The State Of Punjab vs. Davinder Singh

Reportable 2024 INSC 562 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE / ORIGINAL JURISDICTION Civil Appeal No. 2317 of 2011 The State of Punjab & Ors. …Appellants Versus Davinder Singh & Ors. …Respondents With C.A. No.6936 of 2015 With C.A. No.5597 of 2010 With W.P.(C) No. 21 of 2023 With C.A. No.5593 of 2010 With S.L.P.(C) No.30766 of 2010 With S.L.P.(C) No. 8701 of 2011 With S.L.P.(C) Nos.36500-36501 of 2011 Signature Not Verified Digitally signed by Sanjay Kumar Date: 2024.08.01 12:04:15 IST Reason: With T.C.(C) No.38 of 2011 1 With T.P.(C) No.464 of 2015 With W.P.(C) No.1477 of 2019 With C.A. No.5586 of 2010 With C.A. No.5598 of 2010 With C.A. Nos. 5595-5596 of 2010 With C.A. No.2324 of 2011 With T.C.(C) No.37 of 2011 With C.A. No.5589 of 2010 With C.A. No.5600 of 2010 With C.A. No.5587 of 2010 With S.L.P.(C) Nos.5454-5459 of 2011 With C.A. No.2318 of 2011 With C.A. No.289 of 2014 And With W.P.(C) No.562 of 2022 2 J U D G M E N T Dr Dhananjaya Y Chandrachud, CJI A. Background ................................................................................................ 5 i. Relevant constitutional provisions ........................................................... 5 ii. The genesis of the reference to the Constitution Bench ........................ 7 iii. The judgment in Chinnaiah .................................................................. 11 iv. The reference ......................................................................................... 16 B. Submissions ............................................................................................. 18 i. Submissions of Petitioners ..................................................................... 18 ii. Submissions of Respondents ................................................................. 25 C. Issues ........................................................................................................ 31 D. Analysis ..................................................................................................... 32 i. The jurisprudence on reservation .......................................................... 32 a. Reservation as an exposition of substantive equality ............................. 32 I. The competing visions of equality ........................................................ 32 II. The “efficiency” of reservation .............................................................. 38 III. The interplay of Article 16 and Article 335 ........................................ 44 ii. Permissibility of sub-classification under Article 14 ............................ 52 a. The contours of Article 14 ....................................................................... 53 b. Sub-classification as a facet of equality .................................................. 55 c. Micro-classification: the limits of sub-classification ................................. 61 iii. Sub-classification in reservations: tracing the journey through Balaji, Vasanth Kumar and Indra Sawhney .................................................. 63 3 a. Indra Sawhney did not exclude sub-classification within the Scheduled Castes ........................................................................................................... 69 iv. The import of the deeming fiction in Article 341 ................................ 72 a. Chinnaiah on the deeming fiction in Article 341 ....................................... 72 b. Scope of deeming fiction ........................................................................... 74 c. Article 341 does not create a deeming fiction ............................................ 76 d. Article 341(1) read with Article 341(2) only proscribes exclusion from and inclusion in the Scheduled Castes List. ......................................................... 81 v. Historical and empirical evidence of inter-se backwardness within the Scheduled Castes ........................................................................................... 88 a. Identification of the depressed classes ................................................... 89 b. Empirical evidence of heterogeneity ....................................................... 96 vi. The power of the State to sub-classify under Articles 15 and 16 ... 100 vii. Criteria for sub-classification ............................................................ 103 a. The meaning of “Backward Class” ........................................................ 104 b. Inadequacy of representation in services of the State .......................... 110 c. The requirement of “effective” representation ....................................... 115 d. Yardstick for sub-classification .............................................................. 120 viii. The limits of sub-classification .......................................................... 122 a. Model of special provisions ................................................................... 122 b. The caste-class conundrum .................................................................. 128 ix. Scope for judicial review .................................................................... 131 a. Inter-se backwardness .......................................................................... 131 b. Adequacy of representation .................................................................. 133 E. Conclusion .............................................................................................. 138 4 PART A 1. The reference to this Constitution Bench raises significant questions relating to the right to equal opportunity guaranteed by the Constitution. The principal issue is whether sub-classification of the Scheduled Castes for reservation is constitutionally permissible. A. Background i. Relevant constitutional provisions 2. Article 14 of the Constitution stipulates that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 15(1) states that the State should not discriminate against any citizen on grounds only of religion, race, , sex, place of birth caste or any of them. Article 15(4) stipulates that nothing in Article 15 shall prevent the State from making any for the advancement of special provision any socially and educationally backward classes of citizens or for the Scheduled 1 Castes and the Scheduled Tribes. 3. Article 16 deals with equality of opportunity in matters of public employment. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) stipulates that no citizen shall be discriminated in or be ineligible for any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Clause (4) 1 Article 15 (4) “Nothing in this article or in clause (2) of Article 29 shall prevent the State form making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” 5 PART A of the provision states that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not 2 adequately represented in the services under the State . 4. Article 366(24) of the Constitution defines the term ‘Scheduled Castes’ to mean such castes, tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Article 341(1) grants the President the power to notify the castes, races or tribes (or parts of or groups within castes, races or tribes) which shall be to be Scheduled Castes for a State or a Union deemed Territory for the purposes of the Constitution. The President has been empowered to issue the notification with respect to a State in consultation with the Governor of the State. Article 341(2) stipulates that Parliament may by law include or exclude any caste, race, or tribe (or part of or group within any caste, race, or tribe) from the list of Scheduled Castes specified in the notification and that a notification issued under clause (1) shall not be varied by any subsequent notification. Article 341 is extracted below for reference: “Article 341. Scheduled Castes.- (1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes, or parts of or groups within castes, races, tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. 2 Article 16 (4) “Nothing in this article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the services under the State.” 6 PART A (2) Parliament may by law include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race, or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 3 4 5. Articles 342 and 342-A relate to notification of Scheduled Tribes and socially and educationally backward classes respectively and contain provisions pari materia to Article 341. ii. The genesis of the reference to the Constitution Bench 6. The State Legislature of Punjab enacted the Punjab Scheduled Castes and 5 Backward Classes (Reservation in Services) Act 2006 . The long title stipulates that it is a statute to provide for reservation in services for the members of the Scheduled Castes and Backward Classes and for matters incidental thereto. Section 2(f) defines “Scheduled Castes” as Scheduled Castes notified by the President under Article 341 of the Constitution by the Constitution (Scheduled Castes) Order 1950, as amended from time to time. 3 Article 342. Scheduled Tribes.-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 4 Article 342A. Socially and educationally backward classes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify 6 [the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government] be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 5 “Punjab Act” 7 PART A Section 4(2) provides that reservation of twenty-five percent shall be made for the members of the Scheduled Castes and twelve percent for Backward Classes while filing up vacancies by direct recruitment in services. Section 4(5) stipulates that fifty percent of the vacancies of the quota reserved for the Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, if available, as a first preference from amongst the Scheduled Castes. 7. Proceedings were instituted under Article 226 of the Constitution for challenging the validity of Section 4(5) of the Punjab Act. By a judgment dated 29 March 2010, the High Court of Punjab and Haryana declared Section 4(5) unconstitutional, relying on the judgment of the Constitution Bench of this 6 Court in EV Chinniah v. State of Andhra Pradesh . 8. Opposing the State’s appeal against the order of the High Court, the respondents relied upon the judgment of the Constitution Bench in Chinnaiah (supra). The State submitted that Chinnaiah (supra) does not apply to the controversy in hand and that the decision is in any event, not consistent with 7 the judgment of the nine-Judge Bench in Indra Sawhney v. Union of India. On 20 August 2014, a three-Judge Bench referred the correctness of Chinnaiah (supra) for consideration by a larger Bench. The three-Judge Bench observed that the judgment needs to be revisited, considering Article 338, the judgment of this Court in (supra) and the interplay Indra Sawhney between Article 16 and Articles 338 and 341 of the Constitution. 6 (2005) 1 SCC 394 7 (1992) Supp (3) SCC 217 8 PART A 8 9. On 9 November 1994, the Government of Haryana issued a notification by which the Scheduled Castes in the State were classified into two categories - Blocks A and B - for the purposes of reservation. Block B consisted of Chamars, Jatia Chamars, Rahgars, Raigars, Ramdasias or Ravidasias. Block A consisted of the remaining thirty-six castes in the list of Scheduled Castes for the State. Within the quota reserved for Scheduled Castes in direct recruitment for Government jobs, fifty percent of the vacancies were to be offered to candidates from Block A and the other fifty percent were to be offered to candidates from Block B. The notification further stipulated that in case suitable candidates from Block A were unavailable, candidates from Block B should be recruited against those vacancies. Similarly, in the event that suitable candidates from Block B were unavailable, candidates from Block A should be recruited against those vacancies. Thus, preference would be given to castes belonging to Block A and Block B in the fifty per cent earmarked for them. Proceedings were initiated under Article 226 for challenging the constitutional validity of the notification. By a judgment dated 6 July 2006, the High Court of Punjab and Haryana quashed the notification on the ground that the sub-classification of castes placed in the list of Scheduled Castes is unconstitutional in view of the judgment of this Court in Chinnaiah (supra). The Special Leave Petitions challenging the judgment of the High Court of Punjab and Haryana were tagged with the appeals involving the challenge to the Punjab Act. 8 Notification No.22/5590-3-GS/111 9 PART A 10. The State Legislature of Tamil Nadu enacted the Tamil Nadu Arunthathiyars (Special Reservation of seats in educational institutions including private educational Institutions and of appointments or posts in services under State 9 within the Reservation for the Scheduled Castes) Act 2009 . The long title to the legislation states that it is an Act to provide for reservation of seats to Arunthathiyars in educational institutions, including private educational institutions in the State and for appointment in services under the State. The Tamil Nadu Act defines Arunthathiyars to mean the castes of Arunthathiyar, Chakkiliyan, Madari, Madiga, Pagadi, Thoti and Adi Andhra from the list of seventy-six Scheduled Castes notified by the President under Article 341, as 10 amended from time to time. Section 3 stipulates that sixteen per cent of the seats reserved for the Scheduled Castes in educational institutions shall be offered to the Arunthathiyars, if available, having regard to the social and educational backwardness of the community. Section 4 makes a similar 11 provision for the Arunthathiyars in recruitment to Government posts. Proceedings under Article 32 of the Constitution were instituted before this Court for challenging the constitutional validity of the Tamil Nadu Act on the ground that it contravenes the judgment of this Court in (supra). Chinnaiah 9 “Tamil Nadu Act” 10 Tamil Nadu Act; Section 2(a) 11 4. Notwithstanding anything contained in the 1994 Act or the 2006 Act or in any other law for the time being in force or in any judgment, decree or order of any Court or other authority, having regard to the social and educational backwardness of Arunthathiyars included in the Scheduled Castes, sixteen per cent of the appointments or posts reserved for the Scheduled Castes shall be offered to Arunthathiyars, if available, in appointments or posts in the services under the State, on preferential basis amongst the Scheduled Castes, in such manner as may be prescribed. Explanation.- For the purposes of this Act, “services under the State” includes the services under- (i) The Government (ii) He legislature of the State (iii) Any local authority (iv) Any Corporation or Company owned or controlled by the Government; or (v) Any other authority in respect of which the State Legislature has power to make laws 10 PART A The batch of matters challenging the Tamil Nadu Act was tagged with the batch of matters challenging the Punjab Act. iii. The judgment in Chinnaiah 11. A three - judge Bench of this Court was called upon to adjudicate on the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act 2000. The Act was enacted following the recommendations of the Ramachandran Raju Commission constituted by the State Government. The Commission was tasked with ascertaining the groups among the Scheduled Castes in the State who had failed to avail of the benefits of reservations in college admissions and state public services. The Commission found inter-se backwardness among the Scheduled Castes in the state in matters of reservation in education and appointment. Accepting its findings - that there were inequalities among the Scheduled Castes as far as the distribution of the benefits of reservation was concerned - the State Government promulgated the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Ordinance 1999. While proceedings challenging the Ordinance were pending, the State enacted a law to replace Ordinance. Section 3, which provided for ‘Rationalisation of Reservations,’ apportioned the benefits of reservation among Scheduled Castes into four groups – Groups A, B, C and D - in varying percentages : 1% for Group A, 7% for Group B, 6% for Group C and 1% for Group D respectively, subject to the availability of eligible candidates. The Andhra Pradesh High Court rejected challenges to the Act, leading to appeals which came to be decided by this Court in Chinnaiah (supra). 11 PART A 12. The appellants argued that the State legislature lacked legislative competence to enact the law. They argued that once enumerated in the Presidential List under Article 341 of the Constitution, the Scheduled Castes constitute a homogenous class, which is incapable of further subdivision/sub- classification. Such a classification, they argued, amounted to tinkering with the Presidential List, in violation of Article 341(2) and Article 14 of the Constitution. 13. The respondent-State on the other hand, argued that Article 341 allows the President to identify certain castes as Scheduled Castes and only Parliament can include or exclude entries from the List so created. The State argued that it could, in exercise of powers under Articles 15(4) and 16(4) decide the scope and extent of reservations. This power, they argued, was not limited by Article 341 which operates in an entirely different field. The State urged that the Act of 2000 was a form of affirmative action and it did not exclude or include anyone from the Presidential List under Article 341. Such a sub-classification of the Scheduled Castes was claimed to be permissible under Article 16(4) for the same reason that this Court had held in Indra Sawhney (supra) that the backward classes could be divided into the ‘more backward’ and ‘backward’, depending on inter-se backwardness. 14. A Constitution Bench of this Court, speaking through Justice Santosh Hegde (for himself, Justice SN Variava and Justice BP Singh), Justice HK Sema and Justice SB Sinha unanimously held that the Andhra Pradesh Act was unconstitutional. 12 PART A 15. Justice Hegde examined whether the Andhra Pradesh Act tinkered with the Presidential List notified under Article 341 and held that the States have no power to deal with the Scheduled Castes except the maintenance of efficiency of administration. Justice Hegde observed that certain members of the Constituent Assembly sought to give power to the States to interfere with the list but the amendments to that effect were unsuccessful. Analysing the 12 opinion of Justice Hegde, the following formulations emerge: 13 a. The Scheduled Castes form a class by themselves as elucidated in the opinions of Justice Krishna Iyer and Justice Fazl Ali in State of Kerala 14 v. NM Thomas; b. The purpose of the Act was to divide the castes in the Presidential List and then to distribute the 15% reservations for the Scheduled Castes in the state among four groups. The Act did not provide reservations for the first time but redistributed them by sub-classifying the Scheduled Castes. Reservations are not a constitutional mandate and once the state has fulfilled the obligation to reserve certain seats under Articles 15(4) and 16(4), it cannot apportion reservations among sub-classes. Notwithstanding the purpose of such sub-classification, the State cannot claim legislative competence under Entry 41, List II and Entry 25, List III of the Seventh Schedule in order to divide the Scheduled Castes’ List. The pith and substance of the law in question was not traceable to these 15 entries; 12 Chinnaiah (supra) [Justice Hegde, 13-19]. 13 Chinnaiah (supra) [Justice Hegde, 20-26]. 14 Chinnaiah (supra) [Justice Hegde, 82, 135 and 169]. 15 Chinnaiah (supra) [Justice Hegde, 30-31]. 13 PART A c. The Scheduled Castes constitute a class, and a classification already exists. The issue was whether a further classification is permissible 16 within this class with the objective of providing reservations. The rationale of Indra Sawhney (supra), to the extent that it permitted sub- 17 classification of the Other Backward Classes , did not apply to the 18 Scheduled Castes. Sub-classification was akin to giving preference to a ‘miniscule proportion’ of the Scheduled Castes, over other groups and 19 would be impermissible in view of Article 14; and d. The Constitution creates a legal fiction in terms of which the Scheduled Castes constitute a “class as a whole”. The States cannot sub-divide them. Such a sub-classification would tinker with the Presidential list and violate Article 14. If the benefits of reservation are not being distributed equitably, they can be supplemented by additional measures such as 20 training, which would not be contrary to Articles 14 and 15. A further sub-classification amongst the Scheduled Castes would not be reasonable and a uniform yardstick must be adopted to give benefits to 21 the Scheduled Castes. 16. In his concurring opinion, held that the purpose of Justice HK Sema reservations is to afford special protection to the members of the Scheduled Castes and Scheduled Tribes as a homogenous class of persons. Further classification of this class of people would amount to tinkering with the 16 Chinnaiah (supra) [Justice Hegde, 38]. 17 “OBCs” 18 Chinnaiah (supra) [Justice Hegde, 38]. 19 Chinnaiah (supra) [Justice Hegde, 39,40] 20 Chinnaiah (supra) [Justice Hegde, 43] 21 ibid. 14 PART A Presidential List. This regrouping of a homogenous group would, also amount 22 to reverse discrimination and be violative of Article 14. 17. In his concurring opinion, Justice SB Sinha held that Indra Sawhney (supra), while determining whether backward classes could be divided into more 23 backward and backward classes, was not dealing with Scheduled Castes. In that context, Justice Sinha observed: a. Unlike the Other Backward Classes, Scheduled Castes and Scheduled Tribes are treated as a separate class by the Scheduled Castes and 24 Tribes Orders; b. The State had failed to establish the reasonableness of its classification 25 among the Scheduled Castes; c. The Relli Community was the most backward community and hardly received any benefits of reservations. On the other hand, the Adi Andhra community was numerically larger and educationally better off compared to the Rellis. Both these groups were placed in Group A and Group D respectively and each was given the same 1% share in total reservations. The Act thus wrongly treated them alike despite apparent 26 differences, without any basis; 27 d. Micro-classification was impermissible under Article 14; 22 Chinnaiah (supra) [Justice Sema, 49, 50] 23 Chinnaiah (supra) [Justice Sinha, 75] 24 Chinnaiah (supra) [Justice Sinha, 77] 25 Chinnaiah (supra) [Justice Sinha, 81] 26 Chinnaiah (supra) [Justice Sinha, 97]. 27 Chinnaiah (supra) [Justice Sinha, 98]. Relied on Triloki Nath v. State of J&K 1969 1 SCR 103; State of UP v. Pradip Tandon 1975 1 SCC 267; Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India (1981) 1 SCC 246. 15 PART A e. Backwardness of the class was the link holding this class together and a classification that is justifiable based on backwardness of the class 28 cannot be based on backwardness of the caste; f. Article 16(4) must be read with Article 335 and efficiency of administration cannot be sacrificed to benefit some castes out of the 29 homogenous Scheduled Castes; and g. The validity of the sub-classification and not the extent of the reservation was in question. Therefore, the argument that the States have the 30 prerogative to decide the extent of reservations was inapplicable. The State could certainly stipulate the legislative policy about the extent of reservations but it could not take away the benefit of reservations on the ground that certain groups among the Scheduled Castes have advanced 31 in the hierarchy. iv. The reference 32 18. On 27 August 2020, in State of Punjab v. Davinder Singh , a Constitution Bench held that the judgment in (supra) requires to be revisited Chinnaiah by a larger Bench of seven Judges because it failed to consider significant aspects bearing on the issue. These aspects have been formulated thus: 33 a. In Indra Sawhney (supra), this Court held that it is constitutional to classify the backward class into the ‘backward’ and the ‘more backward’ 28 Chinnaiah (supra) [Justice Sinha, 104]. 29 Chinnaiah (supra) [Justice Sinha, 105]. 30 Chinnaiah (supra) [Justice Sinha, 112,113]. 31 Chinnaiah (supra) [Justice Sinha, 114]. 32 (2020) 8 SCC 1 33 (1992) Supp (3) SCC 217 [Justice Reddy,803];[Justice Sawant, 524 and 525] 16 PART A class of citizens. The provisions of Articles 341, 342, and 342A are pari materia . That being the case, this Court has to analyse how a contrary conclusion to the effect that sub-classification is permissible within the Backward Class but not within the Scheduled Castes, could be reached. In (supra) the phrase “Backward Classes” in Article Indra Sawhney 16(4) was interpreted to include both socially and educationally 34 backward classes and the Scheduled Castes and Scheduled Tribes; 35 b. The Scheduled Castes are not a homogenous class . Preferential treatment can be given to the most downtrodden of the class who are not adequately represented. Such a sub-classification is made to provide 36 equality of opportunity, so as to achieve the purpose of reservation; c. It would be open to the State, under Article 16(4), to grant the benefits of reservation on a rational basis to certain castes within the Scheduled Castes by fixing a reasonable quota of the reserved seats for them if 37 they are inadequately represented; and 34 (2020) 8 SCC 1 [42] 35 Relied on the observation of Justice Reddy in Indra Sawhney (supra) 36 (2020) 8 SCC 1 [50] 37 (2020) 8 SCC 1 [52, 56] 17 PART B d. Preferential treatment to certain castes would not lead to the exclusion 38 of other castes from the list prepared under Article 341 . In Jarnail 39 Singh v. Lachhmi Narain Gupta , this Court observed that the exclusion of the “creamy layer” from the Scheduled Castes for securing the benefit of reservation does not tinker with the Presidential List under Article 341. All the castes included in the list of Scheduled Castes are given the benefit of reservation even if they are sub-classified. B. Submissions 19. The submissions of the counsel were restricted to the issue of whether the judgment of this Court in (supra) requires to be reconsidered since Chinnaiah the High Court had held that the Punjab Act and the Haryana Notification were unconstitutional solely for the reason that they are contrary to the above judgment. i. Submissions of Petitioners 20. Mr Gurminder Singh, Advocate General for the State of Punjab and Mr Shadan Farasat, Additional Advocate General made the following submissions: a. The judgment in (supra) erroneously treats the Scheduled Chinnaiah Castes as an indivisible monolith/block; 38 (2020) 8 SCC 1 [35] 39 (2018) 10 SCC 396 18 PART B b. Preferential treatment promotes substantive equality. Chinnaiah (supra) is against the very idea of reservations which mandates protective discrimination based on relative backwardness; c. Justice SB Sinha’s judgment in Chinnaiah (supra) is self-contradictory. While it recognizes inter-se disparity among the Scheduled Castes, it holds the remedy to address this disparity to be unconstitutional. Once inter-se disparity is acknowledged, sub-classification of the class would be in pursuance of substantive equality; d. The State has the power to sub-classify because the enabling power to reserve seats includes ancillary and supplemental provisions such as preferences, concessions and exemptions; e. In Indra Sawhney (supra) this court has recognised internal differences 40 between castes. Sub-classification within a class aligns with the opinion of Justice Mathew in NM Thomas (supra) holding that further 41 classification within the class was possible; f. The Scheduled Castes are not a homogenous group but face varying degrees of discrimination. The first part of the obligation under Article 16(4) to ascertain backwardness has been accomplished by the President and subsequently, by the Parliament under Article 341. The second part of the enquiry about ‘inadequate representation’ is a 40 Relied on Indra Sawhney (supra) [Justice Reddy, 802]. 41 Relied on NM Thomas (supra) [Justice Mathew, 43] 19 PART B mandate for the States. If the Scheduled Castes list were to be treated as a monolith, it would render the second part of Article 16(4) otiose and make the role of the States redundant; g. Sub-classification varies from the creamy layer principle since (i) economic advancement does not offset social discrimination faced by the Scheduled Castes; (ii) while the creamy layer excludes the socially advanced, sub-classification aims to identify within the Scheduled Castes, those who face the maximum social discrimination; (iii) sub- classification mainstreams certain castes and creates a preference based on qualitative inclusion, contradistinguished from exclusion of the creamy layer; and (iv) preferential treatment identifies certain castes within the Scheduled Castes’ list, while the creamy layer exclusion applies to individuals; h. Scheduled Castes do not lose their identity once enumerated because caste is a sociological reality while the enumeration in the list is through the operation of a legal fiction. The limited preference to some groups by sub-classification because of their relative disadvantage will not exclude the other Scheduled Castes in the List notified under Article 341; i. The State Legislatures have the legislative competence to make preferences for the purposes of laws in relation to Entry 41 of List II and Entry 25 of List III of the Seventh Schedule; and 20 PART B j. Article16(4) is not subject to Article 335. ‘Efficiency’ under Article 335 must be defined in an inclusive sense. 21. Mr Kapil Sibal, senior counsel made the following submissions: a. The Constitution permits sub-classification. Article 366(34) which defines the Scheduled Castes envisages that even a part of a caste or a group may be included; b. While Justice Mathew in NM Thomas (supra) noted that “they are no castes in the Hindu fold but an amalgam of castes …”, in Chinnaiah (supra), Justice Hegde replaced “they” with “there” in the above paragraph and noted instead, “there are no castes…”. This replacement completely alters the meaning of the quotation in NM Thomas (supra) which was that the Scheduled Castes and Scheduled Tribes are a conglomeration of groups placed outside of the caste hierarchy, and not 42 that Scheduled Castes/Scheduled Tribes are homogenous ; c. When Dr. B R Ambedkar stated in the Constituent Assembly that Article 341 is meant to “eliminate any kind of political factors” in “disturbing” the List, he was referring to inclusion and exclusion from the List. Sub- classification has no bearing on the power of inclusion and exclusion. Potential political tinkering cannot obviate the present constitutional need for acknowledging and remedying inter-se inequality among the Scheduled Castes; 42 Chinnaiah (supra) [Justice Hegde, 22] relying on NM Thomas (supra) [Justice Iyer, 135] 21 PART B d. Article 342A of the Constitution inserted by the Constitution (One Hundred and Second Amendment) Act 2018 empowers the President to notify socially and educationally backward classes. This Article is pari materia to Article 341 and Article 342. Sub-classification is permissible for Schedule Castes because (supra) permits sub- Indra Sawhney classification for the Socially and Educationally Backward Classes and after the inclusion of Article 342A, they are at par with the Scheduled Castes; and e. Chinnaiah (supra) is not in line with empirical data collected by the State. According to the view of Justice Reddy in Indra Sawhney 43 (supra) , several castes or tribes within the Scheduled Castes and Scheduled Tribes are not similarly situated. 22. Mr Shekhar Naphade, senior counsel appearing on behalf of the State of Tamil Nadu submitted that: a. Chinnaiah (supra) does not provide connecting links between Article 341 and subclassification. The plain meaning of Article 341 does not limit the power of the State legislature to classify the listed Scheduled Castes; and 43 Relied on Indra Sawhney (supra) [Justice Reddy, 795]. 22 PART B b. Classification based on inter-se backwardness is in pursuance of Article 14. This inter-se backwardness is not among individuals but among groups in the Scheduled Castes. Indra Sawhney (supra) is applicable to sub-classification of the Scheduled Castes. 23. Mr Gopal Sankaranarayanan, senior counsel submitted on behalf of Intervenor Madiga Jana Seva Samiti that Scheduled Castes or Tribes are not castes because Article 366(24) uses “deemed”. Article 16(2) uses “only”; thus, a Scheduled Caste, identified due to historic untouchability, is not “caste” under Articles 15(1) and16(2). 24. Mr KK Venugopal, learned senior counsel for the Petitioner Madiga Reservation Porata Samithi submitted that Article 14 does not only mandate equal treatment to all but also bars discrimination by equal treatment of unequals. He submitted that Article 38(2) entitles those who are unequal in status to special treatment to bring them on the same plane. Article 341 has to be read along with Article 38(2). 25. Mr R Venkataramani, Attorney General of India submitted that Articles 14 to 16 and Articles 341 and 342 operate in different fields. Mere designation under Article 341 does not entail homogeneity. 26. Mr Tushar Mehta, Solicitor General of India submitted that equality is not a static concept. It has evolved from the judgment of this Court in Champakam (supra), to (supra). Sub-classification is an issue Dorairajan Indra Sawhney of rationalising the affirmative action regime. 23 PART B 27. Mr Nidhesh Gupta, Senior Counsel submitted that adequate representation is a matter within the subjective satisfaction of the state, subject to backwardness and inadequacy of representation. Courts cannot scrutinize underlying data to reach that satisfaction of the state. Since Article 16(4) refers to “backward classes of citizens” collectively, Scheduled Castes are at par with the Backward Classes. Article 16(4) is a broader provision that Articles 15 (4) and 15(5). While Articles 15(4), 15(5) refer to “any special provisions for the Scheduled Castes..”, Article 16(4) uses “.. any backward class of citizens”. The use of “any” in Article 16(4), as opposed to the use of the word “the” to qualify the beneficiary classes in Articles 15(4) and 15(5), indicates that there is a greater discretionary power under Article 16(4). 28. Mr Vijay Hansaria, Senior Counsel submitted that the List under Article 341 is not a constitutional provision in itself, but an executive order passed by the President that can be modified by Parliament. 29. Dr S Muralidhar, Senior Counsel appearing on behalf of the State of Andhra Pradesh submitted that the State has not enacted a new law consequent to the decision in Chinnaiah (supra). 30. Mr Arun Bhardwaj, Senior Counsel appearing on behalf of the State of Haryana submitted that there are disadvantaged groups within the Scheduled Castes and the State should be allowed to alleviate their concerns. 31. Mr Kanu Agarwal, standing counsel for Chandigarh submitted that affirmative action can be summarized as a two- step process including identification 24 PART B (Articles 341 and 342) and extension (i.e. how affirmative action can be undertaken). 32. Ms Shraddha Deshmukh, counsel submitted that rights cannot be bundled up for the unequal members of the Scheduled Castes, without ensuring that the rights accrue to them in proportion to their lack of representation. Sub- classification is therefore, essential for better representation of the weaker among the Scheduled Castes. 33. Mr Dama Sheshadri Naidu, Mr Rajesh Kumar Khanna, Mr Sidharth Luthra, senior counsel, and Dr Vivek Sharma, Mr Shivam Singh and Mr Sanjay Jain, counsel appearing on behalf of other Petitioners and Intervenors have adopted the above submissions. ii. Submissions of Respondents 34. Mr Manoj Swarup, senior counsel made the following submissions: a. The Scheduled Castes constituted by a notification issued by the President under Article 341(1) are a class in themselves. The latter part of Article 341(2) stipulates that no variation to the List is permitted except by a law enacted by Parliament. The class constituted by the Presidential notification can be with only by Parliament under interfered Article 341(2). As is evident from the Constituent Assembly debates on Article 341, Parliament is solely vested with the power to alter the Presidential list otherwise, the executive would tinker with the list to achieve political ends; 25 PART B b. Upon the issuance of a notification by the President under Article 341, the castes notified are to be Scheduled Castes for the purposes deemed of the Constitution. The castes which are included in the Presidential list under Article 341 are heterogenous. However, once notified, the castes are put in an artificial mould of homogeneity by the deeming fiction; c. The necessary effect of the preferential treatment to Balmiki Sikhs and Mazhabis in the fifty percent seats reserved for Scheduled Castes in Punjab is that the persons belonging to other Scheduled Castes are excluded from those seats; d. None of the entries in the Seventh Schedule deal with Scheduled Castes. The only entry under which a law on reservation for the Scheduled Castes can be enacted is Entry 97 of List I. Thus, even if sub- classification of the Scheduled Castes is permissible, only Parliament and not the Legislature of the State has the power to enact such a law; e. The National Commission for Scheduled Castes constituted under Article 338 can consider any new data sets or experiences of the Scheduled Castes and make recommendations. However, the power to alter the list solely vests with Parliament; f. Courts through a judicial exercise cannot include or exclude any caste from the list of Scheduled Castes or Scheduled Tribes notified by the 44 President ; 44 Bhaiyalal v. Harikishan Singh, (1965) 2 SCR 877; State of Maharashtra v, Milind, (2001) 1 SCC 4; Bir Singh v. Dekhi Jal Board, (2018) 10 SCC 312 26 PART B g. Classification within the Scheduled Castes is based on caste which is impermissible by virtue of Article 16(2); and h. Contrary to the submissions of the petitioners, Chinnaiah (supra) discusses the interplay between Articles 16(4) and 341 of the Constitution. 35. Mr Salil Sagar, senior counsel made the following submissions: 45 a. The direct impact and effects standard must be used to decide the issue of whether granting preference to certain castes amounts to tinkering the Presidential List. Sub-classification, in effect , restricts the scope and operation of the Presidential list in the following manner: i. It has an exclusionary effect, disturbing the scheme of reservation sought to be implemented; ii. It disproportionately increases the share of reservation available to certain communities and decreases the share available to the rest of the communities; and iii. The sub-grouping of castes violates the legal fiction in Article 341 by which a homogenous group is created for the purposes of the Constitution. b. In Indra Sawhney (supra), this Court held that sub-classification of other backward classes is constitutionally valid. This Court cautioned against 45 Relied on IR Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 27 PART B the application of the same principles to Scheduled Castes and Scheduled Tribes; and c. Sub-classification of the Scheduled Castes cannot be held constitutional merely because Articles 341, 342 and 342-A are pari materia. The classes represented by the Scheduled Castes and the Other Backward Classes are distinct. Castes which are notified as Scheduled Castes have a feature of commonality; they all suffer from the historical injustice of untouchability. 36. Dr KS Chauhan, senior counsel made the following submissions: a. In (supra), this Court held that a caste can be a class Indra Sawhney for the purposes of reservation under Article 16 if the caste is socially 46 and educationally backward ; and b. In (supra), Justice Jeevan Reddy observed that Article Indra Sawhney 16(4) of the Constitution mainly contemplates that reservation must be on the grounds of social backwardness. There cannot be any further classification of the Scheduled Castes since all the castes which are notified as Scheduled Castes by the President share the commonality of social backwardness in the form of untouchability. 46 (1992) Supp (3) SCC 217 [Justice Pandian, 57,60,67,82,95]; [Justice Jeevan Reddy, 782,784] 28 PART B 37. Mr Sanjay Hegde, senior counsel made the following submissions: a. This Court in the judgments delivered after (supra) has Indra Sawhney observed that it was limited in its application to Other Backward 47 Classes ; 48 b. In v. , this Court held that the Scheduled State of Kerala NM Thomas Castes constitute a class in themselves. Similar observations were made in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. 49 Union of India ; c. The notification issued by the President under Article 341 can be altered 50 only by law made by Parliament ; d. States must confer the benefits to members of all the castes notified by the President under Article 341. If the State Government is of the opinion that benefits are not required to be conferred to the caste, then it can make a recommendation for its exclusion from the list of Scheduled Castes; and e. The purpose of conferring Parliament with the power to alter the list issued by the President under Article 321 is to prevent the tinkering of the list for political purposes. 47 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 [293, 393, 633]; Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 [16, 24, 34] 48 (1976) 2 SCC 310 49 (1981) 1 SCC 246 50 Relied on B. Basavalingappa v. D. Munichinnapa, (1965) 1 SCR 316; Bhaiya Lal v. Harikrishnan Singh, (1965) 2 SCR 877; Srish Kumar Chodhury v. State of Tripura, 1990 Supp SCC 220; Palghat Jilla Than dan Samudhya Samrakshna Samiti v. State of Kerala, (1994) 1 SCC 359; State of Maharashtra v. Milind, (2001) 1 SCC 4 [15]; Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312 29 PART B 38. Mr Mallela Venkata Rao, counsel submitted that the opinion of Justice SB Sinha in (supra) that other forms of affirmative action must be Chinnaiah employed to remedy inter-se backwardness within the Scheduled Castes is the appropriate and constitutional approach. 39. Mahendra Kumar Mitra, Petitioner-in-person appearing on behalf of Dr. Ambedkar Scheduled Castes Federation, Karnataka submitted that the recommendation of the Justice Usha Mehra Committee to include Clause (3) to Article 341 providing Parliament the power to sub-categorize castes upon a resolution received from the State was not accepted by the National 51 Commission for Scheduled Castes . 40. Anusuchit Jaati-Janjati Adhikari Evam Karamchari Sangh, a social welfare association submitted that sub-classification of the Scheduled Castes defeats the purpose of providing special reservation to Scheduled Castes. 41. Mr Saket Singh, appearing for the Haryana Pradesh Chamar Mahasabha, submitted that the deeming fiction in Article 341 creates a common identity of Scheduled Castes even though each caste within the list possesses a unique identity. Counsel further submitted that the Constitution would expressly provide a provision for the special treatment of certain castes where necessary. 51 3rd meeting of the National Commission for Scheduled Castes held on 13.12.2010 under the Chairmanship of Dr PL Punia. 30 PART C 42. Mr Vembadi Subramanian and Mr VK Biju, counsel, made submissions on the same lines. C. Issues 43. The Constitution Bench has to adjudicate upon whether the sub-classification of Scheduled Castes for the purpose of providing affirmative action, including reservation is valid. In this context, the following issues arise for consideration: a. Whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16; b. Whether the Scheduled Castes constitute a homogenous or a heterogenous grouping; c. Whether Article 341 creates a homogenous class through the operation of the deeming fiction; and d. Whether there any limits on the scope of sub-classification. 31 PART D D. Analysis i. The jurisprudence on reservation 44. The jurisprudence surrounding reservations has undergone turbulations, both inside and outside the courts. Two crucial issues have dominated the jurisprudential debate – identifying the model of equality espoused by the Constitution and the interplay of equality with ‘efficiency’ or ‘merit’. It is important that we trace the core principles governing reservations in India before we proceed to answer the issue of whether sub-classification of the Scheduled Castes is violative of Articles 14,15 and 16. This would enable us to analyze whether sub-classification furthers the constitutional promise of equality. a. Reservation as an exposition of substantive equality 45. The purpose of the equal opportunity principle in Article 16(1) and the reservation provision in Article 16(4) has emerged as a focal point of the jurisprudence on reservations in this Court. A discussion of the journey of the competing models of equality that the Court has espoused and their evolution over the course of the years is necessary to understand the constitutional vision on equality. I. The competing visions of equality 46. Articles 14, 15 and 16 of the Constitution encompass an equality code in pursuance of the preambular values of equality of status and opportunity and 32 PART D social justice. Article 14 lays down general principles governing equality by postulating that there must be “equality before the law” and “equal protection of law”. In its formative years, this Court interpreted Article 14 through the lens 52 of the classification doctrine which is premised on the recognition that formal equality in law, by which every person irrespective of their circumstances is treated alike, does not translate to factual equality. The underlying foundation of this doctrine is that two persons who are not similarly situated cannot be 53 treated alike. 47. Articles 15(1) and 16(1) were viewed as an elucidation of the equality principle 54 housed in Article 14. However, the Courts were reticent in applying the doctrine of reasonable classification and its underlying assumption that ‘not all persons (and not all situations) are alike’ to the realm of reservation. The reason for the hesitation was that the means adopted (that is, reservation) were understood to not have relevance to securing equality of opportunity 55 which was defined in terms of formal equality and efficiency . In the State of Madras (now Tamil Nadu), seats in Medical and Engineering colleges were apportioned among different groups in the proportion set forth in a Government Order called the “Communal GO”. Seats were apportioned in specific proportions for Non-Brahmins (Hindus), Backward Hindus, Brahmins, 56 Harijans, Anglo-Indians, Christians and Muslims. In State of Madras v. 52 See State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75 53 Chiranjit Lal Chowdhury v. Union of India, 1950 SCC 833 [38,39] 54 Chiranjit Lal Chowdhury v. Union of India, 1950 SCC 833 [38,39] 55 General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; CA Rajendra v. Union of India, AIR 1968 SC 507 56 Non-Brahmin (Hindus): 6; Backward Hindus: 2; Brahmins: 2; Harijan: 2, Anglo-Indians and Indian Christians (1); Muslims: 1. 33 PART D 57 Champakam Dorairajan , a Constitution Bench of this Court held the reservation of seats in educational institutions on that basis to be unconstitutional and violative Article 29(2) which stipulates that no citizen shall be denied admission in any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language, or any of them. The Court observed that Article 29 does not contain an exception clause such as Article 16(4) which would permit reservation of seats in educational institutions. 48. The State of Madras also notified that vacancies to the post of District Munsif would be filed on the basis of the Communal GO. In v. B Venkataramana 58 The State of Madras , reservation of seats in services based on the Communal GO was challenged. The Constitution Bench observed that Article 16(4) permits the State to make provisions for ‘backward classes’ in the services if they are not adequately represented in the opinion of the State and that only Harijans and the backward Hindus can be considered as ‘backward classes’. The denial of admission to seats other than those reserved for Harijans and Backward Hindus, it was observed, would be a discrimination based on “caste,” violating Articles 16(1) and 16(2). 49. The above judgments adopted a formalistic and reservation-limiting approach in the reading of the constitutional provisions. In this approach, reservation was viewed as an exception to the principle of equal opportunity in Articles 15(1) and 16(1). This Court had recognized the principle of reasonable 57 1951 SCR 525 58 AIR 1951 SC 229 34 PART D classification in Article 14 before the decision in Champakam Dorairajan (supra). However, it did not transpose the principle to the realm of 59 reservation. Even in Venkataramana (supra), this Court held that reservation in services is permissible only because the Constitution expressly provides for it. Reservation or any other form of affirmative action was regarded as antithetical to the equality principle and not a re-statement of it. 50. The Constitution was amended by the Constitution (First Amendment) Act 1951 to include Clause (4) in Article 15 to overcome the judgment in Champakam Dorairajan (supra). Despite the inclusion of Article 15(4), a formalistic reading of the equality code continued. In v. Balaji State of 60 Mysore , this Court observed that Articles 15(4) and 16(4) are special provisions (or in other words, an exception to the principle of equality) while prescribing a cap of fifty per cent on the total seats to be reserved. It was in 61 NM Thomas v. State of Kerala , that this Court undertook an expansive and substantive reading of the equality code. In that case, proceedings were instituted for challenging the constitutional validity of Rule 13AA of the Kerala State and Subordinate Services Rules 1958 by which the qualifying criteria was relaxed for candidates belonging to the Scheduled Castes and Scheduled Tribes. The majority constituting the seven-Judge Bench interposed the principle of reasonable classification in Article 14 to Article 62 16(1) and observed that Article 16(4) is not an exception to the principle of 59 Article 15(4) was included in the Constitution by the Constitution (First Amendment) Act 1951 to overcome the judgment in Champakam Dorairajan. 60 AIR 1963 SC 649 61 (1976) 2 SCC 310; the seeds of the expansive approach were sowed by Justice Subba Rao in T Devadasan. 62 (1976) 2 SCC 310 [Ray CJI, 21] 35 PART D equality of opportunity. Article 16(4), in the opinion of the Court, clarifies and 63 explains the principle in Article 16(1). Chief Justice Ray observed that Article 16(1) will not be violated when the rule ensures “equality of representation in the services for unrepresented classes after satisfying the basic needs of 64 efficiency of administration”. Chief Justice Ray’s opinion rests on two conceptual foundations. First, the goal of Article 16(1) is to ensure equality of representation while maintaining efficiency of service; and second, the beneficiaries must be the unrepresented class. Equality of opportunity was framed in the language of equal representation subject to these two caveats. Justice K K Mathew adopted a different approach. The learned Judge broke down the conceptual foundation of the equality provision in the following manner: a. A criterion which is relevant to the apportionment of the good (that is, 65 services) must be adopted ; b. It must be determined if the relevant criterion leads to an a priori exclusion of a certain class. The State is required to identify if persons 66 of all classes have an equal chance of satisfying the chosen criteria ; and 63 (1976) 2 SCC 310 [Ray CJI, 37] 64 (1976) 2 SCC 310 [Ray CJI, 45] 65 (1976) 2 SCC 310 [Justice Mathew, 55] 66 (1976) 2 SCC 310 [ Justice Mathew, 58-59] 36 PART D c. There is a violation of the right to equal opportunity if the relevant criterion leads to a priori exclusion. In that case, a compensatory 67 provision must be made to offset the disadvantage. 51. In his concurring opinion, Justice Krishna Iyer observed that when two interpretations of Article 16(1) are available, that which ensures equal 68 participation and fair representation in administration must be chosen. 52. Thus, at the end of the first phase, it was clarified that the Constitution espouses a substantive vision of equality where reservation is not an exception but, as Justice Krishna Iyer observed in NM Thomas (supra), an 69 “illustration of constitutionally sanctified” classification . However, the Judges varied on the purpose of Article 16(1). While Chief Justice Ray defined equality in opportunity in terms of equality in representation and efficiency of service, Justice Mathew defined it in terms of equality in representation of the backward class. Additionally, Chief Justice Ray identified the beneficiary class as the ‘unrepresented’ class without laying down the basis of the under- representation. Justice Mathew on the other hand, identified the beneficiary class not merely on the basis of under-representation but on the cause for under-representation. It was this difference in the opinions that brooded over the post-NM Thomas era. In the subsequent section, we will discuss the impact of Chief Justice Ray’s reading of the principle of efficiency into Article 16 on the scope of reservation policies. 67 (1976) 2 SCC 310 [ Justice Mathew, 74] 68 (1976) 2 SCC 310 [Justice Krishna Iyer, 120] 69 (1976) 2 SCC 310 [Justice Krishna Iyer, 136] 37 PART D II. The “efficiency” of reservation 53. The expansive reading of the constitutional ideal of equality, noticed above, was not sufficient to realize the full potential of affirmative action. A barrier was raised through Article 335. Article 335 emphasizes that the State shall maintain efficiency of administration while deciding the claims of the 70 Scheduled Castes and the Scheduled Tribes in appointments to services. This Court, while deciding the following four important questions relating to reservations, placed considerable emphasis on the efficiency of service to limit the scope of reservation: a. Whether reservation is limited to initial appointment; b. If reservation is extendable to promotions, the method to be employed to ascertain seniority; c. Whether lowering the standard of evaluation for backward classes violates the equal opportunity principle in Article 16; and d. The permissible method for calculating vacancies to be filled through reservation. The central theme that governed these four issues was whether the expansion of the scope of reservations would dilute the overall efficiency of the service.

