No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.2317 OF 2011
THE STATE OF PUNJAB & ORS. … APPELLANTS
VS.
DAVINDER SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO. 5586 OF 2010
CIVIL APPEAL NO. 5597 OF 2010
CIVIL APPEAL NO. 5589 OF 2010
CIVIL APPEAL NO. 5593 OF 2010
CIVIL APPEAL NO. 5600 OF 2010
CIVIL APPEAL NO. 5598 OF 2010
CIVIL APPEAL NO. 5587 OF 2010
CIVIL APPEAL NOS. 55955596 OF 2010
CIVIL APPEAL NO. 2324 OF 2011
CIVIL APPEAL NO. 6936 OF 2015
SPECIAL LEAVE PETITION (CIVIL) NO. 30766 OF 2010
2
CIVIL APPEAL NO. 2318 OF 2011
SPECIAL LEAVE PETITION (CIVIL) NOS. 54545459 OF 2011
SPECIAL LEAVE PETITION (CIVIL) NO. 8701 OF 2011
SPECIAL LEAVE PETITION (CIVIL) NOS. 3650036501 OF 2011
TRANSFERRED CASE (CIVIL) NO. 37 OF 2011
TRANSFERRED CASE (CIVIL) NO. 38 OF 2011
CIVIL APPEAL NO. 289 OF 2014
TRANSFER PETITION (CIVIL) NO. 464 OF 2015
AND
WRIT PETITION (CIVIL) NO. 1477 OF 2019
J U D G M E N T
ARUN MISHRA, J.
1.A Bench of three Judges vide order dated 20.8.2014 referred the
matter to a larger Bench for consideration opining that the judgment
of a 5Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors., (2005)
1 SCC 394, is required to be revisited in the light of Article 338 of the
Constitution of India, and not correctly following the exposition of the
law in Indra Sawhney and Ors. v. Union of India & Ors., 1992 Suppl.
(3) SCC 217. It was noted that matter involved interpretation and
3
interplay between Articles 16(1), 16(4), 338 and 341 of the
Constitution of India.
2.We, in order to consider the constitutional validity of Section 4(5)
of the Punjab Scheduled Caste and Backward Classes (Reservation in
Services) Act, 2006 (for short, ‘the Punjab Act’) in the matter referred,
framed the following issues on 4.2.2020:
“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
A. P. & Ors. reported in (2005) 1 SCC 394 is required to
be revisited?”
3.The background facts are that the Punjab Government by
Circular No.1818SW75/10451 dated 5.5.1975 provided that out of
seats reserved for Scheduled Castes, fifty per cent of the vacancies
would be offered to Balmikis and Mazhabi Sikhs. The Circular was
struck down by a Division Bench of the Punjab and Haryana High
Court vide judgment dated 25.7.2006. This Court dismissed the
S.L.P. against the same on 10.3.2008.
4.The Punjab Act was notified on 5.10.2006. Section 4(5) of the
Punjab Act made similar provisions as were made in the Circular,
4
which was struck down. It stipulated that fifty per cent of the
vacancies of the quota reserved for Scheduled Castes in direct
recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to
their availability, by providing first preference from amongst the
Scheduled Castes candidates.
5.A Division Bench of the Punjab and Haryana High Court struck
down the provisions contained in Section 4(5) of the Punjab Act vide
judgment dated 29.3.2010, relying upon the decision in E.V.
Chinnaiah.
6.The constitutional validity of Section 4(5) of the Punjab Act
depends upon whether any such classification can be made within the
class of Scheduled Castes or Scheduled Tribes or are to be treated as a
homogenous class. Whether it is not permissible to provide any
further reservation to the weakest out the weak, particularly when it
has not been possible to trickle down the benefit of reservation to the
weakest and the same is utilised by the upper class within the group,
who enjoy the benefit of reservation to the maximum creating
disparities within its class.
Submissions:
7.Shri Ranjit Kumar, learned senior counsel appearing for the
State of Punjab raised the following arguments:
5
(a)The decision in E.V. Chinnaiah erroneously proceeded on the
premise that affirmative action taken by the States by giving
preference to certain Scheduled Castes under Article 16(4) tinkers
with the Presidential List under Article 341. Merely giving of
preference does not tinker, rearrange, subclassify, disturb or interfere
with the list in any manner whatsoever since there is no inclusion or
exclusion of any caste in the list as notified under the meaning of
Article 341. The Punjab Act has been enacted under Article 16(1) and
16(4) read with Articles 245 and 246. The provisions of Section 4(5) of
the Punjab Act are within the legislative competence of the State.
(b)The Court in E.V. Chinnaiah erred in correctly interpreting the
majority ratio in Indra Sawney on the question of subclassification
within a class. At least five out of nine Judges in Indra Sawney held
that amongst the backward, there may be some more backward, and
when State chooses to make such classification, it would be
permissible in law. Unequivocally in the majority, it was held that
backward classes can be classified into more backward and less
backward classes. The Scheduled Castes and Scheduled Tribes fall
within backward classes. There is no warrant for the submission that
there cannot be a classification within the Scheduled Castes.
6
(c)Article 16(4) covers all backward classes, including Scheduled
Castes and Scheduled Tribes. The expression used in Article 16(4) is
“any backward class of citizens”. The expression “not adequately
represented” covers all socially and educationally backward classes,
who, on account of their backwardness, are inadequately represented
in the State's services. The scope of Article 16(4) is wider in its ambit
than Article 15(4). The expression “backward class of citizens” used in
Article 16(4) covers in its ambit the Scheduled Castes and Scheduled
Tribes and other backward classes, including the socially and
educationally backward class.
(d)The preferential treatment is a facet of equality under Article 14.
Any enactment by the State giving preference to more backward
amongst the backward fulfils the object of Article 16(4). Six out of
nine Judges in Indra Sawney held that Article 16(4) is not an
exception to Article 16(1). The preferential treatment given to certain
Scheduled Castes/Scheduled Tribes does not violate Article 14. It
intends to provide proportional equality. The classification is based on
intelligible differentia. The differentia bears a reasonable nexus with
the object, which is sought to be achieved, of equitable representation
of all Scheduled Castes in the Government service. The specific
reservations are required to bring about real equality of opportunity
between unequals and must be ensured by the State.
7
(e)A new concept has been applied by this Court to Scheduled
Castes also. While considering Indra Sawney in recent judgment by
this Court in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,
(2018) 10 SCC 396, it was held that the object of Article 16(4) is to
ensure that all backward classes march forward hand in hand and
that will not be possible if only selective few get selected in all the
coveted services of the Government. It was opined that the application
of the ‘creamy layer concept’ to Articles 341 and 342 does not tinker
with the Presidential List.
(f)The decision in E.V. Chinnaiah is contrary to other binding
judgments, such as K.C. Vasanth Kumar & Anr. v. State of Karnataka,
1985 Supp. SCC 714, which was approved in Indra Sawney. In M.R.
Balaji & Ors. v. State of Mysore & Ors., 1963 Supp. (1) SCR 439, it was
held that subclassification between backward and more backward
classes is necessary to help more backward classes. In E.V.
Chinnaiah, the decision in State of Kerala & Anr. v. N.M. Thomas &
Ors., (1976) 2 SCC 310, was not properly appreciated. It was laid
down in N.M. Thomas that there could be no objection to further
classification within a class. Men are born different, and some sort of
differential treatment is required to achieve proportional equality.
8
(g)In case it is assumed that all castes are homogeneous by virtue
of being in the List within Article 341, it is only addition, or deletion of
any caste in the list would be impermissible as held by the
Constitution Bench in State of Maharashtra v. Milind & Ors., (2001) 1
SCC 4 and Bir Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312. It
is permissible for the State to give preferential treatment within the list
based on the comparative backwardness of any class, there is nothing
in Article 341, which prohibits the same. Article 341 does not take
away the power of the State under Article 16(4) to make provisions for
giving preference. Such preferential treatment is not only permissible
but necessary to bring equality. Thus, the decision in E.V. Chinnaiah,
having been rendered by a Coordinate Bench of five Judges, deserves
to be referred to a larger Bench for reconsideration as the question of
interpretation of various provisions of the Constitution involves the
larger public interest and the decision is contrary to earlier decisions,
it is appropriate to refer to a larger Bench to settle the law.
8.Shri R. Venkataramani, learned senior counsel appearing for the
State of Tamil Nadu argued that:
(a)The decision in E.V. Chinnaiah has and will continue to have an
empirically demonstrable baneful effect on the general interests of the
public and is inconsistent with the legal philosophy of the
Constitution regarding equality and equal opportunity. The decision
9
in E.V. Chinnaiah, which holds that Scheduled Castes and Scheduled
Tribes once classified are a homogenous class, is removed from social
and economic reality. If the decision continues to operate, a large
section of Scheduled Castes and Scheduled Tribes would be deprived
of the guarantees under Articles 14 to 16. The decision in E.V.
Chinnaiah deserves to be revisited by a larger Bench.
(b)Articles 14 to 16 constitute a triumvirate of citizens' rights and
obligations and conceived as equality and social justice charters. The
State is under corresponding obligations to devise measures and
methods, fashion, policies to promote and protect these rights. There
is an interplay between these rights as held in Indra Sawney. The
equality rights under Article 14 and equal opportunity rights under
Articles 15 and 16 have been mutually reinforcing facets. The State
must undertake the emancipation of the deprived and weaker sections
of the community. The obligation to eradicate inequalities in status
and wealth is complex obligations involving redistribution and
reallocation of resources, opportunities, and equitable access to all
public and social goods. Education, health, and public employment
are all public goods of immense value. Therefore, the State/States will
always need the freedom to carry out informed experiments without
being fettered by undue or disproportionate claims. The court has to
keep social dynamics in mind and be careful not to chain the State or
10
clamp its hand while interpreting constitutional provisions. The rule
of law demands that the State is able to harmonise and balance
several competing claims and interests.
(c)In Indra Sawney, the word “backward classes” have been
declared to include Scheduled Castes and Scheduled Tribes and what
all consideration involved in dealing with backward classes would also
be attracted to the Scheduled Castes and Scheduled Tribes, i.e.,
grouping, classification or subclassification of castes and tribes for
effectuating the rights under Article 16(1) and 16(4) is permissible.
