THE STATE OF PUNJAB & ORS.versusDAVINDER SINGH & ORS.

                  [2024] 8 S.C.R. 1321 : 2024 INSC 562

                        The State of Punjab & Ors.
                                     v.
                          Davinder Singh & Ors.
                         Civil Appeal No. 2317 of 2011
                                  01 August 2024
           [Dr Dhananjaya Y Chandrachud,* CJI, B.R. Gavai,*
             Vikram Nath,* Bela M. Trivedi,* Pankaj Mithal,*
             Manoj Misra and Satish Chandra Sharma,* JJ.]

                             Issue for Consideration
       The Supreme Court was required 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 arose for consideration: Whether sub-classification
       of a reserved class is permissible under Articles 14, 15 and 16
       of the Constitution; Whether the Scheduled Castes constitute a
       homogenous or a heterogenous grouping; Whether Article 341 of
       the Constitution creates a homogenous class through the operation
       of the deeming fiction; and Whether there any limits on the scope
       of sub-classification.

                                     Headnotes†
       Reservation – Whether sub-classification of Scheduled Castes
       for purposes of reservation is constitutionally permissible –
       Held (per majority), Yes.
       Held (per Dr D Y Chandrachud, CJI) (for himself and
       Manoj Misra, J.): 1. 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.
       [Para 205(a)]
       2. The holding in Chinnaiah that sub-classification of the Scheduled
       Castes is impermissible is overruled. [Para 205(f)]
       Held (per B.R. Gavai, J.) (Concurring): 1. E.V. Chinnaiah, which
       held that sub-classification amongst the Scheduled Castes for the
* Author
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    purpose of giving more beneficial treatment to a group in the larger
    group of the Scheduled Castes is not permissible, does not lay
    down a good law. [Para 296 (i)]
    2. Sub-classification amongst the Scheduled Castes for giving more
    beneficial treatment is permissible in law. [Para 296 (ii)]
    Held (per Vikram Nath, J.) (Concurring): I am generally in
    agreement with the reasons and conclusions arrived at in the
    opinions of Hon’ble the Chief Justice and Brother Justice Gavai in
    particular that the holding in E.V. Chinnaiah, that sub-classification
    within Scheduled Castes was impermissible, does not lay down
    good law and stands over-ruled. [Para 1]
    Held (per Pankaj Mithal, J.) (Concurring): 1. The issue of sub-
    classification of scheduled castes has been appropriately answered
    by the Chief Justice and my esteemed brother Justice Gavai by
    their separate opinions with which I respectfully agree. [Para 9]
    2. The policy of reservation as enshrined under the Constitution
    and by its various amendments requires a fresh re-look and
    evolvement of other methods for helping and uplifting the depressed
    class or the downtrodden or the persons belonging to SC/ST/OBC
    communities – So long no new method is evolved or adopted, the
    system of reservation as prevailing may continue to occupy the
    field with power to permit sub-classification of a class particularly
    scheduled caste as I would not be suggesting dismantling of an
    existing building without erecting a new one in its place which may
    prove to be more useful. [Para 84(i)]
    3. Sub-classification of Scheduled Castes is permissible in law for
    the purposes of reservation. [Para 85]
    Held (per Satish Chandra Sharma, J.) (Concurring): I have had
    the privilege of reading the lucid and detailed opinion(s) authored
    by Hon’ble Dr. Justice D.Y.Chandrachud, Chief Justice of India
    and Hon’ble Mr. Justice B.R. Gavai, respectively – I am fully in
    agreement with both opinions to the extent that the validity of
    sub-classification within Scheduled Castes has been held to be
    constitutionally permissible. [Para 1]
    Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law
    was settled by the Constitution Bench in E.V. Chinnaiah after
    considering all the previous judgments including Indra Sawhney
    and after investing substantial judicial time and resources, the
[2024] 8 S.C.R.                                                              1323

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     same should not have been doubted and referred to the larger
     bench by the Three-Judge Bench in Davinder Singh, and that too
     without assigning any reason much less cogent reason for their
     disagreement disregarding the well settled doctrines of Precedents
     and Stare decisis. [Para 79(i)]
     2. The Nine-Judge Bench in Indra Sawhney and the Five-Judge
     Bench in Jarnail Singh had not dealt with the issue of sub-
     classification of the “Scheduled Castes” in the context of Article
     341, much less had dealt with the State’s powers to sub-classify or
     sub-divide or regroup the castes specified as “Scheduled Castes”
     under Article 341 of the Constitution, and therefore, it could not be
     held that the law laid down in E.V. Chinnaiah was not in consonance
     with Indra Sawhney or Jarnail Singh. [Para 79(viii)]
     3. The power conferred upon the Supreme Court under Article 142
     cannot be used to supplant the substantive law applicable to the
     case under consideration – Even with the width of its amplitude,
     Article 142 cannot be used to build a new edifice where none
     existed earlier, by ignoring express statutory provisions dealing
     with the subject, and thereby to achieve something indirectly which
     cannot be achieved directly – The action of the State, though
     well intentioned and affirmative in nature, if violates the specific
     provision of the Constitution, cannot be validated by the Supreme
     Court in exercise of its jurisdiction under Article 142. [Para 79(ix)]
     4. The affirmative action and legal frameworks, though both do
     aim at more equitable society, they must navigate complex legal
     principles to ensure fairness and constitutionality. [Para 79(x)]
     5. The law laid down by the Five-Judge Bench in E.V. Chinnaiah
     is the correct law and deserves to be confirmed. [Para 80]
     Reservation – Whether sub-classification of Scheduled Castes
     for reservation was excluded or barred by the Nine Judge
     Bench decision in Indra Sawhney case – Held, No.
     Held (per Dr D Y Chandrachud, CJI) (for himself and
     Manoj Misra, J.): In Indra Sawhney, 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). [Para 205(b)]
     Held (per B.R. Gavai, J.) (Concurring): In Indra Sawhney,
     7 Learned Judges affirmed the position as laid down in N.M. Thomas
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    that clause (4) of Article 16 is not by way of an exception to
    clause (1) of Article 16, but it is an emphatic way of stating a principle
    implicit in Article 16(1) – It has been held that further classification
    of backward classes into backward and more backward classes
    is permissible under the Constitution – It has been held in Indra
    Sawhney that under Article 16(4) the Scheduled Castes are also
    included in the term ‘backward class of citizens’. [Paras 247, 248]
    Held (per Pankaj Mithal, J.) (Concurring): The Chief Justice in
    his opinion has clearly opined that this Court in Indra Sawhney
    never intended to limit the application of sub-classification to the
    other backward classes only – If any class is not integrated it can
    be further classified and such sub-classification of a class would
    not be violative of Article 14 of the Constitution, so long persons
    in a class are not similarly situated. [Para 79]
    Held (per Bela M. Trivedi, J.): Though Indra Sawhney had sought
    to define “backward class” in terms of social backwardness,
    while considering the ambit of “backward class” for the purpose
    of Article 16(4), it did not deal with the issue qua the Scheduled
    Castes/ Scheduled Tribes particularly in the light of Article 341/342,
    rather it categorically kept the Scheduled Castes/ Scheduled Tribes
    outside the purview of consideration – The Scheduled Castes
    being the most backward class amongst the backward classes,
    and having acquired a special status by virtue of Article 341, the
    question of defining “backward class” qua the “Scheduled Castes”
    did not arise, and rightly not dealt with in Indra Sawhney for the
    purposes of Article 16(4) of the Constitution. [Para 70]
    Reservation – Whether Scheduled Castes under Article 341,
    constitute a homogeneous class – Held (per majority), No –
    Constitution of India – Art. 341.
    Held (per Dr D Y Chandrachud, CJI) (for himself and
    Manoj Misra, J.): 1. In Chinnaiah, 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 certain observations of the Constitution
    Bench in NM Thomas case – In NM Thomas however, rules
    providing concessions to the members of the Scheduled Castes
    for qualifying at the entrance examination were challenged – One
    of the issues before the Court was whether the concession to the
    members of the Scheduled Castes violated Article 16(2) since it
    discriminates solely on the ground of “caste” – To overcome the
[2024] 8 S.C.R.                                                               1325

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     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 do not go further to
     state that it is a homogenous class that cannot be classified
     further – Additionally, the approach adopted in NM Thomas 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, where this
     Court held that caste is itself a class – Therefore, the inference
     drawn by Justice Hegde in Chinnaiah that the Scheduled Castes
     are a homogenous class based on the above observations in
     NM Thomas is erroneous. [Paras 113, 114]
     2. 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. [Para 205(c)]
     3. 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-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. [Para 205(d)]
     Held (per B.R. Gavai, J.) (Concurring): The ground realities
     cannot be denied – Even among the Scheduled Castes,
     there are some categories who have received more inhuman
     treatment for centuries and generations as compared to the other
     categories – The hardships and the backwardness which these
     categories have suffered historically would differ from category to
     category – Therefore, merely because they are part of a single or
     a combined Presidential List, it cannot be said that they form part
     of a homogeneous group. [Para 261]
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    Held (per Bela M. Trivedi, J.) (Dissenting): 1. While giving a
    broad and generous construction to the Constitutional provisions,
    the rule of “plain meaning”, or “literal” interpretation, which is the
    “primary rule” has to be kept in mind. [Para 79(ii)]
    2. The Presidential List specifying “Scheduled Castes” under
    Article 341 assumes finality on the publication of the notification,
    and the castes, races or tribes, or groups within castes, races or
    tribes specified in the notification are deemed to be the “Scheduled
    Castes” in relation to that State or Union Territory as the case
    may be, for the purposes of the Constitution and as such assume
    special status of “Scheduled Castes”. [Para 79(iii)]
    3. It is only the Parliament by law which can include in or exclude
    from the list of the “Scheduled Castes” specified in the notification
    notified under Clause (1), any caste, race or tribe or part of or group
    within any caste, race or tribe – Such notification notified under
    Clause (1) cannot be varied even by the President by issuing any
    subsequent notification. [Para 79(iv)]
    4. It is by virtue of the notification of the President under Article 341
    that the “Scheduled Castes” come into being – Though the members
    of Scheduled Castes are drawn from different castes, races or
    tribes, they attain special status of “Scheduled Castes” by virtue of
    Presidential Notification – The etymological and evolutionary history
    and the background of the nomenclature “Scheduled Castes”,
    coupled with the Presidential orders published under Article 341
    of the Constitution, make the “Scheduled Castes”, a homogenous
    class, which cannot be tinkered with by the States. [Para 79(v)]
    Reservation – Whether State legislature has the power of sub-
    classification of Scheduled Castes under Arts. 15 and 16 – Held
    (per majority), Yes – Constitution of India – Arts. 15 and 16.
    Held (per Dr D Y Chandrachud, CJI) (for himself and
    Manoj Misra, J.): 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. [Para 205(e)]
    Held (per B.R. Gavai, J.) (Concurring):
    1. It is the duty of the State to give preferential treatment to the
    backward class of citizens who are not adequately represented – If
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     the State while discharging that duty finds that certain categories
     within the Scheduled Castes and Scheduled Tribes are not
     adequately represented and only the people belonging to few of the
     categories are enjoying the entire benefit reserved for Scheduled
     Castes and Scheduled Tribes, can the State be denied its right to
     give more preferential treatment for such categories? The answer
     would be in the negative, since the same would not amount to
     tinkering with the Presidential List. [Para 258]
     2. No doubt that if the State decides to provide 100% of the
     reservation for Scheduled Castes to one or more categories
     enlisted in the Presidential List in that State to the exclusion of
     some categories, it may amount to tinkering with that list because,
     in effect, it would amount to denial of benefit of reservation to those
     Scheduled Caste categories which have been excluded – That
     would, in effect, amount to deletion of the said categories from
     the Presidential List notified under Article 341 of the Constitution,
     which power is exclusively reserved with Parliament; such an
     exercise would not be permissible. [Para 259]
     3. However, merely because more preferential treatment is provided
     to the more backward or more inadequately represented among
     the Scheduled Castes, it would not amount to tinkering with the
     Presidential List – The same would be permissible in view of the
     law laid down by the 9-Judge Bench in the case of Indra Sawhney.
     [Para 260]
     Held (per Bela M. Trivedi, J.) (Dissenting): 1. The States have
     no legislative competence to enact the law for providing reservation
     or giving preferential treatment to a particular caste/castes by
     dividing/sub-dividing/sub-classifying or regrouping the castes, races
     or tribes enumerated as the “Scheduled Castes” in the notification
     under Article 341. [Para 79(vi)]
     2. Under the guise of providing reservation or under the pretext
     of taking affirmative action for the weaker of the weakest sections
     of the society, the State cannot vary the Presidential List, nor can
     tinker with Article 341 of the Constitution. [Para 79(vii)]
     Reservation – Criteria and scope for sub-classification of
     Scheduled Castes – Discussed.
     Held (per Dr D Y Chandrachud, CJI) (for himself and
     Manoj Misra, J.): 1. The purpose of the reservation clause is
     to remedy the inadequate representation in public services of
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    certain “classes” – The intent of Article 16(4) is to cover those
    classes which have been inadequately represented because of
    their backwardness. [Paras 165, 166]
    2. 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 – The objective of the provision is not to emulate the
    existing social 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. [Paras 167, 168]
    3. 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. [Para 174]
    4. Since the State can 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 – How does the State identify
    inter-se social backwardness within the Scheduled Castes? 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 caste is
    because of its social backwardness – The State must prove that
    the group/caste carved out from the larger group of Scheduled
    Castes is more disadvantaged and inadequately represented.
    [Paras 175, 177]
    5. 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
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     services of the State – It cannot 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. [Para 190]
     6. Though sub-categorization based on each caste is permissible,
     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. [Para 195]
     7. The scope of sub-classification of the Scheduled Castes is
     summarized as follows: (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 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). [Para 205(f)]
     Held (per B.R. Gavai, J.) (Concurring): 1. For sub-classification
     amongst the Scheduled Castes, the State will have to justify
     that the group for which more beneficial treatment is provided is
     inadequately represented as compared to the other castes in the
     said List. [Para 296 (iii)]
     2. While doing so, the State will have to justify the same on the
     basis of empirical data that a sub-class in whose favour such more
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    beneficial treatment is provided is not adequately represented.
    [Para 296 (iv)]
    3. However, while providing for sub-classification, the State would
    not be entitled to reserve 100% seats available for Scheduled
    Castes in favour of a sub-class to the exclusion of other castes
    in the List. [Para 296 (v)]
    4. Such a sub-classification would be permissible only if there is a
    reservation for a sub-class as well as the larger class. [Para 296 (vi)]
    Held (per Vikram Nath, J.) (Concurring): Any exercise involving
    sub-classification by the State must be supported by empirical
    data. [Para 1]
    Held (per Satish Chandra Sharma, J.) (Concurring): I am
    fully in agreement with the opinion(s) authored by Hon’ble
    Dr. Justice D.Y. Chandrachud, Chief Justice of India and Hon’ble
    Mr. Justice B.R. Gavai, respectively to the extent that any exercise
    involving sub-classification by the State, must be supported by
    empirical data that ought to underscore the more ‘disadvantaged’
    status of the sub-group to which such preferential treatment is
    sought to be provided vis-à-vis the Constitutional Class as a
    whole. [Para 1]
    Reservation – Applicability of creamy layer principle to the
    Scheduled Castes – Discussed.
    Held (per B.R. Gavai, J.): 1. Taking into consideration that
    the Constitution itself recognizes the Scheduled Castes and
    Scheduled Tribes to be the most backward section of the society,
    the parameters for exclusion from affirmative action of the person
    belonging to this category may not be the same that is applicable
    to the other classes – If a person from such a category, by bagging
    the benefit of reservation achieved a position of a peon or maybe a
    sweeper, he would continue to belong to a socially, economically and
    educationally backward class – At the same time, the people from
    this category, who after having availed the benefits of reservation
    have reached the high echelons in life cannot be considered to
    be socially, economically and educationally backward so as to
    continue availing the benefit of affirmative action – They have
    already reached a stage where on their own accord they should
    walk out of the special provisions and give way to the deserving
    and needy. [Para 294]
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     2. The State must evolve a policy for identifying the creamy layer
     even from the Scheduled Castes and Scheduled Tribes so as
     exclude them from the benefit of affirmative action – Only this and
     this alone can achieve the real equality as enshrined under the
     Constitution. [Para 295]
     3. The finding of M. Nagaraj, Jarnail Singh and Davinder Singh
     to the effect that creamy layer principle is also applicable to
     Scheduled Castes and Scheduled Tribes lays down the correct
     position of law. [Para 296 (vii)]
     4. The criteria for exclusion of the creamy layer from the Scheduled
     Castes and Scheduled Tribes for the purpose of affirmative action
     could be different from the criteria as applicable to the Other
     Backward Classes. [Para 296 (viii)]
     Held (per Vikram Nath, J.) (Concurring): I am in agreement with
     the opinion of Brother Justice Gavai that ‘creamy layer’ principle is
     also applicable to Scheduled Castes and Scheduled Tribes, and
     that the criteria for exclusion of creamy layer for the purpose of
     affirmative action could be different from the criteria as applicable
     to the Other Backward Classes. [Para 2]
     Held (per Pankaj Mithal, J.) (Concurring): 1. Justice Gavai has
     rightly concluded that the State must evolve a policy of identifying
     the creamy layer even from the scheduled castes and scheduled
     tribes so as to exclude them from the benefit of reservation. [Para 83]
     2. In the Constitutional regime, there is no caste system and the
     country has moved into a casteless society except for the deeming
     provision under the Constitution for the limited purposes of affording
     reservation to the depressed class of persons, downtrodden or
     belonging to SC/ST/OBC – Therefore, any facility or privilege for
     the promotion of the above categories of persons has to be on a
     totally different criteria other than the caste may be on economic
     or financial factors, status of living, vocation and the facilities
     available to each one of them based upon their place of living
     (urban or rural). [Para 84(ii)]
     3. The reservation, if any, has to be limited only for the first
     generation or one generation and if any generation in the family
     has taken advantage of the reservation and have achieved higher
     status, the benefit of reservation would not be logically available
     to the second generation. [Para 84(iii)]
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    4. Periodical exercise has to be undertaken to exclude the class
    of person who after taking advantage of reservation has come to
    march, shoulder to shoulder with the general category. [Para 84(iv)]
    Held (per Satish Chandra Sharma, J.) (Concurring): On the
    question of applicability of the ‘creamy layer principle’ to Scheduled
    Castes and Scheduled Tribes, I find myself in agreement with
    the view expressed by Justice Gavai i.e., for the full realisation of
    substantive equality inter se the Scheduled Castes and Scheduled
    Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes
    and Scheduled Tribes ought to become a constitutional imperative
    for the State. [Para 2]
    Held (per Bela M. Trivedi, J.) (Dissenting): In so far as
    Article 15(4) and 15(5) are concerned, the use of the word “any”
    before the words “socially and educationally backward classes”
    and the use of the word “the” before “Scheduled Castes/Scheduled
    Tribes” clearly indicate that the said provisions pertain to the “Other
    Backward Classes” which are socially and educationally backward,
    and that the said provisions also pertain to the “Scheduled Castes”
    and “Scheduled Tribes”, however the “Scheduled Castes” do not
    require any further identification once they are notified under
    Article 341 – As rightly held in Ashok Kumar Thakur, the “creamy
    layer” principle is one of the parameters to identify backward
    classes – The “Scheduled Castes” having already been specified
    in the Presidential List under Article 341, the said creamy layer
    principle cannot be applied to the “Scheduled Castes” for their
    identification as backward class. [Para 71]

                              Case Law Cited

    In the judgment of Dr Dhananjaya Y Chandrachud, CJI
    EV Chinnaiah v. State of Andhra Pradesh [2004] Supp. 5
    SCR 972 : (2005) 1 SCC 394 – overruled.
    State of Kerala v. NM Thomas [1976] 1 SCR 906 : (1976) 2 SCC
    310; Indra Sawhney v. Union of India [1992] Supp. 2 SCR 454 :
    (1992) Supp. 3 SCC 217 – explained.
    Triloki Nath v. State of J&K [1969] 1 SCR 103; State of UP v. Pradip
    Tandon [1975] 2 SCR 761 : 1975 1 SCC 267; Akhil Bhartiya Soshit
    Karamchari Sangh (Rly) v. Union of India [1981] 2 SCR 185 : (1981)
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          The State of Punjab & Ors. v. Davinder Singh & Ors.


     1 SCC 246; State of Punjab v. Davinder Singh [2020] 10 SCR 857:
     (2020) 8 SCC 1; Jarnail Singh v. Lachhmi Narain Gupta [2018] 10
     SCR 663 : (2018) 10 SCC 396; Bhaiyalal v. Harikishan Singh [1965]
     2 SCR 877; State of Maharashtra v. Milind [2000] Supp. 5 SCR
     65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board [2018] 10 SCR
     513 : (2018) 10 SCC 312; B. Basavalingappa v. D. Munichinnapa
     [1965] 1 SCR 316; Srish Kumar Chodhury v. State of Tripura
     [1990] 1 SCR 576 : 1990 Supp SCC 220; State of West Bengal v.
     Anwar Ali Sarkar [1952] 1 SCR 284 : (1952) AIR 75; Chiranjit Lal
     Chowdhury v. Union of India [1950] 1 SCR 869 : 1950 SCC 833;
     General Manager, Southern Railway v. Rangachari [1962] 2 SCR
     586 : AIR 1962 SC 36; CA Rajendra v. Union of India AIR 1968 SC
     507; State of Madras v. Champakam Dorairajan [1951] 1 SCR 525;
     B Venkataramana v. The State of Madras AIR 1951 SC 229; Balaji
     v. State of Mysore [1963] Supp. 1 SCR 439 : AIR 1963 SC 649;
     Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 :
     (1995) 6 SCC 684; Ajit Singh (II) v. State of Punjab (1999) INSC
     407; Ajit Singh (I) v. State of Punjab [1996] 3 SCR 125 : (1996) 2
     SCC 715; S Vinod Kumar v. Union of India [1996] Supp. 7 SCR
     142 : (1996) 6 SCC 580; T Devadasan v. Union of India [1964] 4
     SCR 680; M Nagaraj v. Union of India [2006] Supp. 7 SCR 336 :
     (2006) 8 SCC 212; Neil Aurelio Nunes v. Union of India [2022] 1
     SCR 970 : (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka
     [2019] 7 SCR 1086 : (2019) 16 SCC 129; Janki Prasad Parimoo
     v. State of J&K [1973] 3 SCR 236 : (1973) 1 SCC 420; Shri Ram
     Krishna Dalmia v. Shri SR Tandolkar [1959] 1 SCR 279 : 1958
     SCC OnLine SC 6; Special Courts Bill, 1978, In re [1979] 2 SCR
     476 : (1979) 1 SCC 380; Moorthy Match Works v. CCE [1974] 3
     SCR 121 : (1974) 4 SCC 428; Deepak Sibal v. Punjab University
     [1989] 1 SCR 689 : (1989) 2 SCC 145; Budhan Choudhry v. State
     of Bihar [1955] 1 SCR 1045; All India Station Masters & Assistant
     Station Master’s Association v. General Manager, Central Railways
     [1960] 2 SCR 311 : AIR 1960 SC 384; Mohd. Shujat Ali v. Union
     of India [1975] 1 SCR 449 : 1975 3 SCC 76; State of Jammu and
     Kashmir v. Triloki Nath Khosa [1974] 1 SCR 771 : 1974 1 SCC 19;
     Roshan Lal Tandon v. Union of India [1968] 1 SCR 185; Katyani
     Sayal v. Union of India [1980] 3 SCR 139 : (1980) 3 SCC 245;
     Col AS Iyer v. V Balasubramanyam [1980] 1 SCR 1036 : 1980
     1 SCC 634; Navtej Singh Johar v. Union of India [2018] 7 SCR
     379 : (2019) 3 SCC 345; Consolidated Coffee Ltd v. Coffee Board,
1334                                                     [2024] 8 S.C.R.

                   Digital Supreme Court Reports


    Bangalore [1980] 3 SCR 625 : 1980 3 SCC 358; Bhuwalka Steel
    Industries Limited v. Union of India [2017] 2 SCR 993 : (2017) 5
    SCC 598; St. Aubyn v. Attorney General 1952 AC 15; Industrial
    Supplies Private Limited v. Union of India [1981] 1 SCR 375 :
    (1980) 4 SCC 341; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR
    296 : (2005) 1 SCC 754; Bengal Immunity Company Ltd v. State
    of Bihar [1955] 2 SCR 603 : (1955) SCC OnLine SC 2; Delhi
    Cloth & General Mills Co. Ltd v. State of Rajasthan [1980] 3 SCR
    1109 : 1976 3 SCC 443; Punit Rai v. Dinesh Chaudhary [2003]
    Supp. 2 SCR 743 : 2003 8 SCC 204; Marri Chandra Shekar Rao
    v. Dean, Seth GS Medical College [1990] 2 SCR 843: (1990) 3
    SCC 130; Palghat Jilla Thandan Samudhaya Samrakshna Samithi
    v. State of Kerala [1993] Supp. 3 SCR 872 : (1994) 1 SCC 359;
    Janki Prasad Parimoo v. State of Jammu and Kashmir [1973] 3
    SCR 236 : (1973) 1 SCC 420; RK Sabharwal v. State of Punjab
    [1995] 2 SCR 35 : (1995) 2 SCC 745; Triloki Nath v. State of
    Jammu and Kashmir (I) [1967] 2 SCR 265; Chitralekha v. State
    of Mysore. AIR 1964 SC 1823; P Rajendran v. State of Madras
    [1968] 2 SCR 786; Barium Chemicals v. Company Law Board
    (1992) Supp. 3 SCC 217 – referred to.
    East End Dwelling Co. Ltd. v. Finsbury Borough Council LR 1952
    AC 109 – referred to.

    In the judgment of B.R. Gavai, J.
    E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp.
    5 SCR 972 : (2005) 1 SCC 394; – held, not good law.
    State of Kerala and another v. N.M. Thomas and others [1976] 1
    SCR 906 : (1976) 2 SCC 310; Indra Sawhney and others v. Union
    of India and others [1992] Supp. 2 SCR 454 : (1992) Supp 3
    SCC 217 – explained.
    M. Nagaraj and others v. Union of India and others [2006] Supp.
    7 SCR 336 : (2006) 8 SCC 212; The State of Punjab & Ors. v.
    Davinder Singh & Ors. [2020] 10 SCR 857 : (2020) 8 SCC 1;
    Jarnail Singh and others v. Lachhmi Narain Gupta and others
    [2018] 10 SCR 663 : (2018) 10 SCC 396 – affirmed.
    The State of Punjab & Ors. v. Davinder Singh & Ors. (2020) 8
    SCC 65; State of Madras v. Smt. Champakam Dorairajan [1951]
    1 SCR 525; M.R. Balaji and others v. State of Mysore [1963]
[2024] 8 S.C.R.                                                          1335

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     Supp. 1 SCR 439 : 1962 SCC OnLine 147; State of Gujarat v.
     Shri Ambica Mills Ltd., Ahmedabad [1974] 3 SCR 760 : (1974)
     4 SCC 656; His Holiness Kesavananda Bharati Sripadagalavaru
     v. State of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; T.
     Devadasan v. Union of India [1964] 4 SCR 680 : AIR 1964 SC 55;
     Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented
     by its Assistant General Secretary on behalf of the Association v.
     Union of India and others [1981] 2 SCR 185 : (1981) 1 SCC 246;
     K.C. Vasanth Kumar and another v. State of Karnataka [1985]
     Supp. 1 SCR 352 : 1985 Supp SCC 714; Marri Chandra Shekhar
     Rao v. Dean, Seth G.S. Medical College and others [1990] 2 SCR
     843 : (1990) 3 SCC 130 – referred to.

     In the judgment of Pankaj Mithal, J.
     E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp.
     5 SCR 972 : (2005) 1 SCC 394; Indra Sawhney and Ors. v. Union
     of India and Ors. [1992] Supp. 2 SCR 454 : (1992) Supp. 3 SCC
     217; State of Madras v. Champakam Dorairajan [1951] 1 SCR
     525 : AIR (1951) SC 226; B. Venkataramana v. State of Madras
     and Ors. AIR (1951) SC 229; S. Vinod Kumar and Anr. v. Union
     of India and Ors. [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580;
     Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 :
     (1995) 6 SCC 684; Ajit Singh Januja v. State of Punjab [1996] 3
     SCR 125 : (1996) 2 SCC 715; Ajit Singh (II) v. State of Punjab
     (1999) INSC 546; Ashoka Kumar Thakur v. State of Bihar [1995]
     Supp. 3 SCR 269 : (1995) 5 SCC 403; Indra Sawhney (II) v. Union
     of India [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; M. Nagaraj
     v. Union of India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212;
     TMA Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
     587 : (2002) 8 SCC 481; Islamic Academia Education v. State
     of Karnataka [2003] Supp. 2 SCR 474 : (2003) 6 SCC 697; P.A.
     Inamdar v. State of Maharashtra [2005] Supp. 2 SCR 603 : (2005)
     6 SCC 537; Ashok Pramati Educational & Cultural Trust v. Union
     of India [2014] 11 SCR 712 : (2014) 8 SCC 1; Ram Singh v. Union
     of India [2015] 5 SCR 670 : (2015) 4 SCC 697; Janhit Abhiyan
     v. Union of India (EWS Reservation) [2022] 14 SCR 1 : (2023)
     5 SCC 1; M.R Balaji v. State of Mysore [1963] Supp. 1 SCR
     439 : AIR 1963 SC 649; K C Vasantha Kumar & Anr. v. State of
     Karnataka (1985) SCC Suppl. 714; State of Kerala v. N M Thomas
     [1976] 1 SCR 906 : (1976) 2 SCC 310; Akhil Bharatiya Soshit
1336                                                      [2024] 8 S.C.R.

                    Digital Supreme Court Reports


    Karamchari Sangh v. Union of India & Ors. [1981] 2 SCR 185 :
    (1981) 1 SCC 246; Jaishri Laxmanrao Patil v. State of Maharashtra
    (2021) 8 SCC 1 – referred to.

    In the judgment of Bela M. Trivedi, J.
    Pradip Chandra Parija and Others v. Pramod Chandra Patnaik
    and Others [2001] Supp. 5 SCR 460 : 2002 (1) SCC 1; Maganlal
    ChhaganLal (P) Ltd. v. Municipal Corporation of Greater Bombay &
    Others [1975] 1 SCR 1 : (1974) 2 SCC 402; Lt. Col. Khajoor Singh
    v. Union of India & Another [1961] 2 SCR 828 : AIR 1961 SC 532;
    Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay
    North, Ahmedabad [1965] 2 SCR 908 : AIR 1965 SC 1636; Dr.
    Shah Faesal and Others v. Union of India and Another [2020] 3
    SCR 1115 : (2020) 4 SCC 1; GVK Industries Limited and Another
    v. Income Tax Officer and Another [2011] 3 SCR 366 : (2011) 4
    SCC 36; Dr. JaiShri Laxman Rao Patil v. Chief Minister and Others
    [2021] 15 SCR 715 : (2021) 8 SCC 1; B. Basavalingappa v. D.
    Munichinnappa & others [1965] 1 SCR 316 : AIR (1965) SC 1269;
    Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877 : AIR (1965) SC
    1557; State of Maharashtra vs. Milind and Others [2000] Supp.
    5 SCR 65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board and
    Others [2018] 10 SCR 513 : (2018) 10 SCC 312; State of Kerala
    & Anr. v. N.M. Thomas & Ors. [1976] 1 SCR 906 : (1976) 2 SCC
    310; Ashok Kumar Thakur v. Union of India and Others [2007] 7
    SCR 63 : (2008) 6 SCC 1; and Supreme Court Bar Association
    v. Union of India and Another [1998] 2 SCR 795 : (1998) 4 SCC
    409 – followed.
    State of Haryana vs. Ranbir alias Rana [2006] 3 SCR 864 : (2006)
    5 SCC 167; ADM Jabalpur vs. Shivakant Shukla (1976) 8 SCC
    521; and Bharat Coking Coal Ltd. v. State of Bihar and Others
    [1990] 3 SCR 744 : (1990) 4 SCC 557– relied on.
    E.V. Chinnaiah v. State of Andhra Pradesh and Others [2004]
    Supp. 5 SCR 972 : (2005) 1 SCC 394 – affirmed.
    Indra Sawhney v. Union of India and Others [1992] Supp. 2 SCR
    454 : (1992) Suppl. 3 SCC 217; and Jarnail Singh v. Lachhmi Narain
    Gupta [2018] 10 SCR 663 : (2018) 10 SCC 396 – distinguished.
    K.C. Gajapati Narayan Deo v. State of Orissa [1954] 1 SCR 1 :
    (1953) 2 SCC 178; M. Nagaraj and Others v. Union of India and
    Others [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; State of
    Punjab and Others v. Davinder Singh and Others (2020) 8 SCC 65;
[2024] 8 S.C.R.                                                           1337

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     State of Punjab and Others v. Davinder Singh and Others [2020]
     10 SCR 857 : (2020) 8 SCC 1 – referred to.
     Northern Securities Company v. The United States (1903) 193
     U.S. 197 (1903) – referred to.

                      Books and Periodicals Cited

     In the judgment of Dr Dhananjaya Y Chandrachud, CJI
     3rd meeting of the National Commission for Scheduled Castes
     held on 13.12.2010 under the Chairmanship of Dr PL Punia;
     Ashwini Deshpande, Double Jeopardy? Stigma of Identity and
     Affirmative Action, The Review of Black Political Economy 2019,
     Vol. 46(I) 38-64; Marc Galanter, Competing Equalities: Law and
     the Backward Classes in India, [Oxford University Press (1984)]
     130; Report of the Indian Franchise Committee (1932) Vol I,
     112; Hutton Census Report (1931) 471; Minute of dissent by
     Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the
     Franchise Committee, 231; Dr Ambedkar, Note on the Depressed
     Classes, Report of the Franchise Committee, 211; AM Shah, The
     ‘Dalit” category and its Differentiation; 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); Robert F Kennedy, Center for Justice and Human
     Rights, Understanding Untouchability: A comprehensive Study of
     Practices and Conditions in 1589 Villages, 22-33; Ravinchandran
     Bathran, The many omissions of a concept: Discrimination amongst
     Scheduled Castes, Economic & Political Weekly, (Vol L1 No. 47,
     November 19, 2016) 1342-1346; Uma Ramaswamy, Protection
     and Inequality among Backward Groups, Economic & Political
     Weekly (Vol. 21 No. 9, 9 March 1986); B Shiva Rao, The Framing
     of India’s Constitution: Select Documents [Vol II, The Indian
     Institute of Public Administration] 221; Justice Usha Mishra Report
     on National Commission to Examine Issue of Sub-Categorisation
     [327] – referred to.

     In the judgment of B.R. Gavai, J.
     Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas
     and the Constitution of India (Viking by Penguin Random House
     India 2023); B.R. Ambedkar, ‘Evidence before the Southborough
     Committee on Franchise’ in Dr. Babasaheb Ambedkar: Writings
     and Speeches, ed. Vasant Moon, Ministry of Social Justice
1338                                                          [2024] 8 S.C.R.

                     Digital Supreme Court Reports


    and Empowerment 2019, Vol.I, p. 255; Anurag Bhaskar, The
    Foresighted Ambedkar: Ideas that shaped Indian constitutional
    Discourse (Viking by Penguin Random House 2024); Narendra
    Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark
    Publishers Pvt. Ltd. 2014) – referred to.

    In the judgment of Bela M. Trivedi, J.
    Bernard Schwartz, A Book of Legal Lists: The Best and Worst in
    American Law P.283 and Benjamin Cardozo, The Nature of Judicial
    Process, (New Haven: Yale University Press, 13th Edition 1946)
    141 – referred to.

    In the judgment of Pankaj Mithal, J.
    Nani Palkiwala, We, The Nation: The Lost Decades 179 (Mehta
    Publishing House 1995) and Skanda Purana Vol.18 Book VI, Nagar
    Kanda, Chapter 239, Verse 31-34 – referred to.

                                List of Acts
    Constitution of India; Punjab Scheduled Castes and Backward
    Classes (Reservation in Services) Act 2006; Tamil Nadu
    Arunthathiyars (Special Reservation of seats in educational
    institutions including private educational Institutions and of
    appointments or posts in services under State within the Reservation
    for the Scheduled Castes) Act 2009; Andhra Pradesh Scheduled
    Castes (Rationalisation of Reservations) Act 2000; Constitution
    (One Hundred and Second Amendment) Act, 2018; Constitution
    (Seventy-seventh Amendment) Act 1995; Constitution (Eighty-first)
    Amendment Act 2000; Constitution (Eighty-second) Amendment
    Act 2000; Constitution (One Hundred and Fifth) Amendment Act,
    2021; First Amendment to the Constitution.

                             List of Keywords
    Articles 14, 15, 16 and 341 of Constitution; Reservation; Scheduled
    Castes; Sub-classification; Affirmative action; Homogenous or
    heterogenous grouping; Operation of deeming fiction; Limits
    on scope of sub-classification; Intelligible differentia; Beneficial
    treatment; Doctrine of Precedent; Stare decisis; Substantive
    law; Backward class; Integrated homogenous class; Presidential
    List; Historical and empirical evidence; Socially heterogenous
    class; Rational principle for differentiation; Preferential treatment;
[2024] 8 S.C.R.                                                             1339

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     Inadequate representation; Criteria and scope for sub-classification;
     Inter-se backwardness; Judicial review; Reasonable nexus; Sub-
     categorization based on caste; Social backwardness; Empirical
     data; more ‘disadvantaged’ status; Creamy layer principle.

                            Case Arising From
     CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No.
     2317 of 2011
     From the Judgment and Order dated 29.03.2010 of the High Court
     of Punjab & Haryana at Chandigarh in CWP No.18290 of 2009
     With
     C.A. No. 6936 of 2015, C.A. No. 5597 of 2010, W.P.(C) No. 21 of
     2023, C.A. No. 5593 of 2010, S.L.P.(C) No. 30766 of 2010, S.L.P.(C)
     Nos. 8701, 36500-36501 of 2011, T.C.(C) No. 38 of 2011, T.P.(C) No.
     464 of 2015, W.P.(C) No.1477 of 2019, C.A. Nos. 5586, 5598 and
     5595-5596 of 2010, C.A. No. 2324 of 2011, T.C.(C) No. 37 of 2011,
     C.A. Nos. 5589, 5600 And 5587 of 2010, S.L.P.(C) Nos. 5454-5459
     of 2011, C.A. No. 2318 of 2011, C.A. No. 289 of 2014 And W.P.(C)
     No. 562 of 2022
                         Appearances for Parties
     R. Venkataramani, AG, Tushar Mehta, SG, K.M. Nataraj, ASG,
     Saurabh Mishra, Shadan Farasat, AAGs, Vivek Jain, DAG,
     Gurminder Singh, Adv.Gen./Sr. Adv., Kapil Sibal, Vijay Hansaria,
     M.S. Ganesh, Salman Khurshid, Rakesh Khanna, Arun Bhardwaj,
     Manoj Swarup, Dr. K.S. Chauhan, Salil Sagar, Shekhar Naphade,
     P.S. Teji, Saket Singh, Dama Seshadri Naidu, Nidhesh Gupta,
     Dr. Manish Singhvi, Siddharth Luthra, Sanjay Hegde, Colin Gonsalves,
     Dr. S. Muralidhar, A.D.N. Rao, Sr. Advs., Karan Sharma, Karmanbir
     Singh, Harshit Anand, Abhishek Babbar, Mohit Siwach, Rishabh
     Sharma, Ms. Hrishika Jain, Ms. Princy Sharma, Ms. Mreganka
     Kukreja, Ms. Natasha Maheshwari, Ms. Devyani Gupta, Ms.
     Aparajita Jamwal, Gautam Bhatia, Nizam Pasha, Rishabh Parikh,
     Rahul Narayan, Ms. Arjoo Rawat, Ms. Saushriya Havelia, Ms. Tanvi
     Anand, Ms. Rupali Samuel, Thomas Franklin Caesar, S. Gowthaman,
     V. Puneedhan, Dhuli Venkata Krishna, Selvam P, Sameer Aslam,
     Samar Vijay Singh, Resham Singh, Ms. Roopa Paul, H.L. Chumber,
     Ms. Sunita Bhardwaj, Parveen Paul, Ms. Vasundhara Rana, Rahul
     Kumar, Satyendra Kumar, Anandh Kannan N., Ms. Kavya Jhawar,
1340                                                    [2024] 8 S.C.R.

                   Digital Supreme Court Reports


    Ms. Nandini Rai, R.K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, P.S.
    Bhagat Singh, V. Subramanian, Ajay Chaudhary, Praveen Pathak,
    Ram Bhadauria, Robin Khokhar, Devendra Singh, K. Seshachary,
    Sanchar Anand, Anant Kumar Vatsya, Ms. Poonam Datta, Ms.
    Yashswini, Nikhil Hooda, Gajinder Chauhan, Kaushal Yadav, Ms.
    Lubna Naaz, Nandlal Kumar Mishra, Aditya Pushkal Khanna, Ms.
    Arushi Jain, Ram Kishor Singh Yadav, Ms. Ramya Khanna, Ms.
    Vidhi Jain, Dr. Sushil Balwada, Dr. Rashmi Khanna, Dr. Ajay Kumar,
    Dr. Vikas Pahal, Ms. Shilpita, Mrs. Anila Bharti, Arjun Raghuvanshi,
    Arpit Kumar, Ritul Tandon, Dr. Monika Gusain, Gauraan, Abhishek
    Sharma, Shrutanjaya Bhardwaj, Hariom Yaduvanshi, Ms. S. Harini,
    Ankit Swarup, Rohit Kumar Singh, Neelmani Pant, Ms. Apoorva Singh,
    Rishi Bhargava, Ms. Yashvi Aswani, Ms. Rajlakshmi, Ms. Supriya
    Juneja, Apoorv Kurup, Shailesh Madiyal, Kanu Agrawal, Mrs. Sonali
    Jain, Raman Yadav, Chitvan Singhal, Kartikay Aggarwal, Abhishek
    Kumar Pandey, Amrish Kumar, Gurmeet Singh Makker, Ms. Sonali
    Jain, Chitvan Sinhal, Anmol Chandan, Saurabh Mishra, Mukesh
    Kumar Maroria, Rajat Nair, Tadimalla Bhaskar Gowtham, Vatsal Joshi,
    Bhuvan Kapoor, Krishna Kant Dubey, Ms. Indira Bhakar, Shashwat
    Parihar, Rajesh Singh Chauhan, Vinayak Sharma, Karanbir Singh, Ms.
    Nupur Kumar, Aman Naqvi, Shadab Azhar, Ajit Kumar Ekka, Pratik
    R. Bombarde, R.S.M. Kalky, S.P. Singh, Sunil Kumar, Murari Lal,
    Dr. K. Elumalai, Ramesh Kumar, Sumit Kishore, Abhishek Chauhan,
    Bhim Kishore, Sandeep Malik, Ajit Kumar, Samarth Sagar, Sankalp
    Sagar, Mithu Jain, Sanchit Garga, Birendra Kumar Mishra, Ms.
    Poonam Atey, Hemendra, Sirajuddin, Balbir Singh Sewak, Ripudaman
    Singh Sidhu, M.F. Philip, Ms. Purnima Krishna, Ms. Aishwarya Dash,
    Ms. Farah Hashmi, Karamveer Singh Yadav, Prashant, Sanjay
    Kumar Visen, Kuldeep Singh Kuchaliya, Neelesh Singh Rao, Prativa
    Prakash Janapriya Nayak, Mrs. Sangeeta Singh, Ms. Sarvshree,
    Mrs. Niranjana Singh, Ms. Japneet Kaur, G. Balaji, Ms. Shivali
    Chaudhary, Ms. Vriti Gujral, Ananvay, Poorna Chandan, Sandeep
    Kumar Jha, Kumar Vaibhaw, Ms. Devina Sehgal, Seehzan Hashmi,
    Vineet George, Anas Tanwir, Shahrukh Ali, Ebad Ur Rahman, Ms.
    Stuti Shrivastav, Ms. Riyal Suryawanshi, Ankit Tiwari, Tanay Hegde,
    Satya Mitra, Ms. Hetvi Patel, P. Venkateshan, Bankey Bihari Sharma,
    Ms. S. Janani, Rahul Gupta, R.V. Kameshwaran, Ravi Prakash,
    Tushar Bakshi, Shakti Kanta Pattanaik, Mrs. Naresh Bakshi, Raj
    Kumar Gupta, Shekhar Kumar, Santosh Krishnan, MA Karthik,
    Maitreya Subramaniam, Ms. Pallak Bhagat, Girish Chowdhary,
[2024] 8 S.C.R.                                                   1341

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     Ms. Deepshikha Sansanwal, Ms. Vasundhra Rana, Rakesh Dahiya,
     Brij Bhushan, Vishal Prasad, Abhay Anil Anturkar, Dhruv Tank,
     Aniruddha Awalgaonkar, Ms. Surbhi Kapoor, Ms. Deepanwita
     Priyanka, B.K. Satija, Dr. Vinod Kumar Tewari, Vishwanathan
     Iyer, Aman Roop Sharma, Ms. Shymphy Sharma, Pramod Tiwari,
     Vivek Tiwari, Ms. Jyoti Mehra, Ms. Madhusmita Bora, Nishe Rajen
     Shonker, Sunny Choudhary, Prateek Bhatia, Aaditya Aniruddha
     Pande, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh,
     Aditya Krishna, Ms. Raavi Sharma, Ajay Pal, D. Kumanan, Sheikh
     F Kalia, Mrs. Deepa. S, Veshal Tyagi, Vishwa Pal Singh, Dhawal
     Uniyal, Ashish Pandey, Mukesh Kumar, Srikant Singh, Ashutosh
     Bhardwaj, Prateek Rai, Shubham Saxena, Sanjeev Kaushik,
     Ms. Anvita Dwivedi, Ms. Astha Sharma, Shreekant Neelappa
     Terdal, Abhimanyu Tewari, Ms. Eliza Bar, Pukhrambam Ramesh
     Kumar, Karun Sharma, Ms. Anupama Ngangom, Ms. Rajkumari
     Divyasana, Avijit Mani Tripathi, Ms. K. Enatoli Sema, Ms. Limayinla
     Jamir, Amit Kumar Singh, Ms. Chubalemla Chang, Prang Newmai,
     Sameer Abhyankar, Ms. Vani Vandana Chhetri, Ms. Nishi Sangtani,
     Ms. Zinnea Mehta, Aakash Thakur, Vatsalya Vigya, Dr. Ashok
     Siddhartha Priya Ram Singh, Dharma Dutt Verma, Rohit Verma,
     Vivek C. Solshe, Varun V. Solshe, Anjani Kumar Jha, P. Venkatesan,
     Ronak Karanpuria, Parteek Kumar, Jai Wadhwa, Akarsh Jain, Ankit
     Swarup, Annam Venkatesh, P. Soma Sundaram, Krishan Kumar,
     Vipin Kumar Jai, Raj Bahadur Yadav, Ms. Shraddha Deshmukh,
     Ms. Charanya Lakshmikumaran, Rahul Jajoo, Veeradasu Vankata
     Rathnam, Y.K. Viswanath, A. Veeresh Kumar, Kashapogu Suresh,
     Dr. Manoj Gorkela, Ms. Sitwat Nabi, Ms. Raina Anand, Varun
     Kumar, M/s. Gorkela Law Office, S. Prabu Ramasubramanian,
     A Manoj Kumar, K. Paari Vendhan, M/s. Nuli & Nuli, Vivek Sharma,
     Sanjay Jain, Raghunatha Sethupathy B, Vikalp Mudgal, Ms. Jyoti
     Mendiratta, M/s. Mukesh Kumar Singh & Co., Sravan Kumar Karanam,
     Potturi Suresh Kumar, Pusa Mallesh, Ms. Pranali Tayade, Mrs. Medha
     Singh, P. Santhosh Kumar, Ms. Shireesh Tyagi, Mrs. B. Renuka
     Devi, Mrs. Mamatha Ralla, V.K. Biju, Anirudha Purushotham, Abhay
     Pratap Singh, Mrs. Ria Sachthey, Chetanya Singh, Shaji George,
     Dr. Ranjeet Bharti, Mayank Pandey, Ms. Viajy Lakshmi, Mrs. Rubina
     Jawed, Amlendu Kumar Akhilesh Kumar Jha, Mrs. Rekha Pandey,
     Nitin Meshram, Ashutosh Dubey, Advs. for theappearing parties.
     Applicant-in-person.
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                       Judgment / Order of the Supreme Court

                                             Judgment
       Dr Dhananjaya Y Chandrachud, CJI
                                                   INDEX*

        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
                      a. Indra Sawhney did not exclude sub-classification
                          within the Scheduled Castes ..........................                      69

* Ed. Note: Pagination as per the original Judgment.
[2024] 8 S.C.R.                                                                              1343

           The State of Punjab & Ors. v. Davinder Singh & Ors.



           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


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.
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       A.      Background
       i.      Relevant constitutional provisions
2.     Article 14 of the Constitution stipulates that the State shall not deny
       to any person equality before the law or the equal protection of laws
       within the territory of India. Article 15(1) states that the State should
       not discriminate against any citizen on grounds only of religion, race,
       caste, sex, place of birth or any of them. Article 15(4) stipulates that
       nothing in Article 15 shall prevent the State from making any special
       provision for the advancement of any socially and educationally
       backward classes of citizens or for the Scheduled Castes and the
       Scheduled Tribes.1
3.     Article 16 deals with equality of opportunity in matters of public
       employment. Clause (1) of Article 16 guarantees equality of opportunity
       for all citizens in matters relating to employment or appointment to
       any office under the State. Clause (2) stipulates that no citizen shall
       be discriminated in or be ineligible for any employment or office under
       the State on the grounds only of religion, race, caste, sex, descent,
       place of birth, residence or any of them. Clause (4) of the provision
       states that nothing in Article 16 shall prevent the State from making
       any provision for the reservation of appointments or posts in favour
       of any backward class of citizens, which in the opinion of the State,
       is not adequately represented in the services under the State.2
4.     Article 366(24) of the Constitution defines the term ‘Scheduled Castes’
       to mean such castes, tribes or parts of or groups within such castes,
       races or tribes as are deemed under Article 341 to be Scheduled
       Castes for the purposes of the Constitution. Article 341(1) grants the
       President the power to notify the castes, races or tribes (or parts
       of or groups within castes, races or tribes) which shall be deemed
       to be Scheduled Castes for a State or a Union Territory for the
       purposes of the Constitution. The President has been empowered
       to issue the notification with respect to a State in consultation with
       the Governor of the State. Article 341(2) stipulates that Parliament
       may by law include or exclude any caste, race, or tribe (or part of


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.”
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.”
[2024] 8 S.C.R.                                                                                          1345

              The State of Punjab & Ors. v. Davinder Singh & Ors.


       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) Parliament may by law include or exclude from the
               list of Scheduled Castes specified in a notification issued
               under clause (1) any caste, race, or tribe or part of or
               group within any caste, race or tribe, but save as aforesaid
               a notification issued under the said clause shall not be
               varied by any subsequent notification.”
5.     Articles 3423 and 342-A4 relate to notification of Scheduled Tribes
       and socially and educationally backward classes respectively and
       contain provisions pari materia to Article 341.
       ii.     The genesis of the reference to the Constitution Bench
6.     The State Legislature of Punjab enacted the Punjab Scheduled
       Castes and Backward Classes (Reservation in Services) Act 2006.5


3    Article 342. Scheduled Tribes.-(1) The President may with respect to any State or Union territory, and
     where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes
     or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes
     of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the
     case may be.
     (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a
     notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or
     tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by
     any subsequent notification.
4    Article 342A. Socially and educationally backward classes.—(1) The President may with respect to any
     State or Union territory, and where it is a State, after consultation with the Governor thereof, by public
     notification, specify 6 [the socially and educationally backward classes in the Central List which shall for
     the purposes of the Central Government] be deemed to be socially and educationally backward classes
     in relation to that State or Union territory, as the case may be.
     (2) Parliament may by law include in or exclude from the Central List of socially and educationally
     backward classes specified in a notification issued under clause (1) any socially and educationally
     backward class, but save as aforesaid a notification issued under the said clause shall not be varied by
     any subsequent notification.
5    “Punjab Act”
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      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. Section 4(2)
      provides that reservation of twenty-five percent shall be made for the
      members of the Scheduled Castes and twelve percent for Backward
      Classes while filing up vacancies by direct recruitment in services.
      Section 4(5) stipulates that fifty percent of the vacancies of the
      quota reserved for the Scheduled Castes in direct recruitment shall
      be offered to Balmikis and Mazhabi Sikhs, if available, as a first
      preference from amongst the Scheduled Castes.
7.    Proceedings were instituted under Article 226 of the Constitution
      for challenging the validity of Section 4(5) of the Punjab Act.
      By a judgment dated 29 March 2010, the High Court of Punjab
      and Haryana declared Section 4(5) unconstitutional, relying on the
      judgment of the Constitution Bench of this Court in EV Chinniah v.
      State of Andhra Pradesh.6
8.    Opposing the State’s appeal against the order of the High Court,
      the respondents relied upon the judgment of the Constitution Bench
      in Chinnaiah (supra). The State submitted that Chinnaiah (supra)
      does not apply to the controversy in hand and that the decision is
      in any event, not consistent with the judgment of the nine-Judge
      Bench in Indra Sawhney v. Union of India.7 On 20 August 2014, a
      three-Judge Bench referred the correctness of Chinnaiah (supra) for
      consideration by a larger Bench. The three-Judge Bench observed
      that the judgment needs to be revisited, considering Article 338, the
      judgment of this Court in Indra Sawhney (supra) and the interplay
      between Article 16 and Articles 338 and 341 of the Constitution.
9.    On 9 November 1994, the Government of Haryana issued a
      notification8 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


6    [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394
7    (1992) Supp. 3 SCC 217
8    Notification No.22/5590-3-GS/111
[2024] 8 S.C.R.                                                       1347

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      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.
10. The State Legislature of Tamil Nadu enacted the Tamil Nadu
    Arunthathiyars (Special Reservation of seats in educational institutions
    including private educational Institutions and of appointments or posts
    in services under State within the Reservation for the Scheduled
    Castes) Act 2009.9 The long title to the legislation states that it
    is an Act to provide for reservation of seats to Arunthathiyars in
    educational institutions, including private educational institutions in
    the State and for appointment in services under the State. The Tamil
    Nadu Act defines Arunthathiyars to mean the castes of Arunthathiyar,
    Chakkiliyan, Madari, Madiga, Pagadi, Thoti and Adi Andhra from the
    list of seventy-six Scheduled Castes notified by the President under
    Article 341, as amended from time to time.10 Section 3 stipulates
    that sixteen per cent of the seats reserved for the Scheduled Castes
    in educational institutions shall be offered to the Arunthathiyars, if
    available, having regard to the social aand educational backwardness
    of the community. Section 4 makes a similar provision for the



9    “Tamil Nadu Act”
10   Tamil Nadu Act; Section 2(a)
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      Arunthathiyars in recruitment to Government posts.11 Proceedings
      under Article 32 of the Constitution were instituted before this Court
      for challenging the constitutional validity of the Tamil Nadu Act on the
      ground that it contravenes the judgment of this Court in Chinnaiah
      (supra). 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   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
[2024] 8 S.C.R.                                                        1349

             The State of Punjab & Ors. v. Davinder Singh & Ors.


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.
15. Justice Hegde examined whether the Andhra Pradesh Act tinkered
    with the Presidential List notified under Article 341 and held that the
    States have no power to deal with the Scheduled Castes except the
    maintenance of efficiency of administration. Justice Hegde observed
    that certain members of the Constituent Assembly sought to give
    power to the States to interfere with the list but the amendments
    to that effect were unsuccessful. Analysing the opinion of Justice
    Hegde, the following formulations emerge:12
      a.      The Scheduled Castes form a class by themselves 13 as
              elucidated in the opinions of Justice Krishna Iyer and Justice
              Fazl Ali in State of Kerala v. NM Thomas;14


12   Chinnaiah (supra) [Justice Hegde, 13-19].
13   Chinnaiah (supra) [Justice Hegde, 20-26].
14   Chinnaiah (supra) [Justice Hegde, 82, 135 and 169].
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       b.     The purpose of the Act was to divide the castes in the
              Presidential List and then to distribute the 15% reservations for
              the Scheduled Castes in the state among four groups. The Act
              did not provide reservations for the first time but redistributed
              them by sub-classifying the Scheduled Castes. Reservations
              are not a constitutional mandate and once the state has fulfilled
              the obligation to reserve certain seats under Articles 15(4) and
              16(4), it cannot apportion reservations among sub-classes.
              Notwithstanding the purpose of such sub-classification, the State
              cannot claim legislative competence under Entry 41, List II and
              Entry 25, List III of the Seventh Schedule in order to divide the
              Scheduled Castes’ List. The pith and substance of the law in
              question was not traceable to these entries;15
       c.     The Scheduled Castes constitute a class, and a classification
              already exists. The issue was whether a further classification
              is permissible within this class with the objective of providing
              reservations.16 The rationale of Indra Sawhney (supra), to
              the extent that it permitted sub-classification of the Other
              Backward Classes,17 did not apply to the Scheduled Castes.18
              Sub-classification was akin to giving preference to a ‘miniscule
              proportion’ of the Scheduled Castes, over other groups and
              would be impermissible in view of Article 14;19 and
       d.     The Constitution creates a legal fiction in terms of which the
              Scheduled Castes constitute a “class as a whole”. The States
              cannot sub-divide them. Such a sub-classification would tinker
              with the Presidential list and violate Article 14. If the benefits
              of reservation are not being distributed equitably, they can be
              supplemented by additional measures such as training, which
              would not be contrary to Articles 14 and 15.20 A further sub-
              classification amongst the Scheduled Castes would not be
              reasonable and a uniform yardstick must be adopted to give
              benefits to the Scheduled Castes.21


15   Chinnaiah (supra) [Justice Hegde, 30-31]
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.
[2024] 8 S.C.R.                                                                                     1351

              The State of Punjab & Ors. v. Davinder Singh & Ors.


16. In his concurring opinion, Justice HK Sema held that the purpose
    of reservations is to afford special protection to the members of the
    Scheduled Castes and Scheduled Tribes as a homogenous class of
    persons. Further classification of this class of people would amount to
    tinkering with the Presidential List. This regrouping of a homogenous
    group would, also amount to reverse discrimination and be violative
    of Article 14.22
17. In his concurring opinion, Justice SB Sinha held that Indra Sawhney
    (supra), while determining whether backward classes could be divided
    into more backward and backward classes, was not dealing with
    Scheduled Castes.23
      In that context, Justice Sinha observed:
      a.      Unlike the Other Backward Classes, Scheduled Castes and
              Scheduled Tribes are treated as a separate class by the
              Scheduled Castes and Tribes Orders;24
      b.      The State had failed to establish the reasonableness of its
              classification among the Scheduled Castes;25
      c.      The Relli Community was the most backward community and
              hardly received any benefits of reservations. On the other
              hand, the Adi Andhra community was numerically larger and
              educationally better off compared to the Rellis. Both these groups
              were placed in Group A and Group D respectively and each
              was given the same 1% share in total reservations. The Act
              thus wrongly treated them alike despite apparent differences,
              without any basis;26
      d.      Micro-classification was impermissible under Article 14;27



22   Chinnaiah (supra) [Justice Sema, 49, 50]
23   Chinnaiah (supra) [Justice Sinha, 75]
24   Chinnaiah (supra) [Justice Sinha, 77]
25   Chinnaiah (supra) [Justice Sinha, 81]
26   Chinnaiah (supra) [Justice Sinha, 97]
27   Chinnaiah (supra) [Justice Sinha, 98]. Relied on Triloki Nath v. State of J&K [1969] 1 SCR 103; State of
     UP v. Pradip Tandon 1975 1 SCC 267; Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India
     (1981) 1 SCC 246.
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      e.      Backwardness of the class was the link holding this class together
              and a classification that is justifiable based on backwardness
              of the class cannot be based on backwardness of the caste;28
      f.      Article 16(4) must be read with Article 335 and efficiency of
              administration cannot be sacrificed to benefit some castes out
              of the homogenous Scheduled Castes;29 and
      g.      The validity of the sub-classification and not the extent of the
              reservation was in question. Therefore, the argument that the
              States have the prerogative to decide the extent of reservations
              was inapplicable.30 The State could certainly stipulate the
              legislative policy about the extent of reservations but it could
              not take away the benefit of reservations on the ground that
              certain groups among the Scheduled Castes have advanced
              in the hierarchy.31
      iv.     The reference
18. On 27 August 2020, in State of Punjab v. Davinder Singh,32 a
    Constitution Bench held that the judgment in Chinnaiah (supra)
    requires to be revisited by a larger Bench of seven Judges because
    it failed to consider significant aspects bearing on the issue. These
    aspects have been formulated thus:
      a.      In Indra Sawhney (supra),33 this Court held that it is constitutional
              to classify the backward class into the ‘backward’ and the ‘more
              backward’ class of citizens. The provisions of Articles 341, 342,
              and 342A are pari materia. That being the case, this Court has
              to analyse how a contrary conclusion to the effect that sub-
              classification is permissible within the Backward Class but not
              within the Scheduled Castes, could be reached. In Indra Sawhney
              (supra) the phrase “Backward Classes” in Article 16(4) was
              interpreted to include both socially and educationally backward
              classes and the Scheduled Castes and Scheduled Tribes;34


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] 10 SCR 857 : (2020) 8 SCC 1
33   (1992) Supp. 3 SCC 217 [Justice Reddy,803];[Justice Sawant, 524 and 525]
34   (2020) 8 SCC 1 [42]
[2024] 8 S.C.R.                                                           1353

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      b.      The Scheduled Castes are not a homogenous class. 35
              Preferential treatment can be given to the most downtrodden
              of the class who are not adequately represented. Such a sub-
              classification is made to provide equality of opportunity, so as
              to achieve the purpose of reservation;36
      c.      It would be open to the State, under Article 16(4), to grant the
              benefits of reservation on a rational basis to certain castes
              within the Scheduled Castes by fixing a reasonable quota of the
              reserved seats for them if they are inadequately represented;37
              and
      d.      Preferential treatment to certain castes would not lead to
              the exclusion of other castes from the list prepared under
              Article 341.38 In Jarnail Singh v. Lachhmi Narain Gupta,39 this
              Court observed that the exclusion of the “creamy layer” from
              the Scheduled Castes for securing the benefit of reservation
              does not tinker with the Presidential List under Article 341. All
              the castes included in the list of Scheduled Castes are given
              the benefit of reservation even if they are sub-classified.
      B.      Submissions
19. The submissions of the counsel were restricted to the issue of
    whether the judgment of this Court in Chinnaiah (supra) requires
    to be reconsidered since the High Court had held that the Punjab
    Act and the Haryana Notification were unconstitutional solely for the
    reason that they are contrary to the above judgment.
      i.      Submissions of Petitioners
20. Mr Gurminder Singh, Advocate General for the State of Punjab and
    Mr Shadan Farasat, Additional Advocate General made the following
    submissions:
      a.      The judgment in Chinnaiah (supra) erroneously treats the
              Scheduled Castes as an indivisible monolith/block;


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]
38   (2020) 8 SCC 1 [35]
39   [2018] 10 SCR 663 : (2018) 10 SCC 396
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      b.      Preferential treatment promotes substantive equality.
              Chinnaiah (supra) is against the very idea of reservations
              which mandates protective discrimination based on relative
              backwardness;
      c.      Justice SB Sinha’s judgment in Chinnaiah (supra) is self-
              contradictory. While it recognizes inter-se disparity among the
              Scheduled Castes, it holds the remedy to address this disparity
              to be unconstitutional. Once inter-se disparity is acknowledged,
              sub-classification of the class would be in pursuance of
              substantive equality;
      d.      The State has the power to sub-classify because the enabling
              power to reserve seats includes ancillary and supplemental
              provisions such as preferences, concessions and exemptions;
      e.      In Indra Sawhney (supra) this court has recognised internal
              differences between castes.40 Sub-classification within a class
              aligns with the opinion of Justice Mathew in NM Thomas (supra)
              holding that further classification within the class was possible;41
      f.      The Scheduled Castes are not a homogenous group but
              face varying degrees of discrimination. The first part of the
              obligation under Article 16(4) to ascertain backwardness has
              been accomplished by the President and subsequently, by the
              Parliament under Article 341. The second part of the enquiry
              about ‘inadequate representation’ is a 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


40   Relied on Indra Sawhney (supra) [Justice Reddy, 802]
41   Relied on NM Thomas (supra) [Justice Mathew, 43]
[2024] 8 S.C.R.                                                                              1355

             The State of Punjab & Ors. v. Davinder Singh & Ors.