38 PART D 71 54. In General Manager, Southern Railway v. Rangachari , the issue was whether Article 16(4) permits reservations in promotions. Writing for the majority of the Constitution Bench, Justice Gajendragadkar observed that though reservations in promotions are detrimental to “efficiency”, a reading of Article 16(4) to include reservations in promotions would further substantive 72 equality : “27. It is true that in providing for the reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Article 335. Reservation of appointments or posts may theoretically and conceivably mean but the risk involved some impairment of efficiency; in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts.” (emphasis supplied) 55. Both the majority and the minority (consisting of Justice Wanchoo and Justice Ayyangar) agreed that reservations impair the efficiency of administration. The learned Judges belonging to the minority only disagreed on the balance which must be drawn between reservation and efficiency of service. Justice 71 (1962) 2 SCR 586 72 (1962) 2 SCR 586 [27]; See Article 335 which provides that that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The majority in Rangachari (supra), interpreted the phrase “matters relating to employment” as it occurs in Article 16(1) to also include promotion. The next issue which fell for the consideration of the Court was whether Article 16(4) covers promotion because the provision only uses the phrases “appointments or posts”. This Court held that the phrase “posts” would - as held by the High Court - not mean ex-cadre posts but posts in the services under the State because any other interpretation would be contradictory to the purpose of Article 16(4) which is to ensure adequate representation. 39 PART D Gajendragadkar observed that though reservations in promotion will impair efficiency of administration, the social benefit of reservation will trump the cost of the impairment. Justice Wanchoo and Justice Ayyangar disagreed. According to the minority, an interpretation of Article 16(4) to include reservation in promotion would be contrary to the principles set out in Article 73 74 335. Similarly, in CA Rajendran v. Union of India, this Court observed that restricting reservations only to Class III and Class IV posts was justified because Class I and Class II posts require candidates with higher efficiency 75 which would not be achieved if promotional posts are reserved. 56. The judgment in (supra) was overruled in Rangachari Indra Sawhney (supra). In Indra Sawhney (supra), this Court adopted the approach of the minority in Rangachari (supra), holding that reservations in promotions would 76 dilute efficiency in administration. By the Constitution (Seventy-seventh Amendment) Act 1995, Parliament amended the Constitution to include Clause (4-A) into Article 16 permitting reservation for the Scheduled Castes and the Scheduled Tribes in promotion. 57. The issue whether members of the Scheduled Castes and Scheduled Tribes should be considered senior to candidates of the general category (who were 77 senior to the candidates of the reserved category in the feeder category) when they are being considered for subsequent promotion arose before this 73 (1962) 2 SCR 586 [Justice Wanchoo, 35]; [Justice Ayyangar, 41] 74 AIR 1968 SC 507 75 AIR 1968 SC 507 [9] 76 1992 Supp (3) SCC 217 [Justice Reddy, 827, 828]; [Justice Thommen,302]; [Justice Sawant,552] 77 The service rule by which the general category retains their seniority is called the catch-up rule. The service rule by the seniority is measured based on the feeder pool is called consequential seniority. 40 PART D 78 Court. In Union of India v. Virpal Singh Chauhan , this Court held that though the catch-up rule is not implicit in Article 16, it is a constitutionally valid 79 practice to maintain “efficiency”. This was reiterated in Ajit Singh (I) v. State 80 of Punjab . Justice NP Singh, writing for the three-Judge Bench observed that the process of appointments must balance both Article 16(4) and Article 335 and that the “principal object of a promotion system is to secure the best 81 possible incumbents for the higher position”. Subsequently, Parliament amended Article 16(4-A) by the Constitution (Eighty-fifth Amendment) Act 2001 to overcome a series of judgments of this Court where the rule of consequential seniority in reservation was held to result in reverse- discrimination. Article 16(4-A), as amended by the Constitution (Eighty-fifth Amendment) Act 2001, enables the State to provide reservation in promotion with consequential seniority. 58. In Indra Sawhney (supra), Justice Jeevan Reddy writing for four Judges observed that relaxation of qualifying marks in promotion would result in inefficiency of administration. This position was reiterated by a two-Judge 82 Bench in S Vinod Kumar v. Union of India . A proviso was included in Article 335 by the Constitution (Eighty-second) Amendment Act 2000 to overcome this aspect of the ruling in Indra Sawhney (supra) and Vinod Kumar (supra). The proviso provides that Article 335 does not prevent the 78 (1995) 6 SCC 684 79 Also see Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 80 (1996) 2 SCC 715; “it cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for the purpose of promotion.” 81 (1996) 2 SCC 715 [15] 82 (1996) 6 SCC 580 41 PART D State from relaxing the qualifying marks in any examination for reservation in promotion. 59. The method for calculating the permissible total percentage of reservation was another issue in which the “efficiency of administration” was used to limit the scope of reservation. This Court had held in (supra) and Balaji Indra Sawhney (supra) that reservation must not exceed 50 per cent. The State was faced with a peculiar situation where a sufficient number of persons from the reserved category was not available to fill the seats reserved for them. The issue was whether the unfilled seats of the reserved category could be carried over to the next year, and whether the carried forward vacancies could be counted while calculating the total percentage of reserved seats in that year. 83 60. In v. , the majority held that a carry forward of T Devadasan Union of India the unfilled vacancies of the reserved category to the next year will abrogate the equal opportunity principle and impair efficiency. Justice Subba Rao while dissenting, advocated for a harmonious reading of Articles 16, 46 and 335. Laying the groundwork for the jurisprudential development in NM Thomas (supra), the learned Judge observed that the phrase “any provision” in Article 16(4) is wide enough to include the carry forward rule. The observation of the majority that carrying forward the vacancies to the subsequent year is contrary to the equal opportunity principle was line with the judgment in Balaji (supra) because the judgment was delivered in the pre- NM Thomas (supra) 83 (1964) 4 SCR 680 42 PART D era. However, besides the narrow interpretation of the equal opportunity principle, the concept of “efficiency” also weighed with the Court. 61. By the Constitution (Eighty-first) Amendment Act 2000, the Constitution was amended to include Article 16(5) by which the States are permitted to carry forward the unfilled seats of the reserved category to be filled up in the succeeding years. The challenge to the constitutional validity of Article 16(4- A) and 16(4-B) was rejected by the Constitution Bench in M Nagaraj v. Union 84 of India where it was held that the efficiency of administration is only relaxed 85 and not “obliterated” by the inclusion of Articles 16(4-A) and 16(4-B). 62. As is evident from the discussion above, the jurisprudence in the second phase on questions involving the scope of reservation, evolved around the idea that reservation dilutes the efficiency in administration or to put it otherwise, reservation is anti-merit. The Constitution was amended to overcome this Court’s holding on each of the above issues, thereby overhauling the premise that reservation does not ensure efficiency in service. The Constitution, after the numerous turbulations within each of the issues traced, today advances a more substantive reading of the equality provision, expanding the sphere and the scope of reservation to ensure that the benefits trickle down to those who need it the most. However, traces of the friction between merit and reservation continue to persist even after the amendments 86 87 to Articles 16 and 335. This Court has, with a few divergences , continued 84 (2006) 8 SCC 212 85 (2006) 8 SCC 212 [108] 86 Nagaraj v. Union of India, (2006) 8 SCC 212 87 Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka, (2019) 16 SCC 129 43 PART D to uphold the binary of merit and reservations. The understanding of the Courts at the end of this phase was that the scope of reservation must be 88 expanded to ensure substantive equality in spite of its dilution of efficiency , thereby continuing to read the requirement of efficiency into Article 16(4). III. The interplay of Article 16 and Article 335 63. In this section, we will discuss whether the principle in Article 335 must be read as a limitation on the power of the State to provide reservations under Article 16. Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services. The proviso to the Article states that the provision shall not prevent the “relaxation of qualifying marks in any examination or lowering the standards of evaluation”, for reservation of the Scheduled Castes and the Scheduled Tribes in matters of promotion. 64. Reservations under Article 16(4) are not restricted to the Scheduled Castes and Scheduled Tribes. The provision provides the State with the enabling power to provide reservations for the “backward classes” which are not adequately represented in the services of the State. The “backward class” encompasses more than the Scheduled Castes and the Scheduled Tribes. It encompasses all classes whose backwardness is attributable to social 88 See General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; T Devadasan v. Union of India, (1964) 4 SCR 680 [Justice Subba Rao, 32] 44 PART D 89 reasons. This includes other socially and educationally backward classes such as the Other Backward Class category, women and the disabled. 65. Applying the additional requirement of “efficiency of administration” only with respect to the exercise of power under Article 16(4) vis-à-vis the Scheduled Castes and the Scheduled Tribes would be discriminatory. Reading this requirement into Article 16(4) assumes that a dilution of the principle of efficiency in administration is the necessary effect of reservation for the Scheduled Castes and Scheduled Tribes while the same standard is not applied to reservations for Other Backward Classes. Though this Court has not expressly stated so in as many words, efficiency of administration was added as a requirement for the exercise of power under Article 16(4) to prevent discrimination between the Scheduled Castes/Scheduled Tribes and other Socially and Educationally Backward Classes. If the requirement of efficiency of administration in Article 335 was not read into Article 16, then the requirement would only apply to reservations for the Scheduled Castes and the Scheduled Tribes but not for the reservation of other socially backward 90 beneficiary classes. 66. However, such an interpretative exercise (that is, applying the principle of efficiency of service to restrict the power of the State to provide affirmative action policies) is contrary to the express language of Article 335 which is confined to the Scheduled Castes and the Scheduled Tribes. The preliminary 89 See Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [116,117,492,788, 859(3)(e)] 90 The opinion of Justice Sawant in Indra Sawhney (supra), highlights this aspect:” 434: […] It cannot, however, be doubted that the same considerations will have to prevail while making provisions for reservation in favour of all backward classes under Article 16(4). To hold otherwise would not only be irrational but discriminatory between two classes of backward classes.” 45 PART D error is that the requirement of efficiency of administration was viewed as an additional requirement and a roadblock to reservation provisions. Efficiency was not understood as a facet of the principle of equal opportunity. 67. The meaning of the phrase “efficiency” as it occurs in Article 335 must be determined to take this argument to its logical conclusion. Though the Constitution does not define the phrase, the proviso to the Article offers interpretative guidance. The proviso states that “relaxation in qualifying marks in any examination or lowering the standards of evaluation” does not amount to a reduction in the efficiency of administration. There can be two possible deductions about the scope of the provision, based on a reading of the proviso. One possible meaning that can be deduced is that marks in the qualifying examination are not a marker of efficiency of administration because if they were, then a reduction of the qualifying standards/marks would also lead to a reduction in efficiency. Another possible interpretation could be that the premise of the proviso is that while reduction or dilution of the evaluating standards or the qualifying marks is not inconsistent with maintenance of efficiency, a complete removal of the qualifying marks would 91 be. Even if the latter interpretation is accepted, it only goes to establish that securing higher marks in an examination does not contribute to higher efficiency and that securing a minimum mark (and not the highest) in the examination is sufficient to maintain efficiency of administration. Thus, a 91 See Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [835]; M Nagaraj v. Union of India, (2006) 8 SCC 212 [108] 46 PART D policy which allows for lower qualifying marks or standards of evaluation is by the proviso to Article 335 not contrary to efficiency. 68. The only constitutional provision which refers to an examination for appointments to posts in services is Article 320 which stipulates that the Union and State Public Service Commissions must conduct examinations for appointments to the services of the Union and the State. An examination is an assessment to determine the proficiency of candidates and their suitability for the post. The Constitution does not prescribe the exact method of assessment which must be adopted for the examination. The Constitution also does not prescribe that the examination must be framed in a manner which would only assess skill sets accessible to certain classes of people. The principle of equality in opportunity in Article 16(1) is therefore the guide for the State while it is determining the method of examination. The examination or any method of distribution of posts must ensure factual equality. An examination leads to a priori exclusion if it only assesses the skill set that is accessible to specific classes. It is to offset this disadvantage that affirmative action policies are introduced for the distribution of posts. 69. The underlying premise of the decision in (supra) is that the NM Thomas distribution of public resources including seats in educational institutions and public services must be based on considerations of equality and justice. Thus, Article 335 is not a limitation on the exercise of power under Articles 16(1) and 16(4). Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services. 47 PART D Efficiency of administration must not be viewed in terms of the narrow lense of scores in an examination which a priori excludes certain classes but in terms of inclusivity and equality as required by Article 16(1). 70. This Court has previously challenged the binary of reservation and merit. In (supra), Justice Subba Rao observed that there is no conflict Devadasan between the provisions of Articles 16(4) and 335 and that the latter has no bearing on the interpretation of the former. Justice Rao observed that the former provision, is directory while the latter is a mandatory provision by which 92 the State is required to consider the “claims” of the Scheduled Castes and 93 Scheduled Tribes. Subsequently, in (supra) Justice Vasanth Kumar Chinnappa Reddy echoed this view. The learned Judge observed that reservation cannot be viewed as a conflict between the principles of merit and distributive justice. It is rather, the conflict between the haves and the have- 94 nots. 71. This line of reasoning was furthered in BK Pavitra (II) v. State of 95 where this Court observed that the assumption of the critiques Karnataka , of reservation is that awarding opportunities in government services based on 96 “merit” results in an increase in administrative efficiency. In BK Pavitra (II) 97 (supra) and Neil Aurelio Nunes v. Union of India , this Court highlighted the folly of measuring “merit” based on the performance of candidates in a 92 Justice Krishna Iyer in NM Thomas (supra) observed that the usage of the phrase ‘claims’ in Article 335 indicates that reservation is a right and not the provision of charity or benevolence. [paragraph 128] 93 (1964) 4 SCR 680 [25] 94 1985 (Supp) SCC 714 [35, 36] 95 (2019) 16 SCC 129 96 (2019) 16 SCC 129 [129] 97 (2022) 4 SCC 1 48 PART D seemingly “neutral” selection process which is factually not neutral since the process does not provide equal opportunity to candidates belonging to classes which face widespread inequalities in accessing facilities required 98 to ace the examinations. In Neil Aurelio Nunes (supra), a two-Judge Bench of this Court discussed the privileges that accrue to the advanced classes in the form of cultural capital which ensures that a child is unconsciously trained by the familial environment and the economic capital: “24. […] the privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital) communication skills, accent, books or academic accomplishments) that they inherit from their family. […] Social networks based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examination and advance in their career.” 72. One of us (DY Chandrachud J) writing for the Bench, observed that while examinations are a convenient method to allocate educational resources, they are not effective markers of merit, and that merit should be understood 99 in terms of the social good of equality and inclusivity. 73. Before concluding the discussion in this section, we deem it necessary to discuss the opinion of the nine-Judge Bench in Indra Sawhney (supra) on the binary of merit and reservation because this Bench sitting in a composition of seven is bound by the opinion of the larger Bench. The petitioners in that case argued that the necessary effect of reservation is the appointment of 98 Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1 99 Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1 [28]; BK Pavitra (II) v. State of Karnataka (2019) 16 SCC 129 [131] 49 PART D less meritorious persons while the respondents argued that marks obtained in an examination do not represent the inherent merit of the candidate. Justice B P Jeevan Reddy, authoring the plurality opinion, observed that it is not necessary to express their view on the competing visions of reservation and merit. However, the learned Judge observed that reservation is not anti-merit. The learned Judge made two conceptual observations: first, even if merit is not synonymous with efficiency in administration, its relevance and significance cannot be ignored. Reservations imply the selection of a less 100 meritorious person ; and second, members of disadvantaged sections, given the opportunity, would overcome the barriers and their merit. prove 74. Applying these two principles, Justice Jeevan Reddy held that: (a) the removal of minimum marks in qualifying examinations for the backward class 101 is invalid; (b) there cannot be reservations in promotions ; and (c) there cannot be any reservation in certain positions of services “where either on account of the nature of duties attached to them or the level (in the hierarchy)”, merit alone counts. The learned Judge also proceeded to give a non- exhaustive list of such positions. The list included technical posts in research and development organizations/departments/institutions; specialties and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics; defense services; posts of professors; airline pilots; and scientists and technicians in nuclear and space application. 100 Also see, Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420, Justice Khanna in NM Thomas v. State of Kerala, (1976) 2 SCC 310; Justice Subba Rao in Devadasan v. Union of India, 1964 4 SCR 680 101 The holding that there shall not be reservations in promotions was based on the link between Article 16(4) and Article 335. See, Justice Reddy [827] and Justice Sawant [552-224] 50 PART D 102 Justice Pandian also agreed with this view , making it the view of the majority. 75. Justice Jeevan Reddy recognized that reservation is not anti-merit. Two constitutional amendments overruled the above aspects of the holding in (supra). These amendments altered the intersection between Indra Sawhney the exercise of power under Article 16(4) and Article 335. The Constitution (Seventy-seventh Amendment) Act 1995 included Article 16(4-A) enabling the State to provide reservations for the Scheduled Castes and the Scheduled Tribes in promotions. The Constitution (Eighty-second) Amendment Act 2000 added the proviso to Article 335 stipulating that lowering the standards of evaluation will not be inconsistent with the maintenance of efficiency. The amendments recognize the difficulties and struggles faced by members of the Scheduled Castes and the Scheduled Tribes during promotions. In a formal sense, the criteria of selection for promotions a priori excludes the members of the Scheduled Castes and Scheduled Tribes because the criteria which are considered to be appropriate are not accessible to them. In a more informal but substantive manner, the members of the Scheduled Castes and the Scheduled Tribes are often unable to climb up the ladder because of the stigma of incompetence held against candidates who are selected through reservation. The stereotype operates against them because they are 103 externalized as “affirmative action beneficiaries” or “quota candidates”. The amendments recognize the discrimination through the operation of both 102 Justice Pandian in Indra Sawhney, (1992) Supp (3) SCC 217 [243(11)] 103 See Ashwini Deshpande, Double Jeopardy? Stigma of Identity and Affirmative Action, The Review of Black Political Economy 2019, Vol. 46(I) 38-64 51 PART D human conduct and recruitment processes. They are an emphatic repudiation of the binary of reservation and merit. ii. Permissibility of sub-classification under Article 14 76. In Chinnaiah (supra), one of the issues was “whether the impugned enactment creates sub-classification or of Scheduled micro-classification 104 Castes”. Justice Santosh Hegde, writing for himself and two other Judges noted that according to the decision in NM Thomas (supra), all the castes in the list acquired a special status as a ‘class’ and that a classification for the purpose of reservation already existed. The learned Judge observed that the Scheduled Castes form a class by themselves and any further classification 105 would violate the doctrine of reasonableness. Justice Hegde observed that a class cannot be sub-divided to give more preference to a “miniscule proportion of the Scheduled Castes in preference to the other members of the 106 same class” . In his concurring opinion, Justice Sema observed that further classification of the Scheduled Castes, who constitute a homogenous group would amount to “discrimination in reverse” and would run contrary to Article 107 14 . Justice Sinha observed that the Constitution permitted additional measures in respect of disadvantaged groups to bring them at par with the advantaged groups, but the class which requires the benefits of additional protection, cannot be discriminated inter se when both satisfy the test of 104 Chinnaiah (supra) [Justice Hegde J,32] 105 Chinnaiah (supra) [Justice Hegde,37,43]. 106 Chinnaiah (supra) [Justice Hegde,36] 107 Chinnaiah (supra) [Justice Sema, 46-50]. 52 PART D 108 abysmal backwardness and inadequate representation in public service. Justice Sinha further noted that the state had not discharged the burden of proving reasonable classification and the nexus of the classification with the 109 purpose of the enactment. 77. In (supra), this Court held that the Scheduled Castes cannot be Chinnaiah further classified for the purpose of reservation because they constitute an internally homogenous class by virtue of their inclusion in the Presidential list and thus, as a class, groups within the Scheduled Castes cannot be treated differently. In view of the already existing classification of the Scheduled Castes under the Constitution, further classification and consequent preferential treatment were held to violate Article 14, as it would amount to a constitutionally proscribed ‘micro-classification’. To appreciate the correctness of this view of Article 14 and micro-classification, we must analyze the contours of the equality guarantee and permissibility of sub- classification under Article 14. a. The contours of Article 14 78. Article 14 employs two expressions – equality before the law and equal 110 protection of the laws. Both different in content and sweep . “Equality before the law”-, an expression derived from the English Common law, entails absence of special privileges for any individual within the territory. It does not mean that the same law should apply to everyone, but that the same law 108 Chinnaiah (supra) [Justice Sinha, 81] 109 ibid. 110 Indra Sawhney (supra) [Justice Reddy,643]. 53 PART D 111 should apply to those who are similarly situated. The expression “equal protection of the laws” means that among equals, laws must be equally administered. It enjoins the State with the power to reasonably classify those who are differently placed. The mandate of “equal protection of laws” casts a positive obligation on the state to ensure that everyone may enjoy equal protection of the laws, and no one is unfairly denied this protection. In essence, the guarantee of equality entails that all persons in like circumstances must be treated alike. That there must be a parity of treatment 112 under parity of conditions. Equality does not entail sameness. The State is allowed to classify in a manner that is not discriminatory. The doctrine of 113 classification gives content to the guarantee of equal protection of the laws. Under this approach, the focus is on the equality of results or opportunities 114 over equality of treatment. 79. The Constitution permits valid classification if two conditions are fulfilled. First, there must be an intelligible differentia which distinguishes persons grouped together from others left out of the group. The phrase “intelligible differentia” 115 means difference capable of being understood. The difference is capable of being understood when there is a yardstick to differentiate the class 116 included and others excluded from the group. In the absence of the yardstick, the differentiation would be without a basis and hence, 111 Gauri Shankar v. Union of India, AIR 1995 SC 55. 112 Indra Sawhney (supra), [Thommen J, 260]. 113 th HM Seervai, Constitutional Law of India, 4 Edition, Volume I, page 439. 114 Sandra Fredman, Substantive Equality Revisited, International Journal of Constitutional Law, Volume 14, Issue 3, 2016, 712-738. 115 State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCC 1. 116 Anwar Ali Sarkar (supra) (1952) 1 SCC 1, [Das J, 66]. 54 PART D unreasonable. The basis of classification must be deducible from the provisions of the statute; surrounding circumstances or matters of common 117 knowledge. In making the classification, the State is free to recognize 118 degrees of harm. Though the classification need not be mathematical in precision, there must be some difference between the persons grouped and 119 the persons left out, and the difference must be real and pertinent. The 120 classification is unreasonable if there is “little or no difference”. Second, the differentia must have a rational relation to the object sought to be achieved by the law, that is, the basis of classification must have a nexus with the object 121 of the classification. b. Sub-classification as a facet of equality 80. The first issue that arises for the consideration of this Court is whether the principle of sub-classification per se violates Article 14. It is established precept that Article 14 guarantees factual and not formal equality. Thus, if persons are not similarly situated in reference to the purpose of the law, classification is permissible. The same logic of classification equally applies to sub-classification. The law can further classify a class that is already created by law for a limited purpose if it is heterogeneous for another purpose. 117 Shri Ram Krishna Dalmia v. Shri SR Tandolkar 1958 SCC OnLine SC 6, [12]. 118 Ibid; Special Courts Bill, 1978, In re, (1979) 1 SCC 380. 119 Moorthy Match Works v. CCE, (1974) 4 SCC 428. 120 Deepak Sibal v. Punjab University, (1989) 2 SCC 145. 121 Indra Sawhney (supra) [Reddy J, 643]; State of Kerala v. N.M. Thomas (1976) 2 SCC 310; Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279; Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045 55 PART D This Court has in multiple judgments held that such classification within a 122 class is valid under Article 14. 81. To lay down the contours of the scope of sub-classification, it needs to be determined if the class is an integrated homogenous class. In All India v. Station Masters & Assistant Station Master’s Association General 123 Manager, Central Railways , the issue before a Constitution Bench of this Court was whether ‘road-side Station Masters’ could be differentiated from Guards for the purpose of promotion to the higher post of Station Masters. Answering the issue in the affirmative, this Court held that the Station Masters and Guards did not form an integrated class since they were recruited and trained separately. Thus, a distinction between the two classes was held not to be violative of the equality code which only requires the State to treat equals 124 equally. Similarly, in v. , another Mohd. Shujat Ali Union of India Constitution bench of this Court held that the distinction between graduate and non-graduate Supervisors for the purpose of promotion to the post of Assistant Engineer was valid because there was no integration between the two categories. The pay scale and even the nomenclature for the two classes were different. 82. In All India Station Masters (supra) and Mohd. Shujat Ali (supra), this Court did not specifically answer the question of whether there could be sub- classification within an integrated class. That issue arose for adjudication 122 State of Kerala v. NM Thomas [Justice Mathew J, 83]; DS Nakara v, Union of India 1983 1 SCC 305 [Justice Desai, 48]. 123 AIR 1960 SC 384. 124 1975 3 SCC 76. 56 PART D 125 before this Court in State of Jammu and Kashmir v. Triloki Nath Khosa . The rules provided that only Assistant Engineers who possessed a degree or certain other qualifications were entitled to promotion to the post of Divisional Engineer. However, the pool of Assistant Engineers consisted of both degree and diploma holding graduates. The diploma holders among them challenged the constitutionality of the rule on the ground that it classified within the class of “Assistant Engineers” based on their educational qualification, and such a classification within a class was violative of Article 14. It was argued that if persons recruited from different sources are integrated into one class, they cannot thereafter be classified to permit preferential treatment in favour of some of them. This Court upheld the validity of the rule holding that the classification based on educational qualifications, for the purpose of promotions is not unreasonable. Justice YV Chandrachud (as he then was), writing for the bench held that the classification had a reasonable nexus with the objective of promotions, which was to achieve administrative efficiency in engineering services. 83. It was also submitted that if persons recruited from different sources are integrated into one class, no further classification can be made within that class. In this case, the direct recruits to the post of Assistant Engineer were required to hold a degree in civil engineering. However, the promotees were drawn from the service which was open to both degree and diploma holders (the latter did not require a civil engineering degree). Thus, it was argued that 125 1974 1 SCC 19. 57 PART D a classification based on educational qualifications is a classification which is based on the source of service. This Court held that though persons were appointed from various sources such as promotion and direct recruitment, 126 they came to be integrated into a common class of Assistant Engineers . However, despite this integration into a class, they could be validly classified based on educational qualifications because it was not a classification based on the source of service. 84. In this context, this Court cautioned that the judgment ought not to be interpreted as a justification for minute and microcosmic classifications and that the theory of classification could not be evolved through “imperceptible 127 extensions”, diluting the very substance of the equality guarantee. 128 Distinguishing the judgment in Roshan Lal Tandon v. Union of India , this Court observed in (supra) that the issue in the former was Triloki Nath whether the yardstick for integration (that is, the source of recruitment) could be used as a yardstick for further integration, which was not the issue in (supra). Thus, (supra) is the leading judgment for Triloki Nath Triloki Nath the proposition that an integrated class can be further classified if there is 126 ibid, [YV Chandrachud J, 50]. “ 50. We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.” 127 ibid, [YV Chandrachud J, 51]. “51. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: What after all is the operational residue of equality and equal opportunity?” 128 (1968) 1 SCR 185 58 PART D intelligible differentia and if the yardstick used has a nexus to the object of the 129 provision. 85. It is not a given that appointees of different sources form an integrated class merely upon their appointment to one post. Even upon integration, the groups retain their separate identity for other purposes. In v. Katyani Sayal Union 130 of India , this Court held that the Assistant Officers of the Railways recruited through a competitive examination and those recruited on the recommendation of the Union Public Service Commission do not form an integrated homogenous class because the objects of recruitment, the tenure and even the appointing authority are different. In v. Col AS Iyer V 131 Balasubramanyam , a Constitution Bench of this Court upheld Survey of India promotion rules that reserved 50% more posts for engineers drawn from the military than for civilian engineers. Justice Krishna Iyer, writing for the Bench, observed that the army engineers never merged into the Survey of India service, along with their civilian counterparts. 132 86. The judgment of this Court in v. has dwelt on DS Nakara Union of India 133 the issue of sub-classification. In Nakara , a scheme which divided pensioners into two groups based on the date of retirement, to provide pension was challenged. A Constitution Bench held that pensioners formed a class. Notably, this Court, similar to Triloki Nath (supra), did not hold that sub-classification is impermissible merely because the pensioners constitute 129 See NM Thomas [Justice Mathew, 83] 130 (1980) 3 SCC 245. 131 1980 1 SCC 634. 132 1983 1 SCC 305 133 ibid [48] 59 PART D a class in themselves. As opposed to the inherent impermissibility of sub- classification, the particular basis of classification in that case namely, the date of retirement, was found to be arbitrary considering the objective of granting pensions. It was held that if this basis of classification was accepted as valid, it would create an artificial distinction between two persons who retired within forty-eight hours of each other. Writing for the Bench, Justice D A Desai held that this Court while deciding if sub-classification is permissible 134 must determine if the class is homogenous for the purpose of the law. 87. Nakara (supra) goes a step further than Triloki Nath (supra) to state that the scope of sub-classification does not hinge on the yardstick which is used to integrate groups into a class but on the issue of whether the class is homogenous or integrated for the specific objective of the law. When a law integrates a class, such as diploma and degree holders, it integrates the class for the purpose of that specific law and not for all purposes. Thus, a class which is not similarly situated for the purpose of the law can be further classified. The test that the Court must follow to determine the validity of the sub-classification of a class is as follows: a. Whether the class is “homogenous” or “similarly situated” for the purpose of the specific law; b. If the answer to ‘a’ above is in the affirmative, the class cannot be sub- classified; 134 DS Nakara (supra) [Desai J,42] : “If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogenous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification be founded on some rational principle?” 60 PART D c. If the answer to ‘a’ above is in the negative, the class can be sub- classified upon the fulfilment of the following standard: i. There must be a yardstick (or intelligible differentia) further classifying the class; and ii. The yardstick must have a rational nexus with the object of the statute. c. Micro-classification: the limits of sub-classification 88. The next issue which arises is whether there are any limits to sub- classification. In numerous judgments, this Court has held that the State must not micro-classify since such classifications would denude (rather than promote) the guarantee of equality, replacing the doctrine of equality with the 135 doctrine of classification. When does sub-classification take the properties of micro-classification? 89. In Nakara (supra), this Court incidentally illustrated what could be termed as a microscopic classification. This Court observed that if each pensioner were to be classified based on their individual dates of retirement or the month of their retirement, it would be too microscopic a classification. Notably, it was not the State’s argument that every individual pensioner retiring on a particular date was a class unto themselves or that the date of retirement was the basis of classification. Rather, the argument was that those retiring before the designated date were a class, distinct from those retiring after that date: 135 Mohammad Shujat Ali and Others v. Union of India 1975 3 SCC 76 [Justice Bhagwati, 24-26]. 61 PART D “9. Is this class of pensioners further divisible for the purpose of “entitlement” and “payment” of pension into those who retired by certain date and those who retired after that date? If date of retirement can be accepted as a valid criterion for classification, on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Central Pay Commission were accepted by the Government of India that the retirement dates have been specified to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. Now, if date of retirement is a valid criterion for classification, those who retire at the end of every This is too month shall form a class by themselves. microscopic a classification to be upheld for any valid purpose. Is it permissible or is it violative of Article 14?” (emphasis supplied) 90. All persons are unequal in one or the other aspect. In a given situation, even 136 a single individual may be treated as a class by themselves. In that case, it is particularly important that laws do not micro-classify. The question of whether the classification amounts to a micro-classification which is impermissible under Article 14 would depend on the facts of each case. However, the two crucial components of the standard of intelligible differentia prescribe the limits of sub-classification. The two components are (a) the purpose; and (b) the rational basis (or principle) for the differentiation. This Court has previously held that the purpose must be independent of the 137 differentiation. The Court grants the State sufficient latitude in identifying 136 Charanjit Chowdhury (supra) 833 [58]; Ram Krishna Dalmia (supra) [11]. 137 Deepak Sibal v. Punjab University (1989) 2 SCC 145 62 PART D 138 the purpose, including the degrees of harm. The same degree of latitude is not accorded to the principle underlying the differentiation. It is not sufficient if the principle underlying the classification is relevant or shares a nexus to the purpose. The principle underlying the classification must be reasonable 139 and rational. In (supra), this Court questioned the of Nakara rationale classifying the beneficiary class based on the date of retirement. In a 140 concurring opinion in Navtej Singh Johar v. Union of India , Justice Indu Malhotra held that a principle of differentiation based on “core and immutable” characteristics is not rational. For example, if the law stipulates that the loan of farmers from one specific village in a State will be fully waived, it must prove through the submission of cogent material that there is a rational principle distinguishing one village from other villages in the State. In this context, the State will for example have to prove that location of the land is a rational principle of categorization and then subsequently prove that the village is not similarly situated for the purpose of the law. With this background, we proceed to analyze the specific issue of whether the sub-classification within the Scheduled Castes is constitutionally permissible. iii. Sub-classification in reservations: tracing the journey through Balaji, Vasanth Kumar and Indra Sawhney 91. The issue of whether the State can further sub-classify within a class for the purpose of reservation first arose in MR Balaji (supra). The State of Mysore 138 See Anwar Ali Sarkar (Supra) [7]; Ram Krishna Dalmia (supra) [11]; State of Gujarat v. Shri Ambica Mills (1974) 4 SCC 656 [61]. 139 See DS Nakara (supra) [43] 140 (2019) 3 SCC 345. 63 PART D appointed the Mysore Backward Class Committee to advise it on the adoption of criteria for the determination of the socially and educationally backward class. Based on the report of the Committee, the State recommended the sub-classification of the Backward Class into the Backward Class and More 141 Backward Class based on educational backwardness . In (supra) MR Balaji the Constitution Bench held the sub-classification of the backward class to be 142 unconstitutional because it: (a) was solely based on caste ; and (b) devised measures for the benefit of “all” classes of citizens who are less advanced when compared to the most advanced class in the State which is not the 143 scope of Article 15(4) :