There are interse distinctions and inequalities within Scheduled
Castes/Scheduled Tribes in their ability to access education and
employment, afford healthcare, and enjoy the same social status.
They are undeniably classes within a class. The data documented by
the State shows that interse inequality persists. It is open to the
State/States to deal with backward classes based on each group's
needs or subclass and handle the pervading imbalances.
(d)The decision in E.V. Chinnaiah has frozen all State authorities
under Articles 14 to 16 of the Constitution. E.V. Chinnaiah does not
answer many questions raised. It is based on the premise that all
Scheduled Castes can and must collectively enjoy the benefits of
reservation regardless of interse inequality. The broad statement in
11
E.V. Chinnaiah has no demonstrable truth in empirical terms and is
not supported under the judgment itself. The decision in E.V.
Chinnaiah cannot be said to be absolute to a standard so high based
on stare decisis as to freeze our constitutional understanding
permanently and place of the judicial pronouncement. Shri R.
Venkataramani has attracted the Court's attention to various
decisions concerning stare decisis in matters of its constitutional
importance.
9.Shri M.S. Ganesh, learned senior counsel appearing on behalf of
Haryana Dhanak Sewa Samiti, while supporting the aforesaid
submissions, additionally argued that:
(a)the decision in E.V. Chinnaiah suffers from tunnel vision and
lacks acuity, and he has referred to M. Nagaraj & Ors. v. Union of India
& Ors., (2006) 8 SCC 212. The impact test must also be applied to
Article 341 read with the tautologous definition clause of Article
366(24) of the Constitution. The specification in Article 341 of the
castes, races, and tribes is rendered qua legal fiction. The purpose of
legal fiction must be ascertained, and then it is to be given full effect
without letting the imagination boggle. It cannot be stretched beyond
the purposes for which the legislature has created it. The legal fiction
under Article 341 is limited to the specification. The specification is
12
not disturbed by subclassification of the Scheduled Castes mentioned
in the List.
(b)The caste given further reservation are not represented in the
services of the State. The decision in E.V. Chinnaiah cannot be said to
be laying down good law in view of the decision in I.R. Coelho v. State
of T.N., (2007) 2 SCC 1. The approach and reasoning in E.V.
Chinnaiah were that for Scheduled Castes, Article 341 was the
bedrock of the rights guaranteed by Articles 15(4) and 16(4) and was
dominant tenement to which Articles 14 to 16 were subservient.
(c)That E.V. Chinnaiah is subject to Occam’s Razor entia non sunt
multiplicanda praeter necessitate (entities ought not to be multiplied
except from the necessity), which means that all unnecessary or
constituents in the subject being analysed are to be eliminated. The
inclusion in the list cannot dictate to the enforcement and effectuation
by the State of the rights guaranteed by Articles 15(4) and 16(4)
between those specified castes, races, or group interse. The
assignment of important role to ethical principles in behavioural
relation of the society ranges from Aristotle, Aquinas, Ockham, and
Arthasastra are referred to in ‘The Idea of Justice’ by Amartya Sen.
(d)That Articles 15(4) and 16(4) by themselves are substantive and
enabling provisions. The power conferred is not limited in any way by
13
the main provision, but falls outside it. It has not carved out an
exception but has preserved the power untrammelled by the other
provisions of the Article. The hands of the State cannot be restrained
under Article 46 as done by E.V. Chinnaiah. In E.V. Chinnaiah has
lost sight of the nature of PartXVI of the role of the provisions of that
Part.
(e)If E.V. Chinnaiah is a good law, its problematics give rise to
prospects of challenge to the constitutional validity of Article 342A as
inserted by the Constitution (One Hundred and Second Amendment)
Act, 2018 necessitates revisiting the interpretation of Articles 341 and
342 of the Constitution.
10.Shri Nidesh Gupta, learned senior counsel argued that:
(a)there is no bar to grant a State's preference under Articles 341(2)
and 342(2) of the Constitution. The Constitution does not forbid mere
preference. The State Government cannot exercise power concerning
inclusion and exclusion. This Court in Indra Sawney upheld a
classification of the backward and more backward class under Article
16(4).
(b)In M. Nagaraj and Jarnail Singh, the exclusion of the Scheduled
Castes' creamy layer under Article 16(4) was permitted. The creamy
layer includes economic, social, educational, and other factors;
14
therefore, the preference given to Balmikis and Mazhabi Sikhs, i.e., the
most backward amongst the Scheduled Castes, is in substance an
application of the principle of creamy layer.
(c)A reading of Articles 16(4), 16(4A), 335, 341, and 342 makes it
clear that the State(s) has a role to play at every stage of the
reservation process. Therefore, it would be contrary to the
constitutional scheme to deny them a role in merely granting a
preference to the most backward among the Scheduled Castes.
(d)A class of citizens cannot be treated to be socially and
educationally backward till perpetuity. The class is always required to
be judged in the light of the existing fact situation at a given point of
time, as observed in Jagdish Negi, President, Uttarakhand Jan Morcha
& Anr. v. State of U.P. & Anr., (1997) 7 SCC 203.
11.Shri Shekhar Naphade, learned senior counsel, attracted the
attention of the Court to the findings recorded by the Committee based
on which reservation has been provided to more backward of the
Scheduled Castes in the State of Tamil Nadu. He argued that:
(a)the Arunthathiyars community is the lowest caste. He attracted
the attention of the Court to the representation of the group in the
State Government Departments and educational courses and the
reservation formula recommended by the Committee. The Tamil Nadu
15
Arunthathiyars (Special Reservation of seats in Educational
Institutions including Private Educational Institutions and
appointments or posts in the services under the State within the
Reservation for Scheduled Castes) Act, 2009 does not tinker with the
Presidential List of Scheduled Castes in any manner.
(b)Special reservation is a fundamental aspect of Article 14 of the
Constitution. E.V. Chinnaiah requires reconsideration in the light of
the decision of the Constitution Bench in Jarnail Singh. Besides, it
failed to take note of ground realities and is not based upon the
statistical data collected by the State showing disparities amongst the
Scheduled Castes and Scheduled Tribes.
(c)The State's legislative competence in various fields for making
reservation flows from Article 246(2) and 246(3) read with Entry 41 in
List II and Entry 25 in List III. Article 341 does not abrogate the
legislative power of the State to enact a law providing for reservation in
the employment in the State Public Services or State Public Service
Commission. It is open to the State to make law providing reservation
in the admissions to educational institutions.
(d)The restriction under Article 341 is limited, relating to inclusion
and exclusion of castes. The decision in E.V. Chinnaiah treats
unequals as equals. The object of the legislation is to improve the lot
16
of Scheduled Castes and eliminate their social and educational
backwardness and equally distribute the fruits among them. The
special reservation is to render more meaningful social justice. The
unequals cannot be treated equally. Differential treatment cannot be
termed to be discriminatory.
12.Ms. Jyoti Mendiratta, learned counsel, attracted the attention of
the Court to the various reports and argued that in E.V. Chinnaiah
Scheduled Castes were taken to be a homogeneous group, they are, in
fact, not homogeneous.
(a)Learned counsel attracted our attention to the report of Justice
M.S. Janarthanam Committee of Inquiry for Special Reservation for
the Arunthathiyars. They were not able to reap the fruits of
reservation as there was upper crust within Scheduled Castes, and
most of the posts were reserved for Scheduled Castes and Scheduled
Tribes, though Arunthathiyars were 16 per cent of the Scheduled
Caste population, they managed to obtain reservation to a much lower
extent. The figures of representation of Arunthathiyars community in
State services and educational institutions have been furnished.
(b)Our attention was attracted to the report of Justice
Ramachandra Raju Committee, wherein it was observed that the Reli
17
group of communities was the most backward amongst the Scheduled
Caste communities.
(c)Learned counsel also invited our attention to Justice Usha
Mehra Committee report (2008), indicating that Scheduled Castes do
not constitute a homogenous class in relation to their social,
educational, and economic backwardness in the country. Individual
social groups inherit most traditional occupations by the incident of
birth in the list of Scheduled Caste.
(d)Learned counsel further drew our attention to Justice Lokur
Committee Report (1965). It was pointed out that the smaller and
more backward communities have tended to get lost in the democratic
process, though most deserving of special aid. It was suggested in the
report that in the matters of planning and development, the
distribution of benefits needs to be focused on the more backward and
smaller groups on a selective basis. In E.V. Chinnaiah, the scope of
Article 341 was not correctly appreciated about the power of the State
concerning the allocation of percentage of reservation amongst the
caste based upon rational differentia was ignored.
13.Shri Sanjay R. Hegde, learned senior counsel, while supporting
E.V. Chinnaiah, argued that:
18
(a)The Parliament alone has the power to exclude castes listed in
the Schedule. He has attracted our attention to Dr. Ambedkar's
speech in the Constituent Assembly regarding the purpose of Articles
341 and 342. 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. Considering the binding precedent
doctrine, the decision in E.V. Chinnaiah is not required to be revisited
wherein a possible view has been taken. The judgment concerning the
construction of statutes ought not to be overruled except in
exceptional cases. The unforeseeable consequences would follow if the
judgment is overruled. It requires to be revisited if it causes great
uncertainty, or it relates to some broad issue or principle, or the same
is unjust or outmoded, not otherwise.
(b)In Indra Sawhney, the subclassification was limited to socially
and educationally backward classes. It was observed that none of its
observations would apply to Scheduled Castes and Scheduled Tribes.
The Scheduled Castes and Scheduled Tribes are backward for the
provisions of Article 16(4). The test or requirement of social and
educational backwardness cannot be applied to Scheduled Castes and
Scheduled Tribes. The decision in Indra Sawhney was understood in
the correct perspective in E.V. Chinnaiah.
19
(c)In N.M. Thomas, it was held that Scheduled Castes and
Scheduled Tribes are backward classes. No subclassification can be
made. The exclusion from the list is prerogative of the Parliament.