              (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
      j.      Article16(4) is not subject to Article 335. ‘Efficiency’ under
              Article 335 must be defined in an inclusive sense.
21. Mr Kapil Sibal, senior counsel made the following submissions:
      a.      The Constitution permits sub-classification. Article 366(34) which
              defines the Scheduled Castes envisages that even a part of a
              caste or a group may be included;
      b.      While Justice Mathew in NM Thomas (supra) noted that
              “they are no castes in the Hindu fold but an amalgam of
              castes …”, in Chinnaiah (supra), Justice Hegde replaced “they”
              with “there” in the above paragraph and noted instead, “there are
              no castes…”. This replacement completely alters the meaning
              of the quotation in NM Thomas (supra) which was that the
              Scheduled Castes and Scheduled Tribes are a conglomeration
              of groups placed outside of the caste hierarchy, and not that
              Scheduled Castes/Scheduled Tribes are homogenous;42
      c.      When Dr. B R Ambedkar stated in the Constituent Assembly that
              Article 341 is meant to “eliminate any kind of political factors” in
              “disturbing” the List, he was referring to inclusion and exclusion
              from the List. Sub-classification has no bearing on the power
              of inclusion and exclusion. Potential political tinkering cannot
              obviate the present constitutional need for acknowledging and
              remedying inter-se inequality among the Scheduled Castes;


42   Chinnaiah (supra) [Justice Hegde, 22] relying on NM Thomas (supra) [Justice Iyer, 135]
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      d.      Article 342A of the Constitution inserted by the Constitution
              (One Hundred and Second Amendment) Act 2018 empowers
              the President to notify socially and educationally backward
              classes. This Article is pari materia to Article 341 and Article 342.
              Sub-classification is permissible for Schedule Castes because
              Indra Sawhney (supra) permits sub-classification for the Socially
              and Educationally Backward Classes and after the inclusion of
              Article 342A, they are at par with the Scheduled Castes; and
      e.      Chinnaiah (supra) is not in line with empirical data collected
              by the State. According to the view of Justice Reddy in Indra
              Sawhney (supra),43 several castes or tribes within the Scheduled
              Castes and Scheduled Tribes are not similarly situated.
22. Mr Shekhar Naphade, senior counsel appearing on behalf of the
    State of Tamil Nadu submitted that:
      a.      Chinnaiah (supra) does not provide connecting links between
              Article 341 and subclassification. The plain meaning of
              Article 341 does not limit the power of the State legislature to
              classify the listed Scheduled Castes; and
      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).


43   Relied on Indra Sawhney (supra) [Justice Reddy, 795].
[2024] 8 S.C.R.                                                        1357

          The State of Punjab & Ors. v. Davinder Singh & Ors.


25. Mr R Venkataramani, Attorney General of India submitted that
    Articles 14 to 16 and Articles 341 and 342 operate in different fields.
    Mere designation under Article 341 does not entail homogeneity.
26. Mr Tushar Mehta, Solicitor General of India submitted that equality is
    not a static concept. It has evolved from the judgment of this Court
    in Champakam Dorairajan (supra), to Indra Sawhney (supra). Sub-
    classification is an issue of rationalising the affirmative action regime.
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 (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,
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     without ensuring that the rights accrue to them in proportion to their
     lack of representation. Sub-classification is therefore, essential for
     better representation of the weaker among the Scheduled Castes.
33. Mr Dama Sheshadri Naidu, Mr Rajesh Kumar Khanna, Mr Sidharth
    Luthra, senior counsel, and Dr Vivek Sharma, Mr Shivam Singh and
    Mr Sanjay Jain, counsel appearing on behalf of other Petitioners and
    Intervenors have adopted the above submissions.
     ii.   Submissions of Respondents
34. Mr Manoj Swarup, senior counsel made the following submissions:
     a.    The Scheduled Castes constituted by a notification issued by
           the President under Article 341(1) are a class in themselves.
           The latter part of Article 341(2) stipulates that no variation to
           the List is permitted except by a law enacted by Parliament.
           The class constituted by the Presidential notification can
           be interfered with only by Parliament under Article 341(2).
           As is evident from the Constituent Assembly debates on
           Article 341, Parliament is solely vested with the power to alter
           the Presidential list otherwise, the executive would tinker with
           the list to achieve political ends;
     b.    Upon the issuance of a notification by the President under
           Article 341, the castes notified are deemed to be Scheduled
           Castes for the purposes of the Constitution. The castes which
           are included in the Presidential list under Article 341 are
           heterogenous. However, once notified, the castes are put in an
           artificial mould of homogeneity by the deeming fiction;
     c.    The necessary effect of the preferential treatment to Balmiki
           Sikhs and Mazhabis in the fifty percent seats reserved for
           Scheduled Castes in Punjab is that the persons belonging to
           other Scheduled Castes are excluded from those seats;
     d.    None of the entries in the Seventh Schedule deal with Scheduled
           Castes. The only entry under which a law on reservation for the
           Scheduled Castes can be enacted is Entry 97 of List I. Thus,
           even if sub-classification of the Scheduled Castes is permissible,
           only Parliament and not the Legislature of the State has the
           power to enact such a law;
[2024] 8 S.C.R.                                                                            1359

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      e.      The National Commission for Scheduled Castes constituted
              under Article 338 can consider any new data sets or experiences
              of the Scheduled Castes and make recommendations. However,
              the power to alter the list solely vests with Parliament;
      f.      Courts through a judicial exercise cannot include or exclude any
              caste from the list of Scheduled Castes or Scheduled Tribes
              notified by the President;44
      g.      Classification within the Scheduled Castes is based on caste
              which is impermissible by virtue of Article 16(2); and
      h.      Contrary to the submissions of the petitioners, Chinnaiah
              (supra) discusses the interplay between Articles 16(4) and 341
              of the Constitution.
35. Mr Salil Sagar, senior counsel made the following submissions:
      a.      The direct impact and effects standard45 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 the application of the same principles to
              Scheduled Castes and Scheduled Tribes; and


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
45   Relied on IR Coelho v. State of Tamil Nadu (2007) 2 SCC 1
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      c.      Sub-classification of the Scheduled Castes cannot be held
              constitutional merely because Articles 341, 342 and 342-A are
              pari materia. The classes represented by the Scheduled Castes
              and the Other Backward Classes are distinct. Castes which are
              notified as Scheduled Castes have a feature of commonality;
              they all suffer from the historical injustice of untouchability.
36. Dr KS Chauhan, senior counsel made the following submissions:
      a.      In Indra Sawhney (supra), this Court held that a caste can be
              a class for the purposes of reservation under Article 16 if the
              caste is socially and educationally backward;46 and
      b.      In Indra Sawhney (supra), Justice Jeevan Reddy observed
              that Article 16(4) of the Constitution mainly contemplates that
              reservation must be on the grounds of social backwardness.
              There cannot be any further classification of the Scheduled
              Castes since all the castes which are notified as Scheduled
              Castes by the President share the commonality of social
              backwardness in the form of untouchability.
37. Mr Sanjay Hegde, senior counsel made the following submissions:
      a.      This Court in the judgments delivered after Indra Sawhney
              (supra) has observed that it was limited in its application to
              Other Backward Classes;47
      b.      In State of Kerala v. NM Thomas,48 this Court held that the
              Scheduled Castes constitute a class in themselves. Similar
              observations were made in Akhil Bharatiya Soshit Karamchari
              Sangh (Railway) v. Union of India;49
      c.      The notification issued by the President under Article 341 can
              be altered only by law made by Parliament;50



46   (1992) Supp. 3 SCC 217 [Justice Pandian, 57,60,67,82,95]; [Justice Jeevan Reddy, 782,784]
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] 1 SCR 906 : (1976) 2 SCC 310
49   [1981] 2 SCR 185 : (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
[2024] 8 S.C.R.                                                                                  1361

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      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.
38. Mr Mallela Venkata Rao, counsel submitted that the opinion of
    Justice SB Sinha in Chinnaiah (supra) that other forms of affirmative
    action must be employed to remedy inter-se backwardness
    within the Scheduled Castes is the appropriate and constitutional
    approach.
39. Mahendra Kumar Mitra, Petitioner-in-person appearing on behalf of
    Dr. Ambedkar Scheduled Castes Federation, Karnataka submitted
    that the recommendation of the Justice Usha Mehra Committee to
    include Clause (3) to Article 341 providing Parliament the power to
    sub-categorize castes upon a resolution received from the State was
    not accepted by the National Commission for Scheduled Castes.51
40. Anusuchit Jaati-Janjati Adhikari Evam Karamchari Sangh, a social
    welfare association submitted that sub-classification of the Scheduled
    Castes defeats the purpose of providing special reservation to
    Scheduled Castes.
41. Mr Saket Singh, appearing for the Haryana Pradesh Chamar
    Mahasabha, submitted that the deeming fiction in Article 341 creates
    a common identity of Scheduled Castes even though each caste
    within the list possesses a unique identity. Counsel further submitted
    that the Constitution would expressly provide a provision for the
    special treatment of certain castes where necessary.
42. Mr Vembadi Subramanian and Mr VK Biju, counsel, made submissions
    on the same lines.



51   3rd meeting of the National Commission for Scheduled Castes held on 13.12.2010 under the Chairmanship
     of Dr PL Punia.
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     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.
     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 social justice. Article 14 lays down general principles
[2024] 8 S.C.R.                                                                             1363

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      governing equality by postulating that there must be “equality before
      the law” and “equal protection of law”. In its formative years, this
      Court interpreted Article 14 through the lens of the classification
      doctrine52 which is premised on the recognition that formal equality
      in law, by which every person irrespective of their circumstances is
      treated alike, does not translate to factual equality. The underlying
      foundation of this doctrine is that two persons who are not similarly
      situated cannot be treated alike.53
47. Articles 15(1) and 16(1) were viewed as an elucidation of the
    equality principle housed in Article 14.54 However, the Courts were
    reticent in applying the doctrine of reasonable classification and its
    underlying assumption that ‘not all persons (and not all situations)
    are alike’ to the realm of reservation. The reason for the hesitation
    was that the means adopted (that is, reservation) were understood
    to not have relevance to securing equality of opportunity which was
    defined in terms of formal equality and efficiency.55 In the State
    of Madras (now Tamil Nadu), seats in Medical and Engineering
    colleges were apportioned among different groups in the proportion
    set forth in a Government Order called the “Communal GO”. Seats
    were apportioned in specific proportions for Non-Brahmins (Hindus),
    Backward Hindus, Brahmins, Harijans, Anglo-Indians, Christians
    and Muslims.56 In State of Madras v. Champakam Dorairajan,57
    a Constitution Bench of this Court held the reservation of seats
    in educational institutions on that basis to be unconstitutional and
    violative Article 29(2) which stipulates that no citizen shall be denied
    admission in any educational institution maintained by the State or
    receiving aid out of State funds on grounds only of religion, race,
    caste, language, or any of them. The Court observed that Article 29
    does not contain an exception clause such as Article 16(4) which
    would permit reservation of seats in educational institutions.



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.
57   [1951] SCR 525
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48. The State of Madras also notified that vacancies to the post of
    District Munsif would be filed on the basis of the Communal GO. In
    B Venkataramana v. The State of Madras,58 reservation of seats
    in services based on the Communal GO was challenged. The
    Constitution Bench observed that Article 16(4) permits the State to
    make provisions for ‘backward classes’ in the services if they are
    not adequately represented in the opinion of the State and that only
    Harijans and the backward Hindus can be considered as ‘backward
    classes’. The denial of admission to seats other than those reserved
    for Harijans and Backward Hindus, it was observed, would be a
    discrimination based on “caste,” violating Articles 16(1) and 16(2).
49. The above judgments adopted a formalistic and reservation-limiting
    approach in the reading of the constitutional provisions. In this
    approach, reservation was viewed as an exception to the principle
    of equal opportunity in Articles 15(1) and 16(1). This Court had
    recognized the principle of reasonable classification in Article 14
    before the decision in Champakam Dorairajan (supra). However, it
    did not transpose the principle to the realm of reservation.59 Even in
    Venkataramana (supra), this Court held that reservation in services
    is permissible only because the Constitution expressly provides for
    it. Reservation or any other form of affirmative action was regarded
    as antithetical to the equality principle and not a re-statement of it.
50. The Constitution was amended by the Constitution (First Amendment)
    Act 1951 to include Clause (4) in Article 15 to overcome the
    judgment in Champakam Dorairajan (supra). Despite the inclusion
    of Article 15(4), a formalistic reading of the equality code continued.
    In Balaji v. State of Mysore,60 this Court observed that Articles 15(4)
    and 16(4) are special provisions (or in other words, an exception
    to the principle of equality) while prescribing a cap of fifty per cent
    on the total seats to be reserved. It was in NM Thomas v. State of
    Kerala,61 that this Court undertook an expansive and substantive
    reading of the equality code. In that case, proceedings were instituted
    for challenging the constitutional validity of Rule 13AA of the Kerala


58   AIR 1951 SC 229
59   Article 15(4) was included in the Constitution by the Constitution (First Amendment) Act 1951 to
     overcome the judgment in Champakam Dorairajan.
60   [1963] Supp. 1 SCR 439 : AIR 1963 SC 649
61   (1976) 2 SCC 310; the seeds of the expansive approach were sowed by Justice Subba Rao in
     T Devadasan.
[2024] 8 S.C.R.                                                              1365

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      State and Subordinate Services Rules 1958 by which the qualifying
      criteria was relaxed for candidates belonging to the Scheduled
      Castes and Scheduled Tribes. The majority constituting the seven-
      Judge Bench interposed the principle of reasonable classification
      in Article 14 to Article 16(1)62 and observed that Article 16(4) is not
      an exception to the principle of equality of opportunity. Article 16(4),
      in the opinion of the Court, clarifies and explains the principle in
      Article 16(1).63 Chief Justice Ray observed that Article 16(1) will not
      be violated when the rule ensures “equality of representation in the
      services for unrepresented classes after satisfying the basic needs
      of efficiency of administration”.64 Chief Justice Ray’s opinion rests on
      two conceptual foundations. First, the goal of Article 16(1) is to ensure
      equality of representation while maintaining efficiency of service; and
      second, the beneficiaries must be the unrepresented class. Equality
      of opportunity was framed in the language of equal representation
      subject to these two caveats. Justice K K Mathew adopted a different
      approach. The learned Judge broke down the conceptual foundation
      of the equality provision in the following manner:
      a.      A criterion which is relevant to the apportionment of the good
              (that is, services) must be adopted;65
      b.      It must be determined if the relevant criterion leads to an a priori
              exclusion of a certain class. The State is required to identify if
              persons of all classes have an equal chance of satisfying the
              chosen criteria;66 and
      c.      There is a violation of the right to equal opportunity if the relevant
              criterion leads to a priori exclusion. In that case, a compensatory
              provision must be made to offset the disadvantage.67
51. In his concurring opinion, Justice Krishna Iyer observed that when
    two interpretations of Article 16(1) are available, that which ensures
    equal participation and fair representation in administration must be
    chosen.68


62   (1976) 2 SCC 310 [Ray CJI, 21]
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]
67   (1976) 2 SCC 310 [ Justice Mathew, 74]
68   (1976) 2 SCC 310 [Justice Krishna Iyer, 120]
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52. Thus, at the end of the first phase, it was clarified that the Constitution
    espouses a substantive vision of equality where reservation is not
    an exception but, as Justice Krishna Iyer observed in NM Thomas
    (supra), an “illustration of constitutionally sanctified” classification.69
    However, the Judges varied on the purpose of Article 16(1). While
    Chief Justice Ray defined equality in opportunity in terms of equality
    in representation and efficiency of service, Justice Mathew defined
    it in terms of equality in representation of the backward class.
    Additionally, Chief Justice Ray identified the beneficiary class as the
    ‘unrepresented’ class without laying down the basis of the under-
    representation. Justice Mathew on the other hand, identified the
    beneficiary class not merely on the basis of under-representation
    but on the cause for under-representation. It was this difference
    in the opinions that brooded over the post-NM Thomas era. In the
    subsequent section, we will discuss the impact of Chief Justice Ray’s
    reading of the principle of efficiency into Article 16 on the scope of
    reservation policies.
      II.     The “efficiency” of reservation
53. The expansive reading of the constitutional ideal of equality, noticed
    above, was not sufficient to realize the full potential of affirmative
    action. A barrier was raised through Article 335. Article 335
    emphasizes that the State shall maintain efficiency of administration
    while deciding the claims of the Scheduled Castes and the Scheduled
    Tribes in appointments to services.70 This Court, while deciding the
    following four important questions relating to reservations, placed
    considerable emphasis on the efficiency of service to limit the scope
    of reservation:
      a.      Whether reservation is limited to initial appointment;
      b.      If reservation is extendable to promotions, the method to be
              employed to ascertain seniority;


69   (1976) 2 SCC 310 [Justice Krishna Iyer, 136]
70   335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into
     consideration consistently with the maintenance of efficiency of service, in the making of appointments
     to services and posts in connection with the affairs of the Union or of a State. Provided that nothing in
     this article shall prevent in making of any provision in favour of the members of the Scheduled Castes
     and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards
     of evaluation, for reservation in matters of promotion to any class or classes of services or posts in
     connection with the affairs of the Union or of a State.
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


       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.
54. In General Manager, Southern Railway v. Rangachari,71 the issue
    was whether Article 16(4) permits reservations in promotions. Writing
    for the majority of the Constitution Bench, Justice Gajendragadkar
    observed that though reservations in promotions are detrimental
    to “efficiency”, a reading of Article 16(4) to include reservations in
    promotions would further substantive equality72:
               “27. It is true that in providing for the reservation of
               appointments or posts under Article 16(4) the State has
               to take into consideration the claims of the members of
               the backward classes consistently with the maintenance
               of the efficiency of administration. It must not be forgotten
               that the efficiency of administration is of such paramount
               importance that it would be unwise and impermissible
               to make any reservation at the cost of efficiency of
               administration. That undoubtedly is the effect of Article
               335. Reservation of appointments or posts may
               theoretically and conceivably mean some impairment
               of efficiency; but the risk involved in sacrificing efficiency
               of administration must always be borne in mind when any
               State sets about making a provision for reservation of
               appointments or posts.”
                                                                        (emphasis supplied)


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.
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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 Gajendragadkar observed that though
    reservations in promotion will impair efficiency of administration, the
    social benefit of reservation will trump the cost of the impairment.
    Justice Wanchoo and Justice Ayyangar disagreed. According to the
    minority, an interpretation of Article 16(4) to include reservation in
    promotion would be contrary to the principles set out in Article 335.73
    Similarly, in CA Rajendran v. Union of India,74 this Court observed
    that restricting reservations only to Class III and Class IV posts was
    justified because Class I and Class II posts require candidates with
    higher efficiency which would not be achieved if promotional posts
    are reserved.75
56. The judgment in Rangachari (supra) was overruled in Indra Sawhney
    (supra). In Indra Sawhney (supra), this Court adopted the approach
    of the minority in Rangachari (supra), holding that reservations
    in promotions would dilute efficiency in administration.76 By the
    Constitution (Seventy-seventh Amendment) Act 1995, Parliament
    amended the Constitution to include Clause (4-A) into Article 16
    permitting reservation for the Scheduled Castes and the Scheduled
    Tribes in promotion.
57. The issue whether members of the Scheduled Castes and Scheduled
    Tribes should be considered senior to candidates of the general
    category (who were senior to the candidates of the reserved
    category in the feeder category)77 when they are being considered
    for subsequent promotion arose before this Court. In Union of India
    v. Virpal Singh Chauhan,78 this Court held that though the catch-up
    rule is not implicit in Article 16, it is a constitutionally valid practice



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.
78   [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684
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      to maintain “efficiency”.79 This was reiterated in Ajit Singh (I) v.
      State of Punjab.80 Justice NP Singh, writing for the three-Judge
      Bench observed that the process of appointments must balance
      both Article 16(4) and Article 335 and that the “principal object of a
      promotion system is to secure the best possible incumbents for the
      higher position”.81 Subsequently, Parliament amended Article 16(4-A)
      by the Constitution (Eighty-fifth Amendment) Act 2001 to overcome
      a series of judgments of this Court where the rule of consequential
      seniority in reservation was held to result in reverse-discrimination.
      Article 16(4-A), as amended by the Constitution (Eighty-fifth
      Amendment) Act 2001, enables the State to provide reservation in
      promotion with consequential seniority.
58. In Indra Sawhney (supra), Justice Jeevan Reddy writing for four
    Judges observed that relaxation of qualifying marks in promotion
    would result in inefficiency of administration. This position was
    reiterated by a two-Judge Bench in S Vinod Kumar v. Union of
    India.82 A proviso was included in Article 335 by the Constitution
    (Eighty-second) Amendment Act 2000 to overcome this aspect of
    the ruling in Indra Sawhney (supra) and Vinod Kumar (supra). The
    proviso provides that Article 335 does not prevent the State from
    relaxing the qualifying marks in any examination for reservation in
    promotion.
59. The method for calculating the permissible total percentage of
    reservation was another issue in which the “efficiency of administration”
    was used to limit the scope of reservation. This Court had held in
    Balaji (supra) and Indra Sawhney (supra) that reservation must not
    exceed 50 per cent. The State was faced with a peculiar situation
    where a sufficient number of persons from the reserved category
    was not available to fill the seats reserved for them. The issue was
    whether the unfilled seats of the reserved category could be carried
    over to the next year, and whether the carried forward vacancies
    could be counted while calculating the total percentage of reserved
    seats in that year.


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] Supp. 7 SCR 142 : (1996) 6 SCC 580
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60. In T Devadasan v. Union of India,83 the majority held that a carry
    forward of the unfilled vacancies of the reserved category to the next
    year will abrogate the equal opportunity principle and impair efficiency.
    Justice Subba Rao while dissenting, advocated for a harmonious
    reading of Articles 16, 46 and 335. Laying the groundwork for the
    jurisprudential development in NM Thomas (supra), the learned
    Judge observed that the phrase “any provision” in Article 16(4) is
    wide enough to include the carry forward rule. The observation of
    the majority that carrying forward the vacancies to the subsequent
    year is contrary to the equal opportunity principle was line with the
    judgment in Balaji (supra) because the judgment was delivered
    in the pre-NM Thomas (supra) era. However, besides the narrow
    interpretation of the equal opportunity principle, the concept of
    “efficiency” also weighed with the Court.
61. By the Constitution (Eighty-first) Amendment Act 2000, the Constitution
    was amended to include Article 16(5) by which the States are permitted
    to carry forward the unfilled seats of the reserved category to be
    filled up in the succeeding years. The challenge to the constitutional
    validity of Article 16(4-A) and 16(4-B) was rejected by the Constitution
    Bench in M Nagaraj v. Union of India84 where it was held that the
    efficiency of administration is only relaxed and not “obliterated” by
    the inclusion of Articles 16(4-A) and 16(4-B).85
62. As is evident from the discussion above, the jurisprudence in the
    second phase on questions involving the scope of reservation,
    evolved around the idea that reservation dilutes the efficiency in
    administration or to put it otherwise, reservation is anti-merit. The
    Constitution was amended to overcome this Court’s holding on
    each of the above issues, thereby overhauling the premise that
    reservation does not ensure efficiency in service. The Constitution,
    after the numerous turbulations within each of the issues traced,
    today advances a more substantive reading of the equality provision,
    expanding the sphere and the scope of reservation to ensure that
    the benefits trickle down to those who need it the most. However,
    traces of the friction between merit and reservation continue to persist


83   [1964] 4 SCR 680 : (1964) 4 SCR 680
84   [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212
85   (2006) 8 SCC 212 [108]
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      even after the amendments to Articles 16 and 335.86 This Court has,
      with a few divergences,87 continued to uphold the binary of merit
      and reservations. The understanding of the Courts at the end of this
      phase was that the scope of reservation must be expanded to ensure
      substantive equality in spite of its dilution of efficiency,88 thereby
      continuing to read the requirement of efficiency into Article 16(4).
      III.    The interplay of Article 16 and Article 335
63. In this section, we will discuss whether the principle in Article 335
    must be read as a limitation on the power of the State to provide
    reservations under Article 16. Article 335 provides that the claims
    of the members of the Scheduled Castes and the Scheduled Tribes
    shall be taken into consideration, consistently with the maintenance of
    efficiency of administration, in the making of appointments to services.
    The proviso to the Article states that the provision shall not prevent
    the “relaxation of qualifying marks in any examination or lowering
    the standards of evaluation”, for reservation of the Scheduled Castes
    and the Scheduled Tribes in matters of promotion.
64. Reservations under Article 16(4) are not restricted to the Scheduled
    Castes and Scheduled Tribes. The provision provides the State
    with the enabling power to provide reservations for the “backward
    classes” which are not adequately represented in the services of the
    State. The “backward class” encompasses more than the Scheduled
    Castes and the Scheduled Tribes. It encompasses all classes whose
    backwardness is attributable to social reasons.89 This includes other
    socially and educationally backward classes such as the Other
    Backward Class category, women and the disabled.
65. Applying the additional requirement of “efficiency of administration” only
    with respect to the exercise of power under Article 16(4) vis-à-vis the
    Scheduled Castes and the Scheduled Tribes would be discriminatory.
    Reading this requirement into Article 16(4) assumes that a dilution
    of the principle of efficiency in administration is the necessary effect


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
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]
89   See Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [116,117,492,788, 859(3)(e)]
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      of reservation for the Scheduled Castes and Scheduled Tribes while
      the same standard is not applied to reservations for Other Backward
      Classes. Though this Court has not expressly stated so in as many
      words, efficiency of administration was added as a requirement for
      the exercise of power under Article 16(4) to prevent discrimination
      between the Scheduled Castes/Scheduled Tribes and other Socially
      and Educationally Backward Classes. If the requirement of efficiency
      of administration in Article 335 was not read into Article 16, then
      the requirement would only apply to reservations for the Scheduled
      Castes and the Scheduled Tribes but not for the reservation of other
      socially backward beneficiary classes.90
66. However, such an interpretative exercise (that is, applying the
    principle of efficiency of service to restrict the power of the State to
    provide affirmative action policies) is contrary to the express language
    of Article 335 which is confined to the Scheduled Castes and the
    Scheduled Tribes. The preliminary 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,


90   The opinion of Justice Sawant in Indra Sawhney (supra), highlights this aspect:” 434: […] It cannot,
     however, be doubted that the same considerations will have to prevail while making provisions for
     reservation in favour of all backward classes under Article 16(4). To hold otherwise would not only be
     irrational but discriminatory between two classes of backward classes.”
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


      a complete removal of the qualifying marks would be.91 Even if
      the latter interpretation is accepted, it only goes to establish that
      securing higher marks in an examination does not contribute to
      higher efficiency and that securing a minimum mark (and not the
      highest) in the examination is sufficient to maintain efficiency of
      administration. Thus, a policy which allows for lower qualifying
      marks or standards of evaluation is by the proviso to Article 335
      not contrary to efficiency.
68. The only constitutional provision which refers to an examination for
    appointments to posts in services is Article 320 which stipulates
    that the Union and State Public Service Commissions must conduct
    examinations for appointments to the services of the Union and the
    State. An examination is an assessment to determine the proficiency
    of candidates and their suitability for the post. The Constitution
    does not prescribe the exact method of assessment which must
    be adopted for the examination. The Constitution also does not
    prescribe that the examination must be framed in a manner which
    would only assess skill sets accessible to certain classes of people.
    The principle of equality in opportunity in Article 16(1) is therefore the
    guide for the State while it is determining the method of examination.
    The examination or any method of distribution of posts must ensure
    factual equality. An examination leads to a priori exclusion if it only
    assesses the skill set that is accessible to specific classes. It is to
    offset this disadvantage that affirmative action policies are introduced
    for the distribution of posts.
69. The underlying premise of the decision in NM Thomas (supra) is
    that the distribution of public resources including seats in educational
    institutions and public services must be based on considerations of
    equality and justice. Thus, Article 335 is not a limitation on the exercise
    of power under Articles 16(1) and 16(4). Rather, it is a restatement of
    the necessity of considering the claims of the Scheduled Castes and
    the Scheduled Tribes in public services. 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).


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]
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70. This Court has previously challenged the binary of reservation and
    merit. In Devadasan (supra), Justice Subba Rao observed that there
    is no conflict between the provisions of Articles 16(4) and 335 and
    that the latter has no bearing on the interpretation of the former.
    Justice Rao observed that the former provision, is directory while
    the latter is a mandatory provision by which the State is required
    to consider the “claims”92 of the Scheduled Castes and Scheduled
    Tribes.93 Subsequently, in Vasanth Kumar (supra) Justice Chinnappa
    Reddy echoed this view. The learned Judge observed that reservation
    cannot be viewed as a conflict between the principles of merit and
    distributive justice. It is rather, the conflict between the haves and
    the have-nots.94
71. This line of reasoning was furthered in BK Pavitra (II) v. State of
    Karnataka,95 where this Court observed that the assumption of the
    critiques of reservation is that awarding opportunities in government
    services based on “merit” results in an increase in administrative
    efficiency.96 In BK Pavitra (II) (supra) and Neil Aurelio Nunes v.
    Union of India,97 this Court highlighted the folly of measuring “merit”
    based on the performance of candidates in a seemingly “neutral”
    selection process which is factually not neutral since the process
    does not provide equal opportunity to candidates belonging to classes
    which face widespread inequalities in accessing facilities required
    to ace the examinations.98 In Neil Aurelio Nunes (supra), a two-
    Judge Bench of this Court discussed the privileges that accrue to
    the advanced classes in the form of cultural capital which ensures
    that a child is unconsciously trained by the familial environment and
    the economic capital:
              “24. […] the privileges that accrue to forward classes
              are not limited to having access to quality schooling and
              access to tutorials and coaching centres to prepare for


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] 7 SCR 1086 : (2019) 16 SCC 129
96   (2019) 16 SCC 129 [129]
97   [2022] 1 SCR 970 : (2022) 4 SCC 1
98   Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1
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              a competitive examination but also includes their social
              networks and cultural capital) communication skills,
              accent, books or academic accomplishments) that they
              inherit from their family. […] Social networks based on
              community linkages) become useful when individuals seek
              guidance and advice on how to prepare for examination
              and advance in their career.”
72. One of us (DY Chandrachud J) writing for the Bench, observed that
    while examinations are a convenient method to allocate educational
    resources, they are not effective markers of merit, and that merit
    should be understood in terms of the social good of equality and
    inclusivity.99
73. Before concluding the discussion in this section, we deem it necessary
    to discuss the opinion of the nine-Judge Bench in Indra Sawhney
    (supra) on the binary of merit and reservation because this Bench
    sitting in a composition of seven is bound by the opinion of the larger
    Bench. The petitioners in that case argued that the necessary effect
    of reservation is the appointment of less meritorious persons while
    the respondents argued that marks obtained in an examination do
    not represent the inherent merit of the candidate. Justice B P Jeevan
    Reddy, authoring the plurality opinion, observed that it is not necessary
    to express their view on the competing visions of reservation and
    merit. However, the learned Judge observed that reservation is not
    anti-merit. The learned Judge made two conceptual observations:
    first, even if merit is not synonymous with efficiency in administration,
    its relevance and significance cannot be ignored. Reservations imply
    the selection of a less meritorious person;100 and second, members
    of disadvantaged sections, given the opportunity, would overcome
    the barriers and prove their merit.
74. Applying these two principles, Justice Jeevan Reddy held that:
    (a) the removal of minimum marks in qualifying examinations for
    the backward class is invalid; (b) there cannot be reservations in




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]
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
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       promotions;101 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. Justice Pandian also agreed with this view,102
       making it the view of the majority.
75. Justice Jeevan Reddy recognized that reservation is not anti-merit.
    Two constitutional amendments overruled the above aspects of the
    holding in Indra Sawhney (supra). These amendments altered the
    intersection between the exercise of power under Article 16(4) and
    Article 335. The Constitution (Seventy-seventh Amendment) Act 1995
    included Article 16(4-A) enabling the State to provide reservations
    for the Scheduled Castes and the Scheduled Tribes in promotions.
    The Constitution (Eighty-second) Amendment Act 2000 added the
    proviso to Article 335 stipulating that lowering the standards of
    evaluation will not be inconsistent with the maintenance of efficiency.
    The amendments recognize the difficulties and struggles faced
    by members of the Scheduled Castes and the Scheduled Tribes
    during promotions. In a formal sense, the criteria of selection for
    promotions a priori excludes the members of the Scheduled Castes
    and Scheduled Tribes because the criteria which are considered
    to be appropriate are not accessible to them. In a more informal
    but substantive manner, the members of the Scheduled Castes
    and the Scheduled Tribes are often unable to climb up the ladder
    because of the stigma of incompetence held against candidates
    who are selected through reservation. The stereotype operates
    against them because they are externalized as “affirmative action
    beneficiaries” or “quota candidates”.103 The amendments recognize



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]
102 Justice Pandian in Indra Sawhney (1992) Supp. 3 SCC 217 [243(11)]
103 See Ashwini Deshpande, Double Jeopardy? Stigma of Identity and Affirmative Action, The Review of
    Black Political Economy 2019, Vol. 46(I) 38-64
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       the discrimination through the operation of both human conduct
       and recruitment processes. They are an emphatic repudiation of
       the binary of reservation and merit.
       ii.    Permissibility of sub-classification under Article 14
76. In Chinnaiah (supra), one of the issues was “whether the impugned
    enactment creates sub-classification or micro-classification of
    Scheduled Castes”.104 Justice Santosh Hegde, writing for himself
    and two other Judges noted that according to the decision in
    NM Thomas (supra), all the castes in the list acquired a special status
    as a ‘class’ and that a classification for the purpose of reservation
    already existed. The learned Judge observed that the Scheduled
    Castes form a class by themselves and any further classification
    would violate the doctrine of reasonableness. 105 Justice Hegde
    observed that a class cannot be sub-divided to give more preference
    to a “miniscule proportion of the Scheduled Castes in preference to
    the other members of the same class”.106 In his concurring opinion,
    Justice Sema observed that further classification of the Scheduled
    Castes, who constitute a homogenous group would amount to
    “discrimination in reverse” and would run contrary to Article 14.107
    Justice Sinha observed that the Constitution permitted additional
    measures in respect of disadvantaged groups to bring them at
    par with the advantaged groups, but the class which requires the
    benefits of additional protection, cannot be discriminated inter se
    when both satisfy the test of abysmal backwardness and inadequate
    representation in public service.108 Justice Sinha further noted that
    the state had not discharged the burden of proving reasonable
    classification and the nexus of the classification with the purpose
    of the enactment.109
77. In Chinnaiah (supra), this Court held that the Scheduled Castes
    cannot be further classified for the purpose of reservation because
    they constitute an internally homogenous class by virtue of their


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]
108 Chinnaiah (supra) [Justice Sinha, 81]
109 ibid.
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       inclusion in the Presidential list and thus, as a class, groups within
       the Scheduled Castes cannot be treated differently. In view of the
       already existing classification of the Scheduled Castes under the
       Constitution, further classification and consequent preferential
       treatment were held to violate Article 14, as it would amount to a
       constitutionally proscribed ‘micro-classification’. To appreciate the
       correctness of this view of Article 14 and micro-classification, we must
       analyze the contours of the equality guarantee and permissibility of
       sub-classification under Article 14.
       a.      The contours of Article 14
78. Article 14 employs two expressions – equality before the law and
    equal protection of the laws. Both different in content and sweep.110
    “Equality before the law”-, an expression derived from the English
    Common law, entails absence of special privileges for any individual
    within the territory. It does not mean that the same law should apply
    to everyone, but that the same law should apply to those who are
    similarly situated.111 The expression “equal protection of the laws”
    means that among equals, laws must be equally administered.
    It enjoins the State with the power to reasonably classify those who
    are differently placed. The mandate of “equal protection of laws”
    casts a positive obligation on the state to ensure that everyone may
    enjoy equal protection of the laws, and no one is unfairly denied
    this protection. In essence, the guarantee of equality entails that all
    persons in like circumstances must be treated alike. That there must
    be a parity of treatment under parity of conditions.112 Equality does not
    entail sameness. The State is allowed to classify in a manner that is
    not discriminatory. The doctrine of classification gives content to the
    guarantee of equal protection of the laws.113 Under this approach,
    the focus is on the equality of results or opportunities over equality
    of treatment.114



110 Indra Sawhney (supra) [Justice Reddy,643]
111   Gauri Shankar v. Union of India, AIR 1995 SC 55
112 Indra Sawhney (supra), [Thommen J, 260]
113 HM Seervai, Constitutional Law of India, 4th Edition, Volume I, page 439.
114 Sandra Fredman, Substantive Equality Revisited, International Journal of Constitutional Law, Volume 14,
    Issue 3, 2016, 712-738.
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79. The Constitution permits valid classification if two conditions
    are fulfilled. First, there must be an intelligible differentia which
    distinguishes persons grouped together from others left out of the
    group. The phrase “intelligible differentia” means difference capable
    of being understood.115 The difference is capable of being understood
    when there is a yardstick to differentiate the class included and
    others excluded from the group.116 In the absence of the yardstick,
    the differentiation would be without a basis and hence, unreasonable.
    The basis of classification must be deducible from the provisions
    of the statute; surrounding circumstances or matters of common
    knowledge.117 In making the classification, the State is free to
    recognize degrees of harm.118 Though the classification need not be
    mathematical in precision, there must be some difference between
    the persons grouped and the persons left out, and the difference
    must be real and pertinent.119 The classification is unreasonable if
    there is “little or no difference”.120 Second, the differentia must have
    a rational relation to the object sought to be achieved by the law,
    that is, the basis of classification must have a nexus with the object
    of the classification.121
       b.      Sub-classification as a facet of equality
80. The first issue that arises for the consideration of this Court is
    whether the principle of sub-classification per se violates Article 14.
    It is established precept that Article 14 guarantees factual and not
    formal equality. Thus, if persons are not similarly situated in reference
    to the purpose of the law, classification is permissible. The same
    logic of classification equally applies to sub-classification. The law
    can further classify a class that is already created by law for a limited
    purpose if it is heterogeneous for another purpose. This Court has
    in multiple judgments held that such classification within a class is
    valid under Article 14.122


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]
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] 1 SCR 279; Budhan Choudhry v. State of Bihar [1955] 1
    SCR 1045
122 State of Kerala v. NM Thomas [Justice Mathew J, 83]; DS Nakara v, Union of India (1983) 1 SCC 305
    [Justice Desai, 48]
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81. To lay down the contours of the scope of sub-classification, it
    needs to be determined if the class is an integrated homogenous
    class. In All India Station Masters & Assistant Station Master’s
    Association v. General Manager, Central Railways,123 the issue
    before a Constitution Bench of this Court was whether ‘road-side
    Station Masters’ could be differentiated from Guards for the purpose
    of promotion to the higher post of Station Masters. Answering the
    issue in the affirmative, this Court held that the Station Masters and
    Guards did not form an integrated class since they were recruited
    and trained separately. Thus, a distinction between the two classes
    was held not to be violative of the equality code which only requires
    the State to treat equals equally. Similarly, in Mohd. Shujat Ali v.
    Union of India,124 another Constitution bench of this Court held that
    the distinction between graduate and non-graduate Supervisors for
    the purpose of promotion to the post of Assistant Engineer was valid
    because there was no integration between the two categories. The pay
    scale and even the nomenclature for the two classes were different.
82. In All India Station Masters (supra) and Mohd. Shujat Ali (supra),
    this Court did not specifically answer the question of whether there
    could be sub-classification within an integrated class. That issue
    arose for adjudication before this Court in State of Jammu and
    Kashmir v. Triloki Nath Khosa.125 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


123 [1960] 2 SCR 311 : AIR 1960 SC 384
124 [1975] 1 SCR 449 : (1975) 3 SCC 76
125 [1974] 1 SCR 771 : (1974) 1 SCC 19
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               The State of Punjab & Ors. v. Davinder Singh & Ors.


       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 a
    classification based on educational qualifications is a classification
    which is based on the source of service. This Court held that though
    persons were appointed from various sources such as promotion and
    direct recruitment, they came to be integrated into a common class of
    Assistant Engineers.126 However, despite this integration into a class,
    they could be validly classified based on educational qualifications
    because it was not a classification based on the source of service.
84. In this context, this Court cautioned that the judgment ought not to be
    interpreted as a justification for minute and microcosmic classifications
    and that the theory of classification could not be evolved through
    “imperceptible extensions”, diluting the very substance of the equality
    guarantee.127 Distinguishing the judgment in Roshan Lal Tandon v.
    Union of India,128 this Court observed in Triloki Nath (supra) that
    the issue in the former was whether the yardstick for integration (that
    is, the source of recruitment) could be used as a yardstick for further
    integration, which was not the issue in Triloki Nath (supra). Thus,
    Triloki Nath (supra) is the leading judgment for the proposition that


126 ibid, [YV Chandrachud J, 50]. “50. We are therefore of the opinion that though persons appointed directly
    and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes
    of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications.
    The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-
    holders does not violate Articles 14 and 16 of the Constitution and must be upheld.”
127 ibid, [YV Chandrachud J, 51]. “51. But we hope that this judgment will not be construed as a charter
    for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good
    governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has
    therefore to be adopted in order to harmonize the requirements of public services with the aspirations
    of public servants. But let us not evolve, through imperceptible extensions, a theory of classification
    which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal
    society is equality and so we must not be left to ask in wonderment: What after all is the operational
    residue of equality and equal opportunity?”
128 [1968] 1 SCR 185
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       an integrated class can be further classified if there is intelligible
       differentia and if the yardstick used has a nexus to the object of the
       provision.129
85. It is not a given that appointees of different sources form an
    integrated class merely upon their appointment to one post. Even
    upon integration, the groups retain their separate identity for other
    purposes. In Katyani Sayal v. Union of India,130 this Court held
    that the Assistant Officers of the Railways recruited through a
    competitive examination and those recruited on the recommendation
    of the Union Public Service Commission do not form an integrated
    homogenous class because the objects of recruitment, the tenure
    and even the appointing authority are different. In Col AS Iyer v.
    V Balasubramanyam,131 a Constitution Bench of this Court upheld
    Survey of India promotion rules that reserved 50% more posts
    for engineers drawn from the military than for civilian engineers.
    Justice Krishna Iyer, writing for the Bench, observed that the army
    engineers never merged into the Survey of India service, along with
    their civilian counterparts.
86. The judgment of this Court in DS Nakara v. Union of India132 has
    dwelt on the issue of sub-classification. In Nakara,133 a scheme which
    divided pensioners into two groups based on the date of retirement,
    to provide pension was challenged. A Constitution Bench held that
    pensioners formed a class. Notably, this Court, similar to Triloki
    Nath (supra), did not hold that sub-classification is impermissible
    merely because the pensioners constitute 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



129 See NM Thomas [Justice Mathew, 83]
130 [1980] 3 SCR 139 : (1980) 3 SCC 245
131 [1980] 1 SCR 1036 : (1980) 1 SCC 634
132 (1983) 1 SCC 305
133 ibid [48]
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               The State of Punjab & Ors. v. Davinder Singh & Ors.


       for the Bench, Justice D A Desai held that this Court while deciding
       if sub-classification is permissible must determine if the class is
       homogenous for the purpose of the law.134
87. Nakara (supra) goes a step further than Triloki Nath (supra) to state
    that the scope of sub-classification does not hinge on the yardstick
    which is used to integrate groups into a class but on the issue of
    whether the class is homogenous or integrated for the specific
    objective of the law. When a law integrates a class, such as diploma
    and degree holders, it integrates the class for the purpose of that
    specific law and not for all purposes. Thus, a class which is not
    similarly situated for the purpose of the law can be further classified.
    The test that the Court must follow to determine the validity of the
    sub-classification of a class is as follows:
       a.      Whether the class is “homogenous” or “similarly situated” for
               the purpose of the specific law;
       b.      If the answer to ‘a’ above is in the affirmative, the class cannot
               be sub-classified;
       c.      If the answer to ‘a’ above is in the negative, the class can be
               sub-classified upon the fulfilment of the following standard:
               i.      There must be a yardstick (or intelligible differentia) further
                       classifying the class; and
               ii.     The yardstick must have a rational nexus with the object
                       of the statute.
       c.      Micro-classification: the limits of sub-classification
88. The next issue which arises is whether there are any limits to sub-
    classification. In numerous judgments, this Court has held that
    the State must not micro-classify since such classifications would
    denude (rather than promote) the guarantee of equality, replacing
    the doctrine of equality with the doctrine of classification.135 When
    does sub-classification take the properties of micro-classification?



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?”
135 Mohammad Shujat Ali and Others v. Union of India (1975) 3 SCC 76 [Justice Bhagwati, 24-26]
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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:
              “9. Is this class of pensioners further divisible for the
              purpose of “entitlement” and “payment” of pension into
              those who retired by certain date and those who retired after
              that date? If date of retirement can be accepted as a valid
              criterion for classification, on retirement each individual
              government servant would form a class by himself because
              the date of retirement of each is correlated to his birth
              date and on attaining a certain age he had to retire. It is
              only after the recommendations of the Third Central Pay
              Commission were accepted by the Government of India
              that the retirement dates have been specified to be 12 in
              number being last day of each month in which the birth
              date of the individual government servant happens to fall. In
              other words, all government servants who retire correlated
              to birth date on attaining the age of superannuation in a
              given month shall not retire on that date but shall retire
              on the last day of the month. Now, if date of retirement
              is a valid criterion for classification, those who retire
              at the end of every month shall form a class by
              themselves. This is too microscopic a classification to
              be upheld for any valid purpose. Is it permissible or is it
              violative of Article 14?”
                                                                  (emphasis supplied)
90. All persons are unequal in one or the other aspect. In a given
    situation, even a single individual may be treated as a class by
    themselves.136 In that case, it is particularly important that laws do


136 Charanjit Chowdhury (supra) 833 [58]; Ram Krishna Dalmia (supra) [11]
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


       not micro-classify. The question of whether the classification amounts
       to a micro-classification which is impermissible under Article 14
       would depend on the facts of each case. However, the two crucial
       components of the standard of intelligible differentia prescribe the
       limits of sub-classification. The two components are (a) the purpose;
       and (b) the rational basis (or principle) for the differentiation. This
       Court has previously held that the purpose must be independent of
       the differentiation.137 The Court grants the State sufficient latitude
       in identifying the purpose, including the degrees of harm.138 The
       same degree of latitude is not accorded to the principle underlying
       the differentiation. It is not sufficient if the principle underlying the
       classification is relevant or shares a nexus to the purpose. The
       principle underlying the classification must be reasonable and
       rational.139 In Nakara (supra), this Court questioned the rationale
       of classifying the beneficiary class based on the date of retirement.
       In a concurring opinion in Navtej Singh Johar v. Union of India,140
       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 appointed the Mysore Backward Class Committee


137 Deepak Sibal v. Punjab University (1989) 2 SCC 145
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 [2018] 7 SCR 379 : (2019) 3 SCC 345
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       to advise it on the adoption of criteria for the determination of the
       socially and educationally backward class. Based on the report of
       the Committee, the State recommended the sub-classification of the
       Backward Class into the Backward Class and More Backward Class
       based on educational backwardness.141 In MR Balaji (supra) the
       Constitution Bench held the sub-classification of the backward class
       to be unconstitutional because it: (a) was solely based on caste;142
       and (b) devised measures for the benefit of “all” classes of citizens
       who are less advanced when compared to the most advanced class
       in the State which is not the scope of Article 15(4)143:
               “ 29. In this connection, it is necessary to add that the
               sub-classification made by the order between Backward
               Classes and More Backward Classes does not appear to
               the justified under Article 15(4). Article 15(4) authorises
               special provision being made for the really backward
               classes. In introducing two categories of Backward Classes
               what the impugned order, in substance purports to do is
               to devise measures for the benefit of all the classes of
               citizens who are less advanced, compared to the most
               advanced classes in the State, and that, in our opinion,
               is not the scope of Article 15(4). The result of the method
               adopted by the impugned order is that nearly 90% of the
               population of the State is treated as backward, and that
               illustrates how the order in fact divides the population of
               the State into most advanced and the rest, and puts the
               latter into two categories of Backward and More Backward.
               The classification of the two categories, therefore, is not
               warranted by Article 15(4).”



141 The criterion for the sub-classification was whether the standard of education in the community is less
    than 50% of the State Average. If it is, the community must be regarded as a more backward community.
    If it is not, then the community must be regarded as the backward community.
142 AIR 1963 SC 649 [25]
143 AIR 1963 SC 649 [29] This observation must be read along with the observation in Paragraph 21
    where this Court held that the test of relativity must not be used to determine the backward class:
    “21. In considering the scope and extent of the expression “Backward Classes” under Article 15(4), it is
    necessary to remember that the concept of backwardness is not intended to be relative in the sense that
    any classes who are backward in relation to the most advanced classes of the society should be included
    in it. If such relative tests were to be applied by reason of the most advanced classes, there would be
    several layers or strata of backward classes and each one of them may claim to be included under Article
    15(4).”
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


92. This view was critiqued by Justice O Chinnappa Reddy in Vasanth
    Kumar (supra). In Vasanth Kumar (supra), this Court was invited
    to deliver its opinion on reservations which may serve as a guideline
    to the Commission that the Government of Karnataka proposed to
    appoint for examining the question of reservation in education and
    employment sectors. In his concurring opinion, Justice Chinnappa
    Reddy observed that as a matter of principle, sub-classification
    within a reserved class is valid provided that both the classes are
    far behind the advanced class and that one of the classes is ahead
    of the most backward class.144 The learned Judge observed that the
    validity of the classification of the Backward Class into Backward
    and More Backward Classes may be open to adjudication on the
    facts of each case.
93. In Indra Sawhney (supra), an Office Memorandum which introduced
    a criterion giving preference for the poorer of the Socially and
    Educationally Backward Class was under challenge. The learned
    Judges diverged on the interpretation of the phrase “poorer”. Justice
    Pandian construed the phrase “poorer” in the Memorandum to
    mean economically weaker sections. Justice B P Jeevan Reddy,
    authoring the plurality opinion, construed the phrase “poorer” not in
    the economic sense but in the socio-economic sense. The learned
    Judges adopted a different approach while dealing with the issue of
    sub-classification owing to this divergence. Justice Pandian observed
    that preference for a section of the socially and educationally backward
    section would eliminate or exclude the other section of the class.145
    This observation 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.



144 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [55]
145 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [207(5)]
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        The Office Memorandum provided that the poorer section would
        have preference over all the seats reserved for a class, leaving the
        possibility of excluding the rest open.
94. Justice Jeevan Reddy observed that there is no constitutional or
    legal bar in classifying the backward class into backward and most
    backward class.146 The learned Judge held that sub-classification is
    valid for two reasons. First, there may be inter-se backwardness within
    same class and in such a situation, sub-classification ensures that
    the more backward of the class can secure the benefit.147 Second,
    the constitutional scheme expressly provides for sub-classification.
    Article 16(4) only identifies the beneficiary class as the “backward
    class” unlike Article 15(4) which expressly identifies the socially
    and educationally backward class, the Scheduled Castes and the
    Scheduled Tribes. The relevant observation is extracted below:
                “803. There is another way of looking at this issue. Article
                16(4) recognises only one class viz., “backward class of
                citizens”. It does not speak separately of Scheduled Castes
                and Scheduled Tribes, as does Article 15(4). Even so, it is
                beyond controversy that Scheduled Castes and Scheduled
                Tribes are also included in the expression “backward
                class of citizens” and that separate reservations can be
                provided in their favour. It is a well-accepted phenomenon
                throughout the country. What is the logic behind it? It is
                that if Scheduled Tribes, Scheduled Castes and Other
                Backward Classes are lumped together, OBCs will take
                away all the vacancies leaving Scheduled Castes and
                Scheduled Tribes high and dry. The same logic also
                warrants categorisation as between more backward and
                backward. We do not mean to say — we may reiterate —
                that this should be done. We are only saying that if a State
                chooses to do it, it is not impermissible in law.”


146 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [802]
147 “802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward
    classes as backward and more backward. We are not saying that it ought to be done. We are concerned
    with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us
    take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more
    points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/
    classes scored identical points. There may be some castes/groups/classes which have scored points
    between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot
    reasonably be denied that there is no difference between these two sets of castes/groups/classes.”
[2024] 8 S.C.R.                                                                                        1389

               The State of Punjab & Ors. v. Davinder Singh & Ors.


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 would lead to
    the exclusion of classes if the preference model is followed instead
    of the model whereby a percentage of seats are allotted to the most
    backward.148
97. The observations in Indra Sawhney (supra), elucidate the following
    three principles with respect to sub-classification:
       a.      Sub-categorization within a class is a constitutional requirement
               to secure substantive equality in the event that there is a
               distinction between two sections of a class;
       b.      Sub-classification must not lead to the exclusion of one of
               the categories in the class. A model that provides sufficient
               opportunities to all categories of the class must be adopted; and
       c.      Sub-classification among a class must be on a reasonable
               basis. Justice Sawant held that the distinction between the


148 “524.[…] To give an instance, the Mandal Commission has, on the basis of social, educational and
    economic indicators evolved 22 points by giving different values to each of the three factors, viz., social,
    educational and economic. Those social groups which secured 22 points or above have been listed there
    as “socially and educationally backward” and the rest as “advanced”. Now, between 11 and 22 points
    some may secure, say, 11 to 15 points while others may secure all 22 points. The difference in their
    backwardness is, therefore, substantial. Yet another illustration which may be given is from Karnataka
    State Government order dated October 13, 1986 on reservations issued after the decision in Vasanth
    Kumar [(1985) Supp. SCC 714 : [1985] Supp 1 SCR 352] where the backward classes are grouped into
    five categories, viz., A, B, C, D and E. In category A, fall such castes or communities as that of Bairagi,
    Banjari and Lambadi which are nomadic tribes, and Bedaru, Ramoshi which were formerly stigmatised
    as criminal tribes whereas in category D fall such castes as Kshatriya and Rajput. To lump both together
    would be to deny totally the benefit of special provisions to the former, the latter taking away the entire
    benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete
    with the advanced classes, would leave the latter without any seat or post. In such circumstances,
    the sub-classification of the backward classes into backward and more or most backward is not only
    desirable but essential.”
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              categories must be substantial. Justice Jeevan Reddy held
              that the sub-categorization must be reasonable.
        a.    Indra Sawhney did not exclude sub-classification within the
              Scheduled Castes
98.     In Chinnaiah (supra), this Court observed that the principles in
        Indra Sawhney (supra) on sub-classification of the Other Backward
        Class will not apply to the Scheduled Castes because the judgment
        specifically observed that it is only ruling on the sub-classification
        of the Other Backward Class and not the Scheduled Castes and
        the Scheduled Tribes.149 At two places in Indra Sawhney (supra),
        Justice Jeevan Reddy limited the observations to the Other Backward
        Classes and did not extend them to the Scheduled Castes and
        Scheduled Tribes. While dealing with the identification of the
        backward class of citizens under Article 16(4), the learned judge
        made the following observations:150
              “781. At the outset, we may state that for the purpose of
              this discussion, we keep aside the Scheduled Tribes and
              Scheduled Castes (since they are admittedly included within
              the backward classes), except to remark that backward
              classes contemplated by Article 16(4) do comprise some
              castes – for it cannot be denied that Scheduled Castes
              include quite a few castes.”
99.     These observations were made in the specific context of the
        recognition of the Scheduled Castes and the Scheduled Tribes as a
        separate class of beneficiaries under Article 15(5) and their absence
        in Article 16(4). Justice Jeevan Reddy noted that it is admitted
        that the Backward Class in Article 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



149 Chinnaiah v. State of AP (2005) 1 SCC 394 [Justice Santhosh Hegde, 38]; [Justice Sinha, 76]
150 (1992) Supp. 3 SCC 217 [781]
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


       Scheduled Castes and the Scheduled Tribes.151 This observation
       must also be understood in the context in which it was made. While
       discussing the necessity of the exclusion of the creamy layer of
       the Other Backward Class for the purposes of reservation, Justice
       Reddy observed that social backwardness is the connecting link in
       a class identified under Article 16(4). The learned Judge remarked
       that the class does not remain a homogenous class if some of the
       members of the class are socially forward. This Court noted that
       economic advancement can be a relevant criterion to exclude the
       creamy layer provided that the economic advancement is so high
       as to cause social advancement. The observation that this does
       not apply to the Scheduled Castes and Scheduled Tribes was
       made because they suffer from a more egregious form of social
       backwardness when compared to the Other Backward Class. The
       Court did not deem it necessary to decide the issue of whether the
       financial advancement of the members of the Scheduled Castes and
       Scheduled Tribes would cause social advancement since the issue
       in Indra Sawhney (supra) was only with respect to reservation for
       the Other Backward Class.
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


151 (1992) Supp. 3 SCC 217 [792]
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        identity as opposed to the Other Backward Class. But it is another
        issue to completely disregard the application of the principle of
        sub-classification to the Scheduled Castes on the ground that Indra
        Sawhney (supra) limited its application to the Other Backward
        Class. We do not find that the purport of the observations in Indra
        Sawhney (supra) on sub-classification was to limit it to the Other
        Backward Classes, to the exclusion of the Scheduled Castes. The
        principle of sub-classification was given judicial assent in Indra
        Sawhney (supra) to ensure that the principle of substantive equality
        is fulfilled. The principle of sub-classification will be applicable to the
        Scheduled Castes if the social positions of the constituents among
        the castes/groups is not comparable. In the subsequent section,
        we will analyze if Article 341 through the operation of the deeming
        fiction creates an integrated homogenous class that cannot be
        further classified.
        iv.   The import of the deeming fiction in Article 341
103. Article 366(24) defines the Scheduled Castes as the castes, groups,
     races or tribes which are deemed to be Scheduled Castes under
     Article 341(1). The provision does not offer any assistance on the
     criteria which must be satisfied by the castes, groups, races or tribes
     for them to be notified as a Scheduled Caste under Article 341. The
     definition clause only refers to the deeming fiction created by Article
     341. Article 341(1) also does not lay down the criteria for inclusion of
     a caste as a Scheduled Caste. Sub-clause (1) of Article 341 refers
     to the power of the President to specify the castes, races, tribes
     or parts of or groups within these three groups. Specified as such,
     they shall be deemed to be Scheduled Castes for the purpose of
     the Constitution in relation to the state. The respondents submitted
     that the “deeming fiction” creates a homogenous integrated class
     that cannot be further classified. The tenability of the submission
     needs to be analyzed.
        a.    Chinnaiah on the deeming fiction in Article 341
104. In his opinion in Chinnaiah (supra), Justice Santosh Hegde relied
     on NM Thomas (supra) to hold that the Scheduled Castes, though
     drawn from various castes, races and tribes, attain a new status by
     the Presidential notification. Justice Sema noted that once notified
     through a Presidential Notification under Article 341 (1), Scheduled
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                The State of Punjab & Ors. v. Davinder Singh & Ors.


        Castes attain a homogenous status. The learned Judge then held
        that the objective of the notification was to afford special protection
        to the Scheduled Castes as a homogenous group, which cannot
        be regrouped in the manner in which it was done by the Andhra
        Pradesh Act. Justice Sinha noted that Scheduled Castes constitute
        a class of persons entitled to special protection and could not be
        discriminated inter se, as all of them satisfied the test of abysmal
        backwardness and inadequate representation. He specifically
        observed that the Scheduled Castes are a “single integrated class
        of most backward citizens”.
105. One of the issues in Jarnail Singh (supra) was whether the
     judgment in Nagaraj (supra) was correct to apply the principle of
     the exclusion of the creamy layer to the Scheduled Castes and
     Scheduled Tribes. It was argued before the Court in Jarnail Singh
     (supra) that the application of the creamy layer principle to the
     Scheduled Castes and Scheduled Tribes would have the effect of
     amending the List, which is not permissible under Articles 341(2)
     and 342(2). The Constitution Bench held that the exclusion of
     the creamy layer from the Scheduled Castes and the Scheduled
     Tribes is justified under the equality code because the members
     of the creamy layer no longer require reservation since they have
     moved “forward so that they may march hand in hand with other
     citizens of India on an equal basis.”152 Writing for the Bench, Justice
     Nariman observed that the application of the principle of creamy
     layer to reservations for the Scheduled Castes and the Scheduled
     Tribes per se will not have the effect of tinkering with the Lists
     notified under Articles 341 and 342 because a caste as a whole is
     not excluded from the List but only persons who have overcome
     backwardness are excluded.153
106. Thus, it needs to be determined if the interpretation of the scope of
     Article 341 in Chinnaiah (supra) is correct. We must decide, first,
     whether Article 341 creates a deeming fiction. Second, if it does,
     the purpose and effect of the legal fiction created under Article 341
     must be analyzed. That is, we must decide whether the legal fiction
     creates a homogenous class which cannot be further classified.


