inter-state backwardness, and fixed separate quotas in reservation for each of these groups. The validity of the said Act of 2000 came to be challenged in the Writ Petitions filed in the High Court of Andhra Pradesh at Hyderabad. The said Writ Petitions came to be dismissed by a Five-Judge Bench by a majority of 4:1. The High Court having certified the case as being fit for appeal to the Supreme Court, the Appeals were filed before this Court. The same having been referred to the Constitution Bench of Five-Judges. The Constitution Bench after considering the various issues allowed the said Appeals being Civil Appeal No.6758/2000 and Others (E.V. Chinnaiah vs. State of Andhra 6 (2020) 8 SCC 65 5 Pradesh and Others)* declaring the impugned Act as ultra vires the Constitution. The Constitution Bench while considering the said Reference, had framed following three questions: -
(i) Whether the impugned Act is violative of Article 341(2) of the Constitution of India?
(ii) Whether the impugned enactment is constitutionally invalid for lack of legislative competence?
(iii) Whether the impugned enactment creates sub-classification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?
8. Justice Santosh Hegde (for himself and Justice S.N. Variava and Justice B.P. Singh), and Justice S.B. Sinha and Justice H.K. Sema concurring but by separate judgments, allowed the said Appeals by answering the above questions as under: -
(i) From the scheme of the Constitution, Article 341 and from the opinions in case of State of Kerala & Anr. vs. N.M. Thomas & Ors.7, it was clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the * (2005) 1 SCC 394 7 (1976) 2 SCC 310 6 Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.
(Paragraph 26)
(ii) It is well settled principle in law that reservation to a backward class is not a constitutional mandate. It is the prerogative of the State concerned if it so desires, with an object of providing opportunity of advancement in the society to certain backward classes which include Scheduled Castes, to reserve certain seats in educational institutions under Article 15(4) and in public services of the State under Article 16(4). That part of its constitutional obligation having been fulfilled by the State, it was not open to the State to sub- classify a class already recognized by the Constitution and allot a portion of the already reserved quota amongst the State created sub-class within the list of Scheduled Castes. (Paragraph 31)
(iii) The primary object of the impugned enactment was to create groups of sub-castes in the list of Scheduled Castes applicable to the State and, apportionment of the reservation was only secondary and consequential. Whatever may be the object of such sub-classification and apportionment of the reservation, the State cannot claim legislative power to make a law dividing the 7 Scheduled Castes List of the State by pressing its legislative competence to Entry 41 of List II or Entry 25 of List III. In pith and substance, the enactment was not a law governing the field of education or the field of State Public Services. (Paragraph 31)
(iv) The conglomeration of castes given in the Presidential Order, should be considered as representing a class as a whole. The very fact that a legal fiction has been created is itself suggestive of the fact that the legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub-classified further. If a class within a class of members of the Scheduled Caste is created, the same would amount to tinkering with the list. Such sub-classification would be violative of Article 14 of the Constitution. If the benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others, but the same could not mean that in the process of rationalising the reservation to the Scheduled Castes, 8 the constitutional mandate of Articles 14, 15 and 16 could be violated. (Paragraph 41)
(v) The Court therefore opined that the impugned legislation apart from being beyond the legislative competence of the State was also violative of Article 14 of the Constitution and hence was liable to be declared as ultra-vires the Constitution. The impugned Act therefore was declared as ultra-vires the Constitution. (Paragraph
44)
9. Justice H.K. Sema in his concurring opinion had observed in Paragraph 48 thereof* that in Indra Sawhney vs. Union of India and Others*, the discussion of creamy layer was confined to Other Backward Classes only, and had no relevance in the case of Scheduled Castes and Scheduled Tribes. Justice S.B. Sinha also in his concurring opinion referred to certain observations made in Indra Sawhney and observed in Paragraph 38 that the principle laid down in Indra Sawhney for sub- classification of Other Backward Classes cannot be applied as a precedent law for sub-classification or subgrouping Scheduled Castes in the Presidential List, because that very judgment itself has specifically * (1992) Supp. 3 SCC 217 9 held that sub-division of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. The Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments. In Paragraph 93 thereof *, it has been held that “Scheduled Castes”, is not a caste in terms of its definition as contained in Article 366 (24) of the Constitution. They are brought within the purview of the said category by reason of their abysmal backwardness. Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of groups within the castes, races, or tribes. They are not merely backward but the backward most. A person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion. It was further observed that the two groups that is socially and educationally backward classes and Scheduled Castes were differentiated for the purpose of Clause (4) of Article 15 of the Constitution as therein Scheduled Castes had been recognized, in the nature of things, to be backward but it is also recognized that besides * (2005) 1 SCC 394 10 them, there may be other groups of persons who are backward and deserve preferential treatment.
10. Again, after referring to the observations made in Indra Sawhney regarding the “means-test and creamy layer test,” it was observed by Justice Sinha in Paragraph 96 thereof that whenever such a situation arises in respect of Scheduled Castes, it will be Parliament alone to take the necessary legislative steps in terms of Clause (2) of Article 341 of the Constitution, and the States do not have the legislative competence therefor.
11. The aforesaid judgment in E.V. Chinnaiah* held the field for about 15 years till the Three-Judge Bench of this Court in State of Punjab and Others vs. Davinder Singh and Others* referred the matter to a larger Bench for consideration, opining that the judgment of Five-Judge Bench in E.V. Chinnaiah was required to be revisited in the light of Article 338 of the Constitution of India and exposition of law in Indra Sawhney. The Three-Judge Bench passed the following Order on 20th August, 2014.* * (2005) 1 SCC 394 * (2020) 8 SCC 65 11 “ORDER
1. The learned counsel for the respondents heavily relies upon the Constitution Bench decision of this Court in E.V. Chinnaiah v. State of A.P. [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] On the other hand, the learned Additional Solicitor General for the appellants, submits that E.V. Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] has no application on the controversy in hand. Moreover, he submits that E.V. Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :
(2008) 2 SCC (L&S) 329] is not in accord with the 9-Judge Bench decision of this Court in Indra Sawhney v. Union of India [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] .
2. Having heard the learned Additional Solicitor General and the learned counsel for the parties, we are of the view that E.V Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :
(2008) 2 SCC (L&S) 329] needs to be revisited in the light of Article 338 of the Constitution of India and, inter alia, exposition of law in Indra Sawhey [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] . Moreover, the matter also involves interpretation and interplay between Article 16(1), Article 16(4), Article 338 and Article 341 of the Constitution of India as well.
3. In this view of the matter, we refer the matter for consideration of the above aspects by the larger Bench. Let the matter be placed before the Chief Justice on administrative side for appropriate order.”
12. In the said case of Davinder Singh and Others, the Writ Petitions were filed in the High Court of Punjab and Haryana at Chandigarh for declaring Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006, which required 50% of the 12 vacancies of the quota reserved for Scheduled Castes in direct recruitment, to be offered to Valmikis and Mazhbi Sikhs, if available as a first preference from amongst the Scheduled Castes, as unconstitutional. The Division Bench of the High Court placing reliance on the decision in E.V. Chinnaiah, vide the judgment dated 29.03.2010 in CWP No. 18290 of 2009, declared the said provision contained in Section 4(5) of the Act 2006 as unconstitutional. The said Judgment came up for consideration before the Three-Judge Bench of this Court. On the Reference made by the Three-Judge Bench to the larger Bench, the Five-Judge Bench of this Court in the State of Punjab and Others vs. Davinder Singh and Others* framed the following issues.
(i) Whether the provisions contained under Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services Act, 2006) are constitutionally valid?
(ii) Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act.
(iii) Whether the decision in E.V. Chinnaiah vs. State of Andhra Pradesh and Others is required to be revisited. * (2020) 8 SCC 1 13
13. The Five-Judge Bench however, after extensively referring various paragraphs of the decision in Indra Sawhney opined that E.V. Chinnaiah is required to be revisited by a larger bench. It was observed by the Five-Judge Bench therein* that: -
“44. The question arises whether sub-classification for providing benefit to all castes can be said to be tinkering with the list under Articles 341, 342 and 342-A, in view of the decisions in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , permitting sub-classifications of backward classes and in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , in which, it was opined that “creamy layer concept” for exclusion of benefit can be applied to the Scheduled Castes and Scheduled Tribes and it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution. The caste or group or sub-group continued exactly as before in the List. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. The million dollar question is how to trickle down the benefit to the bottom rung; reports indicate that benefit is being usurped by those castes (class) who have come up and adequately represented. It is clear that caste, occupation, and poverty are interwoven. The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures.
45. 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. In Chebrolu Leela Prasad Rao v. State of A.P. [Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401 : 2020 SCC OnLine SC 383] , the necessity of revising lists was * (2020) 8 SCC 1 14 pointed out relying on Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and Union of India v. Rakesh Kumar [Union of India v. Rakesh Kumar, (2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961] .
46. There is cry, and caste struggle within the reserved class as benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation. The scavenger class given the name of Balmikis remains more or less where it was, and so on, disparity within Scheduled Caste is writ large from various reports. The sub-classification was made under Section 4(5) of the Punjab Act to ensure that the benefit of the reservation percolate down to the deprived section and do not remain on paper and to provide benefit to all and give them equal treatment, whether it is violative of Article 14? In our opinion, it would be permissible on rationale basis to make such sub-classification to provide benefit to all to bring equality, and it would not amount to exclusion from the list as no class (caste) is deprived of reservation in totality. 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.
47…………………………………… 48……………………………………
49. Providing a percentage of the reservation within permissible limit is within the powers of the State Legislatures. It cannot be deprived of its concomitant power to make reasonable classification within the particular classes of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes without depriving others in the list. To achieve the real purpose of reservation, within constitutional dynamics, needy can always be given benefit; otherwise, it would mean that 15 inequality is being perpetuated within the class if preferential classification is not made ensuring benefit to all.
50. The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolved the very concept of reservation. Whether the sub- classification would be a further extension of the principle of the said dynamics is the question to be considered authoritatively by the Court.
51. The Scheduled Castes as per Presidential List are not frozen for all the time, and neither they are a homogeneous group as evident from the vast anthropological and statistical data collected by various Commissions. The State law of preferential treatment to a limited extent, does not amend the List. It adopts the List as it is. The State law intends to provide reservation for all Scheduled Castes in a pragmatic manner based on statistical data. It distributes the benefits of reservations based on the needs of each Scheduled Caste.
52. The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the List based on the rationale that would conform with the very spirit of Articles 14, 15 and 16 of the Constitution providing reservation. The State Government cannot tamper with the List; it can neither include nor exclude any caste in the List or make enquiry whether any synonym exists as held in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] .
57. The interpretation of Articles 14, 15, 16, 338, 341, 342 and 342-A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court 16 cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.
58. We endorse the opinion of a Bench of 3 Judges that E.V. Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :
(2008) 2 SCC (L&S) 329] is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place. We cannot revisit E.V. Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] being Bench of coordinate strength. We request the Hon'ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate.”
14. In view of the above, the matters have been placed before us for consideration whether the E.V. Chinnaiah requires revisitation or not.
In other words, for consideration as to whether the law laid down by E.V. Chinnaiah is the correct law in the light of certain observations made in Indra Sawhney.
RELEVANT CONSTITUTIONAL PROVISIONS
15. In order to appreciate the rival contentions raised in the instant Reference, it would be beneficial to reproduce the relevant provisions of the Constitution for ready reference.
“Article 14. Equality before law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
17 Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. — 1 to 3….
(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.] (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.] Article 16. Equality of opportunity in matters of public employment. — 1 to 3 ….
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Article 162. Extent of executive power of State. — Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, 18 the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Article 166. Conduct of business of the Government of a State. -
(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Advocate-
General for the State. Conduct of business of the Government of a State.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. Article 246. Subject-matter of laws made by Parliament and by the Legislatures of States. — (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). (3) Subject to clauses (1) and (2), the Legislature of any State 1*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2 [in a State] 19 notwithstanding that such matter is a matter enumerated in the State List.
Article 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts. —The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters or promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.
Article 341. Scheduled Castes. — (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor 4 thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Article 342. Scheduled Tribes. — (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be 20 deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Article 342A. Socially and educationally backward classes. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify 6 [the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government] be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.] (3) Notwithstanding any contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.
Article 366. Definitions. —In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say— (24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution;
(25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as 21 are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;
(26) .…..
**** (26A) ……..
(26B) ……..
(26C) "socially and educationally backward classes" means such backward classes as are so deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be;” ANALYSIS (I) WHETHER THE LAW LAID DOWN BY THE FIVE-JUDGE BENCH IN E.V. CHINNAIAH VS. STATE OF ANDHRA PRADESH AND OTHERS* COULD HAVE BEEN REFERRED TO THE LARGER BENCH BY THE BENCH OF THREE JUDGES, WITHOUT RECORDING ANY COGENT REASONS FOR DISAGREEMENT WITH THE SAID DECISION OF FIVE-JUDGE BENCH IN E.V. CHINNAIAH MORE PARTICULARLY WHEN THE SAID DECISION HELD THE FIELD FOR A LONG PERIOD OF FIFTEEN YEARS?
16. It may be noted that the Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000 has already been declared unconstitutional by the Five-Judge Bench in E.V. Chinnaiah as back as in 2005. Similarly, Section 4(5) of the Punjab Scheduled Caste and * (2005) 1 SCC 394 22 Backward Classes (Reservation in Services Act, 2006) has also been declared unconstitutional by the Division Bench of the High Court of Punjab and Haryana vide the judgment dated 29.03.2010 in respect of which the present reference is made. Hence, both these Acts as on the date have been declared as unconstitutional. It is further required to be noted that E.V. Chinnaiah decided in 2005 was holding the field for about 15 years till the Five-Judge Bench in Davinder Singh, on the reference made by the Three-Judge Bench, further referred the matters to the Seven-Judge Bench in 2020.
17. It is noteworthy that the Three-Judge Bench had referred the matters to the larger Bench without assigning any reason much less cogent reason as to why it could not agree with the decision in E.V. Chinnaiah delivered by the Constitution Bench. The law which was settled by the Constitution Bench and was prevalent since 15 years was sought to be doubted and unsettled by a Three-Judge Bench by passing a very cryptic and perfunctory order not supported by any reason, as quoted hereinabove.