The object of Article 341(1) is to provide additional protection to the
members of the Scheduled Castes having regard to the economic and
educational backwardness from which they suffer. In the Presidential
Order, even the court cannot make any alteration. No enquiry is
permissible to determine whether or not some particular community
falls within the list or outside it as laid down in State of Maharashtra
v. Milind & Ors., (2001) 1 SCC 4.
(d)The legal fiction created under Article 341 is to be given full
effect. The provisions of Section 4(5) of the Punjab Act cannot be said
to be constitutionally valid. The Governor is empowered only to make
recommendations under Article 341 for alteration in the list. No
further classification can be made once Scheduled Castes, and
Scheduled Tribes are covered under Article 16(4).
(e)There is a difference between Scheduled Castes and Other
Backward Classes. The Scheduled Castes are untouchables as held in
Jarnail Singh. The Hindus are divided into two classes – the
touchables and the untouchables. The term “depressed classes” was
replaced by “Scheduled Castes” under the Government of India Act,
20
1935. The special treatment is given to the Scheduled Castes due to
untouchability with which they suffer. It is not open to the Parliament
or Legislature of States to make classification inter se Scheduled
Castes/Scheduled Tribes once they are included in the Schedule. The
Parliament is empowered to include or exclude any caste from the
Presidential List. Article 341(1) provides additional protection to the
members of the Scheduled Castes. The powers under Article 16(4)
cannot be exercised dehors Article 341.
14.Shri Tushar Bakshi, learned counsel argued that sub
classification is not permissible in the caste grouped in one entry of
the list. It is not permissible to leave one caste grouped within the list.
The power has been exercised maliciously.
15.Shri A. Subba Rao, learned counsel, appearing on behalf of the
respondents argued that the Constitution (One Hundred and Second
Amendment) Act, 2018 came into effect on 11.8.2018. Article 338B
was inserted constituting National Commission for Backward Classes.
The real question for consideration is the interpretation of Articles 14,
15, 16, 338, 338A, 338B, 341, 342, 342A, 366(24) and 366(26C). The
Parliament alone has the power to deal with Scheduled Castes once
the President notifies the Scheduled Castes list. He relied upon Bir
Singh to submit that E.V. Chinnaiah has been correctly decided. The
21
basic question for determination is of federalism. The powers
conferred on the Parliament to amend the list cannot be whittled down
and diluted by interpretation of the constitutional provisions. The
reference to a larger Bench is not at all warranted.
16.Dr. K.S. Chauhan, learned counsel argued that law has been
settled in E.V. Chinnaiah. The State Government has no power to
include or exclude the castes in the List. The Constitution does not
empower the Union or the State to categorise or subcategorise the
castes enumerated in the List. Any subclassification may
tantamount to varying the List under Article 341(1). The view taken in
Indra Sawhney is that castes enumerated are not castes, these are
classes. Learned counsel has pointed out the distinction between
class and caste.
In N.M. Thomas, it was laid down that Scheduled Castes are not
castes, they are class. Hence, he argued that they should not be
further classified. The principle settled in the decision of N.M. Thomas
has been disregarded in the decision of M. Nagaraj. The majority in
Indra Sawhney held that the provisions of Article 16(4) are
classification of Article 16(1) of the Constitution, and the classification
is permissible. The minority opinion in Indra Sawhney has been
applied in M. Nagaraj, and the same is contrary to the law settled by
22
the majority in Indra Sawhney and R.K. Sabharwal & Ors. v. State of
Punjab & Ors., (1995) 2 SCC 745. A reference was made regarding the
correctness of M. Nagaraj. The Constitution Bench in Jarnail Singh
settled the principle based on Indra Sawhney. Still, a new principle of
social backwardness and creamy layer has been developed, and the
constitutional principles have been clarified and settled by modifying
the legal interpretation of M. Nagaraj. The correctness of the decision
in M. Nagaraj was also doubted in State of Tripura & Ors. v. Jayanta
Chakraborty & Ors., (2018) 1 SCC 146. The clarification by the
Constitution Bench in Jarnail Singh, remained very shortlived only
upto in B.K. Pavitra & Ors. v. Union of India & Ors., (2019) 16 SCC
129. M. Nagaraj ought to have been referred to a larger Bench.
17.Shri Robin Khokhar, learned counsel argued that based on the
Tamil Nadu Act No.4 of 2009, the Government of Tamil Nadu included
7 castes out of 76 castes in the list of Scheduled Caste Aruthathiyar,
the power of classification could not have been exercised. The same is
violative to the basic feature of the Constitution and Article 341.
Legislating subclassification is constitutionally impermissible.
Discussion:
23
18.In E.V. Chinnaiah, it was held that Scheduled Castes form
homogenous classes and there cannot be any subdivision and with
respect to Indra Sawhney, following discussion was made:
“38. On behalf of the respondents, it was pointed out that
in Indra Sawhney case, 1992 Suppl. (3) SCC 217, the
Court had permitted subclassification 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 Suppl. (3) SCC 217, 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.
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 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
24
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 the Scheduled Castes the
constitutional mandate of Articles 14, 15 and 16 could be
violated.”
The following opinion expressed by S.B. Sinha, J. in E.V.
Chinnaiah has been referred to:
“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
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.”
19. One of the questions is whether E.V. Chinnaiah correctly
appreciated the majority decision in Indra Sawhney. It was argued
that in Indra Sawhney, the majority of the Judges held that amongst
the backward, there may be some more backward, and if the State
chooses to make such classification, it would be permissible in law.
(a)Following is the opinion of B.P. Jeevan Reddy, J. (for himself and
other three Judges) in Indra Sawhney:
25
“Question No. 5:
Whether Backward Classes can be further divided into
backward and more backward categories?
801. In Balaji, 1963 Supp 1 SCR 439, it was held:
“that the subclassification made by the order between
Backward Classes and More Backward Classes does
not appear to be 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).” (SCR p.
46566)
The correctness of this holding is questioned before us by
the counsel for the respondents. It is submitted that in
principle there is no justification for the said holding. It is
submitted that even among backward classes there are
some who are more backward than the others and that
the backwardness is not and cannot be uniform
throughout the country nor even within a State. In
support of this contention, the respondents rely upon the
observations of Chinnappa Reddy, J in Vasanth Kumar,
1985 Supp SCC 714, where the learned Judge said: (SCC
p. 750, para 55)
“[W]e do not see why on principle there cannot be a
classification into Backward Classes and More
Backward Classes, if both classes are not merely a
little behind, but far behind the most advanced
classes. 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 might walk away with all the seats.”
26
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 stonecutters in
Andhra Pradesh) both 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 subclassification 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 seminomadic 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 C. The 25% vacancies reserved for
backward classes are subdivided between them in
proportion to their respective population. This
categorisation was justified in Balram, (1972) 1 SCC 660.
This is merely to show that even among backward
classes, there can be a subclassification on a reasonable
basis.
27
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.
PART VII
859. We may summarise our answers to the various
questions dealt with and answered hereinabove:
(1) **
(2) **
(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). (Paras 746
to 779)
*** *** ***
(d) ‘Creamy layer’ can be, and must be excluded. (Paras
790793)
(5) There is no constitutional bar to classify the backward
classes of citizens into backward and more backward
categories. (Paras 801 to 803)”
(emphasis supplied)
(b)The opinion expressed by P.B. Sawant, J. (for himself) is
extracted hereunder:
28
“523. As regards the second part of the question, in
Balaji, 1963 Supp 1 SCR 439, 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 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 subclassification 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 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 subclassification
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
29
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, Chinnappa Reddy, J after referring to the
aforesaid view in Balaji, 1963 Supp 1 SCR 439 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 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
30
decision in Vasanth Kumar, 1985 Supp SCC 714 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. 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, subclassification of the backward
classes into the backward and more or most backward
would be justifiable provided separate quotas are
prescribed for each of them.
552. The answers to the questions may now be
summarised as follows:
Question 1:***
Question 2:***
Question 3:***
Question 4:***
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
31
reservations will have to be kept for each of such classes.
In the absence of such separate quotas, the reservations
will be illegal.
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).”
(emphasis supplied)
(c)In Indra Sawhney, the question involved was of Mandal
Commission regarding other backward classes. The expression used
in Article 16(4) is ‘any backward class of citizens’. Article 16(4) is
wider in its ambit than Article 15(4). The expression 'class' is wider
than 'caste', and the expression 'backward class' stipulated under
Article 16(4) takes into its ambit Scheduled Castes and Scheduled
Tribes and all other backward classes including the socially and
educationally backward class. Following discussion was made in the
opinion expressed by B.P. Jeevan Reddy, J. (for himself and other
three Judges):
“774. In our opinion too, the words “class of citizens —
not adequately represented in the services under the
State” would have been a vague and uncertain
description. By adding the word “backward” and by the
speeches of Dr Ambedkar and Shri K.M. Munshi, it was
made clear that the “class of citizens … not adequately
represented in the services under the State” meant only
those classes of citizens who were not so represented on
account of their social backwardness.
32
777. ….The word “community” is clearly wider than
“caste” — and “backward communities” meant not only
the castes — wherever they may be found —but also other
groups, classes and sections among the populace.
778. Indeed, there are very good reasons why the
Constitution could not have used the expression “castes”
or “caste” in Article 16(4) and why the word “class” was
the natural choice in the context. The Constitution was
meant for the entire country and for all time to come.
NonHindu religions like Islam, Christianity and Sikh did
not recognise caste as such though, as pointed out
hereinabove, castes did exist even among these religions
to a varying degree. Further, a Constitution is supposed
to be a permanent document expected to last several
centuries. It must surely have been envisaged that in
future many classes may spring up answering the test of
backwardness, requiring the protection of Article 16(4). It,
therefore, follows that from the use of the word “class” in
Article 16(4), it cannot be concluded either that “class” is
antithetical to “caste” or that a caste cannot be a class or
that a caste as such can never be taken as a backward
class of citizens. The word “class” in Article 16(4), in our
opinion, is used in the sense of social class — and not in
the sense it is understood in Marxist jargon.