64 PART D 92. This view was critiqued by Justice O Chinnappa Reddy in Vasanth Kumar (supra). In (supra), this Court was invited to deliver its Vasanth Kumar opinion on reservations which may serve as a guideline to the Commission that the Government of Karnataka proposed to appoint for examining the question of reservation in education and employment sectors. In his concurring opinion, Justice Chinnappa Reddy observed that as a matter of principle, sub-classification within a reserved class is valid provided that both the classes are far behind the advanced class and that one of the classes is 144 ahead of the most backward class. The learned Judge observed that the validity of the classification of the Backward Class into Backward and More Backward Classes may be open to adjudication on the facts of each case. 93. In Indra Sawhney (supra), an Office Memorandum which introduced a criterion giving preference for the of the Socially and Educationally poorer Backward Class was under challenge. The learned Judges diverged on the interpretation of the phrase “poorer”. Justice Pandian construed the phrase “poorer” in the Memorandum to mean economically weaker sections. Justice B P Jeevan Reddy, authoring the plurality opinion, construed the phrase “poorer” not in the economic sense but in the socio-economic sense. The learned Judges adopted a different approach while dealing with the issue of sub-classification owing to this divergence. Justice Pandian observed that preference for a section of the socially and educationally backward section 145 would eliminate or exclude the other section of the class. This observation 144 Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [55] 145 Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217 [207(5)] 65 PART D of the learned Judge must be read along with a previous observation that the socially and educationally backward class shares a common characteristic of social backwardness which cannot then be further divided solely based on economic criteria. Thus, the learned Judge did not find the sub-classification of the socially and educationally backward classes unconstitutional per se but the sub-classification of the class based on economic criteria which is alien to the determination of the beneficiary class. Another reason for the decision of the learned Judge was the model of sub-classification which was prescribed by the Office Memorandum. The Office Memorandum provided that the poorer section would have preference over all the seats reserved for a class, leaving the possibility of excluding the rest open. 94. Justice Jeevan Reddy observed that there is no constitutional or legal bar in 146 classifying the backward class into backward and most backward class. The learned Judge held that sub-classification is valid for two reasons. First, there may be inter-se backwardness within same class and in such a situation, sub-classification ensures that the more backward of the class can 147 secure the benefit. Second, the constitutional scheme expressly provides for sub-classification. Article 16(4) only identifies the beneficiary class as the “backward class” unlike Article 15(4) which expressly identifies the socially

66 PART D and educationally backward class, the Scheduled Castes and the Scheduled Tribes. The relevant observation is extracted below:

95. The learned Judge also construed the phrase “preference” in the Office Memorandum to mean “equitable apportionment” such that preference does not exclude the benefit to the less backward of the socially and educationally backward class. 96. With respect to the sub-classification of the backward classes, Justice Sawant observed that both the sub-categories must be substantially (and not comparatively) backward when compared to the forward class and there must be a substantial difference in backwardness between the sub-categories themselves. The learned Judge notes that if these two criteria are fulfilled, then it is not only advisable but imperative to sub-classify. Echoing the opinion of Justice Jeevan Reddy, Justice Sawant observed that sub-classification 67 PART D would lead to the exclusion of classes if the preference model is followed instead of the model whereby a percentage of seats are allotted to the most 148 backward. 97. The observations in Indra Sawhney (supra), elucidate the following three principles with respect to sub-classification: a. Sub-categorization within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class; b. Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted; and c. Sub-classification among a class must be on a reasonable basis. Justice Sawant held that the distinction between the categories must be substantial . Justice Jeevan Reddy held that the sub- categorization must be reasonable .

68 PART D a. Indra Sawhney did not exclude sub-classification within the Scheduled Castes 98. In Chinnaiah (supra), this Court observed that the principles in Indra Sawhney (supra) on sub-classification of the Other Backward Class will not apply to the Scheduled Castes because the judgment specifically observed that it is only ruling on the sub-classification of the Other Backward Class and 149 not the Scheduled Castes and the Scheduled Tribes. At two places in Indra Sawhney (supra), Justice Jeevan Reddy limited the observations to the Other Backward Classes and did not extend them to the Scheduled Castes and Scheduled Tribes. While dealing with the identification of the backward class of citizens under Article 16(4), the learned judge made the following 150 observations: “781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes – for it cannot be denied that Scheduled Castes include quite a few castes.” 99. These observations were made in the specific context of the recognition of the Scheduled Castes and the Scheduled Tribes as a separate class of beneficiaries under Article 15(5) and their absence in Article 16(4). Justice Jeevan Reddy noted that it is admitted that the Backward Class in Article 149 Chinnaiah v. State of AP, (2005) 1 SCC 394 [Justice Santhosh Hegde, 38]; [Justice Sinha, 76] 150 (1992) Supp (3) SCC 217 [781] 69 PART D 16(4) includes the Scheduled Castes and Scheduled Tribes even though the provision does not expressly state so. 100. While discussing the issue of the exclusion of the creamy layer in the identification of the beneficiary class under Article 16(4), Justice Jeevan Reddy noted that the discussion is confined to the Other Backward Class and does not have any relevance to the Scheduled Castes and the Scheduled 151 Tribes. This observation must also be understood in the context in which it was made. While discussing the necessity of the exclusion of the creamy layer of the Other Backward Class for the purposes of reservation, Justice Reddy observed that social backwardness is the connecting link in a class identified under Article 16(4). The learned Judge remarked that the class does not remain a homogenous class if some of the members of the class are socially forward. This Court noted that economic advancement can be a relevant criterion to exclude the creamy layer provided that the economic advancement is so high as to cause social advancement. The observation that this does not apply to the Scheduled Castes and Scheduled Tribes was made because they suffer from a more egregious form of social backwardness when compared to the Other Backward Class. The Court did not deem it necessary to decide the issue of whether the financial advancement of the members of the Scheduled Castes and Scheduled Tribes would cause social advancement since the issue in (supra) Indra Sawhney was only with respect to reservation for the Other Backward Class. 151 (1992) Supp (3) SCC 217 [792] 70 PART D 101. The question then is whether there is any reason to not extend the principle of sub-classification to the Scheduled Castes when a nine-Judge Bench of this Court has already extended the principle to the beneficiary classes under Articles 15 and 16. It is true that the social backwardness of the Other Backward Class is not comparable to that of the Scheduled Castes since they are more socially advanced than the Scheduled Castes. That is precisely why the Constitution groups them into two separate classes in Article 15(4). It is also true that the castes included within the class of Other Backward Class do not suffer from a single form of social backwardness. The castes which are included within the Other Backward Class suffer from a certain degree of comparable backwardness but the form of social backwardness amongst them may vary. As opposed to this position, the Scheduled Castes suffer from a common form of social backwardness through untouchability. 102. It is one thing to argue that the Scheduled Castes cannot be sub-categorized on account of their limited heterogeneity and common identity as opposed to the Other Backward Class. But it is another issue to completely disregard the application of the principle of sub-classification to the Scheduled Castes on the ground that (supra) limited its application to the Other Indra Sawhney Backward Class. We do not find that the purport of the observations in Indra Sawhney (supra) on sub-classification was to limit it to the Other Backward Classes, to the exclusion of the Scheduled Castes. The principle of sub- classification was given judicial assent in Indra Sawhney (supra) to ensure that the principle of substantive equality is fulfilled. The principle of sub- classification will be applicable to the Scheduled Castes if the social positions 71 PART D of the constituents among the castes/groups is not comparable. In the subsequent section, we will analyze if Article 341 through the operation of the deeming fiction creates an integrated homogenous class that cannot be further classified. iv. The import of the deeming fiction in Article 341 103. Article 366(24) defines the Scheduled Castes as the castes, groups, races or tribes which are deemed to be Scheduled Castes under Article 341(1). The provision does not offer any assistance on the criteria which must be satisfied by the castes, groups, races or tribes for them to be notified as a Scheduled Caste under Article 341. The definition clause only refers to the deeming fiction created by Article 341. Article 341(1) also does not lay down the criteria for inclusion of a caste as a Scheduled Caste. Sub-clause (1) of Article 341 refers to the power of the President to the castes, races, tribes or specify parts of or groups within these three groups. Specified as such, they shall be deemed to be Scheduled Castes for the purpose of the Constitution in relation to the state. The respondents submitted that the “deeming fiction” creates a homogenous integrated class that cannot be further classified. The tenability of the submission needs to be analyzed. a. Chinnaiah on the deeming fiction in Article 341 104. In his opinion in Chinnaiah (supra), Justice Santosh Hegde relied on NM (supra) to hold that the Scheduled Castes, though drawn from Thomas various castes, races and tribes, attain a new status by the Presidential notification. Justice Sema noted that once notified through a Presidential 72 PART D Notification under Article 341 (1), Scheduled Castes attain a homogenous status. The learned Judge then held that the objective of the notification was to afford special protection to the Scheduled Castes as a homogenous group, which cannot be regrouped in the manner in which it was done by the Andhra Pradesh Act. Justice Sinha noted that Scheduled Castes constitute a class of persons entitled to special protection and could not be discriminated inter se, as all of them satisfied the test of abysmal backwardness and inadequate representation. He specifically observed that the Scheduled Castes are a “single integrated class of most backward citizens”. 105. One of the issues in (supra) was whether the judgment in Jarnail Singh Nagaraj (supra) was correct to apply the principle of the exclusion of the creamy layer to the Scheduled Castes and Scheduled Tribes. It was argued before the Court in (supra) that the application of the creamy Jarnail Singh layer principle to the Scheduled Castes and Scheduled Tribes would have the effect of amending the List, which is not permissible under Articles 341(2) and 342(2). The Constitution Bench held that the exclusion of the creamy layer from the Scheduled Castes and the Scheduled Tribes is justified under the equality code because the members of the creamy layer no longer require reservation since they have moved “forward so that they may march hand in 152 hand with other citizens of India on an equal basis.” Writing for the Bench, Justice Nariman observed that the application of the principle of creamy layer to reservations for the Scheduled Castes and the Scheduled Tribes per se will not have the effect of tinkering with the Lists notified under Articles 341 152 (2018) 10 SCC 396 [26, 34]. 73 PART D and 342 because a caste as a whole is not excluded from the List but only 153 persons who have overcome backwardness are excluded. 106. Thus, it needs to be determined if the interpretation of the scope of Article 341 in Chinnaiah (supra) is correct. We must decide, first, whether Article 341 creates a deeming fiction. Second, if it does, the purpose and effect of the legal fiction created under Article 341 must be analyzed. That is, we must decide whether the legal fiction creates a homogenous class which cannot be further classified. Third, the scope of the prohibition under Article 341 (2) must be determined in relation to the effect of the legal fiction created by Article 341(1). b. Scope of deeming fiction 154 107. The use of the phrase “deemed to be” is not conclusive of a legal fiction. The word deemed is used for many purposes, such as for the artificial construction of a word and to clarify uncertain constructions, or plainly just to 155 mean “regarded as being”. A legal fiction is essentially a presumption that certain facts which do not exist in fact, will be treated as real and existing for the purpose of law. Courts have evolved two principles on the operation of legal fictions. The first principle is that a legal fiction must be confined to its 156 ‘legitimate field’, for the specific purpose for which it was created. In Bengal 153 ibid [26]. 154 See Consolidated Coffee Ltd v. Coffee Board, Bangalore, 1980 3 SCC 358 [11,12]; Bhuwalka Steel Industries Limited v. Union of India, (2017) 5 SCC 598 [36,37,43,44] 155 St. Aubyn v. Attorney General, 1952 AC 15, 53 [Lord Radcliffe] 156 Industrial Supplies Private Limited v. Union of India, (1980) 4 SCC 341 [25]; K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 [39]; See Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine SC 2. 74 PART D 157 Immunity Company Ltd v. State of Bihar , a seven-Judge Bench of this Court held that legal fictions are created only for a certain purpose and they must be confined only to that “legitimate field”. In its decision in that case, this Court held that the deeming fiction in the Explanation to Article 286(1)(a), before the Constitution (Sixth Amendment) Act 1956, (by which a sale was deemed to have taken place in the State where the goods were delivered because of the direct sale) only applied to Article 286(1)(a) and not to Article 286(2). This Court held that the scope of Article 286(1)(a) which barred a State from imposing tax on sales outside the State, was different from the scope of Article 286 (2) which stated that unless otherwise provided by law, State laws could not tax a sale or purchase which took place in the course of 158 inter-state trade or commerce. 108. The second principle is that the scope of the legal fiction must be extended to the consequences which “logically” flow from its creation. The opinion of Lord 159 Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council is the leading case for this proposition. The Law Lord observed that the effect of a legal fiction must not be limited to treating facts that do not exist as real 157 Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine SC 2 [Justice Das, 32]. 158 52. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the consequences which flow from that state of facts have got to be worked out to their logical extent. But due regard must be had in this behalf to the . If the purpose for which the legal fiction has been created purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose of sub- clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of converting the inter-State character of the transaction into an intra- State one . This type of conversion could not have been in the contemplation of the Constitution-makers and is contrary to the express purpose for which the legal fiction was created as set out in the Explanation to Article 286(1)(a). [emphasis supplied] 159 LR 1952 AC 109. 75 PART D but must be expanded to understand the effects and consequences that flow 160 from the legal fiction. However, a law creating a deeming fiction cannot create presumptions in favor of a legal consequence but only presumptions about facts from which certain legal consequences may follow. In Delhi Cloth 161 v. , the constitutional validity & General Mills Co. Ltd State of Rajasthan of the Kota Municipal Limits (Continued Existence) Validating Act of 1975 was challenged. The Municipalities Act prescribed a mandatory procedure for delimitation of municipalities including a public notice inviting objections. This mandatory procedure was flouted in the inclusion and exclusion of certain villages to and from the Kota municipality in the State. The Validating Act provided that notwithstanding the mandatory provisions of the Municipalities Act, those villages would be deemed to have always continued to exist as they do within the limits of Kota municipality. The Court held that the Validating Act required the deeming of a legal position rather than the deeming of a fact from which such legal consequence would follow. The Bench found that this was not a permissible creation of a fiction. Article 341 must be interpreted based on the above principles. c. Article 341 does not create a deeming fiction 162 109. In Punit Rai v. Dinesh Chaudhary , the issue before a three-Judge Bench of this Court was whether the Respondent, who contested an election for a 160 ibid at page 132. “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” 161 1976 3 SCC 443. 162 2003 8 SCC 204. 76 PART D seat reserved for the Scheduled Castes in the Legislative Assembly, belonged to the Scheduled Caste community. Justice Sinha, writing the concurring opinion made a passing observation that Article 341(1) creates a 163 deeming fiction. However, this observation does not form the ratio decidendi of the judgment. Thus, it needs to be analyzed if Article 341(1) creates a deeming fiction. 110. Article 341(1) consists of three parts. The first part lays down the procedure for notifying a caste as a Scheduled Caste. The President, in consultation with the Governor (if the notification is with respect to a State) is empowered to specify castes which shall be Scheduled Castes. In the second part, a provision similar to Article 366(26), provides some clarity on who could be notified as a Scheduled Caste: a caste, race, or tribe or parts of or groups within the caste, race or tribe. The third part, with the use of the words “for the purposes of this Constitution be deemed to be Scheduled Castes” includes a substantive provision. In the absence of the word “deemed”, the provision would have solely been a procedural clause, empowering the President to notify the Scheduled Castes. The use of the word “deemed” ensures that the castes or groups of castes shall as Scheduled Castes by the be regarded very act of notifying them. Thus, the inclusion of the word ‘deemed’ in Articles 341(2) and 342(2) does not create a legal fiction since it does not provide any artificial construction. To that extent, the observations of the three-Judge Bench of this Court in Punit Rai (supra) that Article 341(2) creates a deeming fiction are erroneous. 163 ibid [Justice Sinha, 25]. 77 PART D 111. In Milind (supra), a Constitution Bench of this Court observed that the purpose of Article 341(1) is to recognize and identify the Scheduled Castes for the purpose of the Constitution and to prevent disputes as to who would constitute a Scheduled Caste for the purpose of the benefits under the 164 Constitution. The Indian social order consists of castes or groups which suffer from varying degrees of social backwardness, ranging from untouchability to occupational segregation. These castes are grouped into different classes by the Constitution, such as the Scheduled Castes or the Scheduled Tribes, based on the degree of marginalization for the purpose of conferring benefits through affirmative action. A caste only becomes a Scheduled Caste or a Scheduled Tribe or a socially and educationally backward caste when the President issues a notification to that effect in the exercise of the power under Articles 341, 342 and 342A respectively. Thus, it could be argued that the word “deemed” in the provision creates a legal fiction for creating a constitutional identity for the castes which are included in the lists. 112. Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the fiction can neither be extended to other purposes nor can it create legal consequences that do not logically flow from the fiction. Accepting the respondents’ argument that once included in the List, communities specified in the List of Scheduled Castes assume homogeneity would be akin to extending the legal fiction to a purpose that was not envisaged. The purpose of the deeming fiction is ‘identification’ of castes 164 ibid, [35] 78 PART D which are the Scheduled Castes. The logical corollary of the identification of castes or groups as Scheduled Castes is not that this creates a homogenous unit. The inclusion of certain castes within the Scheduled Caste category is only to demarcate them from other castes which are not included in the category. The inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified. Article 341 creates a legal fiction for the limited purpose of identification of Scheduled Castes by distinguishing them from other groups . It offers no guidance on how the Scheduled Castes fare among themselves or on heterogeneity among the Scheduled Castes for the purpose of the Constitution. The legal fiction which assigns an identity to the Scheduled Castes, separate from other categories cannot be stretched to draw inferences about the existence or non-existence of internal differences among the Scheduled Castes. The only logical consequence is that each of the groups that is included in the list will receive the benefits that the Constitution provides to the Scheduled Castes as a class. 113. In Chinnaiah (supra), Justice Santosh Hegde observed that the Castes notified by the President in the exercise of power under Article 341 form a class in themselves. For this purpose, the learned Judge relied on the following observations of the Constitution Bench in NM Thomas (supra): a. Justice Mathew observed that the members of the Scheduled Castes 165 attain a new status by the Presidential Notification; 165 NM Thomas (supra) [Justice Mathew, 82]. 79 PART D b. Justice Krishna Iyer observed that the Scheduled Castes are not castes within the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the 166 President; and c. Justice Fazal Ali observed that the Scheduled Castes and the Scheduled Tribes have been given a special status in the Constitution 167 and they constitute a class by themselves. 114. It is necessary to understand the context of the case to understand the import of the above observations. In (supra), rules providing NM Thomas concessions to the members of the Scheduled Castes for qualifying at the entrance examination were challenged. One of the issues before the Court was whether the concession to the members of the Scheduled Castes violated Article 16(2) since it discriminates solely on the ground of “caste”. To overcome the embargo placed by Article 16(2), the learned Judges observed that provision for affirmative action is made in favour of the Scheduled Castes, which once notified by the President in exercise of the power under Article 341 are not a “caste” but a class. The class that is constituted by the Presidential notification as the Scheduled Castes consists of numerous castes, thereby forming a class. The observations in NM Thomas (supra) do not go further to state that it is a homogenous class that cannot be classified 166 NM Thomas (supra) [Justice Iyer, 135]. 167 NM Thomas (supra) [Justice Fazal Ali, 169] : “If, therefore, the members of the scheduled castes and the scheduled tribes are not castes, then it is open to the State to make reasonable classification in order to advance or lift these classes so that they may be properly represented in the services under the State.” 80 PART D further. In fact, Justice Mathew observed in the very next paragraph that there can be further classification within a class if there is an intelligible differentia 168 separating a group within a class from another group. Additionally, the approach adopted in NM Thomas (supra) by this Court that the Scheduled Castes are a class because they comprise of a collection of castes must be read in the context of the nine-Judge Bench decision in Indra Sawhney (supra), where this Court held that caste is itself a class. Therefore, we are of the view that the inference drawn by Justice Hegde in Chinnaiah (supra) that the Scheduled Castes are a homogenous class based on the above observations in (supra) is erroneous. NM Thomas d. Article 341(1) read with Article 341(2) only proscribes exclusion from and inclusion in the Scheduled Castes List. 115. In (supra), this Court held that sub-classification amounted to Chinnaiah tinkering with the Presidential list by the State legislature, and was therefore, violative of Article 341(2) which exclusively vests power in Parliament. Article 341(2) prescribes the only manner in which the Presidential Notification under Article 341(1) may be altered. The provision stipulates that castes, races or tribes, or parts of or groups within them once notified by the President under Article 341(1) may be included in or excluded from the List only by Parliament. The latter half of the clause states by way of abundant caution that ‘save as aforesaid’, the notification shall not be varied. The provision reads as follows: “(2) Parliament may by law from include in or exclude the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part 168 NM Thomas (supra) [Justice Mathew, 83]. 81 PART D of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be by any subsequent notification.” varied (emphasis supplied) 116. Dr B R Ambedkar, while proposing the inclusion of Articles 300A and 300B of the Draft Constitution (which correspond to Articles 341 and 342 of the Constitution), indicated that once notified, any elimination from the list or an addition to the list was to be made by Parliament and not by the President. This limitation, he noted was to eliminate “political factors” from disturbing the list: “..The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the 169 Schedule so published by the President.” 117. Unless amended in the manner prescribed under Article 341(2), the Presidential List notified under Article 341(1) is conclusive of which community is a Scheduled Caste and must be taken as it is. Article 341(2) prescribes the scope of permissible changes to the List published under Article 341(1) and exclusively vests the power to vary these lists in Parliament. 169 Constituent Assembly Debates, Volume 9, page 1636 (17 September 1949) 82 PART D 118. The prohibitions in Articles 341 (1) and 342 (2) are two-fold : first, specification as a Scheduled Caste is circumscribed by the territorial limits of the State or the region, specific to which a particular group has been 170 notified . For instance, Entry 23 of Part I of the Scheduled Castes Order for the State of Andhra Pradesh enumerates: “Godagalli, Godagula (in the districts of Srikakulam, Vizianagaram and Vishakhapatanam)”. Hence, the enlisted communities (Godagalli and Godagula) are treated as a Scheduled Caste for the districts named in the entry and not for the entire State. In Marri 171 Chandra Shekar Rao v. Dean, Seth GS Medical College , a Constitution Bench of this Court considered whether a member of the Gouda community, recognized as a Scheduled Tribe in Andhra Pradesh, could seek admission to a seat reserved for the Scheduled Tribes in Maharashtra. Answering it in the negative, this Court observed that since the social conditions of caste groups vary across the country, a caste or tribe could not be generalized as a Scheduled Caste or Scheduled Tribe for the whole country. It held that the expression “in relation to that State” in Articles 341 (1) and 342(1) could not be rendered redundant by treating a caste specified as a Scheduled Caste in one State to be entitled to the benefits for Scheduled Castes in another State, 172 173 where it was not so specified. In Bir Singh v. Delhi Jal Board , one of the issues before this Court was whether the power of the State to make provisions for affirmative action for the Scheduled Castes and Scheduled Tribes under Article 16(4) is impacted by the power of the President under 170 See Constitutional (Scheduled Castes) Order, 1950 [2,4]. 171 (1990) 3 SCC 130 172 Marri (supra) [9] 173 2018 10 SCC 312. 83 PART D Articles 341(1) and 342(1) of the Constitution. The Constitution Bench held that a State in exercise of its power under Article 16(4), cannot extend the benefits accorded to the Scheduled Castes to a caste which is not enumerated in the Presidential list notified under Article 341(1). The Court held that the enabling provision under Article 16(4) must be harmoniously read with Articles 341 and 342. Therefore, if a statute extends the policy of affirmative action to groups not enumerated specifically with respect to that State/Union Territory, it would circumvent the mandate of Article 341(2) and would be an impermissible expansion of the List, contrary to the mandate of 174 Article 341(1). Thus, this Court held that the benefit of reservation cannot be extended to a caste which is not enumerated as a Scheduled Caste in that State, though it finds a place in the Presidential List with respect to another State. 119. Second , Article 341(2) provides that only Parliament can include in or exclude from the List any caste, tribe, race or their parts or groups. The Presidential notification cannot be by any subsequent notification, varied other than by an inclusion or exclusion by Parliament. By completely vesting in Parliament the power to include or exclude from the Presidential List, Article 341(2) correspondingly limits the power of the President (acting on the aid and advice of the Council of Ministers at the Centre) and the Governor (acting on the aid and advice of the State Government when consulted) to include or exclude castes or sub-castes from the List. 174 ibid, [Justice Gogoi, 34]; [Justice Banumathi, 79, 81] 84 PART D 120. In Chinnaiah (supra), this Court interpreted Article 341(2) as a limit on the 175 power of the President to “tinker” with the list. Article 341(2) consists of two parts. First, it grants only Parliament the power to “include or exclude” any caste or group, or a part of the caste or group, and second, “save as aforesaid”, a notification issued by the President under Article 341(1) shall not be varied by any other subsequent notification. It is important to understand the purport of the second part of the provision to understand the scope of Article 342(2). 121. The second part of Article 341(2) must be read in the context of Article 367. Article 367 provides that unless the context otherwise requires, the General Clauses Act 1897 shall apply for the interpretation of the Constitution as it applies to the interpretation of an Act of the Legislature of the Dominion of India. Section 21 of the General Clauses Act 1897 states that the power to issue notifications includes the power to add to, amend, vary or rescind the 176 notification. By Article 341(1) read with Article 367 and Section 21 of the General Clauses Act 1897, the President would have the power to add to, amend, vary or rescind the notification. The first part of Article 341(2) removes the power of the President to include in and exclude from the List and places it in the domain of Parliament. This power is traceable to the words “add to” or “amend” in Section 21 of the General Clauses Act. The second part of Article 341(2) ensures that the President does not have any residual power 175 Chinnaiah (supra), [Justice Hegde, 43] 176 21. Power to issue, to include power to add to, amend, vary or rescind notifications orders, rules, or bye- laws- Where, by any [Central Act] or Regulations a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to , amend, vary or rescind any notifications, orders, rules, or bye-laws so issued. 85 PART D to “vary” the List. The phrase “vary” in common parlance has a wider meaning than exclusion or inclusion. It includes altering the list, even by partial 177 change. However, the phrase “vary” in Article 341(2) takes the meaning of inclusion in and exclusion from the List, and not the other way around. This is clear with the use of the phrase “save as aforesaid” in the second part of the provision. Thus, by Article 341(2), the President does not have the power to vary the List notified under Article 341(1) by inclusion in and exclusion from it. 122. The power of Parliament to vary the list includes not merely the power to exclude or include “any caste, race or tribe” but also the power to exclude or include “parts of or groups within any caste, race or tribe”. In Milind (supra), the issue before this Court was whether an entry titled ‘Halba/Halbi’ in the Scheduled Tribe Order relating to the State of Maharashtra could be read to include the ‘Halba-Koshti’ tribe. This Court held that the Presidential list is to be read as it is and no evidence could be allowed to establish that an entry in the Scheduled Caste or Scheduled Tribe list included a particular group that was not included specifically in the List. The Court held that any other interpretation would infringe upon the power accorded solely to Parliament by Article 341(2). Justice Shivraj V Patil, writing for the Bench, held that unless a tribe is specified expressly in the List under Article 342, which is pari materia to Article 341, no inquiry could be held or evidence led to establish that such 177 “Vary” - to make changes to something to make it slightly different. Oxford Learner’s Dictionary, < https://www.oxfordlearnersdictionaries.com/definition/american_english/vary >; “vary” Merriam-Webster Dictionary < https://www.merriam-webster.com/thesaurus/vary#thesaurus-entry-1-2 > 86 PART D tribe, or any part thereof, is included within the meaning of an entry included 178 in the Presidential Order. This Court underscored that the power of the States is limited to making recommendations at the initial stage of consultation, prior to the notification of the Presidential List under Article 341(1). This Court observed that the Constitution vests the power to make any further changes to the List in Parliament to prevent alterations to the List 179 due to political pressure. 123. The prohibition under Article 341(2) entails that once a particular caste, race, tribe or a part or group of it is specified in the Presidential List under Article 341(1), the list shall be read as it is with no additions or deletions. The benefit of the special provisions shall not be given to any caste or sub-caste not included in the List with respect to that State. Article 341(2) uses the words “include in” or “exclude from” and “shall not be varied”. These terms contained in the provision are unambiguous. An inclusion would occur if the State were to enact a law that extends the benefits meant for Scheduled Castes in that State to a community that is not enumerated as a Scheduled Caste for that