152 (2018) 10 SCC 396 [26, 34]
153 ibid [26]
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         Third, the scope of the prohibition under Article 341 (2) must be
         determined in relation to the effect of the legal fiction created by
         Article 341(1).
         b.       Scope of deeming fiction
107. The use of the phrase “deemed to be” is not conclusive of a legal
     fiction.154 The word deemed is used for many purposes, such as
     for the artificial construction of a word and to clarify uncertain
     constructions, or plainly just to mean “regarded as being”.155 A legal
     fiction is essentially a presumption that certain facts which do not
     exist in fact, will be treated as real and existing for the purpose of
     law. Courts have evolved two principles on the operation of legal
     fictions. The first principle is that a legal fiction must be confined
     to its ‘legitimate field’, for the specific purpose for which it was
     created.156 In Bengal Immunity Company Ltd v. State of Bihar,157
     a seven-Judge Bench of this Court held that legal fictions are
     created only for a certain purpose and they must be confined only
     to that “legitimate field”. In its decision in that case, this Court held
     that the deeming fiction in the Explanation to Article 286(1)(a),
     before the Constitution (Sixth Amendment) Act 1956, (by which
     a sale was deemed to have taken place in the State where the
     goods were delivered because of the direct sale) only applied to
     Article 286(1)(a) and not to Article 286(2). This Court held that
     the scope of Article 286(1)(a) which barred a State from imposing
     tax on sales outside the State, was different from the scope of
     Article 286 (2) which stated that unless otherwise provided by law,
     State laws could not tax a sale or purchase which took place in the
     course of inter-state trade or commerce.158


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
157 Bengal Immunity Company Ltd v. State of Bihar (1955) SCC OnLine SC 2 [Justice Das, 32]
158 52. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the
    consequences which flow from that state of facts have got to be worked out to their logical extent. But
    due regard must be had in this behalf to the purpose for which the legal fiction has been created. If
    the purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose
    of sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose
    and read into the provision any other purpose howsoever attractive it may be. The legal fiction which
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108. The second principle is that the scope of the legal fiction must
     be extended to the consequences which “logically” flow from its
     creation. The opinion of Lord Asquith in East End Dwelling Co.
     Ltd. v. Finsbury Borough Council159 is the leading case for this
     proposition. The Law Lord observed that the effect of a legal fiction
     must not be limited to treating facts that do not exist as real but
     must be expanded to understand the effects and consequences
     that flow from the legal fiction. 160 However, a law creating a
     deeming fiction cannot create presumptions in favor of a legal
     consequence but only presumptions about facts from which certain
     legal consequences may follow. In Delhi Cloth & General Mills
     Co. Ltd v. State of Rajasthan,161 the constitutional validity of the
     Kota Municipal Limits (Continued Existence) Validating Act of 1975
     was challenged. The Municipalities Act prescribed a mandatory
     procedure for delimitation of municipalities including a public
     notice inviting objections. This mandatory procedure was flouted
     in the inclusion and exclusion of certain villages to and from the
     Kota municipality in the State. The Validating Act provided that
     notwithstanding the mandatory provisions of the Municipalities
     Act, those villages would be deemed to have always continued
     to exist as they do within the limits of Kota municipality. The
     Court held that the Validating Act required the deeming of a legal
     position rather than the deeming of a fact from which such legal
     consequence would follow. The Bench found that this was not a
     permissible creation of a fiction. Article 341 must be interpreted
     based on the above principles.



     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
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 [1980] 3 SCR 1109 : (1976) 3 SCC 443.
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        c.       Article 341 does not create a deeming fiction
109. In Punit Rai v. Dinesh Chaudhary,162 the issue before a three-
     Judge Bench of this Court was whether the Respondent, who
     contested an election for a seat reserved for the Scheduled Castes
     in the Legislative Assembly, belonged to the Scheduled Caste
     community. Justice Sinha, writing the concurring opinion made a
     passing observation that Article 341(1) creates a deeming fiction.163
     However, this observation does not form the ratio decidendi of the
     judgment. Thus, it needs to be analyzed if Article 341(1) creates a
     deeming fiction.
110. Article 341(1) consists of three parts. The first part lays down the
     procedure for notifying a caste as a Scheduled Caste. The President,
     in consultation with the Governor (if the notification is with respect to
     a State) is empowered to specify castes which shall be Scheduled
     Castes. In the second part, a provision similar to Article 366(26),
     provides some clarity on who could be notified as a Scheduled Caste:
     a caste, race, or tribe or parts of or groups within the caste, race
     or tribe. The third part, with the use of the words “for the purposes
     of this Constitution be deemed to be Scheduled Castes” includes
     a substantive provision. In the absence of the word “deemed”, the
     provision would have solely been a procedural clause, empowering
     the President to notify the Scheduled Castes. The use of the word
     “deemed” ensures that the castes or groups of castes shall be
     regarded as Scheduled Castes by the very act of notifying them.
     Thus, the inclusion of the word ‘deemed’ in Articles 341(2) and
     342(2) does not create a legal fiction since it does not provide any
     artificial construction. To that extent, the observations of the three-
     Judge Bench of this Court in Punit Rai (supra) that Article 341(2)
     creates a deeming fiction are erroneous.
111. In Milind (supra), a Constitution Bench of this Court observed
     that the purpose of Article 341(1) is to recognize and identify
     the Scheduled Castes for the purpose of the Constitution and to
     prevent disputes as to who would constitute a Scheduled Caste for
     the purpose of the benefits under the Constitution.164 The Indian


162 [2003] Supp. 2 SCR 743 : (2003) 8 SCC 204
163 ibid [Justice Sinha, 25]
164 ibid, [35]
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          The State of Punjab & Ors. v. Davinder Singh & Ors.


      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 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.
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113. In Chinnaiah (supra), Justice Santosh Hegde observed that the
     Castes notified by the President in the exercise of power under
     Article 341 form a class in themselves. For this purpose, the learned
     Judge relied on the following observations of the Constitution Bench
     in NM Thomas (supra):
         a.       Justice Mathew observed that the members of the Scheduled
                  Castes attain a new status by the Presidential Notification;165
         b.       Justice Krishna Iyer observed that the Scheduled Castes are
                  not castes within the Hindu fold but an amalgam of castes,
                  races, groups, tribes, communities or parts thereof found on
                  investigation to be the lowliest and in need of massive State
                  aid and notified as such by the President;166 and
         c.       Justice Fazal Ali observed that the Scheduled Castes and
                  the Scheduled Tribes have been given a special status in
                  the Constitution and they constitute a class by themselves.167
114. It is necessary to understand the context of the case to understand
     the import of the above observations. In NM Thomas (supra), rules
     providing concessions to the members of the Scheduled Castes
     for qualifying at the entrance examination were challenged. One
     of the issues before the Court was whether the concession to the
     members of the Scheduled Castes violated Article 16(2) since it
     discriminates solely on the ground of “caste”. To overcome the
     embargo placed by Article 16(2), the learned Judges observed that
     provision for affirmative action is made in favour of the Scheduled
     Castes, which once notified by the President in exercise of the
     power under Article 341 are not a “caste” but a class. The class
     that is constituted by the Presidential notification as the Scheduled
     Castes consists of numerous castes, thereby forming a class. The
     observations in NM Thomas (supra) do not go further to state that
     it is a homogenous class that cannot be classified 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


165 NM Thomas (supra) [Justice Mathew, 82]
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.”
[2024] 8 S.C.R.                                                            1399

             The State of Punjab & Ors. v. Davinder Singh & Ors.


        differentia separating a group within a class from another group.168
        Additionally, the approach adopted in NM Thomas (supra) by this
        Court that the Scheduled Castes are a class because they comprise
        of a collection of castes must be read in the context of the nine-
        Judge Bench decision in Indra Sawhney (supra), where this Court
        held that caste is itself a class. Therefore, we are of the view that
        the inference drawn by Justice Hegde in Chinnaiah (supra) that the
        Scheduled Castes are a homogenous class based on the above
        observations in NM Thomas (supra) is erroneous.
        d.      Article 341(1) read with Article 341(2) only proscribes exclusion
                from and inclusion in the Scheduled Castes List.
115. In Chinnaiah (supra), this Court held that sub-classification amounted
     to tinkering with the Presidential list by the State legislature, and
     was therefore, violative of Article 341(2) which exclusively vests
     power in Parliament. Article 341(2) prescribes the only manner
     in which the Presidential Notification under Article 341(1) may be
     altered. The provision stipulates that castes, races or tribes, or
     parts of or groups within them once notified by the President under
     Article 341(1) may be included in or excluded from the List only by
     Parliament. The latter half of the clause states by way of abundant
     caution that ‘save as aforesaid’, the notification shall not be varied.
     The provision reads as follows:
              “(2) Parliament may by law include in or exclude from
              the list of Scheduled Castes specified in a notification
              issued under clause (1) any caste, race or tribe or part
              of or group within any caste, race or tribe, but save as
              aforesaid a notification issued under the said clause shall
              not be varied by any subsequent notification.”
                                                     (emphasis supplied)
116. Dr B R Ambedkar, while proposing the inclusion of Articles 300A
     and 300B of the Draft Constitution (which correspond to Articles 341
     and 342 of the Constitution), indicated that once notified, any
     elimination from the list or an addition to the list was to be made
     by Parliament and not by the President. This limitation, he noted
     was to eliminate “political factors” from disturbing the list:


168 NM Thomas (supra) [Justice Mathew, 83].
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              “..The only limitation that has been imposed is this: that
              once a notification has been issued by the President,
              which, undoubtedly, he will be issuing in consultation
              with and on the advice of the government of each State,
              thereafter, if any elimination was to be made from the list
              so notified or any addition was to be made, that must be
              made by Parliament and not by the President. The object
              is to eliminate any kind of political factors having a play in
              the matter of the disturbance in the Schedule so published
              by the President.”169
117. Unless amended in the manner prescribed under Article 341(2),
     the Presidential List notified under Article 341(1) is conclusive of
     which community is a Scheduled Caste and must be taken as it is.
     Article 341(2) prescribes the scope of permissible changes to the
     List published under Article 341(1) and exclusively vests the power
     to vary these lists in Parliament.
118. The prohibitions in Articles 341 (1) and 342 (2) are two-fold : first,
     specification as a Scheduled Caste is circumscribed by the territorial
     limits of the State or the region, specific to which a particular group
     has been notified.170 For instance, Entry 23 of Part I of the Scheduled
     Castes Order for the State of Andhra Pradesh enumerates:
     “Godagalli, Godagula (in the districts of Srikakulam, Vizianagaram
     and Vishakhapatanam)”. Hence, the enlisted communities (Godagalli
     and Godagula) are treated as a Scheduled Caste for the districts
     named in the entry and not for the entire State. In Marri Chandra
     Shekar Rao v. Dean, Seth GS Medical College,171 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)


169 Constituent Assembly Debates, Volume 9, page 1636 (17 September 1949)
170 See Constitutional (Scheduled Castes) Order, 1950 [2,4]
171 [1990] 2 SCR 843 : (1990) 3 SCC 130
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


         could not be rendered redundant by treating a caste specified as
         a Scheduled Caste in one State to be entitled to the benefits for
         Scheduled Castes in another State, where it was not so specified.172
         In Bir Singh v. Delhi Jal Board,173 one of the issues before this
         Court was whether the power of the State to make provisions for
         affirmative action for the Scheduled Castes and Scheduled Tribes
         under Article 16(4) is impacted by the power of the President under
         Articles 341(1) and 342(1) of the Constitution. The Constitution
         Bench held that a State in exercise of its power under Article 16(4),
         cannot extend the benefits accorded to the Scheduled Castes to
         a caste which is not enumerated in the Presidential list notified
         under Article 341(1). The Court held that the enabling provision
         under Article 16(4) must be harmoniously read with Articles 341 and
         342. Therefore, if a statute extends the policy of affirmative action
         to groups not enumerated specifically with respect to that State/
         Union Territory, it would circumvent the mandate of Article 341(2)
         and would be an impermissible expansion of the List, contrary to the
         mandate of Article 341(1).174 Thus, this Court held that the benefit of
         reservation cannot be extended to a caste which is not enumerated
         as a Scheduled Caste in that State, though it finds a place in the
         Presidential List with respect to another State.
119. Second, Article 341(2) provides that only Parliament can include
     in or exclude from the List any caste, tribe, race or their parts
     or groups. The Presidential notification cannot be varied by any
     subsequent notification, other than by an inclusion or exclusion by
     Parliament. By completely vesting in Parliament the power to include
     or exclude from the Presidential List, Article 341(2) correspondingly
     limits the power of the President (acting on the aid and advice of
     the Council of Ministers at the Centre) and the Governor (acting
     on the aid and advice of the State Government when consulted) to
     include or exclude castes or sub-castes from the List.
120. In Chinnaiah (supra), this Court interpreted Article 341(2) as a
     limit on the power of the President to “tinker” with the list.175 Article


172 Marri (supra) [9]
173 [2018] 10 SCR 513 : (2018) 10 SCC 312.
174 ibid, [Justice Gogoi, 34]; [Justice Banumathi, 79, 81]
175 Chinnaiah (supra), [Justice Hegde, 43]
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         341(2) consists of two parts. First, it grants only Parliament the
         power to “include or exclude” any caste or group, or a part of the
         caste or group, and second, “save as aforesaid”, a notification
         issued by the President under Article 341(1) shall not be varied
         by any other subsequent notification. It is important to understand
         the purport of the second part of the provision to understand the
         scope of Article 342(2).
121. The second part of Article 341(2) must be read in the context
     of Article 367. Article 367 provides that unless the context
     otherwise requires, the General Clauses Act 1897 shall apply
     for the interpretation of the Constitution as it applies to the
     interpretation of an Act of the Legislature of the Dominion of India.
     Section 21 of the General Clauses Act 1897 states that the power
     to issue notifications includes the power to add to, amend, vary or
     rescind the notification.176 By Article 341(1) read with Article 367
     and Section 21 of the General Clauses Act 1897, the President
     would have the power to add to, amend, vary or rescind the
     notification. The first part of Article 341(2) removes the power of
     the President to include in and exclude from the List and places it
     in the domain of Parliament. This power is traceable to the words
     “add to” or “amend” in Section 21 of the General Clauses Act. The
     second part of Article 341(2) ensures that the President does not
     have any residual power to “vary” the List. The phrase “vary” in
     common parlance has a wider meaning than exclusion or inclusion.
     It includes altering the list, even by partial change.177 However, the
     phrase “vary” in Article 341(2) takes the meaning of inclusion in
     and exclusion from the List, and not the other way around. This is
     clear with the use of the phrase “save as aforesaid” in the second
     part of the provision. Thus, by Article 341(2), the President does
     not have the power to vary the List notified under Article 341(1)
     by inclusion in and exclusion from it.



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.
177 “Vary” - to make changes to something to make it slightly different. Oxford Learner’s Dictionary,
    <https://www.oxfordlearnersdictionaries.com/definition/american_english/vary>; “vary” Merriam-Webster
    Dictionary <https://www.merriam-webster.com/thesaurus/vary#thesaurus-entry-1-2>
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


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 tribe, or any
     part thereof, is included within the meaning of an entry included in
     the Presidential Order.178 This Court underscored that the power of
     the States is limited to making recommendations at the initial stage
     of consultation, prior to the notification of the Presidential List under
     Article 341(1). This Court observed that the Constitution vests the
     power to make any further changes to the List in Parliament to
     prevent alterations to the List due to political pressure. 179
123. The prohibition under Article 341(2) entails that once a particular
     caste, race, tribe or a part or group of it is specified in the Presidential
     List under Article 341(1), the list shall be read as it is with no additions
     or deletions. The benefit of the special provisions shall not be given
     to any caste or sub-caste not included in the List with respect to that
     State. Article 341(2) uses the words “include in” or “exclude from”
     and “shall not be varied”. These terms contained in the provision
     are unambiguous. An inclusion would occur if the State were to
     enact a law that extends the benefits meant for Scheduled Castes
     in that State to a community that is not enumerated as a Scheduled
     Caste for that State. The only mechanism open to the State, in case
     it regards a community fit for inclusion in the List notified for that
     State, is to make a proposal to that effect to the central authorities.



178 Milind (supra) [12].
179 Milind (supra) [15].
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        After due inquiry, the community may be added to the List by
        Parliament, subject to its satisfaction that such a modification is
        required. Until then, the State has to apply the Scheduled Castes
        List as it is.180 Thus, to summarize, Article 341(2) bars the State
        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 Government
     of India Act 1935.181 It is important to identify the criteria for inclusion
     of groups or castes in the Scheduled Castes Order 1936.
126. The Government of India Act 1935 did not define the criteria for the
     identification of Scheduled Castes. Clause 26(1) of the First Schedule



180 Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala (1994) 1 SCC 359 [17, 18]
181 Marc Galanter, Competing Equalities: Law and the Backward Classes in India, [Oxford University Press
    (1984)] 130
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                The State of Punjab & Ors. v. Davinder Singh & Ors.


        to it defined the Scheduled Castes as castes that corresponded to
        the classes of persons known as the “depressed classes”:
                “the scheduled castes” means such castes, races or
                tribes, or parts of or groups within castes, races or tribes
                being castes, races, tribes, parts or groups which appear
                to his Majesty in Council to correspond to the classes
                of persons formerly known as the depressed classes,
                as His Majesty in Council may specify.”
                                                                 (emphasis supplied)
127. It is necessary that we briefly refer to the historical material on how
     the depressed classes were identified to analyze if the Scheduled
     Castes are a heterogenous class and whether there is an intelligible
     differentia distinguishing the sub-categories within the Scheduled
     Castes.
        a.        Identification of the depressed classes
128. In 1916, the definition of the depressed classes was raised in the
     Indian Legislative Council. It was suggested during the discussion
     that the expression should include criminal and wandering tribes,
     aboriginal tribes and untouchables.182 In 1917, Sir Henry Sharp,
     the Education Commissioner, prepared a list of depressed classes
     which included the aboriginal or hill tribes, depressed classes
     and criminal tribes. While preparing the list, Sir Henry stated that
     depressed classes “[…] includes communities which though not
     absolutely outside the pale of caste, are backward and educationally
     poor and despised and also certain classes of Muslims. Some have
     interpreted it as simply educationally backward”.183
129. In 1919, the Southborough Franchise Committee adopted the
     test of untouchability to define the depressed class. The Indian
     Franchise Committee 1932, inter alia, was appointed to ascertain if a
     separate electorate must be provided to the depressed classes. The
     Committee also had to arrive at a definition of “depressed classes”.
     The Committee interpreted the phrase “depressed classes” as the
     ‘untouchability class’, that is, the class whose touch or approach is


182 Report of the Indian Franchise Committee (1932) Vol I, 112
183 Ibid, 113
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         deemed to cause pollution as it exists in the United Provinces.184
         The report stated that the depressed classes “should not include
         primitive or aboriginal tribes nor should it include those Hindus who
         are only economically poor and in other ways backward but are not
         regarded as untouchables.”185 The Committee accepted the tests
         of untouchability formulated by Hutton.186 Hutton had submitted a
         Census Report in 1931 by which depressed castes were defined
         as castes, contact with whom requires purification. The instruction
         which was given to determine if the caste is an untouchable caste
         was as follows:
              “I have explained depressed castes as castes, contact
              with whom entails purification on the part of high caste
              Hindus. It is not intended that the term should have any
              reference to occupation as such but to those castes which
              by reason of their traditional position in Hindu society are
              denied access to temples, for instance, or have to use
              separate wells or are not allowed to sit inside a school
              but have to remain outside or which suffer similar social
              disabilities. These disabilities vary in different parts of
              India being much more severe in the south of India than
              elsewhere.”187
130. The following tests were directed to be considered to determine if
     the caste faces untouchability:
         a.        Whether the caste or class in question can be served by
                   clean Brahmans;
         b.        Whether the caste or class in question can be served by
                   the barbers, water-carriers, tailors, etc., who serve the caste
                   Hindus;
         c.        Whether the caste in question pollutes a high caste Hindu by
                   contact or by proximity;
         d.        Whether the caste or class in question is one from whose
                   hands a caste Hindu can take water;


184 id
185 id
186 Ibid,Pg. 112
187 Hutton Censes Report (1931) 471
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                The State of Punjab & Ors. v. Davinder Singh & Ors.


        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;
        g.        Whether in ordinary social intercourse, a well-educated
                  member of a caste or class in question will be treated as an
                  equal by high caste men of the same educational qualifications;
        h.        Whether the caste or class in question is merely depressed
                  on account of its own ignorance, illiteracy or poverty and but
                  for that would be subject to no social disability; and
        i.        Whether it is depressed on account of the occupation followed
                  and whether but for that occupation it would be subject to no
                  social disability.
131. Though the test that was proposed to be used was that of
     untouchability, the criteria above and in particular, criteria (f), (g)
     and (h) indicate that other forms of social disability which cannot be
     strictly confined to untouchability were also considered. The report
     recognized that there may be a variance in the degree of restrictions
     based on the degree of untouchability. For example, a few castes
     may have been denied entry to a temple as compared to castes
     which were denied entry to the inner sanctuary of the temple.188
132. The Note submitted by Assam casts light upon the heterogeneity
     amongst the castes which face untouchability. The Note states
     that untouchability as it existed in Madras, where an untouchable’s
     touch necessitated immediate purification, did not exist in Assam.
     Mr Maullan, the Census Superintendent in Assam defined the
     depressed class (which he termed as “exterior castes”) as castes
     whose water is not acceptable and in addition are so deficient in
     education, wealth, influence, or for some reason connected with
     their traditional occupations which prevents them from acquiring
     any further social privileges. The Superintendent further noted that
     there are influential and wealthy castes even among the jal-achals
     (that is, those whose water was not acceptable). The note also
     distinguished the untouchability which certain castes faced from
     other untouchable castes:189


188 Ibid, 472
189 Ibid, 495
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                “The exterior castes themselves are, however, guilty of
                similar treatment to each other and an exterior caste
                which considers itself to be on a higher social level than
                another exterior caste adopts exactly the same attitude
                as the higher castes do towards the exterior castes.
                A case which recently happened in Sunamganj illustrates
                this point. The local ferryman there (a patni by caste) was
                prosecuted for refusing to row a Muchi and that it has
                always been the practice, if a Muchi wanted to cross the
                river, for the paddle to be given to him so that he could
                row himself across.”
133. The Note of the Superintendent of Assam on Mahars further
     elucidated the point that there was no “uniformity” in the untouchability
     faced by members of various castes. The Note explained that
     Mahars were included in the list of depressed class though they were
     jal-chal in the limited sense in as much as a man of the forward caste
     “can smoke huka filled with water by a Mahar”. They were included
     because they were untouchables with respect to everything but for
     smoking requirements and they were a socially and educationally
     backward community:190
                “I have made close and careful enquiries and there is a
                general consensus of opinion that the Mahars are not jal-
                chal and are a depressed class. The story of Raja Subid
                Narayan made them jal-chal for smoking requirements only,
                seems to be true. If the Mahars are 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.”



190 Ibid, 498
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                The State of Punjab & Ors. v. Davinder Singh & Ors.


134. The list prepared by Madras noted that castes to whom the “technical
     stigma of untouchability” does not apply, had been excluded from
     the list. This approach when juxtaposed with the approach adopted
     by Assam, varies with respect to the stringency of the untouchability
     standard employed.191 It is evident that there is no one “form” of
     untouchability. Untouchability, like other forms of social disability
     differs in degree and severity.
135. Based on the tests for identifying untouchability laid down by Hutton,
     the Provincial Committee prepared the provincial estimates of
     depressed classes. In Madras, Bombay and the Central Province,
     there was a general agreement between the Provincial Committees
     and the Local Governments on the estimate of the depressed classes
     because the distinction between the depressed and other classes
     of the Hindu Communities was clearly defined. On the other hand,
     the States of Bihar, Orissa and Assam while stipulating the castes
     which faced untouchability observed that untouchability in the States
     did not exist in the same form as it existed in South India.
136. Mr SB Rambe, Mr CY Chintamani and Mr RR Bakhale submitted
     a note of dissent, inter alia, on the depressed classes in which
     they claim that the tests for untouchability were not applied with
     uniformity.192 They observed that untouchability only existed in
     Madras, Bombay and the Central Province. They claimed that in
     other states, untouchability was not an adjunct of a person but the
     occupation that they pursued and thus, those castes should not have
     been included in the list of the depressed classes.193 It is here that
     the Note submitted by Dr B R Ambedkar on depressed classes is
     of particular importance for it encapsulates the heterogeneity within
     the castes which suffer untouchability.
137. Dr B R Ambedkar highlighted that applying a uniform criterion to
     identify the depressed class would be inappropriate. Dr Ambedkar
     observed that the differences in the tests of untouchability do not
     indicate differences in the conditions of the untouchables because
     the notion underlying both the standards would be the same,


191 Ibid, 499
192 Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise
    Committee, 231
193 id
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         that it is below the dignity to interact or touch persons of certain
         castes. He observed that the difference in the rigidity with which
         untouchability is practiced does not eliminate the notion of such a
         practice.194 This indicates that the depressed classes were identified
         based on the notion of untouchability and not in the literal sense
         of the term. The effect of adopting the notional and not the literal
         test is that the social condition of all the castes included within the
         depressed classes is not uniform. Though the Government of India
         (Scheduled Castes) Order 1936 did not exactly correspond to the
         List published by Hutton or the Provincial Franchise Committees,
         the inclusions and exclusions to the list broadly matched.195
138. The heterogeneity within the class is also evident from the Constitution
     (Scheduled Castes) Order 1950 where certain castes are notified
     as the Scheduled Castes in specific localities. For example, in the
     State of Madhya Pradesh, of the twenty-five castes, only nine are
     Scheduled Castes throughout the State. The criteria used to identify
     the Scheduled Castes itself indicates that the endeavor was not to
     include all castes that suffered from identical forms of untouchability.
     Thus, the Scheduled Castes are not a homogenous class.
         b.       Empirical evidence of heterogeneity
139. Field researchers have also accounted that the Scheduled Castes
     are not one homogenous class. Studies indicate that certain castes
     of the Scheduled Castes are not only sociologically backward vis-
     à-vis the forward castes but also amongst the Scheduled Castes
     themselves. AM Shah recounts that there was much less interaction
     between two Dalit castes in Gujarat than there was between a Dalit
     caste and a forward class. The author observes that the priests
     for the Dalits are placed high amongst the Dalit castes and the
     scavengers are placed the lowest, with the leather-workers and the
     rope makers occupying the intermediary positions:196
               “Briefly, the Dalits have reproduced among themselves
               a hierarchy on the model of caste hierarchy in general.


194 Dr Ambedkar, Note on the Depressed Classes, Report of the Franchise Committee, 211
195 Galanter, supra, 130
196 AM Shah, The ‘Dalit” category and its Differentiation; Also see AM Shah, Untouchability, the Untouchables
    and Social Change in Gujarat in Dimensions of Social Life, Essays in Honor of David G Mandelbaum
    (edited by Paul Hockings)
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


              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 the villages could a Dalit belonging
     to a lower sub-caste receive water in the house of a Dalit of a
     higher sub-caste. The study also found that in 92.4 percent of the
     villages studied, all the Dalits did not have access to all-Dalit burial
     grounds and that the lower sub-castes were denied entry into to
     Dalit Temples in 79 percent of the villages.197
141. Similarly, in Tamil Nadu, when an Arunthathiyar man and a Paraiyar
     woman (both the castes find a place in the Scheduled Castes list)
     eloped, the woman’s family allegedly raped the women of the man’s



197 Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive
    Study of Practices and Conditions in 1589 Villages, 22-33
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        family in retaliation.198 The inequality within the Scheduled Castes in
        Andhra Pradesh has also been studied. Uma Ramaswamy draws
        on the inequality within the Scheduled Castes by comparing the
        social positions of members of the Mala and Madiga Castes.199 The
        Madigas traditionally pursue the occupation of leather work which is
        assigned a lower status when compared to the weaving occupation
        of Malas. The author states that neither do members of both the
        castes live in the same hamlet nor do they draw water from the
        same well. The study found that the hierarchy between the castes
        translated to their relative progress in education, employment and
        political activity. In 1961, 10 percent of Malas were literate as against
        5.1 percent of Madigas. In 1971, the proportion of literates among
        Malas had gone up to 12.9 per cent in comparison to 6.2 percent
        among the Madigas. The author stated that hierarchy exists even
        within the Mala caste. Mala Jangam and Mala Desari are priestly
        castes and are spiritual advisors to Mala satellite castes. Within the
        Mala satellite castes, Mala Jangam is at the top, followed by Mala
        Pambala, Masti and Gurra Malas. The sub-castes also follow rules
        of untouchability amongst themselves:200
              “There are certain rules that restrict the taking of food,
              water and access to the temples among the Dalits. The
              Malas, higher caste Dalit do not take food or water from
              the Madigas, the lower caste Dalit in village India. Mala
              Jangam, Mala Dasari and Mithal Ayyalwar do not eat or
              drink from Malas, Madigas and Dakkal. Similarly other
              castes do not take cooked food or water from these castes.
              Malas and Madigas have separate wells and temples.
              Malas do not take food and water from Mastu, Gurram
              Malas and Madigas. But all these castes take food and
              water from priestly class of Malas. The singari, the gurus
              to Madigas, strictly refrain from eating food touched or
              cooked by Madigas or other satellite caste. Bindla though
              enjoys higher social status in Madigas satellite caste. The


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)
200 Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327]
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            The State of Punjab & Ors. v. Davinder Singh & Ors.


            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.
      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
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        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 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.
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
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               The State of Punjab & Ors. v. Davinder Singh & Ors.


        because - first, the primary object of the law was grouping of sub-
        castes and apportionment of reservations was merely consequential
        and second, the State could not under Entry 41 of List II and Entry 25
        of List III (of the Seventh Schedule) dealing with State services
        and education respectively, divide the Scheduled Castes List.201
        Justice Sinha noted that the legislative competence of the State
        legislatures under Article 246 is subject to the other provisions of
        the Constitution, namely Article 341 of the Constitution.202
148. The opinions in Chinnaiah (supra), conflate the issue of legislative
     competence, which is referrable to Articles 245 and 246, with the
     power to ensure substantive equality under Articles 15 and 16.
     Article 245 read with the Seventh Schedule lays down the legislative
     competence of the State Legislatures and Parliament. Articles 15(4)
     and 16(5) recognize the power of the State to make special provisions
     for the advancement of the backward class, including the Scheduled
     Castes. These provisions permit the State to confer the benefit of
     affirmative action on classes where it is most necessary. Thus, the
     power of the State to sub-classify the Scheduled Castes for the
     purpose of affirmative action, including reservations, is traceable to
     Articles 15(4) and 16(5) in the case of educational institutions and
     appointments, respectively.
        vii.     Criteria for sub-classification
149. The object of the special provisions in Articles 15(4) and 16(4) is
     to provide substantive equality to the beneficiary class.203 Inter-
     se backwardness within the class is a roadblock to achieving
     substantive equality. Sub-classification is one of the means to
     achieve substantive equality. But the crucial question is, what
     should be the rational principle to distinguish categories within the
     Scheduled Caste? Should it be based on the form of untouchability
     or any form of inter-se social backwardness? We will discuss the
     rational principle which must be used for sub-categorization in this
     segment of the judgment.



201 Chinnaiah (supra) [Justice Hegde, 31]
202 Chinnaiah (supra) [Justice Sinha, 90]
203 See NM Thomas (supra)
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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 with matters of public
     employment. Secondly, Article 16(4) only deals with reservation while
     Article 15(4) recognizes other forms of affirmative action. Article 15(4)
     is broader and all-encompassing as compared to Article 16(4).
     Thirdly, the beneficiary class under Article 15(4) must be “socially
     and educationally backward” while the class under Article 16(4)
     is a backward class which is not adequately represented. The
     Scheduled Castes and the Scheduled Tribes are expressly carved
     out in Article 15(4), unlike Article 16(4), where they are encompassed
     within the “backward class”.
151. One of the issues that must be adjudicated while discussing the
     scope of the provisions is whether the beneficiary classes in
     Articles 15(4) and 16(4) are different. This issue must be decided
     with reference to:
        a.       The use of the qualifiers “socially and educationally” backward
                 in Article 15(4); and
        b.       The use of the qualifier “adequate representation” in Article
                 16(4).
        a.       The meaning of “Backward Class”
152. Article 15(4), unlike Article 16(4), provides that the beneficiary class
     for the purposes of the provision must be socially and educationally
     backward. In Balaji (supra), this Court held that the beneficiary class
     under Article 15(4) must be both socially and educationally backward.
     Justice Gajendragadkar observed that caste, occupation and
     poverty are important factors for determining the socially backward
     class.204 This was reiterated in Janki Prasad Parimoo v. State of


204 MR Balaji v. State of Mysore, AIR 1963 SC 649 [24,25]
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               The State of Punjab & Ors. v. Davinder Singh & Ors.


         Jammu and Kashmir.205 Justice D G Palekar writing for this Court
         made a crucial observation on the relationship between social and
         educational backwardness. The learned Judge observed that though
         the phrases ‘socially’ and ‘educationally’ are used cumulatively for
         the purposes of identifying the backward class under Article 15(4),
         “if a class as a whole is educationally advanced it is generally also
         socially advanced because of the reformative effect of education
         on that class”.206 The relationship between social and educational
         backwardness where social backwardness contributes to educational
         backwardness was reiterated in Indra Sawhney (supra). Thus,
         though the criteria of socially and educationally backward class must
         be cumulatively read for the purposes of identifying the beneficiary
         class, they are not mutually exclusive concepts. They have a causal
         relationship, where the educational backwardness of a class is an
         impact of its social backwardness.
153. The next issue is whether the beneficiary classes in Article 15(4) and
     Article 16(4) are the same even though, unlike Article 15(4), Article
     16(4) does not include the qualifiers of “social” and “educational”.
     In Janki Prasad Parimoo (supra), this Court read the requirement
     of social and educational backwardness into Article 16(4).207 This
     was reiterated in Vasant Kumar v. State of Karnataka208 by a
     Constitution Bench of this Court. However, in Indra Sawhney
     (supra), Justice B P Jeevan Reddy speaking for four Judges
     (Chief Justice Kania, Justice Venkatachaliah, Justice AM Ahmadi
     and himself) observed that there is no basis for this assumption.
     The learned Judge observed that Article 16(4) applies to a much
     larger class. The socially and educationally backward class is one
     of the categories, to which Article 16(4) applies. The socially and
     educationally backward classes are included within the broader class
     to which Article 16(4) applies. Justice Jeevan Reddy also held that
     reading educational backwardness in Article 16(4), which deals with
     reservation in appointments at any level, would not appropriate:


205 [1973] 3 SCR 236 : (1973) 1 SCC 420
206 (1973) 1 SCC 420 [24]
207 [1968] 2 SCR 786
208 [1985] Supp. 1 SCR 352 : (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) and 16(4) are intended for the benefit of those who belong to casts,
    communities which are traditionally disfavored and which have suffered societal discrimination in the past.
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          “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 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
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


              backward classes.[…] We are, accordingly, of the opinion
              that the backwardness contemplated by Article 16(4) is
              mainly social backwardness. It would not be correct to
              say that the backwardness under Article 16(4) should be
              both social and educational.”
155. In Indra Sawhney (supra), Justice Pandian defined the backward
     class of citizens as “a group of persons having common traits or
     attributes coupled with retarded social, material (economic) and
     intellectual (educational) development in the sense that not having
     so much of intellect and ability will fall within the ambit of ‘any
     backward class of citizens’ under Article 16(4)”.209 The learned Judge
     further elucidated that the “primary consideration” in identifying the
     backward class is social backwardness.210 Justice Sawant also
     observed that in identifying the beneficiary class under Article 16(4),
     social backwardness must be given importance. Justice Sawant
     held that the criterion for the identification of the beneficiary class
     is whether it is socially backward and whether the class which is
     educationally and economically backward, is so because of its
     social backwardness.211
156. Justice Kuldip Singh adopted a different approach. The learned
     Judge held that the beneficiary classes in Articles 15(4) and 16(4)
     are different. Justice Kuldeep Singh observed that unlike the
     determination of the beneficiary class in Article 15(4) which must
     be socially and educationally backward, the class identified for the
     purposes of Article 16(4) need not be backward because:
        a.      The Constituent Assembly Debates indicate that reservation
                under Article 16(4) is to provide access to communities that
                have not had a ‘look in’ at the administration of the State.
                The object of including the phrase “backward” in Article
                16(4) - which did not find a place in the initial draft - was only
                for the purpose of reducing the number of claimants for the
                reserved posts;212


209 (1992) Supp. 3 SCC 217 [58]
210 (1992) Supp. 3 SCC 217 [117]
211 (1992) Supp. 3 SCC 217, [Justice Thommen, 273]; [Justice Sawant 441,552]
212 (1992) Supp. 3 SCC 217 [363]
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        b.       Inadequate representation in the services of the State is the
                 only test for the identification of the beneficiary class under
                 Article 16(4). Inadequate representation can be identified
                 based on occupation, economic criterion, family income,
                 political sufferers, border areas, backward areas, communities
                 kept out of State services or any other means. 213 The
                 ‘backward class’ must be culled out from the classes which
                 are inadequately represented;214
        c.       The backward class cannot be classified into adequately
                 represented and inadequately represented. A class that is
                 adequately represented cannot be considered backward.
                 Reading the qualifier of inadequate representation with respect
                 to the backward class would render the former expression
                 redundant; and215
        d.       The Constitution has expressly mentioned the Scheduled
                 Castes and the Scheduled Tribes whenever the Constitution
                 grants protection to the “weaker classes”.216
157. Contrary to the opinion of Justice Kuldeep Singh, which held that the
     determining character of the class in Article 16(4) is not backwardness
     but inadequacy of representation,217 the majority in Indra Sawhney
     (Justice Reddy writing for four Judges, Justice Pandian and Justice
     Sawant) held that the predominant factor which must be employed
     to identify the “backward class” must be social backwardness. The
     majority also held that the backward class in Article 16(4) subsumes
     the socially and educationally backward class identified under
     Article 15(4).218 Thus, the objective of both Articles 15(4) and 16(4) is
     to ensure substantive equality by uplifting the socially backward class.
        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


213 (1992) Supp. 3 SCC 217 [368]
214 (1992) Supp. 3 SCC 217 [364]
215 (1992) Supp. 3 SCC 217 [366]
216 (1992) Supp. 3 SCC 217 [367]
217 See opinion of CJ Ray in MN Thomas (supra)
218 (1992) Supp. 3 SCC 217 [Justice Reddy,787]; [Justice Sahai, 583]
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


         and inadequately represented. That is, whether they are mutually
         exclusive qualifiers. In Indra Sawhney (supra), Justice Sawant
         writing the concurring opinion observed that only classes which
         are inadequately represented must be provided reservation under
         Article 16(4). In the opinion of the learned Judge, a class that is
         backward will cease to be a beneficiary when the class becomes
         adequately represented. This observation aligns with the argument
         that reservation must not be provided once the goal of the provision,
         which is securing adequate representation is achieved.
159. To navigate this issue, it is necessary that we refer to the debates
     of the Sub-Committee of Minorities and Sub-Committee of
     Fundamental Rights to ascertain the reason for the inclusion of the
     phrase “inadequate representation” in Article 16(4). The Objectives
     Resolution which was introduced by Mr Jawaharlal Nehru on
     13 December 1946 resolved to provide adequate safeguards for
     minorities, backward and tribal areas, and the depressed and other
     backward classes. The equality provision in the first draft report
     submitted by the Sub-Committee on Fundamental Rights did not
     provide for reservation of seats for the backward community or
     the minorities. Though the report included provisions emphasizing
     anti-discrimination and equal opportunity, it did not recommend an
     enabling provision for affirmative action.219 The Sub-Committee
     on Minorities along with the Fundamental Rights Sub-Committee
     decided to examine the clauses recommended to determine if any
     of them required to be amended to protect minority rights. During
     the discussion, Mr KM Munshi stated that reservation may have
     to be made for the minorities in public employment.220 An Advisory


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
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         Committee was formed to make recommendations on how best
         to reconcile the anti-discrimination provision with the provision for
         reservation. The Sub-Committee on Minorities recommended that a
         proviso may have to be added to meet the claims of representation
         of the marginalized communities.221
160. After the discussion, Dr Ambedkar representing the Advisory
     Committee, suggested the inclusion of the following provision:
               “Nothing herein contained shall prevent the State from
               making provisions for reservation in public services in
               favour of classes as may be prescribed by the State.”
                                                                      (emphasis supplied)
161. The Sub-Committee on Fundamental Rights debated two issues
     related to the above clause. First, whether the word “minority” or
     “class” must be used to signify the beneficiaries. The debates indicate
     that the phrase “class” was preferred over “minority” because the
     latter has a specific connotation, that is, religious or political minorities
     and this would exclude classes who constitute the majority but are
     yet not adequately represented. The reason is best explained by
     Dr Ambedkar in the Annexure to the Memorandum and Draft Articles
     on the Rights of States and Minorities, where he noted that “to make
     religious affiliation the determining factor for constitutional safeguards
     is to overlook the fact that religious affiliation may be accompanied
     by an intense degree of social separation and discrimination”.222
162. The second issue was whether the provision must be qualified with
     the phrase “adequately represented”. A few members expressed
     the fear that the use of the phrase “adequate representation” would
     become litigious.223 In spite of this apprehension, the phrase was
     retained to restrict the discretion of the State since the phrase
     “class” and not “minority” was adopted. Without the phase “adequate
     representation”, the clause would have also included reservations


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.
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.”
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


         for adequately represented majorities for whom the benefit was not
         intended. However, with the inclusion of the phrase “adequately
         represented” qualifying the phrase “classes”, the benefit of the
         provision extends to classes which may be considered ‘majorities’
         but are yet inadequately represented.224
163. The debates in the Sub-Committee on Fundamental Rights and
     Sub-Committee on Minorities indicate that the beneficiaries of
     reservation are classes that are not “adequately represented” and
     this could include classes which are numerical majorities. Provisions
     for reservation are now available not only to the members of the
     Scheduled Castes and Scheduled Tribes but also of the socially
     and educationally backward classes which are numerical religious
     majorities. The phrase “backward” preceding “class” was absent in
     the draft circulated by the Sub-Committee. The phrase was included
     in Article 10 of the Draft Constitution. The inclusion of the phrase
     backward along with the qualifier of adequate representation clarifies
     the scope of the beneficiary class.
164. Dr B R Ambedkar stated in the Constituent Assembly that
     reservations under Article 10 of the Draft Constitution [Article 16
     of the Constitution of India] are given to those who have not had
     a “proper look-in” to the administration because it has historically
     been controlled by a few communities.225 Referring to the above
     observations of Dr Ambedkar, Justice Jeevan Reddy held in Indra
     Sawhney (supra) that the objective of Article 16(4) is to ensure that
     the backward classes get the opportunity to share state power.226
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


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 has come to that. There may be among the majority, among the Hindus for example, many
    classes who have not adequate representation in the services.”
225 CAD Vol 7. P. 701
226 Reddy J [694] “[…] In short, the objective behind Article 16(4) is empowerment of the deprived backward
    communities- to give them a share in the administrative apparatus and in the governance of the
    community.” Also see Paragraph 161 where Justice Pandian states that “inadequate representation is
    not confined to any specific section of the people, but all those who fall under the group of backwardness
    whether they are Shudras of Hindu community or similarly situated other backward classes of people in
    other communities, namely, Muslims, Sikhs, Christians etc.
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         represented could be two-fold. First, it may be a result of laws that
         expressly excluded certain classes from accessing the good, that
         is posts in public service. Second, it may be the result of a class
         being excluded not expressly by law but through social exclusion.
         A class may be socially excluded from accessing skills which are
         relevant for acquiring the good. These restrictions could either be
         in the form of social and informal or legal and formal restrictions.
166. In Indra Sawhney (supra), Justice Jeevan Reddy observed that a
     class for the purpose of securing reservations under Article 16(4)
     should not only be a backward class but must also be inadequately
     represented in the services of the State.227 Thus, the beneficiary
     class is not to be determined solely on the basis of whether the
     class is a numerical minority or a majority in the services of the
     State. The focus instead is on identifying classes that have been
     excluded from public services not as a matter of chance or choice
     but because of the operation of the system of hierarchy. Thus,
     both the phrases, “backward” and “not adequately represented,” in
     Article 16(4) cannot be interpreted in a mutually exclusive manner
     in determining the beneficiary class under Article 16(4). The
     intent of Article 16(4) is to cover those classes which have been
     inadequately represented because of their backwardness. Thus,
     the requirement of inadequate representation cannot be detached
     from the requirement of backwardness.
         c.       The requirement of “effective” representation
167. Conventionally, the State has assessed if the class is adequately
     represented by comparing the representation of the class in the
     services to the total population of the State.228 However, adequacy of
     representation when determined purely from a numerical perspective
     without accounting for factors such as representation vis-à-vis
     posts would dilute the purpose of the provision. The objective of
     Article 16(4) is to ensure effective representation of the class in the
     services of the State across posts and grades. Classes which are



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.
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]
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          The State of Punjab & Ors. v. Davinder Singh & Ors.


      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 hierarchy where the low-grade posts are occupied
     by the socially backward while supervisory and managerial posts
     continue to be occupied by the advanced classes. If the objective of
     Article 16(4) is to be achieved in the truest sense, the inadequacy
     of representation must not be determined only on the basis of the
     total number of members of the backward class in the services of
     the State but by assessing the representation of the class across
     various posts.
169. The meaning of the phrase “adequate representation” fell for
     the consideration of this Court in Rangachari (supra). Writing
     for the majority, Justice Gajendragadkar observed that adequate
     representation means not only numerical representation but
     qualitative representation as well:
           “25. […] This condition precedent may refer either to the
           numerical inadequacy of representation in the services
           or even to the qualitative inadequacy of representation.
           The advancement of the socially and educationally
           backward classes requires not only that they should
           have adequate representation in the lowest rung
           of services but that they should aspire to secure
           adequate representation in selection posts in the
           services as well. In the context the expression “adequately
           represented” imports considerations of “size” as well as
           “values”, numbers as well as the nature of appointments
           held and so it involves not merely the numerical test but
           also the qualitative one. It is thus by the operation of the
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                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 meaning of inadequacy of representation in the
     quantitative sense and does not convey any idea of equality.229 In
     Triloki Nath v. State of Jammu and Kashmir (I),230 a reservation
     policy providing 50 percent of the seats to Muslims from Jammu
     and Kashmir, 60 percent of the remaining fifty percent seats to
     Hindus from Jammu and the remaining 40 percent of the 50
     percent to Kashmiri Pandits was challenged. The State contended
     that the sole test of backwardness for the beneficiary class under
     Article 16(4) is inadequacy of representation in the services of the
     State. The Constitution Bench rejected the argument, observing that
     if it is accepted, the benefit would be conferred only on the ‘rich and
     cultured’ who are socially and educationally advanced.
171. Justice Jeevan Reddy also adopted a value-ridden interpretation of
     the phrase “adequately represented” in Indra Sawhney (supra). The
     learned Judge held that the principal test to determine the adequacy
     of representation is “effective representation or effective voice in
     the administration” and not mere numerical presence. Effective
     representation can only be achieved, in this view, when there is
     adequate representation at all levels or posts in the administration.
     Justice Sawant also adopted a similar approach.231
172. We are in complete agreement with the opinions of Justice Jeevan
     Reddy in Indra Sawhney (supra) and Justice Gajendragadkar in
     Rangachari (supra) on this aspect which is being discussed in


229 Justice Wanchoo’s opinion “32. Therefore, when Article 16(4) says that reservation may be made in
    order that any backward class of citizens may be adequately represented in the services it means that
    reservation may be made in order to make the number of any backward class sufficient in the services
    under the State. These words do not in my opinion convey any idea of equality […]; Justice Ayyangar
    [Paragraph 43]: “[…] I have drawn attention to this because it pointedly demonstrates that the correct
    view is that when “inadequacy of representation” is referred to in Article 16(4) as justifying a reservation,
    the only rational and reasonable construction of the words are that it refers to a quantitative deficiency
    in the representation of the backward classes in the service taken as a whole and not to an inadequate
    representation at each grade of service or in respect of each post in the service.”
230 [1967] 2 SCR 265
231 (1992) Supp. 3 SCC 217 [517]
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      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.
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);
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        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.

        d.       Yardstick for sub-classification
174. This takes us to the next question. What must be the rational basis for
     sub-classification within the beneficiary classes? Since the purpose
     of Articles 15(4) and 16(4) is to ensure equality of opportunity of
     the socially backward classes, the criterion for sub-classification
     within a class (be it the Other Backward Classes or the Scheduled
     Castes or Tribes) must be an indicator of social backwardness.
     The yardstick for classification must differentiate the class based
     on inter-se social backwardness. The inter-se backwardness could
     be identified based on the same or different identity. The State has
     identified the Other Backward Classes, the Scheduled Castes and
     the Scheduled Tribes.232 Here, the State sub-classifies based on
     the same identity, that is, social backwardness because of caste
     identity. Horizontal reservation is provided to classes which face
     backwardness due to identities other than caste such as gender233
     and disability.234 Here, the State sub-classified based on a different
     identity.
175. Though Article 16(4) only refers to the “backward class” collectively,
     the Scheduled Castes are differentiated because they suffer from
     social backwardness in the form of untouchability which leads to
     educational and economic backwardness. The Scheduled tribes
     are classified as a separate class because they suffer from social
     backwardness because of their spatial and cultural isolation from
     the rest of the population.235 Since the State can use any yardstick
     to determine inter-se backwardness, it is not necessary that the
     criteria for sub-classification and the criteria used to distinguish


232 See the Central Educational Institutions (Reservation in Admission) Act 2006
233 Seats have been reserved for women through executive notifications issued by various states.
234 See The Rights of Persons with Disabilities Act 2016, Sections 32, 34
235 Galanter,supra, 147
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        the class from the other classes must be the same. That is, if the
        criteria for recognizing the Scheduled Castes as a backward class
        is untouchability, it is not necessary that the group can be sub-
        classified only if there is inter-se backwardness due to the same
        identity (that is, untouchability).
176. The Scheduled Castes are a collection of castes, races or tribes
     or parts of groups, races or tribes.236 Caste is both a unit in the
     sense that it consists of a homogenous group of people and is
     also an indicator of backwardness because it is an occupational
     grouping.237 The nexus between caste and occupation continues to
     persist, more predominantly in the rural areas. This position has been
     expounded by numerous cases right from Balaji (supra) to Indra
     Sawhney (supra). A caste whose traditional occupation is that of
     scavenging and another caste whose traditional occupation is that
     of weaving may both face the stigma of untouchability. However,
     the caste whose traditional occupation is that of scavenging will
     be more socially backward when compared to the weaver caste
     because of the caste-occupation-poverty nexus.
177. How does the State identify inter-se social backwardness within the
     Scheduled Castes? As discussed above, the inter-se backwardness
     can, inter alia, be identified based on inadequacy of effective
     representation. However, it must be proved that inadequacy
     of effective representation of a 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:



236 Constitution of India 1950; Article 366(24)
237 (1992) Supp. 3 SCC 217 [ Justice Jeevan Reddy, 779]
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        a.   Whether the State should earmark seats for the each of the
             sub-categorized classes or follow a preference model; and
        b.   Whether the State can allocate seats or preference for each
             of the castes in the Scheduled Castes List.
     This section is not intended to prescribe an inflexible criterion for
     the State. Our analysis will lay down broad constitutional parameters
     without trenching on matters of policy.
        a.   Model of special provisions
179. A crucial issue which arises for consideration is with respect to the
     model of reservations for the sub-classified classes. There are two
     models that the 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
[2024] 8 S.C.R.                                                         1431

          The State of Punjab & Ors. v. Davinder Singh & Ors.


      notified as a Scheduled Caste with respect to that State by the
      President under Article 341(1). With respect to the preference model,
      the first variation by which preference is given to certain castes to all
      the seats would be an unconstitutional approach because there is
      a possibility that other categories within the class of the Scheduled
      Castes are excluded. For example, if the State grants preference
      to three of the thirty castes classified as the Scheduled Castes
      over all the seats reserved for the Scheduled Castes, it is possible
      that the three castes exercise their preference and fill up all the
      seats. This would lead to a situation where the other twenty-seven
      castes classified as the Scheduled Castes would be excluded
      from the benefit of reservation. This model will be arbitrary and
      unreasonable also because the Other Backward Classes which
      are socially advanced compared to the castes classified as the
      Scheduled Castes would receive the benefit of reservation but the
      castes or groups within the Scheduled Castes would not. The castes
      classified as the Scheduled Castes must be given the opportunity
      to secure the benefit. If not, the provision would become otiose for
      their purposes.
183. However, the second variation of the first model is differently
     placed vis-à-vis the scope of Article 341(2). In the second variation,
     preference to certain castes is given only over a certain percentage
     of the seats. Thus, castes for whom preference is not given but
     which are included in the List of Scheduled Castes will be able
     to compete for a certain percentage of seats. In addition to those
     seats, they may get the opportunity to compete for the percentage
     of seats reserved for the sub-classified caste, if they are left unfilled.
     Thus, this model does not have the effect of excluding any of the
     castes in the Scheduled Castes List.
184. The difference between the first and the second model is the method
     in which unfilled vacancies of the more-backward sub-category are
     to be filled. In the former, the more backward sub-category only has
     a preference to a certain percentage of seats while in the latter,
     a percentage of the seats is exclusively available to them and the
     unfilled seats, if any, will not be available to be filled by the more
     advanced category of the class. The State may carry forward the
     unfilled vacancies to the subsequent year which will be available
     to the same category for which the seats were reserved.
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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 Scheduled
     Castes. The Constitutional validity of Article 16(4-B) was upheld in
     Nagaraj (supra). Thus, there is no reason to prevent the State from
     exercising its power under Article 16(4-B) of carrying forward the
     vacancies which are reserved for a specific sub-category. Such an
     exercise will be legal and valid.
187. Like the first model, the constitutionality of the exclusive model
     depends on the percentage of reservation for the sub-categorized
     castes. The model of sub-classification will be unconstitutional if it
     excludes some Scheduled Castes from the benefit. This, similar to the
     first variant of the preference model, would violate of Article 341(2),
     and would thus be unconstitutional. However, the second version
     of the exclusive model in which only a certain percentage of
     seats is exclusively allotted to the sub-classified castes would be
     constitutional. For example, if ten percent of the seats reserved for
     the Scheduled Castes are reserved for the more backward among
     Scheduled Castes, the other castes will have the chance to compete
     for the other ninety percent of the seats, thus, not excluding any of
     the castes. The sole test is whether the operation of the policy has
     the effect of eliminating the possibility of castes or groups competing
     for the seats reserved for the Scheduled Castes.
188. Article 341(2), as we have noted above, unambiguously prevents
     inclusion in and exclusion from the Scheduled Castes List by anyone
     except Parliament. Inclusion could be by way of extending the
[2024] 8 S.C.R.                                                        1433

          The State of Punjab & Ors. v. Davinder Singh & Ors.


      benefits meant for Scheduled Castes in the State, to a community
      that is not specifically mentioned in the 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-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
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        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 that caste cannot be the sole basis
     of reservation.238 However, as Marc Galanter notes, the court had
     erroneously fused the two distinct usages of caste, as a unit or
     class, and as a criterion of backwardness.239
193. In Balaji (supra), the criterion for the determination of social
     and educational backwardness was in question. This Court held
     that caste is a relevant consideration for determining social
     backwardness. However, the Court observed that caste cannot
     be the sole basis for determining the beneficiary class because it
     would perpetuate the vice of castes. Disagreeing with the Nagan
     Gowda report, Justice Gajendragadkar writing for the Bench, held
     that economic backwardness and not caste is the ultimate cause
     of social backwardness. This interpretation of the permissibility of
     caste as a criterion to determine the backward class was approved
     in Chitralekha v. State of Mysore.240 In P Rajendran v. State
     of Madras,241 this Court deviated from the approach adopted in



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
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               The State of Punjab & Ors. v. Davinder Singh & Ors.


         Chitralekha (supra) and MR Balaji (supra) observing that caste
         is a class because it is a homogenous “unit”.242 The approach in
         P Rajendran (supra) was later approved by a nine-Judge Bench in
         Indra Sawhney (supra), where this Court observed that to determine
         a socially backward class, a caste can be identified as a unit since
         it is homogenous and then the criteria for backwardness can be
         applied to it.243
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.



242 “It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and
    educationally backward, reservation can be made in favour of such a caste on the ground that it is a
    socially and educationally backward classes within the meaning of Article 15(4).”
243 (1992) Supp. 3 SCC 217 [859]
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        ix.     Scope for judicial review
196. The scope of judicial review of reservation policies was laid down in
     Indra Sawhney (supra). Justice Jeevan Reddy observed that a class
     for meriting reservations must be both backward and inadequately
     represented in the “services under the State”. In Nagaraj (supra),
     this Court held that backwardness must be based on objective
     standards whereas inadequacy of representation must factually exist.
     The Court held that the State must submit quantifiable data to prove
     backwardness and inadequacy of representation. This standard
     applies for classifying groups for the purpose of reservations and
     would, equally apply for sub-classification within a group because
     it is premised on the same principle of difference and inequality.
197. Two prominent considerations arise while discussing the scope of
     judicial review of sub-classification of the Scheduled Castes and
     the Scheduled Tribes. First, whether the State must prove inter-se
     backwardness given the position of law laid down in Indra Sawhney
     (supra) that the backwardness of the Scheduled Castes and the
     Scheduled Tribes is not required to be proved. Second, whether
     the inadequacy of representation of the more backward of the
     Scheduled Castes must be proved.
        a.      Inter-se backwardness
198. In Indra Sawhney (supra), this Court held that the requirement
     of social and educational backwardness cannot be applied to the
     Scheduled Castes and the Scheduled Tribes because they admittedly
     fall within the backward class of citizens.244 One of the issues before
     the Constitution Bench of this Court in Jarnail Singh v. Lachhmi
     Narain Gupta,245 was whether Nagaraj (supra) in requiring the State
     to collect quantifiable data showing backwardness is contrary to
     the decision in Indra Sawhney (supra), where this Court held that
     backwardness of the Scheduled Castes and the Scheduled Tribes
     need not be proved. In Jarnail Singh (supra), this Court held that
     observations in Nagaraj (supra) that the State is required to collect
     quantifiable data to prove the backwardness of the Scheduled Castes
     and the Scheduled Tribes is bad in law because it is contrary to
     Indra Sawhney (supra).


244 (1992) Supp. 3 SCC 217 [Justice Reddy 781; 796-797]
245 [2018] 10 SCR 663 : (2018) 10 SCC 396
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              The State of Punjab & Ors. v. Davinder Singh & Ors.