18. A Five-Judge Bench in Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others8, while examining the propriety 8 2002 (1) SCC 1 23 of the Bench of two Judges doubting the correctness of a decision of a Bench of three Judges and directly referring the matter to the Bench of five Judges, had observed that judicial discipline and propriety demands that a Bench of two learned judges should follow a decision of a Bench of three learned judges, but if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances, can it be followed, the proper course for it to adopt would be to refer the matter before it to a Bench of three learned Judges setting out, the reasons why it could not agree with the earlier judgment.
19. The importance of the doctrine of binding Precedents in the administration of our judicial system hardly needs to be reiterated. The doctrines of Precedents and Stare decisis are the core values of our legal system. In series of cases, the Constitution Benches of this Court have time and again emphasized that when a decision is rendered by this Court, it acquires a reliance interest and the society organizes itself based on such legal order. When substantial judicial time and resources are spent on the References by the Constitution Benches, the same should not be further referred to the larger Bench by a smaller Bench, in a casual or cavalier manner, and without recording the reasons for disagreement.
24
20. As back as in 1974 a Seven-Judge Bench in Maganlal ChhaganLal (P) Ltd. vs. Municipal Corporation of Greater Bombay & Others9, H.R. Khanna, J. had remarked that certainty in the law, which was an essential ingredient of the Rule of Law, would be considerably eroded if the highest Court of the land lightly overruled the view expressed by it in earlier cases. One instance where such overruling could be permissible, according to him, was a situation where contextual values giving birth to the earlier view had subsequently altered substantially.
21. In Lt. Col. Khajoor Singh Vs. Union of India & Another10 a Seven- Judge Bench emphasized that the Court should not depart from an interpretation given in an earlier judgment of the Court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong.
22. A more compendious examination of the issue was considered by another Seven-Judge Bench in Keshav Mills Co. Ltd. vs. Commissioner of Income Tax, Bombay North, Ahmedabad 11 wherein it was observed that frequent exercise by this Court of its power to review its earlier decisions on the ground that the view placed before 9 (1974) 2 SCC 402 10 AIR 1961 SC 532 11 AIR 1965 SC 1636 25 it later appeared to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. It was further stated that before a previous decision is pronounced plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.
23. In a more recent decision in case of Dr. Shah Faesal and Others vs. Union of India and Another12 a Five-Judge Bench reiterated the doctrines of Precedents and Stare decisis, and observed as under: -
“17. This Court's jurisprudence has shown that usually the courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. As the Chief Justice of the Supreme Court of the United States, John Roberts observed during his Senate confirmation hearing, “It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness”. [Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (7-6- 2010).] “18. Doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system.
12 (2020) 4 SCC 1 26 Arguably, Judges owe a duty to the concept of certainty of law, therefore they often justify their holdings by relying upon the established tenets of law.” “19. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well-established principle, that a reference will be made to a larger Bench. In this context, a five-Judge Bench of this Court in Chandra Prakash v. State of U.P. [(2002) 4 SCC 234: 2002 SCC (Cri) 496: 2002 SCC (L&S) 496], after considering series of earlier rulings reiterated that: (SCC p. 245, para 22) “22. … The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.”
24. The above exposition of law makes it clear that the doctrines of binding Precedents and Stare decisis, as also the judicial discipline and propriety, developed over the years, warrant that the decision of larger Bench should be followed by the smaller Bench. If the smaller bench had any doubt or disagreement with a decision of the larger bench, it could refer the same for reconsideration to the larger bench, however, after setting out the reasons and justification as to why it could not agree 27 or follow the decision of earlier larger Bench. Such disagreement also has to be based on some justifiable reasons, like where the earlier decision of larger Bench is found to be manifestly wrong or where the contextual values giving birth to the earlier view had altered substantially etc. A casual exercise of power to refer the matter to the larger Bench without recording any reason or on the ground that the view placed before it later seems to be more reasonable, may incidentally tend to make law uncertain and introduce confusion, which must be avoided.
25. In the instant case, the reference was made by Three-Judge Bench to the larger Bench for revisitation of the earlier decision of Constitution Bench in E.V. Chinnaiah, without assigning any reason and in a very casual and cavalier manner, and that too after fifteen years of its attaining finality. Such reference could not and should not have been countenanced by the subsequent Five-Judge Bench for reference to the Seven-Judge Bench. When a law was settled by the previous Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney, and after investing substantial judicial time and resources, and when the same had held the field for a substantially long period of fifteen years, in my opinion, the very 28 reference by the Three-Judge Bench to the larger bench for reconsideration of the decision in E.V. Chinnaiah, that too without assigning any reason was inappropriate and not in consonance with the well settled doctrines of Precedents and Stare decisis. Having said that, let us proceed further with the other issues involved in the Reference. (II) WHETHER THE STATES SHOULD BE PERMITTED TO TINKER WITH OR VARY THE PRESIDENTIAL LIST SPECIFYING THE “SCHEDULED CASTES,” AS NOTIFIED UNDER CLAUSE (1) OF ARTICLE 341 BY SUB-CLASSIFYING OR SUB-DIVIDING OR RE- GROUPING THE CASTES CONGLOMERATED IN THE SAID LIST UNDER THE GUISE OF PROVIDING RESERVATION FOR THE WEAKER OF THE WEAKEST, AND THEREBY TO COMMIT BREACH OF THE MANDATE CONTAINED IN CLAUSE (2) OF ARTICLE 341?
26. The collateral issues which stem from the above question may be delineated as under: -
(a) Law on Constitution Interpretation.
(b) Object, Purpose and limits of Article 341.
(c) Etymology and Special Status of “Scheduled Castes” notified in the Presidential List.
29
(d) State’s competence to sub-classify or sub-divide or re-group the Castes specified as “Scheduled Castes” in the Presidential List for providing reservation under Article 15 and 16.
(a) Constitutional Interpretation
27. Before examining the correctness of the law laid down by Five Judge Bench in E.V. Chinnaiah in the context of exposition of law in Indra Sawhney and in the light of the constitutional provisions more particularly Article 14, 15, 16 and 341 of the Constitution of India, let us have glance over the cardinal principles of interpretation of the Constitution laid down by this Court over the years in catena of decisions.
28. It cannot be gainsaid that the Constitution is construed to be a living and organic document, as it is intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. It is required to be construed broadly and liberally however, in the words of Benjamin Cardozo, “a Judge is not a Knight errant roaming at will in pursuit of his own ideal of beauty and goodness. Judge is not to innovate at pleasure.”13 13 Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University Press, 13th Edition 1946) 141 30
29. As consistently held by this Court, it may be desirable to give a broad and generous construction to the Constitutional Provisions, but while doing so, the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind.
30. In GVK Industries Limited and Another vs. Income Tax Officer and Another14, a Five-Judge Bench on the interpretation of Constitution observed as under: -
“37. In interpreting any law, including the Constitution, the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. However, in light of the serious issues it would always be prudent, as a matter of constitutional necessity, to widen the search for the true meaning, purport and ambit of the provision under consideration. No provision, and indeed no word or expression, of the Constitution exists in isolation—they are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution.
38. Our Constitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within that constitutional matrix could one hope to be able to discern its true meaning, purport and ambit. As Prof. Laurence Tribe points out:
“To understand the Constitution as a legal text, it is essential to recognize the … sort of text it is:
a constitutive text that purports, in the name of the people…, to bring into being a number of distinct but inter-related institutions and practices, at once legal and political, and to define the rules governing those institutions and practices.” (See Reflections on Free-
14 (2011) 4 SCC 36 31 Form Method in Constitutional Interpretation. [108 Harv L Rev 1221, 1235 (1995)])”
39. It has been repeatedly appreciated by this Court that our Constitution is one of the most carefully drafted ones, where every situation conceivable, within the vast experience, expertise and knowledge of our framers, was considered, deliberated upon, and appropriate features and text chosen to enable the organs of the State in discharging their roles. While indeed dynamic interpretation is necessary, if the meaning necessary to fit the changed circumstances could be found in the text itself, we would always be better served by treading a path as close as possible to the text, by gathering the plain ordinary meaning, and by sweeping our vision and comprehension across the entire document to see whether that meaning is validated by the constitutional values and scheme.”
31. Following GVK Industries Limited, another Five-Judge Bench in Dr. JaiShri LaxmanRao Patil vs. Chief Minister and Others15 observed as under: -
“113. In examining provisions of the Constitution, courts should adopt the primary rule, and give effect to the plain meaning of the expressions; this rule can be departed, only when there are ambiguities. In Kuldip Nayar v. Union of India [(2006) 7 SCC 1] after quoting from G. Narayanaswami v. G. Pannerselvam [(1972) 3 SCC 717] this Court held that: (Kuldip Nayar case SCC p. 88, para 201) “201. … We endorse and reiterate the view taken in the above quoted paragraph of the judgment. It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact the rule of “literal 15 (2021) 8 SCC 1 32 construction” is the safe rule unless the language used is contradictory, ambiguous, or leads really to absurd results.””
32. Thus, it is quite well settled that in interpreting any law, including the Constitution, the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. Sometimes as a matter of constitutional necessity, it may be prudent to widen the search for the true meaning, purport, and ambit of the provision under consideration, however, one has to bear in mind that no provision, no word or expression in the Constitution exists in isolation. They are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution. Even if a dynamic interpretation is necessary and the meaning necessary to fit the changed circumstances is found in the text itself, it would be always better to tread a path as close as possible to the text, by gathering the plain ordinary meaning, to see whether that meaning is validated by the constitutional values and the scheme. While giving a broad and generous construction to the constitutional provisions, the rule of “plain meaning,” or “literal” interpretation, which remains “the primary rule” has to be kept in mind.
33
(b) The Object, Purpose and Limits of Article 341: -
33. Since the whole matter hinges on the interpretation of Article 341 of the Constitution of India, let us see the Object and Purpose of its insertion in the Constitution.
34. Article 341 states that the President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races and tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. Clause (2) of the said Article 341 states that Parliament may by law include in or exclude from the list of Scheduled Castes specified in the notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause which shall not be varied by any subsequent notification. Similar provision is made for Scheduled Tribes in Article
342. Article 342 (A) pertaining to the socially and educationally backward classes is slightly differently worded, which was inserted by the Constitution (102nd Amendment) Act, 2018 w.e.f 14.08.2018. 34
35. As transpiring from the extracts of the Constituent Assembly Debates placed on record, there was no Article similar to Article 341 as found in the present Constitution. Noticing the need for creating a list of Scheduled Castes and Scheduled Tribes, some amendments in the draft Constitution were moved by Dr. Ambedkar, Chairman of the Drafting Committee of the Constitution. The relevant part of the proceedings of the Constituent Assembly debate on September 17, 1949 is reproduced hereunder: -
“The Honourable Dr. B. R. Ambedkar: Sir, I move:
“That with reference to amendment No. 147 of List IV (Eighth Week), for sub-clause (w) of clause (1) of article 303, the following sub-clause be substituted: — (w) Schedule Castes’ means such castes, races or tribes or parts or groups within such castes, races or tribes as are deemed under article 300A of this Constitution to be Scheduled Castes for the purposes of this Constitution.
The only change is, the word ‘specified’ has been changed to ‘deemed’. Sir, I move: “That with reference to amendment No. 148 of List IV (Eighth Week), for sub-clause (x) of clause (1) of article 303, the following sub-clause be substituted: —
(x) scheduled tribes’ means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 300B of this Constitution to be scheduled tribes for the purposes of this Constitution;' I am incorporating the other amendment which has also been tabled. Shall we take up, the two other articles also at the same time?
Mr. President: Yes.
New articles 300A and 300B. [COI Articles 341 and 342] The Honourable Dr. B. R. Ambedkar: Sir, I move:
“That after article 300, the following articles be inserted: — 300A. Scheduled Castes. — (1) The President may, after consultation 35 with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to that State.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
300B. Schedule Tribes. — (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State.
(2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within any Tribe or Tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this : that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of 36 political factors having a play in the matter of the disturbance in the Schedule so published by the President.
Mr. President: 218A.
Shri T. T. Krishnamachari: In reading it he has included that. Mr. President: 224.
Pandit Thakur Das Bhargava: Sir, I move:
“That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300A the following be added at the end: — ‘for a period of ten years from the commencement of this Constitution.’” I also move:
“That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300B the following be added at the end: — ‘for a period of ten years from the commencement of this Constitution.’” I agree with the principle that for ten years to come no variation of the notification originally made by the President should be possible. Because now that special privileges of reservation, etc., have been given to the Scheduled Castes, I do not like the idea that the Executive, President or Governor or any other person may be able to tamper with that right, but after a period of ten years, when this privilege will no longer be available to the Scheduled Castes, there will be no difference between the Scheduled Castes and other backward classes which will be declared under article 301 of the Constitution. At that time there will be no meaning in taking away this power from the President in consultation with the Governor. Therefore, my humble submission is that the proposed amendment be accepted to make the point absolutely clear and free from ambiguity. Unless we add these words for a period of ten years from the commencement of this Constitution, you will be taking away the power of the President to include or exclude proper classes from the purview of the notification which will be issued under 300A and B. After the first ten years the privileges which will be open to these classes are probably under article 10 and under articles 296 and 299. I do not know of any other privileges which have been specifically given to these Scheduled Castes. Whereas I am, very insistent and conscious that these provisions should not be tampered with, I do like that these castes may not become 37 stereotyped and may not lose the capacity of travelling out of the schedule when the right occasion demands it. I, therefore, submit that if you put these words you will be making the whole thing elastic and the President will have the power of including or excluding after the lapse of ten years such tribes or castes within the notification.
Mr. President: Mr. Chaliha—you have two amendments. Once is 205 and the other is 225. I do not know if 205 arises now. Shri Kuladhar Chaliha (Assam: General): Mr. President, I move; “That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300B after the words ‘Parliament may’ the words ‘and subject to its decision the State Legislature’ be inserted.” I have always been fighting that the Governor should have power to safeguard the rights of the Tribes. I am glad in some measure this has been conceded. Yet I find certain amount of suspicion in that the State Legislature is neglected. The Drafting Committee has not allowed the State Legislature to have a voice. In order to fill up that lacuna I have said that Parliament may and subject to its decision the State Legislature.