fit for inclusion in the List notified for that State, is to make a proposal to that effect to the central authorities. After due inquiry, the community may be added to the List by Parliament, subject to its satisfaction that such a modification is required. Until then, the State has to apply the Scheduled 180 Castes List as it is. Thus, to summarize, Article 341(2) bars the State 178 Milind (supra) [12]. 179 Milind (supra) [15]. 180 Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala , 1994 1 SCC 359 [17, 18]. 87 PART D Legislature from removing or adding castes from and to the List respectively. Sub-classification within the Scheduled Castes for the purposes of affirmative action, including reservation does not include or exclude any caste or group from the List. Section D(iii) of this judgment deals with the different models of sub-classification to determine if the operation of reservation upon sub- classification in-effect leads to exclusion. v. Historical and empirical evidence of inter-se backwardness within the Scheduled Castes 124. Having held that Article 341 does not create an integrated homogenous class, we will next decide whether there is an intelligible differentia to group the castes within the Scheduled Castes. For this, it needs to be analyzed if the Scheduled Castes are a heterogenous class. The respondents submitted that there cannot be any sub-categorization of the Scheduled Castes because all the castes face the same form of social backwardness based on untouchability. The petitioners, on the other hand, submitted that there exists inter-se backwardness within the Scheduled Castes. 125. The Constitution of India does not provide a definition of the Scheduled Castes. Article 366(24) states that castes/groups notified under Article 341 shall be Scheduled Castes. However, neither Article 341 nor Article 366(24) prescribes the criteria for their identification. The President issued the Constitution (Scheduled Castes) Order 1950 which nearly corresponds to the Government of India (Scheduled Castes) Order 1936 notified under the 88 PART D 181 Government of India Act 1935. It is important to identify the criteria for inclusion of groups or castes in the Scheduled Castes Order 1936. 126. The Government of India Act 1935 did not define the criteria for the identification of Scheduled Castes. Clause 26(1) of the First Schedule to it defined the Scheduled Castes as castes that corresponded to the classes of persons known as the “depressed classes”: “the scheduled castes” means such castes, races or tribes, or parts of or groups within castes, races or tribes being castes, races, tribes, parts or groups which appear to his Majesty in Council to correspond to the classes of persons formerly known as the depressed classes , as His Majesty in Council may specify.” (emphasis supplied) 127. It is necessary that we briefly refer to the historical material on how the depressed classes were identified to analyze if the Scheduled Castes are a heterogenous class and whether there is an intelligible differentia distinguishing the sub-categories within the Scheduled Castes. a. Identification of the depressed classes 128. In 1916, the definition of the depressed classes was raised in the Indian Legislative Council. It was suggested during the discussion that the expression should include criminal and wandering tribes, aboriginal tribes and 182 untouchables. In 1917, Sir Henry Sharp, the Education Commissioner, prepared a list of depressed classes which included the aboriginal or hill 181 Marc Galanter, Competing Equalities: Law and the Backward Classes in India, [Oxford University Press (1984)] 130 182 Report of the Indian Franchise Committee (1932) Vol I, 112 89 PART D tribes, depressed classes and criminal tribes. While preparing the list, Sir Henry stated that depressed classes “[…] includes communities which though not absolutely outside the pale of caste, are backward and educationally poor and despised and also certain classes of Muslims. Some have interpreted it 183 as simply educationally backward”. 129. In 1919, the Southborough Franchise Committee adopted the test of untouchability to define the depressed class. The Indian Franchise Committee 1932, inter alia, was appointed to ascertain if a separate electorate must be provided to the depressed classes. The Committee also had to arrive at a definition of “depressed classes”. The Committee interpreted the phrase “depressed classes” as the 'untouchability class’, that is, the class whose touch or approach is deemed to cause pollution as it exists in the United 184 Provinces. The report stated that the depressed classes “should not include primitive or aboriginal tribes nor should it include those Hindus who are only economically poor and in other ways backward but are not regarded as 185 untouchables.” The Committee accepted the tests of untouchability 186 formulated by Hutton . Hutton had submitted a Census Report in 1931 by which depressed castes were defined as castes, contact with whom requires purification. The instruction which was given to determine if the caste is an untouchable caste was as follows: “I have explained depressed castes as castes, contact with whom entails purification on the part of high caste Hindus. It is not intended that the term should have any 183 Ibid, 113 184 id 185 id 186 Ibid,Pg. 112 90 PART D reference to occupation as such but to those castes which by reason of their traditional position in Hindu society are denied access to temples, for instance, or have to use separate wells or are not allowed to sit inside a school but have to remain outside or which suffer similar social disabilities. These disabilities vary in different parts of India being much more severe in 187 the south of India than elsewhere.” 130. The following tests were directed to be considered to determine if the caste faces untouchability: a. Whether the caste or class in question can be served by clean Brahmans; b. Whether the caste or class in question can be served by the barbers, water-carriers, tailors, etc., who serve the caste Hindus; c. Whether the caste in question pollutes a high caste Hindu by contact or by proximity; d. Whether the caste or class in question is one from whose hands a caste Hindu can take water; e. Whether the caste or class in question is debarred from using public conveniences such as, roads, ferries, wells, or schools; f. Whether the caste or class in question is debarred from the use of Hindu temples; 187 Hutton Censes Report (1931) 471 91 PART D g. Whether in ordinary social intercourse, a well-educated member of a caste or class in question will be treated as an equal by high caste men of the same educational qualifications; h. Whether the caste or class in question is merely depressed on account of its own ignorance, illiteracy or poverty and but for that would be subject to no social disability; and i. Whether it is depressed on account of the occupation followed and whether but for that occupation it would be subject to no social disability. 131. Though the test that was proposed to be used was that of untouchability, the criteria above and in particular, criteria (f), (g) and (h) indicate that other forms of social disability which cannot be strictly confined to untouchability were also considered. The report recognized that there may be a variance in the degree of restrictions based on the degree of untouchability. For example, a few castes may have been denied entry to a temple as compared to castes which 188 were denied entry to the inner sanctuary of the temple. 132. The Note submitted by Assam casts light upon the heterogeneity amongst the castes which face untouchability. The Note states that untouchability as it existed in Madras, where an untouchable’s touch necessitated immediate purification, did not exist in Assam. Mr Maullan, the Census Superintendent in Assam defined the depressed class (which he termed as “exterior castes”) as castes whose water is not acceptable and in addition are so deficient in 188 Ibid, 472 92 PART D education, wealth, influence, or for some reason connected with their traditional occupations which prevents them from acquiring any further social privileges. The Superintendent further noted that there are influential and wealthy castes even among the jal-achals (that is, those whose water was not acceptable). The note also distinguished the untouchability which certain 189 castes faced from other untouchable castes: “The exterior castes themselves are, however, guilty of similar treatment to each other and an exterior caste which considers itself to be on a higher social level than another exterior caste adopts exactly the same attitude as the higher castes do towards the exterior castes. A case which recently happened in Sunamganj illustrates this point. The local ferryman there (a patni by caste) was prosecuted for refusing to row a Muchi and that it has always been the practice, if a Muchi wanted to cross the river, for the paddle to be given to him so that he could row himself across.” 133. The Note of the Superintendent of Assam on Mahars further elucidated the point that there was no “uniformity” in the untouchability faced by members of various castes. The Note explained that Mahars were included in the list of depressed class though they were jal-chal in the limited sense in as much as a man of the forward caste “can smoke huka filled with water by a Mahar”. They were included because they were untouchables with respect to everything but for smoking requirements and they were a socially and 190 educationally backward community: “I have made close and careful enquiries and there is a general consensus of opinion that the Mahars are not jal-chal and are a depressed class. The story of Raja Subid Narayan made them jal-chal for smoking requirements only, seems to be true. If the Mahars are 189 Ibid, 495 190 Ibid, 498 93 PART D at all jal-chal, they are jalchal only in the sense that a man of the higher caste can smoke a huka filled with water by a Mahara. There is not a single graduate among the Maharas in this subdivision and not even a single matriculate can be found. The deputy Inspector of Schools reports that the only educated Maharas he has met in the whole subdivision are three persons working as Vernacular teachers in Primary and Middle English Schools. So the Maharas are depressed both socially and educationally.” 134. The list prepared by Madras noted that castes to whom the “technical stigma of untouchability” does not apply, had been excluded from the list. This approach when juxtaposed with the approach adopted by Assam, varies with 191 respect to the stringency of the untouchability standard employed. It is evident that there is no one “form” of untouchability. Untouchability, like other forms of social disability differs in degree and severity. 135. Based on the tests for identifying untouchability laid down by Hutton, the Provincial Committee prepared the provincial estimates of depressed classes. In Madras, Bombay and the Central Province, there was a general agreement between the Provincial Committees and the Local Governments on the estimate of the depressed classes because the distinction between the depressed and other classes of the Hindu Communities was clearly defined. On the other hand, the States of Bihar, Orissa and Assam while stipulating the castes which faced untouchability observed that untouchability in the States did not exist in the same form as it existed in South India. 191 Ibid, 499 94 PART D 136. Mr SB Rambe, Mr CY Chintamani and Mr RR Bakhale submitted a note of dissent, inter alia , on the depressed classes in which they claim that the tests 192 for untouchability were not applied with uniformity. They observed that untouchability only existed in Madras, Bombay and the Central Province. They claimed that in other states, untouchability was not an adjunct of a person but the occupation that they pursued and thus, those castes should 193 not have been included in the list of the depressed classes. It is here that the Note submitted by Dr B R Ambedkar on depressed classes is of particular importance for it encapsulates the heterogeneity within the castes which suffer untouchability. 137. Dr B R Ambedkar highlighted that applying a uniform criterion to identify the depressed class would be inappropriate. Dr Ambedkar observed that the differences in the tests of untouchability do not indicate differences in the conditions of the untouchables because the notion underlying both the standards would be the same, that it is below the dignity to interact or touch persons of certain castes. He observed that the difference in the with rigidity which untouchability is practiced does not eliminate the notion of such a 194 practice. This indicates that the depressed classes were identified based on the notion of untouchability and not in the literal sense of the term. The effect of adopting the notional and not the literal test is that the social condition of all the castes included within the depressed classes is not uniform. Though 192 Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise Committee, 231 193 id 194 Dr Ambedkar, Note on the Depressed Classes, Report of the Franchise Committee, 211 95 PART D the Government of India (Scheduled Castes) Order 1936 did not exactly correspond to the List published by Hutton or the Provincial Franchise 195 Committees, the inclusions and exclusions to the list broadly matched. 138. The heterogeneity within the class is also evident from the Constitution (Scheduled Castes) Order 1950 where certain castes are notified as the Scheduled Castes in specific localities. For example, in the State of Madhya Pradesh, of the twenty-five castes, only nine are Scheduled Castes throughout the State. The criteria used to identify the Scheduled Castes itself indicates that the endeavor was not to include all castes that suffered from forms of untouchability. Thus, the Scheduled Castes are not a identical homogenous class. b. Empirical evidence of heterogeneity 139. Field researchers have also accounted that the Scheduled Castes are not one homogenous class. Studies indicate that certain castes of the Scheduled Castes are not only sociologically backward vis-à-vis the forward castes but also amongst the Scheduled Castes themselves. AM Shah recounts that there was much less interaction between two Dalit castes in Gujarat than there was between a Dalit caste and a forward class. The author observes that the priests for the Dalits are placed high amongst the Dalit castes and the 195 Galanter, supra , 130 96 PART D scavengers are placed the lowest, with the leather-workers and the rope 196 makers occupying the intermediary positions: “Briefly, the Dalits have reproduced among themselves a hierarchy on the model of caste hierarchy in general. There is at the top a small caste of garodas (derived from the Sanskrit word ‘guru’), who are priests for other dalit castes, […] Similarly, just as there are castes of bards for the upper castes, there is a bardic caste of dalit mendicants called dhed bava or sadhu. The garudas, turi barots, and dhed sadhus are accorded certain sacredness. The bhangis (scavengers) are the bottom of the hierarchy and the most under-privileged. Between the garodas and bhangis there is a large caste, the higher stratum of which is traditionally vankar (weavers) and the lower stratum dhed (menial servants). […] The chamars (leatherworkers) and senwas (rope-makers) occupy positions intermediately between the vankar- cum-dheds and bhangis. The bhangis are the most oppressed.” 140. The Robert F Kennedy Centre for Justice and Human Rights in collaboration with Navsarjan (an organization that promotes the rights of Dalits) undertook an extensive study on caste discrimination in 1589 villages in Gujarat. The census conducted by them produced results of horizontal discrimination, the practice by which certain Dalit castes practiced untouchability against other Dalit castes. The study identified that the practice of food, water and religion related untouchability is emulated within the Dalits as well. For example, Dalits of the lower sub-caste were prevented from sitting with the rest of the Dalit community during meals. They were not given tea when they visited the house of a higher sub-caste. It was also found that only in twelve percent of 196 AM Shah, The ‘Dalit” category and its Differentiation; Also see AM Shah, Untouchability, the Untouchables and Social Change in Gujarat in Dimensions of Social Life, Essays in Honor of David G Mandelbaum (edited by Paul Hockings) 97 PART D the villages could a Dalit belonging to a lower sub-caste receive water in the house of a Dalit of a higher sub-caste. The study also found that in 92.4 percent of the villages studied, all the Dalits did not have access to all-Dalit burial grounds and that the lower sub-castes were denied entry into to Dalit 197 Temples in 79 percent of the villages. 141. Similarly, in Tamil Nadu, when an Arunthathiyar man and a Paraiyar woman (both the castes find a place in the Scheduled Castes list) eloped, the woman’s family allegedly raped the women of the man’s family in 198 retaliation. The inequality within the Scheduled Castes in Andhra Pradesh has also been studied. Uma Ramaswamy draws on the inequality within the Scheduled Castes by comparing the social positions of members of the Mala 199 and Madiga Castes. The Madigas traditionally pursue the occupation of leather work which is assigned a lower status when compared to the weaving occupation of Malas. The author states that neither do members of both the castes live in the same hamlet nor do they draw water from the same well. The study found that the hierarchy between the castes translated to their relative progress in education, employment and political activity. In 1961, 10 percent of Malas were literate as against 5.1 percent of Madigas. In 1971, the proportion of literates among Malas had gone up to 12.9 per cent in comparison to 6.2 percent among the Madigas. The author stated that hierarchy exists even within the Mala caste. Mala Jangam and Mala Desari 197 Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive Study of Practices and Conditions in 1589 Villages, 22-33 198 Ravinchandran Bathran, The many omissions of a concept: Discrimination amongst Scheduled Castes, Economic & Political Weekly , (Vol L1 No. 47, November 19, 2016) 1342-1346 199 Uma Ramaswamy, Protection and Inequality among Backward Groups, Economic & Political Weekly (Vol. 21 No. 9, 9 March 1986) 98 PART D are priestly castes and are spiritual advisors to Mala satellite castes. Within the Mala satellite castes, Mala Jangam is at the top, followed by Mala Pambala, Masti and Gurra Malas. The sub-castes also follow rules of 200 untouchability amongst themselves: “There are certain rules that restrict the taking of food, water and access to the temples among the Dalits. The Malas, higher caste Dalit do not take food or water from the Madigas, the lower caste Dalit in village India. Mala Jangam, Mala Dasari and Mithal Ayyalwar do not eat or drink from Malas, Madigas and Dakkal. Similarly other castes do not take cooked food or water from these castes. Malas and Madigas have separate wells and temples. Malas do not take food and water from Mastu, Gurram Malas and Madigas. But all these castes take food and water from priestly class of Malas. The singari, the gurus to Madigas, strictly refrain from eating food touched or cooked by Madigas or other satellite caste. Bindla though enjoys higher social status in Madigas satellite caste. The higher castes do not take either cooked food or water from Bindlas. Being worshippers of Shakti (the power) they do not take food or water from the hands of their satellite castes, since they consider themselves as sacred. Sindhu, the entertaining caste of Madigas” do not take food or water from Dakkals but their food or water is acceptable for Madigas. Dakkals who occupied a lowest social status in social hierarchy accept food and water from all castes, except Vishwa Brahamaa. The food or water of Dakkals is not acceptable to any other caste. Dakkals have to take food or water standing outside Madiga houses. Thus the higher caste Dalits do not drink or dine in common. These commenalities indicate the foundation of Panchama hierarchy and heterogeneous caste cleavages within Scheduled Castes in Andhra Pradesh.” 142. Empirical evidence indicates that there is inequality even within the Scheduled Castes. The Scheduled Castes are not a homogenous integrated class. 200 Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327] 99 PART D vi. The power of the State to sub-classify under Articles 15 and 16 143. Article 16(4) provides the State with the enabling power to make provisions for reservations in appointments or posts in favour of “any backward class of citizens”. The provision, unlike Article 15(4), does not distinguish amongst the Scheduled Castes, Scheduled Tribes, and other Socially and Educationally Backward Classes. In Indra Sawhney (supra), this Court defined the backward class in terms of social backwardness. Social backwardness is attributable to several identities such as caste, gender and disability. Though, the backwardness caused due to these multiple identities are all collectively within the ambit of the backward class for the purposes of Article 16(4), the State is free to recognize the heterogeneity amongst the class and provide separate reservation to women and the Scheduled Castes to deal with the purpose. 144. Article 15(4) recognizes the power of the State to make “any” special provisions for the advancement of “any” socially and educationally backward classes of citizens or for “the” Scheduled Castes and “the” Scheduled Tribes. Article 15(5) is similarly worded. It was submitted before this Court that the use of the preposition “any” before the socially and educationally backward class as opposed to the phrase “the” before Scheduled Castes and Scheduled Tribes indicates the Scheduled Castes and Scheduled Tribes are a homogenous integrated class. We do not agree with the submission. The provision provides the State with the power to make “ any ” special provisions for the Scheduled Castes and the Scheduled Tribes. Thereby, it recognizes 100 PART D the wide power of the State to employ a range of means to secure substantive equality. This would include sub-classification within the Scheduled Castes. 145. The first prong of the test for sub-classification is whether the Scheduled Castes form a homogenous integrated class for all purposes. We have held above that even if Article 341 creates a deeming fiction, the provision does not create an integrated class that cannot be further sub-classified. The provision only puts certain castes or groups or parts of them into a group called the Scheduled Castes. The castes or groups within the Scheduled Castes form an integrated class for the limited purpose of constitutional identification. They do not form an integrated class for any other purpose. We have also established through historical and empirical evidence that the Scheduled Castes notified by the President under Article 341 are a heterogenous class where groups within the class suffer from varying degrees of social backwardness. Thus, the first test is satisfied. 146. The State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified. If the Scheduled Castes are not similarly situated for the purposes of the law (or the specific harm identified), there is nothing in Articles 15, 16 and 341 which prevents the State from applying the principle of sub-classification to the class. Thus, the Scheduled Castes can be further classified if: (a) there is a rational principle for differentiation; and (b) if the rational principle has a nexus with the purpose of sub-classification. 101 PART D 147. One of the issues before this Court in Chinnaiah (supra) was whether the State has the legislative competence to sub-classify. Justice Santosh Hegde observed that having once fulfilled the mandate of providing reservations under Articles 15(4) and 16(4), the enactments were beyond the legislative competence of the State because - first , the primary object of the law was grouping of sub-castes and apportionment of reservations was merely consequential and second , the State could not under Entry 41 of List II and Entry 25 of List III (of the Seventh Schedule) dealing with State services and 201 education respectively, divide the Scheduled Castes List. Justice Sinha noted that the legislative competence of the State legislatures under Article 246 is subject to the other provisions of the Constitution, namely Article 341 202 of the Constitution. 148. The opinions in (supra), conflate the issue of legislative Chinnaiah competence, which is referrable to Articles 245 and 246, with the power to ensure substantive equality under Articles 15 and 16. Article 245 read with the Seventh Schedule lays down the legislative competence of the State Legislatures and Parliament. Articles 15(4) and 16(5) recognize the power of the State to make special provisions for the advancement of the backward class, including the Scheduled Castes. These provisions permit the State to confer the benefit of affirmative action on classes where it is most necessary. Thus, the power of the State to sub-classify the Scheduled Castes for the purpose of affirmative action, including reservations, is traceable to Articles 201 Chinnaiah (supra) [Justice Hegde, 31] 202 Chinnaiah (supra) [Justice Sinha, 90] 102 PART D 15(4) and 16(5) in the case of educational institutions and appointments, respectively. vii. Criteria for sub-classification 149. The object of the special provisions in Articles 15(4) and 16(4) is to provide 203 substantive equality to the beneficiary class. Inter-se backwardness within the class is a roadblock to achieving substantive equality. Sub-classification is one of the means to achieve substantive equality. But the crucial question is, what should be the rational principle to distinguish categories within the Scheduled Caste? Should it be based on the form of untouchability or any form of inter-se social backwardness? We will discuss the rational principle which must be used for sub-categorization in this segment of the judgment. 150. It is important to understand the provision from the perspective of the beneficiary class for whose advancement it has been adopted, to elucidate the rational principle for differentiation. Though both Articles 15(4) and 16(4) share a similarity to the extent that they enable the State to provide affirmative action policies, there exist some dissimilarities in the language of the provisions. Firstly, Articles 15(4) and 16(4) deal with different spheres. Article 15(4) is a general provision which gives effect to the principle of substantive equality by recognizing that the non-discrimination provisions shall not prevent the State from making “any special provision” for the advancement of the beneficiary class. On the other hand, Article 16(4) deals specifically 203 See NM Thomas (supra) 103 PART D with matters of public employment. Secondly, Article 16(4) only deals with reservation while Article 15(4) recognizes other forms of affirmative action. Article 15(4) is broader and all-encompassing as compared to Article 16(4). Thirdly, the beneficiary class under Article 15(4) must be “socially and educationally backward” while the class under Article 16(4) is a backward class which is not adequately represented. The Scheduled Castes and the Scheduled Tribes are expressly carved out in Article 15(4), unlike Article 16(4), where they are encompassed within the “backward class”. 151. One of the issues that must be adjudicated while discussing the scope of the provisions is whether the beneficiary classes in Articles 15(4) and 16(4) are different. This issue must be decided with reference to: a. The use of the qualifiers “socially and educationally” backward in Article 15(4); and b. The use of the qualifier “adequate representation” in Article 16(4). a. The meaning of “Backward Class” 152. Article 15(4), unlike Article 16(4), provides that the beneficiary class for the purposes of the provision must be socially and educationally backward. In (supra), this Court held that the beneficiary class under Article 15(4) Balaji must be both socially and educationally backward. Justice Gajendragadkar observed that caste, occupation and poverty are important factors for 204 determining the socially backward class. This was reiterated in Janki 204 MR Balaji v. State of Mysore, AIR 1963 SC 649 [24,25] 104 PART D 205 Prasad Parimoo v. State of Jammu and Kashmir . Justice D G Palekar writing for this Court made a crucial observation on the relationship between social and educational backwardness. The learned Judge observed that though the phrases ‘socially’ and ‘educationally’ are used cumulatively for the purposes of identifying the backward class under Article 15(4), “if a class as a whole is educationally advanced it is generally also socially advanced 206 because of the reformative effect of education on that class”. The relationship between social and educational backwardness where social backwardness contributes to educational backwardness was reiterated in (supra). Thus, though the criteria of socially and Indra Sawhney educationally backward class must be cumulatively read for the purposes of identifying the beneficiary class, they are not mutually exclusive concepts. They have a causal relationship, where the educational backwardness of a class is an impact of its social backwardness. 153. The next issue is whether the beneficiary classes in Article 15(4) and Article 16(4) are the same even though, unlike Article 15(4), Article 16(4) does not include the qualifiers of “social” and “educational”. In Janki Prasad Parimoo (supra), this Court read the requirement of social and educational 207 backwardness into Article 16(4). This was reiterated in Vasant Kumar v. 208 State of Karnataka by a Constitution Bench of this Court. However, in 205 (1973) 1 SCC 420 206 (1973) 1 SCC 420 [24] 207 (1968) 2 SCR 786 208 1985 Supp SCC 714; Justice Chinnappa Reddy observed that “backward classes of citizens referred to in Article 16(4), despite the short description, are the same as the socially and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, so fully described in Article 15(4).” Justice Sen and Justice Venkataramiah (as the learned Chief Justice then was) observed that Articles 15(4) 105 PART D Indra Sawhney (supra), Justice B P Jeevan Reddy speaking for four Judges (Chief Justice Kania, Justice Venkatachaliah, Justice AM Ahmadi and himself) observed that there is no basis for this assumption. The learned Judge observed that Article 16(4) applies to a much larger class. The socially and educationally backward class is of the categories, to which Article one 16(4) applies. The socially and educationally backward classes are included within the broader class to which Article 16(4) applies. Justice Jeevan Reddy also held that reading educational backwardness in Article 16(4), which deals with reservation in appointments at any level, would not appropriate: “787. […] “Backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). […] Thus, SEBCs referred to in Article 340 is only [one] of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services- which may mean, at any level whatsoever- insisting upon educational backwardness may not be quite appropriate.” 154. The observation above must not be read in a vacuum. The purport of the observation by Justice Jeevan Reddy is clarified in the subsequent paragraph and 16(4) are intended for the benefit of those who belong to casts, communities which are traditionally disfavored and which have suffered societal discrimination in the past. 106 PART D where the learned Judge observed that though educational backwardness is not to be excluded as a criterion, social backwardness must have caused educational backwardness: “788. […] It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty- which in turn breeds and perpetuates the social and educational backwardness. They feel upon each other constituting a vicious cycle. It is a well- known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes.[…] We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social and educational.” 155. In Indra Sawhney (supra), Justice Pandian defined the backward class of citizens as “a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense that not having so much of intellect and ability will 209 fall within the ambit of ‘any backward class of citizens’ under Article 16(4)”. The learned Judge further elucidated that the “primary consideration” in 210 identifying the backward class is social backwardness. Justice Sawant also observed that in identifying the beneficiary class under Article 16(4), social backwardness must be given importance. Justice Sawant held that the 209 (1992) Supp (3) SCC 217 [58] 210 (1992) Supp (3) SCC 217 [117] 107 PART D criterion for the identification of the beneficiary class is whether it is socially backward and whether the class which is educationally and economically 211 backward, is so because of its social backwardness. 156. Justice Kuldip Singh adopted a different approach. The learned Judge held that the beneficiary classes in Articles 15(4) and 16(4) are different. Justice Kuldeep Singh observed that unlike the determination of the beneficiary class in Article 15(4) which must be socially and educationally backward, the class identified for the purposes of Article 16(4) need not be backward because: a. The Constituent Assembly Debates indicate that reservation under Article 16(4) is to provide access to communities that have not had a ‘look in’ at the administration of the State. The object of including the phrase “backward” in Article 16(4) - which did not find a place in the initial draft - was only for the purpose of reducing the number of 212 claimants for the reserved posts; b. Inadequate representation in the services of the State is the only test for the identification of the beneficiary class under Article 16(4). Inadequate representation can be identified based on occupation, economic criterion, family income, political sufferers, border areas, backward areas, communities kept out of State services or any other 213 means. The ‘backward class’ must be culled out from the classes 214 which are inadequately represented ; 211 (1992) Supp (3) SCC 217, [Justice Thommen, 273]; [Justice Sawant 441,552] 212 (1992) Supp (3) SCC 217 [363] 213 (1992) Supp (3) SCC 217 [368] 214 (1992) Supp (3) SCC 217 [364] 108 PART D c. The backward class cannot be classified into adequately represented and inadequately represented. A class that is adequately represented cannot be considered backward. Reading the qualifier of inadequate representation with respect to the backward class would render the 215 former expression redundant; and d. The Constitution has expressly mentioned the Scheduled Castes and the Scheduled Tribes whenever the Constitution grants protection to 216 the “weaker classes”. 157. Contrary to the opinion of Justice Kuldeep Singh, which held that the determining character of the class in Article 16(4) is not backwardness but 217 inadequacy of representation , the majority in Indra Sawhney (Justice Reddy writing for four Judges, Justice Pandian and Justice Sawant) held that the predominant factor which must be employed to identify the “backward class” must be social backwardness. The majority also held that the backward class in Article 16(4) subsumes the socially and educationally backward class 218 identified under Article 15(4). Thus, the objective of both Articles 15(4) and 16(4) is to ensure substantive equality by uplifting the socially backward class. 215 (1992) Supp (3) SCC 217 [366] 216 (1992) Supp (3) SCC 217 [367] 217 See opinion of CJ Ray in MN Thomas (supra) 218 (1992) Supp (3) SCC 217 [Justice Reddy,787]; [Justice Sahai, 583] 109 PART D b. Inadequacy of representation in services of the State 158. The issue on the identification of beneficiaries which will impact the scope of reservation is whether the class is both backward and inadequately represented. That is, whether they are mutually exclusive qualifiers. In Indra (supra), Justice Sawant writing the concurring opinion observed Sawhney that only classes which are inadequately represented must be provided reservation under Article 16(4). In the opinion of the learned Judge, a class that is backward will cease to be a beneficiary when the class becomes adequately represented. This observation aligns with the argument that reservation must not be provided once the goal of the provision, which is securing adequate representation is achieved. 159. To navigate this issue, it is necessary that we refer to the debates of the Sub- Committee of Minorities and Sub-Committee of Fundamental Rights to ascertain the reason for the inclusion of the phrase “inadequate representation” in Article 16(4). The Objectives Resolution which was introduced by Mr Jawaharlal Nehru on 13 December 1946 resolved to provide adequate safeguards for minorities, backward and tribal areas, and the depressed and other backward classes. The equality provision in the first draft report submitted by the Sub-Committee on Fundamental Rights did not provide for reservation of seats for the backward community or the minorities. Though the report included provisions emphasizing anti-discrimination and equal opportunity, it did not recommend an enabling provision for affirmative 110 PART D 219 action. The Sub-Committee on Minorities along with the Fundamental Rights Sub-Committee decided to examine the clauses recommended to determine if any of them required to be amended to protect minority rights. During the discussion, Mr KM Munshi stated that reservation may have to be 220 made for the minorities in public employment. An Advisory Committee was formed to make recommendations on how best to reconcile the anti- discrimination provision with the provision for reservation. The Sub- Committee on Minorities recommended that a proviso may have to be added 221 to meet the claims of representation of the marginalized communities. 