199. The decision in Indra Sawhney (supra) exempts the State from
     having to prove that the Scheduled Castes and the Scheduled Tribes
     are backward for the purposes of securing benefits under Articles 15
     and 16. The observations do not exempt the State from having to
     justify the decision of sub-classifying within the Scheduled Castes
     and Scheduled Tribes for the purposes of reservation. The basis
     of sub-classification is that few of the castes or groups within the
     class are more backward. Thus, though the State is not required
     to collect quantifiable data to prove backwardness of the entire
     class of the Scheduled Castes/Tribes, it is required to collect data
     to prove inter-se backwardness within the class, where it seeks to
     make a sub-classification within the class.
        b.       Adequacy of representation
200. Justice Jeevan Reddy noted in Indra Sawhney (supra) that the
     issue of whether a class is inadequately represented is a matter
     within the subjective satisfaction of the State which is evident from
     the use of the phrase “in the opinion of the State”, and that the
     subjective satisfaction of the executive action must be judicially
     reviewed based on the standard laid down in Barium Chemicals
     v. Company Law Board. 246 In Barium Chemicals (supra), a
     Constitution Bench of this Court while determining the validity of
     administrative actions held that though the formation of opinion by
     the State may be based on its subjective satisfaction, the State
     could not act based on circumstances it ‘thinks’ existed. There
     must be apparent circumstances that merit a certain inference
     by the State, and such circumstances, must be shown to exist at
     least prima facie.247 In the preceding section, we have held that
     inadequacy of effective representation is a criterion for determining
     inter-se backwardness. Hence, quantifiable data for that purpose
     must be submitted.
201. In Nagaraj (supra), this Court held that the State must submit
     quantifiable data to satisfy the court that reservations are necessary
     “on account of inadequacy of representation of the Scheduled Castes
     and Scheduled Tribes in a particular class or classes of posts”.248


246 AIR 1967 SC 295; (1992) Supp. 3 SCC 217 [Justice Reddy, 798]
247 AIR 1967 SC 295 [28]
248 Nagaraj v. Union of India (2006) 8 SCC 212 [117]
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        However, in the subsequent paragraphs, this Court held that the
        cadre strength must be taken as a unit to ascertain whether a given
        class or group is adequately represented. These observations were
        made in the backdrop of RK Sabharwal (supra) where this Court
        held that the entire cadre strength should be taken into account
        to determine if the quota limit has been breached. The relevant
        observations are delineated as under:
            “82. Before dealing with the scope of the constitutional
            amendments we need to recap the judgments in Indra
            Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
            Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal [(1995)
            2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]. In
            the former case the majority held that 50% rule should be
            applied to each year otherwise it may happen that the open
            competition channel may get choked if the entire cadre
            strength is taken as a unit. However, in R.K. Sabharwal
            [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29
            ATC 481] this Court stated that the entire cadre strength
            should be taken into account to determine whether the
            reservation up to the quota limit has been reached. It
            was clarified that the judgment in Indra Sawhney [1992
            Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22
            ATC 385] was confined to initial appointments and not to
            promotions. The operation of the roster for filling the cadre
            strength, by itself, ensures that the reservation remains
            within the ceiling limit of 50%.
            83. In our view, the appropriate Government has to apply
            the cadre strength as a unit in the operation of the roster
            in order to ascertain whether a given class/group
            is adequately represented in the service. The cadre
            strength as a unit also ensures that upper ceiling limit of
            50% is not violated. Further, roster has to be post-specific
            and not vacancy based.”
                                                   (emphasis supplied)
202. At this juncture, it is important that we clarify the observations in
     Nagaraj (supra) extracted above. In Nagaraj (supra), this Court
     referred to the judgment in RK Sabharwal while observing that
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          The State of Punjab & Ors. v. Davinder Singh & Ors.


      the cadre must be taken as a unit to determine the inadequacy
      of representation. However, the context in which RK Sabharwal
      (supra) held cadre must be considered as a unit was different. In
      that case, two issues were considered. First, whether appointments
      of the backward classes in the general category must be counted
      while working out the percentage of reservation for the backward
      classes. Second, whether the reservation is complete when the
      posts earmarked for the Scheduled Castes or Scheduled Tribes are
      filled. It is while answering the second of the issues that this Court
      held that reservations must operate in accordance with the roster
      maintained in the Department which will be a running account every
      year to ensure that there is no excessive reservation. This Court
      explained the working of the calculation of cadre-based vacancy as
      follows: posts falling in specific serial numbers would be reserved
      seats allotted to each class and when a reserved seat falls vacant,
      it must be filled by the person of the same category:
           “5. […] concept of “running account” in the impugned
           instructions has to be so interpreted that it does not
           result in excessive reservation. “16% of the posts …”
           are reserved for members of the Scheduled Castes and
           Backward Classes. In a lot of 100 posts those falling at
           Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72,
           80, 87 and 91 have been reserved and earmarked in the
           roster for the Scheduled Castes. Roster points 26 and 76
           are reserved for the members of Backward Classes. It is
           thus obvious that when recruitment to a cadre starts then 14
           posts earmarked in the roster are to be filled from amongst
           the members of the Scheduled Castes. To illustrate, first
           post in a cadre must go to the Scheduled Caste and
           thereafter the said class is entitled to 7th, 15th, 22nd and
           onwards up to 91st post. When the total number of posts
           in a cadre are filled by the operation of the roster then the
           result envisaged by the impugned instructions is achieved.
           In other words, in a cadre of 100 posts when the posts
           earmarked in the roster for the Scheduled Castes and the
           Backward Classes are filled the percentage of reservation
           provided for the reserved categories is achieved. We see
           no justification to operate the roster thereafter. The “running
           account” is to operate only till the quota provided under
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            the impugned instructions is reached and not thereafter.
            […] As and when there is a vacancy whether permanent
            or temporary in a particular post the same has to be filled
            from amongst the category to which the post belonged
            in the roster. For example the Scheduled Caste persons
            holding the posts at roster points 1, 7, 15 retire then these
            slots are to be filled from amongst the persons belonging
            to the Scheduled Castes. Similarly, if the persons holding
            the post at points 8 to 14 or 23 to 29 retire then these
            slots are to be filled from among the general category. By
            following this procedure there shall neither be shortfall nor
            excess in the percentage of reservation.”
203. The inference in Nagaraj (supra) that cadre must be taken as a
     unit to determine inadequacy of reservation based on the above
     observations in RK Sabharwal (supra), in our respectful opinion, is
     misplaced. The cadre as a unit was considered only for the purpose
     of preparation of roster to draw a balance between the reserved and
     open seats. This Court did not hold that cadre must be used as a
     unit for the purpose of determining the adequacy of representation.
     In fact, RK Sabharwal (supra) says to the contrary. RK Sabharwal
     (supra) observed that the State Government may take the total
     population of a particular Backward Class and its representation in
     the State Services while determining adequacy of representation:
            “4. […] It is, therefore, incumbent on the State Government
            to reach a conclusion that the Backward Class/Classes
            for which the reservation is made is not adequately
            represented in the State Services. While doing so the
            State Government may take the total population of a
            particular Backward Class and its representation in the
            State Services.”
        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
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           The State of Punjab & Ors. v. Davinder Singh & Ors.


      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.
      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;
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        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-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 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.
[2024] 8 S.C.R.                                                              1443

               The State of Punjab & Ors. v. Davinder Singh & Ors.



       B.R. Gavai, J.
                                               INDEX*
        I.     BACKGROUND                                      Paras 1 to 7
        II.    ARTICLE 341, ARTICLE 342 AND THE                Paras 8 to 49
               PRESIDENTIAL ORDER FOR SCHEDULED
               CASTES AND SCHEDULED TRIBES
        III.   JUDICIAL PRECEDENTS                             Paras 50 to 168
               A.    M.R. Balaji vs. State of Mysore           Paras 52 to 62
               B.    State of Kerala vs. N.M. Thomas           Paras 63 to 99
               C.    Akhil Bharatiya Soshit Karamchari Sangh Paras 100 to 122
                     (Railway) vs. Union of India
               D.    K.C. Vasanth Kumar vs. State of Karnataka Paras 123 to 134
               E.    Indra Sawhney vs. Union of India          Paras 135 to 147
               F.    E.V. Chinnaiah vs. State of A.P.          Paras 148 to 162
               G. M. Nagaraj vs. Union of India                Paras 163 to 164
               H.    Jarnail Singh vs. Lachhmi Narain Gupta    Paras 165 to 168
        IV.    PRESENT REFERENCE                               Paras 169 to 171
        V.     CONSIDERATION                                   Paras 172 to 271
        VI.    THE WAY FORWARD                                 Paras 272 to 295
        VII. CONCLUSION                                        Para 296

       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

* Ed. Note: Pagination as per the original Judgment.
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          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
          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 remove this contradiction at the earliest possible
          moment or else those who suffer from inequality will blow
          up the structure of political democracy which this Assembly
          has so laboriously built up.”
1.   These are the words of warning, which Dr. B.R. Ambedkar, the
     Chief Architect of the Indian Constitution, gave in his speech on 25th
[2024] 8 S.C.R.                                                           1445

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     November 1949, while replying to the debate on the final draft of
     the Constitution. This was the day prior to 26th November 1949, on
     which day, the Constituent Assembly adopted, enacted, and gave
     to our country the most cherished document for every Indian, “the
     Constitution of India”.
2.   He warned that we should not be content with mere political
     democracy but make our political democracy a social democracy
     as well. He emphasized that a social democracy would mean a
     way of life which recognizes liberty, equality, and fraternity as the
     principles of life. According to him, liberty, equality, and fraternity, not
     individually but a trinity of the three was necessary for converting
     our political democracy into social democracy. He pointed out
     the contradictions in the country about the social and economic
     structure. He warned that if we continue to deny equality in social
     and economic life for long, we will do so only by putting our political
     democracy in peril. He therefore appealed to the nation to remove
     this contradiction at the earliest possible moment. He warned that
     if we do not do so, those who suffer from inequality will blow up
     the structure of political democracy which the Constituent Assembly
     had so laboriously built up.
3.   Two months thereafter, the Constitution of India came into force on
     26th January 1950. On 26th November 2023, we have completed 74
     years from the date on which the Constitution of India was enacted,
     adopted, and given to ourselves. On 26th January 2024, we have
     completed 74 years from the date on which the Constitution of India
     came into effect. We are now in the 75th year of our Republic.
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.
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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, the rival classes inside them
      claim that once the classes are brought into the Presidential List
      of Scheduled Castes or Scheduled Tribes, they become a part of
      homogeneous group, and a further classification is not permissible
      under the Constitution.
6.    This quest of the underprivileged for more preferential treatment as
      compared to the more advantageous in the larger group falls for
      consideration in the present reference.
7.    The 5-Judge Bench of this Court in the case of E.V. Chinnaiah vs.
      State of A.P. and others1 has held that such a further classification
      on the ground of more backwardness among the backwards listed
      in the Presidential List is not permissible. However, another 5-Judge
      Bench of this Court in the case of The State of Punjab & Ors. vs.
      Davinder Singh & Ors.2 has doubted the view in E.V. Chinnaiah
      (supra) and referred the matter to a larger Bench. That is how these
      matters came up for consideration before us.
      II.    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 ‘submerged tenth’ in England, i.e., unskilled labourers,


1    (2005) 1 SCC 394
2    (2020) 8 SCC 1
[2024] 8 S.C.R.                                                                               1447

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     scavengers, sweepers, casual dock labourers, etc., constituting
     10% of the population of that country. However, by 1918, the term
     ‘depressed classes’ began to be used for only low-caste Hindus
     who suffered from the stigma of untouchability. The word ‘class’ in
     ‘depressed class’ was really a synonym for caste.3
10. It would be apposite to start with the Census Report of 1891.
    It refers to the manner of enumeration of castes including castes,
    tribes and sub-divisions. It also refers to the scheme of classification
    based on occupation divided into 60 categories. Then the said report
    regroups these 60 categories into 21 groups. The said report refers
    to Rajputs and Jats as tribes, larger than castes. Class VII deals
    with “Leather Workers and Lower Village Menials” and it includes
    the following groups:
             "40. Leather workers
             41. Watchmen and Village Menials
             42. Scavengers”
11. Thereafter comes the Indian Statutory Commission Report, 1930. The
    heading of Chapter 4 of Part I is “Caste and the Depressed Classes”.
    The report specifically states that a Caste has been described as
    “the foundation of the Indian social fabric”. It further states that
    every Hindu necessarily belongs to the caste of his parents, and
    in that caste he inevitably remains. It states that no accumulation
    of wealth and no exercise of talents can alter his caste status; and
    marriage outside his caste is prohibited or severely discouraged. It
    further states that in some cases, the application of the rule of caste
    seems almost to prescribe the means of livelihood of its members;
    indeed, many castes partake of the nature of occupational guilds.
    It states that the caste system, which may have originated in the
    preservation of ceremonial purity in social relations and in rules
    designed to limit admixture of blood, has during ages developed
    into an institution which assigns to each individual his duty and his
    position in orthodox Hinduism. However, the boundary which brings
    members of the same caste together also serves to separate them
    from innumerable compartments embracing other castes. It further


3   Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of India (Viking
    by Penguin Random House India 2023).
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     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 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
    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
[2024] 8 S.C.R.                                                       1449

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     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 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.
16. The Report further points out that in Bombay and the Central
    Provinces, the position was more or less comparable with that in
    Madras. The Report also refers to the telegrams from Nasik and
    Poona, in the Bombay Presidency, wherein organized action on
    the part of some untouchables was taken to assert a claim to enter
    Hindu temples.
17. It may not be out of place to mention that during the relevant period Dr.
    B.R. Ambedkar had also started a movement for opening waterbodies
    to the untouchables and even untouchables being permitted to enter
    the temples. One of such agitations was about a public tank called
    ‘Chavder tank’ in Mahad, held on 20th March 1927 and another was
    an attempt to enter Kalaram temple at Nashik on 2nd March 1930.
18. The Report further states that in Bengal, Bihar and Orissa and the
    United Provinces, although there were large numbers belonging
    to untouchable castes, in general they do not seem to suffer so
    universally or so severely as in the South. The Report, however,
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     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.
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.
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.
[2024] 8 S.C.R.                                                          1451

          The State of Punjab & Ors. v. Davinder Singh & Ors.


23. Similarly, Section 60 of the 1935 Act deals with “Constitution of
    Provincial Legislatures”. Section 61 of the 1935 Act provides for
    “Composition of Chambers of Provincial Legislatures”. Sub-section (1)
    of Section 61 provided that the composition of the Chamber or
    Chambers of the Legislature of a Province shall be such as is specified
    in relation to that Province in the Fifth Schedule to the 1935 Act.
24. The First Schedule to the 1935 Act provided for “Composition of the
    Federal Legislature”. Clause 4 thereof inter alia provides for seats
    for representatives of the Scheduled Castes.
25. It will be relevant to reproduce Clause 8 of the First Schedule to the
    1935 Act, which reads thus:
           “8. In any Province to which a seat to be filled by a
           representative of the scheduled castes is allotted, a person
           to fill that seat shall be chosen by the members of those
           castes who hold seats in the Chamber or, as the case may
           be, either Chamber of the Legislature of that Province.”
26. It could thus be seen that the 1935 Act provided that in any Province
    where seat(s) is/are to be filled by the representatives of the Scheduled
    Castes where they are so allotted, shall be chosen by the members
    of those castes who hold seats in the Chamber or either Chamber
    of the Legislature of that Province.
27. Clause 18 of the First Schedule deals with “The Federal Assembly”.
28. It could thus be seen that Clause 18 of First Schedule to the 1935
    Act inter alia deals with seats reserved for members of the Scheduled
    Castes.
29. Clause 26 of the First Schedule to the 1935 Act is the interpretation
    clause. It defines “the Scheduled Castes” as under:
           ““the scheduled castes” means such castes, races or
           tribes or parts of or groups within castes, races or tribes,
           being castes, races, tribes, parts or groups which appear
           to His Majesty in Council to correspond to the classes of
           persons formerly known as “the depressed classes”, as
           His Majesty in Council may specify;”
30. It is thus clear that the 1935 Act defines ‘the Scheduled Castes” to
    mean such castes, races or tribes or parts of or groups within castes,
    races or tribes, being castes, races, tribes, parts or groups which
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     appear to His Majesty in Council to correspond to the classes of
     persons formerly known as “the depressed classes”, as His Majesty
     in Council may specify.
31. It could thus be seen that the definition of “the Scheduled Castes”
    can be traced to “the depressed classes”, which were used in a
    generic sense earlier and again traced to the most backward people
    suffering untouchability.
32. Then comes the Government of India (Scheduled Castes) Order, 1936
    (hereinafter referred to as “the 1936 Order”), notified on 30th April
    1936. It will be relevant to refer to the said order, which is as under:
         “THE GOVERNMENT OF INDIA (SCHEDULED CASTES)
                                 ORDER, 1936
                               ______________
                AT THE COURT AT BUCKINGHAM PALACE
                          The 30th day of April, 1936
                                    Present,
                THE KING’S MOST EXCELLENT MAJESTY
                                 IN COUNCIL
          Whereas by certain provisions in the First, Fifth and Sixth
          Schedules to the Government of India Act, 1935, His
          Majesty in Council is empowered to specify the castes,
          races or tribe or parts of or groups within castes, races
          or tribes which are to be treated as the scheduled castes
          for the purposes of those Schedules:
          AND WHEREAS a draft of this Order was laid before
          Parliament in accordance with the provisions of
          subsection (1) of section three hundred and nine of the
          said Act and an Address has been presented by both
          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 :-
[2024] 8 S.C.R.                                                            1453

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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;
           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.
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                                 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
              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
[2024] 8 S.C.R.                                                         1455

          The State of Punjab & Ors. v. Davinder Singh & Ors.


                 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

                                 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,   Mukri
                                     or Hulsavar
                    Chakrawadya –    Holaya               Nadia
                    Dasar
                    Chalvadi         Khalpa               Shenva, or
                                                          Shindhava
                    Chambhar, or     Kolcha, or Kolgha Shingdav, or
                    Mochigar, or                       Shingadya
                    Samagar
                    Chena – Dasaru   Koli Dhor            Sochi
                    Chuhar, or       Lingader             Timali
                    Chuhra
                    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.
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                             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
[2024] 8 S.C.R.                                                      1457

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                            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
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                           PART V – PUNJAB
        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
        (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
[2024] 8 S.C.R.                                                               1459

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              PART VII – CENTRAL PROVINCES AND BERAR

                    Scheduled
                                                   Localities
                    Castes
                    Basor, or
                    Burud
                    Chamar
                    Dom
                    Ganda
                                     Throughout the Province
                    Mang
                    Mehtar or
                    Bhangi
                    Mochi
                    Satnami
                    Audhelia     :   In the Bilaspur district
                    Bahna        :   In the Amraoti district
                    Balahi, or   :   In the Berar division and the Balaghat,
                    Balai            Bhandara, Betul, Chanda, Chhindwara,
                                     Hoshangabad, Jubbulpore, Mandla,
                                     Nagpur, Nimar Saugor and Wardha
                                     districts
                    Bedar        :   In the Akola, Amraoti and Buldana
                                     districts.
                    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.
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        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.
        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 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
[2024] 8 S.C.R.                                                               1461

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                    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, Nagpur
                                    and Wardha districts.
                    Mala        :   In the Balaghat, Betul, Chhindwara,
                                    Hoshangabad, Jubbulpore, Mandla,
                                    Nimar and Saugor districts.
                    Mehra, or   :   Throughout the Province, except in
                    Mahar           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.
                    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.
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                            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
              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
[2024] 8 S.C.R.                                                         1463

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           (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) 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 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.
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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 ‘Kotegar’ would be a Scheduled Caste
    only in the Kanara district and not in the rest of the Province.
37. It could thus be seen that the 1936 Order formed the basis of the
    Constitution (Scheduled Castes) Order, 1950 (hereinafter referred
    to as “the 1950 Order”) issued under Article 341(1) after the
    commencement of the Constitution.
38. Then comes the most important event i.e. the debate in the Constituent
    Assembly on 17th September 1949, when Dr. B.R. Ambedkar moved
    two new draft Articles being Articles 300A and 300B, which read thus:
          “300A-Scheduled Castes
               (1) The President may, after consultation with the
               Governor or Ruler of a State, by public notification
               specify the castes, races or tribes or Scheduled Castes
               parts of or groups within castes, races or tribes, which
               shall for purposes of this Constitution be deemed to
               be Scheduled Castes in relation to that State.
               (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
[2024] 8 S.C.R.                                                         1465

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                any Tribe or Tribal community but save as aforesaid
                a notification issued under the said 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.”
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.
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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 notified, the
    Executive should not tinker with it and any addition or deletion had
    to be made only by Parliament.
45. It will also be relevant to refer to the speech of Shri V.I.Muniswami
    Pillai, given on the same day i.e. 17th September 1949 in support of
    the amendment, which reads as under:
          “Shri V. I. Muniswami Pillai : Mr. President, I come to
          support the amendments that have been moved by the
          Honourable Dr. Ambedkar. These amendments deal with
          the definition of Scheduled Castes. As far as I can see
          he has made it clear that, according to the second part
          of it, the President on the 26th January 1950 will publish a
          list of such communities that come under the category of
          Scheduled Castes. But I would like to inform this House
          of the background which brought out the special name
          of Scheduled Castes. It was the intouchability, the, social
          evil that has been practised by the Hindu Community for
          ages, that was responsible for the Government and the
          people to know the section of people coming under the
          category of Hindus and who were kept at the outskirts
          of the Hindu society. Going backwards to 1916 it was in
          that year when Government found that something had
          to be done for the untouchable classes, (when they said
          untouchable classes, they were always understood to be
[2024] 8 S.C.R.                                                             1467

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           Hindus,) and they had to be recognised. In Madras there
           were six communities that came under this classification.
           During the Montago Chelmsford reforms they were made
           ten. In 1930 when the great epoch-making fast of Mahatma
           Gandhi came about, then only the country saw who were
           the real untouchable classes. And in the 1935 Act, the
           Government thoroughly examined the whole thing and as
           far as the Province of Madras is concerned they brought
           86 communities into this list or category, though there
           were some touchable classes also. Now, after further
           examination the Provincial Governments have drawn up
           a list and I think according to the amendment mover’s
           suggestions, all those communities that come-under the
           category of untouchables and those who profess Hinduism
           will be the Scheduled Castes, because I want to emphasise
           about the religion. I emphasise this because of late there
           have been some movements here and there; there are
           people who have left Scheduled Castes and Hinduism
           and joined other religions and they also are claiming to
           be scheduled Castes. Such convert cannot come under
           the scope of this definition. While I have no objection to
           Government granting any concessions to these converts,
           I feel strongly that they should not be clubbed along with
           Scheduled Castes.
           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.
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          I strongly oppose the amendment moved by Pandit
          Bhargava. The reason is that he wants to have the ten
          years period for observing these amendments. But he has
          entirely forgotten that under another article that we have
          already passed, or will pass the Constitution provides for
          the appointment of a Special officer at the Centre and also
          various officers in all the Provinces to go into the various
          disabilities of these communities and to submit a report
          to the President who will then be able to know whether
          the Scheduled Castes have reached a stage when the
          facilities now given to them could be withdrawn. I do not
          think that the reasons that he has advanced are fair and
          square for the uplift of the Harijans.
          With these few words, I support the amendment.”
46. It can thus be seen that the Learned Member of the Constituent
    Assembly refers to the background which brought out the special
    name of Scheduled Castes. He refers to untouchability, the social evil
    that has been practiced by the Hindu Community for ages. He states
    that a section of people, though Hindus, were kept at the outskirts of
    the Hindu society and it was in the year 1916 when the Government
    found that something had to be done for the untouchable classes.
    He refers to the efforts made by Mahatma Gandhi. He identified as
    to who 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 be by the
    word of Parliament. He states that he is grateful to the Chairman for
[2024] 8 S.C.R.                                                              1469

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     bringing in this clause and that when Harijans behave independently
     or assert their right on some matters, not only the members of that
     community but their entire community is harassed.
48. Having referred to the history of as to how the concept of Scheduled
    Castes and Scheduled Tribes has emerged, I, now, for the sake
    of convenience, refer to the provisions in the Constitution of India
    dealing with the special treatment provided to the Scheduled Castes,
    Scheduled Tribes and Other Backward Classes. Since we are not
    concerned with political reservations, I do not find it necessary to
    refer to the provisions dealing therewith. Since Articles 341 and
    342 are draft Articles 300A and 300B, which were approved by the
    Constituent Assembly on 17th September 1949, I do not repeat the
    same here.
     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 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
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        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 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.
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           (3) Nothing in this article shall prevent Parliament from
           making any law prescribing, in regard to a class or classes
           of employment or appointment to an office 14[under the
           Government of, or any local or other authority within, a
           State or Union territory, any requirement as to residence
           within that State or Union territory] prior to such employment
           or appointment.
           (4) Nothing in this article shall prevent the State from
           making any provision for the reservation of appointments
           or posts in favour of any backward class of citizens which,
           in the opinion of the State, is not adequately represented
           in the services under the State.
           (4-A) Nothing in this article shall prevent the State
           from making any provision for reservation in matters of
           promotion, with consequential seniority, to any class or
           classes of posts in the services under the State in favour
           of the Scheduled Castes and the Scheduled Tribes which,
           in the opinion of the State, are not adequately represented
           in the services under the State.
           (4-B) Nothing in this article shall prevent the State from
           considering any unfilled vacancies of a year which are
           reserved for being filled up in that year in accordance
           with any provision for reservation made under clause (4)
           or clause (4-A) as a separate class of vacancies to be
           filled up in any succeeding year or years and such 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),
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        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 Scheduled Tribes, and shall protect them
        from social injustice and all forms of exploitation.”
        “335. Claims of Scheduled Castes and Scheduled
        Tribes to services and posts.—The claims of the
        members of the Scheduled Castes and the Scheduled
        Tribes shall be taken into consideration, consistently with
        the maintenance of efficiency of administration, in the
        making of appointments to services and posts in connection
        with the affairs of the Union or of a State:
        Provided that nothing in this article shall prevent in making
        of any provision in favour of the members of the Scheduled
        Castes and the Scheduled Tribes for relaxation in qualifying
        marks in any examination or lowering the standards of
        evaluation, for reservation in matters of promotion to any
        class or classes of services or posts in connection with
        the affairs of the Union or of a State.”
        “338. National Commission for Scheduled Castes.—
        (1) There shall be a Commission for the Scheduled
        Castes to be known as the National Commission for the
        Scheduled Castes.
        (2) Subject to the provisions of any law made in this
        behalf by Parliament, the 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.
[2024] 8 S.C.R.                                                             1473

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           (4) The Commission shall have the power to regulate its
           own procedure.
           (5) It shall be duty of the Commission—
                (a) to investigate and monitor all matters relating to the
                safeguards provided for the Scheduled Castes under
                this Constitution or under any other law for the time
                being in force or under any order of the Government
                and to evaluate the working of such safeguards;
                (b) to inquire into specific complaints with respect
                to the deprivation of rights and safeguards of the
                Scheduled Castes ;
                (c) to participate and advise on the planning process
                of socio-economic development of the Scheduled
                Castes and to evaluate the progress 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.
           (7) Where any such report, or any part thereof, relates
           to any matter with which any State Government is
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        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;
             (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—
        ********
[2024] 8 S.C.R.                                                        1475

            The State of Punjab & Ors. v. Davinder Singh & Ors.


            (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;”
49. It will be relevant to note that in the draft definition of ‘the Scheduled
    Castes’, the word used earlier was “specify”. However, in the final clause
    (24) of Article 366, the word “specify” has been changed to “deemed”.
     III.   JUDICIAL PRECEDENTS
50. In the last 74 years, the aforesaid constitutional provisions have
    been considered by this Court on a number of occasions. It will be
    relevant to refer to some of these judgments.
51. It will also be relevant to note that by the First Amendment to the
    Constitution in the year 1951 by which clause (4) was added to Article
    15 was necessitated on account of the judgment of this Court in the
    case of State of Madras vs. Smt. Champakam Dorairajan4 wherein
    Government Order specifying reservation for Harijans was set aside.
     A.     M.R. Balaji vs. State of Mysore
52. In the case of M.R. Balaji and others vs. State of Mysore,5 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.


4   [1951] SCR 525
5   [1963] Supp. 1 SCR 439 : 1962 SCC OnLine 147 : AIR 1963 SC 649
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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 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
[2024] 8 S.C.R.                                                             1477

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           may by the Presidential order be included in Scheduled
           Castes and Tribes. That helps to bring out the point that
           the Backward Classes for whose improvement special
           provision is contemplated by Article 15(4) are in the matter
           of their backwardness comparable to Scheduled Castes
           and Scheduled Tribes.”
55. This Court observed that the backward classes of citizens
    for whom special provision is authorized to be made are, by
    Article 15(4) itself, treated as being similar to the Scheduled Castes
    and Scheduled Tribes. It has been observed that the Scheduled
    Castes and Scheduled Tribes which have been defined were known
    to be backward and the Constitution-makers felt no doubt that
    special provision had to be made for their advancement. However,
    it was realized that in the Indian Society there were other classes of
    citizens who were equally, or may be somewhat less backward than
    the Scheduled Castes and Scheduled Tribes, and it was thought that
    some special provision ought to be made even for them. The Court
    observed that the Backward Classes for whose improvement special
    provision is contemplated by Article 15(4) are in the matter of their
    backwardness comparable to Scheduled Castes and Scheduled
    Tribes.
56. It will also be apposite to refer to the following observations of this
    Court:
           “21. ……The backwardness under Article 15(4) must be
           social and educational. It is not either social or educational,
           but it is both social and educational; and that takes us to the
           question as to how social and educational backwardness
           has to determined.”
57. It is thus clear that the Constitution Bench of this Court observed that
    the backwardness under Article 15(4) must be social and educational.
    It is neither social nor educational, but it has to be both social and
    educational.
58. The Court then considered the question as to whether caste can be
    made the sole basis for determining the social backwardness was
    permissible or not. The Court observed that 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
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     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 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 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
[2024] 8 S.C.R.                                                              1479

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     student population per thousand was slightly above, or very near, or
     just below the State average.
     B.     State of Kerala vs. N.M. Thomas
63. Coming next to one of the most important judgments dealing with the
    affirmative action which is the 7-Judge Bench judgment of this Court
    in the case of State of Kerala and another vs. N.M. Thomas and
    others.6 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 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.)”


6   [1976] 1 SCR 906 : (1976) 2 SCC 310
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        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 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
        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
[2024] 8 S.C.R.                                                             1481

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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).
           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 separately, trained separately and
           have separate avenues of promotion. The Station Masters
           claimed equality of opportunity for promotion vis-à-vis the
           guards on the ground that they were entitled to equality of
           opportunity. It was said the concept of equality can have
           no existence except with reference to matters which are
           common as between individuals, between whom equality
           is predicated. The Roadside Station Masters and Guards
           were recruited separately. Therefore, the two form distinct
           and separate classes and there is no scope for predicating
           equality or inequality of opportunity in matters of promotion.
           (See All India Station Masters and Assistant Station
           Masters’ Association v. General Manager, Central Railway
           [AIR 1960 SC 384 : (1960) 2 SCR 311].) The present
           case is not to create separate avenues of promotion for
           these persons.”
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65. It could thus be seen that in the opinion of Ray, C.J., Articles 14,
    15 and 16 form part of a string of constitutional rights guaranteed
    by it, which supplement each other. His Lordship observed that
    Article 16, which ensures to all citizens equality of opportunity in
    matters relating to employment is an incident of guarantee of equality
    contained in Article 14. In turn, Article 16(1) gives effect to Article 14.
    Both Articles 14 and 16(1) permit reasonable classification having a
    nexus with the objects to be achieved.
66. Referring to the judgment of this Court in the case of State of
    Gujarat v. Shri Ambica Mills Ltd., Ahmedabad,7 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 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 consistently
    with the maintenance of the efficiency of administration.
67. His Lordship further observed thus:
             “38. The principle of equality is applicable to employment
             at all stages and in all respects, namely, initial recruitment,


7   [1974] 3 SCR 760 : (1974) 4 SCC 656.
[2024] 8 S.C.R.                                                             1483

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           promotion, retirement, payment of pension and gratuity.
           With regard to promotion the normal principles are either
           merit-cum-seniority or seniority-cum-merit. Seniority-cum-
           merit means that given the minimum necessary merit
           requisite for efficiency of administration, the senior though
           the less meritorious shall have priority. This will not violate
           Articles 14, 16(1) and 16(2). A rule which provides that given
           the necessary requisite merit, a member of the backward
           class shall get priority to ensure adequate representation
           will not similarly violate Article 14 or Article 16(1) and (2).
           The relevant touchstone of validity is to find out whether
           the rule of preference secures adequate representation for
           the unrepresented backward community or goes beyond it.”
68. It is observed that the rule which provides that given the necessary
    requisite merit, a member of the backward class shall 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 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,
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          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 regard to administrative efficiency alone can
          mean equality of opportunity for all citizens. Equality under
          Article 16 could not have a different content from equality
          under Article 14. Equality of opportunity for unequals
          can only mean aggravation of inequality. Equality of
          opportunity admits discrimination with reason and prohibits
          discrimination without reason. Discrimination with reasons
          means rational classification for differential treatment having
          nexus to the constitutionally permissible object. Preferential
          representation for the Backward Classes in services with due
          regard to administrative efficiency is permissible object and
          Backward Classes are a rational classification recognised
          by our Constitution. Therefore, differential treatment in
          standards of selection are within the concept of equality.”
70. His Lordship clearly observed that Scheduled Castes and Scheduled
    Tribes are not a caste within the ordinary meaning of caste. He
    observed that no court can come to a finding that any caste or any
    tribe is a scheduled caste or scheduled tribe. It is observed that
    the object of Article 341 is to provide protection to 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
[2024] 8 S.C.R.                                                            1485

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     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 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 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
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        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 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 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
[2024] 8 S.C.R.                                                           1487

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 are bound to
                start the race of life with advantages no legislation
                can secure. Parental character will inevitably affect
                profoundly the equality of the children whom it
                touches. So long, therefore, as the family endures —
                and there seems little reason to anticipate or to desire
                its disappearance — the varying environments it
                will create make the notion of equal opportunities
                a fantastic one. [“Liberty and Equality” in Special
                Problems and Public Policy : Inequality and Justice,
                Ed. Lee Rainwater, pp. 26 to 31]
           57. Though complete identity of equality of opportunity
           is impossible in the world, measures compensatory in
           character and which are calculated to mitigate surmountable
           obstacles to ensure equality of opportunity can never incur
           the wrath of Article 16(1).”
73. Mathew, J. observed that formal equality is achieved by treating all
    persons equally. Formally, it requires that all men have to be treated
    as the same. He observed that men are not equal in all respects.
    The claim for equality is in fact a protest 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
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     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 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).
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] .
[2024] 8 S.C.R.                                                               1489

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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, 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 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
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          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 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, was developed
          by the Supreme Court of the United States. Rousseau
          has said:
                “It is precisely because the force of circumstances
                tends to destroy equality that force of legislation must
                always tend to maintain it. [Contract Social ii, 11]””
76. His Lordship observed that if we want to give equality of opportunity for
    employment to the members of the Scheduled Castes and Scheduled
    Tribes, we will have to take note of their social, educational, and
    economic environment. His Lordship observed that the directive
    principle embodied in Article 46 is not only binding on the lawmaker,
    but it should equally inform and illuminate the approach of the court
    when it makes a decision. Referring to the exposition in the case of
    His Holiness Kesavananda Bharati Sripadagalavaru vs. State of
[2024] 8 S.C.R.                                                       1491

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     Kerala,8 His Lordship states that the Court is also a ‘state’ when it
     makes a decision within the meaning of Article 12.
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.
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:
            “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


8   [1973] Supp. SCR 1 : (1973) 4 SCC 225
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        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 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 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:
[2024] 8 S.C.R.                                                          1493

          The State of Punjab & Ors. v. Davinder Singh & Ors.


                “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 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
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         and the civil rights laws of Congress, merely removed the
         legal and quasi-legal forms of racial 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.
         79. The State can adopt any measure which would ensure
         the adequate representation in public service of the
         members of the Scheduled Castes and scheduled tribes
         and justify it as a compensatory measure to ensure equality
         of opportunity provided the measure does not dispense
         with the acquisition of the minimum basic qualification
         necessary for the efficiency of administration.”
81. His Lordship observed that there is no reason why this Court
    should not require the State to adopt a standard of proportional
    equality which takes account of the differing conditions and
    circumstances of a class of citizens. His Lordship observed that
    whenever differing conditions and circumstances stand in the
    way of a class of citizens in their equal access to the enjoyment
    of basic rights or claims, the State would be required to adopt a
    standard of proportional equality.
[2024] 8 S.C.R.                                                            1495

          The State of Punjab & Ors. v. Davinder Singh & Ors.


82. He observed that no member of the forward classes or communities
    should complain against a compensatory measure 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 does not consider
    the social, economic, educational background of the members of the
    Scheduled Castes and Scheduled Tribes. He held that if equality of
    opportunity guaranteed under Article 16(1) means effective material
    equality, then Article 16(4) is not an exception to Article 16(1) and
    that it is only an emphatic way of putting the extent to which equality
    of opportunity could be carried i.e., even up to the point of making
    reservation.
85. His Lordship observed that the State can adopt any measure which
    would ensure the adequate representation in public service of the
    members of the Scheduled Castes and Scheduled Tribes and justify
    it as a compensatory measure to ensure equality of opportunity
    provided the measure does not dispense with the acquisition of
    the minimum basic qualification necessary for the efficiency of
    administration.
86. Mathew, J. further observed thus:
           “83. A classification is reasonable if it includes all persons
           who are similarly situated with respect to the purpose of
           the law. In other words, the classification must be founded
           on some reasonable ground which distinguishes persons
           who are grouped together and the ground of distinction must
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          have rational relation to the object sought to be achieved
          by the rule or even the rules in question. It is a mistake to
          assume a priori that there can be no classification within a
          class, say, the lower division clerks. If there are intelligible
          differentia which separates a group within that class from
          the rest and that differentia have nexus with the object of
          classification, I see no objection to a further classification
          within the class. It is no doubt a paradox that though in one
          sense classification brings about inequality, it is promotive of
          equality if its object is to bring those who share a common
          characteristic under a class for differential treatment for
          sufficient and justifiable reasons. In this view, I have no doubt
          that the principle laid down in All India Station Masters and
          Assistant Station Masters Association v. General Manager,
          Central Railway [(1960) 2 SCR 311 : AIR 1960 SC 384.];
          S.G. Jaisinghani v. Union of India and State of J&K. v. Triloki
          Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974)
          1 SCR 771.] has no application here.”
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.
88. V.R. Krishna Iyer, J. in his concurring judgment observed thus:
          “124. A word of sociological caution. In the light
          of experience, here and elsewhere, the danger of
          “reservation”, it seems to me, is threefold. Its benefits,
          by and large, are snatched away by the top creamy
          layer of the “backward” caste or class, thus keeping the
[2024] 8 S.C.R.                                                           1497

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           weakest among the weak always weak and leaving the
           fortunate layers to consume the whole cake. Secondly,
           this claim is overplayed extravagantly in democracy by
           large and vocal groups whose burden of backwardness
           has been substantially lightened by the march of time
           and measures of better education and more opportunities
           of employment, but wish to wear the “weaker section”
           label as a means to score over their near-equals formally
           categorised as the upper brackets. Lastly, a lasting
           solution to the problem comes only from improvement
           of social environment, added educational facilities and
           cross-fertilisation of castes by inter-caste and inter-class
           marriages sponsored as a massive State programme,
           and this solution is calculatedly hidden from view by the
           higher “backward” groups with a vested interest in the
           plums of backwardism. But social science research, not
           judicial impressionism, will alone tell the whole truth and
           a constant process of objective re-evaluation of progress
           registered by the “underdog” categories is essential lest
           a once deserving “reservation” should be degraded into
           “reverse discrimination”. Innovations in administrative
           strategy to help the really untouched, most backward
           classes also emerge from such socio-legal studies and
           audit exercises, if dispassionately made. In fact, research
           conducted by the A.N. Sinha Institute of Social Studies,
           Patna, has revealed a dual society among harijans, a
           tiny elite gobbling up the benefits and the darker layers
           sleeping distances away from the special concessions.
           For them, Articles 46 and 335 remain a “noble romance”
           [As Huxley called it in “Administrative Nihilism” (Methods
           and Results, Vol. 4 of Collected Essays).] , the bonanza
           going to the “higher” harijans. I mention this in the present
           case because lower division clerks are likely to be drawn
           from the lowest levels of harijan humanity and promotion
           prospects being accelerated by withdrawing, for a time,
           “test” qualifications for this category may perhaps delve
           deeper. An equalitarian breakthrough in a hierarchical
           structure has to use many weapons and Rule 13-AA
           perhaps is one.
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          125. The core conclusion I seek to emphasise is that every
          step needed to achieve in action actual, equal, partnership
          for the harijans, alone amounts to social justice — not
          enshrinement of great rights in Part III and good goals in
          Part IV. Otherwise, the solemn undertakings in Articles 14
          to 16 read with Articles 46 and 335 may be reduced to a
          “teasing illusion or promise of unreality”. A clear vision of
          the true intendment of these provisions demands a deep
          understanding of the Indian spiritual-secular idea that
          divinity dwells in all and that ancient environmental pollution
          and social placement, which the State must extirpate,
          account for the current socio-economic backwardness of
          the blacked-out human areas described euphemistically
          as scheduled castes and scheduled tribes. The roots of
          our constitutional ideas — at least some of them — can
          be traced to our ancient culture. The noble Upanishadic
          behest of collective acquisition of cultural strength (सह वीीर्यय
          करवाावहेे) is involved in and must evolve out of “equality”,
          if we are true to the subtle substance of our finer heritage.”
89. His Lordship categorizes three-fold danger of reservation. According
    to him, firstly the benefits, by and large, are snatched 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 undertakings
    in Articles 14 to 16 read with Articles 46 and 335 may be reduced
    to a “teasing illusion or promise of unreality”.
[2024] 8 S.C.R.                                                             1499

          The State of Punjab & Ors. v. Davinder Singh & Ors.


91. His Lordship further observed thus:
           “136. The next hurdle in the appellant’s path relates to
           Article 16(4). To my mind, this sub-article serves not as
           an exception but as an emphatic statement, one mode
           of reconciling the claims of backward people and the
           opportunity for free competition the forward sections are
           ordinarily entitled to. In the language of Subba Rao, J.
           (as he then was), in Devadasan [AIR 1964 SC 179: (1964)
           4 SCR 680, 700 : (1965) 2 LLJ 560].
                “The expression ‘nothing in this article’ is a legislative
                device to express its intention in a most emphatic way
                that the power conferred thereunder is not limited
                in any way by the main provision but falls outside
                it. It has not really carved out an exception, but
                has preserved a power untrammelled by the other
                provisions of the article.”
           True, it may be loosely said that Article 16(4) is an
           exception but, closely examined, it is an illustration of
           constitutionally sanctified classification. Public services
           have been a fascination for Indians even in British days,
           being a 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
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            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 backwardness
            of the type harijans endure and maintenance of
            administrative efficiency must be satisfied.”
92. Referring to the observation of Subba Rao, J. in the case of
    T. Devadasan vs. Union of India,9 Krishna Iyer, J. observed
    that Article 16(4) serves not as an exception but as an emphatic
    statement, one mode of reconciling the claims of backward people
    and the opportunity for free competition the forward sections are
    ordinarily entitled to.
93. He observed that on a closer examination, it can be seen that
    clause (4) of Article 16 is an illustration of constitutionally sanctified
    classification. He observed that Article 16(4) need not be a saving
    clause but put in due to the over-anxiety of the draftsman to make
    matters clear beyond possibility of doubt.
94. It is observed that the “Reservation” based on classification of backward
    and forward classes, without detriment to administrative standards is
    an application of the principle of 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:


9   [1964] 4 SCR 680 : AIR 1964 SC 55
[2024] 8 S.C.R.                                                           1501

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “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 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.
           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:
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                (i) It must have a rational basis;
                (ii) it must have a close nexus with the object sought
                to be achieved;
                (iii) it should not select any person for hostile
                discrimination at the cost of others.”
97. His Lordship observed that differences and disparities exist among
    men and things, and they cannot be treated alike by the application
    of the same laws. He observed that the law must 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 the object sought to be achieved; and (iii) it should
    not select any person for hostile discrimination at the cost of others.
99. Echoing the sentiments of the other Learned Judges, by holding
    that Article 16(4) is not a proviso to Article 16(1), the Learned Judge
    observed thus:
          “187. For these reasons, therefore, I respectfully agree
          with the observations of Subba Rao, J., as he then was, in
          T. Devadasan v. Union of India [AIR 1964 SC 179 : (1964)
          4 SCR 680 : (1965) 2 LLJ 560] where he observed:
                “That is why the makers of the Constitution introduced
                clause (4) in Article 16. The expression ‘nothing
                in this article’ is a legislative device to express its
                intention in a most emphatic way that the power
                conferred thereunder is not limited in any way by the
[2024] 8 S.C.R.                                                                1503

             The State of Punjab & Ors. v. Davinder Singh & Ors.


                     main provision but falls outside it. It has not really
                     carved out an exception, but has preserved a power
                     untrammelled by the other provisions of the article.”
             My view that Article 16(4) is not a proviso to Article 16(1)
             but that this clause covers the whole field of Article 16 is
             amply supported by the decision of this Court in General
             Manager, Southern Railway v. Ranga-chari where it was
             observed: (p. 599)
                     “It is common ground that Article 16(4) does not cover
                     the entire field covered by Article 16(1) and (2). Some
                     of the matters relating to employment in respect of
                     which equality of opportunity has been guaranteed
                     by Article 16(1) and (2) do not fall within the mischief
                     of non-obstantive clause in Article 16(4).”
      C.     Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs.
             Union of India
100. Next is the case of Akhil Bharatiya Soshit Karamchari Sangh
     (Railway) represented by its Assistant General Secretary on
     behalf of the Association vs. Union of India and others,10 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.
101. Krishna Iyer, J. in paragraph 12, observed thus:
             “12. Granville Austin [Granville Austin : The Indian
             Constitution — Cornerstone of a Nation] quotes profusely
             from the Constituent Assembly proceedings to prove the
             goal of the Indian Constitution to be social revolution.
             Radhakrishnan, representing the broad consensus, said
             that: [Ibid, p. 27]
                     “India must have a ‘socio-economic revolution’
                     designed not only to bring about the real satisfaction
                     of the fundamental needs of the common man, but
                     to go much deeper and bring about ‘a fundamental
                     change in the structure of Indian society’.”


10   [1981] 2 SCR 185 : (1981) 1 SCC 246
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102. The Learned Judge refers to the speech of Dr. Radhakrishnan,
     representing the broad consensus, wherein he said that India must
     have a ‘socio-economic revolution’ designed not only to bring about
     the real satisfaction of the fundamental needs of the common man,
     but to go much deeper and bring about ‘a fundamental change in
     the structure of Indian society’.
103. Explaining the inter-relation between Articles 16(1) and 16(4), the
     Learned Judge observed thus:
          “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 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
[2024] 8 S.C.R.                                                            1505

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 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 behind Venus was the spume
                of the ocean.”
104. The Learned Judge observed that the guarantee of equal opportunity
     provided under Article 16 for all citizens in matters of State service
     inherently implies equalization as a process towards equality.
     However, he also emphasizes the need to harmonize the realistic
     need to jack up “depressed” classes to overcome initial handicaps
1506                                                         [2024] 8 S.C.R.

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     and join the national race towards progress on an equal footing.
     He states that Article 16(4) has been devoted for this very specific
     purpose. He observed that the guarantee of equality to the large social
     categories being submerged for long, with the rest, would be myth
     and not reality, unless it is combined with affirmative State action for
     equalization geared to promotion of eventual equality. He observed
     that Article 16(4) is not a jarring note but auxiliary to fair fulfilment
     of Article 16(1). He observed that the prescription of Article 16(1)
     needs the concrete sanction of Article 16(4) so that 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.
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
[2024] 8 S.C.R.                                                            1507

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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) 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”. 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
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        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 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 traditional obsessions obfuscate
        the vision.”
[2024] 8 S.C.R.                                                       1509

          The State of Punjab & Ors. v. Davinder Singh & Ors.


107. The Learned Judge refers to the pre-Constitution history wherein
     special provisions for depressed classes and even other castes were
     made. He stated that after the Constitution was enacted the legality of
     old rules based on caste became moot and the Central Government
     revised its policy. He stated that the post-Constitution reincarnation
     of the communal G.O. concentrated not on caste orientation but on
     elimination of socio-economic suppression and the diverse ways to
     achieve this objective.
108. He then stated that Articles 14 to 16 form a code by themselves
     and embody the distilled essence of the Constitution’s casteless and
     classless egalitarianism. He then considered the interplay between
     Articles 15(4) and 16(4) on the one hand and Articles 15(1) and
     16(1) on the other hand. He thereafter refers to the notorious fact of
     our cultural heritage that the Scheduled 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 conventional sense
     and, therefore, may not be a caste within the meaning of Article 15(2)
     or 16(2). He states that Scheduled Castes become such only if the
     President specifies any castes, races or tribes or parts or groups
     within castes, races or tribes for the purpose of the Constitution. He
     observed that under the definition, one group in a caste may be a
     Scheduled Caste and another from the same caste may not be and
     that it is the socio-economic backwardness of a social bracket, not
     mere birth in a caste, that is decisive.
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110. In paragraph 73, he refers to Dr. Ambedkar’s address to the
     Constituent Assembly, which has already been extracted by us in the
     beginning of the judgment. Paragraph 73 is reproduced hereunder:
          “73. A luminous preface to the constitutional values nullified
          by social realities is found in Dr Ambedkar’s address to
          the Constituent Assembly earlier extracted, which draws
          poignant attention to the life of contradictions between
          the explosive social and economic inequalities and the
          processes of political democracy. “How long shall we
          continue to live this life of contradictions? How long shall
          we continue to deny equality in our social and economic
          life?” was the interrogation before the framers of the
          Constitution and they wanted to enforce the principle of
          “one man, one value”. This perspective must inform the
          code of equality contained in Articles 14 to 16. Equality
          being a dynamic concept with flexible import this Court
          has read into Articles 14 to 16 the pragmatic doctrine of
          classification and equal treatment to all who fall within each
          class. But care must be taken to see that classification
          is not pushed to such an extreme point as to make the
          fundamental right to equality cave in and collapse (see
          observations in Triloki Nath Khosa v. State of J&K [(1974)
          1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771] .
          Ray, C.J., in Kerala v. Thomas [(1976) 2 SCC 310, 331,
          332, 333, 334 : 1976 SCC (L&S) 227, 248 249, 250, 251 :
          (1976) 1 SCR 906, 926-29] epitomised the position in a
          few passages: [SCC pp. 331, 332, 333 & 334: SCC (L&S)
          pp. 248, 249, 250 & 251, paras 21, 24, 27, 28, 30 & 31
               “Articles 14, 15 and 16 from part of a string of
               constitutional guaranteed rights. These rights
               supplement each other. Article 16 which ensures
               to all citizens equality of opportunity in 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.
               ***
[2024] 8 S.C.R.                                                         1511

          The State of Punjab & Ors. v. Davinder Singh & Ors.


                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 equality as between members
                of the same class of employees and not equality
                between members of separate, independent class....
                The rule of parity is the equal treatment of equals
                in equal circumstances. The rule of differentiation
                is enacting laws differentiating between different
                persons or things in different circumstances. The
                circumstances which govern one set of persons
                or objects may not necessarily be the same as
                governing another set of persons or objects so
                that the question of unequal treatment does not
                really arise between persons governed by different
                conditions and different sets of circumstances....
                A classification in order to be constitutional must
                rest upon distinctions that are substantial and
                not merely illusory. The test is whether it has
                a reasonable basis free from artificiality and
                arbitrariness embracing all and omitting none
                naturally falling into that category.”
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           The learned Chief Justice relied upon earlier decisions
           to substantiate this proposition. In Triloki Nath Khosa v.
           State of J&K [(1976) 2 SCC 310, 337 : 1976 SCC (L&S)
           227, 254 : (1976) 1 SCR 906, 932] this Court had held
           that the State may make rules guided by realities just
           as the legislature “is free to recognise degrees of harm
           and it may confine its restrictions to those classes of
           cases where the need is deemed to be the clearest”.
           Thus we arrive at the constitutional truism that the State
           may classify, based upon substantial differentia, groups
           or classes and this process does not necessarily spell
           violation of Articles 14 to 16.”
111. After referring to Dr. Ambedkar’s speech, the Learned Judge observed
     that equality being a dynamic concept with flexible import, this Court
     has read into Articles 14 to 16 the pragmatic doctrine of classification
     and equal treatment to all who fall within each class. He, however,
     warns that classification should not be pushed to such an extreme
     point as to make the fundamental right to equality cave in and collapse.
112. The Learned Judge further observed as under:
           “76. Proceeding on this footing, the fundamental right of
           equality of opportunity has to be read as justifying the
           categorisation of SCs & STs separately for the purpose
           of “adequate representation” in the services under the
           State. The object is constitutionally sanctioned in terms,
           as Articles 16 (4) and 46 specificate. The classification
           is just and reasonable. We may, however, have to test
           whether the means used to reach the end are reasonable
           and do not outrun the purposes of the classification. Thus
           the scope of the case is narrowed down.”
113. His Lordship observed that the fundamental right of equality of
     opportunity must be read as justifying the categorization of SCs &
     STs separately for the purpose of “adequate representation” in the
     services under the State. He observed that the object is constitutionally
     sanctioned in terms, as Articles 16 (4) and 46 specificate.
114. While rejecting the argument that reservation in favour of Scheduled
     Castes and Scheduled Tribes could affect the efficiency in the
     administration, the Learned Judge observed thus:
[2024] 8 S.C.R.                                                              1513

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “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 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]
115. The Learned Judge rejected the contention that merely because
     a sprinkling of harijans/girijans happen to find their way into the
     services, the efficiency of the administration of the country would
     be affected. On the contrary, he states that the merit-mongers are
     greater risks in many respects than the naive tribals and the slightly
     better off low castes.
116. It is pertinent to note the observations made by the Learned Judge
     towards the end of paragraph 94 and in paragraph 98 are most
     important for the purposes of the present reference. Paragraph 98
     reads thus:
           “98. The argument is that there are rich and influential
           harijans who rob all the privileges leaving the serf-level
           sufferers as suppressed as ever. The Administration may
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         well innovate and classify to weed out the creamy layer
         of SCs/STs but the court cannot force the State in that
         behalf.”
117. Chinnappa Reddy, J. in his separate concurring judgment observed
     thus:
         “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 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
[2024] 8 S.C.R.                                                               1515

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 State, constitutional or otherwise, towards its citizens
           or sections of its citizens, flowing out of the preamble, the
           directive principles and other provisions of the Constitution.
           124. So, we have it that the constitutional goal is the
           establishment of a socialist democracy in which Justice,
           economic, social and political is secure and all men are
           equal and have equal opportunity. Inequality, whether of
           status, facility or opportunity, is to end, privilege is to cease
           and exploitation is to go. The underprivileged, the deprived
           and the exploited are to be protected and nourished so as
           to take their place in an egalitarian society. State action is
           to be towards those ends. It is in this context that Article
           16 has to be interpreted when State action is questioned
           as contravening Article 16.”
118. The Learned Judge discussed the interplay between the Fundamental
     Rights and the Directive Principles. He observed that the Fundamental
     Rights are primarily aimed at assuring political freedom to the
     citizens by protecting them against 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
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     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.
119. He observed that the constitutional goal is the establishment of a
     socialist democracy in which Justice, economic, social and political
     is to secure and all men are equal and have equal opportunity. He
     further observed that the inequality, whether of status, facility or
     opportunity, is to end, privilege is to cease, and exploitation is to
     go. He further observed that the underprivileged, the deprived and
     the exploited are to be protected and nourished to take their place
     in an egalitarian society.
120. Thereafter, the Learned Judge then while referring to interplay
     between Article 16(1) and Article 16(4) observed thus:
          “125. Let us now take a look at Article 16(1) and Article
          16(4). Article 16(1) guarantees equality of opportunity for all
          citizens in matters relating to employment or appointment
          to any office under the State. To the class of citizens who
          are economically and socially backward this guarantee
          will be no more than mere wishful thinking, and mere
          “vanity ... wind and confusion”, if it is not translated into
          reality by necessary State action to protect 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
[2024] 8 S.C.R.                                                           1517

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 the competition is itself otherwise equitable.
           John Rawls in A Theory Of Justice demands the priority
           of equality in a distributive sense and the setting up of
           the social system “so that no one gains or loses from his
           arbitrary place in the distribution of natural assets or his
           own initial position in society without giving or receiving
           compensatory advantages in return”. His basic principle
           of social justice is: “All social primary goods — liberty and
           opportunity, income and wealth, and the bases of self-
           respect — are to be distributed equally unless an unequal
           distribution of any or all these goods is to the advantage
           of the least favoured.” One of the essential elements
           of his conception of social justice is what he calls the
           principle of redress: “This is the principle that undeserved
           inequalities call for redress; and since inequalities of
           birth and natural endowment are undeserved, these
           inequalities are somehow to be compensated for.” Society
           must, therefore, treat more favourably those with fewer
           native assets and those born into less favourable social
           positions. If the statement that “Equality of Opportunity
           must yield Equality of Results” and if the fulfilment of
           Article 16(1) in Article 16(4) ever needed a philosophical
           foundation it is furnished by Rawls› theory of justice and
           the redress Principle.”
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.
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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.
      D.     K.C. Vasanth Kumar vs. State of Karnataka
123. The next judgment of the Constitution Bench of this Court that requires
     consideration is the case of K.C. Vasanth Kumar and another vs.
     State of Karnataka.11 In the said case, the Court was invited not so
     much to deliver judgment but to express its opinion on the issue of
     reservations in the context of Articles 15(4) and 16(4), which would
     serve as a guideline to the Commission which the Government of
     Karnataka had proposed to appoint, for examining the question
     of affording better employment and educational opportunities to
     Scheduled Castes, Scheduled Tribes and Other Backward Classes.
     Each of the 5 Learned Judges comprising the Constitution Bench of
     this Court rendered their separate opinions.
124. Y.V. Chandrachud, C.J. laid down certain propositions. It will be
     relevant to refer to paragraph 2, which reads thus:
             “2. I would state my opinion in the shape of the following
             propositions:
             (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



11   [1985] Supp. 1 SCR 352 : (1985) Supp. SCC 714
[2024] 8 S.C.R.                                                             1519

          The State of Punjab & Ors. v. Davinder Singh & Ors.


                 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
                 comparable to the Scheduled Castes and Scheduled
                 Tribes in the matter of their backwardness; and two,
                 that they should satisfy the means test such as a
                 State Government may lay down in the context of
                 prevailing economic conditions.
           (4)   The policy of reservations in employment, education
                 and legislative institutions should be reviewed every
                 five years or so. That will at once afford an opportunity
                 (i) to the State to rectify distortions arising out of
                 particular facets of the reservation policy and (ii) to
                 the people, both backward and non-backward, to
                 ventilate their views in a public debate on the practical
                 impact of the policy of reservations.”
125. The Learned C.J. observed that for a further period of 15 years, the
     reservation in favour of Scheduled Castes and Scheduled Tribes must
     continue. He further observed that the means test, i.e., the test of
     economic backwardness ought to be made applicable even to the
     Scheduled Castes and Scheduled Tribes after the period of 15 years,
     as mentioned in clause (1). 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
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          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
          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 by refusing 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 identifying socially and
          educationally backward classes of citizens for whose
          benefit the State action would be taken. This does not
          purport to be an exhaustive essay on guide lines but may
          point to some extent, the direction in which the proposed
          Commission should move.”
127. It could thus be seen that the Learned Judge supports applying the
     economic criterion for the purpose of compensatory discrimination or
     affirmative action. According to the Learned Judge, it would strike at
     the root cause of social and educational backwardness. He further
     states that simultaneously it would be a vital step in the direction
     of destruction of caste structure which in turn would advance the
     secular character of the Nation.
[2024] 8 S.C.R.                                                           1521

          The State of Punjab & Ors. v. Davinder Singh & Ors.


128. Though he cautioned that such an approach does not deal with
     reservation in favour of Scheduled Castes and Scheduled Tribes,
     however, even in their cases, economic criterion is worth applying
     by refusing preferred treatment to those amongst them who have
     already benefited by it and improved their position.
129. Rejecting the contention that the reservation is anti-imperialist,
     Chinnappa Reddy, J. observed thus:
           “35. One of the results of the superior, elitist approach
           is that the question of reservation is invariably viewed
           as the conflict between the meritarian principle and the
           compensatory principle. No, it is not so. The real conflict
           is between the class of people, who have never been in
           or who have already moved out of the desert of poverty,
           illiteracy and backwardness and are entrenched in the
           oasis of convenient living and those who are still in the
           desert and want to reach the oasis. There is not enough
           fruit in the garden and so those who are in, want to keep
           out those who are out. The disastrous consequences of
           the so-called meritarian principle to the vast majority of
           the under-nourished, poverty-stricken, barely literate and
           vulnerable people of our country are too obvious to be
           stated. And, what is merit? There is no merit in a system
           which brings about such consequences. Is not a child of
           the Scheduled Castes, Scheduled Tribes or other backward
           classes who has been brought up in an atmosphere of
           penury, illiteracy and anti-culture, who is looked down
           upon by tradition and Society, who has no books and
           magazines to read at home, no radio to listen, no TV to
           watch, 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
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          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 we come to Scheduled Castes, Scheduled Tribes
          and backward classes?”
130. The Learned Judge observed that the disastrous consequences of
     the so-called meritarian principle to the vast majority of the under-
     nourished, poverty-stricken, barely literate and vulnerable people
     of our country are too obvious to be stated. The Learned Judge
     compared a child of the Scheduled Castes, Scheduled Tribes or
     other backward classes who has been brought up in an atmosphere
     of penury, illiteracy and anti-culture, who is looked down upon by
     tradition and Society, who has no books and magazines to read
     at home, no radio to listen, no TV to watch, no one to help him
     with his homework, who goes to the nearest local board school
     and college, whose parents are either illiterate or so ignorant and
     ill-informed that he cannot even hope to seek their advice on any
     matter of importance. The Learned Judge observed that with all
     these disadvantages, if he is able to secure the qualifying 40% or
     50% of the marks at a competitive examination, he cannot be said
     to have no merit, especially if he be compared with the children of
     the upper classes who have all the advantages, who go to St. Paul’s
     High School and St. Stephen’s College, and who have perhaps been
     specially coached for the examination and may secure 70, 80 or
     even 90% of the marks. The Learned Judge further observed that
     the requirements of efficiency may always be safeguarded by the
     prescription of minimum standards.
131. Emphasizing on the position of the Scheduled Castes, the Learned
     Judge observed thus:
[2024] 8 S.C.R.                                                          1523

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “51. …….Now, anyone acquainted with the rural scene
           in India would at once recognise the position that the
           Scheduled Castes occupy a peculiarly degraded position
           and are treated, not as persons of caste at all, but as
           outcastes. Even the other admittedly backward classes
           shun them and treat them as inferior beings. It was
           because of the special degradation to which they had
           been subjected that the Constitution itself had to come
           forward to make special provision for them. There is no
           point in attempting to determine the social backwardness
           of other classes by applying the test of nearness to the
           conditions of existence of the Scheduled Castes. Such a
           test would practically nullify the provision for reservation
           for socially and educationally backward classes other than
           Scheduled Castes and Tribes. Such a test would perpetuate
           the dominance of the existing upper classes. Such a test
           would take a substantial majority of the classes who are
           between the upper classes and the Scheduled Castes and
           Tribes out of the category of backward classes and put
           them at a permanent disadvantage. Only the “enlightened”
           classes will capture all the “open” posts and seats and the
           reserved posts and seats will go to the Scheduled Castes
           and Tribes and those very near the Scheduled Castes
           and Tribes. The bulk of those behind the “enlightened”
           classes and ahead of the near Scheduled Castes and
           Tribes would be left high and dry, with never a chance of
           imposing themselves.”
132. The Learned Judge rejects the argument that insofar as Other
     Backward Classes are concerned, their social backwardness has to
     be ascertained by applying the test of nearness to the conditions of
     existence of the Scheduled Castes. 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
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     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):
          “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 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
[2024] 8 S.C.R.                                                           1525

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 lowest level suffering from all the disadvantages
           and disabilities (except perhaps untouchability) to which
           many of the Scheduled Castes and Scheduled Tribes have
           been exposed but without the same or similar advantages
           that flow from being included in the list of the Scheduled
           Castes and the Scheduled Tribes.
           144. Since economic condition is also a relevant criterion,
           it would be appropriate to incorporate a “means test” as
           one of the tests in determining the backwardness as was
           done by the Kerala Government in Jayasree case63.
           These two tests namely, that the conditions of caste or
           group or community should be more or less similar to the
           conditions in which the Scheduled Castes or Scheduled
           Tribes are situated and that the income of the family
           to which the candidate belongs does not exceed the
           specified limit would serve as useful criteria in determining
           beneficiaries of any reservation to be made under Article
           15(4). For the purpose of Article 16(4) however, it should
           also be shown that the backward class in question is in
           the opinion of the Government not adequately represented
           in the Government services.”
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
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      conditions in which the Scheduled Castes or Scheduled Tribes are
      situated and that the income of the family to which the candidate
      belongs does not exceed the specified limit would serve as useful
      criteria in determining beneficiaries of any reservation to be made
      under Article 15(4). The Learned Judge observed that insofar as
      Article 16(4) is concerned, it should also be shown that the backward
      class in question is in the opinion of the Government not adequately
      represented in the Government services.
      E.     Indra Sawhney vs. Union of India
135. Then next comes the 9-Judge Bench judgment of this Court in
     the case of Indra Sawhney and others vs. Union of India and
     others,12 which could be considered as an important milestone laying
     down the law about reservations for Other Backward Classes. The
     extracts from the said judgment of 9-Judge Bench have in-extenso
     been reproduced in the referral judgment (The State of Punjab &
     Ors. vs. Davinder Singh & Ors.13).
136. I will refer to some of the observations made by B.P. Jeevan Reddy,
     J., who has authored the judgment for himself and M.H. Kania, C.J.,
     M.N. Venkatachaliah, J. and A.M. Ahmadi, J. (as Their Lordships
     then were).
             “781. At the outset, we may state that for the purpose of
             this discussion, we keep aside the Scheduled Tribes and
             Scheduled Castes (since they are admittedly included within
             the backward classes), except to remark that backward
             classes contemplated by Article 16(4) do comprise some
             castes — for it cannot be denied that Scheduled Castes
             include quite a few castes.”
137. His Lordship (Jeevan Reddy, J.) observed that with regard to
     identification of ‘backward class of citizens’, we keep aside the
     Scheduled Tribes and Scheduled Castes. It will be relevant to note
     that in the said part of the judgment His Lordship (Jeevan Reddy, J.)
     was considering an issue with regard to identification of backward
     class of citizens. In this background, it was observed that the court
     was keeping aside Scheduled Tribes and Scheduled Castes since


12   (1992) Supp. 3 SCC 217
13   (2020) 8 SCC 1
[2024] 8 S.C.R.                                                             1527

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     they are admittedly included within the backward classes. It was
     further observed that backward classes contemplated by Article 16(4)
     do comprise some castes since it cannot be denied that Scheduled
     Castes include quite a few castes.
138. From paragraph 790 onwards, His Lordship considered the
     ‘Means-test’ and ‘creamy layer’. It will be apposite to reproduce
     paragraph 792, which reads thus:
           “792. In our opinion, it is not a question of permissibility
           or desirability of such test but one of proper and more
           appropriate identification of a class — a backward class.
           The very concept of a class denotes a number of persons
           having certain common traits which distinguish them 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 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
1528                                                      [2024] 8 S.C.R.