Shri. T. T. Krishnamachari: Then what is left to the State Legislature?
Shri Kuladhar Chaliha: Somehow or other I feel you have neglected it. In these you have covered a good deal which you had objected to in the past. The Governor has been given power I am glad to say. The only thing is provincial assemblies have no voice in this. Whatever Parliament says they are bound by it; but if there is anything which consistently with the orders of the Parliament they can do anything, they should be allowed to have the power. That is why I have moved this. However I am thankful this time that the Drafting Committee has assimilated good ideas and only provincial assemblies have been neglected. However, the Governor is there—that is an improvement—Parliament, is there and the President is there. Therefore, I thank the Drafting Committee for this.
Mr. President: Mr. Sidhva.
The Honourable Dr. B. R. Ambedkar: It is already covered. Shri Brajeshwar Prasad (Bihar: General). There are some amendments seeking to add some more clauses.
38 Mr. President: ‘That is a separate matter. These were all the amendments.
Shri V. I. Muniswami Pillai: Mr. President, I come to support the amendments that have been moved by the Honourable Dr. Ambedkar. These amendments deal with the definition of Scheduled Castes. As far as I can see he has made it clear that according to the second part of it, the President on the 26th January 1950 will publish a list of such communities that come under the category of Scheduled Castes. But I would like to inform this House of the background which brought out the special name of Scheduled Castes. It was the intouchability, the social evil that has been practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu society. Going backwards to 1916 it was in that year when Government found that something had to be done for the untouchable classes, (when they said untouchable classes, they were always understood to be Hindus,) and they had to be recognised. In Madras there were six communities that came under this classification. During the Montago Chelmsford reforms they were made ten. In 1930 when the great epoch-making fast of Mahatma Gandhi came about, then only the country saw who were the real untouchable classes. And in the 1935 Act, the Government thoroughly examined the whole thing and as far as the Province of Madras is concerned they brought 86 communities into this list or category, though there were some touchable classes also. Now, after further examination the Provincial Governments have drawn up a list and I think according to the amendment mover's suggestions, all those communities that come under the category of untouchables and those who profess Hinduism will be the Scheduled Castes, because I want to emphasise about the religion. I emphasise this because of late there have been some movements here and there; there are people who have left Scheduled Castes and Hinduism and joined other religions and they also are claiming to be scheduled Castes. Such convert cannot come under the scope of this definition. While I have no objection to Government granting any concessions to these converts, I feel strongly that they should not be clubbed along with Scheduled Castes.
39 Sir, I am grateful to the Drafting Committee and also to the Chairman of that Committee for making the second portion of it very clear, that in future, after the declaration by the President as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. I feel grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs; and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed. I strongly oppose the amendment moved by Pandit Bhargava. The reason is that he wants to have the ten years period for observing these amendments. But he has entirely forgotten that under another article that we have already passed, or will pass the Constitution provides for the appointment of a Special officer at the Centre and also various officers in all the Provinces to go into the various disabilities of these communities and to submit a report to the President who will then be able to know whether the Scheduled Castes have reached a stage when the facilities now given to them could be withdrawn. I do not think that the reasons that he has advanced are fair and square for the uplift of the Harijans.
With these few words, I support the amendment. Mr. President: Does anyone else wish to speak? Do you wish to say anything Dr. Ambedkar?
The Honourable Dr. B. R. Ambedkar: I do not accept the amendment of Pandit Thakur Das Bhargava.
Mr. President: Then I put the amendments. The first is the one with reference to amendment 147.
The question is: “That with reference to amendment No. 147 of List IV (Eighth Week), for sub-clause (w) of clause (1) of article 303, the following sub-clause be substituted: — ‘(w) ‘Scheduled Castes’ means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 300A of this Constitution to be Scheduled 40 Castes for the purposes of this Constitution; The amendment was adopted”.
36. It is seen from the above Debate that ultimately the original draft Article- 300A was approved by the Constituent Assembly, and was re- numbered as Article 341 in the present Constitution. From the bare reading of the Article 341 it is clearly discernible that power of the President is limited to specify the castes or the tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory as the case may be. Once the notification is issued under Clause (1) of Article 341, it is only the Parliament which can by law, include in or exclude from the list of Scheduled Castes specified in the notification, any caste, race or tribe or part of or group within any caste, race or tribe, and the notification issued under Clause (1) could not be varied by any subsequent notification. As transpiring from the Constituent Assembly Debates quoted hereinabove, the object of inserting Article 341 was to eliminate the necessity of burdening the Constitution with long list of Scheduled Castes and Scheduled Tribes. It was proposed that the President, in consultation with the Governor or Ruler of a State should have power to issue a general notification in the Gazette specifying all 41 the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation put was that once a notification has been issued by the President, any elimination from or any addition in the list must be made by the Parliament and not by the President. In the words of Dr. Ambedkar, “the object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”
37. A Five-Judge Bench in B. Basavalingappa vs. D. Munichinnappa & others16 had held that the object of the provision contained in Article 341 was to avoid all disputes as to whether a particular caste is a Scheduled Caste or not, and only those castes can be Scheduled Castes which are notified in the Order made by the President under Article 341 after consultation with the Governor where it relates to such caste in a State. It further held that Clause (2) provides that the Parliament may by law include in or exclude from the list of the Scheduled Castes specified in the notification issued under Clause (1), any caste, race or tribe or part of or group within any caste, race or tribe. 16 AIR (1965) SC 1269 42 The power was thus given to Parliament to modify the notification made by the President under Clause (1). A notification issued under Clause (1) could not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by Clause (2).
38. The said law has also been reiterated by the Five-Judge Bench in case of Bhaiya Lal Vs. Harikishan Singh17 A similar view has been also taken by another Five-Judge Bench in case of State of Maharashtra vs. Milind and Others18, by holding that:
“11. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words “castes” or “tribes” in the expression “Scheduled Castes” and “Scheduled Tribes” are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342 for the 17 AIR (1965) SC 1557 18 (2001) 1 SCC 4 43 purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently, some orders were issued under the said articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by amendment Acts passed by Parliament.
12. Plain language and clear terms of these articles show (1) the President under clause (1) of the said articles may with respect to any State or Union Territory and where it is a State, after consultation with the Governor, by public notification specify the castes, races or tribes or parts of or groups within the castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes/Scheduled Tribes in relation to that State or Union Territory as the case may be; (2) under clause (2) of the said articles, a notification issued under clause (1) cannot be varied by any subsequent notification except by law made by Parliament. In other words, Parliament alone is competent by law to include in or exclude a caste/tribe from the list of Scheduled Castes and Scheduled Tribes specified in notifications issued under clause (1) of the said articles. In including castes and tribes in Presidential Orders, the President is authorised to limit the notification to parts or groups within the caste or tribe depending on the educational and social backwardness. It is permissible that only parts or groups within them be specified and further to specify castes or tribes thereof in relation to parts of the State and not to the entire State on being satisfied that it was necessary to do so having regard to social and educational backwardness. The States had opportunity to present their views through Governors when consulted by the President in relation to castes or tribes, parts or groups within them either in relation to the entire State or parts of State. It appears that the object of clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be 44 determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by leading evidence that the caste/Tribe (A) alone is mentioned in the Order but caste/Tribe (B) is also a part of caste/Tribe (A) and as such caste/Tribe (B) should be deemed to be a Scheduled Caste/Scheduled Tribe as the case may be. It is only Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful”.
39. In Bir Singh Vs. Delhi Jal Board and Others19, a Five-Judge Bench after referring to the relevant clauses of the Constitution (Scheduled Castes) Order 1950, and the Constitution (Scheduled Tribes) Order 1950, observed as under:
19 (2018) 10 SCC 312 45 “36. The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India.
37…………………………………………………….
38. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Articles 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4)would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential Orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would 46 require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.”
40. From the afore stated legal position, there is no room for doubt that the Presidential List as notified under Article 341 assumes finality on the publication of the notification, and that the castes, races or tribes or parts of or groups within castes, races or tribes specified in the notification are, for the purposes of the Constitution, deemed to be the “Scheduled Castes” in relation to that State or Union Territory as the case may be. It is only the Parliament by law which can include in or exclude from the list of 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.
(c) Etymology and Special Status of “Scheduled Castes”
41. Since the arguments have been advanced before us, on the issue whether the Scheduled Castes specified in the Presidential List under 47 Clause (1) of Article 341 should be treated as a homogenous group or heterogenous group, let us peep into the etymology of the nomenclatures “Scheduled Castes” and “Scheduled Tribes”. Briefly stated, the practice of untouchability or caste-based discrimination was rampant particularly amongst Hindus in India during British era. Shri V.I. Muniswamy Pillai, in his speech (quoted hereinbefore) had informed the members of the Constituent Assembly about the background which brought out the special name of “Scheduled Castes”, and stated that it was untouchability, the social evil that was being practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu Society. Such class of people were being discriminated on the basis of their castes and occupations they were engaged in, like Sweepers, Scavengers, Chamars, Mochis, etc. They were known as “depressed classes.” The term “depressed classes” however was not synonymous with “backward classes.” From the study material placed before us, it appears that the Census Commissioner J.H. Hutton who conducted Census in 1931 had explained that the “depressed castes” were those castes, ‘the contact with whom entailed purification on the part of high caste Hindus’. These 48 were the communities which suffered social disabilities such as being denied access to temples, use separate wells, and not being allowed to sit inside a school house etc. The term ‘depressed classes’ was being used only for low caste Hindus who suffered from the stigma of untouchability. The word “class” in “depressed class” was in fact referred to for “caste.” Eventually, the Government of India Act 1935 referred to the “depressed classes” as “Scheduled Castes”. The 1935 Act made it clear that “Scheduled castes” were none other than those who were previously known as “depressed classes”. Clause 26 of Schedule I appended to the said Act 1935 mentioned as under:
“26(I) …………….the ‘scheduled castes’ means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes or parts or groups which appear to be His Majesty in Council to correspondence to the classes of persons formerly known as ‘depressed classes’, as His Majesty in Council may specify”.
42. The identification of the different castes for inclusion as Scheduled Castes in the said Schedule was based on an elaborate exercise conducted for each of the provinces as could be seen from the Schedule consisting of nine parts, to the 1935 Act. Thereafter, a gazette notification was published on 06.06.1936 promulgating the Government of India (Scheduled Castes) Order 1936 notifying the list of castes that 49 were to be considered as “the Scheduled Castes” across the territory of India. The post constitutional exercise by the Constitution (Scheduled Castes) Order 1950 and Constitution (Scheduled Tribes), Order 1950, as originally enacted under Articles 341 and 342 of the Constitution was basically an exercise in recasting the Schedule to the 1935 Act. The relevant clauses of the said two Presidential Orders were in the following terms:
“Clause 2 of the Constitution (Scheduled Castes) Order, 1950
2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.
Clause 2 of the Constitution (Scheduled Tribes) Order, 1950
2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule”.
43. The subsequent amendments to the aforesaid two Orders, from time to time were made to bring the position in tune with the amendments to the First Schedule to the Constitution made at different points of time by 50 creation of new States and alterations in the area and boundaries of existing States.
44. As discussed earlier, the Presidential Orders made under Article 341(1) or Article 342(1) enumerating the lists of castes/races, tribes recognized as “Scheduled Castes/Scheduled Tribes” cannot be altered or varied by any State or any authority including the Court. It is Parliament alone which has been vested with the powers to so act, that too, by law made, as well settled by catena of decisions discussed hereinabove.
45. The very language employed in Article 341 that “the castes, races or tribes or parts of or groups within castes, races or tribes, shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be”, mandates that each caste, each race, each tribe or each part of or group within the castes, races or tribes shall by the deeming fiction be the “Scheduled Castes” for the purposes of the Constitution, irrespective of the parameters by which such caste/ race or tribe is recognised as “Scheduled Caste” in relation to that State. Though the members of “Scheduled Castes” are drawn from different castes, races and tribes, they attain special status by virtue of Presidential Notification under Article 341. Thus, the etymological and evolutionary history and 51 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. The necessary corollary would be that all the members of all the castes, races and tribes enumerated in the Presidential List are deemed to be “Scheduled Castes” for the purposes of the Constitution and they all would be entitled to all the benefits granted or reserved for the “Scheduled Castes”.
46. A very pertinent observations in this regard have been made by a Seven-Judge Bench in State of Kerala and Another vs. N.M. Thomas and Other20 which deserve to be reproduced. The issues involved in the said case inter alia were whether Article 16(1) permits preferences to Scheduled Castes, Scheduled Tribes and weaker sections on the basis of reasonable classification, or whether Article 16(4) is an exception to Articles 16(1) and 16(2). The majority of five Judges in their separate but concurring opinions opined as under: -
Per A.N. Ray, J.
“40. The Constitution makes a classification of Scheduled Castes and scheduled tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them. Article 46 contains a directive principle of State policy — fundamental in the governance of the country enjoining the State 20 (1976) 2 SCC 310 52 to promote with special care educational and economic interests of the Scheduled Castes and scheduled tribes and to protect them from any social injustice and exploitation. Article 335 enjoins that the claims of the members of the Scheduled Castes and scheduled tribes to the services and posts in the Union and the States shall be taken into consideration. Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and scheduled tribes to investigate all matters relating to the safeguards provided for them under the Constitution. Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories. Article 342 contains provision for similar notification in respect of scheduled tribes. Article 366(24) and (25) defines Scheduled Castes and scheduled tribes. The classification by the impugned rule and the orders is with a view to securing adequate representation to Scheduled Castes and scheduled tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services.
41. to 42……………………………….
43. Scheduled Castes and scheduled tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh [AIR 1965 SC 1557 : (1965) 2 SCR 877] this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a scheduled caste and his declaration that he belonged to the Chamar caste which was a scheduled caste could not be premitted because of the provisions contained in Article 341. No court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
Per Methew, J.