160. After the discussion, Dr Ambedkar representing the Advisory Committee, suggested the inclusion of the following provision: “Nothing herein contained shall prevent the State from making provisions for reservation in public services in favour of classes as may be prescribed by the State .” (emphasis supplied) 161. The Sub-Committee on Fundamental Rights debated two issues related to the above clause. First, whether the word “minority” or “class” must be used 219 There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use of wells, ranks, roads, schools and places of public resort maintained wholly or party out of public funds or dedicated to the use of the general public (b) There shall be equality of opportunity for all citizens- (i) in matters of public employment (ii) in the sercise or carrying on of any occupation, trade, business or profession; and no citizen shall on any of the grounds aforesaid be ineligible for public office or be prohibited from acquiring, holding or disposing of property or exercising or carrying on any occuptation, trade, business or profession within the Union (2) Any enactment, regulation, judgment, order, custom or interpretation of law, in force immediately before the commencement of this Constitution by which any penalty, disadvantage, or disability is imposed upon or any discrimination is made against any citizen on any of the grounds aforesaid shall cease to have effect. 220 B Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public Administration] 221 221 Ibid, 258-259; KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave was that minorities in India have come to have a specific meaning, that is to say, religious or political minorities, Muslims, Sikhs etc. 111 PART D to signify the beneficiaries. The debates indicate that the phrase “class” was preferred over “minority” because the latter has a specific connotation, that is, religious or political minorities and this would exclude classes who constitute the majority but are yet not adequately represented. The reason is best explained by Dr Ambedkar in the Annexure to the Memorandum and Draft Articles on the Rights of States and Minorities, where he noted that “to make religious affiliation the determining factor for constitutional safeguards is to overlook the fact that religious affiliation may be accompanied by an intense 222 degree of social separation and discrimination”. 162. The second issue was whether the provision must be qualified with the phrase “adequately represented”. A few members expressed the fear that the use of 223 the phrase “adequate representation” would become litigious. In spite of this apprehension, the phrase was retained to restrict the discretion of the State since the phrase “class” and not “minority” was adopted. Without the phase “adequate representation”, the clause would have also included reservations for adequately represented majorities for whom the benefit was not intended. However, with the inclusion of the phrase “adequately represented” qualifying the phrase “classes”, the benefit of the provision extends to classes which may be considered ‘majorities’ but are yet 224 inadequately represented. 222 Shiva Rao, supra, 109 223 BR Ambedkar: “I am omitting the words “not adequately represented”. If we have the words “not adequately represented”, any reservation made by the State may be open to be challenged in a court. The court may say that reservation is made for a class although it is adequately represented.” 224 KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave was that minorities in India have come to have a specific meaning, that is to say, religious or political minorities, Muslims, Sikhs etc. Sikh, Muslim, Depressed Classes, either a political or religious minority. The meaning 112 PART D 163. The debates in the Sub-Committee on Fundamental Rights and Sub- Committee on Minorities indicate that the beneficiaries of reservation are classes that are not “adequately represented” and this could include classes which are numerical majorities. Provisions for reservation are now available not only to the members of the Scheduled Castes and Scheduled Tribes but also of the socially and educationally backward classes which are numerical religious majorities. The phrase “backward” preceding “class” was absent in the draft circulated by the Sub-Committee. The phrase was included in Article 10 of the Draft Constitution. The inclusion of the phrase backward along with the qualifier of adequate representation clarifies the scope of the beneficiary class. 164. Dr B R Ambedkar stated in the Constituent Assembly that reservations under Article 10 of the Draft Constitution [Article 16 of the Constitution of India] are given to those who have not had a “proper look-in” to the administration 225 because it has historically been controlled by a few communities. Referring to the above observations of Dr Ambedkar, Justice Jeevan Reddy held in Indra Sawhney (supra) that the objective of Article 16(4) is to ensure that the 226 backward classes get the opportunity to share state power. has come to that. There may be among the majority, among the Hindus for example, many classes who have not adequate representation in the services.” 225 CAD Vol 7. P. 701 226 Reddy J [694] “[…] In short, the objective behind Article 16(4) is empowerment of the deprived backward communities- to give them a share in the administrative apparatus and in the governance of the community.” Also see Paragraph 161 where Justice Pandian states that “inadequate representation is not confined to any specific section of the people, but all those who fall under the group of backwardness whether they are Shudras of Hindu community or similarly situated other backward classes of people in other communities, namely, Muslims, Sikhs, Christians etc. 113 PART D 165. It is clear from the debates extracted above that the purpose of the reservation clause is to remedy the inadequate representation in public services of certain “classes”. The cause for inadequate represented could be two-fold. First, it may be a result of laws that expressly excluded certain classes from accessing the good, that is posts in public service. Second, it may be the result of a class being excluded not expressly by law but through social exclusion. A class may be socially excluded from accessing skills which are relevant for acquiring the good. These restrictions could either be in the form of social and informal or legal and formal restrictions. 166. In (supra), Justice Jeevan Reddy observed that a class for Indra Sawhney the purpose of securing reservations under Article 16(4) should not only be a backward class but must also be inadequately represented in the services of 227 the State. Thus, the beneficiary class is not to be determined solely on the basis of whether the class is a numerical minority or a majority in the services of the State. The focus instead is on identifying classes that have been excluded from public services not as a matter of chance or choice but because of the operation of the system of hierarchy. Thus, both the phrases, “backward” and “not adequately represented,” in Article 16(4) cannot be interpreted in a mutually exclusive manner in determining the beneficiary class under Article 16(4). The intent of Article 16(4) is to cover those classes which have been inadequately represented of their backwardness. because 227 Also see Nagaraj (supra) where this Court observed that the discretion of the State under Article 16(4) is subject to the existence of “backwardness” which must be based on objective factors and “inadequacy of representation” which must factually exist. 114 PART D Thus, the requirement of inadequate representation cannot be detached from the requirement of backwardness. c. The requirement of “effective” representation 167. Conventionally, the State has assessed if the class is adequately represented by comparing the representation of the class in the services to the total 228 population of the State. However, adequacy of representation when determined purely from a numerical perspective without accounting for factors such as representation vis-à-vis posts would dilute the purpose of the provision. The objective of Article 16(4) is to ensure effective representation of the class in the services of the State across posts and grades. Classes which are socially backward occupy the lowest of the social strata primarily because of the traditional occupation accorded to the class by social rules. For example, certain Dalit castes are regarded as scavenger castes. Even with the provision of reservation, it is very difficult for the backward classes to shed the traditional occupation that is ascribed to them by society and optimize the opportunities even at the lowest levels. The struggles that the class faces do not disappear with their representation in the lower grades. The endeavor is to ensure true and effective representation of the socially backward classes across posts. 168. Opportunities for real and effective representation must be created in all posts and grades. The objective of the provision is not to emulate the existing social 228 See RK Sabharwal v. State of Punjab, (1995) 2 SCC 745 [4]; BK Pavitra (II) v. State of Kerala, (2019) 16 SCC 129 [107]; Indra Sawhney, (1992) Supp (3) SCC 217 [807 and 808] 115 PART D hierarchy where the low-grade posts are occupied by the socially backward while supervisory and managerial posts continue to be occupied by the advanced classes. If the objective of Article 16(4) is to be achieved in the truest sense, the inadequacy of representation must not be determined only on the basis of the total number of members of the backward class in the services of the State but by assessing the representation of the class across various posts. 169. The meaning of the phrase “adequate representation” fell for the consideration of this Court in Rangachari (supra). Writing for the majority, Justice Gajendragadkar observed that adequate representation means not only numerical representation but qualitative representation as well: “25. […] This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as In the context the expression “adequately well. represented” imports considerations of “size” as well as “values”, numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service can be judged.” (emphasis supplied) 170. On the other hand, Justice Wanchoo and Justice Rajgopala Ayyangar observed that the phrase ‘adequate representation’ only conveys the 116 PART D meaning of inadequacy of representation in the quantitative sense and does 229 not convey any idea of equality. In v. Triloki Nath State of Jammu and 230 Kashmir (I) , a reservation policy providing 50 percent of the seats to Muslims from Jammu and Kashmir, 60 percent of the remaining fifty percent seats to Hindus from Jammu and the remaining 40 percent of the 50 percent to Kashmiri Pandits was challenged. The State contended that the sole test of backwardness for the beneficiary class under Article 16(4) is inadequacy of representation in the services of the State. The Constitution Bench rejected the argument, observing that if it is accepted, the benefit would be conferred only on the ‘rich and cultured’ who are socially and educationally advanced. 171. Justice Jeevan Reddy also adopted a value-ridden interpretation of the phrase “adequately represented” in Indra Sawhney (supra). The learned Judge held that the principal test to determine the adequacy of representation is “effective representation or effective voice in the administration” and not mere numerical presence. Effective representation can only be achieved, in this view, when there is adequate representation at all levels or posts in the 231 administration. Justice Sawant also adopted a similar approach. 229 Justice Wanchoo’s opinion “32. Therefore, when Article 16(4) says that reservation may be made in order that any backward class of citizens may be adequately represented in the services it means that reservation may be made in order to make the number of any backward class sufficient in the services under the State. These words do not in my opinion convey any idea of equality […]; Justice Ayyangar [Paragraph 43]: “[…] I have drawn attention to this because it pointedly demonstrates that the correct view is that when “inadequacy of representation” is referred to in Article 16(4) as justifying a reservation, the only rational and reasonable construction of the words are that it refers to a quantitative deficiency in the representation of the backward classes in the service taken as a whole and not to an inadequate representation at each grade of service or in respect of each post in the service.” 230 (1967) 2 SCR 265 231 (1992) Supp (3) SCC 217 [517] 117 PART D 172. We are in complete agreement with the opinions of Justice Jeevan Reddy in (supra) and Justice Gajendragadkar in (supra) Indra Sawhney Rangachari on this aspect which is being discussed in the present segment. Adequate representation means meaningful and effective representation. The sphere of public services is a constitutionally recognized realm for reservation because being a part of the administrative mechanism of the State is itself an indicator of social power. It is for the same reason that the Constitution, when it was adopted, guaranteed reservation in the legislature. However, there exists a hierarchy in social power within the sphere of public service. Positions that are higher up in the pyramid are positions that command greater authority. For example, let us assume a situation where the Class III and Class IV posts in the State are filled by members of a certain class while the higher positions of authority and power are filled by members of a certain class. This demographic of representation, if the service is taken as a whole unit, does not paint a realistic picture of the inequality that persists within the sphere. If numerical representation is used as an indicator, provision for representation will have to be made in favour of classes which are unrepresented in Class III and Class IV which does not align with the purpose of the provision. In fact, that would be nothing but another indicator of the existence of unequal social structures where members of the backward classes are subject to the authority and power of the more advanced. Thus, a numeric-representation focused interpretation of the phrase ‘inadequate representation’ does not fulfill the purpose of the provision. 118 PART D 173. In view of the discussion above, the following principles are summarized with respect to the objective and yardstick for identifying the beneficiary class under Articles 15(4) and 16(4): a. The beneficiary class in Article 15(4) must be a socially and educationally backward class. “Socially and educationally backward” are not mutually exclusive concepts. The phrase constitutes a constitutional recognition of the sociological reality that educational backwardness is caused by the social backwardness of the class; b. The beneficiary class in Article 16(4), similar to the class under Article 15(4), must predominantly be socially backward. The purpose of both the provisions is to ensure substantive equality of opportunity to the socially backward communities. The beneficiary class in Article 16(4) subsumes the socially and educationally backward classes under Article 15(4); c. The qualifier of inadequate representation in Article 16(4) is not mutually exclusive of the requirement of backwardness. The inadequate representation of the class in the services of the State must be because of social backwardness; and d. The adequacy of representation must be determined based on the standard of effective representation and not numerical representation. 119 PART D d. Yardstick for sub-classification 174. This takes us to the next question. What must be the rational basis for sub- classification within the beneficiary classes? Since the purpose of Articles 15(4) and 16(4) is to ensure equality of opportunity of the socially backward classes, the criterion for sub-classification within a class (be it the Other Backward Classes or the Scheduled Castes or Tribes) must be an indicator of social backwardness. The yardstick for classification must differentiate the class based on inter-se social backwardness. The inter-se backwardness could be identified based on the same or different identity. The State has identified the Other Backward Classes, the Scheduled Castes and the 232 Scheduled Tribes. Here, the State sub-classifies based on the same identity, that is, social backwardness because of caste identity. Horizontal reservation is provided to classes which face backwardness due to identities 233 234 other than caste such as gender and disability . Here, the State sub- classified based on a different identity. 175. Though Article 16(4) only refers to the “backward class” collectively, the Scheduled Castes are differentiated because they suffer from social backwardness in the form of untouchability which leads to educational and economic backwardness. The Scheduled tribes are classified as a separate class because they suffer from social backwardness because of their spatial 235 and cultural isolation from the rest of the population. Since the State can 232 See the Central Educational Institutions (Reservation in Admission) Act 2006 233 Seats have been reserved for women through executive notifications issued by various states. 234 See The Rights of Persons with Disabilities Act 2016, Sections 32, 34 235 Galanter, supra, 147 120 PART D use any yardstick to determine inter-se backwardness, it is not necessary that the criteria for sub-classification and the criteria used to distinguish the class from the other classes must be the same. That is, if the criteria for recognizing the Scheduled Castes as a backward class is untouchability, it is not necessary that the group can be sub-classified only if there is inter-se backwardness due to the same identity (that is, untouchability). 176. The Scheduled Castes are a collection of castes, races or tribes or parts of 236 groups, races or tribes. Caste is both a unit in the sense that it consists of a homogenous group of people and is also an indicator of backwardness 237 because it is an occupational grouping. The nexus between caste and occupation continues to persist, more predominantly in the rural areas. This position has been expounded by numerous cases right from Balaji (supra) to (supra). A caste whose traditional occupation is that of Indra Sawhney scavenging and another caste whose traditional occupation is that of weaving may both face the stigma of untouchability. However, the caste whose traditional occupation is that of scavenging will be more socially backward when compared to the weaver caste because of the caste-occupation-poverty nexus. 177. How does the State identify inter-se social backwardness within the Scheduled Castes? As discussed above, the inter-se backwardness can, inter alia , be identified based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a 236 Constitution of India 1950; Article 366(24) 237 (1992) Supp (3) SCC 217 [ Justice Jeevan Reddy, 779] 121 PART D caste is because of its social backwardness. I have had the benefit of reading the erudite opinion of my learned Brother, Justice Gavai. My learned Brother and I agree that the State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. viii. The limits of sub-classification 178. Having held that sub-classification of the Scheduled Castes for the purposes of reservation is valid and having laid down the yardstick which must be used for further categorization, the next issue that falls for our consideration is its scope. In this section, we will answer the following issues: a. Whether the State should earmark seats for the each of the sub- categorized classes or follow a preference model; and b. Whether the State can allocate seats or preference for of the each castes in the Scheduled Castes List. This section is not intended to prescribe an inflexible criterion for the State. Our analysis will lay down broad constitutional parameters without trenching on matters of policy. a. Model of special provisions 179. A crucial issue which arises for consideration is with respect to the model of reservations for the sub-classified classes. There are two models that the 122 PART D State may employ while reserving seats for the sub-classified castes. It needs to be analyzed if both the methods are constitutional. 180. In the first model, the class(es) that are more socially backward are given a preference to all the seats that are reserved for the Scheduled Castes. There are two variations of this model. In the first variation, certain castes are given a preference over all the seats reserved for the category of Scheduled Castes. In other words, the sub-categorized class will get the first bite at the apple. In the second variation, the sub-categorized class will have a preference over a certain percentage of seats. Any unfilled seats will be available to the other categories. 181. In the second model, seats shall be exclusively available to certain castes. The exclusive model differs from the preference model to the limited extent that in the former, the seats that are not filled will be carried over to be filled by the same castes in the subsequent year while in the latter, the seats that are not filled will be available to the other castes within the same class. There are two variations to this model as well. In the first variation, a certain percentage of seats will be reserved for the sub-categorized class and the State shall carry forward the unfilled seats, if any, to be filled by the same class in the subsequent year. In the second variation, all the seats are exclusively available to a certain caste from the category and the State shall carry forward the unfilled seats. 182. Whether the preference or the exclusive model is unconstitutional would depend on whether the variation in-effect excludes any caste notified as a 123 PART D Scheduled Caste with respect to that State by the President under Article 341(1). With respect to the preference model, the first variation by which preference is given to certain castes to all the seats would be an unconstitutional approach because there is a possibility that other categories within the class of the Scheduled Castes are . For example, if the excluded State grants preference to three of the thirty castes classified as the Scheduled Castes over all the seats reserved for the Scheduled Castes, it is possible that the three castes exercise their preference and fill up all the seats. This would lead to a situation where the other twenty-seven castes classified as the Scheduled Castes would be from the benefit of excluded reservation. This model will be arbitrary and unreasonable also because the Other Backward Classes which are socially advanced compared to the castes classified as the Scheduled Castes would receive the benefit of reservation but the castes or groups within the Scheduled Castes would not. The castes classified as the Scheduled Castes must be given the opportunity to secure the benefit. If not, the provision would become otiose for their purposes. 183. However, the second variation of the first model is differently placed vis-à-vis the scope of Article 341(2). In the second variation, preference to certain castes is given only over a certain percentage of the seats. Thus, castes for whom preference is not given but which are included in the List of Scheduled Castes will be able to compete for a certain percentage of seats. In addition to those seats, they may get the opportunity to compete for the percentage of seats reserved for the sub-classified caste, if they are left unfilled. Thus, this 124 PART D model does not have the effect of excluding any of the castes in the Scheduled Castes List. 184. The difference between the first and the second model is the method in which unfilled vacancies of the more-backward sub-category are to be filled. In the former, the more backward sub-category only has a to a certain preference percentage of seats while in the latter, a percentage of the seats is exclusively available to them and the unfilled seats, if any, will not be available to be filled by the more advanced category of the class. The State may carry forward the unfilled vacancies to the subsequent year which will be available to the same category for which the seats were reserved. 185. Article 16(4-B) provides that the State can consider carrying forward the unfilled vacancies of the year, which were reserved to be filled by classes under Article 16(4) and 16(4-A), to the subsequent year or years. The provision further provides that the unfilled vacancies shall not be considered together with the vacancies of the subsequent year for determining the ceiling of fifty percent reservation on total vacancies for that year. 186. Article 16(4-B) does not make any distinction between a class and sub- classified classes. The provision stipulates that the State can carry forward vacancies of unfilled seats which were reserved to be filled under Articles 16(4) and 16(4-A) of the Constitution. As held in the preceding section, the power of the State to sub-classify within the Scheduled Castes is traceable to Article 16(4). Further, the seats that remain unfilled will not in any manner reduce the seats which are available to the other sub-categories of the 125 PART D Scheduled Castes. The Constitutional validity of Article 16(4-B) was upheld in (supra). Thus, there is no reason to prevent the State from Nagaraj exercising its power under Article 16(4-B) of carrying forward the vacancies which are reserved for a specific sub-category. Such an exercise will be legal and valid. 187. Like the first model, the constitutionality of the exclusive model depends on the percentage of reservation for the sub-categorized castes. The model of sub-classification will be unconstitutional if it excludes some Scheduled Castes from the benefit. This, similar to the first variant of the preference model, would violate of Article 341(2), and would thus be unconstitutional. However, the second version of the exclusive model in which only a certain percentage of seats is exclusively allotted to the sub-classified castes would be constitutional. For example, if ten percent of the seats reserved for the Scheduled Castes are reserved for the more backward among Scheduled Castes, the other castes will have the chance to compete for the other ninety percent of the seats, thus, not excluding any of the castes. The sole test is whether the operation of the policy has the effect of eliminating the possibility of castes or groups competing for the seats reserved for the Scheduled Castes. 188. Article 341(2), as we have noted above, unambiguously prevents inclusion in and exclusion from the Scheduled Castes List by anyone except Parliament. Inclusion could be by way of extending the benefits meant for Scheduled Castes in the State, to a community that is not specifically mentioned in the 126 PART D State Scheduled Castes List (as was the case in Milind (supra)), by reading as a part of an enumerated entry or by reading it as a synonym of an enumerated entry. Such an exercise is not open to the States or for that matter to the Courts. Only Parliament is entrusted with the power to make inclusions to or exclusions from the Lists of Scheduled Castes and Tribes. The thrust of the prohibition, as Dr Ambedkar also indicated, is a proscription on the elimination of an entry or addition of an entry to the List. Such elimination or addition, it was apprehended could arise out of political calculations in the hope of short-term electoral gains. Therefore, only Parliament is invested with the exclusive power to make such variations to the List. Any legislative effort by the State that does not either include unspecified communities or exclude specified communities from the Scheduled Castes List applicable to that State does not fall foul of Article 341(2) of the Constitution. 189. The state has the power to follow either of the two permissible models discussed above while reserving seats through sub-classification. The decision of the State to choose from either of the two models will depend on multiple considerations such as the degree of backwardness of certain castes vis-à-vis the other castes and the total number of qualifying candidates belonging to the Scheduled Castes (both the more backward castes of the Scheduled Castes and the others). 190. The course of action adopted by the State is subject to judicial review, when faced with a constitutional challenge. Where the action is challenged, the State will have to justify the basis of its action. The basis of the sub- 127 PART D classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the State. In other words, while the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot in other words merely act on its whims or as a matter of political expediency. The decision of the State is amenable to judicial review. When its action is challenged under Article 226 or before this Court under Article 32, the State must provide justification and the rationale for its determination. No State action can be manifestly arbitrary. It must be based on intelligible differentia which underlie the sub-classification. The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved. b. The caste-class conundrum 191. One of the issues that arises is whether the State may provide special provisions for each caste within the class. In Indra Sawhney (supra), the State classified the Other backward Castes into two categories – the backward class and the more backward class. Thus, the class was only sub- divided into two categories. Is it permissible to classify the Scheduled Castes by providing preference or reservation in a percentage of seats to every caste? 192. Both Articles 15(4) and 16(4) do not enable reservation based on castes but only on classes. The absence of the use of “caste” in Articles 15(4) and 16(4) when coupled with its use in Articles 15(2) and 16(2) led the courts to hold 128 PART D 238 that caste cannot be the sole basis of reservation. However, as Marc Galanter notes, the court had erroneously fused the two distinct usages of 239 caste, as a unit or class, and as a criterion of backwardness. 193. In Balaji (supra), the criterion for the determination of social and educational backwardness was in question. This Court held that caste is a relevant consideration for determining social backwardness. However, the Court observed that caste cannot be the sole basis for determining the beneficiary class because it would perpetuate the vice of castes. Disagreeing with the Nagan Gowda report, Justice Gajendragadkar writing for the Bench, held that economic backwardness and not caste is the ultimate cause of social backwardness. This interpretation of the permissibility of caste as a criterion to determine the backward class was approved in Chitralekha v. State of 240 241 . In v. , this Court deviated from Mysore P Rajendran State of Madras the approach adopted in Chitralekha (supra) and MR Balaji (supra) 242 observing that caste is a class because it is a homogenous “unit”. The approach in (supra) was later approved by a nine-Judge Bench P Rajendran in Indra Sawhney (supra), where this Court observed that to determine a socially backward class, a caste can be identified as a unit since it is 243 homogenous and then the criteria for backwardness can be applied to it. 238 Venkataramana v. State of Madras, AIR 1951 SC 226; Balaji v. State of Mysore, AIR 1963 SC 649 239 Galanter, supra, Pg. 189 240 AIR 1964 SC 1823 241 (1968) 2 SCR 786 242 “It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward classes within the meaning of Article 15(4).” 243 (1992) Supp (3) SCC 217 [859] 129 PART D 194. The Constitution does not bar the allocation of a percentage of seats to a caste since every caste is a class. However, the State must have sufficient material to prove inter-se backwardness between each of the castes. The State must with the submission of cogent material prove that there is a rationale principle which distinguishes the groups included and those excluded from the class. However, the rational principle will have nexus with the object only when the principle can identify the inter-se social backwardness of the class. For example, if the State allocates a separate percentage of seats for the dhobi caste and the barber caste, it must prove that these two castes suffer from differing levels of social backwardness. It is not merely sufficient for the State to base the classification on the difference in the traditional occupation of the two castes. Rather, the State must on the basis of quantifiable data prove that the castes suffer from different levels of social backwardness. The State must also back this with the submission of data on effective representation of the caste in the services of the State. 195. Though sub-categorization based on each caste is permissible, we are of the opinion that there can never be a situation where seats are allocated for every caste separately. Though each caste is a separate unit, the social backwardness suffered by each of them is not substantially distinguishable to warrant the State to reserve seats for each caste. If the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation. 130 PART D ix. Scope for judicial review 196. The scope of judicial review of reservation policies was laid down in Indra (supra). Justice Jeevan Reddy observed that a class for meriting Sawhney reservations must be both backward and inadequately represented in the “services under the State”. In (supra), this Court held that Nagaraj backwardness must be based on objective standards whereas inadequacy of representation must factually exist. The Court held that the State must submit quantifiable data to prove backwardness and inadequacy of representation. This standard applies for classifying groups for the purpose of reservations and would, equally apply for sub-classification within a group because it is premised on the same principle of difference and inequality. 197. Two prominent considerations arise while discussing the scope of judicial review of sub-classification of the Scheduled Castes and the Scheduled Tribes. First, whether the State must prove inter-se backwardness given the position of law laid down in Indra Sawhney (supra) that the backwardness of the Scheduled Castes and the Scheduled Tribes is not required to be proved. Second, whether the inadequacy of representation of the more backward of the Scheduled Castes must be proved. a. Inter-se backwardness 198. In Indra Sawhney (supra), this Court held that the requirement of social and educational backwardness cannot be applied to the Scheduled Castes and the Scheduled Tribes because they admittedly fall within the backward class 131 PART D 244 of citizens. One of the issues before the Constitution Bench of this Court in 245 v. , was whether (supra) in Jarnail Singh Lachhmi Narain Gupta Nagaraj requiring the State to collect quantifiable data showing backwardness is contrary to the decision in Indra Sawhney (supra), where this Court held that backwardness of the Scheduled Castes and the Scheduled Tribes need not be proved. In Jarnail Singh (supra), this Court held that observations in Nagaraj (supra) that the State is required to collect quantifiable data to prove the backwardness of the Scheduled Castes and the Scheduled Tribes is bad in law because it is contrary to Indra Sawhney (supra). 199. The decision in (supra) exempts the State from having to Indra Sawhney prove that the Scheduled Castes and the Scheduled Tribes are backward for the purposes of securing benefits under Articles 15 and 16. The observations do not exempt the State from having to justify the decision of sub-classifying within the Scheduled Castes and Scheduled Tribes for the purposes of reservation. The basis of sub-classification is that few of the castes or groups within the class are more backward. Thus, though the State is not required to collect quantifiable data to prove backwardness of the entire class of the Scheduled Castes/Tribes, it is required to collect data to prove inter-se backwardness within the class, where it seeks to make a sub-classification within the class. 244 (1992) Supp (3) SCC 217 [Justice Reddy 781; 796-797] 245 (2018) 10 SCC 396 132 PART D b. Adequacy of representation 200. Justice Jeevan Reddy noted in (supra) that the issue of Indra Sawhney whether a class is inadequately represented is a matter within the subjective satisfaction of the State which is evident from the use of the phrase “in the opinion of the State”, and that the subjective satisfaction of the executive action must be judicially reviewed based on the standard laid down in Barium 246 Chemicals v. Company Law Board . In Barium Chemicals (supra) , a Constitution Bench of this Court while determining the validity of administrative actions held that though the formation of opinion by the State may be based on its subjective satisfaction, the State could not act based on circumstances it ‘thinks’ existed. There must be apparent circumstances that merit a certain inference by the State, and such circumstances, must be 247 shown to exist at least prima facie. In the preceding section, we have held that inadequacy of effective representation is a criterion for determining inter- se backwardness. Hence, quantifiable data for that purpose must be submitted. 201. In Nagaraj (supra), this Court held that the State must submit quantifiable data to satisfy the court that reservations are necessary “on account of inadequacy of representation of the Scheduled Castes and Scheduled Tribes 248 in a particular class or classes of posts”. However, in the subsequent paragraphs, this Court held that the cadre strength must be taken as a unit to 246 AIR 1967 SC 295; (1992) Supp (3) SCC 217 [Justice Reddy, 798] 247 AIR 1967 SC 295 [28] 248 Nagaraj v. Union of India, (2006) 8 SCC 212 [117] 133 PART D ascertain whether a given class or group is adequately represented. These observations were made in the backdrop of (supra) where this RK Sabharwal Court held that the entire cadre strength should be taken into account to determine if the quota limit has been breached. The relevant observations are delineated as under:

202. At this juncture, it is important that we clarify the observations in Nagaraj (supra) extracted above. In Nagaraj (supra), this Court referred to the judgment in while observing that the cadre must be taken as RK Sabharwal 134 PART D a unit to determine the inadequacy of representation. However, the context in which (supra) held cadre must be considered as a unit was RK Sabharwal different. In that case, two issues were considered. First, whether appointments of the backward classes in the general category must be counted while working out the percentage of reservation for the backward classes. Second, whether the reservation is complete when the posts earmarked for the Scheduled Castes or Scheduled Tribes are filled. It is while answering the second of the issues that this Court held that reservations must operate in accordance with the roster maintained in the Department which will be a running account every year to ensure that there is no excessive reservation. This Court explained the working of the calculation of cadre- based vacancy as follows: posts falling in specific serial numbers would be reserved seats allotted to each class and when a reserved seat falls vacant, it must be filled by the person of the same category: “5. […]concept of “running account” in the impugned instructions has to be so interpreted that it does not result in excessive reservation. “16% of the posts …” are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled 135 PART D

203. The inference in Nagaraj (supra) that cadre must be taken as a unit to determine inadequacy of reservation based on the above observations in RK (supra), in our respectful opinion, is misplaced. The cadre as a Sabharwal unit was considered only for the purpose of preparation of roster to draw a balance between the reserved and open seats. This Court did not hold that cadre must be used as a unit for the purpose of determining the adequacy of representation. In fact, RK Sabharwal (supra) says to the contrary. RK (supra) observed that the State Government may take the total Sabharwal population of a particular Backward Class and its representation in the State Services while determining adequacy of representation: “4. […] It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services.” 136 PART D As observed above, the inadequacy of representation in the services of the State is an indicator to determine the backwardness of the class in the services of the State. When the cadre-strength is used, the inadequacy of representation of the class is not determined. Rather, it determines the inadequacy of representation in a cadre, thereby, merging the distinction between quantitative and qualitative representation. Further, the observations in Nagaraj (supra) that adequate reservation of the class or group must be measured against the cadre is contrary to the plain language of Articles 16(4) and 16(4-A). Both the provisions use the phrase “not adequately represented in the ”. services under the State 204. Thus, in view of the above discussion, the State for a valid exercise of power to sub-classify under Article 16(4) is required to collect quantifiable data with respect to the inadequacy of representation of the sub-categories in the services of the State. As held in the preceding section, the inadequacy of representation is an indicator of backwardness and thus, to use the cadre as a unit to determine representation alters the purpose of the indicator itself. The State while deciding if the class is adequately represented must calculate adequacy based on effective and not quantitative representation. 137 PART E E. Conclusion 205. In view of the discussion above, the following are our conclusions: a. Article 14 of the Constitution permits sub-classification of a class which is not similarly situated for the purpose of the law. The Court while testing the validity of sub-classification must determine if the class is a homogenous integrated class for fulfilling the objective of the sub-classification. If the class is not integrated for the purpose, the class can be further classified upon the fulfillment of the two-prong intelligible differentia standard; b. In Indra Sawhney (supra), this Court did not limit the application of sub- classification only to the Other Backward Class. This Court upheld the application of the principle to beneficiary classes under Articles 15(4) and 16(4); c. Article 341(1) does not create a deeming fiction. The phrase “deemed” is used in the provision to mean that the castes or groups notified by the President shall be “regarded as” the Scheduled Castes. Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the only logical consequence that flows from it is that castes included in the list will receive the benefits that the Constitution provides to the Scheduled Castes. The operation of the provision does not create an integrated homogenous class; d. Sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List. Sub- 138 PART E classification would violate the provision only when either preference or exclusive benefit is provided to certain castes or groups of the Scheduled Castes over all the seats reserved for the class; e. Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogenous class. Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification; and f. The holding in Chinnaiah (supra) that sub-classification of the Scheduled Castes is impermissible is overruled. The scope of sub-classification of the Scheduled Castes is summarized below: i. The objective of any form of affirmative action including sub- classification is to provide substantive equality of opportunity for the backward classes. The State can sub-classify, inter alia, based on inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness; ii. The State must collect data on the inadequacy of representation in the “ services of the State ” because it is used as an indicator of backwardness; and iii. Article 335 of the Constitution is not a limitation on the exercise of power under Articles 16(1) and 16(4). Rather, it is a restatement of the 139 PART E necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services. Efficiency of administration must be viewed in a manner which promotes inclusion and equality as required by Article 16(1). 206. The Registry is directed to obtain administrative instructions from Chief Justice for placing the matters before an appropriate Bench. …….……………………………………CJI [Dr Dhananjaya Y Chandrachud] ..….…………………………………………J [Manoj Misra] New Delhi; August 01, 2024 140 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION CIVIL APPEAL NO.2317 OF 2011 THE STATE OF PUNJAB & ORS. ...APPELLANT(S) VERSUS DAVINDER SINGH & ORS. ...RESPONDENT(S) WITH C.A. NO.5593 OF 2010 S.L.P.(C) NO.8701 OF 2011 W.P.(C) NO.1477 OF 2019 W.P.(C) NO.21 OF 2023 W.P. (C) NO.562 OF 2022 C.A. NO.5586 OF 2010 C.A.NO.5597 OF 2010 C.A. NO. 5598 OF 2010 C.A.NO.5600 OF 2010 C.A. NO.5589 OF 2010 C.A. NO.5587 OF 2010 C.A. NO.5595-5596 OF 2010 C.A.NO.2324 OF 2011 C.A.NO. 6936 OF 2015 S.L.P.(C) NO.30766 OF 2010 S.L.P.(C) NO. 5454-5459 OF 2011 C.A. NO.2318 OF 2011 S.L.P.(C) NO. 36500-36501 OF 2011 C.A. NO.289 OF 2014 T.C.(C) NO.37 OF 2011 T.C.(C) NO.38 OF 2011 T.P.(C) NO.464 OF 2015 1 INDEX

2 J U D G M E N T B.R. GAVAI, J. I have gone through the erudite and scholarly judgment authored by Hon’ble the Chief Justice of India. I am in agreement with the views expressed by the Hon’ble the Chief Justice of India. Taking into consideration the importance of the matter, I find it apposite to express my opinion through this separate judgment. Since the facts and submissions of the learned counsel appearing on behalf of the parties have been elaborately considered in the judgment of the Hon’ble the Chief Justice of India, in order to avoid repetition, I have not referred to them. I. BACKGROUND “The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to 3 divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must 4

5 democracy. He pointed out the contradictions in the country about the social and economic structure. He warned that if we continue to deny equality in social and economic life for long, we will do so only by putting our political democracy in peril. He therefore appealed to the nation to remove this contradiction at the earliest possible moment. He warned that if we do not do so, those who suffer from inequality will blow up the structure of political democracy which the Constituent Assembly had so laboriously built up. 3. Two months thereafter, the Constitution of India came into th th force on 26 January 1950. On 26 November 2023, we have completed 74 years from the date on which the Constitution of th India was enacted, adopted, and given to ourselves. On 26 January 2024, we have completed 74 years from the date on which the Constitution of India came into effect. We are now in th the 75 year of our Republic. 6 4. For the last 75 years, there has been a march towards achieving social and economic equality. There have been efforts to give social and economic justice to the millions of citizens who on account of centuries and centuries of discrimination and inhuman treatment were denied the legitimate right to come into the mainstream of life. The trinity of Articles 14, 15, and 16 along with Articles 46, 335, 338, 341 and 342 have provided a tool to march towards social and economic equality; emphasis on affirmative action so as to give a special treatment to the underprivileged so that they can march forward; providing reservations in the matters of education and in the matter of public employment have been used so as to provide a special treatment to these backward classes. 5. The present case raises a dispute amongst various classes in the group of Scheduled Castes who claim to be more underprivileged and therefore claim for a more differential treatment qua the more advantageous in that group. Per contra, 7 the rival classes inside them claim that once the classes are brought into the Presidential List of Scheduled Castes or Scheduled Tribes, they become a part of homogeneous group, and a further classification is not permissible under the Constitution. 6. This quest of the underprivileged for more preferential treatment as compared to the more advantageous in the larger group falls for consideration in the present reference. 7. The 5-Judge Bench of this Court in the case of E.V. 1 Chinnaiah vs. State of A.P. and others has held that such a further classification on the ground of more backwardness among the backwards listed in the Presidential List is not permissible. However, another 5-Judge Bench of this Court in the case of The State of Punjab & Ors. vs. Davinder Singh & 2 Ors. has doubted the view in E.V. Chinnaiah (supra) and 1 (2005) 1 SCC 394. 2 (2020) 8 SCC 1. 8 referred the matter to a larger Bench. That is how these matters came up for consideration before us. ARTICLE 341, ARTICLE 342 AND THE PRESIDENTIAL ORDER FOR SCHEDULED CASTES AND SCHEDULED TRIBES 8. For appreciating the rival submissions before us, it is to be noted that while on one hand the struggle for gaining freedom for India was going on; on the other hand, on account of social discrimination prevailing since centuries, a quest for social reforms was also going on. 9. In the beginning, a nomenclature often used by Christian Missionaries was ‘depressed classes’ to describe the poor and downtrodden section of the society. A wide array of untouchable castes, aboriginal tribes, and other backward communities were all lumped together under that label. In 1909, leaders like Gopal Krishna Gokhale and Annie Besant also referred to low caste or marginalized communities in India as the ‘depressed classes’. Besant compared the ‘depressed classes’ in India to the 9

3 Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of India (Viking by Penguin Random House India 2023). 10

11 brings members of the same caste together also serves to separate them from innumerable compartments embracing other castes. It further states that this has resulted in a rigid and detailed subdivision of Hindu society which strongly contrasts with the theory of equalitarian ideas among Moslems and Christians. 12. Paragraph 53 of the Report deals with “the depressed classes”. It states that the depressed classes comprise about 20% of the total population of the British India or about 30% of the Hindu population. They constitute the lowest castes recognized as being within the Hindu religious and social system. It further states that in origin these castes seem to be partly “functional,’’ comprising those who followed occupations held to be unclean or degrading, such as scavenging or leather working, and partly “tribal,” i.e., aboriginal tribes absorbed into the Hindu fold and transformed into an impure caste. It further states that their essential characteristic is that, according to the tenets of 12 orthodox Hinduism, they are, though within the Hindu system, “untouchable,” – that is to say, that for all other Hindus they cause pollution by touch and defile food or water. They are denied access to the interior of an ordinary Hindu temple. It states that they are not only the lowest in the Hindu social and religious system, but with few individual exceptions are also at the bottom of the economic scale and are generally quite uneducated. The Report shows that in the villages they are normally segregated in a separate quarter and very frequently eat food which would not be even touched by any other section of the community. 13. A large proportion of them are landless agricultural labourers employed by cultivators for small remuneration. It states that it was not uncommon for a particular shed in a factory to be reserved for depressed class workers. 14. Paragraph 54 of the Report deals with “Disabilities of the Untouchables”. It states that the actual disabilities, other than 13 religious, suffered by the untouchables owing to their untouchability vary very greatly in different parts of India, not only from province to province, but also in different parts of the same province and even sometimes in different parts of the same district. It states that the two most widespread difficulties are about water and schools. It states that in many places it was customary for the untouchables to be denied access to the wells or tanks used by the other castes and great difficulty has often been found, when a new source of water supply has been provided from public funds by local authorities, in arranging for the untouchables to have use of it. The Report highlights that if any village draws its water from a river, the untouchables will be required to take their supply from a different point, lower down. In many places the children of untouchables are either excluded altogether from ordinary schools, although provided in whole or in part from public funds, otherwise they would be required to sit apart. In some cases, the untouchable children are required to 14 attend the classes standing outside the classroom. The Report highlights that the difficulty of the administrator or political reformer was much increased by the fact that the great body of the untouchables yet accept their destiny as natural and inevitable. The Report states that their state is indeed pitiable inside the Hindu fold and yet not of it living on the edge of starvation, and unaware of any hope of improving their lot. 15. Paragraph 55 of the Report highlights that the depressed classes were most severely felt in Madras, and especially in Malabar. In Malabar, is still found the phenomenon of “unapproachability,’’ that is, the untouchable must not approach within a certain distance of a high caste Hindu and would have to leave the road to allow his passage, and even to shout to give warning of the risk of pollution. The Report states that the local authority in another part of Madras had preferred to leave the roads un-mended rather than employ untouchable labourers to repair them. 15 16. The Report further points out that in Bombay and the Central Provinces, the position was more or less comparable with that in Madras. The Report also refers to the telegrams from Nasik and Poona, in the Bombay Presidency, wherein organized action on the part of some untouchables was taken to assert a claim to enter Hindu temples. 17. It may not be out of place to mention that during the relevant period Dr. B.R. Ambedkar had also started a movement for opening waterbodies to the untouchables and even untouchables being permitted to enter the temples. One of such agitations was about a public tank called ‘Chavder tank’ in th Mahad, held on 20 March 1927 and another was an attempt to nd enter Kalaram temple at Nashik on 2 March 1930. 18. The Report further states that in Bengal, Bihar and Orissa and the United Provinces, although there were large numbers belonging to untouchable castes, in general they do not seem to suffer so universally or so severely as in the South. The Report, 16 however, states that the problem did exist in these areas also. The Report also gives approximate percentage of population of the number of untouchables. The Report excludes aboriginals who are outside the Hindu fold. 19. The next document that requires a mention is ‘the Census of India 1931’. The said Report coins the phrase ‘primitive tribes’, who reside in hills, forests, and other nomadic groups. These primitive tribes provide a foundation for Scheduled Tribes. It also notes that the formerly depressed classes are now referred to as the Scheduled Castes. 20. It could thus be seen that while the primitive tribes who reside in hills, forests and remote areas provide a foundation for Scheduled Tribes, the so-called depressed classes which are so recognized on account of untouchability provide a foundation for Scheduled Castes. The Report also states that the 1931 Census Report remains the source material for present day Scheduled Castes and Scheduled Tribes. 17 21. Then comes the Government of India Act, 1935 (hereinafter referred to as “the 1935 Act”). Part II of the 1935 Act deals with “The Federation of India”. Chapter I thereof deals with “Establishment of Federation and Accession of Indian States”. Section 5 of the 1935 Act deals with “Proclamation of Federation of India” and Section 6 of the 1935 Act deals with “Accession of Indian States”. Clause (a) of sub-section (2) of Section 5 of the 1935 Act provided that the States, the Rulers whereof will, in accordance with the provisions contained in Part II of the First Schedule to this Act, be entitled to choose not less than fifty-two members of the Council of States. Clause (b) of sub-section (2) of Section 5 of the 1935 Act provided that the States, the aggregate population whereof, as ascertained in accordance with the said provisions, amounts to at least one-half of the total population of the States as so ascertained, have acceded to the Federation. 18 22. Section 18 of the 1935 Act deals with “Constitution of the Federal Legislature”. Sub-section (3) of Section 18 provided that representatives to be provided to the Council of States and the Federal Assembly shall be chosen in accordance with the provisions in that behalf contained in the First Schedule of the 1935 Act. 23. Similarly, Section 60 of the 1935 Act deals with “Constitution of Provincial Legislatures”. Section 61 of the 1935 Act provides for “Composition of Chambers of Provincial Legislatures”. Sub-section (1) of Section 61 provided that the composition of the Chamber or Chambers of the Legislature of a Province shall be such as is specified in relation to that Province in the Fifth Schedule to the 1935 Act. 24. The First Schedule to the 1935 Act provided for “Composition of the Federal Legislature”. Clause 4 thereof inter provides for seats for representatives of the Scheduled alia Castes. 19

20

21 32. Then comes the Government of India (Scheduled Castes) Order, 1936 (hereinafter referred to as “the 1936 Order”), notified th on 30 April 1936. It will be relevant to refer to the said order, which is as under: “ THE GOVERNMENT OF INDIA (SCHEDULED CASTES) ORDER, 1936 ______________ AT THE COURT AT BUCKINGHAM PALACE th The 30 day of April, 1936 Present, THE KING’S MOST EXCELLENT MAJESTY IN COUNCIL Whereas by certain provisions in the First, Fifth and Sixth Schedules to the Government of India Act, 1935, His Majesty in Council is empowered to specify the castes, races or tribe or parts of or groups within castes, races or tribes which are to be treated as the scheduled castes for the purposes of those Schedules: AND WHEREAS a draft of this Order was laid before Parliament in accordance with the provisions of subsection (1) of section three hundred and nine of the said Act and an Address has been presented by both 22 Houses of Parliament praying that an Order may be made in the terms of this Order : NOW, THEREFORE, His Majesty, in the exercise of the said powers and of all other powers enabling Him in that behalf, is pleased by and with the advice of His Privy Council to order, and it is hereby ordered, as follows :- 1. This Order may be cited as “The Government of India (Scheduled Castes) Order, 1936.” 2. Subject to the provisions of this Order, for the purposes of the First, Fifth and Sixth Schedules to the Government of India Act, 1935, the castes, races or tribes, or parts of or groups within castes, races or tribes specified in Parts I to IX of the Schedule to this Order shall, in the Provinces to which those Parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule. 3. Notwithstanding anything in the last preceding paragraph- (a) no Indian Christian shall be deemed to be a member of a scheduled caste; (b) in Bengal no person who professes Buddhism or a tribal religion shall be deemed to be a member of any scheduled caste; 23 and if any question should arise as to whether any particular person does or does not profess Buddhism or a tribal religion, that question shall be determined according to the answers which he may make, in the prescribed manner, to such questions as may be prescribed. 4. In this Order the expression “Indian Christian” has the same meaning as it has for the purposes of Part I of the First Schedule to the Government of India Act, 1935, and the expression “prescribed” means prescribed by rules made by the Governor of Bengal, exercising his individual judgment. 5. Any reference in the Schedule to this Order to any division, district, subdivision, tahsil or municipality shall be construed as a reference to that division, district, subdivision, tahsil or municipality as existing on the first day of July, nineteen hundred and thirty-six. SCHEDULE PART I – MADRAS (1) Scheduled castes throughout the Province :- Adi-Andhra Gosangi Paidi Adi-Dravida Haddi Painda Adi-Karnataka Hasla Paky Ajila Holeya Pallan Arunthuthiyar Jaggali Pambada 24 Baira Jambuvulu Pamidi Bakuda Kalladi Panchama Bandi Kanakkan Paniyan Bariki Kodalo Panniandi Battada Koosa Paraiyan Bavuri Koraga Paravan Bellara Kudumban Pulayan Byagari Kuravan Puthirai Vannan Chachati Madari Raneyar Chakkiliyan Madiga Relli Chalavadi Maila Samagara Chamar Mala Samban Chandala Mala Dasu Sapari Cheruman Matangi Semman Dandasi Moger Thoti Devandrakulathan Muchi Tiruvalluvar Ghasi Mundala Valluvan Godagali Nalakeyava Valmiki Godari Nayadi Vettuvan Godda Paga dai (2) Scheduled castes throughout the Province except in any special constituency constituted under the Government of India Act, 1935, for the election of a representative of backward areas and backward tribes to the Legislative Assembly of the Province :- Aranadan Kattunayakan Kuruman Dombo Kudiya Malasar Kadan Kudubi Mavilan Karimpalan Kurichchan Pano 25 PART II – BOMBAY Scheduled Castes : - (1) Throughout the Province : - Asodi Dhor Mang Garudi Bakad Garode Meghval, or Menghwar Bhambi Halleer Mini Madig Bhangi Halsar, or Haslar, or Hulsavar Mukri Chakrawadya – Dasar Holaya Nadia Chalvadi Khalpa Shenva, or Shindhava Chambhar, or Mochigar, or Samagar Kolcha, or Kolgha Shingdav, or Shingadya Chena – Dasaru Koli Dhor Sochi Chuhar, or Chuhra Lingader Timali Dakaleru Madig, or Mang Turi Dhed Mahar Vankar Dhegu-Mega Vitholia (2) Throughout the Province except in the Ahmedabad, Kaira, Broaoh and Panch Mahals and Surat districts – Mochi. (3) In the Kanara district – Kotegar. 26 PART III – Bengal Scheduled castes throughout the Province : - Agariya Hari Mal Bagdi Ho Mallah Bahelia Jalia Kaibartta Malpahariya Baiti Jhalo Malo, or Malo Mech Bauri Kadar Mehtor Bediya Kan Muchi Beldar Kandh Munda Berua Kandra Musahar Bhatiya Kaora Nagesia Bhuimali Kapuria Namasudra Bhuiya Karenga Nat Bhumij Kastha Nuniya Bind Kaur Oraon Binjhia Khaira Paliya Chamar Khatik Pan Dhenuar Koch Pasi Dhoba Konai Patni Doai Konwar Pod Dom Kora Rabha Dosadh Kotal Rajbanshi Garo Lalbegi Rajwar Ghasi Lodha Santal Gonrhi Lohar Sunri Hadi Mahar Tiyar Hajang Mahli Turi Halalkhor 27 PART IV – UNITED PROVINCES Scheduled castes :- (1) Throughout the Province :- Agariya Chamar Kharot Aheriya Chero Karwar (except Benbansi) Badi Dabgar Khatik Badhik Dhangar Kol Baheliya Dhanuk (Bhangi) Korwa Bajaniya Dharkar Lalbegi Bajgi Dhobi Majhwar Balahar Dom Nat Balmiki Domar Pankha Banmanus Gharami Parahiya Bansphor Ghasiya Pasi Barwar Gual Patari Basor Habura Rawat Bawariya Hari Saharya Beldar Hela Sanaurhiya Bengali Kalabaz Sansiya Beriya Kanjar Shilpkar Bhantu Kapariya Tharu Bhuiya Karwal Turaiha Bhuyiar Khairaha Boriya (2) Throughout the Province except in the Agra, Meerut and Rohilkhand divisions – Kori PART V – PUNJAB 28 Scheduled Castes throughout the Province : - Ad Dharmis Marija or Marecha Khatik Bawaria Bangali Kori Chamar Barar Nat Chuhra, or Balmiki Bazigar Pasi Dagi and Koli Bhanjra Perna Dumna Chanal Sapela Od Dhanak Sirkiband Sansi Gagra Meghs Sarera Gandhila Ramdasis PART VI – BIHAR Scheduled Castes : - (1) Throughout the Province :- Chamar Halalkhor Mochi Chaupal Hari Musahar Dhobi Kanjar Nat Dusadh Kurariar Pasi Dom Lalbegi (2) In the Patna and Tirhut divisions and the Bhagalpur, Mong Palamau and Purnea district:- Bauri Bhumij Rajwar Bhogta Ghasi Turi Bhuiya Pan 29 (3) In the Dhanbad subdivision of the Manbhum district and the Central Manbhum general rural constituency, and the Purulia and Raghunathpur municipalities : - Bauri Ghasi Rajwar Bhogta Pan Turi Bhuiya PART VII – CENTRAL PROVINCES AND BERAR Scheduled Castes Localities Basor, or Burud Chamar Dom Ganda Mang Mehtar or Bhangi Mochi Satnami Audhelia : In the Bilaspur district Bahna : In the Amraoti district Balahi, or Balai : In the Berar division Throughout the Province and the Balaghat, Bhandara, Betul, Chanda, Chhindwara, Hoshangabad, Jubbulpore, Mandla, Nagpur, Nimar Saugor and Wardha districts Bedar : In the Akola, Amraoti and Buldana districts. 30 Chadar : In the Bhandara and Saugor districts Chauhan : In the Drug district Dahayat : In the Damoh subdivision of Saugor district. Dewar : In the Bilaspur, Drug and Raipur districts. Dhanuk : In the Saugor district, except in the Damoh subdivision thereof. Dhimar : In the Bhandara district Dhobi : In the Bhandara, Bilaspur, Raipur and Saugor districts, and the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district. Dohor : In the Berar division, and the Balaghat, Bhandara, Chanda, Nagpur and Wardha districts. Ghasia : In the Berar division and in the Balaghat, Bhandara, Bilaspur, Chanda, Drug, Nagpur, Raipur and Wardha districts. Holiya : In the Balaghat and Bhandara districts. 31 Jangam : In the Bhandara district. Kaikari : In the Berar division, and in Bhandara, Chanda, Nagpur and Wardha districts. Katia : In the Berar division, in the Balaghat, Betul Bhandara, Bilaspur, Chanda, Drug, Nagpur, Nimar, Raipur and Wardha districts, in the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district, in the Chhindwara district, except in the Seoni subdivision thereof, and in the Saugor district, except in the Damoh subdivision thereof. Khangar : In the Bhandara, Buldhana and Saugor districts and the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district. Khatik : In the Berar division, in the Balaghat, Bhandara, Chanda, Nagpur and Wardha 32 districts, in the Hoshangabad tahsil of the Hoshangabad district, in the Chhindwara district, except in the Seoni subdivision thereof, and in the Saugor district, except in the Damoh subdivision thereof. Koli : In the Bhandara and Chanda district Kori : In the Amraoti, Balaghat, Betul, Bhandara, Buldana, Chhindwara, Jubbulpore, Mandla, Nimar, Raipur and Saugor districts, and in the Hoshangabad district, except in the Harda and Sohagpur tahsils thereof. Kumhar : In the Bhandara and Saugor districts and the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district. Madgi : In the Berar division, and in the Balaghat Bhandara, Chanda, 33 Nagpur and Wardha districts. Mala : In the Balaghat, Betul, Chhindwara, Hoshangabad, Jubbulpore, Mandla, Nimar and Saugor districts. Mehra, or Mahar : Throughout the Province, except in the Harda and Sohagpur tahsils of the Hoshangabad district. Nagarchi : In the Balaghat, Bhandara, Chhindwara, Mandla, Nagpur and Raipur districts. Ojha : In the Balaghat, Bhandara and Mandla districts and the Hoshangabad tahsil of the Hoshangabad district. Panka : In the Berar division, in the Balaghat, Bhandara, Bilaspur, Chanda, Drug, Nagpur, Raipur, Saugor and Wardha districts and in the Chhindwara district except in the Seoni subdivision thereof. 34 Pardhi : In the Narsinghpur subdivision of the Hoshangabad district. Pradhan : In the Berar division, in the Bhandara Chanda, Nagpur, Nimar, Raipur and Wardha districts and in the Chhindwara district, except in the Seoni subdivision thereof. Rujjhar : In the Sohagpur tahsil of the Hoshangabad district. PART VIII – ASSAM Scheduled Castes : - (1) In the Assam Valley : - Namasudra Hira Mehtar, or Bhangi Kaibartta Lalbegi Bansphor Bania, or Brittial-Bania (2) In the Surma Valley :- Mali, or Bhuimali Sutradhar Kaibartta, or Jaliya Dhupi, or Dhobi Muchi Lalbegi Dugla, or Dholi Patni Mehtar, or Bhangi Jhalo and Malo Namasudra Bansphor 35 Mahara PART IX – ORISSA Scheduled castes : - (1) Throughout the Province :- Adi-Andhra Godra Mangan Audhelia Gokha Mehra, or Mahar Bariki Haddi, or Hari Mehtar, or Bhangi Basor,or Burud Irika Mochi, or Muchi Bavuri Jaggali Paidi Chachati Kandra Painda Chamar Kantia Pamidi Chandala Kela Panchama Dandasi Kodalo Panka Dewar Madari Relli Dhoba, or Dhobi Madiga Sapari Ganda Mahuria Satnami Ghusuria Mala Siyal Godagali Mang Valamiki Godari (2) Throughout the Province except in the Khondmals district, the district of Sambalpur, and the areas transferred to Orissa under the provisions of the Government of India (Constitution of Orissa) 36 Order, 1936, from the Vizagapatam and Ganjam Agencies in the Presidency of Madras:- Pan, or Pano (3) Throughout the Province except in the Khondmals district and the areas so transferred to Orissa from the said Agencies : - Dom, or Dombo (4) Throughout the Province except in the district of Sambalpur : Bauri Bhumij Turi Bhuiya Ghasi, or Ghasia (5) In the Nawapara subdivision of the district of Sambalpur: - Kori Nagarchi Pradhau C. K. Rhodes, Joint Secy. to the Govt. of India” 33. It could thus be seen that for the purposes of the First, Fifth and Sixth Schedules to the 1935 Act , the castes, races or tribes, or parts of or groups within castes, races or tribes specified in Parts I to IX of the Schedule to the 1936 Order were deemed to 37 be scheduled castes in the Provinces to which those Parts respectively relate. 34. A perusal of the 1936 Order would reveal that for different provinces different castes were notified as Scheduled Castes. In some of the provinces, a particular caste was to be considered as Scheduled Caste, except in the districts mentioned therein where it was not to be considered as Scheduled Caste. Similarly, in some of the cases, in particular areas or districts, the said castes were deemed to be Scheduled Castes in the same province. 35. It can thus be seen that a same caste in the same province could be a Scheduled Caste only in one or more districts and not in the other districts. 36. It could be seen that insofar as the Bombay Province is concerned, the caste ‘Mochi’ would be a Scheduled Caste throughout the Province except in Ahmedabad, Kaira, Broaoh and Panch Mahals and Surat districts. Similarly, a caste 38 ‘Kotegar’ would be a Scheduled Caste only in the Kanara district and not in the rest of the Province. 37. It could thus be seen that the 1936 Order formed the basis of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as “the 1950 Order”) issued under Article 341(1) after the commencement of the Constitution. 38. Then comes the most important event i.e. the debate in the th Constituent Assembly on 17 September 1949, when Dr. B.R. Ambedkar moved two new draft Articles being Articles 300A and 300B, which read thus: “300A-Scheduled Castes (1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or Scheduled Castes parts of or groups within castes, races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. 39 (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 300B-Scheduled Tribes (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within any Tribe or Tribal community but save as aforesaid a notification issued under the said 40 clause shall not be varied by any subsequent notification.” 39. While moving the said new draft Articles, Dr. B.R. Ambedkar stated thus: “The object of these two articles, as I stated, was to eliminate the, necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have, the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this : that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.” 41 40. It could thus be seen that the idea behind draft Articles 300A and 300B, which are now Articles 341 and 342, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It was proposed that the President, in consultation with the Governor or Ruler of a State shall have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. 41. It is thus clear that the purpose of draft Article 300A (now Article 341) and draft Article 300B (now Article 342) was for identifying the castes, races, or tribes, or parts of or groups within castes, races or tribes, which were entitled to the privileges which had been defined for them in the Constitution. 42 42. It is thus clear that the purpose of draft Articles 300A and 300B (now Articles 341 and 342) was not providing the privileges but only identifying the castes, races, or tribes, or parts of or groups within castes, races or tribes, which would be entitled for the privileges which were elsewhere provided under the Constitution. 43. Dr. B.R. Ambedkar further observed that the only limitation that has been imposed was that once a notification has been issued by the President, which he would be issuing in consultation with and on the advice of the Government of the State, thereafter, if any elimination or addition was to be made in the List so notified, the same can be done only by Parliament and not by the President. The purpose was to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President. 44. It is amply clear that the purpose behind the said provisions was that once an identification has been done in the List so 43 notified, the Executive should not tinker with it and any addition or deletion had to be made only by Parliament. 45. It will also be relevant to refer to the speech of Shri th V.I.Muniswami Pillai, given on the same day i.e. 17 September 1949 in support of the amendment, which reads as under: “Shri V. I. Muniswami Pillai : Mr. President, I come to support the amendments that have been moved by the Honourable Dr. Ambedkar. These amendments deal with the definition of Scheduled Castes. As far as I can see he has made it clear that, according to the th second part of it, the President on the 26 January 1950 will publish a list of such communities that come under the category of Scheduled Castes. But I would like to inform this House of the background which brought out the special name of Scheduled Castes. It was the intouchability, the, social evil that has been practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu society. Going backwards to 1916 it was in that year when Government found that something had to be done for the untouchable 44 classes, (when they said untouchable classes, they were always understood to be Hindus,) and they had to be recognised. In Madras there were six communities that came under this classification. During the Montago Chelmsford reforms they were made ten. In 1930 when the great epoch- making fast of Mahatma Gandhi came about, then only the country saw who were the real untouchable classes. And in the 1935 Act, the Government thoroughly examined the whole thing and as far as the Province of Madras is concerned they brought 86 communities into this list or category, though there were some touchable classes also. Now, after further examination the Provincial Governments have drawn up a list and I think according to the amendment mover’s suggestions, all those communities that come-under the category of untouchables and those who profess Hinduism will be the Scheduled Castes, because I want to emphasise about the religion. I emphasise this because of late there have been some movements here and there; there are people who have left Scheduled Castes and Hinduism and joined other religions and they also are claiming to be scheduled Castes. Such convert cannot come under the scope of this definition. While I have no objection to Government granting any concessions to these converts, I feel 45 strongly that they should not be clubbed along with Scheduled Castes. Sir, I am grateful to the Drafting Committee and also to the Chairman of that Committee for making the second portion of it very clear, that in future, after the declaration by the President as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude, anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. I feel grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs; and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed. I strongly oppose the amendment moved by Pandit Bhargava. The reason is that he wants to have the ten years period for observing these amendments. But he has entirely forgotten that under another article that we have already passed, or will pass the Constitution provides for the 46 appointment of a Special officer at the Centre and also various officers in all the Provinces to go into the various disabilities of these communities and to submit a report to the President who will then be able to know whether the Scheduled Castes have reached a stage when the facilities now given to them could be withdrawn. I do not think that the reasons that he has advanced are fair and square for the uplift of the Harijans.