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        case, his income is merely a measure of his social status.
        Even otherwise there are several practical difficulties too in
        imposing an income ceiling. For example, annual income
        of Rs 36,000 may not count for much in a city like Bombay,
        Delhi or Calcutta whereas it may be a handsome income
        in rural India anywhere. The line to be drawn must be a
        realistic one. Another question would be, should such a
        line be uniform for the entire country or a given State or
        should it differ from rural to urban areas and so on. Further,
        income from agriculture may be difficult to assess and,
        therefore, in the case of agriculturists, the line may have
        to be drawn with reference to the extent of holding. While
        the income of a person can be taken as a measure of his
        social advancement, the limit to be prescribed should not
        be such as to result in taking away with one hand what is
        given with the other. The income limit must be such as to
        mean and signify social advancement. At the same time,
        it must be recognised that there are certain positions, the
        occupants of which can be treated as socially advanced
        without any further enquiry. For example, if a member
        of a designated backward class becomes a member
        of IAS or IPS or any other All India Service, his status
        is society (social status) rises; he is no longer socially
        disadvantaged. His children get full opportunity to realise
        their potential. They are in no way handicapped in the
        race of life. His salary is also such that he is above want.
        It is but logical that in such a situation, his children are
        not given the benefit of reservation. For by giving them
        the benefit of reservation, other disadvantaged members
        of that backward class may be deprived of that benefit.
        It is then argued for the respondents that ‘one swallow
        doesn’t make the summer’, and that merely because a few
        members of a caste or class become socially advanced,
        the class/caste as such does not cease to be backward.
        It is pointed out that clause (4) of Article 16 aims at group
        backwardness and not individual backwardness. While we
        agree that clause (4) aims at group backwardness, we
        feel that exclusion of such socially advanced members will
        make the ‘class’ a truly backward class and would more
[2024] 8 S.C.R.                                                         1529

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           appropriately serve the purpose and object of clause (4).
           (This discussion is confined to Other Backward Classes
           only and has no relevance in the case of Scheduled Tribes
           and Scheduled Castes).”
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 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.
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
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        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 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 C. The 25% vacancies
        reserved for backward classes are sub-divided between
        them in proportion to their respective population. This
[2024] 8 S.C.R.                                                           1531

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 —
           that this should be done. We are only saying that if a State
           chooses to do it, it is not impermissible in law.”
141. The Court in unequivocal terms held that even among backward
     classes, there can be a sub-classification on a reasonable basis. The
     Court held that there can be backward and more backward classes
     and the State may think it advisable to provide a special benefit to the
     more backward among the backward classes. It has been observed
     that where to draw the line and how to effect the sub-classification
     is, however, a matter for the Commission and the State, and so long
     as it is reasonably done, the Court may not intervene.
142. The Court observed that Article 16(4) recognizes only one class
     i.e., “backward class of citizens”. It is observed that it does not
     speak separately of Scheduled Castes and Scheduled Tribes, as
     does Article 15(4). It has therefore been observed that it is beyond
     controversy that Scheduled Castes and Scheduled Tribes 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
1532                                                        [2024] 8 S.C.R.

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     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 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 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
[2024] 8 S.C.R.                                                           1533

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 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
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        advanced classes, and further, between themselves, there
        is a substantial difference in backwardness, not only it is
        advisable but also imperative to make the sub-classification
        if all the backward classes are to gain equitable benefit
        of the special provisions under the Constitution. To give
        an instance, the Mandal Commission has, on the basis
        of social, educational and economic indicators evolved
        22 points by giving different values to each of the three
        factors, viz., social, educational and economic. Those
        social groups which secured 22 points or above have been
        listed there as “socially and educationally backward” and
        the rest as “advanced”. Now, between 11 and 22 points
        some may secure, say, 11 to 15 points while others may
        secure all 22 points. The difference in their backwardness
        is, therefore, substantial. Yet another illustration which may
        be given is from Karnataka State Government order dated
        October 13, 1986 on reservations issued after the decision
        in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1
        SCR 352] where the backward classes are grouped into
        five categories, viz., A, B, C, D and E. In category A, fall
        such castes or communities as that of Bairagi, Banjari and
        Lambadi which are nomadic tribes, and Bedaru, Ramoshi
        which were formerly stigmatised as criminal tribes whereas
        in category D fall such castes as Kshatriya and Rajput. To
        lump both together would be to deny totally the benefit of
        special provisions to the former, the latter taking away the
        entire benefits. On the other hand, to deny the status of
        backwardness to the latter and ask them to compete with
        the advanced classes, would leave the latter without any
        seat or post. In such circumstances, the sub-classification
        of the backward classes into backward and more or most
        backward is not only desirable but essential. 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
[2024] 8 S.C.R.                                                           1535

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 backward
           would be justifiable provided separate quotas are
           prescribed for each of them.”
145. His Lordship held that sub-classification of the backward classes
     into the backward and more or most backward would be justifiable
     provided separate quotas are prescribed for each of them.
146. The question as to whether Backward Classes can be further divided
     into backward and more backward categories has been answered
     by P.B. Sawant, J. as under (Paragraph 552):
           “Question 5:
           Article 16(4) permits classification of backward classes into
           backward and more or most backward classes. However,
           this classification is permitted only on the basis of the
           degrees of social backwardness and not on the basis of
           the economic consideration alone.
           If backward classes are classified into backward and more
           or most backward classes, separate quotas of reservations
           will have to be kept for each of such classes. In the absence
           of such separate quotas, the reservations will be illegal.
           It is not permissible to classify backward classes or a
           backward class social group into an advanced section
           and a backward section either on economic or any other
           consideration. The test of advancement lies in the capacity
           to compete with the forward classes. If the advanced
           section in a backward class is so advanced as to be able
           to compete with the forward classes, the advanced section
           from the backward class no longer belongs to the backward
           class and should cease to be considered so and denied
           the benefit of reservations under Article 16(4).”
147. It could thus be seen that Sawant, J. observed that if the advanced
     section in a backward class is so advanced as to be able to compete
     with the forward classes, the advanced section from the backward
1536                                                        [2024] 8 S.C.R.

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     class no longer belongs to the backward class and should cease
     to be considered so and denied the benefit of reservations under
     Article 16(4).
     F.   E.V. Chinnaiah vs. State of A.P.
148. In the case of E.V. Chinnaiah, the validity of the Andhra Pradesh
     Scheduled Castes (Rationalisation of Reservations) Act, 2000
     (A.P. Act 20 of 2000) was challenged before the High Court of
     Andhra Pradesh at Hyderabad. The same was dismissed by the
     5-Judge Bench by a majority of 4:1. Under the said Act, the castes
     in the Presidential List of Scheduled Castes came to be classified
     in 4 groups. The seats were apportioned in different proportions
     amongst the said 4 groups.
149. N. Santosh Hegde, J. for himself, S.N. Variava, and B.P. Singh, JJ.
     (as Their Lordships then were) observed thus:
          “13. We will first consider the effect of Article 341 of the
          Constitution and examine whether the State could, in
          the guise of providing reservation for the weaker of the
          weakest, tinker with the Presidential List by subdividing
          the castes mentioned in the Presidential List into different
          groups. Article 341 which is found in Part XVI of the
          Constitution refers to special provisions relating to certain
          classes which includes the Scheduled Castes. This article
          provides that the President may with respect to any State
          or Union Territory after consultation with the Governor
          thereof by public notification, specify the castes, races
          or tribes or parts of or groups within castes, 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,
[2024] 8 S.C.R.                                                           1537

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 subdivided
           for any purpose. A reference to the Constituent Assembly
           in this regard may be useful at this stage.”
150. His Lordship observed that from the perusal of Article 341 of the
     Constitution, there can be only one list of Scheduled Castes regarding
     a State and that list should include all specified castes, races or
     tribes or part or groups notified in that Presidential List. It has been
     observed that any inclusion or exclusion from the said list can only
     be done by Parliament under Article 341(2) of the Constitution. It
     is observed that it is also clear from Article 341 that except for a
     limited power of making an exclusion or inclusion in the list by an Act
     of Parliament there is no provision either to subdivide, subclassify
     or subgroup these castes which are found in the Presidential List
     of Scheduled Castes. It has been observed that the Constitution
     intended all the castes including the subcastes, races and tribes
     mentioned in the list to be members of one group for the purpose
     of the Constitution and that the said group could not be subdivided
     for any purpose.
151. In paragraph 26, it has been observed thus:
           “26. Thus from the scheme of the Constitution, Article 341
           and above opinions of this Court in the case of N.M.
           Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] it is
           clear that the castes once included in the Presidential List,
           form a class by themselves. If they are one class under
           the Constitution, any division of these classes of persons
           based on any consideration would amount to tinkering
           with the Presidential List.”
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152. The Court, relying on Article 341 and the opinions expressed in the
     case of N.M. Thomas, observed that it was clear that the castes
     once included in the Presidential List, form a class by themselves. It
     has been observed that if they are one class under the Constitution,
     any division of these classes of persons based on any consideration
     would amount to ‘tinkering’ with the Presidential List.
153. In paragraph 31, the Court observed thus:
          “31. On a detailed perusal of the Act it is seen that
          Section 3 is the only substantive provision in the Act, rest
          of the provisions 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 includes the Scheduled
          Castes, to reserve certain seats in educational institutions
          under Article 15(4) and in public services of the State
          under Article 16(4). That part of its constitutional obligation,
          as stated above, has already been fulfilled by the State.
[2024] 8 S.C.R.                                                            1539

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           Having done so, it is not open to the State to subclassify
           a class already recognised by the Constitution and allot a
           portion of the already reserved quota amongst the State-
           created subclass within the list of Scheduled Castes. From
           the discussion hereinabove, it is clear that the primary
           object of the impugned enactment is to create groups of
           subcastes in the list of Scheduled Castes applicable to the
           State and, in our opinion, apportionment of the reservation
           is only secondary and consequential. Whatever may be
           the object of this subclassification and apportionment of
           the reservation, we think the State cannot claim legislative
           power to make a law dividing the Scheduled Castes
           List of the State by tracing its legislative competence to
           Entry 41 of List II or Entry 25 of List III. Therefore, we are
           of the opinion that in pith and substance the enactment
           is not a law governing the field of education or the field
           of State public services.”
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 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
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        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 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 logical corollary
[2024] 8 S.C.R.                                                        1541

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           thereof would be that the State Legislatures are forbidden
           from doing that. A uniform yardstick must be adopted for
           giving benefits to the members of the Scheduled Castes for
           the purpose of the Constitution. The impugned legislation
           being contrary to the above constitutional scheme cannot,
           therefore, be sustained.”
156. It has been held that the conglomeration of castes given in the
     Presidential Order should be considered as representing a class as a
     whole. It has been held that the very idea of placing different castes
     or tribes or group or part thereof in a State as a conglomeration by
     way of a deeming definition clearly suggests that they are not to be
     subdivided or subclassified further. It has been held that if a class
     within a class of members of the Scheduled Castes is created, the
     same would amount to tinkering with the list. Such subclassification
     would be violative of Article 14 of the Constitution.
157. The Court also held that classification of the members of different
     classes of people based on their respective castes would also be
     violative of the doctrine of reasonableness.
158. S.B. Sinha, J. in his separate concurring opinion held thus:
           “93. Scheduled Caste, however, is not a caste in terms
           of its definition as contained in Article 366(24) of the
           Constitution. They are brought within the purview of the
           said category by reason of their abysmal backwardness.
           Scheduled Caste consists of not only the people who
           belong to some backward caste but also race or tribe or
           part of or groups within castes, races or tribes. They are
           not merely backward but the backwardmost. A person even
           does not cease to be a Scheduled Caste automatically
           even on his conversion to another religion. (See Punit
           Rai v. Dinesh Chaudhary [(2003) 8 SCC 204] and State
           of Kerala v. Chandramohanan [(2004) 3 SCC 429 : 2004
           SCC (Cri) 818 : AIR 2004 SC 1672].)”
159. It could thus be seen that His Lordship has also recognized that
     the Scheduled Caste consists of not only the people who belong
     to some backward caste but also race or tribe or part of or groups
     within castes, races or tribes and that they are not merely backward
     but the backwardmost.
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160. After referring to the observations of this Court in Indra Sawhney
     (supra) regarding the applicability of ‘means test’ and ‘creamy-layer
     test’, the Learned Judge observed thus:
             “96. But we must state that whenever such a situation arises
             in respect of Scheduled Caste, it will be Parliament alone to
             take the necessary legislative steps in terms of clause (2)
             of Article 341 of the Constitution. The States concededly
             do not have the legislative competence therefor.”
161. It is further observed in paragraph 113 thus:
             “113. The power of the State Legislature to decide as
             regards grant of benefit of reservation in jobs or in
             educational institutions to the backward classes is not
             in dispute. It is furthermore not in dispute that if such a
             decision is made the State can also lay down a legislative
             policy as regards extent of reservation to be made for
             different members of the backward classes including
             Scheduled Castes. But it cannot take away the said benefit
             on the premise that one or the other group amongst the
             members of the Scheduled Castes has advanced and,
             thus, is not entitled to the entire benefit of reservation.
             The impugned legislation, thus, must be held to be
             unconstitutional.”
162. The Learned Judge observed that the State can lay down a legislative
     policy as regards extent of reservation to be made for different
     members of the backward classes including Scheduled Castes.
     However, it cannot take away the said benefit on the premise that
     one or the other group amongst the members of the Scheduled
     Castes has advanced and, thus, is not entitled to the entire benefit
     of reservation.
      G.     M. Nagaraj vs. Union of India
163. Next in line is the case of M. Nagaraj and others vs. Union of
     India and others,14 where the Constitution Bench of this Court was
     considering, inter alia, the constitutional validity of the Constitution
     (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-first


14   [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212
[2024] 8 S.C.R.                                                            1543

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     Amendment) Act, 2000, the 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 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 representation of that class in
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             public employment in addition to compliance with Article
             335. It is made clear that even if the State has compelling
             reasons, as stated above, the State will have to see that
             its reservation provision does not lead to excessiveness
             so as to breach the ceiling limit of 50% or obliterate the
             creamy layer or extend the reservation indefinitely.
             124. Subject to the above, we uphold the constitutional
             validity of the Constitution (Seventy-seventh Amendment)
             Act, 1995; the Constitution (Eighty-first Amendment)
             Act, 2000; the Constitution (Eighty-second Amendment)
             Act, 2000 and the Constitution (Eighty-fifth Amendment)
             Act, 2001.”
164. It could thus be seen that in M. Nagaraj (supra), the Court applied
     the test of creamy layer and the requirement for collection of
     quantifiable data showing backwardness of the class and inadequacy
     of representation of that class even insofar as the Scheduled Castes
     and Scheduled Tribes are concerned.
      H.     Jarnail Singh vs. Lachhmi Narain Gupta
165. The correctness of the decision in M. Nagaraj was referred to the
     Constitution Bench in the case of Jarnail Singh and others vs.
     Lachhmi Narain Gupta and others.15 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 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:



15   [2018] 10 SCR 663 : (2018) 10 SCC 396
[2024] 8 S.C.R.                                                          1545

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “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 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 and
           342, it is clear that Parliament will have complete freedom
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        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 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
[2024] 8 S.C.R.                                                         1547

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           SCC (L&S) 289] (two-Judge Bench) [see paras 61, 81(ix),
           and 86].
           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 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
     principles of equality under Articles 14 and 16 of the Constitution
     of India.
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      IV.    PRESENT REFERENCE
169. A 3-Judge Bench of this Court in the case of State of Punjab and
     others vs. Davinder Singh and others16 vide order dated 20th August
     2014, doubted the correctness of the Constitution Bench decision
     of this Court in the case of E.V. Chinnaiah and referred it to the
     larger Bench. The larger Bench of 5-Learned Judges proposed the
     following issues.17
             “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?
             1.3. (iii) Whether the decision in E.V. Chinnaiah v. State of
             A.P. [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :
             (2008) 2 SCC (L&S) 329] is required to be revisited?”
170. Vide the judgment in The State of Punjab & Ors. vs. Davinder
     Singh & Ors.,18 the Constitution Bench observed thus:
             “52. The State has the competence to grant reservation
             benefit to the Scheduled Castes and Scheduled Tribes in
             terms of Articles 15(4) and 16(4) and also Articles 341(1)
             and 342(1). It prescribes the extent/percentage of
             reservation to different classes. The State Government
             can decide the manner and quantum of reservation. As
             such, the State can also make sub-classification when
             providing reservation to all Scheduled Castes in the List
             based on the rationale that would conform with the very
             spirit of Articles 14, 15 and 16 of the Constitution providing
             reservation. The State Government cannot tamper with the
             List; it can neither include nor exclude any caste in the
             List or make enquiry whether any synonym exists as held



16   (2020) 8 SCC 65
17   (2020) 8 SCC 63
18   (2020) 8 SCC 1
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          The State of Punjab & Ors. v. Davinder Singh & Ors.


           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 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,
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          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.
          56. The “inadequate representation” is the fulcrum of the
          provisions of Article 16(4). In our opinion, it would be open
          to the State to provide on a rational basis the preferential
          treatment by fixing reasonable quota out of reserved seats
          to ensure adequate representation in services. Reservation
          is a very effective tool for emancipation of the oppressed
          class. The benefit by and large is not percolating down to
          the neediest and poorest of the poor.
          57. The interpretation of Articles 14, 15, 16, 338, 341,
          342 and 342-A is a matter of immense public importance,
          and correct interpretation of binding precedents in Indra
          Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3)
          SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions.
          Though we have full respect for the principle of stare
          decisis, at the same time, the Court cannot be a silent
          spectator and shut eyes to stark realities. The constitutional
          goal of social transformation cannot be achieved without
          taking into account changing social realities.”
171. Recording the above observations, the Constitution Bench requested
     the Hon’ble Chief Justice to place the matter before the 7 Judges or
     more as considered appropriate. The matter was thus placed before
     the present Bench.
     V.   CONSIDERATION
172. At one stage, the atrocious caste discrimination in India had even
     surpassed the racial discrimination and the slave trade, premised
     on the colour of skin, in other parts of the world. For centuries the
     people belonging to certain castes were inhumanly treated by the
     upper classes in society. They have been treated worse than animals.
     They were not permitted to be touched by the upper classes. In some
     areas, even the upper classes did not permit the shadow of such
     people to fall on them. As such, while walking, they were required to
     maintain a distance so that their shadow does not pollute the upper
     caste. In some areas, they were required to tie a broom to their back
     so that they clean the path after they travel from the same.
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


173. These people were also denied water from the common places. In
     the villages where the water was drawn from the rivers, they were
     required to draw water from the downstream so that the water taken
     by the people from higher classes is not polluted. They were also
     denied the right to education. In schools, either they were required to
     sit separately or take their lessons standing outside their classroom.
174. While India was struggling to gain freedom from the colonial rulers,
     the country also witnessed a parallel movement for eradication of
     these inequalities and upliftment of the classes which were being
     treated inhumanly.
175. It would be apposite to refer to the statement by Dr. B.R. Ambedkar
     in ‘Evidence before the Southborough Committee’ (1919), where
     he gave several examples of the unjust treatment meted out to the
     untouchables by the oppressor castes as thus19:
             “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


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.
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              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 in itself is a point worthy of note.
              But there is something yet more noteworthy. Following
              the division of schools it has divided its teaching staff
              into untouchables and touchables. As the untouchable
              teachers are short of the demand, some of the untouchable
              schools are manned by teachers from the touchable class.
              The heart-killing fun of it is that if there is a higher grade
              open in untouchable school service, as there is bound
              to be because of a few untouchable trained teachers, a
              touchable teacher can be thrust into the grade. But if a
              higher grade is open in the touchable school service, no
              untouchable teacher can be thrust into that grade. He
              must wait till a vacancy occurs in the untouchable service!
              Such is the ethics of the Hindu social life.”
176. Dr. Ambedkar in order to fight against the inhuman treatment of
     untouchables, who were not even allowed to draw water from
     the common place, held an agitation at Mahad known as “Mahad
     Satyagraha” on 20th March 1927 so that the untouchables could be
     permitted to draw water from a public tank at Mahad.
177. Dr. Ambedkar also led agitations for opening the doors of places of
     worship to the untouchables. One such agitation which he led was in
     Nashik and was popularly known as “Kalaram Temple Satyagraha”.
178. Dr. Ambedkar was of the view that if untouchables come out of that
     stigma and participate in nation-building, they will only contribute to
     the progress of the nation. He was of the view that the movement
     for removal of untouchability is in true sense a movement for nation-
     building and fraternity.
179. I can gainfully refer to the collection of views of Dr. Ambedkar as put
     together lucidly by Anurag Bhaskar in the book appropriately titled
     as “The Foresighted Ambedkar”,20 which reads thus:


20   Anurag Bhaskar, The Foresighted Ambedkar: Ideas that shaped Indian constitutional Discourse (Viking
     by Penguin Random House 2024).
[2024] 8 S.C.R.                                                                                 1553

             The State of Punjab & Ors. v. Davinder Singh & Ors.


              “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 the Untouchables into their
                     temples, all are free to build a temple for themselves.
                     I would like to ask those so-called learned ones why
                     they object to Railways for having separate coaches
                     for Whites and Indians? …There is only one answer
                     to this and that is: it is not a matter of travel only, it is
                     a matter of equality! … The Untouchables have the
                     same reason for demanding the right to worship God in
                     the same temple. They want to prove that the temple
                     is not defiled by their entry ….. The Untouchables are
                     not servants … On the basis of this alone they should
                     accept the rights of the Untouchables. And when there
                     are rights there is no question of custom of usage.”21
              He further added that public property cannot be used as
              the private property of the oppressor castes. He noted:
                     “Legally, the right to public property is not required
                     to be established by any deed; it is available
                     automatically to everybody. Even if he has no usage
                     or it was not continuous, it does not deprive him of
                     that right. Suppose, somebody did not walk on a
                     particular road, does that mean he can never use
                     that road? Therefore, it would be quite idiotic to say
                     that since Untouchables never went to the temple or
                     never drew water from the public wells, so now they
                     cannot do that.”22
              Dr. Ambedkar also dismissed the contention of the
              oppressor castes that the Untouchables should wait for
              them to change and allow equal rights. He referred to the
              Thirteenth Amendment to the American Constitution, which



21   Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark Publishers Pvt. Ltd. 2014).
22   Ibid.
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             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 of the Touchables tells
                 us that even if we launch our movement, we will
                 not succeed. If we launch a struggle, whatever few
                 Touchables who have sympathy with our cause will
                 feel offended and we will lose their sympathy. The
                 progressive Touchables will then join the orthodox
                 Hindus against us. I want to tell them that if they
                 have sympathy for us, if they feel anguished about
                 the injustice caused to us, then they should support
                 us wholeheartedly like the Whites supported the
                 Blacks in America to end slavery. Otherwise, it does
                 not matter whether you have sympathy or hatred
                 towards us.””23
180. Accordingly, when I consider the present issue, I will have to consider
     it in this background.
181. It is a matter of great coincidence that Dr. Ambedkar, who fought for
     the cause of social equality and eradication of inhuman treatment
     for generations, got an opportunity to work as the Chief Architect of
     the Constitution of India.
182. I have already referred to his speech on draft Article 300A and draft
     Article 300B (now Articles 341 and 342). It will also be apposite to
     refer to the relevant part of Dr. Ambedkar’s speech on 30th November
     1948 on Article 16 (which was draft Article 10), which reads thus:



23   Ibid.
[2024] 8 S.C.R.                                                           1555

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “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
           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
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           its place in the Constitution and effective in operation. If
           honourable Members understand this position that we have
           to safeguard two things namely, the principle of equality
           of opportunity and at the same time satisfy the demand
           of communities which have not had so far representation
           in the State, then, I am sure they will agree that unless
           you use some such qualifying phrase as “backward” the
           exception made in favour of reservation will ultimately
           eat up the rule altogether. Nothing of the rule will remain.
           That I think, if I may say so, is the justification why the
           Drafting Committee undertook on its own shoulders the
           responsibility of introducing the word `backward’ which, I
           admit, did not originally find a place in the fundamental right
           in the way in which it was passed by this Assembly………..”
183. It could thus be seen that Dr. Ambedkar emphasized that a formula
     was required to be produced which would reconcile these three points
     of view, firstly, that there shall be equality of opportunity, secondly
     that there shall be reservations in favour of certain communities
     which have not so far had a ‘proper look-in’ so to say into the
     administration. Dr. Ambedkar states that the equality of opportunity
     as specified in clause (1) has to be reconciled with the demand
     made by certain communities. He 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’.
184. It will further be apposite to refer to the following observation in the
     said speech.
[2024] 8 S.C.R.                                                           1557

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           Article 16 (Article 10 in Draft Constitution)
           “The Hon’ble Dr. B.R. Ambedkar: ……..Somebody asked
           me: “What is a backward community”? Well, I think
           anyone who reads the language of the draft itself will
           find that we have left it to be determined by each local
           Government. A backward community is a community
           which is backward in the opinion of the Government. My
           honourable Friend, Mr. T. T. Krishnamachari asked me
           whether this rule will be justiciable. It is rather difficult
           to give a dogmatic answer. Personally I think it would
           be a justiciable matter. If the local Government included
           in this category of reservations such a large number of
           seats, I think one could very well go to the Federal Court
           and the Supreme Court and say that the reservation is
           of such a magnitude that the rule regarding equality of
           opportunity has been destroyed and the court will then
           come to the conclusion whether the local Government
           or the State Government has acted in a reasonable and
           prudent manner. …………”
185. Dr. Ambedkar observed that “what is a backward community” will
     have to be determined by each local Government. A backward
     community, in his view, is a community which is backward in the
     opinion of the Government. He also foresighted that if the local
     Government included in this category of reservations such a large
     number of seats, one could very well go to the Federal Court and
     the Supreme Court and contend that the reservation is of such a
     magnitude that the rule regarding equality of opportunity has been
     destroyed. He also foresighted that the court will then conclude
     whether the local Government or the State Government has acted
     in a reasonable and prudent manner.
186. His foresight as to the debate regarding the identification of the
     backward classes and the extent of reservations can be judged
     from the spate of litigations that this country has witnessed for last
     74 years.
187. It could thus be seen that initially insofar as the issue regarding
     the identification of the backward classes except the Scheduled
     Castes and Scheduled Tribes was concerned, the same was left
     to the Executive. Insofar as the identification of Scheduled Castes
1558                                                         [2024] 8 S.C.R.

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     and Scheduled Tribes is concerned, the Constitution of India under
     Articles 341 and 342 provided the issuance of a general notification
     specifying all the castes and tribes or groups thereof to be Scheduled
     Castes and Scheduled Tribes for the purposes of privileges which
     have been defined in the Constitution.
188. I have already referred to Dr. Ambedkar’s speech about the
     introduction of the said provisions. He, however, stated that if any
     elimination was to be made from the list so notified or any addition
     was to be made then they must be made by Parliament and not
     by the President. He stated that the object behind the same was
     to eliminate any kind of political factors having play in the matter.
189. As already discussed herein above, the question insofar as
     identification of Other Backward Classes is concerned, was left to
     the State. Insofar as the identification of Scheduled Castes and
     Scheduled Tribes is concerned, the same was complete at the stage
     of enactment of the Constitution in view of Articles 341 and 342 and
     any addition or alteration to the said notified list was permissible only
     by an Act of Parliament. It is further to be noted that the foundation
     of the Presidential List issued under Articles 341 and 342 finds place
     in the 1936 Order issued under the provisions of the 1935 Act.
190. No doubt that by the Constitution (One hundred and Second
     Amendment) Act, 2018, Article 342A regarding socially and
     educationally backward classes has been inserted. Clause (26C)
     in Article 366 of the Constitution of India has also been inserted by
     the said Amendment insofar as socially and educationally backward
     classes are concerned. It was sought to be argued before us that
     in view of the Constitution (One hundred and Second Amendment)
     Act, 2018, read with the law laid down by this Court in the case of
     Indra Sawhney regarding Other Backward Classes, the judgment
     of this Court in E.V. Chinnaiah needs a relook.
191. I do not find it necessary to go into that aspect of the matter, since I
     find that E.V. Chinnaiah does not correctly consider the provisions
     of Articles 46, 335, 14, 15 and 16 of the Constitution of India, as
     have been interpreted by the earlier precedents of this Court. I have
     discussed hereinbelow in depth as to how E.V. Chinnaiah incorrectly
     interpreted the earlier precedents.
192. This Court in E.V. Chinnaiah in paragraph 13, while considering
     the effect of Article 341 of the Constitution, held that there can be
[2024] 8 S.C.R.                                                         1559

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     only one list of Scheduled Castes in regard to a State and that
     list should include all specified castes, races or tribes or part or
     groups notified in that Presidential List. It is further observed that
     any inclusion or exclusion from the said list can only be done by
     Parliament under Article 341(2) of the Constitution. This Court held
     that there is no reference to any sub-classification or division in the
     said list in any of the provisions of the Constitution except, maybe,
     for the limited purpose of Article 330, which refers to reservation of
     seats for Scheduled Castes in the House of the People. This Court
     held that it was clear to it that the Constitution intended all the castes
     including the subcastes, races and tribes mentioned in the list to be
     members of one group for the purpose of the Constitution and this
     group could not be subdivided for any purpose.
193. Thereafter, referring to the view expressed by Mathew, J., Krishna
     Iyer, J and Fazal Ali, J. in the case of N.M. Thomas, it is held in
     paragraph 26 that castes once included in the Presidential List,
     form a class by themselves. Then the Court held that if they are
     one class under the Constitution, any division of these classes of
     persons based on any consideration would amount to tinkering with
     the Presidential List.
194. In paragraph 31, it is observed that once the State reserve
     certain seats in educational institutions under Article 15(4) and in
     public services of the State under Article 16(4) in fulfillment of its
     constitutional obligation, it is not open to the State to subclassify
     a class already recognized by the Constitution and allot a portion
     of the already reserved quota amongst the State-created subclass
     within the list of Scheduled Castes.
195. In paragraph 38, this Court after referring to the case of Indra
     Sawhney held that the principles laid down in Indra Sawhney for
     sub-classification of Other Backward Classes cannot be applied
     for subclassification or subgrouping of Scheduled Castes in the
     Presidential List because that very judgment itself specifically held
     that subdivision of Other Backward Classes is not applicable to
     Scheduled Castes and Scheduled Tribes.
196. In paragraph 41, this Court held that the conglomeration of castes
     given in the Presidential Order, in their opinion, should be considered
     as representing a class as a whole. It is held that the very idea of
     placing different castes or tribes or group or part thereof in a State as
1560                                                        [2024] 8 S.C.R.

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     a conglomeration by way of a deeming definition clearly suggested
     that they were not to be subdivided or subclassified further. It goes
     on to hold that if a class within a class of members of the Scheduled
     Castes is created, the same would amount to tinkering with the list
     and would amount to violation of Article 14 of the Constitution. The
     Court then disagreed with the High Court that for the purpose of
     identifying backwardness, a further inquiry can be made by appointing a
     commission as to who amongst the members of the Scheduled Castes
     is more backward. The Court, taking note of the fact that the benefits
     of reservation are not percolating to them equitably, suggested that
     measures should be taken to see that they are given such adequate
     or additional training to enable them to compete with the others.
197. This Court in paragraph 43 observed that the very fact that the
     members of the Scheduled Castes are most backward amongst
     the backward classes and the impugned legislation having already
     proceeded on the basis that they are not adequately represented,
     a further classification by way of micro-classification was not
     permissible.
198. To ascertain if E.V. Chinnaiah is good law, I will have to first examine
     whether the finding in E.V. Chinnaiah that N.M. Thomas held the
     Scheduled Castes to be a homogeneous group is correct or not.
199. E.V. Chinnaiah relies on the judgment of Mathew, J. in N.M. Thomas.
     In paragraph 82, what Mathew, J. observed is that it is by virtue of
     the notification of the President that the Scheduled Castes come
     into being. It has been observed that though the members of the
     Scheduled Castes are drawn from castes, races or tribes, they attain
     a new status by virtue of the Presidential Notification.
200. It cannot be disputed that there is no caste by the name of “Scheduled
     Castes”. As has been discussed in earlier paragraphs, the term
     “Scheduled Castes” has come on account of the 1936 Order and
     the 1950 Order.
201. There can be no doubt that once the castes, races, tribes or part of or
     groups of such castes, races or tribes are included in the Presidential
     Notification they shall be deemed to be Scheduled Castes for the
     purposes of the Constitution.
202. Then E.V. Chinnaiah refers to the judgment of Krishna Iyer, J. in
     N.M. Thomas. Krishna Iyer, J. in paragraph 135 observed that
[2024] 8 S.C.R.                                                       1561

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     a bare reading of Article 341 and 342 shows that there are no
     castes in the Hindu fold but an amalgam of castes, races, groups,
     tribes, communities or parts thereof found on investigation to be
     the lowliest and in need of massive State aid and notified as such
     by the President. The Learned Judge observed that to confuse
     this backwardmost social composition with castes is to commit a
     constitutional error.
203. The observations made by the Learned Judge are in the context
     of the arguments that any special treatment on the ground of caste
     is prohibited under Article 16(2). The Learned Judge observed
     that Article 16(2) was not coming in the way to extend protective
     discrimination to this mixed bag of tribes, races, groups, communities
     and non-castes outside the four-fold Hindu division. The Learned
     Judge further observed that the Indian jurisprudence has generally
     regarded Scheduled Castes and Scheduled Tribes not as caste but
     as a large backward group deserving of societal compassion.
204. E.V. Chinnaiah thereafter relies on Fazal Ali, J.’s judgment.
205. Again, the observations made by Fazal Ali, J. in paragraph 169, are
     with regard to the arguments based on prohibition of Article 16(2).
     It is observed that the Scheduled Castes and Scheduled Tribes do
     not fall with the purview of Article 16(2) of the Constitution, which
     prohibits discrimination between the members of the same caste. It
     is observed that if, therefore, the members of the Scheduled Castes
     and the Scheduled Tribes are not castes, then it is open to the State
     to make reasonable classification to advance or lift these classes
     so that they may be able to be properly represented in the services
     under the State.
206. However, on reading of the majority judgments in N.M. Thomas it
     does not show that the Scheduled Castes are homogeneous group
     and sub-classification therein is not permissible.
207. In paragraph 44 of the judgment in N.M. Thomas, Ray, C.J. observed
     that the equality of opportunity for unequals can only mean aggravation
     of inequality; equality of opportunity admits discrimination with reason
     and prohibits discrimination without reason; and discrimination with
     reasons means rational classification for differential treatment having
     nexus to the constitutionally permissible object. It is observed that
     preferential representation for the Backward Classes in services
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     with due regard to administrative efficiency is permissible object
     and Backward Classes are a rational classification recognized by
     the Constitution. He therefore held that the differential treatment in
     standards of selection is within the concept of equality.
208. Mathew, J. in paragraph 54, refers to the principle of proportional
     equality and held that it can be attained only when equals are treated
     equally and unequals unequally. He held that differential treatment
     would be allowed if there is significant difference among the persons
     who are treated differentially.
209. In paragraph 73, the Learned Judge observed that the State should
     adopt a standard of proportional equality which takes account of the
     differing conditions and circumstances of a class of citizens whenever
     those conditions and circumstances stand in the way of their equal
     access to the enjoyment of basic rights or claims.
210. In paragraph 75, the Learned Judge observed that such sort of
     preferential treatment would be permissible under Article 16(1) as
     such a preferential treatment alone would put the backward class
     people on a parity with the forward communities. The Learned
     Judge observed that whether there is equality of opportunity can
     be gauged only by the equality attained in the result. He states
     that formal equality of opportunity simply enables people with more
     education and intelligence to capture all the posts and to win over
     the less fortunate in education and talent even when the competition
     is fair. It is observed that the equality of result is the test of equality
     of opportunity.
211. Krishna Iyer, J. in paragraph 119 refers to the concept of ‘social
     engineering’. He quotes from a book that “One law for the Lion and
     Ox is oppression”.
212. In paragraph 129, after considering the constitutional scheme, the
     Learned Judge observed that the Constitution itself demarcates
     harijans from others. That this is based on the stark backwardness of
     this bottom layer of the community. It is observed that the differentiation
     has been made to cover specifically the area of appointments to
     posts under the State. He further held that the twin objects, blended
     into one, are the claims of harijans to be considered in such posts
     and the maintenance of administrative efficiency. The Learned Judge
     observed that the State has been obligated to promote the economic
     interests of harijans and like backward classes.
[2024] 8 S.C.R.                                                       1563

          The State of Punjab & Ors. v. Davinder Singh & Ors.


213. In paragraph 142, the Learned Judge observed that the genius of
     Articles 14 to 16 consists not in literal equality but in progressive
     elimination of pronounced inequality. He observed that to treat sharply
     dissimilar persons equally is subtle injustice.
214. In paragraph 149, Krishna Iyer, J. while concluding observed that
     “the heady upper berth occupants from ‘backward’ classes do
     double injury. They beguile the broad community into believing that
     backwardness is being banished. They rob the need-based bulk of
     the backward of the ‘office’ advantages the nation, by classification,
     reserves or proffers”.
215. Fazal Ali, J. in paragraph 165, referring to clauses (24) and (25)
     of Article 366 of the Constitution observed that the said provisions
     create a presumption in favour of Scheduled Castes and Scheduled
     Tribes that they are backward classes of citizens. It is observed that
     it is not disputed that the members of the Scheduled Castes and
     Scheduled Tribes are specified in the notifications issued under
     Articles 341 and 342 of the Constitution and, therefore, they must
     be deemed to be Scheduled Castes and Scheduled Tribes for the
     purposes of the Constitution.
216. In paragraph 178, the Learned Judge observed that the concept
     of equality or equal opportunity as contained in Article 16 does not
     mean that same laws must be applicable to all persons under every
     circumstance. He observed that if this artificial interpretation is put
     on the scope and ambit of Article 16 it will lead to channelization
     of legislation or polarization of rules. It is observed that differences
     and disparities exist among men and things, and they cannot be
     treated alike by the application of the same laws. He observed that
     the law has to come to terms with life and must be able to recognize
     the genuine differences and disparities that exist in human nature.
217. The Learned Judge also held that the equality enshrined in
     clause (1) of Article 16 of the Constitution inherently implies that
     the opportunity must be given not only to a particular section of the
     society or a particular class of citizens who may be advanced or
     otherwise more affluent but to all classes of citizens. He observed
     that that this can be achieved by making a reasonable classification
     so that every class of citizens is duly represented in services which
     will enable equality of opportunity to all citizens. He lays down the
     conditions for the classification to be a reasonable one.
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218. It can thus be seen that in none of the judgments in N.M. Thomas it
     is held that the Scheduled Castes are a homogeneous class. It has
     been held that once the Scheduled Castes and Scheduled Tribes
     have been identified and they find a place in the Presidential List,
     they will continue to be the Scheduled Castes and Scheduled Tribes.
     It has been held that by the very fact of they being included in the
     Presidential List, they are deemed to be backward and no further
     enquiry regarding their backwardness would be warranted.
219. In Akhil Bharatiya Soshit Karamchari Sangh (supra), Krishna Iyer, J.,
     in paragraph 94, rejects the plea that because a few harijans are
     better off, therefore, the bulk at the bottom deserves no jack-up
     provisions and that a swallow does not make a summer. He further
     observed that maybe, the State may, when social conditions warrant,
     justifiably restrict harijan benefits to the harijans among the harijans
     and forbid the higher harijans from robbing the lowlier brethren.
220. Again, in paragraph 98, he considered the argument that there are
     rich and influential harijans who rob all the privileges leaving the serf-
     level sufferers as suppressed as ever. He advised the Administration
     to innovate and classify to weed out the creamy layer of Scheduled
     Castes/Scheduled Tribes. However, he observed that the Court
     cannot force the State in that behalf.
221. In K.C. Vasanth Kumar, Chandrachud, C.J. in paragraph 2,
     observed that the reservation in employment and education in favour
     of Scheduled Castes and Scheduled Tribes must continue without
     the application of a means test for a further period not exceeding
     15 years. He observed that after the said period of 15 years, the
     test of economic backwardness ought to be made applicable even
     to the Scheduled Castes and Scheduled Tribes. Insofar as Other
     Backward Classes are concerned, he stated that two tests should
     be conjunctively applied for identifying them for the purpose of
     reservations in employment and education: One, that they should
     be comparable to the Scheduled Castes and Scheduled Tribes in
     the matter of their backwardness; and two, that they should satisfy
     the means test such as a State Government may lay down in the
     context of prevailing economic conditions.
222. Desai, J. in paragraph 31, observed that the approach suggested by
     him does not deal with reservation in favour of Scheduled Castes
     and Scheduled Tribes since thousands of years of discrimination
[2024] 8 S.C.R.                                                    1565

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     and exploitation cannot be wiped out in one generation. However,
     he suggested that even in their cases economic criterion is worth
     applying by refusing preferred treatment to those amongst them who
     have already benefited by it and improved their position.
223. Chinnappa Reddy, J. in paragraph 51 did not agree with the view
     that while determining the social backwardness of other classes, the
     test to be applied is nearness to the conditions of existence of the
     Scheduled Castes. He observed that such a test would practically
     nullify the provision for reservation for socially and educationally
     backward classes other than Scheduled Castes and Tribes.
224. Chinnappa Reddy, J. in paragraph 79, notes that a few members
     of those castes or social groups may have progressed far enough
     and forged ahead to compare favourably with the leading forward
     class economically, socially and educationally. He suggests that
     in such cases, perhaps an upper income ceiling would secure the
     benefit of reservation to such of those members of the class who
     really deserve it.
225. As already discussed hereinabove, the 9-Judge Bench of this
     Court in Indra Sawhney has in unequivocal terms held that further
     classification of backward classes into more backward classes is
     permissible in law.
226. Jeevan Reddy, J. in paragraph 802, in the case of Indra Sawhney,
     gives an illustration with regard to two occupational groups viz.,
     goldsmiths and vaddes (traditional stonecutters in Andhra Pradesh).
     He stated that both are included within Other Backward Classes. He
     observed that none can deny that goldsmiths are far less backward
     than vaddes and so if both are grouped together and reservation
     provided, the inevitable result would be that goldsmiths would take
     away all the reserved posts leaving none for vaddes. The Learned
     Judge further observed that in such a situation, a State may think
     it advisable to make a categorization even among other backward
     classes so as to ensure that the more backward among the backward
     classes obtain the benefits intended for them. He stated that where
     to draw the line and how to effect the sub-classification, however,
     is a matter for the Commission and the State and so long as it is
     reasonably done, the Court may not intervene.
227. It will also be relevant to note that in paragraph 803, the Learned
     Judge observed that Article 16(4) recognizes only one class i.e.,
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     “backward class of citizens”. It does not speak separately of Scheduled
     Castes and Scheduled Tribes, as does Article 15(4). The Learned
     Judge observed that it is beyond controversy that Scheduled Castes
     and Scheduled Tribes are also included in the expression “backward
     class of citizens” and that separate reservations can be provided in
     their favour. The Learned Judge observed that if Scheduled Tribes,
     Scheduled Castes and Other Backward Classes are lumped together,
     OBCs will take away all the vacancies leaving Scheduled Castes and
     Scheduled Tribes high and dry. He states that the same logic also
     warrants categorization as between more backward and backward.
228. As has already been noted before, in paragraph 781 of Indra
     Sawhney, Jeevan Reddy, J. states that for the purpose of the
     discussion in the judgment, the Scheduled Castes and Scheduled
     Tribes, which were admittedly included within the backward classes,
     were kept aside.
229. It is pertinent to note that the said discussion in the judgment
     was pertaining to “identification” of backward classes of citizens.
     As discussed hereinabove, insofar as the Scheduled Castes and
     Scheduled Tribes are concerned, identification is already covered
     by the Presidential List issued under Artiles 341 and 342.
230. Sawant, J. in his judgment also held that Article 16(4) permits
     classification of backward classes into backward and more or most
     backward classes. However, this classification is permitted only
     because of the degrees of social backwardness and not based on
     economic consideration alone. He held that if backward classes
     are classified into backward and more or most backward classes,
     separate quotas of reservations would be kept for each of such
     classes. In the absence of such separate quotas, the reservations
     will be illegal.
231. This Court in E.V. Chinnaiah has observed that the law laid down
     in the case of Indra Sawhney would not be applicable since
     Jeevan Reddy, J. in his judgment has himself stated that the same
     would not be applicable to Scheduled Castes and Scheduled
     Tribes in paragraph 781, which paragraph deals with identification
     of backward classes of citizens. Jeevan Reddy, J. states that for
     the purpose of the said discussion, we keep aside the Scheduled
     Castes and Scheduled Tribes. He observed that this was done since
     they are admittedly included within the backward classes. However,
[2024] 8 S.C.R.                                                       1567

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      in paragraph 803, he specifically observed that under Article 16(4)
      there is no mention of Scheduled Castes and Scheduled Tribes
      and that Scheduled Castes and Scheduled Tribes are also part of
      backward class of citizens.
232. Insofar as the observation in paragraph 792 wherein Jeevan Reddy, J.
     observed that the said discussion has no relevance in the case of
     Scheduled Tribes and Scheduled Castes is concerned, the said
     discussion was regarding applicability of the ‘means test’ or ‘creamy
     layer test’.
233. That being the case, if the Scheduled Castes and Scheduled Tribes
     are a part of backward class of citizens under Article 16(4), then the
     question would be, as to why sub-classification which is permitted
     in case of Other Backward Classes cannot be permitted in case of
     Scheduled Castes and Scheduled Tribes?
234. Though the initial view of this Court was that Article 16(4) is by way
     of exception to Article 16(1), the same has undergone a thorough
     change, particularly after the judgment of this Court in the case of
     His Holiness Kesavananda Bharati Sripadagalavaru vs. State of
     Kerala 24 in relation to interplay between the Fundamental Rights and
     the Directive Principles. Shortly after the judgment in Kesavananda
     Bharati, came the judgment of 7-Judge Bench of this Court in
     N.M. Thomas wherein the 5-Learned Judges took a view that
     Article 16(4) was not by way of exception to Article 16(1). It was held
     that the trinity of Articles 14 to 16 embodied the concept of equality.
     It was emphasized that equality does not mean equality to all. It
     was held that equality as enshrined under the Constitution did not
     mean formal equality but real equality. It was held that to bring real
     equality unequal treatment to unequals was what was contemplated
     under the Constitution. It was held that if unequals are to be treated
     equally it will lead to nothing else but perpetuating inequality. It was
     held that only giving an unequal treatment to unequals so that they
     can march ahead can bring out real equality.
235. This Court in unequivocal terms held that preferential treatment for
     members of backward classes alone can mean equality of opportunity
     for all citizens. The Court held that clause (4) of Article 16 was an
     emphatic way of stating a principle implicit in Article 16(1).


24   [1973] Supp. SCR 1 : (1973) 4 SCC 225
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236. Ray, C.J. observed that all legitimate methods were available for
     equality of opportunity in services under Article 16(1). He stated
     that Article 16(4) indicates one of the methods of achieving equality
     embodied in Article 16(1)
237. Mathew, J. observed that the claim for equality is in fact a protest
     against unjust, underserved and unjustified inequalities. It is a symbol
     of man’s revolt against chance, fortuitous disparity, unjust power
     and crystallized privileges. He stated that if equality of opportunity
     guaranteed under Article 16(1) means effective material equality,
     then Article 16(4) is not an exception to Article 16(1). It is only an
     emphatic way of putting the extent to which equality of opportunity
     could be carried i.e., even up to the point of making reservation.
238. In paragraph 83, he emphatically states that it is a mistake to
     assume a priori that there can be no classification within a class.
     He states that if there are intelligible differentia which separates a
     group within that class from the rest and that differentia has nexus
     with the object of classification, then there should be no objection
     to a further classification within the class.
239. Krishna Iyer, J. in paragraph 124 refers to the research conducted
     by the A.N. Sinha Institute of Social Studies, Patna which would
     reveal a dual society among harijans, a tiny elite gobbling up the
     benefits and the darker layers sleeping distances away from the
     special concessions. He observed that, for them, Articles 46 and 335
     remain a ‘noble romance’, the bonanza going to the ‘higher’ harijans.
     He states in paragraph 136 that Article 16(4) need not be a saving
     clause but put in due to the over-anxiety of the draftsman to make
     matters clear beyond possibility of doubt. He observes in paragraph
     142 that the genius of Articles 14 to 16 consists not in literal equality
     but in progressive elimination of pronounced inequality. According
     to him, to treat sharply dissimilar persons equally is subtle injustice.
     He held that if Article 16(4) admits of reasonable classification, so
     does Article 16(1).
240. In K.C. Vasanth Kumar, Y.V. Chandrachud, C.J. observed that the
     test of economic backwardness ought to be made applicable even
     to the Scheduled Castes and Scheduled Tribes after a period of
     15 years from the date of the judgment. Desai, J. in the said judgment
     observed that even in the case of Scheduled Castes and Scheduled
     Tribes the economic criterion was worth applying by refusing preferred
[2024] 8 S.C.R.                                                       1569

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     treatment to those amongst them who have already benefitted by it
     and improved their position.
241. Fazal Ali, J., after referring to all the judgments of the Learned
     Judges in Kesavananda Bharati with regard to interplay between
     Part III and Part IV of the Constitution, held that Fundamental Rights
     guaranteed by the Constitution has to be read in harmony with the
     Directive Principles contained in Part IV. He also reiterates that
     Article 16(4) is not a proviso to Article 16(1).
242. M.H. Beg, J. concurs with the views expressed by the aforesaid
     Learned Judges.
243. Further, Krishya Iyer, J. in Akhil Bharatiya Soshit Karamchari
     Sangh reiterates that Articles 14 to 16 form a code by themselves
     and embody the distilled essence of the Constitution’s casteless and
     classless egalitarianism. He states that Article 46, in emphatic terms,
     obligates the State “to promote with special care the educational
     and economic interests of the weaker sections of the people, and, in
     particular, of the Scheduled Castes and the Scheduled Tribes, and
     shall protect them from social injustice and all forms of exploitation”.
     He states that reading Article 46 together with Article 16(4), the
     inference is obvious that administrative participation by the Scheduled
     Castes and Scheduled Tribes shall be promoted with special care
     by the State.
244. While considering the criticism that there are rich and influential
     harijans who rob all the privileges leaving the serf-level sufferers
     as suppressed as ever, he suggested that the Administration may
     well innovate and classify to weed out the creamy layer of SCs/STs.
     However, records a caution that the Court cannot force the State
     in that behalf.
245. Chinnappa Reddy, J. in the same judgment states that it becomes
     the duty of the Court to apply the Directive Principles in interpreting
     the Constitution and the laws. He states that the Directive Principles
     should serve the courts as a code of interpretation. He states that
     the Fundamental Rights should be interpreted in the light of the
     Directive Principles and the latter should, whenever and wherever
     possible, be read into the former.
246. Chinnappa Reddy, J advocates that the State action should be
     towards protection and nourishment of the underprivileged, the
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     deprived and the exploited so that they can take their place in an
     egalitarian society.
247. In Indra Sawhney, 7 Learned Judges affirmed the position as laid
     down in N.M. Thomas that clause (4) of Article 16 is not by way of
     an exception to clause (1) of Article 16, but it is an emphatic way of
     stating a principle implicit in Article 16(1).
248. As already discussed hereinabove, it has been held that further
     classification of backward classes into backward and more backward
     classes is permissible under the Constitution. The only caveat put
     by Sawant, J. is that if it is done there has to be a reservation for
     both backward as well as for more or most backward classes. It has
     been held in Indra Sawhney that under Article 16(4) the Scheduled
     Castes are also included in the term ‘backward class of citizens’.
249. If that be so, I find no justification in E.V. Chinnaiah holding that
     the State is not empowered to do the exercise of sub-classification
     among the Scheduled Castes.
250. The basic error that appears to have been committed in E.V. Chinnaiah
     is that it proceeds on the understanding that Article 341 has to do
     with the reservation of the seats.
251. As already discussed hereinabove, Articles 341 and 342 are only
     with regard to identification of the Scheduled Castes and Scheduled
     Tribes. Articles 341 and 342 read with clauses (24) and (25) of
     Article 366 of the Constitution provide that those castes included in
     the Presidential List shall be deemed to be Scheduled Castes and
     Scheduled Tribes for the purposes of the Constitution. However, at
     the cost of repetition, I reiterate that Articles 341 and 342 do not
     deal with reservation.
252. The provisions of affirmative action including reservations in the
     matter of public employment are contained in Article 16 of the
     Constitution of India.
253. As already discussed herein above, this Court in Indra Sawhney
     has held that further classification of backward classes into backward
     and more backward classes is permissible in law.
254. By that corollary, if a State finds that any of the castes, races,
     tribes or part of or groups within the castes, races or tribes are not
     adequately represented, could the State be denied its right to make
     a special provision for that?
[2024] 8 S.C.R.                                                                                 1571

             The State of Punjab & Ors. v. Davinder Singh & Ors.