778A. In Rajendran, (1968) 2 SCR 786, 790, Triloki
Nath(II), (1969) 1 SCR 103, 105, Balram, (1972) 1 SCC
660 and Peeriakaruppan, (1971) 1 SCC 38, 48, this
reality was recognised and given effect to,
notwithstanding the fact that they had to respect and
operate within the rather qualified formulation of Balaji,
1963 Supp 1 SCR 439.
778B. For the sake of completeness, we may refer to a
few passages, from Vasanth Kumar, 1985 Supp SCC 714,
to show what does the concept of ‘caste’ signify? D.A.
Desai, J defines and describes “caste” in the following
terms: (SCC pp. 73031, para 22)
“What then is a caste? Though caste has been
discussed by scholars and jurists, no precise definition
of the expression has emerged. A caste is a horizontal
segmental division of society spread over a district or a
region or the whole State and also sometimes outside
it. Homo Hierarchicus is expected to be the central and
33
substantive element of the castesystem which
differentiates it from other social systems. The concept
of purity and impurity conceptualises the caste system
…. There are four essential features of the caste
system which maintained its homo hierarchicus
character: (1) hierarchy; (2) commensality; (3)
restrictions on marriage; and (4) hereditary
occupation. Most of the castes are endogamous
groups. Intermarriage between two groups is
impermissible. But ‘Pratilom’ marriages are not wholly
known.”
Venkataramiah, J also defined “caste” in practically the
same terms. He said: (SCC p. 786, para 110)
“A caste is an association of families which
practices the custom of endogamy i.e. which permits
marriages amongst the members belonging to such
families only. Caste rules prohibit its members from
marrying outside their caste …. A caste is based on
various factors, sometimes it may be a class, a race or
a racial unit. A caste has nothing to do with wealth.
The caste of a person is governed by his birth in a
family. Certain ideas of ceremonial purity are peculiar
to each caste …. Even the choice of occupation of
members of caste was predetermined in many cases ,
and the members of a particular castes were
prohibited from engaging themselves in other types of
callings, professions or occupations. Certain
occupations were considered to be degrading or
impure.”
779. The above material makes it amply clear that a
caste is nothing but a social class — a socially
homogeneous class. It is also an occupational grouping,
with this difference that its membership is hereditary.
One is born into it. Its membership is involuntary. Even if
one ceases to follow that occupation, still he remains and
continues a member of that group. ….. But we are
concerned here with a limited aspect of equality
emphasised in Article 16(4) — equality of opportunity in
public employment and a special provision in favour of
backward class of citizens to enable them to achieve it.
(b) Identification of “backward class of citizens”
780. Now, we may turn to the identification of “backward
class of citizens”. How do you go about it? Where do you
34
begin? Is the method to vary from State to State, region to
region and from rural to urban? What do you do in the
case of religions where castesystem is not prevailing?
What about other classes, groups and communities
which do not wear the label of caste? Are the people living
adjacent to ceasefire line (in Jammu and Kashmir) or
hilly or inaccessible regions to be surveyed and identified
as backward classes for the purpose of Article 16(4)? And
so on and so forth are the many questions asked of us.
We shall answer them. But our answers will necessarily
deal with generalities of the situation and not with
problems or issues of a peripheral nature which are
peculiar to a particular State, district or region. Each and
every situation cannot be visualised and answered. That
must be left to the appropriate authorities appointed to
identify. We can lay down only general guidelines.
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.
c) Whether the backwardness in Article 16(4) should be
both social and educational?
786. The other aspect to be considered is whether the
backwardness contemplated in Article 16(4) is social
backwardness or educational backwardness or whether it
is both social and educational backwardness. Since the
decision in Balaji, 1963 Supp 1 SCR 439 , it has been
assumed that the backward class of citizens
contemplated by Article 16(4) is the same as the socially
and educationally backward classes, Scheduled Castes
and Scheduled Tribes mentioned in Article 15(4). Though
Article 15(4) came into existence later in 1951 and Article
16(4) does not contain the qualifying words “socially and
educationally” preceding the words “backward class of
citizens” the same meaning came to be attached to them.
Indeed, it was stated in Janki Prasad Parimoo, (1973) 1
SCC 420 (Palekar, J speaking for the Constitution Bench)
that:
“Article 15(4) speaks about ‘socially and
educationally backward classes of citizens’ while
35
Article 16(4) speaks only of ‘any backward class
citizens’. However, it is now settled that the expression
‘backward class of citizens’ in Article 16(4) means the
same thing as the expression ‘any socially and
educationally backward class of citizens’ in Article
15(4). In order to qualify for being called a ‘backward
class citizen’ he must be a member of a socially and
educationally backward class. It is social and
educational backwardness of a class which is material
for the purposes of both Articles 15(4) and 16(4).”
787. It is true that no decision earlier to it specifically
said so, yet such an impression gained currency and it is
that impression which finds expression in the above
observation. In our respectful opinion, however, the said
assumption has no basis. Clause (4) of Article 16 does
not contain the qualifying words “socially and
educationally” as does clause (4) of Article 15. It may be
remembered that Article 340 (which has remained
unamended) does employ the expression ‘socially and
educationally backward classes’ and yet that expression
does not find place in Article 16(4). The reason is obvious:
“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). It is equally relevant to notice
that Article 340 does not expressly refer to services or to
reservations in services under the State, though it may be
that the Commission appointed thereunder may
recommend reservation in appointments/posts in the
services of the State as one of the steps for removing the
difficulties under which SEBCs are labouring and for
improving their conditions. Thus, SEBCs referred to in
Article 340 is only 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
36
whatsoever — insisting upon educational backwardness
may not be quite appropriate.
788. Further, if one keeps in mind the context in which
Article 16(4) was enacted it would be clear that the accent
was upon social backwardness. 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 feed upon
each other constituting a vicious circle. It is a wellknown
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. In
this sense Dr Rajeev Dhavan may be right when he says
that the object of Article 16(4) was “empowerment” of the
backward classes. The idea was to enable them to share
the state power. 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. The Scheduled Tribes and the
Scheduled Castes are without a doubt backward for the
purposes of the clause; no one has suggested that they
should satisfy the test of social and educational
backwardness …..”
(emphasis supplied)
(d)(i)The question of preferential treatment given by the State was
held to be facet of equality under Article 14 as giving preference to
more backward amongst the backwards furthers the aim and object of
Article 16(4). Six out of nine Judges in Indra Sawhney held that
Article 16(4) is not an exception to Article 16(1). The opinion
expressed by B.P. Jeevan Reddy, J. (for himself and other three
Judges) is extracted hereunder:
37
“733. At this stage, we wish to clarify one particular
aspect. Article 16(1) is a facet of Article 14. Just as Article
14 permits reasonable classification, so does Article
16(1). A classification may involve reservation of seats or
vacancies, as the case may be. In other words, under
clause (1) of Article 16, appointments and/or posts can
be reserved in favour of a class. But an argument is now
being advanced — evidently inspired by the opinion of
Powell, J in Bakke, 57 L Ed 2d 750, that Article 16(1)
permits only preferences but not reservations. The
reasoning in support of the said argument is the same as
was put forward by Powell, J. This argument, in our
opinion, disregards the fact that that is not the
unanimous view of the court in Bakke, 57 L Ed 2d 750.
Four Judges including Brennan, J took the view that
such a reservation was not barred by the Fourteenth
Amendment while the other four (including Warren
Burger, CJ) took the view that the Fourteenth
Amendment and Title VI of the Civil Rights Act, 1964
bars all raceconscious programmes. At the same time,
there are a series of decisions relating to school
desegregation — from Brown, 347 US 483 to North
Carolina Board of Education v. Swann, 28 L Ed 2d 586 —
where the court has been consistently taking the view
that if race be the basis of discrimination, race can
equally form the basis of remedial action. The shift in
approach indicated by Metro Broadcasting Inc., 58 IW
5053 is equally significant. The ‘lingering effects’ (of past
discrimination) theory as well as the standard of strictest
scrutiny of raceconscious programmes have both been
abandoned. Suffice it to note that no single uniform
pattern of thought can be discerned from these decisions.
Ideas appear to be still in the process of evolution.
Question 2(a):
Whether clause (4) of Article 16 is an exception to clause
(1)?
741. In Balaji, 1963 Supp 1 SCR 439 it was held —
“there is no doubt that Article 15(4) has to be read as a
proviso or an exception to Articles 15(1) and 29(2)”. It was
observed that Article 15(4) was inserted by the First
Amendment in the light of the decision in Champakam,
1951 SCR 525 with a view to remove the defect pointed
out by this court namely, the absence of a provision in
Article 15 corresponding to clause (4) of Article 16.
Following Balaji, 1963 Supp 1 SCR 439, it was held by
38
another Constitution Bench (by majority) in Devadasan,
(1964) 4 SCR 680 — “further this Court has already held
that clause (4) of Article 16 is by way of a proviso or an
exception to clause (1)”. Subba Rao, J, however, opined in
his dissenting opinion that Article 16(4) is not an
exception to Article 16(1) but that it is only an emphatic
way of stating the principle inherent in the main
provision itself. Be that as it may, since the decision in
Devadasan, (1964) 4 SCR 680, it was assumed by this
Court that Article 16(4) is an exception to Article 16(1).
This view, however, received a severe setback from the
majority decision in State of Kerala v. N.M. Thomas,
(1976) 2 SCC 310. Though the minority (H.R. Khanna
and A.C. Gupta, JJ) stuck to the view that Article 16(4) is
an exception, the majority (Ray, CJ, Mathew, Krishna
Iyer and Fazal Ali, JJ) held that Article 16(4) is not an
exception to Article 16(1) but that it was merely an
emphatic way of stating a principle implicit in Article
16(1). (Beg, J took a slightly different view which it is not
necessary to mention here.) The said four learned Judges
— whose views have been referred to in para 713 — held
that Article 16(1) being a facet of the doctrine of equality
enshrined in Article 14 permits reasonable classification
just as Article 14 does. In our respectful opinion, the view
taken by the majority in Thomas, (1976) 2 SCC 310, is
the correct one. We too believe that Article 16(1) does
permit reasonable classification for ensuring attainment
of the equality of opportunity assured by it. For assuring
equality of opportunity, it may well be necessary in
certain situations to treat unequally situated persons
unequally. Not doing so, would perpetuate and
accentuate inequality. Article 16(4) is an instance of such
classification, put in to place the matter beyond
controversy. The “backward class of citizens” are
classified as a separate category deserving a special
treatment in the nature of reservation of
appointments/posts in the services of the State.
Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1). The
speech of Dr Ambedkar during the debate on draft Article
10(3) [corresponding to Article 16(4)] in the Constituent
Assembly — referred to in para 693 — shows that a
substantial number of members of the Constituent
Assembly insisted upon a “provision (being) made for the
entry of certain communities which have so far been
outside the administration”, and that draft clause (3) was
put in in recognition and acceptance of the said demand.
39
It is a provision which must be read along with and in
harmony with clause (1). Indeed, even without clause (4),
it would have been permissible for the State to have
evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause
(4) merely puts the matter beyond any doubt in specific
terms.
742. Regarding the view expressed in Balaji, 1963 Supp
1 SCR 439 and Devadasan, (1964) 4 SCR 680, it must be
remembered that at that time it was not yet recognised by
this Court that Article 16(1) being a facet of Article 14
does implicitly permit classification. Once this feature
was recognised the theory of clause (4) being an
exception to clause (1) became untenable. It had to be
accepted that clause (4) is an instance of classification
inherent in clause (1). Now, just as Article 16(1) is a facet
or an elaboration of the principle underlying Article 14,
clause (2) of Article 16 is also an elaboration of a facet of
clause (1). If clause (4) is an exception to clause (1) then
it is equally an exception to clause (2). Question then
arises, in what respect if clause (4) an exception to clause
(2), if ‘class’ does not means ‘caste’. Neither clause (1) nor
clause (2) speak of class. Does the contention mean that
clause (1) does not permit classification and therefore
clause (4) is an exception to it. Thus, from any point of
view, the contention of the petitioners has no merit.
Question 2(c):
Whether Article 16(4) is exhaustive of the very concept of
reservations?
744. The aspect next to be considered is whether clause
(4) is exhaustive of the very concept of reservations? In
other words, the question is whether any reservations
can be provided outside clause (4) i.e., under clause (1) of
Article 16. There are two views on this aspect. On a fuller
consideration of the matter, we are of the opinion that
clause (4) is not, and cannot be held to be, exhaustive of
the concept of reservations; it is exhaustive of
reservations in favour of backward classes alone. Merely
because, one form of classification is stated as a specific
clause, it does not follow that the very concept and power
of classification implicit in clause (1) is exhausted
thereby. To say so would not be correct in principle. But,
at the same time, one thing is clear. It is in very
exceptional situations, — and not for all and sundry
40
reasons — that any further reservations, of whatever
kind, should be provided under clause (1). In such cases,
the State has to satisfy, if called upon, that making such
a provision was necessary (in public interest) to redress a
specific situation. The very presence of clause (4) should
act as a damper upon the propensity to create further
classes deserving special treatment. The reason for
saying so is very simple. If reservations are made both
under clause (4) as well as under clause (1), the
vacancies available for free competition as well as
reserved categories would be a correspondingly whittled
down and that is not a reasonable thing to do.
Whether clause (1) of Article 16 does not permit any
reservations?
745. For the reasons given in the preceding paragraphs,
we must reject the argument that clause (1) of Article 16
permits only extending of preference, concessions and
exemptions, but does not permit reservation of
appointments/posts. As pointed out in para 733 the
argument that no reservations can be made under Article
16(1) is really inspired by the opinion of Powell, J in
Bakke, 57 L Ed 2d 750. But in the very same paragraph
we had pointed out that it is not the unanimous opinion
of the Court. In principle, we see no basis for acceding to
the said contention. What kind of special provision
should be made in favour of a particular class is a matter
for the State to decide, having regard to the facts and
circumstances of a given situation — subject, of course,
to the observations in the preceding paragraph.”
(emphasis supplied)
(ii)The opinion expressed by P.B. Sawant, J. (for himself) is
extracted hereunder:
“428. With the majority decision of this Court in State of
Kerala v. N.M. Thomas, (1976) 2 SCC 310, having
confirmed the minority opinion of Subba Rao, J in T.
Devadasan v. Union of India, (1964) 4 SCR 680, the
settled judicial view is that clause (4) of Article 16 is not
an exception to clause (1) thereof, but is merely an
emphatic way of stating what is implicit in clause (1).
429. Equality postulates not merely legal equality but
also real equality. The equality of opportunity has to be
41
distinguished from the equality of results. The various
provisions of our Constitution and particularly those of
Articles 38, 46, 335, 338 and 340 together with the
Preamble, show that the right to equality enshrined in
our Constitution is not merely a formal right or a
vacuous declaration. It is a positive right, and the State is
under an obligation to undertake measures to make it
real and effectual. …..
430. If, however, clause (4) is treated as an exception to
clause (1), an important but unintended consequence
may follow. There would be no other classification
permissible under clause (1), and clause (4) would be
deemed to exhaust all the exceptions that can be made to
clause (1). It would then not be open to make provision
for reservation in services in favour of say, physically
handicapped, army personnel and freedom fighters and
their dependents, project affected persons, etc. The
classification made in favour of persons belonging to
these categories is not hit by clause (2). Apart from the
fact that they cut across all classes, the reservations in
their favour are made on considerations other than that
of backwardness within the meaning of clause (4). Some
of them may belong to the backward classes while some
may belong to forward classes or classes which have an
adequate representation in the services. They are,
however, more disadvantaged in their own class whether
backward or forward. Hence, even on this ground it will
have to be held that Article 16(4) carves out from various
classes for whom reservation can be made, a specific
class, viz., the backward class of citizens, for emphasis
and to put things beyond doubt.
431. For these very reasons, it will also have to be held
that so far as “backward classes” are concerned, the
reservations for them can only be made under clause (4)
since they have been taken out from the classes for which
reservation can be made under Article 16(1). Hence,
Article 16(4) is exhaustive of all the reservations that can
be made for the backward classes as such, but is not
exhaustive of reservations that can be made for classes
other than backward classes under Article 16(1). So also,
no reservation can be made under Article 16(4) for
classes other than “backward classes” implicit in that
article. They have to look for their reservations, to Article
16(1).
42
432. It may be added here that reservations can take
various forms whether they are made for backward or
other classes. They may consist of preferences,
concessions, exemptions, extra facilities etc. or of an
exclusive quota in appointments as in the present case.
When measures other than an exclusive quota for
appointments are adopted, they form part of the
reservation measures or are ancillary to or necessary for
availing of the reservations. Whatever the form of
reservation, the backward classes have to look for them
to Article 16(4) and the other classes to Article 16(1).”
(emphasis supplied)
(iii)The opinion of S. Ratnavel Pandian, J. (for himself) is extracted
hereunder:
“168. In my view, clause (4) of Article 16 is not an
exception to Article 16(1) and (2) but it is an enabling
provision and permissive in character overriding Article
16(1) and (2); that it is a source of reservation for
appointments or posts in the Services so far as the
backward class of citizens is concerned and that under
clause (1) of Article 16 reservation for appointments or
posts can be made to other sections of the society such
as physically handicapped etc.
169. There is complete unanimity of judicial opinion of
this Court that under Article 16(4) the State can make
adequate provisions for reservations of appointments or
posts in favour of any backward class of citizens, if in the
opinion of the State such ‘backward class’ is not
adequately represented in the State. In fact in B.
Venkataramana v. State of Madras, AIR 1951 SC 229, a
sevenJudge Bench of this Court held that “[r]eservation
of posts in favour of any backward class of citizens
cannot, therefore, be regarded as unconstitutional”. Not a
single decision of this Court has cast slightest shadow of
doubt on the constitutional validity of reservation.
Therefore, in view of the above position of law, I am not
inclined to embark upon an elaborate discussion on this
question any further.”
20.On behalf of the State of Punjab, it was argued that preferential
treatment given by the State to certain Scheduled Castes and
43
Scheduled Tribes does not violate Article 14 but brings about
proportional equality. The classification made based on intelligible
differentia is interse backwardness and share in population vis
àvis
proportion of representation in Government services. The differentia
bears a reasonable nexus with the object sought to be achieved.
Those who are unequal class of Scheduled Caste and Scheduled Tribe
can be given the benefit of reservation to ensure that benefit reaches
to them as guaranteed under Article 14. For this purpose, reliance
has been placed on the following decisions:
(i)In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College
& Ors., (1990) 3 SCC 130, the Court held:
“8. Article 15 of the Constitution prohibits discrimination
on grounds of religion, race, caste, sex or place of birth.
Article 15(4), however, enjoins that nothing in that article
or in clause (2) of Article 29 of the Constitution shall
prevent the State from making any special provision of
the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes. Therefore, reservation in
favour of Scheduled Tribes or Scheduled Castes for the
purpose of advancement of socially or educationally
backward citizens to make them equal with other
segments of community in educational or job facilities is
the mandate of the Constitution. Equality is the dictate of
our Constitution. Article 14 ensures equality in its
fullness to all our citizens. State is enjoined not to deny
to any persons equality before law and equal protection of
the law within the territory of India. Where it is
necessary, however, for the purpose of bringing about
real equality of opportunity between those who are
unequals, certain reservations are necessary and these
should be ensured. Equality under the Constitution is a
dynamic concept which must cover every process of
equalisation. Equality must become a living reality for the
large masses of the people. Those who are unequal, in
44
fact, cannot be treated by identical standards; that may
be equality in law but it would certainly not be real
equality. Existence of equality of opportunity depends not
merely on the absence of disabilities but on presence of
abilities. It is not simply a matter of legal equality. De
jure equality must ultimately find its raison d’etre in de
facto equality. The State must, therefore, 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 is necessary to take into account de facto inequalities
which exist in the society and to take affirmative action
by way of giving preference and reservation to the socially
and economically disadvantaged persons or inflicting
handicaps on those more advantageously placed, in order
to bring about real equality. Such affirmative action
though apparently discriminatory is calculated to
produce equality on a broader basis by eliminating de
facto inequalities and placing the weaker sections of the
community on a footing of equality with the stronger and
more powerful sections so that each member of the
community, whatever is his birth, occupation or social
position may enjoy equal opportunity of using to the full
his natural endowments of physique, of character and of
intelligence. In this connection, reference may be made to
the observations of this Court in Pradeep Jain v. Union of
India, (1984) 3 SCC 654.”
