VERDICTUM.

IN

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

With
C.A. No.6936 of 2015

With
C.A. No.5597 of 2010

With
W.P.(C) No. 21 of 2023

With
C.A. No.5593 of 2010

With
S.L.P.(C) No.30766 of 2010

With
S.L.P.(C) No. 8701 of 2011

With
S.L.P.(C) Nos.36500-36501 of 2011

With
T.C.(C) No.38 of 2011
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 VERDICTUM.IN

With
T.P.(C) No.464 of 2015

With
W.P.(C) No.1477 of 2019

With
C.A. No.5586 of 2010

With
C.A. No.5598 of 2010

With
C.A. Nos. 5595-5596 of 2010

With
C.A. No.2324 of 2011

With
T.C.(C) No.37 of 2011

With
C.A. No.5589 of 2010

With
C.A. No.5600 of 2010

With
C.A. No.5587 of 2010

With
S.L.P.(C) Nos.5454-5459 of 2011

With
C.A. No.2318 of 2011

With
C.A. No.289 of 2014

And With
W.P.(C) No.562 of 2022

2
 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN
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
 VERDICTUM.IN
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.”

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 VERDICTUM.IN
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”

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 VERDICTUM.IN
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

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 VERDICTUM.IN
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

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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

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 VERDICTUM.IN
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).

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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.

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 VERDICTUM.IN
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].

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 VERDICTUM.IN
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.

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 VERDICTUM.IN
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
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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
 VERDICTUM.IN
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]

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 VERDICTUM.IN
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
 VERDICTUM.IN
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]

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 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
 VERDICTUM.IN
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
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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.”

45
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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]

50
 VERDICTUM.IN
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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

51
 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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].

54
 VERDICTUM.IN
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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
 VERDICTUM.IN
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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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 VERDICTUM.IN
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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)]

65
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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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 VERDICTUM.IN
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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]

69
 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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.

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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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 VERDICTUM.IN
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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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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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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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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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 VERDICTUM.IN
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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]

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 VERDICTUM.IN
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

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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

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 VERDICTUM.IN
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.”

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 VERDICTUM.IN
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.

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 VERDICTUM.IN
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-

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 VERDICTUM.IN
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

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 VERDICTUM.IN
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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

‘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).

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

‘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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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).

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 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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,

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
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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.

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 VERDICTUM.IN

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

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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

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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

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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.”

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 VERDICTUM.IN

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.

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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

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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.

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 VERDICTUM.IN

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

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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

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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

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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

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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.

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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

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 VERDICTUM.IN

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.

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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

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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

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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

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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.

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 VERDICTUM.IN

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:

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“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

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 VERDICTUM.IN

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

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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

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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

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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.

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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)

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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”.

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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

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 VERDICTUM.IN

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

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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

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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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.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
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

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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

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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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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]

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 VERDICTUM.IN

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:

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 VERDICTUM.IN

“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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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

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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.”

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

(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

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 VERDICTUM.IN

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).

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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,

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.

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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):

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 VERDICTUM.IN

“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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.”

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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

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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

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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

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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).”

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.

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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

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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

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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

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— 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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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

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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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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,

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 VERDICTUM.IN

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,

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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.”

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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.”

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 VERDICTUM.IN

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.

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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.

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“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

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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.

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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).

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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

21Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark Publishers

Pvt. Ltd. 2014).

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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.

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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.

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 VERDICTUM.IN

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

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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

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 VERDICTUM.IN

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

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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’.

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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. …………”

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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.

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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.

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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

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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

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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.

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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

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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.

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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.

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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.

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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

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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

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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)

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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

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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”.

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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

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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

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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

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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

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 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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.

26Report 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).

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 VERDICTUM.IN

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).

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

‘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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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.

 VERDICTUM.IN

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.

 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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

13Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University
Press, 13th Edition 1946) 141
30
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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).

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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

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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?”

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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

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 VERDICTUM.IN

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

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 VERDICTUM.IN

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
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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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)

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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 VERDICTUM.IN

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
 VERDICTUM.IN

(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.

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 VERDICTUM.IN

(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.

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 VERDICTUM.IN

(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.

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 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

“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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

(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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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
 VERDICTUM.IN

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

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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-

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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

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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.

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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

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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.
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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

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(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

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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

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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

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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

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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
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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.”

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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

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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

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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

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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

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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.

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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.

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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

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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