255. In a catena of decisions, this Court held that the State must resort
     to compensatory State action for the purpose of making people who
     are factually unequal in their wealth, education or social environment,
     equal in specified areas. It has been held that State should take
     affirmative action by way of giving preference and reservation to
     the socially and economically disadvantaged persons or inflicting
     handicaps on those more advantageously placed, to bring about real
     equality. Reference in this respect may be made to the Constitution
     Bench judgment of this Court in the case of Marri Chandra Shekhar
     Rao vs. Dean, Seth G.S. Medical College and others,25 wherein
     this Court observed thus:
              “20. …. Reservations should and must be adopted to
              advance the prospects of weaker sections of society,
              but while doing so care should be taken not to exclude
              the legitimate expectations of the other segments of the
              community.”
256. Some startling facts have been brought to our notice. Though the
     Presidential List for the State of Andhra Pradesh has a list of 60
     Scheduled Castes, Justice Usha Mehra Commission Report26 shows
     that out of these 60 Scheduled Castes, only 4 or 5 had availed the
     benefits of reservation, leaving the rest of the Scheduled Castes in
     the Presidential List high and dry. The Report shows that the same
     has resulted in an anomaly that none of the majority caste despite
     their inclusion in the Presidential List for the State of Andhra Pradesh,
     have been able to seek reservation benefits including entry into
     Government service under the State except for the job of Sweepers
     and/or Farash.
257. Insofar as the State of Punjab is concerned, it is sought to be urged
     on behalf of the State of Punjab that though Balmikis and Mazhabi
     Sikhs constitute 41.9% of the total population of the Scheduled Castes,
     the percentage of these categories in public employment is totally
     disproportionate to their population among the Scheduled Castes. In
     any case, it is urged that what is provided under the Act27 was only


25   [1990] 2 SCR 843 : (1990) 3 SCC 130
26   Report of Justice Usha Mehra National Commission on Sub-Categorization of Scheduled Castes in
     Andhra Pradesh (submitted to Ministry of Social Justice and Empowerment, Government of India on 1st
     May 2008).
27   Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act,
     2006 (Punjab Act No. 22 of 2006)
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     differential treatment insofar as 50% of the vacancies reserved for
     Scheduled Castes is concerned. Only if the candidates from these
     categories are available, the seats would go to these categories. On
     account of non-availability of the candidates from these categories,
     the seats would fall into the other categories of the Scheduled Castes.
258. I find that, as has been observed by this Court in various judgments, it
     is the duty of the State to give preferential treatment to the backward
     class of citizens who are not adequately represented. If the State
     while discharging that duty finds that certain categories within
     the Scheduled Castes and Scheduled Tribes are not adequately
     represented and only the people belonging to few of the categories
     are enjoying the entire benefit reserved for Scheduled Castes and
     Scheduled Tribes, can the State be denied its right to give more
     preferential treatment for such categories? In my view, the answer
     would be in the negative, since the same would not amount to
     tinkering with the Presidential List.
259. No doubt that if the State decides to provide 100% of the reservation
     for Scheduled Castes to one or more categories enlisted in the
     Presidential List in that State to the exclusion of some categories,
     it may amount to tinkering with that list because, in effect, it would
     amount to denial of benefit of reservation to those Scheduled Caste
     categories which have been excluded. In my view, that would, in
     effect, amount to deletion of the said categories from the Presidential
     List notified under Article 341 of the Constitution, which power is
     exclusively reserved with Parliament, in my opinion, such an exercise
     would not be permissible.
260. In this respect, I may take support from the observations made by
     Sawant, J. in Indra Sawhney. He held that if the reservation is
     provided only for the more or most backward classes, then the people
     belonging to higher echelons would grab the open seats whereas
     the people from more or most backward classes would eat up the
     entire reservation, leaving the other backward classes high and dry.
     He therefore held that the sub-classification of backward classes
     would be permissible provided the reserved seats are available for
     backward classes as well as more or most backward classes. I am
     therefore of the considered view that merely because more preferential
     treatment is provided to the more backward or more inadequately
     represented among the Scheduled Castes, it would not amount to
     tinkering with the Presidential List. In my view, the same would be
[2024] 8 S.C.R.                                                         1573

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     permissible in view of the law laid down by the 9-Judge Bench in
     the case of Indra Sawhney.
261. The ground realities cannot be denied. Even among the Scheduled
     Castes, there are some categories who have received more inhuman
     treatment for centuries and generations as compared to the other
     categories. The hardships and the backwardness which these
     categories have suffered historically would differ from category to
     category. In my view, therefore, merely because they are part of a
     single or a combined Presidential List, it cannot be said that they
     form part of a homogeneous group. I therefore have no hesitation
     in holding that E.V. Chinnaiah has been wrongly decided.
262. The concept of sub-classification was sought to be attacked on
     the ground that this would lead to giving reservation for political
     reasons. It was argued that a political party in power to gain political
     advantage may provide special treatment to a particular class in the
     list of Scheduled Castes. I see no merit in the argument.
263. Dr. Ambedkar had foreseen such a difficulty. In his speech in the
     Constituent Assembly, Dr. B.R. Ambedkar said that ‘backward
     community” will have to be left to be determined by each local
     government. On a query by Shri T.T. Krishnamachari, as to whether
     this rule will be justiciable, he observed that it would be a justiciable
     matter. He stated that if the local Government included in this category
     of reservations such a large number of seats, one could very well
     go to the Federal Court and the Supreme Court and say that the
     reservation is of such a magnitude that the rule regarding equality of
     opportunity has been destroyed and the court will then come to the
     conclusion whether the local Government or the State Government
     has acted in a reasonable and prudent manner.
264. Various judicial pronouncements referred to hereinabove have
     emphasized that a reasonable classification is implicit in the trinity
     of Articles 14 to 16. Therefore, if somebody approaches the Court,
     the Court can always examine as to whether such a classification
     is reasonable or not.
265. For a classification to be reasonable, it will have to be established that
     any group or sub-group carved out in the larger group is significantly
     different than the larger group and that the classification has a nexus
     with the object to be achieved.
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266. In a case, like the present one, if a classification is made, it will have
     to be established that the group carved out from the larger group is
     more disadvantageous and not adequately represented. The result
     of classification would be to provide more preferential treatment to
     this more disadvantageous and less represented group. The ultimate
     object would be to achieve real equality among all the sub-groups
     in the larger group.
267. In any case, as has been held by judicial pronouncements, when
     the State does such an exercise, it will have to be supported by
     an empirical data. Unless the State or the Commission comes to a
     finding that the group carved out needs special treatment is more
     disadvantageous and not adequately represented as compared to
     the other categories in the group, such a sub-classification would
     not stand the scrutiny of the law. I, therefore, find that the fear that
     is posed is not substantiated.
268. I find that the attitude of the categories in the Presidential List opposing
     such a sub-classification is that of a person in the general compartment
     of the train. Firstly, the persons outside the compartment struggled
     to get into the general compartment. However, once they get inside
     it, they make every attempt possible to prevent the persons outside
     such a compartment from entering it.
269. In fact, what the people belonging to the categories who are
     availing of large chunk of reservations and denying a special
     treatment to the less privileged among them are doing, is what
     the people from the higher castes have done to these people for
     centuries as a result of which backward classes were kept away
     from the mainstream of society for ages, for no fault of theirs.
     Only on account of the principle of social and economic justice as
     enshrined under the Constitution, they have availed themselves
     of the benefits of special treatment. However, when the State
     endeavours to ensure that the said benefit percolates to the more
     underprivileged and less adequately represented, the sections from
     the Scheduled Castes who oppose them, stand in the shoes of
     those who oppressed them.
270. The categories in the Presidential List who have already enjoyed a
     major chunk of reservations should not object to the State providing a
     special treatment to those who have been deprived of such a benefit
[2024] 8 S.C.R.                                                            1575

           The State of Punjab & Ors. v. Davinder Singh & Ors.


     and particularly when such a benefit is not being taken away from
     them. Only part of that benefit is being reserved for percolating the
     same to the more disadvantageous and less represented.
271. I find that to achieve real equality as envisaged by this Court in
     various judicial pronouncements, sub-classification amongst the
     Scheduled Castes for giving more beneficial treatment is wholly
     permissible under the Constitution.
     VI.   THE WAY FORWARD
272. That leaves us with the question regarding the applicability of creamy
     layer principle to the Scheduled Castes and Scheduled Tribes.
273. No doubt that in Indra Sawhney, Jeevan Reddy, J. while considering
     the applicability of ‘means test’ and ‘creamy layer’ has observed
     that the discussion therein is confined only to Other Backward
     Classes, and it has no relevance in the case of Scheduled Castes
     and Scheduled Tribes.
274. In paragraph 792, Jeevan Reddy, J. observed thus:
           “792. In our opinion, it is not a question of permissibility
           or desirability of such test but one of proper and more
           appropriate identification of a class — a backward class.
           The very concept of a class denotes a number of persons
           having certain common traits which distinguish them
           from the others. In a backward class under clause (4) of
           Article 16, if the connecting link is the social backwardness,
           it should broadly be the same in a given class. If some of
           the members are far too advanced socially (which in the
           context, necessarily means economically and, may also
           mean educationally) the connecting thread between them
           and the remaining class snaps. They would be misfits in
           the class. After excluding them alone, would the class be
           a compact class. In fact, such exclusion benefits the truly
           backward. Difficulty, however, really lies in drawing the
           line — how and where to draw the line? For, while drawing
           the line, it should be ensured that it does not result in
           taking away with one hand what is given by the other. The
           basis of exclusion should not merely be economic, unless,
           of course, the economic advancement is so high that it
           necessarily means social advancement. Let us illustrate
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        the point. A member of backward class, say a member
        of carpenter caste, goes to Middle East and works there
        as a carpenter. If you take his annual income in rupees,
        it would be fairly high from the Indian standard. Is he to
        be excluded from the Backward Class? Are his children in
        India to be deprived of the benefit of Article 16(4)? Situation
        may, however, be different, if he rises so high economically
        as to become — say a factory owner himself. In such a
        situation, his social status also rises. He himself would be
        in a position to provide employment to others. In such a
        case, his income is merely a measure of his social status.
        Even otherwise there are several practical difficulties too in
        imposing an income ceiling. For example, annual income
        of Rs 36,000 may not count for much in a city like Bombay,
        Delhi or Calcutta whereas it may be a handsome income
        in rural India anywhere. The line to be drawn must be a
        realistic one. Another question would be, should such a
        line be uniform for the entire country or a given State or
        should it differ from rural to urban areas and so on. Further,
        income from agriculture may be difficult to assess and,
        therefore, in the case of agriculturists, the line may have
        to be drawn with reference to the extent of holding. While
        the income of a person can be taken as a measure of his
        social advancement, the limit to be prescribed should not
        be such as to result in taking away with one hand what is
        given with the other. The income limit must be such as to
        mean and signify social advancement. At the same time,
        it must be recognised that there are certain positions, the
        occupants of which can be treated as socially advanced
        without any further enquiry. For example, if a member of a
        designated backward class becomes a member of IAS or
        IPS or any other All India Service, his status is society (social
        status) rises; he is no longer socially disadvantaged. His
        children get full opportunity to realise their potential. They
        are in no way handicapped in the race of life. His salary
        is also such that he is above want. It is but logical that in
        such a situation, his children are not given the benefit of
        reservation. For by giving them the benefit of reservation,
        other disadvantaged members of that backward class
[2024] 8 S.C.R.                                                         1577

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           may be deprived of that benefit. It is then argued for the
           respondents that ‘one swallow doesn’t make the summer’,
           and that merely because a few members of a caste or class
           become socially advanced, the class/caste as such does
           not cease to be backward. It is pointed out that clause (4)
           of Article 16 aims at group backwardness and not individual
           backwardness. While we agree that clause (4) aims at
           group backwardness, we feel that exclusion of such socially
           advanced members will make the ‘class’ a truly backward
           class and would more appropriately serve the purpose and
           object of clause (4). (This discussion is confined to Other
           Backward Classes only and has no relevance in the case
           of Scheduled Tribes and Scheduled Castes).”
275. It has been observed that the very concept of a class denotes a
     number of persons having certain common traits which distinguish
     them from the others. It is observed that if some of the members are
     far too advanced socially (which in the context, necessarily means
     economically and may also mean educationally) the connecting
     thread between them and the remaining class snaps. He observed
     that they would be misfits in the class. It is further observed that
     after excluding them alone, would the class be a compact class. It is
     observed that in fact, such exclusion would benefit the truly backward.
276. His Lordship gave an example that, if a member of a designated
     backward class becomes a member of IAS or IPS or any other All
     India Service, his status in society rises; he is no longer socially
     disadvantaged. His children would get full opportunity to realize their
     potential. They are in no way handicapped in the race of life. It is
     observed that it is logical that in such a situation, his children are not
     given the benefit of reservation. It is further observed that by giving
     them the benefit of reservation, other disadvantaged members of
     that backward class may be deprived of that benefit.
277. Rejecting the argument of ‘one swallow doesn’t make the summer’,
     i.e. merely because few members of a caste/class become socially
     advanced the caste/class as such does not cease to be backward,
     the Learned Judge answered that though clause (4) of Article 16 aims
     at group backwardness, he was of the view that exclusion of such
     socially advanced members will make the ‘class’ a truly backward
     class and would more appropriately serve the purpose and object
     of clause (4) of Article 16.
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278. As early as in 1981, in Akhil Bharatiya Soshit Karamchari Sangh,
     Krishna Iyer, J., in paragraph 94, while rejecting the argument that
     because a few harijans are better off, therefore, the bulk at the bottom
     deserves no jack-up provisions, had observed that the State may,
     when social conditions warrant, justifiably restrict harijan benefits to
     the harijans among the harijans and forbid the higher harijans from
     robbing the lowlier brethren.
279. Again, in paragraph 98, he observed that the Administration may well
     innovate and classify to weed out the creamy layer of Scheduled
     Castes and Scheduled Tribes. However, he cautioned that the Court
     cannot force the State in that behalf.
280. Chinnappa Reddy, J. also records that a few members of those
     castes or social groups may have progressed far enough and forged
     ahead so as to compare favourably with the leading forward class
     economically, socially and educationally. He observed that in such
     cases, perhaps an upper income ceiling would secure the benefit
     of reservation to such of those members of the class who really
     deserve it.
281. In M. Nagaraj, the Court also applied the principle of quantifiable
     data and creamy layer even in the case of Scheduled Castes and
     Scheduled Tribes. The correctness of the same was considered in
     Jarnail Singh.
282. Though Jarnail Singh held that insofar as applicability of
     quantifiable data on backwardness insofar as Scheduled Castes
     and Scheduled Tribes is concerned, M. Nagaraj was not correct,
     however, insofar as the applicability of creamy layer principle
     even to Scheduled Castes and Scheduled Tribes is concerned, it
     upheld the view taken in M. Nagaraj. In doing so, Jarnail Singh
     is basically relying on the judgment of 7-Judge Bench of this Court
     in N.M. Thomas. The view taken in Jarnail Singh has also been
     approved in Davinder Singh.
283. The correctness of the view taken in Jarnail Singh and Davinder
     Singh is not questioned. However, since in the present reference
     we are dealing with the question about equality among the group of
     unequals, I find it appropriate to consider the said issue also.
284. I have already referred hereinabove to the observations made by
     Krishna Iyer, J. in N.M. Thomas and the observations made by
[2024] 8 S.C.R.                                                            1579

           The State of Punjab & Ors. v. Davinder Singh & Ors.


     Chinnappa Reddy, J. in K.C. Vasanth Kumar regarding applicability
     of creamy layer principle. It is worthwhile to note that the 7-Judge
     Bench in N.M. Thomas was considering the question about
     affirmative action in case of Scheduled Castes and Scheduled
     Tribes.
285. In N.M. Thomas, Krishna Iyer, J., in more than one place, had
     observed that the State is entitled to take steps for weeding out the
     socially, economically and educationally advanced sections of the
     Scheduled Castes and Scheduled Tribes from the applicability of
     reservation.
286. Krishna Iyer, J. has again reiterated this position in paragraphs
     94 and 98 in Akhil Bharatiya Soshit Karamchari Sangh.
287. When the 9-Judge Bench in Indra Sawhney held that applicability
     of such a test insofar as Other Backward Classes are concerned
     would advance equality as enshrined in the Constitution, then why
     such a test should not also be made applicable to the Scheduled
     Castes and Scheduled Tribes.
288. As observed hereinabove, there are stark ground realities, and we
     cannot be ignorant of them. Nearly 75 years have elapsed from
     the day on which the Constitution was brought into effect. Special
     provisions have been made for the advancement of the Scheduled
     Castes and Scheduled Tribes and backward class of citizens. By
     judicial interpretation, the equality enshrined in the trinity of Articles 14
     to 16 of the Constitution has been considered to be equal treatment
     among equals and unequal treatment among unequals. The question
     that will have to be posed is, whether equal treatment to unequals in
     the category of Scheduled Castes would advance the constitutional
     objective of equality or would thwart it? Can a child of IAS/IPS or Civil
     Service Officers be equated with a child of a disadvantaged member
     belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla
     Parishad school in a village?
289. The education facilities and the other facilities that would be available
     to a child of a parent of the first category would be much higher,
     maybe the facilities for additional coaching would also be available;
     the atmosphere in the house will be far superior and conducive for
     educational upliftment.
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290. Per contra, the child of parent of the second category would be
     having only the bare minimum education; the facilities of coaching,
     etc., would be totally unavailable to him. He will be living in the
     company of his parents who do not have education and have not
     even been in a position to guide such a child.
291. As observed by Chinnappa Reddy, J., in K.C. Vasanth Kumar,
     a child studying in the St. Paul’s High School and St. Stephen’s
     College cannot be equated with a child studying in a rural school. He
     observed that if a child of the first category secures 90% marks and
     the child of the second category secures 50% of the marks, would
     treating both by the same standard achieve real justice.
292. It is also commonly known that disparities and social discrimination,
     which is highly prevalent in the rural areas, start diminishing when
     one travels to the urban and metropolitan areas. I have no hesitation
     to hold that putting a child studying in St. Paul’s High School and
     St. Stephen’s College and a child studying in a small village in the
     backward and remote area of the country in the same bracket would
     obliviate the equality principle enshrined in the Constitution.
293. I may note that some of the officers from the Scheduled Castes
     and Scheduled Tribes categories, who after receiving the benefit of
     reservation under the Constitution have reached high positions, are
     doing their bit to pay back to society. They are providing coaching
     and other facilities to the less advantaged so that they can compete
     and come up in their life. However, putting the children of the parents
     from the Scheduled Castes and Scheduled Tribes who on account
     of benefit of reservation have reached a high position and ceased
     to be socially, economically and educationally backward and the
     children of parents doing manual work in the villages in the same
     category would defeat the constitutional mandate.
294. However, I may observe that taking into consideration that the
     Constitution itself recognizes the Scheduled Castes and Scheduled
     Tribes to be the most backward section of the society, the parameters
     for exclusion from affirmative action of the person belonging to
     this category may not be the same that is applicable to the other
     classes. If a person from such a category, by bagging the benefit of
     reservation achieved a position of a peon or maybe a sweeper, he
[2024] 8 S.C.R.                                                          1581

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      would continue to belong to a socially, economically and educationally
      backward class. At the same time, the people from this category, who
      after having availed the benefits of reservation have reached the high
      echelons in life cannot be considered to be socially, economically
      and educationally backward so as to continue availing the benefit
      of affirmative action. They have already reached a stage where on
      their own accord they should walk out of the special provisions and
      give way to the deserving and needy. I may gainfully refer to the
      observations of Dr. B.R. Ambedkar as under:
             “History shows that where ethics and economics come
             in conflict, victory is always with economics. Vested
             interests have never been known to have willingly divested
             themselves unless there was sufficient force to compel
             them.”28
295. I am therefore of the view that the State must evolve a policy for
     identifying the creamy layer even from the Scheduled Castes and
     Scheduled Tribes so as exclude them from the benefit of affirmative
     action. In my view, only this and this alone can achieve the real
     equality as enshrined under the Constitution.
      VII. CONCLUSION
296. I, therefore, hold:
      (i)    that E.V. Chinnaiah, which held that sub-classification amongst
             the Scheduled Castes for the purpose of giving more beneficial
             treatment to a group in the larger group of the Scheduled Castes
             is not permissible, does not lay down a good law;
      (ii)   that sub-classification amongst the Scheduled Castes for giving
             more beneficial treatment is permissible in law;
      (iii) that for doing so, the State will have to justify that the group
            for which more beneficial treatment is provided is inadequately
            represented as compared to the other castes in the said List;
      (iv) that while doing so, the State will have to justify the same on
           the basis of empirical data that a sub-class in whose favour


28   What Gandhi and Congress have done to Untouchables, Chap. VII.
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           such more beneficial treatment is provided is not adequately
           represented;
     (v)   that, however, while providing for sub-classification, the State
           would not be entitled to reserve 100% seats available for
           Scheduled Castes in favour of a sub-class to the exclusion of
           other castes in the List;
     (vi) that such a sub-classification would be permissible only if there
          is a reservation for a sub-class as well as the larger class;
     (vii) that the finding of M. Nagaraj, Jarnail Singh and Davinder
           Singh to the effect that creamy layer principle is also applicable
           to Scheduled Castes and Scheduled Tribes lays down the
           correct position of law;
     (viii) that the criteria for exclusion of the creamy layer from the
            Scheduled Castes and Scheduled Tribes for the purpose of
            affirmative action could be different from the criteria as applicable
            to the Other Backward Classes.
297. Before I part with the judgment, I place on record my deep appreciation
     for the valuable assistance rendered by learned counsel appearing
     for the parties.



     Vikram Nath, J.
1.   I am generally in agreement with the reasons and conclusions
     arrived at in the opinions of Hon’ble the Chief Justice and Brother
     Justice Gavai in particular that the holding in E.V.Chinnaih, that
     sub-classification within Scheduled Castes was impermissible,
     does not lay down good law and stands over-ruled. Further, any
     exercise involving sub-classification by the State must be supported
     by empirical data.
2.   I am also in agreement with the opinion of Brother Justice Gavai
     that ‘creamy layer’ principle is also applicable to Scheduled Castes
     and Scheduled Tribes, and that the criteria for exclusion of creamy
     layer for the purpose of affirmative action could be different from the
     criteria as applicable to the Other Backward Classes.
[2024] 8 S.C.R.                                                                         1583

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      Bela M. Trivedi, J.
1.    Though unanimity and consensus in the opinions expressed by the
      larger Benches on the Constitutional matters are desirable for the
      sake of certainty and strength of the law laid down, I for one, believe
      that the “dissent” for well-chosen reasons would be equally important
      for an effective adjudication in a democratic functioning of judiciary,
      which would have a potential to develop the law in future.
2.    Justice William O. Douglas of the US Supreme Court,1 a great dissenter
      who had written as many as 486 dissenting opinions, had stated:
              “The right to dissent is the only thing that makes life
              tolerable for a Judge of an Appellate Court…………. It is
              the right of dissent, not the right or duty to conform, which
              gives dignity, worth, and individuality to man”.
3.    Justice Oliver Wendell Holmes, another great dissenter, in his first
      dissent in the Supreme Court in Northern Securities Company Vs.
      The United States (1903) 2 had stated:
              “I am unable to agree with the judgment of the majority of
              the Court, and although I think it useless and undesirable,
              as a rule, to express dissent, I feel bound to do so in this
              case and to give my reasons for it………”
4.    With somewhat similar feelings, and with due respect, I beg to differ
      from the erudite expression of opinions expressed by the Learned
      Chief Justice and my esteemed Brothers Justice B.R. Gavai and
      Justice Pankaj Mithal, and pen down my own opinion with reasons
      for my dissent.
5.    For the sake of brevity and avoid repetition, the facts and the
      submissions made by the learned advocates for the parties as
      narrated in the opinion expressed by the learned Chief Justice, are
      not reiterated. At the outset, it may be noted that neither the Referral
      Order made in the State of Punjab and Others vs. Davinder Singh
      and Others,3 contains a formulation of precise questions nor the
      Order dated 12.10.2023 made in the Reference case sets out specific


1    Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law P.283
2    193 U.S. 197 (1903)
3    (2020) 8 SCC 65
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      questions for consideration by this Bench. Hence, having regard to
      the opinions expressed in Davinder Singh and in E.V. Chinnaiah
      vs. State of Andhra Pradesh and Others,4 and having regard to
      the submissions - oral and written - made by the learned advocates
      for the parties, following substantial questions of law are formulated
      for consideration.
      (I)    Whether the law laid down by the Five-Judge Bench in
             E.V. Chinnaiah could have been doubted and referred to the
             larger Bench by the Bench of three judges, without recording
             any cogent reasons for their disagreement with the said decision
             in E.V. Chinnaiah, more particularly when the said decision
             held the field for a long period of fifteen years?
      (II)   Whether the States should be permitted to tinker with or vary
             the Presidential List specifying the “Scheduled Castes” as
             notified under Clause (1) of Article 341, by sub-classifying or
             sub-dividing or re-grouping the castes conglomerated in the said
             list, under the guise of providing reservation for the weaker of
             the weakest, and thereby commit the breach of the mandate
             contained in Clause (2) of Article 341?
      (III) Whether the decision in E.V. Chinnaiah is required to be revisited
            in view of certain observations made by the Nine-Judge Bench
            in Indra Sawhney Vs. Union of India and Others5 concerning
            the Other Backward Class?
6.    Before embarking on the issues involved, let us go through the
      trajectory of the Reference made by the Five-Judge Bench in the
      State of Punjab and Others vs. Davinder Singh and Others6 to
      this Bench.
      TRAJECTORY OF THE REFERENCE TO SEVEN JUDGES
7.    The State of Andhra Pradesh passed an enactment, namely the Andhra
      Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000
      on 02.05.2000 dividing 57 castes enumerated in the Presidential List
      prepared under Article 341(1) of the Constitution, into 4 groups based
      on inter-state backwardness, and fixed separate quotas in reservation


4    (2005) 1 SCC 394
5    (1992) Supp. 3 SCC 217
6    [2020] 10 SCR 857 : (2020) 8 SCC 65
[2024] 8 S.C.R.                                                          1585

              The State of Punjab & Ors. v. Davinder Singh & Ors.


      for each of these groups. The validity of the said Act of 2000 came to
      be challenged in the Writ Petitions filed in the High Court of Andhra
      Pradesh at Hyderabad. The said Writ Petitions came to be dismissed
      by a Five-Judge Bench by a majority of 4:1. The High Court having
      certified the case as being fit for appeal to the Supreme Court, the
      Appeals were filed before this Court. The same having been referred
      to the Constitution Bench of Five-Judges. The Constitution Bench
      after considering the various issues allowed the said Appeals being
      Civil Appeal No.6758/2000 and Others (E.V. Chinnaiah vs. State of
      Andhra Pradesh and Others)* declaring the impugned Act as ultra
      vires the Constitution. The Constitution Bench while considering the
      said Reference, had framed following three questions: -
      (i)     Whether the impugned Act is violative of Article 341(2) of the
              Constitution of India?
      (ii)    Whether the impugned enactment is constitutionally invalid for
              lack of legislative competence?
      (iii) Whether the impugned enactment creates sub-classification
            or micro-classification of Scheduled Castes so as to violate
            Article 14 of the Constitution of India?
8.    Justice Santosh Hegde (for himself and Justice S.N. Variava and
      Justice B.P. Singh), and Justice S.B. Sinha and Justice H.K. Sema
      concurring but by separate judgments, allowed the said Appeals by
      answering the above questions as under: -
      (i)     From the scheme of the Constitution, Article 341 and from the
              opinions in case of State of Kerala & Anr. vs. N.M. Thomas
              & Ors.,7 it was clear that the castes once included in the
              Presidential List, form a class by themselves. If they are one
              class under the Constitution, any division of these classes of
              persons based on any consideration would amount to tinkering
              with the Presidential List. (Paragraph 26)
      (ii)    It is well settled principle in law that reservation to a backward
              class is not a constitutional mandate. It is the prerogative of
              the State concerned if it so desires, with an object of providing
              opportunity of advancement in the society to certain backward


*    (2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
7    [1976] 1 SCR 906 : (1976) 2 SCC 310
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          classes which include Scheduled Castes, to reserve certain
          seats in educational institutions under Article 15(4) and in
          public services of the State under Article 16(4). That part of its
          constitutional obligation having been fulfilled by the State, it was
          not open to the State to sub-classify a class already recognized
          by the Constitution and allot a portion of the already reserved
          quota amongst the State created sub-class within the list of
          Scheduled Castes. (Paragraph 31)
    (iii) The primary object of the impugned enactment was to create
          groups of sub-castes in the list of Scheduled Castes applicable
          to the State and, apportionment of the reservation was only
          secondary and consequential. Whatever may be the object of
          such sub-classification and apportionment of the reservation,
          the State cannot claim legislative power to make a law dividing
          the Scheduled Castes List of the State by pressing its legislative
          competence to Entry 41 of List II or Entry 25 of List III. In pith
          and substance, the enactment was not a law governing the field
          of education or the field of State Public Services. (Paragraph 31)
    (iv) The conglomeration of castes given in the Presidential Order,
         should be considered as representing a class as a whole.
         The very fact that a legal fiction has been created is itself
         suggestive of the fact that the legislature of a State cannot
         take any action which would be contrary to or inconsistent
         therewith. The very idea of placing different castes or tribes or
         group or part thereof in a State as a conglomeration by way of
         a deeming definition clearly suggests that they are not to be
         sub-divided or sub-classified further. If a class within a class of
         members of the Scheduled Caste is created, the same would
         amount to tinkering with the list. Such sub-classification would
         be violative of Article 14 of the Constitution. If the benefits of
         reservation are not percolating to them equitably, measures
         should be taken to see that they are given such adequate
         or additional training so as to enable them to compete with
         the others, but the same could not mean that in the process
         of rationalising the reservation to the Scheduled Castes, the
         constitutional mandate of Articles 14, 15 and 16 could be
         violated. (Paragraph 41)
    (v)   The Court therefore opined that the impugned legislation
          apart from being beyond the legislative competence of the
[2024] 8 S.C.R.                                                          1587

             The State of Punjab & Ors. v. Davinder Singh & Ors.


              State was also violative of Article 14 of the Constitution and
              hence was liable to be declared as ultra-vires the Constitution.
              The impugned Act therefore was declared as ultra-vires the
              Constitution. (Paragraph 44)
9.    Justice H.K. Sema in his concurring opinion had observed in
      Paragraph 48 thereof* that in Indra Sawhney vs. Union of India
      and Others, * the discussion of creamy layer was confined to
      Other Backward Classes only, and had no relevance in the case
      of Scheduled Castes and Scheduled Tribes. Justice S.B. Sinha
      also in his concurring opinion referred to certain observations
      made in Indra Sawhney and observed in Paragraph 38 that the
      principle laid down in Indra Sawhney for sub-classification of Other
      Backward Classes cannot be applied as a precedent law for sub-
      classification or sub grouping Scheduled Castes in the Presidential
      List, because that very judgment itself has specifically held that sub-
      division of Other Backward Classes is not applicable to Scheduled
      Castes and Scheduled Tribes. The Constitution itself has kept the
      Scheduled Castes and Scheduled Tribes List out of interference by
      the State Governments. In Paragraph 93 thereof,* it has been held
      that “Scheduled Castes”, is not a caste in terms of its definition as
      contained in Article 366 (24) of the Constitution. They are brought
      within the purview of the said category by reason of their abysmal
      backwardness. Scheduled Caste consists of not only the people
      who belong to some backward caste but also race or tribe or part
      of groups within the castes, races, or tribes. They are not merely
      backward but the backward most. A person even does not cease
      to be a Scheduled Caste automatically even on his conversion to
      another religion. It was further observed that the two groups that is
      socially and educationally backward classes and Scheduled Castes
      were differentiated for the purpose of Clause (4) of Article 15 of the
      Constitution as therein Scheduled Castes had been recognized,
      in the nature of things, to be backward but it is also recognized
      that besides them, there may be other groups of persons who are
      backward and deserve preferential treatment.
10. Again, after referring to the observations made in Indra Sawhney
    regarding the “means-test and creamy layer test,” it was observed by


*    (1992) Supp. 3 SCC 217 [Ed note: This * mark refers to footnote 5]
*    (2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
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     Justice Sinha in Paragraph 96 thereof that whenever such a situation
     arises in respect of Scheduled Castes, it will be Parliament alone to
     take the necessary legislative steps in terms of Clause (2) of Article
     341 of the Constitution, and the States do not have the legislative
     competence therefor.
11. The aforesaid judgment in E.V. Chinnaiah* held the field for about
    15 years till the Three-Judge Bench of this Court in State of Punjab
    and Others vs. Davinder Singh and Others* referred the matter to
    a larger Bench for consideration, opining that the judgment of Five-
    Judge Bench in E.V. Chinnaiah was required to be revisited in the
    light of Article 338 of the Constitution of India and exposition of law
    in Indra Sawhney. The Three-Judge Bench passed the following
    Order on 20th August, 2014.*
                                                “ORDER
             1. The learned counsel for the respondents heavily relies
             upon the Constitution Bench decision of this Court in
             E.V. Chinnaiah v. State of A.P. [E.V. Chinnaiah v. State
             of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329]
             On the other hand, the learned Additional Solicitor
             General for the appellants, submits that E.V. Chinnaiah
             [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008)
             2 SCC (L&S) 329] has no application on the controversy
             in hand. Moreover, he submits that E.V. Chinnaiah
             [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008)
             2 SCC (L&S) 329] is not in accord with the 9-Judge Bench
             decision of this Court in Indra Sawhney v. Union of India
             [Indra Sawhney v. Union of India, 1992 Supp (3) SCC
             217 : 1992 SCC (L&S) Supp 1] .
             2. Having heard the learned Additional Solicitor General
             and the learned counsel for the parties, we are of the
             view that E.V Chinnaiah [E.V. Chinnaiah v. State of A.P.,
             (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] needs to
             be revisited in the light of Article 338 of the Constitution
             of India and, inter alia, exposition of law in Indra Sawhey
             [Indra Sawhney v. Union of India, 1992 Supp (3) SCC
             217 : 1992 SCC (L&S) Supp 1] . Moreover, the matter

*   (2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
*   [2020] 10 SCR 857 : (2020) 8 SCC 65 [Ed note: This * mark refers to footnote 6]
[2024] 8 S.C.R.                                                         1589

            The State of Punjab & Ors. v. Davinder Singh & Ors.


            also involves interpretation and interplay between Article
            16(1), Article 16(4), Article 338 and Article 341 of the
            Constitution of India as well.
            3. In this view of the matter, we refer the matter for
            consideration of the above aspects by the larger Bench.
            Let the matter be placed before the Chief Justice on
            administrative side for appropriate order.”
12. In the said case of Davinder Singh and Others, the Writ Petitions
    were filed in the High Court of Punjab and Haryana at Chandigarh
    for declaring Section 4(5) of the Punjab Scheduled Castes and
    Backward Classes (Reservation in Services) Act 2006, which required
    50% of the vacancies of the quota reserved for Scheduled Castes
    in direct recruitment, to be offered to Valmikis and Mazhbi Sikhs, if
    available as a first preference from amongst the Scheduled Castes,
    as unconstitutional. The Division Bench of the High Court placing
    reliance on the decision in E.V. Chinnaiah, vide the judgment dated
    29.03.2010 in CWP No. 18290 of 2009, declared the said provision
    contained in Section 4(5) of the Act 2006 as unconstitutional. The
    said Judgment came up for consideration before the Three-Judge
    Bench of this Court. On the Reference made by the Three-Judge
    Bench to the larger Bench, the Five-Judge Bench of this Court in
    the State of Punjab and Others vs. Davinder Singh and Others*
    framed the following issues.
     (i)    Whether the provisions contained under Section 4(5) of the
            Punjab Scheduled Castes and Backward Classes (Reservation
            in Services Act, 2006) are constitutionally valid?
     (ii)   Whether the State had the legislative competence to enact the
            provisions contained under Section 4(5) of the Act.
     (iii) Whether the decision in E.V. Chinnaiah vs. State of Andhra
           Pradesh and Others is required to be revisited.
13. The Five-Judge Bench however, after extensively referring
    various paragraphs of the decision in Indra Sawhney opined that
    E.V. Chinnaiah is required to be revisited by a larger bench. It was
    observed by the Five-Judge Bench therein* that: -

*   [2020] 10 SCR 857 : (2020) 8 SCC 1
*   [2020] 10 SCR 857 : (2020) 8 SCC 1
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        “44. The question arises whether sub-classification for
        providing benefit to all castes can be said to be tinkering
        with the list under Articles 341, 342 and 342-A, in view of
        the decisions in Indra Sawhney [Indra Sawhney v. Union of
        India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1],
        permitting sub-classifications of backward classes and
        in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta,
        (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , in which,
        it was opined that “creamy layer concept” for exclusion
        of benefit can be applied to the Scheduled Castes and
        Scheduled Tribes and it does not in any manner tinker
        with the Presidential List under Articles 341 or 342 of the
        Constitution. The caste or group or sub-group continued
        exactly as before in the List. It is only those persons
        within that group or sub-group, who have come out of
        untouchability or backwardness by virtue of belonging to
        the creamy layer, who are excluded from the benefit of
        reservation. The million dollar question is how to trickle
        down the benefit to the bottom rung; reports indicate that
        benefit is being usurped by those castes (class) who have
        come up and adequately represented. It is clear that caste,
        occupation, and poverty are interwoven. The State cannot
        be deprived of the power to take care of the qualitative
        and quantitative difference between different classes to
        take ameliorative measures.
        45. Reservation was not contemplated for all the time by
        the Framers of the Constitution. On the one hand, there
        is no exclusion of those who have come up, on the other
        hand, if sub-classification is denied, it would defeat right
        to equality by treating unequal as equal. In Chebrolu Leela
        Prasad Rao v. State of A.P. [Chebrolu Leela Prasad Rao
        v. State of A.P., (2021) 11 SCC 401 : 2020 SCC OnLine
        SC 383] , the necessity of revising lists was pointed out
        relying on Indra Sawhney [Indra Sawhney v. Union of India,
        1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and
        Union of India v. Rakesh Kumar [Union of India v. Rakesh
        Kumar, (2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961].
        46. There is cry, and caste struggle within the reserved
        class as benefit of reservation in services and education is
[2024] 8 S.C.R.                                                           1591

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           being enjoyed, who are doing better hereditary occupation.
           The scavenger class given the name of Balmikis remains
           more or less where it was, and so on, disparity within
           Scheduled Caste is writ large from various reports. The
           sub-classification was made under Section 4(5) of the
           Punjab Act to ensure that the benefit of the reservation
           percolate down to the deprived section and do not remain
           on paper and to provide benefit to all and give them
           equal treatment, whether it is violative of Article 14? In
           our opinion, it would be permissible on rationale basis to
           make such sub-classification to provide benefit to all to
           bring equality, and it would not amount to exclusion from
           the list as no class (caste) is deprived of reservation in
           totality. In case benefit which is meant for the emancipation
           of all the castes, included in the List of Scheduled Castes,
           is permitted to be usurped by few castes those who are
           adequately represented, have advanced and belonged
           to the creamy layer, then it would tantamount to creating
           inequality whereas in case of hunger every person is
           required to be fed and provided bread. The entire basket
           of fruits cannot be given to mighty at the cost of others
           under the guise of forming a homogeneous class.
           47……………………………………
           48……………………………………
           49. Providing a percentage of the reservation within
           permissible limit is within the powers of the State
           Legislatures. It cannot be deprived of its concomitant
           power to make reasonable classification within the
           particular classes of Scheduled Castes, Scheduled
           Tribes, and socially and educationally backward classes
           without depriving others in the list. To achieve the real
           purpose of reservation, within constitutional dynamics,
           needy can always be given benefit; otherwise, it would
           mean that inequality is being perpetuated within the
           class if preferential classification is not made ensuring
           benefit to all.
           50. The sub-classification is to achieve the very purpose,
           as envisaged in the original classification itself and based
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        thereupon evolved the very concept of reservation. Whether
        the sub-classification would be a further extension of
        the principle of the said dynamics is the question to be
        considered authoritatively by the Court.
        51. The Scheduled Castes as per Presidential List are not
        frozen for all the time, and neither they are a homogeneous
        group as evident from the vast anthropological and
        statistical data collected by various Commissions. The
        State law of preferential treatment to a limited extent,
        does not amend the List. It adopts the List as it is. The
        State law intends to provide reservation for all Scheduled
        Castes in a pragmatic manner based on statistical data.
        It distributes the benefits of reservations based on the
        needs of each Scheduled Caste.
        52. The State has the competence to grant reservation
        benefit to the Scheduled Castes and Scheduled Tribes
        in terms of Articles 15(4) and 16(4) and also Articles
        341(1) and 342(1). It prescribes the extent/percentage of
        reservation to different classes. The State Government
        can decide the manner and quantum of reservation. As
        such, the State can also make sub-classification when
        providing reservation to all Scheduled Castes in the List
        based on the rationale that would conform with the very
        spirit of Articles 14, 15 and 16 of the Constitution providing
        reservation. The State Government cannot tamper with
        the List; it can neither include nor exclude any caste in
        the List or make enquiry whether any synonym exists as
        held in Milind [State of Maharashtra v. Milind, (2001) 1
        SCC 4 : 2001 SCC (L&S) 117] .
        57. The interpretation of Articles 14, 15, 16, 338, 341,
        342 and 342-A is a matter of immense public importance,
        and correct interpretation of binding precedents in Indra
        Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3)
        SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions.
        Though we have full respect for the principle of stare
        decisis, at the same time, the Court cannot be a silent
        spectator and shut eyes to stark realities. The constitutional
[2024] 8 S.C.R.                                                              1593

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           goal of social transformation cannot be achieved without
           taking into account changing social realities.
           58. We endorse the opinion of a Bench of 3 Judges that E.V.
           Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC
           394 : (2008) 2 SCC (L&S) 329] is required to be revisited
           by a larger Bench; more so, in view of further development
           and the amendment of the Constitution, which have taken
           place. We cannot revisit E.V. Chinnaiah [E.V. Chinnaiah
           v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S)
           329] being Bench of coordinate strength. We request the
           Hon’ble Chief Justice to place the matters before a Bench
           comprising of 7 Judges or more as considered appropriate.”
14. In view of the above, the matters have been placed before us for
    consideration whether the E.V. Chinnaiah requires revisitation or not.
    In other words, for consideration as to whether the law laid down by
    E.V. Chinnaiah is the correct law in the light of certain observations
    made in Indra Sawhney.
     RELEVANT CONSTITUTIONAL PROVISIONS
15. In order to appreciate the rival contentions raised in the instant
    Reference, it would be beneficial to reproduce the relevant provisions
    of the Constitution for ready reference.
           “Article 14. Equality before law. —The State shall not
           deny to any person equality before the law or the equal
           protection of the laws within the territory of India.
           Article 15. Prohibition of discrimination on grounds of
           religion, race, caste, sex or place of birth. —
           1 to 3….
           (4) Nothing in this article or in clause (2) of article 29 shall
           prevent the State from making any special provision for the
           advancement of any socially and educationally backward
           classes of citizens or for the Scheduled Castes and the
           Scheduled Tribes.]
           (5) Nothing in this article or in sub-clause (g) of clause
           (1) of article 19 shall prevent the State from making any
           special provision, by law, for the advancement of any
           socially and educationally backward classes of citizens
1594                                                     [2024] 8 S.C.R.

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        or for the Scheduled Castes or the Scheduled Tribes in
        so far as such special provisions relate to their admission
        to educational institutions including private educational
        institutions, whether aided or unaided by the State, other
        than the minority educational institutions referred to in
        clause (1) of article 30.]
        Article 16. Equality of opportunity in matters of public
        employment. —
        1 to 3 ….
        (4) Nothing in this article shall prevent the State from
        making any provision for the reservation of appointments
        or posts in favour of any backward class of citizens which,
        in the opinion of the State, is not adequately represented
        in the services under the State.
        (4A) Nothing in this article shall prevent the State from
        making any provision for reservation in matters of
        promotion, with consequential seniority, to any class or
        classes of posts in the services under the State in favour
        of the Scheduled Castes and the Scheduled Tribes which,
        in the opinion of the State, are not adequately represented
        in the services under the State.
        Article 162. Extent of executive power of State. —
        Subject to the provisions of this Constitution, the executive
        power of a State shall extend to the matters with respect to
        which the Legislature of the State has power to make laws:
        Provided that in any matter with respect to which the
        Legislature of a State and Parliament have power to make
        laws, the executive power of the State shall be subject to,
        and limited by, the executive power expressly conferred by
        this Constitution or by any law made by Parliament upon
        the Union or authorities thereof.
        Article 166. Conduct of business of the Government
        of a State. —
        (1) All executive action of the Government of a State shall
        be expressed to be taken in the name of the Governor.
[2024] 8 S.C.R.                                                              1595

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           (2) Orders and other instruments made and executed
           in the name of the Governor shall be authenticated in
           such manner as may be specified in rules to be made by
           the Governor, and the validity of an order or instrument
           which is so authenticated shall not be called in question
           on the ground that it is not an order or instrument made
           or executed by the Governor. Advocate-General for the
           State. Conduct of business of the Government of a State.
           (3) The Governor shall make rules for the more convenient
           transaction of the business of the Government of the State,
           and for the allocation among Ministers of the said business
           in so far as it is not business with respect to which the
           Governor is by or under this Constitution required to act
           in his discretion.
           Article 246. Subject-matter of laws made by Parliament
           and by the Legislatures of States. —
           (1) Notwithstanding anything in clauses (2) and (3),
           Parliament has exclusive power to make laws with respect
           to any of the matters enumerated in List I in the Seventh
           Schedule (in this Constitution referred to as the “Union List”).
           (2) Notwithstanding anything in clause (3), Parliament,
           and, subject to clause (1), the Legislature of any State
           1*** also, have power to make laws with respect to any of
           the matters enumerated in List III in the Seventh Schedule
           (in this Constitution referred to as the “Concurrent List”).
           (3) Subject to clauses (1) and (2), the Legislature of any
           State 1*** has exclusive power to make laws for such
           State or any part thereof with respect to any of the matters
           enumerated in List II in the Seventh Schedule (in this
           Constitution referred to as the “State List”).
           (4) Parliament has power to make laws with respect to any
           matter for any part of the territory of India not included 2
           [in a State] notwithstanding that such matter is a matter
           enumerated in the State List.
           Article 335. Claims of Scheduled Castes and Scheduled
           Tribes to services and posts. — The claims of the
           members of the Scheduled Castes and the Scheduled
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        Tribes shall be taken into consideration, consistently with
        the maintenance of efficiency of administration, in the
        making of appointments to services and posts in connection
        with the affairs of the Union or of a State:
        Provided that nothing in this article shall prevent in making
        of any provision in favour of the members of the Scheduled
        Castes and the Scheduled Tribes for relaxation in qualifying
        marks in any examination or lowering the standards of
        evaluation, for reservation in matters or promotion to any
        class or classes of services or posts in connection with
        the affairs of the Union or of a State.
        Article 341. Scheduled Castes. —
        (1) The President may with respect to any State or Union
        territory, and where it is a State, after consultation with
        the Governor 4 thereof, by public notification, specify
        the castes, races or tribes or parts of or groups within
        castes, races or tribes which shall for the purposes of this
        Constitution be deemed to be Scheduled Castes in relation
        to that State or Union territory, as the case may be.
        (2) Parliament may by law include in or exclude from the
        list of Scheduled Castes specified in a notification issued
        under clause (1) any caste, race or tribe or part of or group
        within any caste, race or tribe, but save as aforesaid a
        notification issued under the said clause shall not be varied
        by any subsequent notification.
        Article 342. Scheduled Tribes. —
        (1) The President may with respect to any State or Union
        territory, and where it is a State after consultation with
        the Governor thereof, by public notification, specify the
        tribes or tribal communities or parts of or groups within
        tribes or tribal communities which shall for the purposes
        of this Constitution be 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
[2024] 8 S.C.R.                                                            1597

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           or group within any tribe or tribal community, but save as
           aforesaid a notification issued under the said clause shall
           not be varied by any subsequent notification.
           Article 342A. Socially and educationally backward classes.
           (1) The President may with respect to any State or Union
           territory, and where it is a State, after consultation with
           the Governor thereof, by public notification, specify 6
           [the socially and educationally backward classes in the
           Central List which shall for the purposes of the Central
           Government] be deemed to be socially and educationally
           backward classes in relation to that State or Union territory,
           as the case may be.
           (2) Parliament may by law include in or exclude from the
           Central List of socially and educationally backward classes
           specified in a notification issued under clause (1) any
           socially and educationally backward class, but save as
           aforesaid a notification issued under the said clause shall
           not be varied by any subsequent notification.]
           (3) Notwithstanding any contained in clauses (1) and
           (2), every State or Union territory may, by law, prepare
           and maintain, for its own purposes, a list of socially and
           educationally backward classes, entries in which may be
           different from the Central List.
           Article 366. Definitions. — In this Constitution, unless the
           context otherwise requires, the following expressions have
           the meanings hereby respectively assigned to them, that
           is to say—
           (24) “Scheduled Castes” means such castes, races or
           tribes or parts of or groups within such castes, races or
           tribes as are deemed under article 341 to be Scheduled
           Castes for the purposes of this Constitution;
           (25) “Scheduled Tribes” means such tribes or tribal
           communities or parts of or groups within such tribes or
           tribal communities as are deemed under article 342 to be
           Scheduled Tribes for the purposes of this Constitution;
           (26) .…..
           ****
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             (26A) ……..
             (26B) ……..
             (26C) “socially and educationally backward classes” means
             such backward classes as are so deemed under article
             342A for the purposes of the Central Government or the
             State or Union territory, as the case may be;”
     ANALYSIS
     (I)     WHETHER THE LAW LAID DOWN BY THE FIVE-JUDGE
             BENCH IN E.V. CHINNAIAH VS. STATE OF ANDHRA
             PRADESH AND OTHERS* COULD HAVE BEEN REFERRED
             TO THE LARGER BENCH BY THE BENCH OF THREE
             JUDGES, WITHOUT RECORDING ANY COGENT REASONS
             FOR DISAGREEMENT WITH THE SAID DECISION OF FIVE-
             JUDGE BENCH IN E.V. CHINNAIAH MORE PARTICULARLY
             WHEN THE SAID DECISION HELD THE FIELD FOR A LONG
             PERIOD OF FIFTEEN YEARS?
16. It may be noted that the Andhra Pradesh Scheduled Castes
    (Rationalization of Reservations) Act, 2000 has already been declared
    unconstitutional by the Five-Judge Bench in E.V. Chinnaiah as back
    as in 2005. Similarly, Section 4(5) of the Punjab Scheduled Caste
    and Backward Classes (Reservation in Services Act, 2006) has also
    been declared unconstitutional by the Division Bench of the High
    Court of Punjab and Haryana vide the judgment dated 29.03.2010 in
    respect of which the present reference is made. Hence, both these
    Acts as on the date have been declared as unconstitutional. It is
    further required to be noted that E.V. Chinnaiah decided in 2005
    was holding the field for about 15 years till the Five-Judge Bench in
    Davinder Singh, on the reference made by the Three-Judge Bench,
    further referred the matters to the Seven-Judge Bench in 2020.
17. It is noteworthy that the Three-Judge Bench had referred the
    matters to the larger Bench without assigning any reason much less
    cogent reason as to why it could not agree with the decision in E.V.
    Chinnaiah delivered by the Constitution Bench. The law which was
    settled by the Constitution Bench and was prevalent since 15 years
    was sought to be doubted and unsettled by a Three-Judge Bench

*   (2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
[2024] 8 S.C.R.                                                      1599

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     by passing a very cryptic and perfunctory order not supported by
     any reason, as quoted hereinabove.
18. A Five-Judge Bench in Pradip Chandra Parija and Others Vs.
    Pramod Chandra Patnaik and Others,8 while examining the
    propriety of the Bench of two Judges doubting the correctness of a
    decision of a Bench of three Judges and directly referring the matter
    to the Bench of five Judges, had observed that judicial discipline
    and propriety demands that a Bench of two learned judges should
    follow a decision of a Bench of three learned judges, but if a Bench
    of two learned Judges concludes that an earlier judgment of three
    learned Judges is so very incorrect that in no circumstances, can it
    be followed, the proper course for it to adopt would be to refer the
    matter before it to a Bench of three learned Judges setting out, the
    reasons why it could not agree with the earlier judgment.
19. The importance of the doctrine of binding Precedents in the
    administration of our judicial system hardly needs to be reiterated.
    The doctrines of Precedents and Stare decisis are the core values
    of our legal system. In series of cases, the Constitution Benches of
    this Court have time and again emphasized that when a decision is
    rendered by this Court, it acquires a reliance interest and the society
    organizes itself based on such legal order. When substantial judicial
    time and resources are spent on the References by the Constitution
    Benches, the same should not be further referred to the larger Bench
    by a smaller Bench, in a casual or cavalier manner, and without
    recording the reasons for disagreement.
20. As back as in 1974 a Seven-Judge Bench in Maganlal ChhaganLal
    (P) Ltd. vs. Municipal Corporation of Greater Bombay & Others,9
    H.R. Khanna, J. had remarked that certainty in the law, which was an
    essential ingredient of the Rule of Law, would be considerably eroded
    if the highest Court of the land lightly overruled the view expressed
    by it in earlier cases. One instance where such overruling could be
    permissible, according to him, was a situation where contextualvalues
    giving birth to the earlier view had subsequently altered substantially.




8   [2001] Supp. 5 SCR 460 : (2002) 1 SCC 1
9   [1975] 1 SCR 1 : (1974) 2 SCC 402
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21. In Lt. Col. Khajoor Singh Vs. Union of India & Another10 a Seven-
    Judge Bench emphasized that the Court should not depart from
    an interpretation given in an earlier judgment of the Court unless
    there was a fair amount of unanimity that the earlier decision was
    manifestly wrong.
22. A more compendious examination of the issue was considered
    by another Seven-Judge Bench in Keshav Mills Co. Ltd. vs.
    Commissioner of Income Tax, Bombay North, Ahmedabad11
    wherein it was observed that frequent exercise by this Court of its
    power to review its earlier decisions on the ground that the view
    placed before it later appeared to the Court to be more reasonable,
    may incidentally tend to make law uncertain and introduce confusion
    which must be consistently avoided. It was further stated that before
    a previous decision is pronounced plainly erroneous, the Court must
    be satisfied with a fair amount of unanimity amongst its members
    that a revision of the said view is fully justified.
23. In a more recent decision in case of Dr. Shah Faesal and Others
    vs. Union of India and Another12 a Five-Judge Bench reiterated the
    doctrines of Precedents and Stare decisis,and observed as under: -
              “17. This Court’s jurisprudence has shown that usually
              the courts do not overrule the established precedents
              unless there is a social, constitutional or economic change
              mandating such a development. The numbers themselves
              speak of restraint and the value this Court attaches to
              the doctrine of precedent. This Court regards the use
              of precedent as indispensable bedrock upon which this
              Court renders justice. The use of such precedents, to
              some extent, creates certainty upon which individuals can
              rely and conduct their affairs. It also creates a basis for
              the development of the rule of law. As the Chief Justice
              of the Supreme Court of the United States, John Roberts
              observed during his Senate confirmation hearing, “It is a



10   [1961] 2 SCR 828 : AIR 1961 SC 532
11   [1965] 2 SCR 908 : AIR 1965 SC 1636
12   [2020] 3 SCR 1115 : (2020) 4 SCC 1
[2024] 8 S.C.R.                                                              1601

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           jolt to the legal system when you overrule a precedent.
           Precedent plays an important role in promoting stability
           and even-handedness”. [Congressional Record—Senate,
           Vol. 156, Pt. 7, 10018 (7-6-2010).]
           “18. Doctrines of precedents and stare decisis are the
           core values of our legal system. They form the tools which
           further the goal of certainty, stability and continuity in our
           legal system. Arguably, Judges owe a duty to the concept
           of certainty of law, therefore they often justify their holdings
           by relying upon the established tenets of law.”
           “19. When a decision is rendered by this Court, it acquires
           a reliance interest and the society organises itself based
           on the present legal order. When substantial judicial time
           and resources are spent on references, the same should
           not be made in a casual or cavalier manner. It is only when
           a proposition is contradicted by a subsequent judgment
           of the same Bench, or it is shown that the proposition
           laid down has become unworkable or contrary to a well-
           established principle, that a reference will be made to
           a larger Bench. In this context, a five-Judge Bench of
           this Court in Chandra Prakash v. State of U.P. [(2002)
           4 SCC 234 : 2002 SCC (Cri) 496: 2002 SCC (L&S) 496],
           after considering series of earlier rulings reiterated that:
           (SCC p. 245, para 22)
                “22. … The doctrine of binding precedent is
                of utmost importance in the administration
                of our judicial system. It promotes certainty
                and consistency in judicial decisions. Judicial
                consistency promotes confidence in the system,
                therefore, there is this need for consistency in the
                enunciation of legal principles in the decisions
                of this Court.”
24. The above exposition of law makes it clear that the doctrines of
    binding Precedents and Stare decisis, as also the judicial discipline
    and propriety, developed over the years, warrant that the decision
    of larger Bench should be followed by the smaller Bench. If the
    smaller bench had any doubt or disagreement with a decision
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     of the larger bench, it could refer the same for reconsideration
     to the larger bench, however,after setting out the reasons and
     justification as to why it could not agree or follow the decision of
     earlier larger Bench. Such disagreement also has to be based on
     some justifiable reasons, like where the earlier decision of larger
     Bench is found to be manifestly wrong or where the contextual
     values giving birth to the earlier view had altered substantially
     etc. A casual exercise of power to refer the matter to the larger
     Bench without recording any reason or on the ground that the
     view placed before it later seems to be more reasonable, may
     incidentally tend to make law uncertain and introduce confusion,
     which must be avoided.
25. In the instant case, the reference was made by Three-Judge Bench to
    the larger Bench for revisitation of the earlier decision of Constitution
    Bench in E.V. Chinnaiah, without assigning any reason and in a
    very casual and cavalier manner, and that too after fifteen years
    of its attaining finality. Such reference could not and should not
    have been countenanced by the subsequent Five-Judge Bench for
    reference to the Seven-Judge Bench. When a law was settled by
    the previous Constitution Bench in E.V. Chinnaiah after considering
    all the previous judgments including Indra Sawhney, and after
    investing substantial judicial time and resources, and when the same
    had held the field for a substantially long period of fifteen years, in
    my opinion, the very reference by the Three-Judge Bench to the
    larger bench for reconsideration of the decision in E.V. Chinnaiah,
    that too without assigning any reason was inappropriate and not in
    consonance with the well settled doctrines of Precedents and Stare
    decisis. Having said that, let us proceed further with the other issues
    involved in the Reference.
     (II)   WHETHER THE STATES SHOULD BE PERMITTED TO
            TINKER WITH OR VARY THE PRESIDENTIAL LIST
            SPECIFYING THE “SCHEDULED CASTES,” AS NOTIFIED
            UNDER CLAUSE (1) OF ARTICLE 341 BY SUB-CLASSIFYING
            OR SUB-DIVIDING OR RE-GROUPING THE CASTES
            CONGLOMERATED IN THE SAID LIST UNDER THE GUISE
            OF PROVIDING RESERVATION FOR THE WEAKER OF THE
            WEAKEST, AND THEREBY TO COMMIT BREACH OF THE
            MANDATE CONTAINED IN CLAUSE (2) OF ARTICLE 341?
[2024] 8 S.C.R.                                                                               1603

             The State of Punjab & Ors. v. Davinder Singh & Ors.


26. The collateral issues which stem from the above question may be
    delineated as under: -
      (a)     Law on Constitution Interpretation.
      (b)     Object, Purpose and limits of Article 341.
      (c)     Etymology and Special Status of “Scheduled Castes” notified
              in the Presidential List.
      (d)     State’s competence to sub-classify or sub-divide or re-group
              the Castes specified as “Scheduled Castes” in the Presidential
              List for providing reservation under Article 15 and 16.
      (a)     Constitutional Interpretation
27. Before examining the correctness of the law laid down by Five
    Judge Bench in E.V. Chinnaiah in the context of exposition of law
    in Indra Sawhney and in the light of the constitutional provisions
    more particularly Article 14, 15, 16 and 341 of the Constitution of
    India, let us have glance over the cardinal principles of interpretation
    of the Constitution laid down by this Court over the years in catena
    of decisions.
28. It cannot be gainsaid that the Constitution is construed to be a living
    and organic document, as it is intended to endure for ages to come,
    and consequently to be adapted to the various crises of human
    affairs. It is required to be construed broadly and liberally however,
    in the words of Benjamin Cardozo, “a Judge is not a Knight errant
    roaming at will in pursuit of his own ideal of beauty and goodness.
    Judge is not to innovate at pleasure.”13
29. As consistently held by this Court, it may be desirable to give a broad
    and generous construction to the Constitutional Provisions, but while
    doing so, the rule of “plain meaning” or “literal” interpretation, which
    remains “the primary rule”, has also to be kept in mind.
30. In GVK Industries Limited and Another vs. Income Tax Officer and
    Another,14 a Five-Judge Bench on the interpretation of Constitution
    observed as under: -



13   Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University Press, 13th Edition
     1946) 141
14   (2011) 4 SCC 36
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        “37. In interpreting any law, including the Constitution,
        the text of the provision under consideration would be the
        primary source for discerning the meanings that inhere
        in the enactment. However, in light of the serious issues
        it would always be prudent, as a matter of constitutional
        necessity, to widen the search for the true meaning,
        purport and ambit of the provision under consideration.
        No provision, and indeed no word or expression, of the
        Constitution exists in isolation—they are necessarily related
        to, transforming and in turn being transformed by, other
        provisions, words and phrases in the Constitution.
        38. Our Constitution is both long and also an intricate
        matrix of meanings, purposes and structures. It is only
        by locating a particular constitutional provision under
        consideration within that constitutional matrix could one
        hope to be able to discern its true meaning, purport and
        ambit. As Prof. Laurence Tribe points out:
             “To understand the Constitution as a legal text,
             it is essential to recognize the … sort of text
             it is: a constitutive text that purports, in the
             name of the people…, to bring into being a
             number of distinct but inter-related institutions
             and practices, at once legal and political, and
             to define the rules governing those institutions
             and practices.” (See Reflections on Free-Form
             Method in Constitutional Interpretation. [108
             Harv L Rev 1221, 1235 (1995)])”
        39. It has been repeatedly appreciated by this Court
        that our Constitution is one of the most carefully drafted
        ones, where every situation conceivable, within the vast
        experience, expertise and knowledge of our framers,
        was considered, deliberated upon, and appropriate
        features and text chosen to enable the organs of the
        State in discharging their roles. While indeed dynamic
        interpretation is necessary, if the meaning necessary to
        fit the changed circumstances could be found in the text
        itself, we would always be better served by treading a
        path as close as possible to the text, by gathering the
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             The State of Punjab & Ors. v. Davinder Singh & Ors.


             plain ordinary meaning, and by sweeping our vision
             and comprehension across the entire document to see
             whether that meaning is validated by the constitutional
             values and scheme.”
31. Following GVK Industries Limited, another Five-Judge Bench in
    Dr. JaiShri LaxmanRao Patil vs. Chief Minister and Others15
    observed as under: -
             “113. In examining provisions of the Constitution, courts
             should adopt the primary rule, and give effect to the plain
             meaning of the expressions; this rule can be departed,
             only when there are ambiguities. In Kuldip Nayar v.
             Union of India [(2006) 7 SCC 1] after quoting from
             G. Narayanaswami v. G. Pannerselvam [(1972) 3 SCC
             717] this Court held that: (Kuldip Nayar case SCC p. 88,
             para 201)
                      “201. … We endorse and reiterate the view
                      taken in the above quoted paragraph of the
                      judgment. It may be desirable to give a broad
                      and generous construction to the Constitutional
                      provisions, but while doing so the rule of “plain
                      meaning” or “literal” interpretation, which
                      remains “the primary rule”, has also to be kept
                      in mind. In fact the rule of “literal construction”
                      is the safe rule unless the language used is
                      contradictory, ambiguous, or leads really to
                      absurd results.””
32. Thus, it is quite well settled that in interpreting any law, including the
    Constitution, the text of the provision under consideration would be
    the primary source for discerning the meanings that inhere in the
    enactment. Sometimes as a matter of constitutional necessity, it may
    be prudent to widen the search for the true meaning, purport, and
    ambit of the provision under consideration, however, one has to bear
    in mind that no provision, no word or expression in the Constitution
    exists in isolation. They are necessarily related to, transforming and



15   (2021) 8 SCC 1
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     in turn being transformed by, other provisions, words and phrases in
     the Constitution. Even if a dynamic interpretation is necessary and
     the meaning necessary to fit the changed circumstances is found
     in the text itself, it would be always better to tread a path as close
     as possible to the text, by gathering the plain ordinary meaning, to
     see whether that meaning is validated by the constitutional values
     and the scheme. While giving a broad and generous construction
     to the constitutional provisions, the rule of “plain meaning,” or
     “literal” interpretation, which remains “the primary rule” has to be
     kept in mind.
     (b)   The Object, Purpose and Limits of Article 341 :-
33. Since the whole matter hinges on the interpretation of Article 341
    of the Constitution of India, let us see the Object and Purpose of its
    insertion in the Constitution.
34. Article 341 states that the President may with respect to any State
    or Union territory, and where it is a State after consultation with the
    Governor thereof, by public notification, specify the castes, races
    and tribes or parts of or groups within castes, races or tribes which
    shall for the purposes of the Constitution be deemed to be Scheduled
    Castes in relation to that State or Union territory, as the case may
    be. Clause (2) of the said Article 341 states that Parliament may by
    law include in or exclude from the list of Scheduled Castes specified
    in the notification issued under Clause (1) any caste, race or tribe
    or part of or group within any caste, race or tribe, but save as
    aforesaid a notification issued under the said clause which shall not
    be varied by any subsequent notification. Similar provision is made
    for Scheduled Tribes in Article 342. Article 342 (A) pertaining to the
    socially and educationally backward classes is slightly differently
    worded, which was inserted by the Constitution (102nd Amendment)
    Act, 2018 w.e.f 14.08.2018.
35. As transpiring from the extracts of the Constituent Assembly Debates
    placed on record, there was no Article similar to Article 341 as found
    in the present Constitution. Noticing the need for creating a list of
    Scheduled Castes and Scheduled Tribes, some amendments in
    the draft Constitution were moved by Dr. Ambedkar, Chairman of
    the Drafting Committee of the Constitution. The relevant part of the
    proceedings of the Constituent Assembly debate on September 17,
    1949 is reproduced hereunder: -
[2024] 8 S.C.R.                                                            1607

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           “The Honourable Dr. B. R. Ambedkar: Sir, I move:
           “That with reference to amendment No. 147 of List
           IV (Eighth Week), for sub-clause (w) of clause (1) of
           article 303, the following sub-clause be substituted: —
           (w) Schedule Castes’ means such castes, races or tribes
           or parts or groups within such castes, races or tribes as
           are deemed under article 300A of this Constitution to be
           Scheduled Castes for the purposes of this Constitution.
           The only change is, the word ‘specified’ has been changed
           to ‘deemed’. Sir, I move: “That with reference to amendment
           No. 148 of List IV (Eighth Week), for sub-clause (x) of
           clause (1) of article 303, the following sub-clause be
           substituted: —
           (x) scheduled tribes’ means such tribes or tribal
           communities or parts of or groups within such tribes or
           tribal communities as are deemed under article 300B of
           this Constitution to be scheduled tribes for the purposes
           of this Constitution;’
           I am incorporating the other amendment which has also
           been tabled. Shall we take up, the two other articles also
           at the same time?
           Mr. President: Yes.
           New articles 300A and 300B. [COI Articles 341 and 342]
           The Honourable Dr. B. R. Ambedkar: Sir, I move:
           “That after article 300, the following articles be inserted: —
           300A. Scheduled Castes. — (1) The President may, after
           consultation with the Governor or Ruler of a State, by public
           notification specify the castes, races or tribes or parts of
           or groups within castes, races or tribes, which shall for
           purposes of this Constitution be deemed to be Scheduled
           Castes in relation to that State.
           (2) Parliament may by law include in or exclude from the
           list of Scheduled Castes specified in a notification issued
           by the President under clause (1) of this article any caste,
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        race or tribe or part of or group within any caste, race or
        tribe, but save as aforesaid a notification issued under
        the said clause shall not be varied by any subsequent
        notification.
        300B. Schedule Tribes. — (1) The President may after
        consultation with the Governor or Ruler of a State, by
        public notification specify the tribes or tribal communities
        or parts of or groups within tribes or tribal communities
        which shall for purposes of this Constitution be deemed
        to be scheduled tribes in relation to that State.
        (2) Parliament may by law include in or exclude from the
        list of scheduled tribes specified in a notification issued
        by the President under clause (1) of this article any Tribe
        or Tribal community or part of or group within any Tribe
        or Tribal community but save as aforesaid a notification
        issued under the said clause shall not be varied by any
        subsequent notification.”
        The object of these two articles, as I stated, was to
        eliminate the necessity of burdening the Constitution with
        long lists of Scheduled Castes and Scheduled Tribes. It
        is now proposed that the President, in consultation with
        the Governor or Ruler of a State should have the power
        to issue a general notification in the Gazette specifying
        all the Castes and tribes or groups thereof deemed to
        be Scheduled Castes and Scheduled Tribes for the
        purposes of the privileges which have been defined
        for them in the Constitution. The only limitation that
        has been imposed is this : that once a notification has
        been issued by the President, which, undoubtedly, he
        will be issuing in consultation with and on the advice
        of the Government of each State, thereafter, if any
        elimination was to be made from the List so notified or
        any addition was to be made, that must be made by
        Parliament and not by the President. The object is to
        eliminate any kind of political factors having a play in the
        matter of the disturbance in the Schedule so published
        by the President.
[2024] 8 S.C.R.                                                            1609

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           Mr. President: 218A.
           Shri T. T. Krishnamachari: In reading it he has included that.
           Mr. President: 224.
           Pandit Thakur Das Bhargava: Sir, I move:
           “That in amendment No. 201 of List V (Eighth Week) in
           clause (2) of the proposed new article 300A the following
           be added at the end: — ‘for a period of ten years from
           the commencement of this Constitution.’”
           I also move:
           “That in amendment No. 201 of List V (Eighth Week) in
           clause (2) of the proposed new article 300B the following
           be added at the end: —
           ‘for a period of ten years from the commencement of this
           Constitution.’” I agree with the principle that for ten years
           to come no variation of the notification originally made
           by the President should be possible. Because now that
           special privileges of reservation, etc., have been given
           to the Scheduled Castes, I do not like the idea that the
           Executive, President or Governor or any other person may
           be able to tamper with that right, but after a period of ten
           years, when this privilege will no longer be available to the
           Scheduled Castes, there will be no difference between the
           Scheduled Castes and other backward classes which will
           be declared under article 301 of the Constitution. At that
           time there will be no meaning in taking away this power from
           the President in consultation with the Governor. Therefore,
           my humble submission is that the proposed amendment
           be accepted to make the point absolutely clear and free
           from ambiguity. Unless we add these words for a period
           of ten years from the commencement of this Constitution,
           you will be taking away the power of the President to
           include or exclude proper classes from the purview of
           the notification which will be issued under 300A and B.
           After the first ten years the privileges which will be open
           to these classes are probably under article 10 and under
           articles 296 and 299. I do not know of any other privileges
1610                                                    [2024] 8 S.C.R.