(emphasis supplied)
(ii)In Dr. Pradeep Jain & Ors. v. Union of India & Ors., (1984) 3 SCC
654, the following observations were made:
“13. ….. What the famous poet William Blake said
graphically is very true, namely, “One law for the Lion
and the Ox is oppression”. Those who are unequal, in
fact, cannot be treated by identical standards; that may
be equality in law but it would certainly not be real
equality. It is, therefore, necessary to take into account
de facto inequalities which exist in the society and to take
affirmative action by way of giving preference to the
socially and economically disadvantaged persons or,
inflicting handicaps on those more advantageously
placed, in order to bring about real equality. ….”
(emphasis supplied)
45
(iii)In Union of India & Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC
50, it was opined:
“37. It is a wellaccepted premise in our legal system that
ideas such as “substantive equality” and “distributive
justice” are at the heart of our understanding of the
guarantee of “equal protection before the law”. The State
can treat unequals differently with the objective of
creating a levelplaying field in the social, economic and
political spheres. The question is whether “reasonable
classification” has been made on the basis of intelligible
differentia and whether the same criteria bears a direct
nexus with a legitimate governmental objective. When
examining the validity of affirmative action measures, the
enquiry should be governed by the standard of
proportionality rather than the standard of “strict
scrutiny”. Of course, these affirmative action measures
should be periodically reviewed and various measures
modified or adapted from time to time in keeping with the
changing social and economic conditions. Reservation of
seats in panchayats is one such affirmative action
measure enabled by Part IX of the Constitution.”
(emphasis supplied)
(iv)In Dega Venkata Harsha Vardhan & Ors. v. Akula Ventaka
Harshavardhan & Ors., (2019) 12 SCC 735, similar observations were
made.
21.The objectoriented approach has to be adopted as observed in
S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001 SC 2707, T.M.A.
Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481,
Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Ors., AIR 2005
SC 800. In M. Nagaraj, the following observations were made:
“122. We reiterate that the ceiling limit of 50%, the
concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation and
46
overall administrative efficiency are all constitutional
requirements without which the structure of equality of
opportunity in Article 16 would collapse.”
In Re. Application of Creamy Layer Concept to the Scheduled
Castes:
22.(a)In Indra Sawhney, within those identified as backward
classes, exclusion had been permitted to those who are socially and
educationally advanced. B.P. Jeevan Reddy, J. (for himself and other
three Judges) observed thus:
“792. …..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).
795. We see no reason to qualify or restrict the meaning
of the expression “backward class of citizens” by saying
that it means those other backward classes who are
situated similarly to Scheduled Castes and/or Scheduled
Tribes. As pointed out in para 786, the relevant language
employed in both the clauses is different. Article 16(4)
does not expressly refer to Scheduled Castes or
Scheduled Tribes; if so, there is no reason why we should
treat their backwardness as the standard backwardness
for all those claiming its protection. As a matter of fact,
neither the several castes/groups/tribes within the
Scheduled Castes and Scheduled Tribes are similarly
situated nor are the Scheduled Castes and Scheduled
Tribes similarly situated. If any group or class is situated
similarly to the Scheduled Castes, they may have a case
for inclusion in that class but there seems to be no basis
either in fact or in principle for holding that other
classes/groups must be situated similarly to them for
qualifying as backward classes. There is no warrant to
import any such a priori notions into the concept of Other
Backward Classes. At the same time, we think it
appropriate to clarify that backwardness, being a relative
47
term, must in the context be judged by the general level
of advancement of the entire population of the country or
the State, as the case may be. More than this, it is
difficult to say. How difficult is the process of
ascertainment of backwardness would be known if one
peruses Chapters III and XI of Volume I of the Mandal
Commission Report along with Appendixes XII and XXI in
Volume II. It must be left to the Commission/Authority
appointed to identify the backward classes to evolve a
proper and relevant criteria and test the several groups,
castes, classes and sections of people against that
criteria. If, in any case, a particular caste or class is
wrongly designated or not designated as a backward
class, it can always be questioned before a court of law as
well. We may add that relevancy of the criteria evolved by
Mandal Commission (Chapter XI) has not been
questioned by any of the counsel before us. Actual
identification is a different matter, which we shall deal
with elsewhere.
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
nonHindus, 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 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
48
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).”
(emphasis supplied)
23.In Jarnail Singh, it was held that the application of the creamy
layer concept to Articles 341 and 342 does not in any way tinker with
the Presidential List. Following discussion was made:
“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 subgroup
named in the said List continues exactly as before. It is
only those persons within that group or subgroup, 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 who
are contained within the group or subgroup in the
49
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 subgroup 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 subgroups 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 subgroup 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
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 subgroups
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,
(2008) 6 SCC 1 that the creamy layer principle is merely
a principle of identification and not a principle of
equality.
28. Therefore, when Nagaraj, (2006) 8 SCC 212, 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(4A) and 16(4B), 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 need to refer Nagaraj,
(2006) 8 SCC 212 to a sevenJudge Bench. We may also
add at this juncture that Nagaraj, (2006) 8 SCC 212 is a
50
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, (2009) 9 SCC
454 (twoJudge Bench) (see paras 17 and 18).
28.2. Suraj Bhan Meena v. State of Rajasthan, (2011) 1
SCC 467 (twoJudge Bench) (see paras 10, 50, and 67).
28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7
SCC 1, (twoJudge Bench) [see paras 61, 81(ix), and 86].
28.4. S. Panneer Selvam v. State of T.N., (2015) 10 SCC
292, (twoJudge Bench) (see paras 18, 19, and 36).
28.5. Central Bank of India v. SC/ST Employees Welfare
Assn., (2015) 12 SCC 308 (twoJudge Bench) (see paras 9
and 26).
28.6. Suresh Chand Gautam v. State of U.P., (2016) 11
SCC 113 (twoJudge Bench) (see paras 2 and 45).
28.7. B.K. Pavitra v. Union of India, (2017) 4 SCC 620
(twoJudge Bench) (see paras 17 to 22).”
(emphasis supplied)
24.Reliance has been placed upon Ashoka Kumar Thakur v. Union of
India and Ors., (2008) 6 SCC 1, to hammer home the point that the
decision in Indra Sawhney (supra) was limited to other backward
classes and not to Scheduled Castes. It was observed:
“395. In Sawhney (I), 1992 Supp (3) SCC 217, the entire
discussion was confined only to Other Backward Classes.
Similarly, in the instant case, the entire discussion was
confined only to Other Backward Classes. Therefore, I
express no opinion with regard to the applicability of
exclusion of creamy layer to the Scheduled Castes and
Scheduled Tribes.
633. In Indra Sawhney (1), 1992 Supp (3) SCC 217,
creamy layer exclusion was only in regard to OBC. Reddy,
J. speaking for the majority at SCC p. 725, para 792,
stated that “[t]his discussion is confined to Other
Backward Classes only and has no relevance in the case
51
of Scheduled Tribes and Scheduled Castes”. Similarly, in
the instant case, the entire discussion was confined only
to Other Backward Classes. Therefore, I express no
opinion with regard to the applicability of exclusion of
creamy layer to the Scheduled Castes and Scheduled
Tribes.”
(emphasis supplied)
In Ashoka Kumar (supra), no opinion was expressed concerning
the creamy layer concept to Scheduled Castes and Scheduled Tribes.
However, now Jarnail Singh (supra) is crystal clear in that regard and
lays down that it can be applied to Scheduled Castes and Scheduled
Tribes, and that would not amount to tinkering with lists under
Articles 341 and 342. The question involved in the present matter is of
classification and thereby preferential treatment without depriving any
caste benefit of reservation.
25.It was argued that E.V. Chinnaiah is contrary to other binding
decisions in K.C. Vasanth Kumar and N.M. Thomas.
(a)In K.C. Vasanth Kumar decision in M. R. Balaji was
distinguished. It was held that classification between backward and
more backward is necessary to help more backward classes. The sub
classification was held to be permissible to help those classes who are
definitely far behind the advanced classes, but ahead of the very
backward classes. Following opinion was expressed:
“55. It was also observed in Balaji, AIR 1963 SC 649, that
the subclassification made by the reservation order
between backward classes and more backward classes
52
did not appear to be justified under Article 15(4) as it
appeared to be a measure devised to benefit all the
classes of citizens who were less advanced when
compared with the most advanced classes in the State,
and that was not the scope of Article 15(4). A result of the
subclassification was that nearly 90 per cent of the
population of the State was treated as backward. The
propriety of such a course may be open to question on
the facts of each case, but we do not see why on principle
there cannot be a classification into backward classes
and more backward classes, if both classes are not
merely a little behind, but far far behind the most
advanced classes. 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 might 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
backward classes, the most advanced classes would walk
away with all the seats available for the general category
leaving none for the backward classes. All that we can
say is that subclassification may be permissible if there
are classes of people who are definitely far behind the
advanced classes but ahead of the very backward
classes.”
(emphasis supplied)
(b)In N.M. Thomas, it was observed that there could be no objection
to further classification within a class. It was held that men are born
different, and some sort of differential treatment is required to achieve
proportional equality. The Court opined thus:
“82. The word “caste” in Article 16(2) does not include
“scheduled caste”. The definition of “Scheduled Castes” in
Article 366(24) 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.
This shows that it is by virtue of the notification of the
President that the Scheduled Castes come into being.
53
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).
83. A classification is reasonable if it includes all persons
who are similarly situated with respect to the purpose of
the 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; S.G. Jaisinghani v. Union of India and State of
J&K. v. Triloki Nath Khosa, (1974) 1 SCR 771, has no
application here.
*** *** ***
167. A combined reading of Article 46 and clauses (24)
and (25) of Article 366 clearly shows that the members of
the scheduled castes and the scheduled tribes must be
presumed to be backward classes of citizens, particularly
when the Constitution gives the example of the scheduled
castes and the scheduled tribes as being the weaker
sections of the society.