82. The word “caste” in Article 16(2) does not include “scheduled caste”. The definition of “Scheduled Castes” in Article 366(24) means 53 “such castes, races or tribes or parts of or groups within such castes, races, or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution.” This shows that it is by virtue of the notification of the President that the Scheduled Castes come into being. Though the members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of the Presidential notification. Moreover, though the members of tribe might be included in Scheduled Castes, tribe as such is not mentioned in Article 16(2).” Per Krishna Iyer, J.
“135. We may clear the clog of Article 16(2) as it stems from a confusion about caste in the terminology of scheduled castes and scheduled tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential concept that they (sic there) are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backwardmost social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-article. The discerning sense of the Indian Corpus Juris has generally regarded scheduled castes and scheduled tribes, not as caste but as a large backward group deserving of societal compassion.”
47. The above observations made in N.M. Thomas leaves no room of doubt that “Scheduled Castes” are not a caste within the ordinary meaning of caste. It is by virtue of the notification of the President under Article 341 54 that the “Scheduled Castes” come into being. Though, the members of the Scheduled Castes are drawn from different castes, races or tribes, they attain a new Special Status by virtue of the Presidential notification. A bare reading of Article 341 brings out the quintessential concept that “Scheduled Castes” is an amalgam of castes, races, groups, tribes, communities or parts thereof, and is a homogenous group, and that once notified by Presidential List, they acquire Special Status of “Scheduled Castes” which cannot be varied except by the Parliament by law.
(d) State’s Competence to sub-classify or sub-divide or re-group the Castes specified as “Scheduled Castes” in the Presidential List for providing the reservation under Article 15 and 16: -
48. It may be noted that the terminology “Backward Class” has not been defined or described anywhere in the Constitution, however the said terminology finds place in the various provisions in the Constitution. Part XVI of the Constitution deals with special provisions relating to certain classes, i.e. for Scheduled Castes, Scheduled Tribes, Anglo-Indian Community, Backward Class, Socially and Educationally Backward Class etc. Articles 330 and 332 provide for the reservation of seats for the Scheduled Castes and Scheduled Tribes in the House of the People 55 and in the Legislative Assemblies of the States. Article 335 states that the claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union and of a State. Article 338, 338(A) and 338(B) provides for the constitution of the National Commissions for the Scheduled Castes, Scheduled Tribes and for Backward Classes respectively. As per the definition of “Scheduled Castes” contained in Article 366(24), “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Similar definitions are contained in Article 366(25) for the “Scheduled Tribes” and in Article 366(26C) for the “socially and educationally backward classes”.
49. Article 15(4) enables the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The newly added Clause (5) in Article 15 (w.e.f. 20.01.2006) enables the State, by law to make special provisions for the advancement of any socially and 56 educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes, so far as such provisions relate to their admission to educational institutions. Article 16(4) enables the State to make provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State. Subsequently inserted Clause (4A) in Article 16 (w.e.f. 17.6.1995) enables the State to make provision for reservation in the matters of promotions in the posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. Article 16(6) inserted by the Constitution (One Hundred and Third Amendment) Act, 2019 enables the State to make provision for the reservation in favour of any economically weaker sections of citizens other than the classes mentioned in Clause 4 i.e. backward class of citizens. Article 46 states that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 57
50. Thus, the terms “Scheduled Castes” and “Scheduled Tribes” are used in Article 15(4) along with the “socially and educationally backward classes of citizens”, used in Article 16(4A) exclusively and used in Article 46 along with “weaker sections of people”. However, the term “backward class” is used in Article 16(4) only. Further, Article 340 empowers the President to appoint a Commission to investigate the conditions of Socially and Educationally Backward Classes within the territory of India and to make recommendations as to the steps that should be taken by the Union or any State to remove the difficulties of the members of such class. As discussed in detail earlier, Article 341 empowers the President to issue notification specifying the Scheduled Castes in relation to the States and Union Territory. Similar provision is found in Article 342 for the Scheduled Tribes. Article 342A inserted by the Constitution (One Hundred and Second Amendment Act, 2018) with effect from 14th August, 2018, empowers the President to specify the Socially and Educationally Backward Classes in the Central List which are deemed to be Socially and Educationally Backward Classes in relation to that State or Union Territory as the case may be. By virtue of the Constitution (One Hundred and Fifth) Amendment Act, 2021, an explanation to Clause (2) and new Clause (3) have been added to 58 Article 342(A). The difference between the Article 341, 342 and 342A is that, whereas the notifications issued under Article 341 and 342 cannot be varied except by the Parliament by law, the newly added Clause (3) of Article 342A permits the State or Union Territory by law, to prepare and maintain for its own purposes a list of Socially and Educationally Backward Classes entries which may be different from the Central List.
51. 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. 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. It cannot be gainsaid that as per Article 162, the executive power of a State would extend to the matters with respect to which the Legislature of the State has power to make laws. The Proviso to the said Article states that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. The source of legislative power of the State is found in Article 246, by virtue of which 59 the Legislature of any State has power to make laws with respect to any matters enumerated in List III of the Seventh Schedule along with the Parliament, and has exclusive power to make laws with respect to any of the matters enumerated in List II of the said Schedule.
52. As held in Bharat Coking Coal Ltd. vs. State of Bihar and Others21 “19……………….. …. Article 162 prescribes the extent of executive power of the State, it lays down that the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. Thus, the executive power of the State Government is co-extensive with the legislative power of the State legislature. If the State legislature has power to enact laws on a matter enumerated in the State List or in the Concurrent List the State has executive power to deal with those matters subject to other provisions of the Constitution……………………. Moreover, the proviso to Article 162 itself contains limitation on the exercise of the executive power of the State. It lays down that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of State shall be subject to limitation of the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authority thereof. The limitation as contained in the proviso to Article 162 was necessary to avoid conflict in the exercise of executive power of State and the Union Government in respect of matters enumerated in List III of the Seventh Schedule. ..……………………….”
53. Though the executive power of the State Government is co-extensive with the legislative power of the State Legislature, none of the entries, either in List II or List III of the Seventh Schedule confers any legislative 21 (1990) 4 SCC 557 60 power upon the State to rationalize the reservations, by sub-classifying or sub-dividing the castes enumerated in the Presidential List prepared under Article 341(1), as was sought to be done by the State of Andhra Pradesh by passing Andhra Pradesh Scheduled Castes (Rationalization of Reservations), Act 2000, nor does it confer any power to provide or reserve the quota for a particular caste or castes from amongst the “Scheduled Castes” enumerated in the Presidential List prepared under Article 341(1) of the Constitution, as was sought to be done by the State of Punjab and Haryana by passing the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. In 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”.
54. Though sub-classification or sub division 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 61 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. Any such action on the part of the State would not only tantamount to discrimination in reverse and violation of Article 14 but would also tantamount to tinkering with Article 341 of the Constitution.
55. As per the settled legal position, every word or expression used in the Constitution has a purpose, and all the provisions of the Constitution have to be read in harmony so that the meaning of such word or expression is validated by the Constitutional values and the scheme. A person belonging to any of the castes, races or tribes enumerated in the Presidential List acquiring special status as the member of the “Scheduled Caste” in relation to a particular State, would be entitled to all the rights including the fundamental rights enshrined under the Constitution, and therefore would also be entitled to be treated equally 62 from amongst the other members of the “Scheduled Castes” enumerated in such Presidential List, in that particular State. If any State makes special provision of reservation by fixing quota for the entire “Scheduled Castes” for admission to educational institutions or for the appointments on the posts in the public services as permitted under Article 15 and 16, such quota of reservation should be made available to all the members of the “Scheduled Castes” specified in the Presidential List, as all the members of the castes, races and tribes specified in such List are deemed to be “Scheduled Castes” for the purposes of the Constitution, and the State has no power to further sub- classify or sub-divide the “Scheduled Castes” for giving preferential treatment to a particular caste from the said list of “Scheduled Castes”. As stated earlier, the very object of Article 341 is to give new special status to the “Scheduled Castes” for the purposes of the Constitution and to keep the political interference of the States outside the purview of the said provisions. Therefore, under the guise of providing reservation for the weaker of the weakest castes, the State could not be permitted to make any variation in the notification nor could it be permitted to indirectly tinker with such notification published under Article 341(1).
63
56. Article 15(4) is an enabling provision which enables the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes, and Clause (5) thereof enables the State to make special provisions for them in respect of the admission to educational institutions. Similarly, Article 16(4) enables the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. These provisions under Article 15 and 16 are merely enabling provisions, and could not be treated as the source of power to legislate the law for sub- dividing or reclassifying/ sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes”, which have acquired special status by virtue of Article 341 of the Constitution.
57. 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 64 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. As well-settled, the whole doctrine of “colourable exercise” is based on the maxim - “you cannot do indirectly what you cannot do directly.”* Any action of the State 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.
(III) WHETHER E.V. CHINNAIAH IS REQUIRED TO BE REVISITED IN VIEW OF CERTAIN OBSERVATIONS MADE IN INDRA SAWHNEY CONCERNING “OTHER BACKWARD CLASSES”?
58. Much reliance has been placed by the Five-Judge Bench in Davinder Singh for making reference to this Bench, on the decision of Indra Sawhney for opining that the view taken in E.V. Chinnaiah was not in consonance with Indra Sawhney however, in my opinion, Indra Sawhney had not dealt with the issue of sub-classification of the * K.C. Gajapati Narayan Deo vs. State of Orissa, (1953) 2 SCC 178 65 “Scheduled Castes” much less had dealt with the State’s power to sub- classify or sub-divide or re-group the Castes specified as “Scheduled Castes” under Article 341 of the Constitution.
59. So far as Indra Sawhney is concerned, the factual matrix was that the Government of India under Article 340 of the Constitution had constituted the “Second Backward Classes Commission” on January 1, 1979 under the Chairmanship of Shri B. P. Mandal (known as the Mandal Commission). The terms of the reference of the said Commission were inter alia to determine the criteria for defining the socially and educationally backward classes, to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified, and to examine the desirability or otherwise of making provision for reservation of appointments or posts in favour of such backward classes of citizens which were not adequately represented in the public services and posts in connection with the affairs of the Union or of any State. The Government of India itself on the recommendations of the Mandal Commission issued an office memorandum on August 13, 1990 purporting to extend reservations for socially and educationally backward classes in its services w.e.f. August 7, 1990. The said O.M reserved 27% of the seats 66 for SEBC in addition to those already reserved for the Scheduled Castes and Scheduled Tribes. The issuance of the said O.M led to widespread protest and filing of writ petitions in the Supreme Court questioning the said Memorandum. The Five-Judge Bench of this Court by its order dated October 1, 1990 stayed the operation of the said O.M. dated 13th August, 1990, however, the process of identification of castes for locating the SEBCs was permitted to continue. Thereafter, as a consequence of the change in the Government at the Centre, another O.M on September 25th, 1991 modifying the earlier O.M. of August 13, 1990 was issued, by introducing the economic criteria in the grant of reservation by giving preference to the poorer sections of the SEBC’s in the 27% quota and reserving another 10% of the vacancies in the civil services for other economically backward sections not covered by any of the existing schemes of reservation, which was explained to extend to the poorest amongst the higher caste and other religions also. The constitutionality of the said O.M dated September 25, 1991 was challenged before this Court and the Nine-Judge Bench was constituted to hear the matters. The matter was heard by the Nine-Judge Bench and by a 6:3 decision, the constitutionality, validity and enforceability of the impugned O.M dated 13.08.1990 subject to certain conditionalities 67 and prerequisites was upheld, whereas paragraph 2(ii) of the second O.M. dated September 25, 1991 providing 10% additional reservation for the economically backward was held unconstitutional and struck down. Six separate judgments were delivered. The leading judgment was by B. P. Jeevan Reddy, J, (for M.H. Kania, C.J., and M.N. Venkatchaliah, A.M. Ahmadi and himself) with S. Ratnavel Pandian and P.B Sawant, J.J concurring by their separate judgments.
60. Several questions were posed before the Nine-Judge Bench in Indra Sawhney which have been broadly indicated and discussed in the leading judgment of Jeevan Reddy, J along with the miscellaneous questions discussed therein. The questions particularly germane to the Scheduled Castes/Scheduled Tribes were the Question-3(a), Question- 3(e) and Question-10. The Question-3(a) was, “what does the expression “backward class of citizens” in Article 16(4) mean?” The Question-3(e) was, “whether the class, to be designated as a backward class, should be situated similarly to the Scheduled Castes/Scheduled Tribes?” The Question-10 was, “whether the distinction made in the second memorandum between poorer sections of the backward classes and others was permissible under Article 16?” 68
61. Justice Jeevan Reddy in his leading judgment while answering question 3(b) with regard to identification of “backward class of citizens” observed in Paragraph 781 as under: -
“781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.”
62. Justice Jeevan Reddy further discussed the issue with regard to the “means test” and “creamy layer test” qua question no. 3 (d) and made a special note in paragraph 792 at page 725 that: -
“This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes.”
63. While summarising the issues involved in Question no. 3, Justice Jeevan Reddy held in Para 796 and 797 as under: -
“796.-797. We may now summarise our discussion under Question No. 3. (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectivities for the purposes of Article 16(4). (b) Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks 69 convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does — what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes.
(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (d) ‘Creamy layer’ can be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens”. The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).”
64. Pandian, J. in his concurring opinion observed in Paragraph 39 that the words “backward class of citizens”, occurring in Article 16(4) are neither defined nor explained in the Constitution though the same words occurring in Article 15(4) are followed by a qualifying phrase, “socially 70 and educationally”. In paragraph-126, he observed that it is not necessary for a class to be designated as backward class that it should be situated similarly to the Scheduled Castes and Scheduled Tribes.
65. Justice P.B. Sawant in his concurring judgment observed as under in paragraph 417: -
“417. Under Article 16(4), the reservation in the State employment is to be provided for a “class of people” which must be “backward” and “in the opinion of the State” is “not adequately represented” in the services of the State. Under Article 46, the State is required to “promote with special care” the “educational and economic interests” of the “weaker sections” of the people and “in particular”, of the Scheduled Castes and Scheduled Tribes, and “to protect” them from “social injustice” and “all forms of exploitation”. Since in the present case, we are not concerned with the reservations in favour of the SCs/STs, it is not necessary to refer to Article 335 except to point out that, it is in terms provided there that the claims of SCs/STs in the services are to be taken into consideration, consistently with the maintenance of efficiency of administration. It must, therefore, mean that the claims of other backward class of citizens and weaker sections must also be considered consistently with the maintenance of the efficiency. For, whomsoever, therefore, reservation is made, the efficiency of administration is not to be sacrificed, whatever the efficiency may mean. That is the mandate of the Constitution itself.”