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        which have been specifically given to these Scheduled
        Castes. Whereas I am, very insistent and conscious that
        these provisions should not be tampered with, I do like
        that these castes may not become stereotyped and may
        not lose the capacity of travelling out of the schedule when
        the right occasion demands it. I, therefore, submit that if
        you put these words you will be making the whole thing
        elastic and the President will have the power of including
        or excluding after the lapse of ten years such tribes or
        castes within the notification.
        Mr. President: Mr. Chaliha—you have two amendments.
        Once is 205 and the other is 225. I do not know if 205
        arises now.
        Shri Kuladhar Chaliha (Assam: General): Mr. President,
        I move; “That in amendment No. 201 of List V (Eighth
        Week) in clause (2) of the proposed new article 300B after
        the words ‘Parliament may’ the words ‘and subject to its
        decision the State Legislature’ be inserted.”
        I have always been fighting that the Governor should
        have power to safeguard the rights of the Tribes. I am
        glad in some measure this has been conceded. Yet I find
        certain amount of suspicion in that the State Legislature
        is neglected. The Drafting Committee has not allowed the
        State Legislature to have a voice. In order to fill up that
        lacuna I have said that Parliament may and subject to its
        decision the State Legislature.
        Shri. T. T. Krishnamachari: Then what is left to the State
        Legislature?
        Shri Kuladhar Chaliha: Somehow or other I feel you have
        neglected it. In these you have covered a good deal which
        you had objected to in the past. The Governor has been
        given power I am glad to say. The only thing is provincial
        assemblies have no voice in this. Whatever Parliament
        says they are bound by it; but if there is anything which
        consistently with the orders of the Parliament they can
        do anything, they should be allowed to have the power.
        That is why I have moved this. However I am thankful
[2024] 8 S.C.R.                                                           1611

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           this time that the Drafting Committee has assimilated
           good ideas and only provincial assemblies have been
           neglected. However, the Governor is there—that is an
           improvement—Parliament, is there and the President is
           there. Therefore, I thank the Drafting Committee for this.
           Mr. President: Mr. Sidhva.
           The Honourable Dr. B. R. Ambedkar: It is already covered.
           Shri Brajeshwar Prasad (Bihar: General). There are some
           amendments seeking to add some more clauses.
           Mr. President: ‘That is a separate matter. These were all
           the amendments.
           Shri V. I. Muniswami Pillai: Mr. President, I come to support
           the amendments that have been moved by the Honourable
           Dr. Ambedkar. These amendments deal with the definition of
           Scheduled Castes. As far as I can see he has made it clear
           that according to the second part of it, the President on the
           26th January 1950 will publish a list of such communities
           that come under the category of Scheduled Castes. But I
           would like to inform this House of the background which
           brought out the special name of Scheduled Castes. It was
           the intouchability, the social evil that has been practised
           by the Hindu Community for ages, that was responsible
           for the Government and the people to know the section of
           people coming under the category of Hindus and who were
           kept at the outskirts of the Hindu society. Going backwards
           to 1916 it was in that year when Government found that
           something had to be done for the untouchable classes,
           (when they said untouchable classes, they were always
           understood to be Hindus,) and they had to be recognised.
           In Madras there were six communities that came under this
           classification. During the Montago Chelmsford reforms they
           were made ten. In 1930 when the great epoch-making fast
           of Mahatma Gandhi came about, then only the country saw
           who were the real untouchable classes. And in the 1935
           Act, the Government thoroughly examined the whole thing
           and as far as the Province of Madras is concerned they
           brought 86 communities into this list or category, though
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        there were some touchable classes also. Now, after further
        examination the Provincial Governments have drawn up
        a list and I think according to the amendment mover’s
        suggestions, all those communities that come under the
        category of untouchables and those who profess Hinduism
        will be the Scheduled Castes, because I want to emphasise
        about the religion. I emphasise this because of late there
        have been some movements here and there; there are
        people who have left Scheduled Castes and Hinduism
        and joined other religions and they also are claiming to
        be scheduled Castes. Such convert cannot come under
        the scope of this definition. While I have no objection to
        Government granting any concessions to these converts,
        I feel strongly that they should not be clubbed along with
        Scheduled Castes.
        Sir, I am grateful to the Drafting Committee and also to the
        Chairman of that Committee for making the second portion
        of it very clear, that in future, after the declaration by the
        President as to who will be the Scheduled Castes, and when
        there is need for including any other class or to exclude
        anybody or any community from the list of Scheduled Castes
        that must be by the word of Parliament. I feel grateful to
        him for bringing in this clause, because I know, as a matter
        of fact, when Harijans behave independently or asserting
        their right on some matters, the Ministers in some Provinces
        not only take note and action against those members, but
        they bring the community to which that particular individual
        belongs; and thereby not only the individual, but also the
        community that comes under that category of Scheduled
        Castes are harassed. By this provision, I think the danger
        is removed. I strongly oppose the amendment moved by
        Pandit Bhargava. The reason is that he wants to have the
        ten years period for observing these amendments. But he
        has entirely forgotten that under another article that we have
        already passed, or will pass the Constitution provides for
        the appointment of a Special officer at the Centre and also
        various officers in all the Provinces to go into the various
        disabilities of these communities and to submit a report to
        the President who will then be able to know whether the
[2024] 8 S.C.R.                                                            1613

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           Scheduled Castes have reached a stage when the facilities
           now given to them could be withdrawn. I do not think that
           the reasons that he has advanced are fair and square for
           the uplift of the Harijans.
           With these few words, I support the amendment.
           Mr. President: Does anyone else wish to speak? Do you
           wish to say anything Dr. Ambedkar?
           The Honourable Dr. B. R. Ambedkar: I do not accept the
           amendment of Pandit Thakur Das Bhargava.
           Mr. President: Then I put the amendments. The first is the
           one with reference to amendment 147.
           The question is: “That with reference to amendment No.
           147 of List IV (Eighth Week), for sub-clause (w) of clause
           (1) of article 303, the following sub-clause be substituted: —
           ‘(w) ‘Scheduled Castes’ means such castes, races or tribes
           or parts of or groups within such castes, races or tribes as
           are deemed under article 300A of this Constitution to be
           Scheduled Castes for the purposes of this Constitution;
           The amendment was adopted”.
36. It is seen from the above Debate that ultimately the original draft
    Article-300A was approved by the Constituent Assembly,and was
    re-numbered as Article 341 in the present Constitution. From the
    bare reading of the Article 341 it is clearly discernible that power
    of the President is limited to specify the castes or the tribes which
    shall, for the purposes of the Constitution, be deemed to be
    Scheduled Castes or Scheduled Tribes in relation to a State or a
    Union Territory as the case may be. Once the notification is issued
    under Clause (1) of Article 341, it is only the Parliament which can
    by law, include in or exclude from the list of Scheduled Castes
    specified in the notification, any caste, race or tribe or part of or
    group within any caste, race or tribe, and the notification issued
    under Clause (1) could not be varied by any subsequent notification.
    As transpiring from the Constituent Assembly Debates quoted
    hereinabove, the object of inserting Article 341 was to eliminate the
    necessity of burdening the Constitution with long list of Scheduled
    Castes and Scheduled Tribes. It was proposed that the President,
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      in consultation with the Governor or Ruler of a State should have
      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 put was that once a notification has been issued by the
      President, any elimination from or any addition in the list must be
      made by the Parliament and not by the President. In the words of
      Dr. Ambedkar, “the object is to eliminate any kind of political factors
      having a play in the matter of the disturbance in the Schedule so
      published by the President.”
37. A Five-Judge Bench in B. Basavalingappa vs. D. Munichinnappa
    & others16 had held that the object of the provision contained in
    Article 341 was to avoid all disputes as to whether a particular caste
    is a Scheduled Caste or not, and only those castes can be Scheduled
    Castes which are notified in the Order made by the President under
    Article 341 after consultation with the Governor where it relates to
    such caste in a State. It further held that Clause (2) provides that
    the Parliament may by law include in or exclude from the list of
    the Scheduled Castes specified in the notification issued under
    Clause (1), any caste, race or tribe or part of or group within any
    caste, race or tribe. The power was thus given to Parliament to modify
    the notification made by the President under Clause (1). A notification
    issued under Clause (1) could not be varied by any subsequent
    notification, thus making the notification by the President final for
    all times except for modification by law as provided by Clause (2).
38. The said law has also been reiterated by the Five-Judge Bench
    in case of Bhaiya Lal Vs. Harikishan Singh17 A similar view has
    been also taken by another Five-Judge Bench in case of State of
    Maharashtra vs. Milind and Others,18 by holding that:
              “11. By virtue of powers vested under Articles 341 and 342
              of the Constitution of India, the President is empowered
              to issue public notification for the first time specifying
              the castes, races or tribes or part of or groups within


16   [1965] 1 SCR 316 : AIR (1965) SC 1269
17   [1965] 2 SCR 877 : AIR (1965) SC 1557
18   [2000] Supp. 5 SCR 65 : (2001) 1 SCC 4
[2024] 8 S.C.R.                                                              1615

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           castes, races, or tribes which shall, for the purposes
           of the Constitution be deemed to be Scheduled Castes
           or Scheduled Tribes in relation to a State or Union
           Territory, as the case may be. The language and terms of
           Articles 341 and 342 are identical. What is said in relation
           to Article 341 mutatis mutandis applies to Article 342.
           The laudable object of the said articles is to provide
           additional protection to the members of the Scheduled
           Castes and Scheduled Tribes having regard to social and
           educational backwardness from which they have been
           suffering since a considerable length of time. The words
           “castes” or “tribes” in the expression “Scheduled Castes”
           and “Scheduled Tribes” are not used in the ordinary sense
           of the terms but are used in the sense of the definitions
           contained in Articles 366(24) and 366(25). In this view,
           a caste is a Scheduled Caste or a tribe is a Scheduled
           Tribe only if they are included in the President’s Orders
           issued under Articles 341 and 342 for the purpose of the
           Constitution. Exercising the powers vested in him, the
           President has issued the Constitution (Scheduled Castes)
           Order, 1950 and the Constitution (Scheduled Tribes)
           Order, 1950. Subsequently, some orders were issued
           under the said articles in relation to Union Territories and
           other States and there have been certain amendments
           in relation to Orders issued, by amendment Acts passed
           by Parliament.
           12. Plain language and clear terms of these articles
           show (1) the President under clause (1) of the said articles
           may with respect to any State or Union Territory and
           where it is a State, after consultation with the Governor,
           by public notification specify the castes, races or tribes
           or parts of or groups within the castes, races or tribes
           which shall for the purposes of the Constitution be deemed
           to be Scheduled Castes/Scheduled Tribes in relation
           to that State or Union Territory as the case may be;
           (2) under clause (2) of the said articles, a notification issued
           under clause (1) cannot be varied by any subsequent
           notification except by law made by Parliament. In other
           words, Parliament alone is competent by law to include
1616                                                    [2024] 8 S.C.R.

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        in or exclude a caste/tribe from the list of Scheduled
        Castes and Scheduled Tribes specified in notifications
        issued under clause (1) of the said articles. In including
        castes and tribes in Presidential Orders, the President
        is authorised to limit the notification to parts or groups
        within the caste or tribe depending on the educational
        and social backwardness. It is permissible that only
        parts or groups within them be specified and further to
        specify castes or tribes thereof in relation to parts of the
        State and not to the entire State on being satisfied that
        it was necessary to do so having regard to social and
        educational backwardness. The States had opportunity
        to present their views through Governors when consulted
        by the President in relation to castes or tribes, parts or
        groups within them either in relation to the entire State or
        parts of State. It appears that the object of clause (1) of
        Articles 341 and 342 was to keep away disputes touching
        whether a caste/tribe is a Scheduled Caste/Scheduled
        Tribe or not for the purpose of the Constitution. Whether a
        particular caste or a tribe is Scheduled Caste or Scheduled
        Tribe as the case may be, within the meaning of the
        entries contained in the Presidential Orders issued under
        clause (1) of Articles 341 and 342, is to be determined
        looking to them as they are. Clause (2) of the said articles
        does not permit any one to seek modification of the said
        orders by leading evidence that the caste/Tribe (A) alone
        is mentioned in the Order but caste/Tribe (B) is also a
        part of caste/Tribe (A) and as such caste/Tribe (B) should
        be deemed to be a Scheduled Caste/Scheduled Tribe as
        the case may be. It is only Parliament that is competent
        to amend the Orders issued under Articles 341 and
        342. As can be seen from the entries in the schedules
        pertaining to each State whenever one caste/tribe has
        another name it is so mentioned in the brackets after
        it in the schedules. In this view it serves no purpose to
        look at gazetteers or glossaries for establishing that a
        particular caste/tribe is a Scheduled Caste/Scheduled
        Tribe for the purpose of Constitution, even though it is not
        specifically mentioned as such in the Presidential Orders.
[2024] 8 S.C.R.                                                             1617

             The State of Punjab & Ors. v. Davinder Singh & Ors.


             Orders once issued under clause (1) of the said articles,
             cannot be varied by subsequent order or notification even
             by the President except by law made by Parliament.
             Hence it is not possible to say that State Governments
             or any other authority or courts or Tribunals are vested
             with any power to modify or vary the said Orders. If that
             be so, no inquiry is permissible and no evidence can
             be let in for establishing that a particular caste or part
             or group within tribes or tribe is included in Presidential
             Order if they are not expressly included in the Orders.
             Since any exercise or attempt to amend the Presidential
             Order except as provided in clause (2) of Articles 341 and
             342 would be futile, holding any inquiry or letting in any
             evidence in that regard is neither permissible nor useful”.
39. In Bir Singh Vs. Delhi Jal Board and Others,19 a Five-Judge Bench
    after referring to the relevant clauses of the Constitution (Scheduled
    Castes) Order 1950, and the Constitution (Scheduled Tribes) Order
    1950,observed as under:
             “36. The upshot of the aforesaid discussion would lead
             us to the conclusion that the Presidential Orders issued
             under Article 341 in regard to Scheduled Castes and
             under Article 342 in regard to Scheduled Tribes cannot be
             varied or altered by any authority including the Court. It is
             Parliament alone which has been vested with the power
             to so act, that too, by laws made. Scheduled Castes and
             Scheduled Tribes thus specified in relation to a State or a
             Union Territory does not carry the same status in another
             State or Union Territory. Any expansion/deletion of the list
             of Scheduled Castes/Scheduled Tribes by any authority
             except Parliament would be against the constitutional
             mandate under Articles 341 and 342 of the Constitution
             of India.
             37…………………………………………………….
             38. It is an unquestionable principle of interpretation that
             interrelated statutory as well as constitutional provisions


19   [2018] 10 SCR 513 : (2018) 10 SCC 312
1618                                                          [2024] 8 S.C.R.

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          have to be harmoniously construed and understood so as
          to avoid making any provision nugatory and redundant.
          If the list of Scheduled Castes/Scheduled Tribes in the
          Presidential Orders under Articles 341/342 is subject to
          alteration only by laws made by Parliament, operation
          of the lists of Scheduled Castes and Scheduled Tribes
          beyond the classes or categories enumerated under the
          Presidential Order for a particular State/Union Territory
          by exercise of the enabling power vested by Article 16(4)
          would have the obvious effect of circumventing the specific
          constitutional provisions in Articles 341/342. In this regard,
          it must also be noted that the power under Article 16(4)
          is not only capable of being exercised by a legislative
          provision/enactment but also by an Executive Order issued
          under Article 166 of the Constitution. It will, therefore, be in
          consonance with the constitutional scheme to understand
          the enabling provision under Article 16(4) to be available
          to provide reservation only to the classes or categories
          of Scheduled Castes/Scheduled Tribes enumerated in the
          Presidential Orders for a particular State/Union Territory
          within the geographical area of that State and not beyond.
          If in the opinion of a State it is necessary to extend the
          benefit of reservation to a class/category of Scheduled
          Castes/Scheduled Tribes beyond those specified in the
          Lists for that particular State, constitutional discipline would
          require the State to make its views in the matter prevail
          with the central authority so as to enable an appropriate
          parliamentary exercise to be made by an amendment
          of the Lists of Scheduled Castes/Scheduled Tribes for
          that particular State. Unilateral action by States on the
          touchstone of Article 16(4) of the Constitution could be a
          possible trigger point of constitutional anarchy and therefore
          must be held to be impermissible under the Constitution.”
40. From the afore stated legal position, there is no room for doubt that
    the Presidential List as notified under Article 341 assumes finality
    on the publication of the notification, and that the castes, races or
    tribes or parts of or groups within castes, races or tribes specified in
    the notification are, for the purposes of the Constitution, deemed to
    be the“Scheduled Castes” in relation to that State or Union Territory
[2024] 8 S.C.R.                                                      1619

           The State of Punjab & Ors. v. Davinder Singh & Ors.


     as the case may be. It is only the Parliament by law which can
     include in or exclude from the list of Scheduled Castes specified in
     the notification notified under Clause (1), any caste, race or tribe
     or part of or group within any caste, race or tribe. Such notification
     notified under Clause(1) cannot be varied even by the President by
     issuing any subsequent notification.
     (c)   Etymology and Special Status of “Scheduled Castes”
41. Since the arguments have been advanced before us, on the issue
    whether the Scheduled Castes specified in the Presidential List
    under Clause (1) of Article 341 should be treated as a homogenous
    group or heterogenous group, let us peep into the etymology of the
    nomenclatures “Scheduled Castes” and “Scheduled Tribes”. Briefly
    stated, the practice of untouchability or caste-based discrimination
    was rampant particularly amongst Hindus in India during British
    era. Shri V.I. Muniswamy Pillai, in his speech (quoted hereinbefore)
    had informed the members of the Constituent Assembly about the
    background which brought out the special name of “Scheduled
    Castes”, and stated that it was untouchability, the social evil that
    was being practised by the Hindu Community for ages, that was
    responsible for the Government and the people to know the section
    of people coming under the category of Hindus and who were kept
    at the outskirts of the Hindu Society. Such class of people were
    being discriminated on the basis of their castes and occupations
    they were engaged in, like Sweepers, Scavengers, Chamars,
    Mochis, etc. They were known as “depressed classes.” The term
    “depressed classes” however was not synonymous with “backward
    classes”. From the study material placed before us, it appears that
    the Census Commissioner J.H. Hutton who conducted Census in
    1931 had explained that the “depressed castes” were those castes,
    ‘the contact with whom entailed purification on the part of high
    caste Hindus’. These were the communities which suffered social
    disabilities such as being denied access to temples, use separate
    wells, and not being allowed to sit inside a school house etc. The
    term ‘depressed classes’ was being used only for low caste Hindus
    who suffered from the stigma of untouchability. The word “class” in
    “depressed class” was in fact referred to for “caste”. Eventually, the
    Government of India Act 1935 referred to the “depressed classes”
    as “Scheduled Castes”. The 1935 Act made it clear that “Scheduled
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     castes” were none other than those who were previously known as
     “depressed classes”. Clause 26 of Schedule I appended to the said
     Act 1935 mentioned as under:
          “26(I) …………….the ‘scheduled castes’ means such castes,
          races or tribes or parts of or groups within castes, races or
          tribes, being castes, races, tribes or parts or groups which
          appear to be His Majesty in Council to correspondence
          to the classes of persons formerly known as ‘depressed
          classes’, as His Majesty in Council may specify”.
42. The identification of the different castes for inclusion as Scheduled
    Castes in the said Schedule was based on an elaborate exercise
    conducted for each of the provinces as could be seen from the
    Schedule consisting of nine parts, to the 1935 Act. Thereafter, a
    gazette notification was published on 06.06.1936 promulgating the
    Government of India (Scheduled Castes) Order 1936 notifying the
    list of castes that were to be considered as “the Scheduled Castes”
    across the territory of India. The post constitutional exercise by
    the Constitution (Scheduled Castes) Order 1950 and Constitution
    (Scheduled Tribes), Order 1950, as originally enacted under Articles
    341 and 342 of the Constitution was basically an exercise in recasting
    the Schedule to the 1935 Act. The relevant clauses of the said two
    Presidential Orders were in the following terms:
          “Clause 2 of the Constitution (Scheduled Castes) Order,
          1950
          2. Subject to the provisions of this Order, the castes,
          races or tribes or parts of, or groups within, castes or
          tribes specified in Parts I to XXV of the Schedule to this
          Order shall, in relation to the States to which those Parts
          respectively relate, be deemed to be Scheduled Castes
          so far as regards member thereof resident in the localities
          specified in relation to them in those Parts of that Schedule.
          Clause 2 of the Constitution (Scheduled Tribes) Order, 1950
          2. The Tribes or tribal communities, or parts of, or groups
          within, tribes or tribal communities, specified in Parts I to
          XXII of the Schedule to this Order shall, in relation to the
          States to which those Parts respectively relate, be deemed
          to be Scheduled Tribes so far as regards members thereof
[2024] 8 S.C.R.                                                         1621

             The State of Punjab & Ors. v. Davinder Singh & Ors.


             residents in the localities specified in relation to them
             respectively in those Parts of that Schedule”.
43. The subsequent amendments to the aforesaid two Orders, from time
    to time were made to bring the position in tune with the amendments
    to the First Schedule to the Constitution made at different points
    of time by creation of new States andalterations in the area and
    boundaries of existing States.
44. As discussed earlier, the Presidential Orders made under
    Article 341(1) or Article 342(1) enumerating the lists of castes/
    races, tribes recognized as “Scheduled Castes/Scheduled Tribes”
    cannot be altered or varied by any State or any authority including
    the Court. It is Parliament alone which has been vestedwith the
    powers to so act, that too, by law made, as well settled by catena
    of decisions discussed hereinabove.
45. The very language employed in Article 341 that “the castes, races
    or tribes or parts of or groups within castes, races or tribes, shall
    for the purposes of the Constitution be deemed to be Scheduled
    Castes in relation to that State or Union Territory, as the case may
    be”, mandates that each caste, each race, each tribe or each part
    of or group within the castes, races or tribes shall by the deeming
    fiction be the“Scheduled Castes” for the purposes of the Constitution,
    irrespective of the parameters by which such caste/ race or tribe is
    recognised as “Scheduled Caste” in relation to that State. Though
    the members of “Scheduled Castes” are drawn from different castes,
    races and tribes, they attain special status by virtue of Presidential
    Notification under Article 341. Thus, the etymological and evolutionary
    history and background of the nomenclature “Scheduled Castes,”
    coupled with the Presidential Orders published under Article 341
    of the Constitution, make the “Scheduled Castes”, a homogenous
    class. The necessary corollary would be that all the members of all
    the castes, races and tribes enumerated in the Presidential List are
    deemed to be “Scheduled Castes” for the purposes of the Constitution
    and they all would be entitled to all the benefits granted or reserved
    for the “Scheduled Castes”.
46. A very pertinent observations in this regard have been made by
    a Seven-Judge Bench in State of Kerala and Another vs. N.M.
    Thomas and Other 20 which deserve to be reproduced. The issues


20   [1976] 1 SCR 906 : (1976) 2 SCC 310
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    involved in the said case inter alia were whether Article 16(1)
    permits preferences to Scheduled Castes, Scheduled Tribes and
    weaker sections on the basis of reasonable classification, or
    whether Article 16(4) is an exception to Articles 16(1) and 16(2).
    The majority of five Judges in their separate but concurring opinions
    opined as under: -
         Per A.N. Ray, J.
         “40. The Constitution makes a classification of Scheduled
         Castes and scheduled tribes in numerous provisions and
         gives a mandate to the State to accord special or favoured
         treatment to them. Article 46 contains a directive principle
         of State policy — fundamental in the governance of the
         country enjoining the State to promote with special care
         educational and economic interests of the Scheduled
         Castes and scheduled tribes and to protect them from any
         social injustice and exploitation. Article 335 enjoins that
         the claims of the members of the Scheduled Castes and
         scheduled tribes to the services and posts in the Union
         and the States shall be taken into consideration. Article
         338 provides for appointment by the President of a Special
         Officer for the Scheduled Castes and scheduled tribes to
         investigate all matters relating to the safeguards provided
         for them under the Constitution. Article 341 enables the
         President by public notification to specify castes, races or
         tribes which shall be deemed to be Scheduled Castes in
         the States and the Union Territories. Article 342 contains
         provision for similar notification in respect of scheduled
         tribes. Article 366(24) and (25) defines Scheduled Castes
         and scheduled tribes. The classification by the impugned
         rule and the orders is with a view to securing adequate
         representation to Scheduled Castes and scheduled tribes in
         the services of the State as otherwise they would stagnate
         in the lowest rung of the State services.
         41. to 42……………………………….
         43. Scheduled Castes and scheduled tribes are not a
         caste within the ordinary meaning of caste. In Bhaiyalal v.
         Harikishan Singh [AIR 1965 SC 1557 : (1965) 2 SCR 877]
[2024] 8 S.C.R.                                                           1623

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           this Court held that an enquiry whether the appellant there
           belonged to the Dohar caste which was not recognised as
           a scheduled caste and his declaration that he belonged
           to the Chamar caste which was a scheduled caste could
           not be premitted because of the provisions contained in
           Article 341. No court can come to a finding that any caste or
           any tribe is a scheduled caste or scheduled tribe. Scheduled
           caste is a caste as notified under Article 366(25). A
           notification is issued by the President under Article 341
           as a result of an elaborate enquiry. The object of Article
           341 is to provide protection to the members of Scheduled
           Castes having regard to the economic and educational
           backwardness from which they suffer.
           Per Methew, J.
           82. The word “caste” in Article 16(2) does not include
           “scheduled caste”. The definition of “Scheduled Castes”
           in Article 366(24) means
           “such castes, races or tribes or parts of or groups within
           such castes, races, or tribes as are deemed under Article
           341 to be Scheduled Castes for the purposes of this
           Constitution.”
           This shows that it is by virtue of the notification of the
           President that the Scheduled Castes come into being.
           Though the members of the Scheduled Castes are drawn
           from castes, races or tribes, they attain a new status by
           virtue of the Presidential notification. Moreover, though the
           members of tribe might be included in Scheduled Castes,
           tribe as such is not mentioned in Article 16(2).”
           Per Krishna Iyer, J.
           “135. We may clear the clog of Article 16(2) as it
           stems from a confusion about caste in the terminology
           of scheduled castes and scheduled tribes. This latter
           expression has been defined in Articles 341 and 342. A
           bare reading brings out the quintessential concept that
           they (sic there) are no castes in the Hindu fold but an
           amalgam of castes, races, groups, tribes, communities
1624                                                       [2024] 8 S.C.R.

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           or parts thereof found on investigation to be the lowliest
           and in need of massive State aid and notified as such
           by the President. To confuse this backwardmost social
           composition with castes is to commit a constitutional
           error, misled by a compendious appellation. So that,
           to protect harijans is not to prejudice any caste but to
           promote citizen solidarity. Article 16(2) is out of the way
           and to extend protective discrimination to this mixed bag
           of tribes, races, groups, communities and non-castes
           outside the four-fold Hindu division is not to compromise
           with the acceleration of castelessness enshrined in the
           sub-article. The discerning sense of the Indian Corpus
           Juris has generally regarded scheduled castes and
           scheduled tribes, not as caste but as a large backward
           group deserving of societal compassion.”
47. The above observations made in N.M. Thomas leaves no room of
    doubt that “Scheduled Castes” are not a caste within the ordinary
    meaning of caste. It is by virtue of the notification of the President
    under Article 341 that the “Scheduled Castes” come into being.
    Though, the members of the Scheduled Castes are drawn from
    different castes, races or tribes, they attain a new Special Status by
    virtue of the Presidential notification. A bare reading of Article 341
    brings out the quintessential concept that “Scheduled Castes” is
    an amalgam of castes, races, groups, tribes, communities or parts
    thereof, and is a homogenous group, and that once notified by
    Presidential List, they acquire Special Status of “Scheduled Castes”
    which cannot be varied except by the Parliament by law.
     (d)   State’s Competence to sub-classify or sub-divide or re-
           group the Castes specified as “Scheduled Castes” in the
           Presidential List for providing the reservation under Article
           15 and 16: -
48. It may be noted that the terminology “Backward Class” has not been
    defined or described anywhere in the Constitution, however the said
    terminology finds place in the various provisions in the Constitution.
    Part XVI of the Constitution deals with special provisions relating
    to certain classes, i.e. for Scheduled Castes, Scheduled Tribes,
    Anglo-Indian Community, Backward Class, Socially and Educationally
    Backward Class etc. Articles 330 and 332 provide for the reservation
[2024] 8 S.C.R.                                                        1625

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     of seats for the Scheduled Castes and Scheduled Tribes in the
     House of the People and in the Legislative Assemblies of the States.
     Article 335 states that the claims of the member of the Scheduled
     Castes and the Scheduled Tribes shall be taken into consideration,
     consistently, with the maintenance of efficiency of administration,
     in the making of appointments to services and posts in connection
     with the affairs of the Union and of a State. Article 338, 338(A) and
     338(B) provides for the constitution of the National Commissions for
     the Scheduled Castes, Scheduled Tribes and for Backward Classes
     respectively. As per the definition of “Scheduled Castes” contained
     in Article 366(24), “Scheduled Castes” means such castes, races or
     tribes or parts of or groups within such castes, races or tribes as are
     deemed under Article 341 to be Scheduled Castes for the purposes
     of the Constitution. Similar definitions are contained in Article 366(25)
     for the “Scheduled Tribes” and in Article 366(26C) for the “socially
     and educationally backward classes”.
49. Article 15(4) enables the State to make special provision for the
    advancement of any socially and educationally backward classes of
    citizens or for the Scheduled Castes and Scheduled Tribes. The newly
    added Clause (5) in Article 15 (w.e.f. 20.01.2006) enables the State,
    by law to make special provisions for the advancement of any socially
    and educationally backward classes of citizens or for the Scheduled
    Castes or Scheduled Tribes, so far as such provisions relate to their
    admission to educational institutions. Article 16(4) enables the State
    to make provision for the reservation of appointments or posts in
    favour of any backward class of citizens which in the opinion of the
    State, is not adequately represented in the services under the State.
    Subsequently inserted Clause (4A) in Article 16 (w.e.f. 17.6.1995)
    enables the State to make provision for reservation in the matters
    of promotions in the posts in the services under the State in favour
    of Scheduled Castes and Scheduled Tribes which in the opinion of
    the State are not adequately represented in the services under the
    State. Article 16(6) inserted by the Constitution (One Hundred and
    Third Amendment) Act, 2019 enables the State to make provision
    for the reservation in favour of any economically weaker sections of
    citizens other than the classes mentioned in Clause 4 i.e. backward
    class of citizens. Article 46 states that the State shall promote with
    special care the educational and economic interests of the weaker
    sections of the people, and, in particular, of the Scheduled Castes
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     and the Scheduled Tribes, and shall protect them from social injustice
     and all forms of exploitation.
50. Thus, the terms “Scheduled Castes” and “Scheduled Tribes” are
    used in Article 15(4) along with the “socially and educationally
    backward classes of citizens”, used in Article 16(4A) exclusively and
    used in Article 46 along with “weaker sections of people”. However,
    the term “backward class” is used in Article 16(4) only. Further,
    Article 340 empowers the President to appoint a Commission to
    investigate the conditions of Socially and Educationally Backward
    Classes within the territory of India and to make recommendations
    as to the steps that should be taken by the Union or any State to
    remove the difficulties of the members of such class. As discussed
    in detail earlier, Article 341 empowers the President to issue
    notification specifying the Scheduled Castes in relation to the
    States and Union Territory. Similar provision is found in Article 342
    for the Scheduled Tribes. Article 342A inserted by the Constitution
    (One Hundred and Second Amendment Act, 2018) with effect from
    14th August, 2018, empowers the President to specify the Socially
    and Educationally Backward Classes in the Central List which are
    deemed to be Socially and Educationally Backward Classes in
    relation to that State or Union Territory as the case may be. By
    virtue of the Constitution (One Hundred and Fifth) Amendment Act,
    2021, an explanation to Clause (2) and new Clause (3) have been
    added to Article 342(A). The difference between the Article 341, 342
    and 342A is that, whereas the notifications issued under Article 341
    and 342 cannot be varied except by the Parliament by law, the
    newly added Clause (3) of Article 342A permits the State or Union
    Territory by law, to prepare and maintain for its own purposes a list
    of Socially and Educationally Backward Classes entries which may
    be different from the Central List.
51. The mandate contained in Clause (2) of Article 341 specifically
    prohibits any variation in the notification issued under Clause(1)
    thereof, except by Parliament by law. There is no provision in the
    Constitution which would empower the States to make any variation
    in such notification issued under Clause (1) of Article 341,for
    the purpose of reservations under Article 15 or 16. It cannot be
    gainsaid that as per Article 162, the executive power of a State
    would extend to the matters with respect to which the Legislature of
[2024] 8 S.C.R.                                                              1627

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      the State has power to make laws. The Proviso to the said Article
      states that in any matter with respect to which the Legislature of
      a State and Parliament have power to make laws, the executive
      power of the State shall be subject to, and limited by, the executive
      power expressly conferred by the Constitution or by any law made
      by Parliament upon the Union or authorities thereof. The source
      of legislative power of the State is found in Article 246, by virtue
      of which the Legislature of any State has power to make laws
      with respect to any matters enumerated in List III of the Seventh
      Schedule along with the Parliament, and has exclusive power to
      make laws with respect to any of the matters enumerated in List II
      of the said Schedule.
52. As held in Bharat Coking Coal Ltd. vs. State of Bihar and Others 21
             “19……………….. …. Article 162 prescribes the extent
             of executive power of the State, it lays down that the
             executive power of a State shall extend to the matters with
             respect to which the legislature of the State has power
             to make laws. Thus, the executive power of the State
             Government is co-extensive with the legislative power of
             the State legislature. If the State legislature has power
             to enact laws on a matter enumerated in the State List
             or in the Concurrent List the State has executive power
             to deal with those matters subject to other provisions of
             the Constitution……………………. Moreover, the proviso
             to Article 162 itself contains limitation on the exercise of
             the executive power of the State. It lays down that in any
             matter with respect to which the legislature of a State and
             Parliament have power to make laws, the executive power
             of State shall be subject to limitation of the executive power
             expressly conferred by the Constitution or by any law made
             by Parliament upon the Union or authority thereof. The
             limitation as contained in the proviso to Article 162 was
             necessary to avoid conflict in the exercise of executive
             power of State and the Union Government in respect of
             matters enumerated in List III of the Seventh Schedule.
             ..……………………….”


21   [1990] 3 SCR 744 : (1990) 4 SCC 557
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53. Though the executive power of the State Government is co-extensive
    with the legislative power of the State Legislature, none of the
    entries, either in List II or List III of the Seventh Schedule confers
    any legislative power upon the State to rationalize the reservations,
    by sub-classifying or sub-dividing the castes enumerated in the
    Presidential List prepared under Article 341(1), as was sought to be
    done by the State of Andhra Pradesh by passing Andhra Pradesh
    Scheduled Castes (Rationalization of Reservations), Act 2000, nor
    does it confer any power to provide or reserve the quota for a particular
    caste or castes from amongst the “Scheduled Castes” enumerated in
    the Presidential List prepared under Article 341(1) of the Constitution,
    as was sought to be done by the State of Punjab and Haryana
    by passing the Punjab Scheduled Castes and Backward Classes
    (Reservation in Services) Act, 2006. In absence of any executive or
    legislative powers, the States are not competent to divide/sub-divide/
    sub-classify/regroup the castes, races or tribes from amongst the
    “Scheduled Castes”nor could they give any preferential treatment by
    reserving a quota for a particular caste, race, tribe out of the quota
    reserved for the entire “Scheduled Castes”.
54. Though sub-classification or sub division of castes from amongst the
    Scheduled Castes by the State for the purpose of reservation per
    se may not amount to inclusion or exclusion of any caste from the
    Presidential List of Scheduled Castes, it would certainly amount to
    tinkering with or varying the notification notified under Clause (1),which
    is clearly prohibited under Clause (2).When all castes, races or tribes
    enumerated in the Presidential List are deemed to be the “Scheduled
    Castes” for the purposes of the Constitution, any preference given
    to or any quota reserved for a particular caste or race or tribe out
    of the quota reserved for the entire class of the Scheduled Castes
    for the government jobs by the State, would certainly deprive the
    other members of the “Scheduled Castes” from having the benefit
    of reservation to the extent the quota is reserved for such particular
    caste or castes. Any such action on the part of the State would
    not only tantamount to discrimination in reverse and violation of
    Article 14 but would also tantamount to tinkering with Article 341 of
    the Constitution.
55. As per the settled legal position, every word or expression used in the
    Constitution has a purpose, and all the provisions of the Constitution
[2024] 8 S.C.R.                                                        1629

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     have to be read in harmony so that the meaning of such word or
     expression is validated by the Constitutional values and the scheme.
     A person belonging to any of the castes, races or tribes enumerated
     in the Presidential List acquiring special status as the member of the
     “Scheduled Caste” in relation to a particular State, would be entitled
     to all the rights including the fundamental rights enshrined under
     the Constitution,and therefore would also be entitled to be treated
     equally from amongst the other members of the “Scheduled Castes”
     enumerated in such Presidential List, in that particular State. If any
     State makes special provision of reservation by fixing quota for the
     entire “Scheduled Castes” for admission to educational institutions
     or for the appointments on the posts in the public services as
     permitted under Article 15 and 16, such quota of reservation should
     be made available to all the members of the “Scheduled Castes”
     specified in the Presidential List, as all the members of the castes,
     races and tribesspecified in such List are deemed to be “Scheduled
     Castes” for the purposes of the Constitution, and the State has no
     power to further sub-classify or sub-divide the “Scheduled Castes”
     for giving preferential treatment to a particular caste from the said
     list of “Scheduled Castes”. As stated earlier, the very object of
     Article 341 is to give new special status to the “Scheduled Castes” for
     the purposes of the Constitution and to keep the political interference
     of the States outside the purview of the said provisions. Therefore,
     under the guise of providing reservation for the weaker of the weakest
     castes, the State could not be permitted to make any variation in
     the notification nor could it be permitted to indirectly tinker with such
     notification published under Article 341(1).
56. Article 15(4) is an enabling provision which enables the State to
    make special provision for the advancement of any socially and
    educationally backward classes of citizens or for the Scheduled
    Castes and Scheduled Tribes, and Clause (5) thereof enables the
    State to make special provisions for them in respect of the admission
    to educational institutions. Similarly, Article 16(4) enables the State
    to make any provision for the reservation of appointments or posts
    in favour of any backward class of citizens which in the opinion of
    the State is not adequately represented in the services under the
    State. These provisions under Article 15 and 16 are merely enabling
    provisions, and could not be treated as the source of power to legislate
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     the law for sub-dividing or reclassifying/sub-classifying or regrouping
     the castes, races or tribes enumerated as the “Scheduled Castes”,
     which have acquired special status by virtue of Article 341 of the
     Constitution.
57. Under the guise of providing reservation or under the pretext of
    taking affirmative action for the weaker of the weakest sections of
    the society, the State cannot vary the Presidential List and tinker
    with Article 341. Such power if exercised by the State in absence of
    any executive or legislative power would be colourable exercise of
    powers. It hardly needs to be reiterated that the idea conveyed by
    the ‘doctrine of colourable legislation’ is that although apparently a
    legislature in passing a statute, purports to act within the limits of its
    powers, yet in substance and in reality, it transgressesits powers, the
    transgression being veiled by what appears, on proper examination,
    to be a mere pretence or disguise. As well-settled, the whole doctrine
    of “colourable exercise” is based on the maxim - “you cannot do
    indirectly what you cannot do directly.”* Any action of the State in
    the name of affirmative action, if not permitted by the Constitution,
    could not be validated or vindicated by the Courts by moulding or
    tinkering with the specific provisions of the Constitution.
     (III) WHETHER E.V. CHINNAIAH IS REQUIRED TO BE REVISITED
           IN VIEW OF CERTAIN OBSERVATIONS MADE IN INDRA
           SAWHNEY CONCERNING “OTHER BACKWARD CLASSES”?
58. Much reliance has been placed by the Five-Judge Bench in Davinder
    Singh for making reference to this Bench, on the decision of Indra
    Sawhney for opining that the view taken in E.V. Chinnaiah was
    not in consonance with Indra Sawhney however, in my opinion,
    Indra Sawhney had not dealt with the issue of sub-classification of
    the “Scheduled Castes” much less had dealt with the State’s power
    to sub-classify or sub-divide or re-group the Castes specified as
    “Scheduled Castes” under Article 341 of the Constitution.
59. So far as Indra Sawhney is concerned, the factual matrix was
    that the Government of India under Article 340 of the Constitution
    had constituted the “Second Backward Classes Commission” on
    January 1, 1979 under the Chairmanship of Shri B. P. Mandal
    (known as the Mandal Commission). The terms of the reference

*   K.C. Gajapati Narayan Deo vs. State of Orissa (1953) 2 SCC 178
[2024] 8 S.C.R.                                                      1631

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     of the said Commission were inter alia to determine the criteria
     for defining the socially and educationally backward classes, to
     recommend steps to be taken for the advancement of the socially
     and educationally backward classes of citizens so identified, and
     to examine the desirability or otherwise of making provision for
     reservation of appointments or posts in favour of such backward
     classes of citizens which were not adequately represented in
     the public services and posts in connection with the affairs of
     the Union or of any State. The Government of India itself on the
     recommendations of the Mandal Commission issued an office
     memorandum on August 13, 1990 purporting to extend reservations
     for socially and educationally backward classes in its services w.e.f.
     August 7, 1990. The said O.M reserved 27% of the seats for SEBC
     in addition to those already reserved for the Scheduled Castes and
     Scheduled Tribes. The issuance of the said O.M led to widespread
     protest and filing of writ petitions in the Supreme Court questioning
     the said Memorandum. The Five-Judge Bench of this Court by its
     order dated October 1, 1990 stayed the operation of the said O.M.
     dated 13th August, 1990, however, the process of identification of
     castes for locating the SEBCs was permitted to continue. Thereafter,
     as a consequence of the change in the Government at the Centre,
     another O.M on September 25th, 1991 modifying the earlier O.M. of
     August 13, 1990 was issued, by introducing the economic criteria
     in the grant of reservation by giving preference to the poorer
     sections of the SEBC’s in the 27% quota and reserving another
     10% of the vacancies in the civil services for other economically
     backward sections not covered by any of the existing schemes of
     reservation, which was explained to extend to the poorest amongst
     the higher caste and other religions also. The constitutionality of
     the said O.M dated September 25, 1991 was challenged before
     this Court and the Nine-Judge Bench was constituted to hear the
     matters. The matter was heard by the Nine-Judge Bench and by a
     6:3 decision, the constitutionality, validity and enforceability of the
     impugned O.M dated 13.08.1990 subject to certain conditionalities
     and prerequisites was upheld, whereas paragraph 2(ii) of the second
     O.M. dated September 25, 1991 providing 10% additional reservation
     for the economically backward was held unconstitutional and
     struck down. Six separate judgments were delivered. The leading
     judgment was by B. P. Jeevan Reddy, J, (for M.H. Kania, C.J., and
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     M.N. Venkatchaliah, A.M. Ahmadi and himself) with S.Ratnavel
     Pandian and P.B Sawant, J.J concurring by their separate judgments.
60. Several questions were posed before the Nine-Judge Bench in Indra
    Sawhney which have been broadly indicated and discussed in the
    leading judgment of Jeevan Reddy, J along with the miscellaneous
    questions discussed therein. The questions particularly germane to
    the Scheduled Castes/Scheduled Tribes were the Question-3(a),
    Question-3(e) and Question-10. The Question-3(a) was, “what
    does the expression “backward class of citizens” in Article 16(4)
    mean?”The Question-3(e) was, “whether the class, to be designated
    as a backward class, should be situated similarly to the Scheduled
    Castes/Scheduled Tribes?” The Question-10 was, “whether the
    distinction made in the second memorandum between poorer
    sections of the backward classes and others was permissible under
    Article 16?”
61. Justice Jeevan Reddy in his leading judgment while answering
    question 3(b) with regard to identification of “backward class of
    citizens” observed in Paragraph 781 as under: -
          “781. At the outset, we may state that for the purpose of
          this discussion, we keep aside the Scheduled Tribes and
          Scheduled Castes (since they are admittedly included within
          the backward classes), except to remark that backward
          classes contemplated by Article 16(4) do comprise some
          castes — for it cannot be denied that Scheduled Castes
          include quite a few castes.”
62. Justice Jeevan Reddy further discussed the issue with regard to
    the “means test” and “creamy layer test” qua question no. 3 (d) and
    made a special note in paragraph 792 at page 725 that: -
          “This discussion is confined to Other Backward Classes
          only and has no relevance in the case of Scheduled Tribes
          and Scheduled Castes.”
63. While summarising the issues involved in Question no. 3, Justice
    Jeevan Reddy held in Para 796 and 797 as under: -
          “796.-797. We may now summarise our discussion under
          Question No. 3. (a) A caste can be and quite often is a
          social class in India. If it is backward socially, it would
[2024] 8 S.C.R.                                                          1633

          The State of Punjab & Ors. v. Davinder Singh & Ors.


           be a backward class for the purposes of Article 16(4).
           Among non-Hindus, there are several occupational
           groups, sects and denominations, which for historical
           reasons are socially backward. They too represent
           backward social collectivities for the purposes of
           Article 16(4). (b) Neither the constitution nor the law
           prescribe the procedure or method of identification of
           backward classes. Nor is it possible or advisable for
           the court to lay down any such procedure or method. It
           must be left to the authority appointed to identify. It can
           adopt such method/procedure as it thinks convenient
           and so long as its survey covers the entire populace,
           no objection can be taken to it. Identification of the
           backward classes can certainly be done with reference
           to castes among, and along with, other groups, classes
           and sections of people. One can start the process
           with the castes, wherever they are found, apply the
           criteria (evolved for determining backwardness) and
           find out whether it satisfies the criteria. If it does —
           what emerges is a “backward class of citizens” within
           the meaning of and for the purposes of Article 16(4).
           Similar process can be adopted in the case of other
           occupational groups, communities and classes, so as to
           cover the entire populace. The central idea and overall
           objective should be to consider all available groups,
           sections and classes in society. Since caste represents
           an existing, identifiable social group/class encompassing
           an overwhelming majority of the country’s population,
           one can well begin with it and then go to other groups,
           sections and classes. (c) It is not necessary for a class
           to be designated as a backward class that it is situated
           similarly to the Scheduled Castes/Scheduled Tribes.
           (d) ‘Creamy layer’ can be, and must be, excluded.
           (e) It is not correct to say that the backward class
           contemplated by Article 16(4) is limited to the socially and
           educationally backward classes referred to in Article 15(4)
           and Article 340. It is much wider. The test or requirement
           of social and educational backwardness cannot be
           applied to Scheduled Castes and Scheduled Tribes, who
1634                                                      [2024] 8 S.C.R.

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          indubitably fall within the expression “backward class of
          citizens”. The accent in Article 16(4) appears to be on
          social backwardness. Of course, social, educational and
          economic backwardness are closely intertwined in the
          Indian context. The classes contemplated by Article 16(4)
          may be wider than those contemplated by Article 15(4).”
64. Pandian, J. in his concurring opinion observed in Paragraph 39 that
    the words “backward class of citizens”, occurring in Article 16(4) are
    neither defined nor explained in the Constitution though the same
    words occurring in Article 15(4) are followed by a qualifying phrase,
    “socially and educationally”. In paragraph-126, he observed that it
    is not necessary for a class to be designated as backward class
    that it should be situated similarly to the Scheduled Castes and
    Scheduled Tribes.
65. Justice P.B. Sawant in his concurring judgment observed as under
    in paragraph 417: -
          “417. Under Article 16(4), the reservation in the State
          employment is to be provided for a “class of people”
          which must be “backward” and “in the opinion of the
          State” is “not adequately represented” in the services
          of the State. Under Article 46, the State is required to
          “promote with special care” the “educational and economic
          interests” of the “weaker sections” of the people and
          “in particular”, of the Scheduled Castes and Scheduled
          Tribes, and “to protect” them from “social injustice” and
          “all forms of exploitation”. Since in the present case,
          we are not concerned with the reservations in favour of
          the SCs/STs, it is not necessary to refer to Article 335
          except to point out that, it is in terms provided there that
          the claims of SCs/STs in the services are to be taken
          into consideration, consistently with the maintenance of
          efficiency of administration. It must, therefore, mean that
          the claims of other backward class of citizens and weaker
          sections must also be considered consistently with the
          maintenance of the efficiency. For, whomsoever, therefore,
          reservation is made, the efficiency of administration is not
          to be sacrificed, whatever the efficiency may mean. That
          is the mandate of the Constitution itself.”
[2024] 8 S.C.R.                                                        1635

          The State of Punjab & Ors. v. Davinder Singh & Ors.


66. After taking into consideration, the principles laid down in Indra
    Sawhney, Justice Hegde in E.V. Chinnaiah rightly observed in
    paragraph 38 as under: -
           “38. On behalf of the respondents, it was pointed out
           that in Indra Sawhney case [1992 Supp (3) SCC 217:
           1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] the Court
           had permitted subclassification of Other Backward
           Communities, as backward and more backward based
           on their comparative underdevelopment, therefore, the
           similar classification amongst the class enumerated in
           the Presidential List of Scheduled Castes is permissible
           in law. We do not think the principles laid down in Indra
           Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
           Supp 1 : (1992) 22 ATC 385] for subclassification of Other
           Backward Classes can be applied as a precedent law
           for subclassification or sub grouping Scheduled Castes
           in the Presidential List because that very judgment itself
           has specifically held that subdivision of Other Backward
           Classes is not applicable to Scheduled Castes and
           Scheduled Tribes. This we think is for the obvious reason
           i.e. the Constitution itself has kept the Scheduled Castes
           and Scheduled Tribes List out of interference by the State
           Governments.”
67. Justice H.K. Sema, J. concurring with Justice Hegde in
    E.V. Chinnaiah observed in Paragraph 48 as under: -
           “48. In Indra Sawhney v. Union of India [1992 Supp (3)
           SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385]
           this Court observed at SCC p. 725 that the discussion of
           creamy layer is confined to Other Backward Classes only
           and has no relevance in the case of Scheduled Castes
           and Scheduled Tribes.”
68. Justice S.B. Sinha also in his concurring opinion observed in
    paragraph 76 and 92 as under: -
           “76. Having regard to the decision of this Court in Indra
           Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992
           SCC (L&S) Supp 1 : (1992) 22 ATC 385] backward class
           citizens can be classified in four different categories —
1636                                                          [2024] 8 S.C.R.

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              (i) more backward, (ii) backward, (iii) Scheduled Caste, and
              (iv) Scheduled Tribe. A contention has been raised that
              in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC
              (L&S) Supp 1 : (1992) 22 ATC 385] the Court permitted
              a classification amongst Other Backward Classes and
              as such there is no reason as to why the said principle
              shall not be applied to the members of the Scheduled
              Castes. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992
              SCC (L&S) Supp 1 : (1992) 22 ATC 385] itself this Court
              categorically stated that it was not concerned with the
              question as regards members of Scheduled Castes and
              Scheduled Tribes. (SCC para 792 at p. 725) It is relevant
              to note that Question 5 formulated by Jeevan Reddy, J.
              was only in relation to the further division in the backward
              classes into backward and more backward categories.
              Advisedly, no question was framed as regards division
              of Scheduled Castes into more backward and backward
              Scheduled Castes.
              92. The impugned Act as also the judgment of the High
              Court are premised on the observations in Indra Sawhney
              [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
              (1992) 22 ATC 385] that there is no constitutional or legal
              bar for a State in categorising the backward classes as
              backward and more backward class. This Court, however,
              while referring to Article 16(4) of the Constitution stated
              that it recognised only one class viz. backward class of
              citizens in the following terms: (SCC p. 716, para 781)
              “781. At the outset, we may state that for the purpose of
              this discussion, we keep aside the Scheduled Tribes and
              Scheduled Castes (since they are admittedly included within
              the backward classes), except to remark that backward
              classes contemplated by Article 16(4) do comprise some
              castes — for it cannot be denied that Scheduled Castes
              include quite a few castes.”
69. In Ashok Kumar Thakur vs. Union of India and Others,22 another
    Five-Bench judgment, after considering earlier judgments on the issue


22   [2007] 7 SCR 63 : (2008) 6 SCC 1
[2024] 8 S.C.R.                                                             1637

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     whether the “creamy layer” principle is applicable to the Scheduled
     Castes and Scheduled Tribes, held that the said Principle cannot
     be applied to Scheduled Castes and Scheduled Tribes as they are
     separate classes by themselves. To be precise, it held as under: -
           “184. So far, this Court has not applied the “creamy layer”
           principle to the general principle of equality for the purpose
           of reservation. The “creamy layer” so far has been applied
           only to identify the backward class, as it required certain
           parameters to determine the backward classes. “Creamy
           layer” principle is one of the parameters to identify backward
           classes. Therefore, principally, the “creamy layer” principle
           cannot be applied to STs and SCs, as SCs and STs are
           separate classes by themselves. Ray, C.J., in an earlier
           decision, stated that “Scheduled Castes and Scheduled
           Tribes are not a caste within the ordinary meaning of caste”.
           And they are so identified by virtue of the notification issued
           by the President of India under Articles 341 and 342 of the
           Constitution. The President may, after consultation with
           the Governor, by public notification, specify the castes,
           races or tribes or parts of or groups within castes, races
           or tribes which for the purpose of the Constitution shall
           be deemed to be Scheduled Castes or Scheduled Tribes.
           Once the notification is issued, they are deemed to be
           the members of Scheduled Castes or Scheduled Tribes,
           whichever is applicable. In E.V. Chinnaiah [(2005) 1 SCC
           394] concurring with the majority judgment, S.B. Sinha, J.
           said : (SCC p. 403)
           “The Scheduled Castes and Scheduled Tribes occupy a
           special place in our Constitution. The President of India
           is the sole repository of the power to specify the castes,
           races or tribes or parts of or groups within castes, races
           or tribes which shall for the purposes of the Constitution
           be deemed to be Scheduled Castes. The Constitution
           (Scheduled Castes) Order, 1950 made in terms of
           Article 341(1) is exhaustive. The object of Articles 341 and
           342 is to provide for grant of protection to the backward
           class of citizens who are specified in the Scheduled
           Castes Order and Scheduled Tribes Order having regard
1638                                                        [2024] 8 S.C.R.

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             to the economic and education backwardness wherefrom
             they suffer. Any legislation which would bring them out
             of the purview thereof or tinker with the order issued
             by the President of India would be unconstitutional.
             (Paras 52, 111 and 84)
                                                   (emphasis supplied)
             186. Moreover, right from the beginning, the Scheduled
             Castes and Scheduled Tribes were treated as a separate
             category and nobody ever disputed identification of such
             classes. So long as “creamy layer” is not applied as
             one of the principles of equality, it cannot be applied to
             the Scheduled Castes and Scheduled Tribes. So far, it
             is applied only to identify the socially and educationally
             backward classes. We make it clear that for the purpose
             of reservation, the principles of “creamy layer” are not
             applicable for Scheduled Castes and Scheduled Tribes.”
70. In view of the above, I am of the opinion that though Indra
    Sawhney had sought to define “backward class” in terms of social
    backwardness, while considering the ambit of “backward class” for
    the purpose of Article 16(4), it did not deal with the issue qua the
    Scheduled Castes/ Scheduled Tribes particularly in the light of Article
    341/342, rather it categorically kept the Scheduled Castes/ Scheduled
    Tribes outside the purview of consideration. The Scheduled Castes
    being the most backward class amongst the backward classes, and
    having acquired a special status by virtue of Article 341, the question
    of defining “backward class” qua the “Scheduled Castes” did not
    arise, and rightly not dealt with in Indra Sawhney for the purposes
    of Article 16(4) of the Constitution.
71. In so far as Article 15(4) and 15(5) are concerned, the use of the
    word “any” before the words “socially and educationally backward
    classes” and the use of the word “the” before “Scheduled Castes/
    Scheduled Tribes” clearly indicate that the said provisions pertain to
    the “Other Backward Classes” which are socially and educationally
    backward, and that the said provisions also pertain to the “Scheduled
    Castes” and “Scheduled Tribes”, however the“Scheduled Castes”
    do not require any further identification once they are notified under
    Article 341. As rightly held in Ashok Kumar Thakur,* the “creamy

*   [2007] 7 SCR 63 : (2008) 6 SCC 1
[2024] 8 S.C.R.                                                      1639

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     layer” principle is one of the parameters to identify backward classes.
     The “Scheduled Castes” having already been specified in the
     Presidential List under Article 341, the said creamy layer principle
     cannot be applied to the “Scheduled Castes” for their identification
     as backward class.In my opinion, the Five-Judge Bench has
     thoroughly misread and misinterpreted Indra Sawhney, to opine that
     Indra Sawhney permitted sub-classification of backward classes
     including the Scheduled Castes/Scheduled Tribes, rather they were
     categorically kept outside the purview of consideration by the Nine-
     Judge Bench in Indra Sawhney.
72. The reliance placed on Jarnail Singh is also thoroughly erroneous.
    In Jarnail Singh, the Five-Judge Bench was called upon to examine
    the correctness of the law laid down in Nagaraj. In para-17 of Jarnail
    Singh, the Bench observed that: -
            “The judgment in Chinnaiah has been referred by the
            three Judge Bench to a larger bench by an Order dated
            20th August, 2014. This is because, according to the
            three Judge Bench,Chinnaiah is contrary to Article 338
            of the Constitution of India and Indra Sawhney. Since
            the correctness of Chinnaiah does not arise before us,
            we need not say more about this reference which will be
            decided on its own merits.”
73. After noting above, the Five-Judge Bench in Jarnail Singh did
    not agree with the view taken by the Five-Judge Bench in Ashok
    Kumar * that the creamy layer principle is merely a principle of
    identification and not a principle of equality. The Bench in Jarnail
    Singh agreed with that part of decision in M. Nagaraj and Others
    vs. Union of India and Others* which held that the creamy layer
    test is applicable to the Scheduled Castes and Scheduled Tribes in
    exercise of application of the basic structure test,however, it did not
    agree with Nagaraj, when Nagaraj required the States to collect
    quantifiable data on backwardness, in so far as Scheduled Castes
    and Scheduled Tribes are concerned. The Bench in Jarnail Singh
    held that “it would clearly be contrary to Indra Sawhney, which had
    held that the requirement of social and educational backwardness
    cannot be applied to Scheduled Castes and Scheduled Tribes, who
    inevitably fall within the expression “Backward Class of Citizens” and
*   [2007] 7 SCR 63 : (2008) 6 SCC 1
*   [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212
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      therefore the decision the judgment in Nagaraj would have to be
      declared to be bad on this ground.” In my opinion, such observations
      in Jarnail Singh are self-contradictory. In any case, the Bench
      had no occasion to deal with nor had dealt with the issue whether
      sub-classification of “Scheduled Castes” notified in the Presidential
      List under Article 341 was permissible to be made by the States.
74. It is very common that the Constitutional Benches in their judgments
    deal with many complex facts and legal issues. Not all that has been
    said in the body of judgment would become a precedent or binding
    for other Courts. The judgments of the Constitution Benches have
    to be read in the context of questions which arose for consideration
    before them. Certain observations made in the judgment may be
    necessary for deciding the issues involved, but every observation
    made on law in the course of delivering the judgment may not have
    a binding effect as a precedent. Any observation or remark made or
    opinion expressed incidentally or collaterally, and not directly upon
    the question posed before the Court would be an ‘obiter dicta’ and
    not a ‘precedent’. A decision is an authority for what it decides and
    not what can logically be deduced therefrom, as held in State of
    Haryana vs. Ranbir alias Rana.23 It was also observed in ADM
    Jabalpur vs. Shivakant Shukla 24 that the statements which are not
    part of ratio decidendi constitute obiter dicta and are not authoritative.
75. In none of the cases – Indra Sawhney or Jarnail Singh, the issue of
    sub-classification of “Scheduled Castes” in the context of Article 341
    was raised or argued, nor was decided by the concerned Benches,
    as was raised and decided in E.V. Chinnaiah. Hence, it would be
    a fallacy to hold that the law laid down in E.V. Chinnaiah was not
    in consonance with Indra Sawhney or Jarnail Singh.
76. Since I have held that the State has neither executive nor legislative
    power to sub-classify or sub-divide or re-group the castes, races
    or tribes specified as the “Scheduled Castes” in the Presidential
    List notified under Article 341, the other questions pertaining to the
    criteria or yardstick for sub-classification, or requirement for collecting
    quantifiable data etc. by the State for sub-classification,are not
    required to be addressed.