169. Thus in view of these provisions the members of the
scheduled castes and the scheduled tribes have been
given a special status in the Constitution and they
constitute a class by themselves. That being the position
it follows that they do not fall within the purview of
Article 16(2) of the Constitution which prohibits
discrimination between the members of the same caste.
54
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 able to
be properly represented in the services under the State.
This can undoubtedly be done under Article 16(1) of the
Constitution.”
(emphasis supplied)
26.It was argued that the class of citizens cannot be treated to be
socially and educationally backward till perpetuity those who have
come up must be excluded like the creamy layer. The question arises
for exclusion by courts of such class. The power of the court was
upheld in Jarnail Singh. To take home the submission, reliance has
been placed on Jagdish Negi, President, Uttarakhand Jan Morcha, in
which it was held as under:
“9. It is, therefore, obvious that residents of hills and
Uttarakhand areas were treated as socially and
educationally backward classes of citizens entitled to
benefit under Articles 15(1), 15(4) and 29(2) of the
Constitution in the year 1974 when this Court decided
that case. But simply on this basis it cannot be urged
that this class of citizens could be condemned as socially
and educationally backward class of citizens till eternity,
however much they may like to be stigmatized as
educationally and socially backward class of citizens.
This class is always required to be judged in the light of
the existing fact situation at a given point of time. There
cannot be a class of citizens which can be treated
perpetually to be a socially and educationally backward
class of citizens. Every citizen has the right to develop
socially and educationally. …….
14. It is, however, not possible to agree with the
contention of learned Senior Counsel for the petitioners
that such reservation should continue without any
limitation or there cannot be periodical review about the
said reservation policy. ….. Consequently the question
whether a given category of citizens continues to be
55
socially and educationally backward class of citizens at a
given point of time or not has to be left to the State
concerned for its objective decision from time to time. The
State cannot be bound in perpetuity to treat such classes
of citizens for all times as socially and educationally
backward classes of citizens. The principle of “once a
mortgage always a mortgage” cannot be pressed into
service for submitting that once a backward class of
citizens, always such a backward class. In other words, it
is open to the State to review the situation from time to
time and to decide whether a given class of citizens that
has earned the benefit of 27 per cent reservation as
socially and educationally backward class of citizens has
continued to form a part of that category or has ceased to
fall in that category. Thereby it cannot be said that the
first respondent is adopting a policy which is contrary to
the constitutional scheme of reservation. Within the four
corners of Article 15(4) or Article 16(4) such an exercise
cannot be said to be unauthorised. Such an exercise has
been upheld by the Constitution Bench of this Court in
Indra Sawhney v. Union of India, 1992 Supp (3) SCC
217.”
(emphasis supplied)
In Re. Effect of insertion of Article 342A:
27.Article 341 is extracted hereunder:
“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 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
56
aforesaid a notification issued under the said clause shall
not be varied by any subsequent notification.”
Articles 342 and 342A deal with Scheduled Tribes and socially
and educationally backward classes respectively. They are extracted
hereunder:
“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.
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 the
socially and educationally backward classes which shall
for the purposes of this Constitution 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.”
It is provided in Article 341(1) that the President may specify the
castes, races or tribes or parts of or groups within castes, races or
tribes in relation to a State or Union territory. As per Article 341(2),
57
the Parliament has the power to include or exclude from the list of
Scheduled Castes. Article 366 defines ‘Scheduled Castes’, ‘Scheduled
Tribes’ and ‘Socially and Educationally Backward Classes’, thus:
“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;
(26C) “socially and educationally backward classes”
means such backward classes as are so deemed under
article 342A for the purposes of this Constitution;”
Article 342A has been inserted by the Constitution (One
Hundred and Second Amendment) Act, 2018, w.e.f. 14.8.2018. In
Indra Sawhney, the question of reservation of socially and
educationally backward classes was involved. Article 342A's
provisions are pari materia to Articles 341 and 342 dealing with
Scheduled Castes and Scheduled Tribes. Under Article 342A the
President is empowered to issue public notification with respect to
socially, and educationally backward classes which shall for the
58
Constitution be deemed to be socially and educationally backward
classes in relation to that State or Union territory and the Parliament
may by law has the power to include in or exclude from the Central
list of socially and educationally backward class. The power of
variation can be exercised only once. When we consider the definition
of ‘socially and educationally backward classes’ as defined in Article
366(26C), it means such backward classes as are so deemed under
Article 342A for the purposes of the Constitution. In order to be
recognised, it is necessary that socially and educationally class to find
a place in the notification issued under Article 342A(1). The
provisions of Articles 341, 342, and 342A are pari materia, and the
reservation for socially and educationally backward classes was the
subject matter under consideration in Indra Sawhney. Thus, the
question arises how different opinions can be expressed with respect
to Scheduled Castes, Scheduled Tribes, and socially and educationally
backward classes for the purposes of the classification. The
provisions of Article 16(4) and Article 342A indicate that it would not
be permissible to adopt different criteria for Scheduled Castes,
Scheduled Tribes, and socially and educationally backward classes.
The authoritative pronouncement is required with respect to the effect
of aforesaid provisions of the Constitution and whether sub
classification is permissible only with respect to the socially and
59
educationally backward classes covered under Article 342A read with
Article 366(26C) and not with respect to Scheduled Castes and
Scheduled Tribes covered under similar provisions, i.e., under Articles
341 and 342 read with Article 366(24) and 366(25) respectively. The
question of immense public importance arises in view of the insertion
of Article 342A. When we consider Indra Sawhney, permitting such
classification of socially and educationally backward class, and
provisions of Articles 341, 342, and 342A are pari materia, the Court
is required to have a fresh look on the decision rendered in E.V.
Chinnaiah. In the spirit of constitutional provisions, the question is
required to be reexamined authoritatively by this Court being of
immense public importance. Thus, the case is required to be heard by
a larger Bench than the one which decided E.V. Chinnaiah.
Whether subclassification amounts to exclusion under Article
341(2)?
28.Whether subclassification amounts to exclusion? What is
provided under Articles 341(2), 342(2), and 342A(2) with respect to
Scheduled Castes, Scheduled Tribes, and socially and educationally
backward classes in the Central list, the Parliament has the power
concerning inclusion or exclusion. Once there is exclusion, there is no
power to reinclude. The Parliament has the power to include in or
60
exclude from the Central list of Scheduled Castes, Scheduled Tribes,
and socially and educationally backward classes.
29.The question arising for consideration is whether sub
classification made or preferential treatment within the class of
Scheduled Castes, Scheduled Tribes and socially and educationally
backward classes can be said to be an exercise of inclusion or
exclusion particularly when the other castes in the list of Scheduled
Caste persons are not deprived of the benefit of reservation in totality.
All the castes included in the list of Scheduled Caste are given the
benefit of reservation as per representation in service, but only specific
percentage fixed for preferential treatment to a caste/class which was
not able to enjoy the benefit of reservation on account of their being
more backward within the backward classes of Scheduled Castes. The
preferential treatment would not tantamount to excluding other
classes as total deprivation caused to any of the castes in the list of
Scheduled Caste under Article 341(2). Caste is nothing but a class. It
is the case of classification to provide benefit to all and to those
deprived of the benefit of reservation, being the poorest of the poor.
Whether the action based on intelligible differentia to trickle down the
benefit can be said to be violative of Articles 14 and 16 of the
Constitution and whether subclassification can be said to be an act of
inclusion or exclusion particularly when various reports indicating
61
that there is inequality inter se various castes included within the list
of Scheduled Castes. They do not constitute homogenous class have
been relied upon. Based on the report and to give adequate
representation to those who continue to remain the most backward of
the downtrodden class, the provisions containing a certain percentage
of preferential treatment subject to availability without depriving
others in the list were made.
30.In the Speech made by Dr. Ambedkar in the Constituent
Assembly regarding the enactment of Articles 341 and 342, he stated
that the object is to eliminate any kind of political factor in the matter
of the disturbance in the schedule so published by the President. The
same has been referred to in Milind thus:
“14. In the debates of Constituent Assembly (Official
Report, Vol. 9) while moving to add new Articles 300A
and 300B after Article 300 (corresponding to Articles
341 and 342 of the Constitution), Dr B.R. Ambedkar
explained as follows:
“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 purpose of these 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
62
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.”
(emphasis supplied)
31.The law is settled that once the President has issued a
notification specifying the list included in the Scheduled under Article
341(1), the Parliament is competent to make the variation in the
notification as provided under Article 341(2) from the following
decisions:
(i) B. Basavalingappa v. D. Munichinnappa, (1965) 1 SCR 316, it was
held that the power was given to the Parliament to modify the
notification and any subsequent notification shall not vary same;
hence, the making of notification by the President is final for all times
except for modification by law as provided by clause (2).
(ii)In Bhaiya Lal v. Harikishan Singh (1965) 2 SCR 877, it was
observed that before issuing a public notification under Article 341(1),
an elaborate enquiry is required to be made. As a result, thereof social
justice is sought to be done to the castes, races, or tribes. There can
be specifications by reference to different areas in the State.
Educational and social backwardness may not be uniform or of the
same intensity in the whole of the State.
63
(iii)In Srish Kumar Choudhury v. State of Tripura & Ors ., (1990)
Supp. SCC 220, it was opined that the State Government may initiate
appropriate proposals for modification in case the claim is genuine
and tenable.
(iv)In Palghat Jilla Thandan Samudhaya Samrakshna Samithi &
Anr. v. State of Kerala & Anr., (1994) 1 SCC 359, it was held that no
enquiry could be held or evidence let in to determine whether or not
some particular caste falls within it or outside it.
(v)In Milind, law to a similar effect was laid down whether a
particular Scheduled Caste or Scheduled Tribe in the list is to be
determined looking to them as they are. The Article does not permit
anyone to seek modification by leading evidence that other caste or
tribe is part of the castes or tribes mentioned in the list. No purpose
would be served to look at gazetteers or glossaries for establishing the
same. It is not open to the court to modify or vary the order.