66. After taking into consideration, the principles laid down in Indra Sawhney, Justice Hegde in E.V. Chinnaiah rightly observed in paragraph 38 as under: -
“38. On behalf of the respondents, it was pointed out that in Indra Sawhney case [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] the Court had permitted subclassification 71 of Other Backward Communities, as backward and more backward based on their comparative underdevelopment, therefore, the similar classification amongst the class enumerated in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sawhney case [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.”
67. Justice H.K. Sema, J. concurring with Justice Hegde in E.V. Chinnaiah observed in Paragraph 48 as under: -
“48. In Indra Sawhney v. Union of India [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] this Court observed at SCC p. 725 that the discussion of creamy layer is confined to Other Backward Classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes.”
68. Justice S.B. Sinha also in his concurring opinion observed in paragraph 76 and 92 as under: -
“76. Having regard to the decision of this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] backward class citizens can be classified in four different categories — (i) more backward, (ii) backward, (iii) Scheduled Caste, and (iv) Scheduled Tribe. A contention has been raised that in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] the Court permitted a classification amongst Other Backward Classes and as such there is no reason as to why the said 72 principle shall not be applied to the members of the Scheduled Castes. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] itself this Court categorically stated that it was not concerned with the question as regards members of Scheduled Castes and Scheduled Tribes. (SCC para 792 at p. 725) It is relevant to note that Question 5 formulated by Jeevan Reddy, J. was only in relation to the further division in the backward classes into backward and more backward categories. Advisedly, no question was framed as regards division of Scheduled Castes into more backward and backward Scheduled Castes.
92. The impugned Act as also the judgment of the High Court are premised on the observations in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] that there is no constitutional or legal bar for a State in categorising the backward classes as backward and more backward class. This Court, however, while referring to Article 16(4) of the Constitution stated that it recognised only one class viz. backward class of citizens in the following terms: (SCC p. 716, para 781) “781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.”
69. In Ashok Kumar Thakur vs. Union of India and Others22, another Five-Bench judgment, after considering earlier judgments on the issue whether the “creamy layer” principle is applicable to the Scheduled Castes and Scheduled Tribes, held that the said Principle cannot be 22 (2008) 6 SCC 1 73 applied to Scheduled Castes and Scheduled Tribes as they are separate classes by themselves. To be precise, it held as under: -
“184. So far, this Court has not applied the “creamy layer” principle to the general principle of equality for the purpose of reservation. The “creamy layer” so far has been applied only to identify the backward class, as it required certain parameters to determine the backward classes. “Creamy layer” principle is one of the parameters to identify backward classes. Therefore, principally, the “creamy layer” principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. Ray, C.J., in an earlier decision, stated that “Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste”. And they are so identified by virtue of the notification issued by the President of India under Articles 341 and 342 of the Constitution. The President may, after consultation with the Governor, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the Constitution shall be deemed to be Scheduled Castes or Scheduled Tribes. Once the notification is issued, they are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is applicable. In E.V. Chinnaiah [(2005) 1 SCC 394] concurring with the majority judgment, S.B. Sinha, J. said : (SCC p. 403) “The Scheduled Castes and Scheduled Tribes occupy a special place in our Constitution. The President of India is the sole repository of the power to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive. The object of Articles 341 and 342 is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and education backwardness wherefrom they suffer. Any legislation which would bring them out of the purview thereof or tinker with the order issued by the President of India would be unconstitutional. (Paras 52, 111 and 84) (emphasis supplied) 74
186. Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as “creamy layer” is not applied as one of the principles of equality, it cannot be applied to the Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of “creamy layer” are not applicable for Scheduled Castes and Scheduled Tribes.”
70. In view of the above, I am of the opinion that though Indra Sawhney 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.
71. In so far as Article 15(4) and 15(5) are concerned, the use of the word “any” before the words “socially and educationally backward classes” 75 and the use of the word “the” before “Scheduled Castes/ Scheduled Tribes” clearly indicate that the said provisions pertain to the “Other Backward Classes” which are socially and educationally backward, and that the said provisions also pertain to the “Scheduled Castes” and “Scheduled Tribes”, however the “Scheduled Castes” do not require any further identification once they are notified under Article 341. As rightly held in Ashok Kumar Thakur*, the “creamy layer” principle is one of the parameters to identify backward classes. The “Scheduled Castes” having already been specified in the Presidential List under Article 341, the said creamy layer principle cannot be applied to the “Scheduled Castes” for their identification as backward class. In my opinion, the Five-Judge Bench has thoroughly misread and misinterpreted Indra Sawhney, to opine that Indra Sawhney permitted sub-classification of backward classes including the Scheduled Castes/Scheduled Tribes, rather they were categorically kept outside the purview of consideration by the Nine-Judge Bench in Indra Sawhney.
72. The reliance placed on Jarnail Singh is also thoroughly erroneous. In Jarnail Singh, the Five-Judge Bench was called upon to examine the * (2008) 6 SCC 1 76 correctness of the law laid down in Nagaraj. In para-17 of Jarnail Singh, the Bench observed that: -
“The judgment in Chinnaiah has been referred by the three Judge Bench to a larger bench by an Order dated 20th August, 2014. This is because, according to the three Judge Bench, Chinnaiah is contrary to Article 338 of the Constitution of India and Indra Sawhney. Since the correctness of Chinnaiah does not arise before us, we need not say more about this reference which will be decided on its own merits.”
73. After noting above, the Five-Judge Bench in Jarnail Singh did not agree with the view taken by the Five-Judge Bench in Ashok Kumar* that the creamy layer principle is merely a principle of identification and not a principle of equality. The Bench in Jarnail Singh agreed with that part of decision in M. Nagaraj and Others vs. Union of India and Others* which held that the creamy layer test is applicable to the Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test, however, it did not agree with Nagaraj, when Nagaraj required the States to collect quantifiable data on backwardness, in so far as Scheduled Castes and Scheduled Tribes are concerned. The Bench in Jarnail Singh held that “it would clearly be contrary to Indra Sawhney, which had held that the requirement of * (2008) 6 SCC 1 * (2006) 8 SCC 212 77 social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who inevitably fall within the expression “Backward Class of Citizens” and therefore the decision the judgment in Nagaraj would have to be declared to be bad on this ground.” In my opinion, such observations in Jarnail Singh are self-contradictory. In any case, the Bench had no occasion to deal with nor had dealt with the issue whether sub-classification of “Scheduled Castes” notified in the Presidential List under Article 341 was permissible to be made by the States.
74. It is very common that the Constitutional Benches in their judgments deal with many complex facts and legal issues. Not all that has been said in the body of judgment would become a precedent or binding for other Courts. The judgments of the Constitution Benches have to be read in the context of questions which arose for consideration before them. Certain observations made in the judgment may be necessary for deciding the issues involved, but every observation made on law in the course of delivering the judgment may not have a binding effect as a precedent. Any observation or remark made or opinion expressed incidentally or collaterally, and not directly upon the question posed before the Court would be an ‘obiter dicta’ and not a ‘precedent’. A 78 decision is an authority for what it decides and not what can logically be deduced therefrom, as held in State of Haryana vs. Ranbir alias Rana23. It was also observed in ADM Jabalpur vs. Shivakant Shukla24 that the statements which are not part of ratio decidendi constitute obiter dicta and are not authoritative.
75. In none of the cases – Indra Sawhney or Jarnail Singh, the issue of sub-classification of “Scheduled Castes” in the context of Article 341 was raised or argued, nor was decided by the concerned Benches, as was raised and decided in E.V. Chinnaiah. Hence, it would be a fallacy to hold that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh.
76. Since I have held that the State has neither executive nor legislative power to sub-classify or sub-divide or re-group the castes, races or tribes specified as the “Scheduled Castes” in the Presidential List notified under Article 341, the other questions pertaining to the criteria or yardstick for sub-classification, or requirement for collecting quantifiable data etc. by the State for sub-classification, are not required to be addressed.
23 (2006) 5 SCC 167 24 (1976) 8 SCC 521 79 AFFIRMATIVE ACTION AND CONSTITUTIONAL FRAMEWORK
77. 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.* As held by the Constitution Bench in the landmark judgment in case of Supreme Court Bar Association vs. Union of India and Another25.
“47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the 25 (1998) 4 SCC 409 80 parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.”
78. 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 removal of inequalities or remedy to remove inequalities cannot be permitted at the cost of violation of the specific provision of the Constitution. When the wordings of the provision of the statutes, in the instant case of Article 341 of the Constitution are clear, as also the 81 intention of the draftsmen of the Constitution, the Court cannot add or subtract words from such provision to give it a meaning which the Court feels would achieve the goal of social transformation. Sometimes the affirmative action and the Constitution intersect with each other in complex ways, as the affirmative action policies are framed by the States to promote diversity and to address historical inequalities, while the legal frameworks have to ensure that these policies are implemented within the bounds of the Constitution. The implementation of the affirmative action policies must align with the Constitutional and legal principles, particularly those related to equality and non- discrimination. 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.
79. The upshot of the above discussion may be summarised as under: -
(i) When the law was settled by the Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in Davinder Singh, and that too without assigning any reason much less cogent reason 82 for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis.
(ii) While giving a broad and generous construction to the Constitutional provisions, the rule of “plain meaning”, or “literal” interpretation, which is the “primary rule” has to be kept in mind.
(iii) The Presidential List specifying “Scheduled Castes” under Article 341 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”.
(iv) 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.
83
(v) It is by virtue of the notification of the President under Article 341 that the “Scheduled Castes” come into being. Though the members of Scheduled Castes 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.
(vi) 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.
(vii) 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.
84
(viii)The Nine-Judge Bench in Indra Sawhney and the Five-Judge Bench in Jarnail Singh had not dealt with the issue of sub- classification of the “Scheduled Castes” in the context of Article 341, much less had dealt with the State’s powers to sub-classify or sub-divide or regroup the castes specified as “Scheduled Castes” under Article 341 of the Constitution, and therefore, it could not be held that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh.
(ix) 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. 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. 85
(x) The affirmative action and legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and constitutionality.
80. In that view of the matter, I am of the opinion that the law laid down by the Five-Judge Bench in E.V. Chinnaiah is the correct law and deserves to be confirmed.
....…..…..……..………J. [BELA M. TRIVEDI] NEW DELHI;
AUGUST 01ST, 2024.
86
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.2317 OF 2011
THE STATE OF PUNJAB & ORS. …APPELLANTS
VERSUS
DAVINDER SINGH & ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO.6936 OF 2015
With
CIVIL APPEAL NO.5597 OF 2010
With
WRIT PETITION (Civil) NO.21 OF 2023
With
CIVIL APPEAL NO.5593 OF 2010
With
SPECIAL LEAVE PETITION (Civil) NO.30766 OF 2010 With SPECIAL LEAVE PETITION (Civil) NO.8701 OF 2011 With SPECIAL LEAVE PETITION (Civil) NO.36500-36501 OF 2011 With T.C. (C) NO.38 OF 2011 With T.P. (C) NO.464 OF 2015 1 With WRIT PETITION (Civil) NO.1477 OF 2019 With CIVIL APPEAL NO.5586 OF 2010 With CIVIL APPEAL NO.5598 OF 2010 With CIVIL APPEAL NOs.5595-5596 OF 2010 With CIVIL APPEAL NO.2324 OF 2011 With T.C (C) NO.37 OF 2011 With CIVIL APPEAL NO.5589 OF 2010 With CIVIL APPEAL NO.5600 OF 2010 With CIVIL APPEAL NO.5587 OF 2010 With SPECIAL LEAVE PETITION (Civil) NOs.5454-5459 OF 2011 With CIVIL APPEAL NO.2318 OF 2011 With CIVIL APPEAL NO.289 OF 2014 With WRIT PETITION (Civil) NO.562 OF 2022 2 JUDGMENT PANKAJ MITHAL, J.
Index
1. Introduction 4-10 Amendments to Constitution with reference to
2. 10-23 Case Laws Central Government and State Government
3. 23-33 Commissions on SC/ST and OBC’s
4. The Ramifications of Reservation 33-39 Casteless Society - Caste System vis-à-vis the
5. 39-45 Varna System Reservation is only a medium of facility and its
6. execution revives Casteism 45-48
7. Conclusion 49-54 3 INTRODUCTION
1. The issue under reference to this Constitution Bench as succinctly described by the Chief Justice in his opinion is whether sub-classification of the scheduled castes is constitutionally permissible for the purposes of reservation.
2. The issue arose as the Punjab legislature enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, inter alia providing for reservation of 25% in favour of scheduled castes and that 50% of the aforesaid percentage shall be offered to particular scheduled castes such as Balmikis and Mazhbi Sikhs in direct recruitment.
3. The validity of providing 50% reservation in favour of the above two categories of scheduled castes, out of the various mentioned in the Presidential list of scheduled castes, was challenged before the High Court by invoking the writ jurisdiction under Article 226 of the Constitution of India. The High Court of Punjab and Haryana relying upon the Constitution Bench decision of this Court in E.V. Chinnaiah vs. State of Andhra 4 Pradesh and Ors.1 declared Section 4(5) of the aforesaid Act which sub-classified the scheduled castes and provided for 50% reservation of the 25% admissible to the scheduled castes in favour of the above two categories of scheduled castes only to be invalid.
4. The Chinnaiah case (supra) arose from the decision of the Andhra Pradesh High Court whereby it rejected the challenge to the provision of Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000, which provided for apportionment of reservation among scheduled castes by classifying them into four groups: 1% for Group A, 7% for Group B, 6% for Group C and 1% again for Group D.
5. The Constitution Bench in Chinnaiah’s case was of the unanimous opinion that the provision of the above Act of sub- classifying the scheduled castes into four groups and apportioning the reservation criteria group wise was unconstitutional. It was held that the sub-classification permitted by Indra Sawhney and Ors. vs. Union of India and 1 (2005) 1 SCC 394 5 Ors.2 was limited only to backward and other backward classes and is not applicable to scheduled castes.