23   [2006] 3 SCR 864 : (2006) 5 SCC 167
24   (1976) 8 SCC 521
[2024] 8 S.C.R.                                                             1641

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      AFFIRMATIVE ACTION AND CONSTITUTIONAL FRAMEWORK
77. The affirmative actions of the States have to be within the
    Constitutional framework, and if they are not, the Courts cannot ratify
    the same by bending or moulding the specific mandates contained
    in the Constitution. Article 142 even with the width of its amplitude
    cannot be used to build a new edifice where none existed earlier,
    by ignoring Constitutional provisions dealing with the subject and
    thereby achieve something indirectly which cannot be achieved
    directly.* As held by the Constitution Bench in the landmark judgment
    in case of Supreme Court Bar Association vs. Union of India
    and Another.25
             “47. The plenary powers of this Court under Article 142
             of the Constitution are inherent in the Court and are
             complementary to those powers which are specifically
             conferred on the Court by various statutes though are
             not limited by those statutes. These powers also exist
             independent of the statutes with a view to do complete
             justice between the parties. These powers are of very
             wide amplitude and are in the nature of supplementary
             powers. This power exists as a separate and independent
             basis of jurisdiction apart from the statutes. It stands upon
             the foundation and the basis for its exercise may be put
             on a different and perhaps even wider footing, to prevent
             injustice in the process of litigation and to do complete
             justice between the parties. This plenary jurisdiction is,
             thus, the residual source of power which this Court may
             draw upon as necessary whenever it is just and equitable
             to do so and in particular to ensure the observance of
             the due process of law, to do complete justice between
             the parties, while administering justice according to law.
             There is no doubt that it is an indispensable adjunct to all
             other powers and is free from the restraint of jurisdiction
             and operates as a valuable weapon in the hands of the
             Court to prevent “clogging or obstruction of the stream
             of justice”. It, however, needs to be remembered that
             the powers conferred on the Court by Article 142 being


25   [1998] 2 SCR 795 : (1998) 4 SCC 409
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          curative in nature cannot be construed as powers which
          authorise the Court to ignore the substantive rights of
          a litigant while dealing with a cause pending before it.
          This power cannot be used to “supplant” substantive law
          applicable to the case or cause under consideration of the
          Court. Article 142, even with the width of its amplitude,
          cannot be used to build a new edifice where none existed
          earlier, by ignoring express statutory provisions dealing
          with a subject and thereby to achieve something indirectly
          which cannot be achieved directly. Punishing a contemner
          advocate, while dealing with a contempt of court case by
          suspending his licence to practice, a power otherwise
          statutorily available only to the Bar Council of India, on
          the ground that the contemner is also an advocate, is,
          therefore, not permissible in exercise of the jurisdiction
          under Article 142. The construction of Article 142 must
          be functionally informed by the salutary purposes of the
          article, viz., to do complete justice between the parties.
          It cannot be otherwise. As already noticed in a case of
          contempt of court, the contemner and the court cannot be
          said to be litigating parties.”
78. The action of the State though well-intentioned and affirmative in
    nature, if violates the specific provision of the Constitution, cannot
    be validated by the Supreme Court in exercise of its jurisdiction
    under Article 142. The removal of inequalities or remedy to remove
    inequalities cannot be permitted at the cost of violation of the specific
    provision of the Constitution. When the wordings of the provision
    of the statutes, in the instant case of Article 341 of the Constitution
    are clear, as also the intention of the draftsmen of the Constitution,
    the Court cannot add or subtract words from such provision to give
    it a meaning which the Court feels would achieve the goal of social
    transformation. Sometimes the affirmative action and the Constitution
    intersect with each other in complex ways, as the affirmative action
    policies are framed by the States to promote diversity and to address
    historical inequalities, while the legal frameworks have to ensure that
    these policies are implemented within the bounds of the Constitution.
    The implementation of the affirmative action policies must align with
    the Constitutional and legal principles, particularly those related to
[2024] 8 S.C.R.                                                            1643

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     equality and non-discrimination. In short, the affirmative action and
     the legal frameworks, though both do aim at more equitable society,
     they must navigate complex legal principles to ensure fairness and
     Constitutionality.
79. The upshot of the above discussion may be summarised as under: -
     (i)    When the law was settled by the Constitution Bench in
            E.V. Chinnaiah after considering all the previous judgments
            including Indra Sawhney and after investing substantial judicial
            time and resources, the same should not have been doubted
            and referred to the larger bench by the Three-Judge Bench in
            Davinder Singh, and that too without assigning any reason
            much less cogent reason for their disagreement disregarding
            the well settled doctrines of Precedents and Stare decisis.
     (ii)   While giving a broad and generous construction to the
            Constitutional provisions, the rule of “plain meaning”, or “literal”
            interpretation, which is the “primary rule” has to be kept in mind.
     (iii) The Presidential List specifying “Scheduled Castes” under
           Article 341 assumes finality on the publication of the notification,
           and the castes, races or tribes, or groups within castes, races
           or tribes specified in the notification are deemed to be the
           “Scheduled Castes” in relation to that State or Union Territory
           as the case may be, for the purposes of the Constitution and
           as such assume special status of “Scheduled Castes”.
     (iv) It is only the Parliament by law which can include in or exclude
          from the list of the “Scheduled Castes” specified in the notification
          notified under Clause (1), any caste, race or tribe or part of or
          group within any caste, race or tribe. Such notification notified
          under Clause (1) cannot be varied even by the President by
          issuing any subsequent notification.
     (v)    It is by virtue of the notification of the President under Article 341
            that the “Scheduled Castes” come into being. Though the
            members of Scheduled Castes are drawn from different castes,
            races or tribes, they attain special status of “Scheduled Castes”
            by virtue of Presidential Notification. The etymological and
            evolutionary history and the background of the nomenclature
            “Scheduled Castes”, coupled with the Presidential orders
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           published under Article 341 of the Constitution, make the
           “Scheduled Castes”, a homogenous class, which cannot be
           tinkered with by the States.
     (vi) The States have no legislative competence to enact the law
          for providing reservation or giving preferential treatment to a
          particular caste/castes by dividing/sub-dividing/sub-classifying
          or regrouping the castes, races or tribes enumerated as the
          “Scheduled Castes” in the notification under Article 341.
     (vii) Under the guise of providing reservation or under the pretext of
           taking affirmative action for the weaker of the weakest sections
           of the society, the State cannot vary the Presidential List,nor
           can tinker with Article 341 of the Constitution.
     (viii) The Nine-Judge Bench in Indra Sawhney and the Five-
            Judge Bench in Jarnail Singh had not dealt with the issue of
            sub-classification of the “Scheduled Castes” in the context of
            Article 341, much less had dealt with the State’s powers to
            sub-classify or sub-divide or regroup the castes specified
            as “Scheduled Castes” under Article 341 of the Constitution,
            and therefore, it could not be held that the law laid down in
            E.V. Chinnaiah was not in consonance with Indra Sawhney
            or Jarnail Singh.
     (ix) The power conferred upon the Supreme Court under Article
          142 cannot be used to supplant the substantive law applicable
          to the case under consideration. Even with the width of its
          amplitude, Article 142 cannot be used to build a new edifice
          where none existed earlier, by ignoring express statutory
          provisions dealing with the subject, and thereby to achieve
          something indirectly which cannot be achieved directly. The
          action of the State, though well intentioned and affirmative in
          nature, if violates the specific provision of the Constitution,
          cannot be validated by the Supreme Court in exercise of its
          jurisdiction under Article 142.
     (x)   The affirmative action and legal frameworks, though both do
           aim at more equitable society, they must navigate complex legal
           principles to ensure fairness and constitutionality.
80. In that view of the matter, I am of the opinion that the law laid down
    by the Five-Judge Bench in E.V. Chinnaiah is the correct law and
    deserves to be confirmed.
[2024] 8 S.C.R.                                                       1645

              The State of Punjab & Ors. v. Davinder Singh & Ors.


       Pankaj Mithal, J.
                                                       Index*

         1.     Introduction                                          4-10
                Amendments to Constitution with reference to
         2.                                                          10-23
                Case Laws
                Central Government and State Government
         3.                                                          23-33
                Commissions on SC/ST and OBC’s
         4      The Ramifications of Reservation                     33-39
                Casteless Society - Caste System vis-à-vis the
         5.                                                          39-45
                Varna System
                Reservation is only a medium of facility and its
         6.                                                          45-48
                execution revives Casteism
         7.     Conclusion                                           49-54


       INTRODUCTION
1.     The issue under reference to this Constitution Bench as
       succinctly described by the Chief Justice in his opinion is whether
       sub-classification of the scheduled castes is constitutionally
       permissible for the purposes of reservation.
2.     The issue arose as the Punjab legislature enacted the Punjab
       Scheduled Castes and Backward Classes (Reservation in Services)
       Act, 2006, inter alia providing for reservation of 25% in favour of
       scheduled castes and that 50% of the aforesaid percentage shall be
       offered to particular scheduled castes such as Balmikis and Mazhbi
       Sikhs in direct recruitment.
3.     The validity of providing 50% reservation in favour of the above two
       categories of scheduled castes, out of the various mentioned in the
       Presidential list of scheduled castes, was challenged before the
       High Court by invoking the writ jurisdiction under Article 226 of the
       Constitution of India. The High Court of Punjab and Haryana relying
       upon the Constitution Bench decision of this Court in E.V. Chinnaiah
       vs. State of Andhra Pradesh and Ors.1 declared Section 4(5) of


* Ed. Note: Pagination as per the original Judgment.
1     (2005) 1 SCC 394
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      the aforesaid Act which sub-classified the scheduled castes and
      provided for 50% reservation of the 25% admissible to the scheduled
      castes in favour of the above two categories of scheduled castes
      only to be invalid.
4.    The Chinnaiah case (supra) arose from the decision of the Andhra
      Pradesh High Court whereby it rejected the challenge to the
      provision of Andhra Pradesh Scheduled Castes (Rationalization
      of Reservations) Act, 2000, which provided for apportionment of
      reservation among scheduled castes by classifying them into four
      groups: 1% for Group A, 7% for Group B, 6% for Group C and 1%
      again for Group D.
5.    The Constitution Bench in Chinnaiah’s case was of the unanimous
      opinion that the provision of the above Act of sub-classifying the
      scheduled castes into four groups and apportioning the reservation
      criteria group wise was unconstitutional. It was held that the
      sub- classification permitted by Indra Sawhney and Ors. vs. Union
      of India and Ors.2 was limited only to backward and other backward
      classes and is not applicable to scheduled castes.
6.    It is in the above background that the Constitution Bench dealing with
      one of the cases at hand i.e. State of Punjab and Ors. vs. Davinder
      Singh and Ors. held that the matter requires to be revisited by a
      larger Bench.
7.    In somewhat similar fashion, a matter came to be referred from
      the State of Haryana and another from the State of Tamil Nadu
      wherein by notification in the State of Haryana scheduled castes
      were classified into two categories i.e. A and B for the purposes of
      applying reservation and in the State of Tamil Nadu by an Act of 2009,
      reservation of seats was provided to Arunthathiyar’s in educational
      institution and for appointment in services.
8.    All the three categories of matters i.e. from the State of Punjab, State
      of Haryana and the State of Tamil Nadu are before the Bench in the
      form of Civil Appeals, Writ Petitions, TP (C) & TC (C) and Special
      Leave Petition (Civil) and have been taken up as clubbed matters
      as the issue is common as described in the beginning.


2    (1992) Supp. 3 SCC 217
[2024] 8 S.C.R.                                                               1647

          The State of Punjab & Ors. v. Davinder Singh & Ors.


9.   The issue of sub-classification of scheduled castes has been
     appropriately answered by the Chief Justice and my esteemed brother
     Justice Gavai by their separate opinions with which I respectfully
     agree but at the same time since the matter in issue is basically
     concerning “reservation”, I consider it to be of utmost importance and,
     therefore, deem it appropriate to pen down my own views separately.
10. Man/human as rightly understood is a social animal and has to live
    in a society. An ideal form of society is one which progresses on
    merit or where merit alone prevails. This is evident from Articles 14
    and 15 of the Constitution which provides for equality before law
    and that State shall not discriminate on grounds of religion, race,
    caste, sex or place of birth. Articles 14 and 15 (as it originally stood)
    are quoted below:
           “Article14- Equality before law
           The State shall not deny to any person equality before the
           law or the equal protection of the laws within the territory
           of India.
           Article 15- Prohibition of discrimination on grounds
           of religion, race, caste, sex or place of birth
           (1)   The State shall not discriminate against any citizen
                 on grounds only of religion, race, caste, sex, place
                 of birth or any of them.
           (2)   No citizen shall, on grounds only of religion, race,
                 caste, sex, place of birth or any of them, be subject
                 to any disability, liability, restriction or condition with
                 regard to—
                 (a)   access to shops, public restaurants, hotels and
                       places of public entertainment; or
                 (b)   the use of wells, tanks, bathing ghats, roads
                       and places of public resort maintained wholly
                       or partly out of State funds or dedicated to the
                       use of the general public.
           (3)   Nothing in this article shall prevent the State from
                 making any special provision for women and children.”
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11. However, no society can exist in its ideal form as all citizens are
    not alike. The basic needs of everyone are different and have to be
    taken into account to carry the society forward. Therefore, there is
    pressing need to consider the social, economic and political need
    of all persons or classes of persons. In the context of India, the
    trinity of social, economic and political justice has to be balanced
    and to promote social justice, provisions have to be made for the
    upliftment of the so-called marginalized citizens or the depressed
    classes of persons who later came to be known as backward class
    of persons and scheduled castes as well as scheduled tribes etc. It
    is to achieve the above social objective of bringing every citizen or
    a class of citizen on equal level and at par in law that provision for
    reservation came to be made in the Constitution.
12. The provision for reservation for any class of persons at first sight
    may appear to be anti-merit but if weighed on the scales of social
    justice, it is imperative.
13. The poor and the downtrodden sections of the Indian society were
    earlier described by the ruling class as the “depressed classes” which
    included a wide range of persons such as untouchables, persons of
    various backward communities and those living in tribes in hills and
    forests or in remote areas of the country. Slowly, these depressed
    classes of persons came to be classified into various groups according
    to their vocation such as scavengers, leather workers, ironsmiths,
    carpenters, watchman and other menial workers and were referred
    to as scheduled castes; and those living in tribes in hills, forests
    or remote areas came to be recognized as scheduled tribes. The
    remaining depressed classes of persons or marginalized classes
    were later classified as other backward classes.
14. The Government of India Act, 1935, for the first time, recognized the
    above referred depressed classes of persons as scheduled castes
    and the primitive tribes as backward tribes and inter alia provided
    reservation of seats for the scheduled castes and backward tribes in
    the federal legislature. The objective was of bringing about political
    equality only.
15. The Constitution of India as enacted and adopted on 26th November,
    1949 and enforced w.e.f. 26th January, 1950, originally provided for
[2024] 8 S.C.R.                                                        1649

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     two categories of reservation, one for the political purposes and
     the other for social purposes vide Articles 330 & 332 and Articles
     15(3) & 16(4).
16. Articles 330 and 332 of the Constitution aimed to achieve political
    justice by providing reservation of seats for scheduled castes and
    scheduled tribes in Lok Sabha and State Legislatures whereas
    Article 15(3) and 16(4) were aimed at social justice and provided
    for special provision for women & children and for reservation in
    the services in favour of backward classes of persons respectively.
     AMENDMENTS TO CONSTITUTION WITH REFERENCE TO CASE
     LAWS
17. On the legislative front, in the wake of various verdicts of the apex
    court concerning reservation, a constitutional amendment regime
    commenced bringing about amendments after amendments in the
    Constitution to overcome the difficulties in the implementation of
    the reservation policy in the light of the decisions of the courts in
    context with reservation.
18. The Constitution (First Amendment) Act, 1951 w.e.f. 18 th June,
    1951, was brought about in order to solve the problems posed by
    the decision of 5 Judges Constitution Bench of this Court in State
    of Madras vs. Champakam Dorairajan3 which struck down caste-
    based reservation for admission in medical colleges being violative of
    Article 29(2) of the Constitution and by an other 5 Judges Constitution
    Bench decision in B. Venkataramana vs. State of Madras and Ors.4
    which held that the appointment of judicial officers as unconstitutional
    as Article 16(4) permitted reservation for backward classes of citizens
    only. Thus, Sub-Article (4) to Article 15 of the Constitution of India was
    introduced so as to empower the State for making special provision
    for the advancement of any socially and educationally backward
    classes of citizens or for scheduled castes and scheduled tribes.
19. In this manner, Articles 16(4), 15(3) and 15(4) as introduced,
    envisaged to bring about social justice amongst the citizens of the
    country.


3   AIR (1951) SC 226
4   AIR (1951) SC 229
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20. After the Constitution Bench decision in Indra Sawhney (supra),
    there was a spate of amendments in the Constitution to overcome
    the difficulties caused by various observations of the court.
21. The Constitution (Seventy-seventh Amendment) Act, 1995 added
    Article 16(4)(A) to the Constitution so as to provide reservation in
    promotion in favour of scheduled castes and scheduled tribes which
    are not adequately represented in the services of the State.
22. It was followed by the Constitution (Eighty-first Amendment)
    Act, 2000 which inserted Article 16(4)(B) so as to make provisions
    for carry forward of unfilled vacancies of the reserved category. The
    new Article 16(4)(B) provided that the State is not denuded of power
    to consider any unfilled vacancies of a year reserved for being filled
    up in that year in accordance with the provisions for reservation made
    under Clause 4 or Clause 4(A) of Article 16 to be carried forward to
    be filled up in any succeeding year or years and that such carried
    forward vacancies shall not be counted for determining the sealing
    of 50% reservation in total number of vacancies of that year.
23. In immediate succession came the Constitution (Eighty-second
    Amendment) Act, 2000 which was necessitated to overcome one
    of the decisions of this Court in case of S. Vinod Kumar and Anr.
    vs. Union of India and Ors.5 which held that even if reservation in
    promotion is permissible, no lower qualifying marks or lesser level
    of evaluation for promotion is legally permissible for the reserved
    categories. The said amendment permitted provision for relaxation
    in qualifying marks in any examination or for lowering the standards
    of evaluation for reservation in the matters of promotion to any class
    or classes of services for posts in connection with the affairs of the
    Union or the State.
24. In Union of India vs. Virpal Singh Chauhan,6 this Court held that
    the accelerated promotion to the persons of the reserved categories
    would not give them consequential seniority and that their seniority
    in promoted category shall be governed by their seniority in the
    feeder cadre.


5   [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580
6   [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684
[2024] 8 S.C.R.                                                       1651

            The State of Punjab & Ors. v. Davinder Singh & Ors.


25. The above view was reaffirmed in Ajit Singh Januja vs. State of
    Punjab7 and it was held that reserved category persons are entitled
    only for accelerated promotion and not consequential seniority.
26. The above two decisions were followed by Ajit Singh (II) vs. State
    of Punjab8 wherein upholding the principles of accelerated promotion
    and consequential seniority as laid down in the above two cases
    it was clarified that the general candidates on promotion will get
    seniority over reserved candidates who were already promoted by
    way of accelerated promotion, if both were in the same cadre.
27. The Constitution (Eighty-Fifth Amendment) Act, 2002, was enacted
    to undo the principles laid down by the above decisions especially in
    Ajit Singh (II) case (supra) and the expression “with consequential
    seniority” was inserted in Article 16 (4)(A) of the Constitution. This
    amendment was given retrospective effect w.e.f. 07.06.1995, the
    date on which Article 14(4)(A) was inserted into Article 16 of the
    Constitution by the Constitution (Seventy-Seventh Amendment)
    Act, 1995.
28. In the meantime, following the directions of the Supreme Court in Indra
    Sawhney’s case (supra), an office memorandum was issued by the
    Government of India on 08.09.1993 designating certain categories
    of people as “creamy layer”. The State of Bihar and Uttar Pradesh
    vide The Bihar Reservation of Vacancies in Post and Services
    (For Scheduled Castes, Scheduled Tribes and Other Backward
    Classes) (Amendment) Ordinance, 1995, and Uttar Pradesh Public
    Services Reservation for Scheduled Castes and Scheduled Tribes
    and Other Backward Classes Act, 1994, provided that IAS and IPS
    Officers would be within “creamy layer” if they have a (i) salary of
    Rs.10,000/- per month; (ii) either of the spouse is a graduate; and
    (iii) one of them owns a house in an urban area. Similarly, professionals
    with income of Rs.10 lakhs per annum were also categorized under
    the “creamy layer” with additional criteria that either of the spouse
    should be a graduate and the family owns an immovable property
    of at least Rs.20 lakhs.



7   [1996] 3 SCR 125 : (1996) 2 SCC 715
8   (1999) 7 SCC 209
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29. In Ashoka Kumar Thakur vs. State of Bihar,9 this Court struck down
    the additional conditions of education and property prescribed in the
    Bihar and by U.P. enactment to be unconstitutional for identifying the
    “creamy layer” as violative of Articles 16(4) and 14 of the Constitution.
30. In Indra Sawhney (II) vs. Union of India,10 the Kerala State Backward
    Classes Act, 1995, which provided that there are no socially advanced
    sections in any backward classes of the State and that the backward
    classes in the State are not adequately represented in the services
    under the State and as such backward classes would continue to avail
    the benefit of reservation, thus, declaring that there was no ‘creamy
    layer’ amongst the OBC in the State, was struck down holding that
    ‘creamy layer’ in the backward classes is to be treated at par with
    the forward classes and are not entitled to benefit of reservation. It
    was also observed that “creamy layer” is to be excluded otherwise it
    will be discriminatory and violative of Articles 14 and 16 as “forwards”
    and “creamy layer of backward classes” cannot be treated unequally.
31. In M. Nagaraj vs. Union of India,11 the validity of the constitutional
    amendments namely Constitution (Seventy-Seventh Amendment)
    Act, 1995, Constitution (Eighty-first Amendment) Act, 2000,
    Constitution (Eighty-second Amendment) Act, 2000 and Constitution
    (Eighty-fifth Amendment) Act, 2002, were upheld.
32. In TMA Pai Foundation vs. State of Karnataka,12 the 11 Judges
    Constitution Bench of this Court laid down various principles regarding
    right to establish educational institutions, the procedure for grant of
    admission, the right of minorities and the extent of State regulatory
    mechanism. The said judgment came to be interpreted and clarified
    by Islamic Academia Education vs. State of Karnataka.13 In
    P.A. Inamdar vs. State of Maharashtra,14 the 7 Judges Constitution
    Bench held that the 5 Judges Constitution Bench in Islamic Academia
    Education case did not interpret the TMA Pai Foundation case
    correctly. In such a situation, Constitution (Ninety-Third Amendment)
    Act, 2006, was brought about to overcome the confusion alleged


9    [1995] Supp. 3 SCR 269 : (1995) 5 SCC 403
10   [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168
11   (2006) 8 SCC 212
12   [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481
13   [2003] Supp. 2 SCR 474 : (2003) 6 SCC 697
14   (2005) 6 SCC 537
[2024] 8 S.C.R.                                                                1653

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      to have been created in the interpretation of TMA Pai Foundation
      case and Sub-Article (5) was inserted in Article 15 of the Constitution
      which reads as under:
             “Article 15 (5)- Nothing in this article or in sub-clause (g) of
             clause (1) of article 19 shall prevent the State from making
             any special provision, by law, for the advancement of any
             socially and educationally backward classes of citizens or
             for the Scheduled Castes or the Scheduled Tribes in so
             far as such special provisions relate to their admission
             to educational institutions including private educational
             institutions, whether aided or unaided by the State, other
             than the minority educational institutions referred to in
             clause (1) of article 30.”
33. The validity of the Constitution (Ninety-Third Amendment) Act, 2006,
    was upheld by the 5 Judges Constitution Bench in Ashok Kumar
    Thakur case (supra) which provided reservation for socially and
    educationally backward classes of citizens or for scheduled castes
    and scheduled tribes in educational institutions insofar as it relates
    to State maintained institutions and Government aided educational
    institutions.
34. A similar view was expressed in Pramati Educational & Cultural
    Trust vs. Union of India,15 wherein also the constitutional validity
    of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld
    and reservation for socially and educationally backward classes of
    citizens or for scheduled castes and scheduled tribes in unaided
    private institutions as well was upheld.
35. In Ram Singh vs. Union of India,16 reservation for Jats in various
    States was struck down as no such reservation in their favour was
    recommended by the National Commission for Backward Classes
    and there was no quantifiable data for justifying reservation in
    their favour. Accordingly, Constitution (One Hundred and Second
    Amendment) Act, 2018, was brought about and Articles 338B &
    342A were inserted constituting a separate commission for socially
    and educationally backward classes and empowering the President
    to specify socially and educationally backward classes.


15   (2014) 8 SCC 1
16   [2015] 5 SCR 670 : (2015) 4 SCC 697
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36. In Jaishri Laxmanrao Patil vs. State of Maharashtra,17 5 Judges
    Constitution Bench struck down the reservation for Marathas in the
    State of Maharashtra on the ground that the State does not have
    power to declare any class of people as socially and educationally
    backward classes.
37. In order to overcome the difficulty created by the above decision,
    Constitution (One Hundred and Fifth Amendment) Act, 2021 was
    brought about amending Article 342A so as to provide that the list
    of socially and educationally backward classes of citizens prepared
    by the President is only for the Central Government but the State
    can also prepare its own list.
38. In between, Constitution (One Hundred and Third Amendment)
    Act, 2019, was enacted whereby Sub-Article (6) was inserted in
    Articles 15 and 16 in the following terms:
             “Article 15 (6)- Nothing in this article or sub-clause (g)
             of clause (1) of article 19 or clause (2) of article 29 shall
             prevent the State from making,—
                      (a) any special provision for the advancement of any
                      economically weaker sections of citizens other than
                      the classes mentioned in clauses (4) and (5); and
                      (b) any special provision for the advancement of
                      any economically weaker sections of citizens other
                      than the classes mentioned in clauses (4) and (5)
                      in so far as such special provisions relate to their
                      admission to educational institutions including private
                      educational institutions, whether aided or unaided
                      by the State, other than the minority educational
                      institutions referred to in clause (1) of article 30, which
                      in the case of reservation would be in addition to
                      the existing reservations and subject to a maximum
                      of ten per cent. of the total seats in each category.
             Article 16 (6)- Nothing in this article shall prevent the
             State from making any provision for the reservation of
             appointments or posts in favour of any economically weaker



17   (2021) 8 SCC 1
[2024] 8 S.C.R.                                                                     1655

             The State of Punjab & Ors. v. Davinder Singh & Ors.


              sections of citizens other than the classes mentioned
              in clause (4), in addition to the existing reservation and
              subject to a maximum of ten per cent. of the posts in
              each category.”
39. The validity of the aforesaid amendment was upheld in Janhit
    Abhiyan vs. Union of India (EWS Reservation).18
40. The various amendments carried out in the Constitution since its
    adoption in relation to making provision for reservation can be
    summarised as under:-

        1.   Constitution                  Inserting Sub-Article (4) to Article 15
             (First Amendment)             providing reservation for socially and
             Act, 1951                     educationally backward classes.
        2.   Constitution                  Inserting Sub-Article (4)(A) to Article 16
             (Seventy-seventh              providing reservation in promotion.
             Amendment) Act, 1995
        3.   Constitution (Eighty-first    Inserting Sub-Article (4)(B) to Article 16
             Amendment) Act, 2000          providing for carry forward of vacancies.
        4.   Constitution                  Inserting proviso to Article 335 providing
             (Eighty-second                relaxation of qualifying marks for the
             Amendment) Act, 2000          reserved category of persons.
        5.   Constitution (Eighty-Fifth    Inserting the phrase “with consequential
             Amendment) Act, 2002          seniority” in Article 16(4)(A) providing
                                           not only accelerated promotion but
                                           consequential seniority as well to the
                                           reserved category.
        6.   Constitution (Ninety-Third    Inserting Sub-Article (5) to Article 15
             Amendment) Act, 2006          providing for mechanism of admission
                                           in Education Institution to the reserved
                                           category.
        7.   Constitution (One Hundred     Providing for identification of backward
             and Second Amendment)         classes by the Centre and the States by
             Act, 2018, and Constitution   inserting Article 342A.
             (One Hundred and Fifth
             Amendment) Act, 2021
        8.   Constitution (One Hundred     Providing for reservation of equally
             and Third Amendment)          weaker section EWS by inserting
             Act, 2019                     Sub-Article (6) of Article 16.




18   [2022] 14 SCR 1 : (2023) 5 SCC 1
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41. The above summary of the constitutional amendments carried out for
    the purposes of extending the benefit of reservation to the reserved
    categories would reveal that the Constitution has been amended as
    many as 9 times in order to implement the reservation policy in a fair
    and impartial manner so that the so-called depressed classes may
    be elevated at par with the forward classes. Most of the times the
    amendments to the Constitution were carried out either to undo the
    decisions of this Court or to carry out the directions or the observations
    made by this Court in implementation of the reservation policy in a
    more fair and reasonable manner so that the benefit of reservation
    trickles down to the most backward of the other backward classes/
    scheduled castes/scheduled tribes.
     CENTRAL GOVERNMENT AND STATE GOVERNMENT
     COMMISSIONS ON SC/ST AND OBCs
42. Apart from the above legislative exercise, the Union Government
    after independence, set up a Backward Class Commission in the
    year 1953 under the chairpersonship of Kaka Saheb Kalelkar. The
    Commission in its Report recommended inter alia that all women as
    a ‘class’ be treated as ‘backward’; all qualified students of backward
    classes be granted benefit of 70% seats reservation in all technical
    and professional Institutions; in all Government services and local
    bodies backward classes should be provided minimum reservation
    that is 25% in Class-I, 33-½% in Class-II, 40% in Class-III and 40%
    in Class-IV. The said Commission in its Report observed :
           “if entire communities, with some exceptions, are treated
           to be backward, actual needy would lose in the mob
           and they seldom attract attention towards them and get
           sufficient help.”
43. The Commission also observed that in certain States such as
    Rajasthan vagabond/restless movers/wanderers who groom and
    breed animals should be given special protection. The report was
    placed in the Parliament with an action plan but it went undebated.
    The Central Government at that time had spent a sum of Rs. 4.5 lakh
    which is equivalent to about Rs. 5 crore as of today.
44. In 1965, the Central Government appointed a Committee to advise
    on the revision of the existing list of scheduled castes and scheduled
    tribes. This Committee popularly known as B.N. Lokur Committee,
[2024] 8 S.C.R.                                                      1657

          The State of Punjab & Ors. v. Davinder Singh & Ors.


     reported and concluded that the question of de-scheduling (or
     excluding) of relatively advanced communities should receive serious
     and urgent consideration. It recommended for the intensive periodical
     survey of the socio-economic progress made by each of the scheduled
     castes and scheduled tribes, probably to exclude certain communities
     that have progressed and to include those that have been left behind.
     It further recommended that in framing of development schemes for
     scheduled castes and scheduled tribes, priority ought to be given to
     the welfare of the most backward amongst them. It also prepared a
     list of communities (castes/tribes) that were relatively forward and
     recommended to de-schedule or exclude 14 scheduled tribes and
     28 scheduled castes from the list.
45. The Constitution though aimed at a casteless society, it defined certain
    depressed/disadvantageous classes as Scheduled Castes and certain
    tribes living in forest, hilly areas and other remote areas as Scheduled
    Tribes. However, a significant segment of the population that was
    otherwise socially, economically and politically backward were not
    given any privileges or benefits of upliftment. They were marginalised
    and were left behind in education as well as employment. In order to
    address this anomaly, the most talked about second backward class
    Commission was constituted on 1st January, 1979 by the Government
    of India which is popularly known as B. P. Mandal Commission. This
    Commission was entrusted with the job to investigate the conditions
    of socially and educationally backward classes, to recommend the
    criteria for defining such classes of citizens, steps to be taken for
    their advancement and upliftment and the manner in which they can
    be extending the benefit of the reservation.
46. The Commission submitted its report on 31st December, 1980. The
    Commission on the basis of 1961 census compiled a national list
    of 3743 classes of persons under the heading ‘Other Backward
    Classes’ out of which 2108 were classified as ‘depressed backward
    classes’. The Commission recorded that 52 per cent (including 44
    per cent hindus and 8 per cent non-hindus) of the citizens are Other
    Backward Classes whereas 22.5 per cent are Scheduled Castes and
    Scheduled Tribes in India.
47. The Government while implementing the recommendations of the
    Mandal Commission took a historic decision on 6th August, 1990
    to introduce 27 per cent reservation for Other Backward Classes
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      which were socially and educationally backward classes. This was
      in addition to 22.5 per cent reservation for Scheduled Castes and
      Scheduled Tribes. The 27 per cent reservation in favour of other
      backward classes was confined as this Court in M.R Balaji vs. State
      of Mysore19 has put a cap of 50 per cent mark for the purposes of
      reservation.
48. The Mandal Commission thus recommended for 27 per cent
    reservation for OBCs in public sector and Government jobs and
    in promotion at all levels. It is also recommended that in the event
    the above quota remains unfilled in a particular year, the remaining
    vacancies be carried forward for a period of 3 years whereupon
    the unfilled vacancies if any would stand de-reserved. It further
    recommended for age relaxation to the OBCs at par with the
    Scheduled Castes & Scheduled Tribes. The validity of the aforesaid
    27 per cent reservation in favour of OBCs was upheld by this Court
    in the year 1992 in Indra Sawhney (supra).
49. In addition to the above exercise of the Government on the executive/
    administrative side, on the direction of this Court in the case of
    E.V. Chinnaiah’s (supra), the Government of India appointed a
    single Member Justice Usha Mehra Commission of a National level
    to examine the issue of sub-categorization of scheduled castes in
    Andhra Pradesh. This Commission appointed in the year 2006 was
    followed by another Commission set up by the Central Government
    in 2007 under the chairpersonship of Justice G. Rohini. It was also
    entrusted with the task of studying the entries in the Centre list of the
    OBCs and to examine the extent of equitable distribution of benefits
    of reservation amongst the OBCs. One important aspect which was
    also entrusted to this Commission was to work out a mechanism for
    sub-categorization of OBCs.
50. This apart, different States on different occasions had set up various
    State Level Committees and Commissions to study and report
    about the improvements to be made in reservation policy and the
    smooth implementation of the provisions of reservations vis-a-vis the
    concerned State. In this context, it may be beneficial to refer to some
    of the such Committees and Commissions set up by different States:


19   [1963] Supp. 1 SCR 439 : AIR 1963 SC 649
[2024] 8 S.C.R.                                                             1659

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      1.    1961 Dr R. Naganna    It suggested 50% reservation in technical
                 Gowda            and professional institutions and 45% in
                 Committee,       Government services.
                 Karnataka
      2.    1963 V.K.             It recommended reserving 40% seats in
                 Vishwanathan     technical and professional colleges for OBC
                 Commission,      students and 10% for SC/ST students.
                 Kerala
      3.    1964 B.D.             It recommended grouping of backward
                 Deshmukh         classes into four categories and reservation
                 Committee,       in Government services and educational
                 Maharashtra      institutions related in the ratio of their
                                  percentage in the State.
      4.    1969 A.N.             It submitted its Report in 1970 and recommended
                 Sattanathan      33% reservation in State Government jobs and
                 Commission,      in educational institutions.
                 Tamil Nadu
      5.    1970 Manohar          It identified four different categories of OBCs
                 Pershad          and recommended reservations in their
                 Commission,      favour, in both professional colleges and in
                 Andhra           Government services.
                 Pradesh
      6.    1970 J.N. Wazir       On the basis of the recommendations of
                 Committee,       this Committee “The Jammu and Kashmir
                 Jammu and        Scheduled Castes and Backward Classes
                 Kashmir          (Reservation) Rules, 1970” were framed by
                                  the State Government.
      7.    1973 Dhebar           This Commission was set up to study the
                 Commission       vulnerable tribal groups. It suggested creation
                 Ministry of      of separate category for the less developed
                 Tribal Affairs   among the tribal groups. In 1975 Government
                                  of India carried out an exercise to identify the
                                  most vulnerable tribal groups as a separate
                                  category and declared 52 of them to be in
                                  such a group wherein 23 new groups were
                                  added in 1993 making it a total of 75 out of
                                  705 scheduled tribes.
      8.    1975 L.G. Havanur     It recommended 16% reservation for backward
                 Commission,      communities, 10% for backward castes and 6%
                 Karnataka        for backward tribes in Government vacancies
                                  and educational institutions.
      9.    1976 Mungeri Lal      It identified 128 communities as backward and
                 Commission,      94 of them as most backward. It recommended
                 Bihar            20% reservation in Government services and
                                  24% in professional institutions.
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        10.   1976 A.R. Bakshi     It listed 82 castes and communities as socially
                   Commission,     and educationally backward and recommended
                   Gujarat         10% reservation in Government services and
                                   in professional institutions.
        11.   1977 Chhedi          It is one of the most talked about Commission
                   Lal Sathi       on most backward classes. It recommended
                   Commission,     classification of backward classes into
                   Uttar Pradesh   3 categories and suggested reservation
                                   in Government services and educational
                                   institutions under a separate quota.
        12    1990 Justice         The Commission found that reservation
                   Gurnam Singh    benefits have been primarily availed by one
                   Commission,     particular scheduled caste and the overall
                   Haryana         benefits have not percolated down to rest
                                   of the 36 scheduled castes. Consequently,
                                   the scheduled castes’ list for the purposes of
                                   reservation in Haryana was divided into Block
                                   ‘A’ and Block ‘B’ putting the 36 scheduled
                                   castes in Block ‘A’ and the one that has availed
                                   most of the benefits in Block ‘B’.
        13.   1997 Justice P.      This Commission was set up on the demand
                   Ramchandra      of the extremely backward castes within the
                   Raju            scheduled castes of the State of Andhra
                   Commission,     Pradesh. The Report opined that largely the
                   Andhra          benefits of reservation had gone to a particular
                   Pradesh         caste among the scheduled castes and
                                   therefore recommended for categorizing of the
                                   scheduled castes into Group A, B, C and D. It
                                   is on the basis of the recommendation of this
                                   Commission that scheduled castes in Andhra
                                   Pradesh were categorized in Group A, B, C
                                   and D which enactment led to E.V. Chinnaiah
                                   where this Court declared such classification
                                   as unconstitutional opining that scheduled
                                   castes/scheduled tribes are one homogenous
                                   class and cannot be sub-categorised for the
                                   purposes of reservation.
        14.   2001 Hukam Singh     The Committee upon study found that the
                   Committee,      benefits of reservation was not percolating
                   Uttar Pradesh   down to the most depressed classes of persons
                                   rather the Yadav’s alone had a maximum
                                   share of jobs. Thus, it recommended sub-
                                   categorisation of list of scheduled castes/OBC.
[2024] 8 S.C.R.                                                                1661

            The State of Punjab & Ors. v. Davinder Singh & Ors.



      15.    2003 Lahuji Salve     This Commission was appointed to study the
                  Commission,      socio-economic condition of Mangs caste
                  Maharashtra      which was within the list of scheduled castes.
                                   The Commission recommended the sub-
                                   classification of the scheduled castes as Mangs
                                   being the lowest in the hierarchy of caste
                                   system were not being adequately benefited.
      16.    2005 Justice A.J.     This Commission was appointed to identify the
                  Sadashiva        castes, races and tribes of scheduled castes
                  Commission,      in the State to whom the benefit of reservation
                                   was not being adequately extended.
                    Karnataka
                                   The Commission recommended the division
                                   of 101 castes specified in the Presidential
                                   List into four categories with 15% of the total
                                   reservation of scheduled castes to each of
                                   the categories.
      17.    2007 Mahadalit        The Commission was to identify the castes
                  Commission,      within the scheduled castes that lagged behind.
                  Bihar
                                   The Commission recommended inclusion of
                                   18 castes as extremely weaker castes from
                                   amongst the list of scheduled castes.
      18.    2007 Justice Jasraj   The Committee reported that Gurjar’s live
                  Chopra           in remote, isolated and uninhabited areas
                  Committee,       and are extremely backward and therefore
                  Rajasthan        recommended that they may be provided with
                                   better facilities than those available to the other
                                   backward classes.
      19.    2008 Justice          The Committee recommended that the
                  Thiru M.S.       Arunthathiyar’s deserve differential treatment
                  Janarthanam      in reservation.
                  Committee,
                  Tamil Nadu
      20.    2017 K. Ratna         Based upon the recommendation of this
                  Prabha           Committee, The Karnataka Extension of
                  Committee,       Consequential Seniority to Govt. Servants
                  Karnataka        Promoted on the Basis of Reservation (to
                                   the posts in the Civil Services of the State)
                                   Act, 2018 was enacted and the matter came
                                   up to the Supreme Court wherein the validity
                                   of the Act was upheld and it was opined that
                                   the reserved category candidates are not
                                   only entitled to accelerated promotion but to
                                   consequential seniority.
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        21.   2018 Justice         According to the Report there are 79 castes
                   Raghvendra      under the OBC category in the State out of
                   Kumar           which 9 are backward, 37 are more backward
                   Committee,      and 33 are most backward classes. Therefore,
                                   it recommended splitting of 27% quota of OBC
                   Uttar Pradesh
                                   in the State: 7% for backward classes, 11%
                                   for more backward classes and 9% for most
                                   backward classes.

     THE RAMIFICATIONS OF RESERVATION
51. The above history of “Reservation” in the country would amply
    indicate that tremendous amount of effort has been put in by all the
    three organs of the State i.e. the Legislature, the Executive and the
    Judiciary to bring about social justice by promoting the reservation
    policy and its implementation in such a manner that not only the
    backwards but the most backwards of the backwards are brought
    into the forefront with the mainstream. So the question arises that
    how far has the reservation policy succeeded in someone’s wild
    guess? Notwithstanding, the success or failure of the reservation
    policy, one thing is for sure that it has burdened the Judiciary at
    all levels specially the High Courts and the Supreme Courts with
    enormous litigation which could have been avoided if a robust
    reservation policy with a vision would have been envisaged under
    the constitutional provisions in the very beginning instead of making
    piecemeal changes.
52. It is a matter of experience that every kind of process of selection
    and appointment in the government services and admission at
    higher level has come to be challenged before the courts inter-alia
    on the grounds of misapplication of the rule of reservation. Most of
    the times, the appointments and admissions get stuck up for years
    on account of litigation. This has caused enormous delay in the
    recruitment process and the vacancies remaining unfilled for long,
    giving rise to stop-gap/ad-hoc appointments resulting in further
    litigation. It is also noticeable that enough time and energy has been
    spent by all the three wings of the State in streamlining the process
    of reservation and to evolve a flawless mechanism for implementing
    the reservation policy but still the non-visionary approach to handle
    the upliftment of the backward castes has created more difficulties
    rather than ironing them out.
[2024] 8 S.C.R.                                                          1663

          The State of Punjab & Ors. v. Davinder Singh & Ors.


53. It is a matter of record that in pro-reservation agitations and anti-
    reservation agitations, the peace and tranquillity of the entire country, at
    times, stood disturbed. Specially, during the anti-Mandal Commission
    agitation somewhere in 1990, most of the States witnessed large
    scale disturbances. The turmoil so created by such agitations and
    demonstrations particularly in the months of August-November of
    1990 is the ample indication of the wide spread violence.
54. It may not be out of context to point out that apart from the anti-
    Mandal Commission violence, the country witnessed similar violence
    in the year 2006 when the students of IITs and AIIMS came out
    on the streets opposing reservation. Also, there was violence in
    Maharashtra against the Maratha reservation, to talk about the few.
55. After independence, a special provision was made in the Directive
    Principles of State Policy to provide compulsory primary education
    to all children within a period of 10 years but the target could not
    be achieved even after 77 years of independence. The Central
    Government, few years back, in order to provide free education to
    children enacted Right to Education Act, 2009. The aforesaid Act
    proved to be a very weak legislation and have not been able to
    provide primary education to one and all irrespective of the caste,
    creed, race, religion and sex as most of the children of the so-called
    depressed class either fail to attend schools or drop out after one and
    two years of education. There is no compulsion to give education to
    such children. The policy of reservation is applicable at the higher
    level only and for the purposes of employment. Thus, depriving
    such children or the drop outs, at the primary level of the benefit of
    reservation or upliftment in any other manner, as a result of which
    these children ultimately remain the most backward of the backwards.
56. The statistics proves that the deprived and the marginalized persons
    have not been able to achieve the benefit of reservation which is
    permissible at higher level as about 50% of the students from the
    most backward classes drop out of school before Class-V and 75%
    drop out before Class-VIII. The figure goes to even 95 per cent
    when it comes to the level of high school. Thus, only the children of
    some of the castes, who are already affluent or urbanized, are able
    to obtain higher education and the benefits of reservation.
57. By referring to the above agitations, disturbances, violence, litigation
    and shortcomings, I do not to intend to suggest that the task of
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     upliftment of the downtrodden be brought to an end or that the
     government should give up the reservation policy. But the issue is
     how to carry out the process to bring about equality and development
     of all, the manner of identification of the so-called depressed classes
     or the downtrodden and the form/nature of steps to be taken for their
     upliftment. The Government has used caste as the basis for the
     upliftment rather than identifying the class of people on the basis of
     vocation or their social and economic conditions who actually requires
     help to be promoted to the level of the forward class. It is for this
     reason, today we are grappling with a situation of sub-classification
     of the castes notified for the purpose of reservation. The experience
     shows that the better of the class amongst the backwards eats up
     most of the vacancies/seats reserved leaving the most backward
     with nothing in their hands.
58. This may be illustrated and better explained by taking three students
    namely ‘A’, ‘B’ and ‘C’. Both ‘A’ & ‘B’ are equals in every manner as
    they come from well-to-do family having same kind of status, family
    background, education and financial capacity. ‘A’ being a general
    category candidate, qualifies for admission in higher education on
    merits whereas ‘B’ who belongs to a backward class competes and
    qualifies for admission in the reserved category. The student ‘C’ who
    is also of the backward class but has no advantage as that which
    is available to both ‘A’ and ‘B’, despite competing in the backward
    category remains unsuccessful. He continues to remain unsuccessful
    in the following years as well, as again and again backward category
    candidates having the status equivalent to that of a forward class
    or that which is available to ‘A’ and ‘B’ keeps on qualifying leaving
    the most backward of the backwards far behind. In this manner, the
    most backward of the backward category loses the battle even with
    the backward classes who are practically enjoying the status of the
    forward class people.
     CASTELESS SOCIETY-CASTE SYSTEM VIS-À-VIS THE VARNA
     SYSTEM
59. The Constitution virtually visualises a casteless society and a
    unified society but in the name of ‘equality’ to accord facility and
    privileges to the depressed class/downtrodden, it is said that we
    have continued with the so-called Manuwadi System of caste. I am
    not an expert of religious scriptures nor do I claim that I have any
    knowledge of any one of them though I may have gone through
[2024] 8 S.C.R.                                                                        1665

            The State of Punjab & Ors. v. Davinder Singh & Ors.


      Bhagwad Gita and Ramcharit Manas some times. According to my
      limited understanding of the scriptures specially the Gita, I am of the
      firm view that in primitive India there was no existence of any caste
      system rather there was categorisation of the people according to
      their profession, talent, qualities and nature. This can very well be
      reflected by verse 13 of chapter 4 and verse 41 of chapter 18 of the
      Bhagwat Gita which I quote below.
60.   चाातुुर्ववर्ण्यय मयाा सृृष्टंं गुुणकर्ममवि�भाागशःः। (Chapter 4, Verse 13, Bhagwat Gita)
      ब्रााह्मणक्षत्रि�यवि�शांं� शूूद्रााणांं� च परन्तप।
                                                      ु ॥ (Chapter 18, Verse 41, Bhagwat Gita)
      कर्माा�णि� प्रवि�भक्ताानि� स्वभाावप्रभवैैर्गु�णैःः�
      Lord Krishna says that I have categorised humans in 4 varnas
      according to their nature and characteristics.
      Gita thus only promotes varna system which is different from
      present day caste system. It lays emphasis on abilities, qualities
      and consciousness of a person to have a balanced structure of
      society and to bring out the best in every person. The four varnas
      (occupational categories) are: -

       1.   Bharama            Teachers, Priests and Intellectuals
                               (Priestly class)
       2.   Kshatriyas         Warriors, Police and Administrators
                               (Administrative class)
       3.   Vaishayas          Farmers, Merchants, Traders and
                               Businessman (Mercantile and Farmer class)
       4.   Shudras            Artisans, Workers and Labour class
                               (Worker class)

61. The Bhagvad Gita in subsequent verses describes the intrinsic
    qualities of each of the varnas. The varna system depicting
    occupational categories can also be explained with the physical body
    of a person wherein the head of a person which does intellectual work
    is called ‘Bharaman’. The hands which protect him and his family
    does the job of a ‘Kshatriya’. The abdomen which requires food to
    convert it into energy refers to ‘Vaishayas’, who are predominantly
    the farmers and the merchants invested to earn livelihood. The
    lower limbs (legs) do all kind of labour work and are referred to as
    ‘Shudras’.
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62. The Skanda Purana also contains a shloka:
        जन्मनाा जाायत शूूद्रःः संं स्कााराात्् द्वि�ज उच्यतेे | 20
      which means that everyone is born as Shudra i.e. to work and slowly
      each one of them elevates himself to a higher status of Vaishya,
      Kshatriya and Brahmin on the strength of his talent, quality, character
      and nature.
63. It means the duties of Brahmins, Kshatriyas, Vaishyas and Shudras
    were distributed according to their qualities (guns) and nature (and
    not by birth). All people have different nature and characteristics.
    Their personality is shaped according to their qualities (gunas).
    Thus, different professionals duties are suited to persons of different
    nature and character. Since the center of society is God (Parmatma),
    everyone (atma) works according to their intrinsic qualities to sustain
    themselves and the society.
64. According to the varna system no one is to be considered as lower
    or higher, rather it is preached that everyone is equal fragment and a
    part and parcel of Him, the Almighty. Gita nowhere preaches that the
    aforesaid varnas are on the basis of birth and are not interchangeable.
    However, with the passage of time, the varna system deteriorated
    and the people started labelling these varnas on the basis of birth,
    ignoring the nature and characteristics of a person which is exactly
    the opposite to what is preached in Gita. The varnas were given the
    nomenclature of castes in a very loose manner.
65. Later, children of Brahmins started calling themselves as Brahmins,
    irrespective of whether they possessed the corresponding qualities
    or not. Similarly, the children of other varnas also adopted the varna
    of their father ignoring their own nature, talent and qualities. When
    this system grew rigid & birth based, it became dysfunctional.
66. In short, what is intended to be conveyed is that according to Gita there
    is no caste system and the varna system (categorization) referred
    to therein is quite distinct, based upon persons nature & qualities.
    Thus, there was no caste system in ancient India i.e., Bharat. The
    misconstruction of the varna system as a caste system was a social
    defect that crept in with time and was not considered to be good as
    it divided the society and brought about discrimination & inequality.


20   Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34.
[2024] 8 S.C.R.                                                        1667

          The State of Punjab & Ors. v. Davinder Singh & Ors.


67. The social problems created by the so-called caste system or the
    problem of untouchability etc. were widely considered to be bad
    practices prevailing in the Indian society. Thus, social reformers
    always propagated giving up of such malpractices.
68. Mahatma Gandhi, the Father of the Nation, during the entire
    freedom struggle strenuously worked for the upliftment of the so-
    called depressed classes including ‘untouchables’. He described the
    untouchables as ‘persons of God’ - ‘Harijans’. After independence
    with the adoption of the constitution, we decided to move towards
    the unified casteless society and vide Article 17 envisaged to
    abolish the practice of untouchability in any form and contemplated
    to make untouchability ‘a punishable offence’. Notwithstanding, the
    objective of casteless society and the principle of equality; the original
    Constitution made provision by Article 15 (3) enabling the State to
    make special provision for women and children despite prohibition
    of discrimination on grounds religion, race, caste, sex or place of
    birth. Similarly, Article 16 (4) enabled the State for making special
    provision for reservation of appointments or post in favour of any
    backward class of citizens. This was done with the object to bring
    about social equity and justice.
69. The Constitution at the same time vide Article 341 conferred power
    upon the President to notify certain castes, races or tribes or part of
    such caste, races and tribes to be deemed to be Scheduled Castes.
    In fact, the constitution otherwise does not recognise any caste except
    for the above deeming provision. The country as such had moved
    into a casteless society except for the above legal fiction only for
    the purposes of the constitution and not otherwise.
70. In other words, to put it summarily there was no caste system in
    primitive India. Slowly the varna system prevalent was misconstrued
    to be a caste system which practice was found to be socially non-
    acceptable and as such after independence with the adoption of
    the Constitution we again tried to move into a casteless society
    but in the name of social welfare to uplift the depressed and the
    backward classes, we again fell into the trap of caste system. We
    gave privilege of reservation to the depressed or the backward class
    or the Scheduled Caste to bring about equality.
71. It is common understanding that what is conceded once to appease
    any class cannot be taken back. So are the benefits extended to the
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      reserved category of persons under the constitution. Each concession
      once made, just goes on swelling like a raisin/balloon. This actually
      happened with the policy of reservation also.
      RESERVATION IS ONLY A MEDIUM OF FACILITY BUT ITS
      EXECUTION REVIVES CASTEISM
72. ‘Reservation’ is one of the modes of helping or uplifting the status of
    the OBCs/SCs/STs. Anyone who suggests another or a better way of
    helping the so-called depressed classes or the downtrodden or the
    marginalised persons of the society is immediately pounced upon
    as ‘Anti Dalit’. At the cost of being called ‘Anti Dalit’, I quote Nani
    A Palkiwala from his book ‘We, The Nation, The Lost Decades)21
             “The basic structure of the Constitution envisages a
             cohesive, unified, casteless society. By breathing new
             life into casteism, the judgment fractures the nation and
             disregards the basic structure of the Constitution. The
             decision would revitalise casteism, cleave the nation into
             two – forward and backward - and open new vistas for
             internecine conflicts and fissiparous forces, and make
             backwardness a vested interest. It will undo whatever
             has been achieved since independence towards creating
             a unified, integrated nation. The majority judgments will
             revive casteism which the Constitution emphatically
             intended to end; and the pre-independence tragedy would
             be re-enacted with the roles reversed – the erstwhile
             underprivileged would not become the privileged.”
73. In fact, Scheduled Castes, Scheduled Tribes and other backward
    classes simply deserve equality with the other forward classes of
    people. Justice O. Chinnappa Reddy in K C Vasantha Kumar &
    Anr. vs. State of Karnataka22 said “they need facility; they need
    launching; they need propulsion. Their needs are their demands.
    The demands are matters of rights and not of philanthrophy. They
    ask for parity and not charity.”
74. In State of Kerala vs. N M Thomas,23 Justice V R Krishna Ayer
    said “you can’t throw to the winds considerations of administrative


21   NANI PALKIWALA, WE, THE NATION: THE LOST DECADES 179 (Mehta Publishing House 1995)
22   [1985] Supp. 1 SCR 352 : (1985) Supp. SCC 714
23   [1976] 1 SCR 906 : (1976) 2 SCC 310
[2024] 8 S.C.R.                                                              1669

             The State of Punjab & Ors. v. Davinder Singh & Ors.


      capability and grind the wheels of Government to a hault in the name
      of ‘harijan welfare’.”
75. This Court in A. Periakaruppan Chettiar vs. State of Tamil Nadu &
    Ors.24 observed that reservations should not be allowed to become
    a vested interest. In Akhil Bharatiya Soshit Karamchari Sangh
    vs. Union of India & Ors.25 it was observed that efficacy of the
    reservation policy will depend upon how soon reservations can be
    done away with. The then Chief Justice of India Y.V. Chandrachud
    counselled in Vasanth Kumar (supra), “the policy of reservation in
    employment, education and legislative institutions should be reviewed
    every five years or so.”
76. Pandit Jawahar Lal Nehru in his letter dated 27th June 1961 addressed
    to all the Chief Ministers of all the States laments upon the habit of
    giving reservations and privileges to any caste or group and expresses
    that such practice ought to be given up and emphasis to help the
    citizens on economic considerations and not on caste basis and
    that the Scheduled Castes and Scheduled Tribes do deserve help
    but not in the shape of any kind of reservation more particularly in
    services. He wrote:
             “I want my country to be a first-class country in everything.
             The moment we encourage the second-rate, we are lost.
             The only real way to help a backward group is to give
             opportunities of good education, this includes technical
             education which is becoming more and more important.
             Everything else is a provision of some kind of crutches
             which do not add to the strength or health of the body.”
      In the same letter he went on to speak about two very important
      decisions, “one is, universal free elementary education that is
      the base; and the second is scholarship on a very wide scale
      at every grade of education to the bright boys and girls”. He
      went on to express if reservation on communal and caste basis
      continues, India will remain second rate or third rate. He said
      “This way lies not only folly, but disaster. Let us help the backward
      groups by all means, but never at the cost of efficiency.”



24   (1971) 1 SCC 38
25   [1981] 2 SCR 185 : (1981) 1 SCC 246
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     CONCLUSION
77. Our predecessors, not only the Judges but also the former Prime
    Minister have appeared to be against providing reservation to any
    class or caste of persons on purely caste basis and wanted to take
    the country forward on merit basis. Despite the views so expressed,
    the Constitutional amendments envisaged to promote the depressed
    and the backward classes of persons to bring them to the level of
    the privileged class enjoying the status of an urban elite. Thus, the
    reservation policy was rightly applied and since its implementation faced
    difficulties as some in the backward classes have marched ahead, it
    has become imperative to uplift the backward of the backwards, for
    which purpose sub-classification has become the order of the day.
78. I had the privilege of going through the erudite judgments of the
    Chief Justice and my esteemed brother Justice Gavai.
79. The Chief Justice in his opinion has dwelled upon the legal aspects
    to answer the core issue whether sub-classification of the scheduled
    castes is constitutionally permissible for the purposes of reservation.
    He has clearly opined that this Court in Indra Sawhney (Supra)
    never intended to limit the application of sub-classification to the
    other backward classes only. If any class is not integrated it can be
    further classified and such sub-classification of a class would not be
    violative of Article 14 of the Constitution, so long persons in a class
    are not similarly situated. There is no violation of Article 341(2) of
    the Constitution in sub-classification within the scheduled caste as
    by such sub-classification no caste is being included or excluded
    from the list of scheduled castes.
80. His Lordship Justice Gavai in his opinion quoted an example where
    a member of a backward class becomes an IAS or an IPS or any
    other officer of the All India Service and improves upon his status in
    the society but even then his children get full benefits of reservation.
    No doubt, “one swallow does not make a summer” meaning thereby
    that if few members of a particular caste/class advances in the
    society the entire caste or class would not cease to be backward.
    Nonetheless if any member of designated backward class acquires a
    higher status and attains equality with the forward class, it is difficult
    to comprehend how his children would be treated as depressed,
    downtrodden or backward in any manner be it socially, economically
    or educationally. Therefore, the caste to which this person belongs
    may not be excluded as a whole from the benefit of reservation but
[2024] 8 S.C.R.                                                         1671

            The State of Punjab & Ors. v. Davinder Singh & Ors.


     certainly the family which has obtained the benefit once shall not be
     allowed to take advantage of reservation in the next generation. The
     reservation to such families has to be confined to one generation only.
81. It has rightly been stated by my brother Justice Gavai in his opinion
    that Justice Krishna Iyer in N. M. Thomas (supra) has repeatedly
    observed that State is entitled to take steps for weeding out socially,
    economically and educationally advanced sections of scheduled
    castes and scheduled tribes from the ambit of reservation.
82. It has rightly been observed that a child studying in St. Stephen’s
    College or any good urban college cannot be equated with a child
    studying in a rural school/college and that he cannot be grouped
    into a same bracket.
83. In these circumstances my brother Justice Gavai has rightly concluded
    that the State must evolve a policy of identifying the creamy layer
    even from the scheduled castes and scheduled tribes so as to
    exclude them from the benefit of reservation.
84. Agreeing with the scholarly separate opinions authored by the Chief
    Justice and Brother Gavai, J., I summarise my views as under:
     (i)    The policy of reservation as enshrined under the Constitution
            and by its various amendments requires a fresh re-look and
            evolvement of other methods for helping and uplifting the
            depressed class or the downtrodden or the persons belonging
            to SC/ST/OBC communities. So long no new method is evolved
            or adopted, the system of reservation as prevailing may continue
            to occupy the field with power to permit sub-classification of a
            class particularly scheduled caste as I would not be suggesting
            dismantling of an existing building without erecting a new one
            in its place which may prove to be more useful;
     (ii)   In the Constitutional regime, there is no caste system and
            the country has moved into a casteless society except for
            the deeming provision under the Constitution for the limited
            purposes of affording reservation to the depressed class of
            persons, downtrodden or belonging to SC/ST/OBC. Therefore,
            any facility or privilege for the promotion of the above categories
            of persons has to be on a totally different criteria other than the
            caste may be on economic or financial factors, status of living,
            vocation and the facilities available to each one of them based
            upon their place of living (urban or rural);
1672                                                         [2024] 8 S.C.R.

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     (iii) The reservation, if any, has to be limited only for the first
           generation or one generation and if any generation in the family
           has taken advantage of the reservation and have achieved
           higher status, the benefit of reservation would not be logically
           available to the second generation; and
     (iv) It is reiterated that periodical exercise has to be undertaken
          to exclude the class of person who after taking advantage of
          reservation has come to march, shoulder to shoulder with the
          general category.
85. The reference is accordingly answered and it is held that sub-
    classification of scheduled castes is permissible in law for the
    purposes of reservation.


     Satish Chandra Sharma, J.
1.   I have had the privilege of reading the lucid and detailed opinion(s)
     authored by Hon’ble Dr. Justice D.Y. Chandrachud, Chief Justice
     of India and Hon’ble Mr. Justice B.R. Gavai, respectively. I am fully
     in agreement with both opinions to the extent that the validity of
     sub-classification within Scheduled Castes has been held to be
     constitutionally permissible. Moreover, I am fully in agreement with the
     opinion(s) to the extent that any exercise involving sub-classification
     by the State, must be supported by empirical data that ought to
     underscore the more ‘disadvantaged’ status of the sub-group to
     which such preferential treatment is sought to be provided vis-à-vis
     the Constitutional Class as a whole.
2.   However, on the question of applicability of the ‘creamy layer principle’
     to Scheduled Castes and Scheduled Tribes, I find myself in agreement
     with the view expressed by Justice Gavai i.e., for the full realisation
     of substantive equality inter se the Scheduled Castes and Scheduled
     Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes
     and Scheduled Tribes ought to become a constitutional imperative
     for the State.

     Result of the case: Reference answered.



     †
         Headnotes prepared by: Bibhuti Bhushan Bose