47 were the actual untouchable classes. He refers to the 1935 Act and the efforts of the Government in thoroughly examining the whole thing and states that as far as the Province of Madras is concerned they brought 86 communities into the list or category. He states that according to the amendment mover’s suggestions, all those communities that come-under the category of untouchables and those who profess Hinduism will be the Scheduled Castes. However, he opined that those people who have left Hinduism and joined other religions should not be entitled to claim the benefits of Scheduled Castes. He states that if the Government wants to grant any concessions to these converts, they should not be clubbed among the Scheduled Castes. 47. He acknowledges the vision of the Drafting Committee and its Chairman as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude anybody or any community from the list of Scheduled Castes that must 48

49 Article 15, 16, 46, 335, 338, Clauses 24 and 25 of Article 366 “ 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth .—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— ( a ) access to shops, public restaurants, hotels and places of public entertainment; or ( b ) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens 50 or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this article or in sub-clause ( g ) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. (6) Nothing in this article or sub-clause ( g ) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,— ( a ) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and ( b ) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) insofar as such special provisions relate to their admission to educational institutions 51 including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category. Explanation .—For the purposes of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.” “ 16. Equality of opportunity in matters of public employment .—(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes 52 of employment or appointment to an 14 office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such 53 class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.” “ 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections .—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the 54

“ 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts .—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.” “ 338. National Commission for Scheduled Castes .—(1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes. (2) Subject to the provisions of any law made in this behalf by Parliament, the 55 Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.] (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be duty of the Commission— ( a ) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; ( ) to inquire into specific complaints b with respect to the deprivation of rights and safeguards of the Scheduled Castes ; ( c ) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress 56 of their development under the Union and any State; ( d ) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; ( e ) to make in such report recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio- economic development of the Scheduled Castes; and ( f ) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non- acceptance, if any, of any of such recommendations. 57 (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non- acceptance, if any, of any of such recommendations. (8) The Commission shall, while investigating any matter referred to in sub-clause ( a ) or inquiring into any complaint referred to in sub-clause ( b ) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:— ( a ) summoning and enforcing the attendance of any person from any part of India and examining him on oath; ( b ) requiring the discovery and production of any document; ( c ) receiving evidence on affidavits; ( d ) requisitioning any public record or copy thereof from any court or office; 58 ( e ) issuing commissions for the examination of witnesses and documents; ( f ) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes. (10) In this article references to the Scheduled Castes shall be construed as including references to the Anglo-Indian community.” “ 366. Definitions .—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say— (24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution; (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution;” 59 49. It will be relevant to note that in the draft definition of ‘the Scheduled Castes’, the word used earlier was “specify”. However, in the final clause (24) of Article 366, the word “specify” has been changed to “deemed”. III. JUDICIAL PRECEDENTS 50. In the last 74 years, the aforesaid constitutional provisions have been considered by this Court on a number of occasions. It will be relevant to refer to some of these judgments. 51. It will also be relevant to note that by the First Amendment to the Constitution in the year 1951 by which clause (4) was added to Article 15 was necessitated on account of the judgment of this Court in the case of State of Madras vs. Smt. 4 Champakam Dorairajan wherein Government Order specifying reservation for Harijans was set aside. 4 (1951) SCR 525. 60 A. M.R. Balaji vs. State of Mysore 5 52. In the case of M.R. Balaji and others vs. State of Mysore , the subject matter of challenge before the Constitution Bench of this Court was an order issued by the State of Mysore under Article 15(4) of the Constitution of India. Vide the said order, the State reserved 68% of the seats in the engineering and medical colleges and other technical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes and only 32% seats were available for the merit pool. 53. The Constitution Bench of this Court held that the provisions contained in Articles 15(4) and 16(4) are similar provisions. It further held that Article 15(4) is an enabling provision and that it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary. 5 1963 Supp. (1) SCR 439:1962 SCC OnLine 147: AIR 1963 SC 649. 61 54. It will be relevant to refer to the following observations of this Court: “ 20. Article 15(4) authorises the State to make a special provision for the advancement of any socially and educationally backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub- clauses (24) and (25) of Article 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made under Article 15(4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled Castes and 62 Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them. Article 34(1) provides for the issue of public notification specifying the castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union territory as the case may be. Similarly Article 342 makes a provision for the issue of public notification in respect of Scheduled Tribes. Under Article 338(3), it is provided that references to the Scheduled Castes and Scheduled Tribes shall be construed as including references to such other Backward Classes as the President may, on receipt of the report of a commission appointed under Article 340(1) by order, specify and also to the Anglo-Indian community. It would thus be seen that this provision contemplates that some Backward Classes may by the Presidential order be included in 63

64 contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes. 56. It will also be apposite to refer to the following observations of this Court:

65 the group of citizens to whom Article 15(4) applies are described as “classes of citizens”, not as castes of citizens. The Court observed that therefore in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. It has been observed that though the caste of the group of citizens may be relevant, its importance should not be exaggerated. The Court further observed that social backwardness is, on the ultimate analysis, the result of poverty to a very large extent. It observed that the classes of citizens who are deplorably poor automatically become socially backward. It observed that they do not enjoy a status in society and have, therefore, to be content to take a backward seat. The Court therefore held that both caste and poverty are relevant in determining the backwardness of citizens. 59. The Court further observed that the occupations of citizens may also contribute to making classes of citizens socially 66 backward. It has been observed that there are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. It has been observed that the place of habitation also plays a role in determining the backwardness of a community of persons. It therefore held that the problem of determining who are socially backward classes is very complex. It has been held that sociological, social, and economic considerations come into play in solving the problem, and evolving proper criteria for determining which classes are socially backward. However, it observed, that is the function of the State which purports to act under Article 15(4) of the Constitution of India. 60. In the facts of the said case, the Court found that the State had applied the sole criteria of caste without regard to the other factors. It was therefore held that the criteria of social backwardness of the communities to whom the order impugned 67 therein was applied was not permissible under Article 15(4) of the Constitution of India. 61. Insofar as the educational backwardness of the classes of citizens is concerned, the State had applied the formula that all castes whose average student population in the last three High School classes of all High Schools in the State was less than the State average of 6.9 per thousand should be regarded as backward communities. Insofar as more backward communities are concerned, the criteria applied was that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more backward classes. 62. The Court held that the State was not justified in including in the list of Backward Classes, castes, or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. 68 B. State of Kerala vs. N.M. Thomas 63. Coming next to one of the most important judgments dealing with the affirmative action which is the 7-Judge Bench judgment of this Court in the case of State of Kerala and 6 another vs. N.M. Thomas and others . In the said case, out of the 7 Learned Judges, 5 Learned Judges upheld the provisions made by the Kerala Government for providing affirmative action to ameliorate the situation of Scheduled Castes and Scheduled Tribes. 64. It will be apposite to refer to the following observation made by A.N. Ray, C.J.: “ 21. Articles 14, 15 and 16 form part of a string of constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable 6 (1976) 2 SCC 310. 69 classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment. 22. This Court in State of Gujarat v. Shri Ambica Mills Ltd ., Ahmedabad [(1974) 4 SCC 656 : 1974 SCC (L&S) 381] said: [SCC p. 675: SCC (L&S) p. 400, para 53] “The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And the very idea of classification is that of inequality. In tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. ( See Joseph Tussman and Jacobusten Brook, The Equal Protection of the Laws , 37 California Rev. 341.)” 23. In Ambica Mills case [(1974) 4 SCC 656 : 1974 SCC (L&S) 381] this Court explained reasonable classification to be one which includes all who are similarly 70 situated and none who are not. The question as to who are similarly situated has been answered by stating that one must look beyond the classification to the purpose of law. “The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.” [SCC p. 675: SCC (L&S) p. 400, para 54] 24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. xxx xxx xxx 71 27. There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection ( State of Mysore v. V.P. Narasing Rao [AIR 1968 SC 349 : (1968) 1 SCR 407 : (1968) 2 LLJ 120]). 28. This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Articles 16(1) and (2) give effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). Promotion to selection post is covered by Article 16(1) and (2). 72 29. The power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the Backward Classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. ( General Manager, S. Rly . v. Rangachari [AIR 1962 SC 36 : (1962) 2 SCR 586] .) The present case is not one of reservation of posts by promotion. 30. Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Roadside Station Masters and Guards are recruited 73

74 equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. In turn, Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus with the objects to be achieved. 66. Referring to the judgment of this Court in the case of State 7 of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad , His Lordship explained the reasonable classification to be one which includes all who are similarly situated and none who are not. He further observed that discrimination is the essence of classification, and that equality is violated if it rests on an unreasonable basis. He observed that those who are similarly circumstanced are entitled to an equal treatment and that equality is amongst equals. He observed that the classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the 7 (1974) 4 SCC 656. 75 groups. He further observed that such differential attributes must bear a just and rational relation to the object sought to be achieved. He further observed that there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. He observed that Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection. He observed that this equality of opportunity need not be confused with absolute equality. It is observed that power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. His Lordship observed that in providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the Backward Classes 76

77 get priority so as to ensure adequate representation and the said rule will not violate Article 14 or Article 16(1) and (2). The relevant consideration would be to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it. 69. His Lordship further observed thus: “ 43. Scheduled Castes and scheduled tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh [AIR 1965 SC 1557 : (1965) 2 SCR 877] this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a scheduled caste and his declaration that he belonged to the Chamar caste which was a scheduled caste could not be premitted because of the provisions contained in Article 341. No court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide 78 protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. 44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due 79

80 the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. 71. His Lordship (Ray, C.J.) further observed that our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. It has been held that if members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. It has been observed that special provisions have been made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. It has been emphasized that only such special provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). His Lordship goes on to say that preferential treatment for members of Backward 81 Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. It has been observed that equality of opportunity for unequals can only mean aggravation of inequality and that equality of opportunity admits discrimination with reason and prohibits discrimination without reason. His Lordship held that discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. It has been held that Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognized by the Constitution. It has been held that the differential treatment in standards of selection is within the concept of equality. 72. I now refer to the following observations of K.K. Mathew, J.: “ 53. Formal equality is achieved by treating all persons equally: “Each man to count for one and no one to count for more 82 than one.” But men are not equal in all respects. The claim for equality is in fact a protest against unjust, undeserved and unjustified inequalities. It is a symbol of man's revolt against chance, fortuitous disparity, unjust power and crystallised privileges. Although the decision to grant equality is motivated prima facie by the alleged reason that all men are equal yet, as soon as we clear up the confusion between equality in the moral sense and equality in the physical sense, we realise that the opposite is the truth; for, we think that it is just to promote certain equalities precisely to compensate for the fact that men are actually born different. We, therefore, have to resort to some sort of proportionate equality in many spheres to achieve justice. 54. The principle of proportional equality is attained only when equals are treated equally and unequals unequally. This would raise the baffling question: Equals and unequals in what? The principle of proportional equality therefore involves an appeal to some criterion in terms of which differential treatment is justified. If there is no significant respect in which persons concerned are distinguishable, differential treatment would be unjustified. But what 83 is to be allowed as a significant difference such as would justify differential treatment? 55. In distributing the office of a State, not any sort of personal equality is relevant; for, unless we employ criteria appropriate to the sphere in question, it would turn out that a man's height or complexion could determine his eligibility or suitability for a post. As Aristotle said, claims to political office cannot be based on prowess in athletic contests. Candidates for office should possess those qualities that go to make up an effective use of the office. But this principle also does not give any satisfactory answer to the question when differential treatment can be meted out. As I said, the principle that if two persons are being treated or are to be treated differently there should be some relevant difference between them is, no doubt, unexceptionable. Otherwise, in the absence of some differentiating feature what is sauce for the goose is sauce for the gander. The real difficulty arises in finding out what constitutes a relevant difference. 56. If we are all to be treated in the same manner, this must carry with it the 84 important requirement that none of us should be better or worse in upbriging, education, than anyone else which is an unattainable ideal for human beings of anything like the sort we now see. Some people maintain that the concept of equality of opportunity is an unsatisfactory concept. For, a complete formulation of it renders it incompatible with any form of human society. Take for instance, the case of equality of opportunity for education. This equality cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. To remedy this, all children might be brought up in State nurseries, but, to achieve the purpose, the nurseries would have to be run on vigorously uniform lines. Could we guarantee equality of opportunity to the young even in those circumstances? The idea is well expressed by Laski: “Equality means, in the second place, that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by no means equal. Children who are brought up in an atmosphere where things of the mind are accounted highly 85

86 against unjust, undeserved and unjustified inequalities. It is a symbol of man's revolt against chance, fortuitous disparity, unjust power and crystallized privileges. He observed that as soon as we clear up the confusion between equality in the moral sense and equality in the physical sense, it is just to promote certain equalities precisely to compensate for the fact that men are actually born different. He explains the theory of proportional equality and observed that the principle of proportional equality can be attained only when equals are treated equally and unequals unequally. He observed that if there is no significant respect in which persons concerned are distinguishable, differential treatment would be unjustified. But if there is significant respect in which persons concerned are distinguishable, the same would justify differential treatment. His Lordship observed that if two people are being treated or are to be treated differently there should be some relevant difference between them. Otherwise, in the absence of some differentiating 87 feature what is sauce for the goose is sauce for the gander. He observed that the real difficulty arises in finding out what constitutes a relevant difference. 74. His Lordship observed that if we all were to be treated in the same manner, the same would carry with it the requirement that none of us should be better or worse in upbringing and education than anyone else. He observed that the equality of opportunity for education cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. His Lordship referred to Laski, who opined that parental character will inevitably affect the equality of the children whom it touches. His Lordship then observed that though complete identity of equality of opportunity is impossible in the world, compensatory measures in character calculated to mitigate surmountable obstacles to ensure equality of opportunity would not violate Article 16(1). 88 75. It will also be apposite to refer to the following observations of Mathew, J. in N.M. Thomas (supra): “ 64. It would follow that if we want to give equality of opportunity for employment to the members of the Scheduled Castes and scheduled tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the court when it makes a decision as the court also is ‘state’ within the meaning of Article 12 and makes law even though “interstitially from the molar to the molecular”. I have explained at some length the reason why court is “State” under Article 12 in my judgment in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] . 65. Equality of opportunity is not simply a matter of legal equality. Its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It obtains insofar as, and only insofar as, each member of a community, 89 whatever his birth or occupation or social position, possesses in fact, and not merely in form, equal chances of using to the full his natural endowments of physique, of character, and of intelligence. [ See R.H. Tawney, “Equality”, (1965) pp. 103-04] 66. The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims Fundamental rights as enacted in Part III of the Constitution are, by and large, essentially negative in character. They mark off a world in which the Government should have no jurisdiction. In this realm, it was assumed that a citizen has no claim upon Government except to be left alone. But the language of Article 16(1) is in marked contrast with that of Article 14. Whereas the accent in Article 14 is on the injunction that the State shall not deny to any person equality before the law or the equal protection of the laws that is, on the 90 negative character of the duty of the State, the emphasis in Article 16(1) is on the mandatory aspect, namely, that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State implying thereby that affirmative action by the Government would be consistent with the article if it is calculated to achieve it. If we are to achieve equality, we can never afford to relax: “While inequality is easy since it demands no more than to float with the current, equality is difficult for it involves swimming against it. [ R.H. Tawney, “Equality”, (1952), p. 47] ” 67. Today, the political theory which acknowledges the obligation of Government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a State with obligation to help the weaker sections of its members seems to have increasing influence in constitutional law. The idea finds expression in a number of cases in America involving social discrimination 91 and also in the decisions requiring the State to offset the effects of poverty by providing counsel, transcript of appeal, expert witnesses, etc. Today, the sense that Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in constitutional law. While special concessions for the underprivileged have been easily permitted, they have not traditionally been required. Decisions in the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may not be completely adequate. In these areas, the inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the State, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. [ See “Developments — Equal Protection”, 82 Harv LR 1165] 68. The idea of compensatory State action to make people who are really unequal in their wealth, education or social environment, equal, in specified areas, 92 was developed by the Supreme Court of the United States. Rousseau has said:

8 (1973) 4 SCC 225 : 1973 Supp. SCR 1. 93 77. His Lordship observed that ‘equality of opportunity’ is not simply a matter of legal equality and that its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It has been observed that the guarantee of equality is something more than what is required by ‘formal equality’. It implies differential treatment of persons who are unequal. It has been observed that egalitarian principle requires that the Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claim Fundamental rights as enacted in Part III of the Constitution are, by and large, essentially negative in character. His Lordship observed that the emphasis in Article 16(1) is on the mandatory aspect that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It therefore implies that affirmative action by the Government would be consistent with the article if it is calculated to achieve it. 94 78. Referring to Article 14 of the Constitution, His Lordship observed that the State is under obligation to help the members of the weaker sections. His Lordship observed that under the constitutional law, the Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise. Referring to the concept of proportional equality, His Lordship states that the State is required to frame legislation, to consider the private inequalities of wealth, of education and other circumstances. 79. Referring to the judgments of the Supreme Court of the United States, His Lordship opined that the idea of compensatory State action was to bring about the equality for the people who are really unequal in their wealth, education or social environment. 80. After referring to certain judgments of the United States Supreme Court, Mathew, J. observed thus: 95 “ 73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims. 74. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and scheduled tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so- called forward communities complain of a compensatory measure made by the Government to ensure the members of Scheduled Castes and scheduled tribes their due share of representation in public services? 75. It is said that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes which according to the decision of this Court would include 96 the power of the State to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give any adventitious aids by legislation or otherwise to the Backward Classes which would derogate from strict numerical equality. If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and scheduled tribes equality of opportunity in the matter of employment, I see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity. 76. Daniel P. Moynihan, one of America's leading urban scholars, spelled out the problem in a widely publicized study that 97 he prepared while he was Assistant Secretary of Labour. The Moynihan Report, as it came to be known, made the point in a passage that deserves full quotation: “It is increasingly demanded that the distribution of success and failure within one group be roughly comparable to that within other groups. It is not enough that all individuals start out on even terms, if the members of one group almost invariably end up well to the fore and those of another far to the rear. This is what ethnic politics are all about in America, and in the main the Negro American demands are being put forth in this new traditional and established framework. Here a point of semantics must be grasped. The demand for equality of opportunity has been generally perceived by White Americans as a demand for liberty, a demand not to be excluded from the competitions of life — at the polling place, in the scholarship examinations, at the personnel office, on the housing market. Liberty does, of course, demand that everyone be free to try his luck, or test his skill in such matters. But these opportunities do not necessarily produce equality: on the 98 contrary, to the extent that winners imply losers, equality of opportunity almost insures inequality of results. The point of semantics is that equality of opportunity now has a different meaning for Negroes than it has for Whites. It is not (or at least no longer) a demand for liberty alone, but also for equality — in terms of group results. In Bayard Rustin's terms, ‘It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality’. By equality Rustin means a distribution of achievements among Negroes roughly comparable to that among Whites. [ The Moynihan Report and the Politics of Controversy, Eds. Lee Rainwater and William L. Yancey, p. 49]” 77. Beginning most notably with the Supreme Court's condemnation of school segregation in 1954, the United States has finally begun to correct the discrepancy between its ideals and its treatment of the black man. The first steps, as reflected in the decisions of the courts and the civil rights laws of Congress, merely removed the legal and quasi-legal forms of racial 99 discrimination. These actions while not producing true equality, or even equality of opportunity, logically dictated the next step: positive use of government power to create the possibility of a real equality. In the words of Professor Lipset: “Perhaps the most important fact to recognise about the current situation of the American Negro is that (legal) equality is not enough to insure his movement into larger society.” [ “The American Democracy”, Mcgrath, Cornwell and Goodman, p. 18] 78. I agree that Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and scheduled tribes. If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up to the point of making reservation. 100

101 made by the Government to ensure that the members of Scheduled Castes and Scheduled Tribes get their due share of representation in public services. 83. His Lordship observed that if reservation is necessary either at the initial stage or at the stage of promotion or at both, to ensure for the members of the Scheduled Castes and Scheduled Tribes equality of opportunity, then this would be permissible under Article 16(1) as that alone would put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. It is observed that the formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. He observed that the equality of result is the test of equality of opportunity. 84. Mathew, J. rejects the contention that Article 16(4) is an exception to Article 16(1). He states that such an interpretation 102

103

104 87. It has been observed that a classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. It has been observed that the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must have rational relation to the object sought to be achieved by the rule. It specifically observed that it is a mistake to assume a priori that there can be no classification within a class. He held that if there are intelligible differentia which separates a group within that class from the rest and that differentia have nexus with the object of classification, such a further classification within the class would be permissible in law. He observed that though in one sense classification brings about inequality it is promotive of equality if its object is to bring those who share a common characteristic under a class, for differential treatment for sufficient and justifiable reasons. 105

106 the whole truth and a constant process of objective re-evaluation of progress registered by the “underdog” categories is essential lest a once deserving “reservation” should be degraded into “reverse discrimination”. Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research conducted by the A.N. Sinha Institute of Social Studies, Patna, has revealed a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions. For them, Articles 46 and 335 remain a “noble romance” [ As Huxley called it in “Administrative Nihilism” (Methods and Results, Vol. 4 of Collected Essays).] , the bonanza going to the “higher” harijans. I mention this in the present case because lower division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, “test” qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13-AA perhaps is one. 107

108 away by the top creamy layer of the “backward” caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim of backwardness is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment. However, they wish to wear the “weaker section” label to score over their near-equals formally categorized as the upper brackets. Thirdly, according to him, a lasting solution to the problem would come only from improvement of social environment, added educational facilities and cross-fertilization of castes by inter-caste and inter-class marriages sponsored as a massive State program. 90. His Lordship observed that every step needed to achieve in action actual, equal, partnership for the harijans, alone amounts to social justice. He observed that if this is not done, the solemn 109

110 symbol of State power and so a special article has been devoted to it. Article 16(4) need not be a saving clause but put in due to the over-anxiety of the draftsman to make matters clear beyond possibility of doubt (see, for instance, CIT v. Shaw Wallace & Co . [59 IA 206: AIR 1932 PC 138] ). 137. “Reservation” based on classification of backward and forward classes, without detriment to administrative standards (as this Court has underscored) is but an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This Court has viewed Article 16(4)as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335 as I have explained, the twin considerations of terrible 111

9 (1964) 4 SCR 680 : AIR 1964 SC 55. 112 equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. His Lordship further observed that Article 16(4) covers all backward classes. He however states that for earning the benefit of grouping under Article 16(1) based on Articles 46 and 335, the twin considerations of terrible backwardness of the type harijans endure and maintenance of administrative efficiency must be satisfied. 95. His Lordship also held that Articles 14 to 16 are a common code of guaranteed equality, the first laying down the broad doctrine, whereas the other two applying it to sensitive areas which are historically important and politically polemical in a climate of communalism and jobbery. 96. Fazal Ali, J. in his concurring judgment observed thus: “ 178. The concept of equality or equal opportunity as contained in Article 16 does not mean that same laws must be applicable to all persons under every circumstance. Indeed if this artificial 113 interpretation is put on the scope and ambit of Article 16 it will lead to channelisation of legislation or polarisation of rules. Differences and disparities exist among men and things and they cannot be treated alike by the application of the same laws but the law has to come to terms with life and must be able to recognise the genuine differences and disparities that exist in human nature. Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification. In Morey v. Doud [354 US 457, 473] it was so aptly observed: “To recognise marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.” 179. Coming now to Article 16 it may be analysed into three separate categories so far as the facts of the present case are concerned: Category I—clause (1) of Article 16 Category II—clause (2) of Article 16. Category Ill—clause (4) of Article 16. 114 180. Clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. It is important to note that the Constitution uses the words “equality of opportunity for all citizens ”. This inherently implies that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. This, therefore, can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. The classification, however, must be a reasonable one and must fulfil the following conditions:

115 come to terms with life and must be able to recognize the genuine differences and disparities that exist in human nature. He observed that the Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification. 98. It has been observed that clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. His Lordship emphasized that the words “equality of opportunity for all citizens ” used in the Constitution imply that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. According to the Learned Judge, this can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. He however culls out three conditions, viz., (i) it must have a rational basis; (ii) it must have a close nexus with 116

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Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association vs. Union of India and 10 others , where a bench of 3 Learned Judges of this Court was considering the policy directives issued by the Railway Board introducing reservation in cases of selection as well as non- selection posts and other related issues regarding affirmative action. 10 (1981) 1 SCC 246. 118 101. Krishna Iyer, J. in paragraph 12, observed thus:

Radhakrishnan, representing the broad consensus, wherein he said that India must have a ‘socio-economic revolution’ designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about ‘a fundamental change in the structure of Indian society’. 103. Explaining the inter-relation between Articles 16(1) and 16(4), the Learned Judge observed thus: 119 “ 21. The preamble which promises justice, liberty and equality of status and opportunity within the framework of secular, socialist republic projects a holistic perspective. Article 16 which guarantees equal opportunity for all citizens in matters of State service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up “depressed” classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes Article 16(4) for this specific purpose. In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfilment of Article 16(1). The prescription of Article 16(1) needs, in the living conditions of India, the concrete sanction of Article 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. To bury this truth is to 120 sloganise Article 16(1) and sacrifice the facts of life. 22. This is not mere harmonious statutory construction of Article 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one's own personality belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Article 16(4) consists in the speed with which result-oriented reservation withers away as no longer a need, not in the everwidening and everlasting operation of an exception [Article 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison d'etre, to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Article 121 16(1), to casteify “reservation” even beyond the dismal groups of backwardmost people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State. 23. The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah , the mlecha, the bonded labour, the hungry, hard-working half- slave, whose liberation was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life's maladies and law's remedies is a part of the know-how of constitutional interpretation if alienation from the people were not to afflict the justicing process: [ J. Landis : Note on Statutory Interpretation, 43 Harv L Rev 886, 891 (1930)] A statute rarely stands alone. Back of Minerva was the brain of Jove, and 122

123 those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. 105. The Learned Judge observed that this is not mere harmonious statutory construction of Article 16(1) and (4) but an insightful perception of our constitutional culture. He emphasized that the State must apply equalizing techniques which will enlarge their opportunities and thereby progressively diminish the need for props. He further emphasized that to casteify “reservation” even beyond the dismal groups of backwardmost people, euphemistically described as SC & ST, is to run a grave constitutional risk. He further emphasized that to interpret the Constitution rightly we must understand the people for whom it is made. He observed that the synthesis of ends and means, of life's maladies and law's remedies is a part of the know- how of constitutional interpretation. 124 106. Krishna Iyer, J. further observed thus: “ 34. Special provisions for depressed classes and even other castes have a pre- Constitution history. After the Constitution was enacted the legality of old rules based on caste became moot and the Central Government revised its policy. The post-Constitution reincarnation of the communal G.O. concentrated not on caste orientation but on elimination of socio- economic suppression and the diverse ways to achieve this objective. xxx xxx xxx 36. Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution's casteless and classless egalitarianism. Nevertheless, our founding fathers were realists, and so did not declare the proposition of equality in its bald universality but subjected it to certain special provisions, not contradicting the soul of equality, but adapting that never-changing principle to the ever-changing social milieu. That is how Articles 15(4) and 16(4) have to be read together with Articles 15(1) and 16(1). The first sub-article speaks of equality and the second sub-article amplifies its content by expressly interdicting caste as a ground of discrimination. Article 16(4) 125 imparts to the seemingly static equality embedded in Article 16(1) a dynamic quality by importing equalisation strategies geared to the eventual achievement of equality as permissible State action, viewed as an amplification of Article 16(1) or as an exception to it. The same observation will hold good for the sub-articles of Article 15. Thus we have a constitutional fundamental guarantee in Articles 14 to 16; but it is a notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree India nearly dehumanised, and a facet of the struggle for Freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. Article 46 is a Directive Principle contained in Part IV. Every Directive Principle is fundamental in the governance of the country and it shall be the duty of the State to apply that principle in making laws. Article 46, in emphatic terms, obligates the State “to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes , and shall protect them from social injustice and all forms of exploitation”. 126 Reading Article 46 together with Article 16(4) the luscent intent of the Constitution-framers emerges that the exploited lot of the harijan-girijan groups in the past shall be extirpated with special care by the State. The inference is obvious that administrative participation by SC & ST shall be promoted with special care by the State. Of course, reservations under Article 16(4) and promotional strategies envisaged by Article 46 may be important but shall not run berserk and imperil administrative efficiency in the name of concessions to backward classes. Article 335 enters a caveat in this behalf: “335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.” The positive accent of this article is that the claims of SC & ST to equalisation of representation in services under the State, having regard to their sunken social status and impotence in the power system, shall be taken into consideration. The negative element, which is part of the 127 article, is that measures taken by the State, pursuant to the mandate of Articles 16(4), 46 and 335, shall be consistent with and not subversive of “the maintenance of efficiency of administration”. xxx xxx xxx 39. Article 341 makes it clear that a “scheduled Caste” need not be a “caste” in the conventional sense and, therefore, may not be a caste within the meaning of Article 15(2) or 16(2). Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. So, a group or a section of a group, which need not be a caste and may even be a hotchpotch of many castes or tribes or even races, may still be a Scheduled Caste under Article 341. Likewise, races or tribal communities or parts thereof or part or parts of groups within them may still be Scheduled Tribes (Article 342) for the purpose of the Constitution. Under this definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be. It is the socio- economic backwardness of a social bracket, not mere birth in a caste, that is decisive. Conceptual errors creep in when 128

129 Castes and the Scheduled Tribes have been in unfree India nearly dehumanized, and a facet of the struggle for freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. He thereafter refers to Article 46 and the importance of the said Directive Principle in the governance of the country and observes that it shall be the duty of the State to apply that principle in making laws. He stated that reading Article 46 together with Article 16(4) expresses the intention of the Constitution-framers that the exploitation of the harijan-girijan groups in the past shall be extirpated with special care by the State. For completeness, he then refers to Article 335 to state that measures taken by the State, pursuant to the mandate of Articles 16(4), 46 and 335, shall be consistent with and not subversive of “the maintenance of efficiency of administration”. 109. Krishna Iyer, J. then observed that Article 341 makes it clear that a “Scheduled Caste” need not be a “caste” in the 130