6. It is in the above background that the Constitution Bench dealing with one of the cases at hand i.e. State of Punjab and Ors. vs. Davinder Singh and Ors. held that the matter requires to be revisited by a larger Bench.
7. In somewhat similar fashion, a matter came to be referred from the State of Haryana and another from the State of Tamil Nadu wherein by notification in the State of Haryana scheduled castes were classified into two categories i.e. A and B for the purposes of applying reservation and in the State of Tamil Nadu by an Act of 2009, reservation of seats was provided to Arunthathiyar’s in educational institution and for appointment in services.
8. All the three categories of matters i.e. from the State of Punjab, State of Haryana and the State of Tamil Nadu are before the Bench in the form of Civil Appeals, Writ Petitions, TP (C) & TC (C) and Special Leave Petition (Civil) and have been taken up as 2 (1992) Supp (3) SCC 217 6 clubbed matters as the issue is common as described in the beginning.
9. The issue of sub-classification of scheduled castes has been appropriately answered by the Chief Justice and my esteemed brother Justice Gavai by their separate opinions with which I respectfully agree but at the same time since the matter in issue is basically concerning “reservation”, I consider it to be of utmost importance and, therefore, deem it appropriate to pen down my own views separately.
10. Man/human as rightly understood is a social animal and has to live in a society. An ideal form of society is one which progresses on merit or where merit alone prevails. This is evident from Articles 14 and 15 of the Constitution which provides for equality before law and that State shall not discriminate on grounds of religion, race, caste, sex or place of birth. Articles 14 and 15 (as it originally stood) are quoted below:
“Article14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.7
Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.”
11. However, no society can exist in its ideal form as all citizens are not alike. The basic needs of everyone are different and have to be taken into account to carry the society forward. Therefore, there is pressing need to consider the social, economic and political need of all persons or classes of persons. In the context of India, the trinity of social, economic and political justice has to be balanced and to promote social justice, provisions have to be made for the upliftment of the so-called marginalized citizens or the depressed classes of persons who later came to be known as backward class of persons and scheduled castes as well as scheduled tribes etc. It is to achieve the above social objective of bringing every citizen or a class of citizen on equal level and 8 at par in law that provision for reservation came to be made in the Constitution.
12. The provision for reservation for any class of persons at first sight may appear to be anti-merit but if weighed on the scales of social justice, it is imperative.
13. The poor and the downtrodden sections of the Indian society were earlier described by the ruling class as the “depressed classes” which included a wide range of persons such as untouchables, persons of various backward communities and those living in tribes in hills and forests or in remote areas of the country. Slowly, these depressed classes of persons came to be classified into various groups according to their vocation such as scavengers, leather workers, ironsmiths, carpenters, watchman and other menial workers and were referred to as scheduled castes; and those living in tribes in hills, forests or remote areas came to be recognized as scheduled tribes. The remaining depressed classes of persons or marginalized classes were later classified as other backward classes.
14. The Government of India Act, 1935, for the first time, recognized the above referred depressed classes of persons as scheduled 9 castes and the primitive tribes as backward tribes and inter alia provided reservation of seats for the scheduled castes and backward tribes in the federal legislature. The objective was of bringing about political equality only.
15. The Constitution of India as enacted and adopted on 26th November, 1949 and enforced w.e.f. 26th January, 1950, originally provided for two categories of reservation, one for the political purposes and the other for social purposes vide Articles 330 & 332 and Articles 15(3) & 16(4).
16. Articles 330 and 332 of the Constitution aimed to achieve political justice by providing reservation of seats for scheduled castes and scheduled tribes in Lok Sabha and State Legislatures whereas Article 15(3) and 16(4) were aimed at social justice and provided for special provision for women & children and for reservation in the services in favour of backward classes of persons respectively.
AMENDMENTS TO CONSTITUTION WITH REFERENCE TO CASE LAWS
17. On the legislative front, in the wake of various verdicts of the apex court concerning reservation, a constitutional amendment 10 regime commenced bringing about amendments after amendments in the Constitution to overcome the difficulties in the implementation of the reservation policy in the light of the decisions of the courts in context with reservation.
18. The Constitution (First Amendment) Act, 1951 w.e.f. 18th June, 1951, was brought about in order to solve the problems posed by the decision of 5 Judges Constitution Bench of this Court in State of Madras vs. Champakam Dorairajan3 which struck down caste-based reservation for admission in medical colleges being violative of Article 29(2) of the Constitution and by an other 5 Judges Constitution Bench decision in B. Venkataramana vs. State of Madras and Ors.4 which held that the appointment of judicial officers as unconstitutional as Article 16(4) permitted reservation for backward classes of citizens only. Thus, Sub-Article (4) to Article 15 of the Constitution of India was introduced so as to empower the State for making special provision for the advancement of any socially 3 AIR (1951) SC 226 4 AIR (1951) SC 229 11 and educationally backward classes of citizens or for scheduled castes and scheduled tribes.
19. In this manner, Articles 16(4), 15(3) and 15(4) as introduced, envisaged to bring about social justice amongst the citizens of the country.
20. After the Constitution Bench decision in Indra Sawhney (supra), there was a spate of amendments in the Constitution to overcome the difficulties caused by various observations of the court.
21. The Constitution (Seventy-seventh Amendment) Act, 1995 added Article 16(4)(A) to the Constitution so as to provide reservation in promotion in favour of scheduled castes and scheduled tribes which are not adequately represented in the services of the State.
22. It was followed by the Constitution (Eighty-first Amendment) Act, 2000 which inserted Article 16(4)(B) so as to make provisions for carry forward of unfilled vacancies of the reserved category. The new Article 16(4)(B) provided that the State is not denuded of power to consider any unfilled vacancies of a year reserved for being filled up in that year in accordance with the 12 provisions for reservation made under Clause 4 or Clause 4(A) of Article 16 to be carried forward to be filled up in any succeeding year or years and that such carried forward vacancies shall not be counted for determining the sealing of 50% reservation in total number of vacancies of that year.
23. In immediate succession came the Constitution (Eighty-second Amendment) Act, 2000 which was necessitated to overcome one of the decisions of this Court in case of S. Vinod Kumar and Anr. vs. Union of India and Ors.5 which held that even if reservation in promotion is permissible, no lower qualifying marks or lesser level of evaluation for promotion is legally permissible for the reserved categories. The said amendment permitted provision for relaxation in qualifying marks in any examination or for lowering the standards of evaluation for reservation in the matters of promotion to any class or classes of services for posts in connection with the affairs of the Union or the State.
5 (1996) 6 SCC 580 13
24. In Union of India vs. Virpal Singh Chauhan6, this Court held that the accelerated promotion to the persons of the reserved categories would not give them consequential seniority and that their seniority in promoted category shall be governed by their seniority in the feeder cadre.
25. The above view was reaffirmed in Ajit Singh Januja vs. State of Punjab7 and it was held that reserved category persons are entitled only for accelerated promotion and not consequential seniority.
26. The above two decisions were followed by Ajit Singh (II) vs. State of Punjab8 wherein upholding the principles of accelerated promotion and consequential seniority as laid down in the above two cases it was clarified that the general candidates on promotion will get seniority over reserved candidates who were already promoted by way of accelerated promotion, if both were in the same cadre.
27. The Constitution (Eighty-Fifth Amendment) Act, 2002, was enacted to undo the principles laid down by the above decisions 6 (1995) 6 SCC 684 7 (1996) 2 SCC 715 8 (1999) 7 SCC 209 14 especially in Ajit Singh (II) case (supra) and the expression “with consequential seniority” was inserted in Article 16 (4)(A) of the Constitution. This amendment was given retrospective effect w.e.f. 07.06.1995, the date on which Article 14(4)(A) was inserted into Article 16 of the Constitution by the Constitution (Seventy-Seventh Amendment) Act, 1995.
28. In the meantime, following the directions of the Supreme Court in Indra Sawhney’s case (supra), an office memorandum was issued by the Government of India on 08.09.1993 designating certain categories of people as “creamy layer”. The State of Bihar and Uttar Pradesh vide The Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995, and Uttar Pradesh Public Services Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994, provided that IAS and IPS Officers would be within “creamy layer” if they have a (i) salary of Rs.10,000/- per month; (ii) either of the spouse is a graduate; and (iii) one of them owns a house in an urban area. Similarly, professionals with income of Rs.10 lakhs per annum were also categorized under the 15 “creamy layer” with additional criteria that either of the spouse should be a graduate and the family owns an immovable property of at least Rs.20 lakhs.
29. In Ashoka Kumar Thakur vs. State of Bihar9, this Court struck down the additional conditions of education and property prescribed in the Bihar and by U.P. enactment to be unconstitutional for identifying the “creamy layer” as violative of Articles 16(4) and 14 of the Constitution.
30. In Indra Sawhney (II) vs. Union of India10, the Kerala State Backward Classes Act, 1995, which provided that there are no socially advanced sections in any backward classes of the State and that the backward classes in the State are not adequately represented in the services under the State and as such backward classes would continue to avail the benefit of reservation, thus, declaring that there was no ‘creamy layer’ amongst the OBC in the State, was struck down holding that ‘creamy layer’ in the backward classes is to be treated at par with the forward classes and are not entitled to benefit of 9 (1995) 5 SCC 403 10 (2000) 1 SCC 168 16 reservation. It was also observed that “creamy layer” is to be excluded otherwise it will be discriminatory and violative of Articles 14 and 16 as “forwards” and “creamy layer of backward classes” cannot be treated unequally.
31. In M. Nagaraj vs. Union of India11, the validity of the constitutional amendments namely Constitution (Seventy- Seventh Amendment) Act, 1995, Constitution (Eighty-first Amendment) Act, 2000, Constitution (Eighty-second Amendment) Act, 2000 and Constitution (Eighty-fifth Amendment) Act, 2002, were upheld.
32. In TMA Pai Foundation vs. State of Karnataka12, the 11 Judges Constitution Bench of this Court laid down various principles regarding right to establish educational institutions, the procedure for grant of admission, the right of minorities and the extent of State regulatory mechanism. The said judgment came to be interpreted and clarified by Islamic Academia Education vs. State of Karnataka13. In P.A. Inamdar vs. 11 (2006) 8 SCC 212 12 (2002) 8 SCC 481 13 (2003) 6 SCC 697 17 State of Maharashtra14, the 7 Judges Constitution Bench held that the 5 Judges Constitution Bench in Islamic Academia Education case did not interpret the TMA Pai Foundation case correctly. In such a situation, Constitution (Ninety-Third Amendment) Act, 2006, was brought about to overcome the confusion alleged to have been created in the interpretation of TMA Pai Foundation case and Sub-Article (5) was inserted in Article 15 of the Constitution which reads as under:
“Article 15 (5)- Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article
30.”
33. The validity of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld by the 5 Judges Constitution Bench in Ashok Kumar Thakur case (supra) which provided reservation for socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes in educational
14 (2005) 6 SCC 537 18 institutions insofar as it relates to State maintained institutions and Government aided educational institutions.
34. A similar view was expressed in Pramati Educational & Cultural Trust vs. Union of India15, wherein also the constitutional validity of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld and reservation for socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes in unaided private institutions as well was upheld.
35. In Ram Singh vs. Union of India16, reservation for Jats in various States was struck down as no such reservation in their favour was recommended by the National Commission for Backward Classes and there was no quantifiable data for justifying reservation in their favour. Accordingly, Constitution (One Hundred and Second Amendment) Act, 2018, was brought about and Articles 338B & 342A were inserted constituting a separate commission for socially and educationally backward 15 (2014) 8 SCC 1 16 (2015) 4 SCC 697 19 classes and empowering the President to specify socially and educationally backward classes.
36. In Jaishri Laxmanrao Patil vs. State of Maharashtra17, 5 Judges Constitution Bench struck down the reservation for Marathas in the State of Maharashtra on the ground that the State does not have power to declare any class of people as socially and educationally backward classes.
37. In order to overcome the difficulty created by the above decision, Constitution (One Hundred and Fifth Amendment) Act, 2021 was brought about amending Article 342A so as to provide that the list of socially and educationally backward classes of citizens prepared by the President is only for the Central Government but the State can also prepare its own list.
38. In between, Constitution (One Hundred and Third Amendment) Act, 2019, was enacted whereby Sub-Article (6) was inserted in Articles 15 and 16 in the following terms:
“Article 15 (6)- Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and 17 (2021) 8 SCC 1 20
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
Article 16 (6)- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”
39. The validity of the aforesaid amendment was upheld in Janhit Abhiyan vs. Union of India (EWS Reservation)18.
40. The various amendments carried out in the Constitution since its adoption in relation to making provision for reservation can be summarised as under:-
1. Constitution (First Inserting Sub-Article (4) to Amendment) Act, 1951 Article 15 providing reservation for socially and educationally backward classes.
Constitution (Seventy- Inserting Sub-Article (4)(A) to
2.
seventh Amendment) Act, Article 16 providing reservation 1995 in promotion.
Constitution (Eighty-first Inserting Sub-Article (4)(B) to
3. Amendment) Act, 2000 Article 16 providing for carry forward of vacancies.
18 (2023) 5 SCC 1 21 Constitution (Eighty-second Inserting proviso to Article 335
4. Amendment) Act, 2000 providing relaxation of qualifying marks for the reserved category of persons.
Constitution (Eighty-Fifth Inserting the phrase “with
5. Amendment) Act, 2002 consequential seniority” in Article 16(4)(A) providing not only accelerated promotion but consequential seniority as well to the reserved category.
Constitution (Ninety-Third Inserting Sub-Article (5) to
6. Amendment) Act, 2006 Article 15 providing for mechanism of admission in Education Institution to the reserved category.
Constitution (One Hundred Providing for identification of
7. and Second Amendment) backward classes by the Centre Act, 2018, and the States by inserting and Constitution (One Article 342A.
Hundred and Fifth
Amendment) Act, 2021
Constitution (One Hundred Providing for reservation of
8. and Third Amendment) Act, equally weaker section EWS by 2019 inserting Sub-Article (6) of Article 16.