(vi)In Bir Singh, it was held that any expansion/deletion of the list
of Scheduled Castes/Scheduled Tribes by any authority except
Parliament would be against the constitutional mandateunder Articles
341 and 342. 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, the State
64
to make its views in the matter prevail with the central authority to
enable an appropriate parliamentary exercise to be made by an
amendment of the lists of Scheduled Castes/Scheduled Tribes.
(vii)In Heikham Surchandra Singh & Ors. v. Representatives of “Lois”
Kakching, Manipur (A scheduled caste uplift body) & Ors., (1997) 2 SCC
523, it was observed that for the purpose of the Constitution,
“Scheduled Tribes” defined under Article 366(25) as substituted under
the Act, and the Second Schedule are conclusive.
(viii)In Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India &
Ors., (2007) 5 SCC 360, law to a similar effect was laid down.
(ix)Article 341(1) protects the Scheduled Caste's members, having
regard to their economic and educational backwardness. In that
context, the President is empowered to limit the notification to parts or
groups within the castes. The notification issued in terms of the said
provision is exhaustive. The legal fiction is required to be given its full
effect as laid down in Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC
204. In Punit Rai, it was observed that the President has been
authorised to limit the notification to parts or groups within the
castes. The notification issued is exhaustive. The object of Article
341(1) is to provide preferential right by way of protection to the
65
members of the Scheduled Castes having regard to the economic and
educational backwardness from which they suffer.
(x)In Subhash Chandra v. Delhi Subordinate Services Selection
Board, (2009) 15 SCC 458, the question arose concerning migrants
not listed in the Presidential notification. Whether they could claim
the benefit of reservation? It was held that the subject of reservation,
vis
àvis inclusion of castes/tribes. The presence of Articles 338, 338
A, 341, 342 in the Constitution precludes that. The Central
Government and the State Government may lay down a policy decision
regarding reservation having regard to Articles 15 and 16, but such a
policy cannot violate other constitutional provisions.
32.For revisiting the decision of E.V. Chinnaiah and doctrine of
stare decisis, several decisions have been cited at the Bar. They are as
follows:
(a)In Sambhu Nath Sarkar v. State of West Bengal & Ors., (1973) 1
SCC 856, it was held that the Court would review its earlier decisions
if it is satisfied with its error or of the baneful effect such a decision
would have on the general interest of the public or if it is inconsistent
with the legal philosophy of Constitution, as such perpetuation would
be harmful to public interests.
66
(b)In State of Washington v. Dawson & Co., 264 U.S. 219, observed
that a judgment seriously affects the lives of men, women, and
children, and the general welfare, the stare decisis is not a universal,
inexorable command.
(c)In David Burnet v. Colorado Oil & Gas Company, 285 U.S. 393, it
was observed that in cases involving the Federal Constitution, where
correction through legislative action is practically impossible, this
court has often overruled its earlier decisions. The court bows to the
lessons of experience and the force of better reasoning, recognising
that the process of trial and error, fruitful in the physical sciences, is
also appropriate in the judicial function.
(d)In Graves v. People of the State of New York, 306 U.S. 466, it was
observed that the ultimate touchstone of constitutionality is the
Constitution itself and not what we have said about it.
(e)In Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304; 4 L. Ed. 97,
102, it was held that it could not be foreseen what new changes and
modifications of power might be indispensable to effectuate the
general objects of the charter; and restrictions and specifications,
which, at the present, might seem salutary, might, in the end, prove
the overthrow of the system itself.
67
(f)In Bengal Immunity Company Limited v. State of Bihar & Ors.,
(1955) 2 SCR 603, this Court observed that if the Court is convinced of
the baneful effect on the general interests of the public, the decision
has to be revisited, if its effect is farreaching as it affects the rights of
all consuming public.
(g)In M. Nagaraj, it was laid down that a right becomes a
fundamental right because it has foundational value. A Constitution
is to be given a generous and purposive construction. It would enable
the citizens to enjoy the rights guaranteed by it in the fullest measure.
(h)In I.R. Coelho, it was held that the Court can also examine
additional grounds in the constitutional matters of public interest.
33.With respect to the value of binding precedent, Shri Sanjay
Hegde, learned senior counsel, has relied upon the following decisions:
(a)Keshav Mills Co. Ltd. v. Commissioner of Income Tax, (1965) 2
SCR 908, to lay down that unless there are compelling and substantial
reasons, the court would be reluctant to entertain pleas for the
reconsideration and revision of its earlier decision.
(b)In Union of India & Anr. v. Raghubir Singh (dead) by LRs. etc.,
(1989) 2 SCC 754, while laying down that the doctrine of binding
precedent has the merit of promoting certainty and consistency in
judicial decisions.
68
34.It was rightly pointed out by Shri R. Venkataramani that 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 as held in GVK. Industries Limited & Anr. v. Income Tax
Officer & Anr., (2011) 4 SCC 36. The observations made are extracted
hereunder:
“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.”
35.A Constitutional Court declares law as contained in the
Constitution, but in doing so, it rightly reflects that a Constitution is a
living and organic thing, which of all instruments has the greatest
claim to be construed broadly and liberally as observed in Goodyear
India Ltd. & Ors. v. State of Haryana & Anr., (1990) 2 SCC 71.
36.This Court discussed the concept of socially and educationally
backward classes in Indra Sawhney; however, the Court observed in
69
paragraph 781 extracted above that Scheduled Castes and Scheduled
Tribes are admittedly included within the backward classes, as such
there was no need to discuss that. Thus, the discussion was confined
to whether socially and educationally backward classes can be
included in Article 16(4), it was opined that ken of Article 16(4) is
wider than Article 15(4). It was also observed that backward classes
contemplated under Article 16(4) do comprise some castes. The
Scheduled Castes include quite a few castes. Based on the aforesaid
foundational basis, interpretation was made. In our opinion, the
decision is relevant for interpreting Article 16(4) provisions in their
application to Scheduled Castes, Scheduled Tribes, and other
backward classes. They stand on the similar footing, and they cannot
be treated as different from other as also fortified by insertion of
Article 342A which is pari materia to Article 341 or 342 and
considering the definition in Article 366(24) and (26C) and
classification of backward classes can be done. The Scheduled Castes
and Scheduled Tribes admittedly are backward, and the same
yardstick would apply to all. In Indra Sawhney, it was held that it is
permissible to make subclassification within socially and
educationally backward classes. That discussion would be applicable
for Scheduled Castes and Scheduled Tribes as they admittedly fall
under Article 16(4).
70
37.In Indra Sawhney, B.P. Jeevan Reddy, J. observed that several
castes or tribes within the Scheduled Castes and Scheduled Tribes are
not similarly situated. In N.M. Thomas, it was held that Scheduled
Castes are group of castes, races, tribes, communities, or parts thereof
found suitable by the commission and notified by the President. Caste
is nothing but a social class or socially homogenous class. It is based
on occupational grouping. Its membership is by birth, and they
inherit the same occupation.
38.The question arises whether subclassification for providing
benefit to all castes can be said to be tinkering with the list under
Articles 341, 342 and 342A, in view of the decisions in Indra Sawhney,
permitting subclassifications of backward classes and in Jarnail
Singh, 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 Article 341 or 342 of the Constitution. The caste or group or
subgroup continued exactly as before in the list. It is only those
persons within that group or subgroup, 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;
71
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.
39.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 subclassification is denied,
it would defeat right to equality by treating unequal as equal. In
Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors., 2020 SCC
OnLine SC 383, the necessity of revising lists was pointed out relying
on Indra Sawney and Union of India & Ors. v. Rakesh Kumar & Ors.,
(2010) 4 SCC 50.
40.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 subclassification 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
72
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 subclassification 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 homogenous class.
41.The Constitution is an effective tool of social transformation;
removal of inequalities intends to wipe off tears from every eye. The
social realities cannot be ignored and overlooked while the
Constitution aims at the comprehensive removal of the disparities.
The very purpose of providing reservation is to take care of disparities.
The Constitution takes care of inequalities. There are unequals within
the list of Scheduled Castes, Scheduled Tribes, and socially and
educationally backward classes. Various reports indicate that
Scheduled Castes and Scheduled Tribes do not constitute a
homogenous group. The aspiration of equal treatment of the lowest
73
strata, to whom the fruits of the reservation have not effectively
reached, remains a dream. At the same time, various castes by and
large remain where they were, and they remain unequals, are they
destined to carry their backwardness till eternity?
42.The State's obligation is to undertake the emancipation of the
deprived section of the community and eradicate inequalities. When
the reservation creates inequalities within the reserved castes itself, it
is required to be taken care of by the State making subclassification
and adopting a distributive justice method so that State largesse does
not concentrate in few hands and equal justice to all is provided. It
involves redistribution and reallocation of resources and opportunities
and equitable access to all public and social goods to fulfil the very
purpose of the constitutional mandate of equal justice to all.
43.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
74
mean that inequality being perpetuated within the class if preferential
classification is not made ensuring benefit to all.
44.The subclassification 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 said
dynamics is the question to be considered authoritatively by the
Court.
45.The Scheduled Castes as per Presidential List are not frozen for
all the time, and neither they are a homogenous 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.
46.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
75
State can also make subclassification 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
temper 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.
47.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.
48.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 reality as no one can claim
76
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.
49.In the federal structure, the State, as well as the Parliament,
have a constitutional directive for the upliftment of Scheduled Castes,
Scheduled Tribes, and socially and backward classes. Only inclusion
or exclusion in the Presidential notification is by the 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 342A as no enlisted caste is denied the benefit of reservation.
50.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
77
emancipation of the oppressed class. The benefit by and large is not
percolating down to the neediest and poorest of the poor.
51.The interpretation of Articles 14, 15, 16, 338, 341, 342, and
342A is a matter of immense public importance, and correct
interpretation of binding precedents in Indra Sawhney 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.
52.We endorse the opinion of a Bench of 3 Judges that E.V.
Chinnaiah 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 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.
...………………….J.
(Arun Mishra)
78
…….……………….J.
(Indira Banerjee)
…….……………….J.
(Vineet Saran)
…….……………….J.
(M.R. Shah)
New Delhi …….……………….J.
August 27, 2020 (Aniruddha Bose)
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