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132 matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to be the object to be achieved. * Discrimination is the essence of classification.... Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. * There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection ( State of Mysore v. V.P. Narasing Rao [AIR 1968 SC 349 : (1968) 1 SCR 407] ). This equality of opportunity need not be confused with absolute equality.... Under Article 16(1) equality of opportunity of employment means 133

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“ 94. It is fashionable to say — and there is, perhaps, some truth in it — that from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom 136 and other professions. Nevertheless, the world has been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency. We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the services. Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have neither the awareness nor qualified members to take their rightful place in the administration of the country. The malady of modern India lies elsewhere, and the merit-mongers are greater risks in many respects than the naive tribals and the slightly better off low castes. Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren .” [emphasis supplied] 137

138 “ 123. Because fundamental rights are justiciable and directive principles are not, it was assumed, in the beginning, that fundamental rights held a superior position under the Constitution than the directive principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete. It is now universally recognised that the difference between the Fundamental rights and directive principles lies in this that Fundamental rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the directive principles are aimed at securing social and economic freedoms by appropriate State action. The Fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justiciable. But, it is also evident that notwithstanding their great importance, the directive principles cannot in the very nature of things be enforced in a court of law. It is unimaginable that any court can compel a legislature to make a law. If the court can 139 compel Parliament to make laws then parliamentary democracy would soon be reduced to an oligarchy of Judges. It is in that sense that the Constitution says that the directive principles shall not be enforceable by courts. It does not mean that directive principles are less important than Fundamental rights or that they are not binding on the various organs of the State. Article 37 of the Constitution emphatically states that directive principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the court to apply the directive principles in interpreting the Constitution and the laws. The directive principles should serve the courts as a code of interpretation. Fundamental rights should thus be interpreted in the light of the directive principles and the latter should, whenever and wherever possible, be read into the former. Every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does not advance one or other of the directive principles or if it is not in discharge of some of the undoubted obligations of the 140

141 excessive State action while the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Learned Judge observed that merely because the Directive Principles are not enforceable by Courts, it does not mean that Directive Principles are less important than Fundamental rights or that they are not binding on the various organs of the State. Referring to Article 37 of the Constitution, the Learned Judge states that the Directive Principles are nevertheless fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws. He held that it becomes the duty of the court to apply the directive principles in interpreting the Constitution and the laws; that the directive principles should serve the courts as a code of interpretation. He held that the Fundamental rights should thus be interpreted in the light of the directive principles and the latter should, whenever and wherever possible, be read into the former. 142

143 and nurture such class of citizens so as to enable them to shake off the heart- crushing burden of a thousand years' deprivation from their shoulders and to claim a fair proportion of participation in the administration. Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and the Scheduled Tribes in the Public Services at all levels are in our opinion necessary consequences flowing from the Fundamental Right guaranteed by Article 16(1). This very idea is emphasised further by Article 16(4). Article 16(4) is not in the nature of an exception to Article 16(1). It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an underprivileged and deprived class of citizens to whom egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). It is illustrative of what the State must do to wipe out the distinction between egalite de droit and egalite de fait. It recognises that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield “Equality of Results” and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when 144

145 121. The Learned Judge observed that reading Article 16(1) and Article 16(4) together would reveal that they recognize that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. It is observed that the equality of opportunity must be such as to yield “Equality of Results” and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable. 122. The Learned Judge thereafter refers to “A Theory of Justice” by John Rawls. He also refers to the ‘Principle of Redress’ according to which underserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved , these inequalities are somehow to be compensated for. 146

11 1985 (Supp) SCC 714. 147 (1) The reservation in favour of Scheduled Castes and Scheduled Tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. (2) The means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above. It is essential that the privileged section of the underprivileged society should not be permitted to monopolise preferential benefits for an indefinite period of time. (3) Insofar as the other backward classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education: One, that they should be 148

149 Insofar as the Other Backward Classes are concerned, the Learned C.J. observed that the twin tests should be applied; one, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. It is also observed that the policy of reservations in employment, education and legislative institutions should be reviewed every 5 years or so. 126. It will also be appropriate to refer to the observations of D.A. Desai, J. made in paragraphs 30 and 31, which read thus: “ 30. Let me conclude. If economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin 150 constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest regressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty. 31. Let me make abundantly clear that this approach does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes. Thousands of years of discrimination and exploitation cannot be wiped out in one generation. But even here economic criterion is worth applying byrefusing preferred treatment to those amongst them who have already benefited by it and improved their position. And finally reservation must have a time span otherwise concessions tend to become vested interests. This is not a judgment in a lis in an adversary system. When the arguments concluded, a statement was made that the Government of State of Karnataka would appoint a Commission to determine constitutionally sound and nationally acceptable criteria for 151

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153 no one to help him with his home work, who goes to the nearest local board school and college, whose parents are either illiterate or so ignorant and ill-informed that he cannot even hope to seek their advice on any matter of importance, a child who must perforce trudge to the nearest public reading room to read a newspaper to know what is happening in the world, has not this child got merit if he, with all his disadvantages is able to secure the qualifying 40 per cent or 50 per cent of the marks at a competitive examination where the children of the upper classes who have all the advantages, who go to St. Paul's High School and St. Stephen's College, and who have perhaps been specially coached for the examination may secure 70, 80 or even 90 per cent of the marks? Surely, a child who has been able to jump so many hurdles may be expected to do better and better as he progresses in life. If spring flower he cannot be, autumn flower he may be. Why then, should he be stopped at the threshold on an alleged meritarian principle? The requirements of efficiency may always be safeguarded by the prescription of minimum standards. Mediocrity has always triumphed in the past in the case of the upper classes. But why should the so-called meritarian principle be put against mediocrity when 154

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157 The Learned Judge observed that such a test would practically nullify the provision for reservation for socially and educationally backward classes other than Scheduled Castes and Scheduled Tribes. He observed that such a test would take a substantial majority of the classes, who are between the upper classes and the Scheduled Castes and Tribes, out of the category of backward classes and put them at a permanent disadvantage. He observed that only the “enlightened” classes will capture all the “open” posts and seats and the reserved posts and seats will go to the Scheduled Castes and Tribes and those very near the Scheduled Castes and Tribes. However, the bulk of those behind the “enlightened” classes and ahead of the near Scheduled Castes and Tribes would be left high and dry. 133. It will also be relevant to refer to the following observations of Venkataramiah, J. (as His Lordship then was) in the case of K.C. Vasanth Kumar (supra): 158 “ 143 . This view is in conformity with the intention underlying clause (6) of the resolution regarding the aims and objects of the Constitution moved by Jawaharlal Nehru on December 13, 1946 which asked the Constituent Assembly to frame a Constitution providing adequate safeguards for minorities, backward and tribal areas and depressed and other backward classes and also with the provisions of Article 338 and Article 340 of the Constitution. Unless the above restriction is imposed on the Government, it would become possible for the Government to call any caste or group or community which constitutes a powerful political lobby in the State as backward even though in fact it may be an advanced caste or group or community but just below some other forward community. There is another important reason why such advanced castes or groups or communities should not be included in the list of backward classes and that is that if castes or groups and communities which are fairly well advanced and castes and groups and communities which are really backward being at the rock-bottom level are classified together as backward classes, the benefit of reservation would invariably be eaten up by the more advanced sections and the really deserving sections would practically go without any benefit as more number of children of the 159 more advanced castes or groups or communities amongst them would have scored higher marks than the children of more backward castes or groups or communities. In that event the whole object of reservation would become frustrated. It is stated that it was with a view to avoiding this anomalous situation, the Government of Devaraj Urs had to appoint the Havanur Commission to make recommendations for the purpose of effectively implementing the objects of Article 15(4) and Article 16(4). Hence as far as possible while preparing the list of backward classes, the State Government has to bear in mind the above principle as a guiding factor. The adoption of the above principle will not unduly reduce the number of persons who will be eligible for the benefits under Article 15(4) and Article 16(4) of the Constitution since over the years the level of the Scheduled Castes and Scheduled Tribes is also going up by reason of several remedial measures taken in regard to them by the State and Central Governments. At the same time, it will also release the really backward castes, groups and communities from the stranglehold of many advanced groups which have had the advantage of reservation along with the really backward classes for nearly three decades. It is time that more attention is given to those castes, groups and communities who have been at the 160 lowest level suffering from all the disadvantages and disabilities (except perhaps untouchability) to which many of the Scheduled Castes and Scheduled Tribes have been exposed but without the same or similar advantages that flow from being included in the list of the Scheduled Castes and the Scheduled Tribes. 144. Since economic condition is also a relevant criterion, it would be appropriate to incorporate a “means test” as one of the tests in determining the backwardness as was done by the Kerala Government in Jayasree case 63. These two tests namely, that the conditions of caste or group or community should be more or less similar to the conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). For the purpose of Article 16(4) however, it should also be shown that the backward class in question is in the opinion of the Government not adequately represented in the Government services.” 161 134. The Learned Judge observed that two tests namely, that the conditions of caste or group or community should be more or less similar to the conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). The Learned Judge observed that insofar as Article 16(4) is concerned, it should also be shown that the backward class in question is in the opinion of the Government not adequately represented in the Government services. E. Indra Sawhney vs. Union of India 135. Then next comes the 9-Judge Bench judgment of this Court in the case of Indra Sawhney and others vs. Union of India 12 and others , which could be considered as an important milestone laying down the law about reservations for Other 12 1992 Supp (3) SCC 217. 162

13 (2020) 8 SCC 1. 163

164 from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line — how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become — say a factory 165 owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a of his social measure advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India 166

167 139. His Lordship observed that if some of the members in a class are far too advanced socially, the connecting thread between them and the remaining class snaps. The Court observed that ‘too advanced socially’ means economically and may also mean educationally. It has been observed that they would be misfits in the class. The Court considered the difficulty in drawing the line. It is observed that it should not amount to taking away with one hand what is given with the other. The Court observed that the basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. The Court observed that the line to be drawn must be a realistic one. The Court posed a question as to whether such a line should be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. It has been observed that since it is difficult to assess income from agriculture, in the case of agriculturists, the line may have to be drawn with reference to 168 the extent of holding. It is observed that the income limit must be such as to mean and signify social advancement. The Court observed that at the same time, it must be recognized that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. It has been observed that if a member of a designated backward class would become a member of IAS or IPS or any other All India Service, his status in the society rises and he is no longer socially disadvantaged. The Court observed that clause (4) of Article 16 aims at group backwardness, the exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). No doubt, it has been specified that the said discussion was confined to Other Backward Classes only and had no relevance in the case of Scheduled Tribes and Scheduled Castes. 169 140. Then the question as to whether Backward Classes can be further divided into backward and more backward categories has been answered thus: “ 802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both 170 included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State — and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group A comprises “Aboriginal tribes, Vimukta jatis, nomadic and semi-nomadic tribes etc.” Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to “Scheduled Castes converts to Christianity and their progeny”, while Group D comprises all other classes/communities/groups, which are not included in Groups A, B and 171 C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [(1972) 1 SCC 660 : (1972) 3 SCR 247] . This is merely to show that even among backward classes, there can be a sub-classification on a reasonable basis. 803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression “backward class of citizens” and that separate reservations can be provided in their favour. It is a well- accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say — we may reiterate 172

173 are also included in the expression “backward class of citizens” and that separate reservations can be provided in their favour. 143. It has also been observed that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, the OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. It has been observed that the same logic also warrants categorization as between more backward and backward. The Court, however, cautioned that it may not be construed as implying that the State should do it, but it was only saying that if the State chooses to do so, it is not impermissible in law. 144. Similar view has also been expressed by P.B. Sawant, J. in paragraphs 523, 524 and 525, which read thus: “ 523. As regards the second part of the question, in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] it was observed that the backward classes cannot be further classified in backward and more backward classes. These observations, although made in the context of Article 15(4) which 174 fell for consideration there, will no doubt be equally applicable to Article 16(4). The observations were made while dealing with the recommendations of the Nagan Gowda Committee appointed by the State of Karnataka which had recommended the classification of the backward communities into two divisions, the Backward and the More Backward. While making those recommendations the Committee had applied one test, viz., “Was the standard of education in the community in question less than 50% of the State average? If it was, the community was regarded as more backward; if it was not, the community was regarded as backward.” The Court opined that the sub-classification made by the Report and the order based thereupon was not justified under Article 15(4) which authorises special provision being made for ‘really backward classes’. The Court further observed that in introducing two categories of backward classes, what the impugned order in substance purported to do was to devise measures “for the benefit of all the classes of citizens who are less advanced compared to the most advanced classes in the State”. That, according to the Court, was not the scope of Article 15(4). The result of the method adopted by 175 the impugned order was that nearly 90% of the population of the State was treated as Backward and that, observed the Court, illustrated how the order in fact divided the population of the State into most advanced and the rest, putting the latter into two categories of the Backward and the More Backward. Thus, the view taken there against the sub-classification was on the facts of that case which showed that almost 90% of the population of the State was classified as backward, the backwardness of the Backward (as against that of the More Backward) being measured in comparison to the most advanced classes in the State. Those who were less advanced than the most advanced, were all classified as Backward. The Court held that it is the More Backward or who were really backward who alone would be entitled to the benefit of the provisions of Article 15(4). In other words, while the More Backward were classified there rightly as backward, the Backward were not classified rightly as backward. 524. It may be pointed out that in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1 SCR 352] Chinnappa Reddy, J after referring to the aforesaid view 176 in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] observed that the propriety of such test may be open to question on the facts of each case but there was no reason why on principle there cannot be a classification into Backwards and More Backwards if both classes are not merely a little behind, but far far behind the most advanced classes. He further observed that in fact, such a classification would be necessary to help the more backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes, would walk away with all the seats just as if reservation was confined to the more backward classes and no reservation was made to the slightly more advanced of the backward classes, the backward classes would gain no seats since the advanced classes would walk away with all the seats available for the general category. With respect, this is the correct view of the matter. Whether the backward classes can be classified into Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the advanced classes, and further, between themselves, there is a 177 substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution. To give an instance, the Mandal Commission has, on the basis of social, educational and economic indicators evolved 22 points by giving different values to each of the three factors, viz., social, educational and economic. Those social groups which secured 22 points or above have been listed there as “socially and educationally backward” and the rest as “advanced”. Now, between 11 and 22 points some may secure, say, 11 to 15 points while others may secure all 22 points. The difference in their backwardness is, therefore, substantial. Yet another illustration which may be given is from Karnataka State Government order dated October 13, 1986 on reservations issued after the decision in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1 SCR 352] where the backward classes are grouped into five categories, viz., A, B, C, D and E. In category A, fall such castes or communities as that of Bairagi, Banjari and Lambadi which are nomadic tribes, and Bedaru, Ramoshi which were formerly 178 stigmatised as criminal tribes whereas in category D fall such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special provisions to the former, the latter taking away the entire benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without any seat or post. In such circumstances, the sub-classification of the backward classes into backward and more or most backward is not only desirable but essential. However, for each of them a special quota has to be prescribed as is done in the Karnataka Government order. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved quota nor in the general category for want of capacity to compete with the forward. 525. Hence, it will have to be held that depending upon the facts of each case, sub-classification of the backward classes into the backward and more or most 179

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182 races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory. This indicates that there can be only one list of Scheduled Castes in regard to a State and that list should include all specified castes, races or tribes or part or groups notified in that Presidential List. Any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. In the entire Constitution wherever reference has been made to “Scheduled Castes” it refers only to the list prepared by the President under Article 341 and there is no reference to any subclassification or division in the said list except, maybe, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of the People, which is not applicable to the facts of this case. It is also clear from Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, subclassify or subgroup these castes which are found in the Presidential List of Scheduled Castes. Therefore, it is clear that the Constitution intended all the castes including the subcastes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution and this group could not be 183

184

185 are only procedural. Section 3 of the Act provides for the creation of 4 groups out of the castes enumerated in the Presidential List of the State. After the regrouping it provides for the proportionate allotment of the reservation already made in favour of the Scheduled Castes amongst these 4 groups. Beyond that the Act does not provide for anything else. Since the State had already allotted 15% of the total quota of the reservation available for the backward classes to the Scheduled Castes the question of allotting any reservation under this enactment to the backward classes does not arise. Therefore, it is clear that the purpose or the true intendment of this Act is only to first divide the castes in the Presidential List of the Scheduled Castes into 4 groups and then divide 15% of reservation allotted to the Scheduled Castes as a class, amongst these 4 groups. Thus it is clear that the Act does not for the first time provide for reservation to the Scheduled Castes but only intends to redistribute the reservation already made by subclassifying the Scheduled Castes which is otherwise held to be a class by itself. It is a well-settled principle in law that reservation to a backward class is not a constitutional mandate. It is the prerogative of the State concerned if it so desires, with an object of providing opportunity of advancement in the society to certain backward classes which 186

187 154. It can thus be seen that this Court held that whatever may be the object of the sub-classification and apportionment of the reservation, the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. The Court held that, in pith and substance the enactment is not a law governing the field of education or the field of State public services. 155. Then the Court posed a question as to whether the impugned enactment creates sub-classification or micro- classification of the Scheduled Castes so as to violate Article 14 of the Constitution. The same is answered as under: “ 41. The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the legislature of a State cannot take any action which would be contrary 188 to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be subdivided or subclassified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the list. Such subclassification would be violative of Article 14 of the Constitution. It may be true, as has been observed by the High Court, that the caste system has got stuck up in the society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalising the reservation to 189 the Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated. 42. Reservation must be considered from the social objective angle, having regard to the constitutional scheme, and not as a political issue and, thus, adequate representation must be given to the members of the Scheduled Castes as a group and not to two or more groups of persons or members of castes. 43. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of clause (4) of Article 15 and clause (4) of Article 16 of the Constitution, a further classification by way of micro- classification is not permissible. Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List can be done only by Parliament. The 190

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14 (2006) 8 SCC 212. 194 Constitution (Eighty-second Amendment) Act, 2000, and the Constitution (Eighty-fifth Amendment) Act, 2001. Answering the aforesaid, the Court observed thus: “ 121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub- classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 195 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of 196

197 H. Jarnail Singh vs. Lachhmi Narain Gupta 165. The correctness of the decision in M. Nagaraj was referred to the Constitution Bench in the case of Jarnail Singh and 15 others vs. Lachhmi Narain Gupta and others . The Constitution Bench in the said case considered two issues: firstly, with regard to the correctness of the view taken in M. Nagaraj about the requirement of collecting quantifiable data showing backwardness and inadequacy of representation of Scheduled Castes and Scheduled Tribes in public employment; and secondly, with regard to applicability of the creamy layer principle even to the Scheduled Castes and Scheduled Tribes. 166. The Court, insofar as the first issue is concerned, held that the requirement of collection of quantifiable data on backwardness and inadequacy of representation of Scheduled Castes and Scheduled Tribes in public employment is concerned, is contrary to the 9-Judge Bench judgment in the case of Indra 15 (2018) 10 SCC 396. 198 Sawhney and liable to be struck down to that extent. However, insofar as the second issue regarding making the creamy layer principle applicable even to Scheduled Castes and Scheduled Tribes is concerned, the Court observed thus: “26. The whole object of reservation is to see that Backward Classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons 199 who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. 27. We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that constitutional courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub-group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. One of the most important principles that has been frequently applied in constitutional law is the doctrine of harmonious interpretation. When Articles 14 and 16 are harmoniously interpreted along with other Articles 341 200 and 342, it is clear that Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, constitutional courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India. We do not agree with Balakrishnan, C.J.'s statement in Ashoka Kumar Thakur [ Ashoka Kumar Thakur v. Union of India , (2008) 6 SCC 1 : 3 SCEC 35] that the creamy layer principle is merely a principle of identification and not a principle of equality. 28. Therefore, when Nagaraj [ M. Nagaraj v. Union of India , (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament's power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no 201 need to refer Nagaraj [ M. Nagaraj v. Union of India , (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We may also add at this juncture that Nagaraj [ M. Nagaraj v. Union of India , (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied by a number of judgments of this Court, namely: 28.1. Anil Chandra v. Radha Krishna Gaur [ Anil Chandra v. Radha Krishna Gaur , (2009) 9 SCC 454 : (2009) 2 SCC (L&S) 683] (two-Judge Bench) (see paras 17 and 18). 28.2. Suraj Bhan Meena v. State of Rajasthan [ Suraj Bhan Meena v. State of Rajasthan , (2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] (two-Judge Bench) (see paras 10, 50, and 67). 28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar [ U.P. Power Corpn. Ltd. v. Rajesh Kumar , (2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289] (two-Judge Bench) [see paras 61, 81( ix ), and 86]. 202 28.4. S. Panneer Selvam v. State of T.N. [ S. Panneer Selvam v. State of T.N. , (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] (two- Judge Bench) (see paras 18, 19, and 36). 28.5. Central Bank of India v. SC/ST Employees Welfare Assn. [ Central Bank of India v. SC/ST Employees Welfare Assn. , (2015) 12 SCC 308 : (2016) 1 SCC (L&S) 355] (two-Judge Bench) (see paras 9 and 26). 28.6. Suresh Chand Gautam v. State of U.P. [ Suresh Chand Gautam v. State of U.P. , (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] (two-Judge Bench) (see paras 2 and 45). 28.7. B.K. Pavitra v. Union of India [ B.K. Pavitra v. Union of India , (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] (two-Judge Bench) (see paras 17 to 22).” 167. The Court in unequivocal terms held that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the 203 Presidential List under Articles 341 or 342 of the Constitution of India. It is observed that the caste or group or sub-group named in the said List continues exactly as before. It has been further observed that it is only those persons within that group or sub- group, who, on account of belonging to the creamy layer, have come out of untouchability or backwardness would be excluded from the benefit of reservation. 168. The Court observed that even if we assume that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within the lists notified under Articles 341 and 342, constitutional courts, applying Articles 14 and 16 of the Constitution would be entitled to exclude the creamy layer. It has been held that the Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the 204 principles of equality under Articles 14 and 16 of the Constitution of India. IV. PRESENT REFERENCE 169. A 3-Judge Bench of this Court in the case of State of 16 Punjab and others vs. Davinder Singh and others vide order th dated 20 August 2014, doubted the correctness of the Constitution Bench decision of this Court in the case of E.V. Chinnaiah and referred it to the larger Bench. The larger Bench 17 of 5-Learned Judges proposed the following issues . “1.1. ( i ) Whether the provisions contained under Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 are constitutionally valid? 1.2. ( ii ) Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act? 16 (2020) 8 SCC 65. 17 (2020) 8 SCC 63. 205

“ 52. The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the List based on the rationale that would conform with the very spirit of Articles 14, 15 and 16 of the Constitution providing reservation. The State Government cannot tamper with the List; it can neither include nor exclude any caste in the List or make enquiry whether any synonym exists as 18 (2020) 8 SCC 1. 206 held in Milind [ State of Maharashtra v. Milind , (2001) 1 SCC 4 : 2001 SCC (L&S) 117] . 53. The State Government is conferred with the power to provide reservation and to distribute it equitably. The State Government is the best judge as to the disparities in different areas. In our opinion, it is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit. 54. Apart from that, the other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward classes, who is not denied the benefit of reservation, cannot claim that whole or a particular percentage of reservation should have been made available to them. The State can provide such preference on rational criteria to the class within Lists requiring upliftment. There is no vested right to claim that reservation should be at a particular percentage. It has to accord with ground 207 reality as no one can claim the right to enjoy the whole reservation, it can be proportionate one as per requirement. The State cannot be deprived of measures for upliftment of various classes, at the same time, which is the very purpose of providing such measure. The spirit of the reservation is the upliftment of all the classes essential for the nation's progress. 55. In the federal structure, the State, as well as Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and ( sic educationally) backward classes. Only inclusion or exclusion in the Presidential notification is by Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the List under Articles 341, 342 and 342-A as no enlisted caste is denied the benefit of reservation. 208

209 171. Recording the above observations, the Constitution Bench requested the Hon’ble Chief Justice to place the matter before the 7 Judges or more as considered appropriate. The matter was thus placed before the present Bench. V. CONSIDERATION 172. At one stage, the atrocious caste discrimination in India had even surpassed the racial discrimination and the slave trade, premised on the colour of skin, in other parts of the world. For centuries the people belonging to certain castes were inhumanly treated by the upper classes in society. They have been treated worse than animals. They were not permitted to be touched by the upper classes. In some areas, even the upper classes did not permit the shadow of such people to fall on them. As such, while walking, they were required to maintain a distance so that their shadow does not pollute the upper caste. In some areas, they were required to tie a broom to their back so that they clean the path after they travel from the same. 210 173. These people were also denied water from the common places. In the villages where the water was drawn from the rivers, they were required to draw water from the downstream so that the water taken by the people from higher classes is not polluted. They were also denied the right to education. In schools, either they were required to sit separately or take their lessons standing outside their classroom. 174. While India was struggling to gain freedom from the colonial rulers, the country also witnessed a parallel movement for eradication of these inequalities and upliftment of the classes which were being treated inhumanly. 175. It would be apposite to refer to the statement by Dr. B.R. Ambedkar in ‘Evidence before the Southborough Committee’ (1919), where he gave several examples of the unjust treatment 19 meted out to the untouchables by the oppressor castes as thus : 19 B.R. Ambedkar, ‘Evidence before the Southborough Committee on Franchise’ in Dr. Babasaheb Ambedkar: Writings and Speeches, ed. Vasant Moon, Ministry of Social Justice and Empowerment 2019, Vol.I, p. 255. 211 “From an untouchable trader no Hindu will buy. An untouchable cannot be engaged in lucrative service. Military service had been the monopoly of the untouchables since the days of the East India Company. They had joined the Army in such large numbers … But after the mutiny when the British were able to secure soldiers from the ranks of the Marathas, the position of the low-caste men who had been the prop of the Bombay Army became precarious, not because the Marathas were better soldiers but because their theological bias prevented them from serving under low-caste officers. The prejudice was so strong that even the non- caste British had to stop recruitment from the untouchable classes. In like manner, the untouchables are refused service in the Police Force. In a great many of the Government offices it is impossible for an untouchable to get a place. Even in the mills a distinction is observed. The untouchables are not admitted in Weaving Departments of the Cotton Mills though many of them are professional weavers. An instance at hand may be cited from the school system of the Bombay Municipality. This most cosmopolitan city ruled by a Corporation with a greater freedom than any other Corporation in India has two different sets of schools … one for the children of touchables and the other for those of the untouchables. This 212 in itself is a point worthy of note. But there is something yet more noteworthy. Following the division of schools it has divided its teaching staff into untouchables and touchables. As the untouchable teachers are short of the demand, some of the untouchable schools are manned by teachers from the touchable class. The heart-killing fun of it is that if there is a higher grade open in untouchable school service, as there is bound to be because of a few untouchable trained teachers, a touchable teacher can be thrust into the grade. But if a higher grade is open in the touchable school service, no untouchable teacher can be thrust into that grade. He must wait till a vacancy occurs in the untouchable service! Such is the ethics of the Hindu social life.” 176. Dr. Ambedkar in order to fight against the inhuman treatment of untouchables, who were not even allowed to draw water from the common place, held an agitation at Mahad known th as “Mahad Satyagraha” on 20 March 1927 so that the untouchables could be permitted to draw water from a public tank at Mahad. 213 177. Dr. Ambedkar also led agitations for opening the doors of places of worship to the untouchables. One such agitation which he led was in Nashik and was popularly known as “Kalaram Temple Satyagraha”. 178. Dr. Ambedkar was of the view that if untouchables come out of that stigma and participate in nation-building, they will only contribute to the progress of the nation. He was of the view that the movement for removal of untouchability is in true sense a movement for nation-building and fraternity. 179. I can gainfully refer to the collection of views of Dr. Ambedkar as put together lucidly by Anurag Bhaskar in the book 20 appropriately titled as “The Foresighted Ambedkar” , which reads thus: “He asserted that the issue of temple entry or access to public resources is an issue of equality. He stated: “Another argument these Touchables give is that even if they do not allow 20 Anurag Bhaskar, The Foresighted Ambedkar: Ideas that shaped Indian constitutional Discourse (Viking by Penguin Random House 2024). 214 the Untouchables into their temples, all are free to build a temple for themselves. I would like to ask those so-called learned ones why they object to Railways for having separate coaches for Whites and Indians? …There is only one answer to this and that is: it is not a matter of travel only, it is a matter of equality! … The Untouchables have the same reason for demanding the right to worship God in the same temple. They want to prove that the temple is not defiled by their entry ….. The Untouchables are not servants … On the basis of this alone they should accept the rights of the Untouchables. And when there are rights there is no question of custom 21 of usage.” He further added that public property cannot be used as the private property of the oppressor castes. He noted: “Legally, the right to public property is not required to be established by any deed; it is available automatically to everybody. Even if he has no usage or it was not continuous, it does not deprive him of that right. Suppose, somebody did 21 Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience . ( Konark Publishers Pvt. Ltd. 2014). 215 not walk on a particular road, does that mean he can never use that road? Therefore, it would be quite idiotic to say that since Untouchables never went to the temple or never drew water from the public wells, so now they cannot do 22 that.” Dr. Ambedkar also dismissed the contention of the oppressor castes that the Untouchables should wait for them to change and allow equal rights. He referred to the Thirteenth Amendment to the American Constitution, which abolished slavery, to demand accountability and action from the oppressor castes. He stated: “I am aware that some Touchables are suggesting that the matter of equal rights for the Untouchables should be allowed to be resolved by the Touchables amongst themselves. It cannot be resolved by the movement of the Untouchables. The Untouchables should wait till the Touchables willingly allow them such equal rights. How can it be trusted that they will willingly grant such rights to the Untouchables? It will be sheer stupidity to wait for such a miracle to happen … Another section 22 Ibid. 216 of the Touchables tells us that even if we launch our movement, we will not succeed. If we launch a struggle, whatever few Touchables who have sympathy with our cause will feel offended and we will lose their sympathy. The progressive Touchables will then join the orthodox Hindus against us. I want to tell them that if they have sympathy for us, if they feel anguished about the injustice caused to us, then they should support us wholeheartedly like the Whites supported the Blacks in America to end slavery. Otherwise, it does not matter whether you have 23 sympathy or hatred towards us.”” 180. Accordingly, when I consider the present issue, I will have to consider it in this background. 181. It is a matter of great coincidence that Dr. Ambedkar, who fought for the cause of social equality and eradication of inhuman treatment for generations, got an opportunity to work as the Chief Architect of the Constitution of India. 23 Ibid. 217 182. I have already referred to his speech on draft Article 300A and draft Article 300B (now Articles 341 and 342). It will also be apposite to refer to the relevant part of Dr. Ambedkar’s speech on th 30 November 1948 on Article 16 (which was draft Article 10), which reads thus: “Article 16 (Article 10 in Draft Constitution) The Hon’ble Dr. B.R. Ambedkar: ……..As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration. If honourable Members will bear these facts in mind–the three principles, we had to reconcile,–they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain 218 communities that the administration which has now–for historical reasons– been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub- clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this 219

183. It could thus be seen that Dr. Ambedkar emphasized that a formula was required to be produced which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look- in’ so to say into the administration. Dr. Ambedkar states that the equality of opportunity as specified in clause (1) has to be reconciled with the demand made by certain communities. He 220 states that on account of historical reasons, the administration has been controlled by one community or a few communities, that such a situation should disappear and that the others also must have an opportunity of getting into the public services. However, he states that if the demand of such communities, in full, is accepted, it will destroy the first principle of equality guaranteed in clause (1). He gives an instance that if certain communities which are unrepresented or a group of communities have a population of 70% and if 70% reservation is provided for such communities, leaving only 30% for the open competition, it will destroy the very concept of equality of opportunity. He therefore advocates for confinement of reservation to a minority of seats. He therefore states that unless some qualifying phrase as “backward” is used for making reservation, the entire rule would be unworkable. He therefore justifies the efforts of the Drafting Committee in employing the word ‘backward’. 221 184. It will further be apposite to refer to the following observation in the said speech. Article 16 (Article 10 in Draft Constitution)

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190. No doubt that by the Constitution (One hundred and Second Amendment) Act, 2018, Article 342A regarding socially and educationally backward classes has been inserted. Clause (26C) in Article 366 of the Constitution of India has also been inserted by the said Amendment insofar as socially and educationally backward classes are concerned. It was sought to be argued before us that in view of the Constitution (One hundred 225 and Second Amendment) Act, 2018, read with the law laid down by this Court in the case of Indra Sawhney regarding Other Backward Classes, the judgment of this Court in E.V. Chinnaiah needs a relook.