41. The above summary of the constitutional amendments carried out for the purposes of extending the benefit of reservation to the reserved categories would reveal that the Constitution has been amended as many as 9 times in order to implement the reservation policy in a fair and impartial manner so that the so- called depressed classes may be elevated at par with the forward classes. Most of the times the amendments to the Constitution were carried out either to undo the decisions of this Court or to 22 carry out the directions or the observations made by this Court in implementation of the reservation policy in a more fair and reasonable manner so that the benefit of reservation trickles down to the most backward of the other backward classes/scheduled castes/scheduled tribes.
CENTRAL GOVERNMENT AND STATE GOVERNMENT COMMISSIONS ON SC/ST AND OBCs
42. Apart from the above legislative exercise, the Union Government after independence, set up a Backward Class Commission in the year 1953 under the chairpersonship of Kaka Saheb Kalelkar. The Commission in its Report recommended inter alia that all women as a ‘class’ be treated as ‘backward’; all qualified students of backward classes be granted benefit of 70% seats reservation in all technical and professional Institutions; in all Government services and local bodies backward classes should be provided minimum reservation that is 25% in Class-I, 33- ½% in Class-II, 40% in Class-III and 40% in Class-IV. The said Commission in its Report observed :
“if entire communities, with some exceptions, are treated to be backward, actual needy would lose in 23 the mob and they seldom attract attention towards them and get sufficient help.”
43. The Commission also observed that in certain States such as Rajasthan vagabond/restless movers/wanderers who groom and breed animals should be given special protection. The report was placed in the Parliament with an action plan but it went undebated. The Central Government at that time had spent a sum of Rs. 4.5 lakh which is equivalent to about Rs. 5 crore as of today.
44. In 1965, the Central Government appointed a Committee to advise on the revision of the existing list of scheduled castes and scheduled tribes. This Committee popularly known as B.N. Lokur Committee, reported and concluded that the question of de-scheduling (or excluding) of relatively advanced communities should receive serious and urgent consideration. It recommended for the intensive periodical survey of the socio- economic progress made by each of the scheduled castes and scheduled tribes, probably to exclude certain communities that have progressed and to include those that have been left behind. It further recommended that in framing of development 24 schemes for scheduled castes and scheduled tribes, priority ought to be given to the welfare of the most backward amongst them. It also prepared a list of communities (castes/tribes) that were relatively forward and recommended to de-schedule or exclude 14 scheduled tribes and 28 scheduled castes from the list.
45. The Constitution though aimed at a casteless society, it defined certain depressed/disadvantageous classes as Scheduled Castes and certain tribes living in forest, hilly areas and other remote areas as Scheduled Tribes. However, a significant segment of the population that was otherwise socially, economically and politically backward were not given any privileges or benefits of upliftment. They were marginalised and were left behind in education as well as employment. In order to address this anomaly, the most talked about second backward class Commission was constituted on 1st January, 1979 by the Government of India which is popularly known as B. P. Mandal Commission. This Commission was entrusted with the job to investigate the conditions of socially and educationally backward classes, to recommend the criteria for 25 defining such classes of citizens, steps to be taken for their advancement and upliftment and the manner in which they can be extending the benefit of the reservation.
46. The Commission submitted its report on 31st December, 1980. The Commission on the basis of 1961 census compiled a national list of 3743 classes of persons under the heading ‘Other Backward Classes’ out of which 2108 were classified as ‘depressed backward classes’. The Commission recorded that 52 per cent (including 44 per cent hindus and 8 per cent non- hindus) of the citizens are Other Backward Classes whereas 22.5 per cent are Scheduled Castes and Scheduled Tribes in India.
47. The Government while implementing the recommendations of the Mandal Commission took a historic decision on 6th August, 1990 to introduce 27 per cent reservation for Other Backward Classes which were socially and educationally backward classes. This was in addition to 22.5 per cent reservation for Scheduled Castes and Scheduled Tribes. The 27 per cent reservation in favour of other backward classes was confined as 26 this Court in M.R Balaji vs. State of Mysore19 has put a cap of 50 per cent mark for the purposes of reservation.
48. The Mandal Commission thus recommended for 27 per cent reservation for OBCs in public sector and Government jobs and in promotion at all levels. It is also recommended that in the event the above quota remains unfilled in a particular year, the remaining vacancies be carried forward for a period of 3 years whereupon the unfilled vacancies if any would stand de- reserved. It further recommended for age relaxation to the OBCs at par with the Scheduled Castes & Scheduled Tribes. The validity of the aforesaid 27 per cent reservation in favour of OBCs was upheld by this Court in the year 1992 in Indra Sawhney (supra).
49. In addition to the above exercise of the Government on the executive/administrative side, on the direction of this Court in the case of E.V. Chinnaiah’s (supra), the Government of India appointed a single Member Justice Usha Mehra Commission of a National level to examine the issue of sub-categorization of 19 AIR 1963 SC 649 27 scheduled castes in Andhra Pradesh. This Commission appointed in the year 2006 was followed by another Commission set up by the Central Government in 2007 under the chairpersonship of Justice G. Rohini. It was also entrusted with the task of studying the entries in the Centre list of the OBCs and to examine the extent of equitable distribution of benefits of reservation amongst the OBCs. One important aspect which was also entrusted to this Commission was to work out a mechanism for sub-categorization of OBCs.
50. This apart, different States on different occasions had set up various State Level Committees and Commissions to study and report about the improvements to be made in reservation policy and the smooth implementation of the provisions of reservations vis-a-vis the concerned State. In this context, it may be beneficial to refer to some of the such Committees and Commissions set up by different States:
1. 1961 Dr R. Naganna It suggested 50% reservation in Gowda Committee, technical and professional institutions and 45% in Karnataka Government services.
2. 1963 V.K. Vishwanathan It recommended reserving 40% Commission, seats in technical and professional colleges for OBC Kerala 28 students and 10% for SC/ST students.
3. 1964 B.D. Deshmukh It recommended grouping of Committee, backward classes into four categories and reservation in Maharashtra Government services and educational institutions related in the ratio of their percentage in the State.
4. 1969 A.N. Sattanathan It submitted its Report in 1970 Commission, and recommended 33% reservation in State Tamil Nadu Government jobs and in educational institutions.
5. 1970 Manohar Pershad It identified four different Commission, categories of OBCs and recommended reservations in Andhra Pradesh their favour, in both professional colleges and in Government services.
6. 1970 J.N. Wazir On the basis of the Committee, Jammu recommendations of this and Kashmir Committee “The Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation) Rules, 1970” were framed by the State Government.
7. 1973 Dhebar Commission This Commission was set up to Ministry of Tribal study the vulnerable tribal groups. It suggested creation of Affairs separate category for the less developed among the tribal groups. In 1975 Government of India carried out an exercise to identify the most vulnerable tribal groups as a separate category and declared 52 of them to be in such a group wherein 23 new groups were added in 1993 making it a total of 75 out of 705 scheduled tribes.29
8. 1975 L.G. Havanur It recommended 16% Commission, reservation for backward communities, 10% for Karnataka backward castes and 6% for backward tribes in Government vacancies and educational institutions.
9. 1976 Mungeri Lal It identified 128 communities Commission, Bihar as backward and 94 of them as most backward. It recommended 20% reservation in Government services and 24% in professional institutions.
10. 1976 A.R. Bakshi It listed 82 castes and Commission, communities as socially and Gujarat educationally backward and recommended 10% reservation in Government services and in professional institutions.
11. 1977 Chhedi Lal Sathi It is one of the most talked Commission, about Commission on most backward classes. It Uttar Pradesh recommended classification of backward classes into 3 categories and suggested reservation in Government services and educational institutions under a separate quota.
12 1990 Justice Gurnam The Commission found that Singh Commission, reservation benefits have been primarily availed by one Haryana particular scheduled caste and the overall benefits have not percolated down to rest of the 36 scheduled castes.
Consequently, the scheduled castes’ list for the purposes of reservation in Haryana was divided into Block ‘A’ and Block ‘B’ putting the 36 scheduled castes in Block ‘A’ and the one 30 that has availed most of the benefits in Block ‘B’.
13. 1997 Justice P. This Commission was set up on Ramchandra Raju the demand of the extremely Commission, backward castes within the Andhra Pradesh scheduled castes of the State of Andhra Pradesh. The Report opined that largely the benefits of reservation had gone to a particular caste among the scheduled castes and therefore recommended for categorizing of the scheduled castes into Group A, B, C and D. It is on the basis of the recommendation of this Commission that scheduled castes in Andhra Pradesh were categorized in Group A, B, C and D which enactment led to E.V. Chinnaiah where this Court declared such classification as unconstitutional opining that scheduled castes/scheduled tribes are one homogenous class and cannot be sub-
categorised for the purposes of reservation.
14. 2001 Hukam Singh The Committee upon study Committee, found that the benefits of reservation was not percolating Uttar Pradesh down to the most depressed classes of persons rather the Yadav’s alone had a maximum share of jobs. Thus, it recommended sub-
categorisation of list of
scheduled castes/OBC.
15. 2003 Lahuji Salve This Commission was
Commission, appointed to study the socio-
Maharashtra economic condition of Mangs
caste which was within the list
of scheduled castes. The
Commission recommended the
31
sub-classification of the
scheduled castes as Mangs
being the lowest in the
hierarchy of caste system were
not being adequately benefited.
16. 2005 Justice A.J. This Commission was
Sadashiva appointed to identify the castes,
Commission, races and tribes of scheduled
castes in the State to whom the
Karnataka
benefit of reservation was not
being adequately extended.
The Commission recommended
the division of 101 castes
specified in the Presidential List
into four categories with 15% of
the total reservation of
scheduled castes to each of the
categories.
17. 2007 Mahadalit The Commission was to identify
Commission, Bihar the castes within the scheduled
castes that lagged behind.
The Commission recommended
inclusion of 18 castes as
extremely weaker castes from
amongst the list of scheduled
castes.
18. 2007 Justice Jasraj The Committee reported that
Chopra Committee, Gurjar’s live in remote, isolated and uninhabited areas and are Rajasthan extremely backward and therefore recommended that they may be provided with better facilities than those available to the other backward classes.
19. 2008 Justice Thiru M.S. The Committee recommended Janarthanam that the Arunthathiyar’s Committee, deserve differential treatment in reservation.
Tamil Nadu
20. 2017 K. Ratna Prabha Based upon the Committee, recommendation of this Committee, The Karnataka 32 Extension of Consequential Karnataka Seniority to Govt. Servants Promoted on the Basis of Reservation (to the posts in the Civil Services of the State) Act, 2018 was enacted and the matter came up to the Supreme Court wherein the validity of the Act was upheld and it was opined that the reserved category candidates are not only entitled to accelerated promotion but to consequential seniority.
21. 2018 Justice Raghvendra According to the Report there Kumar Committee, are 79 castes under the OBC category in the State out of Uttar Pradesh which 9 are backward, 37 are more backward and 33 are most backward classes.
Therefore, it recommended
splitting of 27% quota of OBC in
the State: 7% for backward
classes, 11% for more
backward classes and 9% for
most backward classes.
THE RAMIFICATIONS OF RESERVATION
51. The above history of “Reservation” in the country would amply indicate that tremendous amount of effort has been put in by all the three organs of the State i.e. the Legislature, the Executive and the Judiciary to bring about social justice by promoting the reservation policy and its implementation in such a manner that not only the backwards but the most backwards 33 of the backwards are brought into the forefront with the mainstream. So the question arises that how far has the reservation policy succeeded in someone’s wild guess? Notwithstanding, the success or failure of the reservation policy, one thing is for sure that it has burdened the Judiciary at all levels specially the High Courts and the Supreme Courts with enormous litigation which could have been avoided if a robust reservation policy with a vision would have been envisaged under the constitutional provisions in the very beginning instead of making piecemeal changes.
52. It is a matter of experience that every kind of process of selection and appointment in the government services and admission at higher level has come to be challenged before the courts inter- alia on the grounds of misapplication of the rule of reservation. Most of the times, the appointments and admissions get stuck up for years on account of litigation. This has caused enormous delay in the recruitment process and the vacancies remaining unfilled for long, giving rise to stop-gap/ad-hoc appointments resulting in further litigation. It is also noticeable that enough time and energy has been spent by all the three wings of the 34 State in streamlining the process of reservation and to evolve a flawless mechanism for implementing the reservation policy but still the non-visionary approach to handle the upliftment of the backward castes has created more difficulties rather than ironing them out.
53. It is a matter of record that in pro-reservation agitations and anti-reservation agitations, the peace and tranquillity of the entire country, at times, stood disturbed. Specially, during the anti-Mandal Commission agitation somewhere in 1990, most of the States witnessed large scale disturbances. The turmoil so created by such agitations and demonstrations particularly in the months of August-November of 1990 is the ample indication of the wide spread violence.
54. It may not be out of context to point out that apart from the anti-Mandal Commission violence, the country witnessed similar violence in the year 2006 when the students of IITs and AIIMS came out on the streets opposing reservation. Also, there was violence in Maharashtra against the Maratha reservation, to talk about the few.
35
55. After independence, a special provision was made in the Directive Principles of State Policy to provide compulsory primary education to all children within a period of 10 years but the target could not be achieved even after 77 years of independence. The Central Government, few years back, in order to provide free education to children enacted Right to Education Act, 2009. The aforesaid Act proved to be a very weak legislation and have not been able to provide primary education to one and all irrespective of the caste, creed, race, religion and sex as most of the children of the so-called depressed class either fail to attend schools or drop out after one and two years of education. There is no compulsion to give education to such children. The policy of reservation is applicable at the higher level only and for the purposes of employment. Thus, depriving such children or the drop outs, at the primary level of the benefit of reservation or upliftment in any other manner, as a result of which these children ultimately remain the most backward of the backwards.
56. The statistics proves that the deprived and the marginalized persons have not been able to achieve the benefit of reservation 36 which is permissible at higher level as about 50% of the students from the most backward classes drop out of school before Class-V and 75% drop out before Class-VIII. The figure goes to even 95 per cent when it comes to the level of high school. Thus, only the children of some of the castes, who are already affluent or urbanized, are able to obtain higher education and the benefits of reservation.
57. By referring to the above agitations, disturbances, violence, litigation and shortcomings, I do not to intend to suggest that the task of upliftment of the downtrodden be brought to an end or that the government should give up the reservation policy. But the issue is how to carry out the process to bring about equality and development of all, the manner of identification of the so-called depressed classes or the downtrodden and the form/nature of steps to be taken for their upliftment. The Government has used caste as the basis for the upliftment rather than identifying the class of people on the basis of vocation or their social and economic conditions who actually requires help to be promoted to the level of the forward class. It is for this reason, today we are grappling with a situation of sub- 37 classification of the castes notified for the purpose of reservation. The experience shows that the better of the class amongst the backwards eats up most of the vacancies/seats reserved leaving the most backward with nothing in their hands.
58. This may be illustrated and better explained by taking three students namely ‘A’, ‘B’ and ‘C’. Both ‘A’ & ‘B’ are equals in every manner as they come from well-to-do family having same kind of status, family background, education and financial capacity. ‘A’ being a general category candidate, qualifies for admission in higher education on merits whereas ‘B’ who belongs to a backward class competes and qualifies for admission in the reserved category. The student ‘C’ who is also of the backward class but has no advantage as that which is available to both ‘A’ and ‘B’, despite competing in the backward category remains unsuccessful. He continues to remain unsuccessful in the following years as well, as again and again backward category candidates having the status equivalent to that of a forward class or that which is available to ‘A’ and ‘B’ keeps on qualifying leaving the most backward of the backwards far behind. In this 38 manner, the most backward of the backward category loses the battle even with the backward classes who are practically enjoying the status of the forward class people. CASTELESS SOCIETY-CASTE SYSTEM VIS-À-VIS THE VARNA SYSTEM
59. The Constitution virtually visualises a casteless society and a unified society but in the name of ‘equality’ to accord facility and privileges to the depressed class/downtrodden, it is said that we have continued with the so-called Manuwadi System of caste. I am not an expert of religious scriptures nor do I claim that I have any knowledge of any one of them though I may have gone through Bhagwad Gita and Ramcharit Manas some times. According to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature. This can very well be reflected by verse 13 of chapter 4 and verse 41 of chapter 18 of the Bhagwat Gita which I quote below.
39
60. चातुर्वर्ण्व मया सृष्टं गुणकमववर्भागशः । (Chapter 4, Verse 13, Bhagwat Gita) ब्राह्मणक्षवियवर्शां शूद्राणां च परन्तप।
कमाववण प्रवर्भक्तावि स्वभार्प्रभर्ैगुवणैः ॥ (Chapter 18, Verse 41, Bhagwat Gita) Lord Krishna says that I have categorised humans in 4 varnas according to their nature and characteristics. Gita thus only promotes varna system which is different from present day caste system. It lays emphasis on abilities, qualities and consciousness of a person to have a balanced structure of society and to bring out the best in every person. The four varnas (occupational categories) are: -
1. Bharama Teachers, Priests and Intellectuals (Priestly class)
2. Kshatriyas Warriors, Police and Administrators (Administrative class)
3. Vaishayas Farmers, Merchants, Traders and Businessman (Mercantile and Farmer class)
4. Shudras Artisans, Workers and Labour class (Worker class)
61. The Bhagvad Gita in subsequent verses describes the intrinsic qualities of each of the varnas. The varna system depicting occupational categories can also be explained with the physical body of a person wherein the head of a person which does 40 intellectual work is called ‘Bharaman’. The hands which protect him and his family does the job of a ‘Kshatriya’. The abdomen which requires food to convert it into energy refers to ‘Vaishayas’, who are predominantly the farmers and the merchants invested to earn livelihood. The lower limbs (legs) do all kind of labour work and are referred to as ‘Shudras’.
62. The Skanda Purana also contains a shloka:
जन्मना जायते शूद्रः संस्कारात् द्विज उच्यते20 | which means that everyone is born as Shudra i.e. to work and slowly each one of them elevates himself to a higher status of Vaishya, Kshatriya and Brahmin on the strength of his talent, quality, character and nature.
63. It means the duties of Brahmins, Kshatriyas, Vaishyas and Shudras were distributed according to their qualities (guns) and nature (and not by birth). All people have different nature and characteristics. Their personality is shaped according to their qualities (gunas). Thus, different professionals duties are suited to persons of different nature and character. Since the center of 20 Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34. 41 society is God (Parmatma), everyone (atma) works according to their intrinsic qualities to sustain themselves and the society.
64. According to the varna system no one is to be considered as lower or higher, rather it is preached that everyone is equal fragment and a part and parcel of Him, the Almighty. Gita nowhere preaches that the aforesaid varnas are on the basis of birth and are not interchangeable. However, with the passage of time, the varna system deteriorated and the people started labelling these varnas on the basis of birth, ignoring the nature and characteristics of a person which is exactly the opposite to what is preached in Gita. The varnas were given the nomenclature of castes in a very loose manner.
65. Later, children of Brahmins started calling themselves as Brahmins, irrespective of whether they possessed the corresponding qualities or not. Similarly, the children of other varnas also adopted the varna of their father ignoring their own nature, talent and qualities. When this system grew rigid & birth based, it became dysfunctional.
66. In short, what is intended to be conveyed is that according to Gita there is no caste system and the varna system 42 (categorization) referred to therein is quite distinct, based upon persons nature & qualities. Thus, there was no caste system in ancient India i.e., Bharat. The misconstruction of the varna system as a caste system was a social defect that crept in with time and was not considered to be good as it divided the society and brought about discrimination & inequality.
67. The social problems created by the so-called caste system or the problem of untouchability etc. were widely considered to be bad practices prevailing in the Indian society. Thus, social reformers always propagated giving up of such malpractices.
68. Mahatma Gandhi, the Father of the Nation, during the entire freedom struggle strenuously worked for the upliftment of the so-called depressed classes including ‘untouchables’. He described the untouchables as ‘persons of God’ - ‘Harijans’. After independence with the adoption of the constitution, we decided to move towards the unified casteless society and vide Article 17 envisaged to abolish the practice of untouchability in any form and contemplated to make untouchability ‘a punishable offence’. Notwithstanding, the objective of casteless society and the principle of equality; the original Constitution 43 made provision by Article 15 (3) enabling the State to make special provision for women and children despite prohibition of discrimination on grounds religion, race, caste, sex or place of birth. Similarly, Article 16 (4) enabled the State for making special provision for reservation of appointments or post in favour of any backward class of citizens. This was done with the object to bring about social equity and justice.
69. The Constitution at the same time vide Article 341 conferred power upon the President to notify certain castes, races or tribes or part of such caste, races and tribes to be deemed to be Scheduled Castes. In fact, the constitution otherwise does not recognise any caste except for the above deeming provision. The country as such had moved into a casteless society except for the above legal fiction only for the purposes of the constitution and not otherwise.
70. In other words, to put it summarily there was no caste system in primitive India. Slowly the varna system prevalent was misconstrued to be a caste system which practice was found to be socially non-acceptable and as such after independence with the adoption of the Constitution we again tried to move into a 44 casteless society but in the name of social welfare to uplift the depressed and the backward classes, we again fell into the trap of caste system. We gave privilege of reservation to the depressed or the backward class or the Scheduled Caste to bring about equality.
71. It is common understanding that what is conceded once to appease any class cannot be taken back. So are the benefits extended to the reserved category of persons under the constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also.
RESERVATION IS ONLY A MEDIUM OF FACILITY BUT ITS EXECUTION REVIVES CASTEISM
72. ‘Reservation’ is one of the modes of helping or uplifting the status of the OBCs/SCs/STs. Anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as ‘Anti Dalit’. At the cost of being 45 called ‘Anti Dalit’, I quote Nani A Palkiwala from his book ‘We, The Nation, The Lost Decades)21 “The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism, the judgment fractures the nation and disregards the basic structure of the Constitution. The decision would revitalise casteism, cleave the nation into two – forward and backward - and open new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgments will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would not become the privileged.”
73. In fact, Scheduled Castes, Scheduled Tribes and other backward classes simply deserve equality with the other forward classes of people. Justice O. Chinnappa Reddy in K C Vasantha Kumar & Anr. vs. State of Karnataka22 said “they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of rights and not of philanthrophy. They ask for parity and not charity.” 21 NANI PALKIWALA, WE, THE NATION: THE LOST DECADES 179 (Mehta Publishing House 1995) 22 1985 SCC Suppl. 714 46
74. In State of Kerala vs. N M Thomas23, Justice V R Krishna Ayer said “you can’t throw to the winds considerations of administrative capability and grind the wheels of Government to a hault in the name of ‘harijan welfare’.”
75. This Court in A. Periakaruppan Chettiar vs. State of Tamil Nadu & Ors.24 observed that reservations should not be allowed to become a vested interest. In Akhil Bharatiya Soshit Karamchari Sangh vs. Union of India & Ors. 25 it was observed that efficacy of the reservation policy will depend upon how soon reservations can be done away with. The then Chief Justice of India Y.V. Chandrachud counselled in Vasanth Kumar (supra), “the policy of reservation in employment, education and legislative institutions should be reviewed every five years or so.”
76. Pandit Jawahar Lal Nehru in his letter dated 27th June 1961 addressed to all the Chief Ministers of all the States laments upon the habit of giving reservations and privileges to any caste or group and expresses that such practice ought to be given up 23 (1976) 2 SCC 310 24 (1971) 1 SCC 38 25 (1981) 1 SCC 246 47 and emphasis to help the citizens on economic considerations and not on caste basis and that the Scheduled Castes and Scheduled Tribes do deserve help but not in the shape of any kind of reservation more particularly in services. He wrote:
“I want my country to be a first-class country in everything. The moment we encourage the second-rate, we are lost.
The only real way to help a backward group is to give opportunities of good education, this includes technical education which is becoming more and more important. Everything else is a provision of some kind of crutches which do not add to the strength or health of the body.” In the same letter he went on to speak about two very important decisions, “one is, universal free elementary education that is the base; and the second is scholarship on a very wide scale at every grade of education to the bright boys and girls”. He went on to express if reservation on communal and caste basis continues, India will remain second rate or third rate. He said “This way lies not only folly, but disaster. Let us help the backward groups by all means, but never at the cost of efficiency.” 48 CONCLUSION
77. Our predecessors, not only the Judges but also the former Prime Minister have appeared to be against providing reservation to any class or caste of persons on purely caste basis and wanted to take the country forward on merit basis.
Despite the views so expressed, the Constitutional amendments envisaged to promote the depressed and the backward classes of persons to bring them to the level of the privileged class enjoying the status of an urban elite. Thus, the reservation policy was rightly applied and since its implementation faced difficulties as some in the backward classes have marched ahead, it has become imperative to uplift the backward of the backwards, for which purpose sub-classification has become the order of the day.
78. I had the privilege of going through the erudite judgments of the Chief Justice and my esteemed brother Justice Gavai.
79. The Chief Justice in his opinion has dwelled upon the legal aspects to answer the core issue whether sub-classification of the scheduled castes is constitutionally permissible for the 49 purposes of reservation. He has clearly opined that this Court in Indra Sawhney (Supra) never intended to limit the application of sub-classification to the other backward classes only. If any class is not integrated it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution, so long persons in a class are not similarly situated. There is no violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste as by such sub-classification no caste is being included or excluded from the list of scheduled castes.
80. His Lordship Justice Gavai in his opinion quoted an example where a member of a backward class becomes an IAS or an IPS or any other officer of the All India Service and improves upon his status in the society but even then his children get full benefits of reservation. No doubt, “one swallow does not make a summer” meaning thereby that if few members of a particular caste/class advances in the society the entire caste or class would not cease to be backward. Nonetheless if any member of designated backward class acquires a higher status and attains equality with the forward class, it is difficult to comprehend how 50 his children would be treated as depressed, downtrodden or backward in any manner be it socially, economically or educationally. Therefore, the caste to which this person belongs may not be excluded as a whole from the benefit of reservation but certainly the family which has obtained the benefit once shall not be allowed to take advantage of reservation in the next generation. The reservation to such families has to be confined to one generation only.
81. It has rightly been stated by my brother Justice Gavai in his opinion that Justice Krishna Iyer in N. M. Thomas (supra) has repeatedly observed that State is entitled to take steps for weeding out socially, economically and educationally advanced sections of scheduled castes and scheduled tribes from the ambit of reservation.
82. It has rightly been observed that a child studying in St. Stephen’s College or any good urban college cannot be equated with a child studying in a rural school/college and that he cannot be grouped into a same bracket.
83. In these circumstances my brother Justice Gavai has rightly concluded that the State must evolve a policy of identifying the 51 creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation.
84. Agreeing with the scholarly separate opinions authored by the Chief Justice and Brother Gavai, J., I summarise my views as under:
(i) The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub-
classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful;
(ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society 52 except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);
(iii) The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and
(iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category. 53
85. The reference is accordingly answered and it is held that sub-
classification of scheduled castes is permissible in law for the purposes of reservation.
……………………………….. J.
(PANKAJ MITHAL) NEW DELHI;
AUGUST 1, 2024.
54 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE / ORIGINAL JURISDICTION CIVIL APPEAL NO. 2317 of 2011 ETC. ETC.
THE STATE OF PUNJAB & …APPELLANT(S)
ORS.
VERSUS
DAVINDER SINGH & ORS. …RESPONDENT(S)
JUDGMENT
SATISH CHANDRA SHARMA, J.
1. I have had the privilege of reading the lucid and detailed opinion(s) authored by Hon’ble Dr. Justice D.Y.Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively. I am fully in agreement with both opinions to the extent that the validity of sub-classification within Scheduled Castes has been held to be constitutionally permissible. Moreover, I am fully in agreement with the opinion(s) to the extent that any exercise involving sub-classification by the State, must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole. Civil Appeal No. 2317/2011 etc. etc. Page 1 of 2
2. However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.
…………………………………………J. [ SATISH CHANDRA SHARMA ] New Delhi August 01, 2024.
Civil Appeal No. 2317/2011 etc. etc. Page 2 of 2