THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS.

The Judgment of the Court was delivered by ARUN MISHRA, J.

1Copy pinpoint1. A Bench of three Judges vide order dated 20.8.2014 referred the matter to a larger Bench for consideration opining that the judgment of a 5-Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors., (2005) 1 SCC 394,is required to be revisited in the light of Article 338 of the Constitution of India, and not correctly following the exposition of the law in Indra Sawhney and Ors. v. Union of India & Ors., 1992 Suppl. (3) SCC 217. It was noted that matter involved interpretation and interplay between Articles 16(1), 16(4), 338 and 341 of the Constitution of India.

2Copy pinpoint2. We, in order to consider the constitutional validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 (for short, ‘the Punjab Act’) in the matter referred, framed the following issues on 4.2.2020: D “i) Whether the provisions contained under Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 are constitutionally valid? ii) Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act? iii) Whether the decision in E.V. Chinnaiah Vs. State of A. P. & Ors. reported in (2005) 1 SCC 394 is required to be revisited?”

3Copy pinpoint3. The background facts are that the Punjab Government by Circular No.1818-SW-75/10451 dated 5.5.1975 provided that out of seats reserved for Scheduled Castes, fifty per cent of the vacancies would be offered to Balmikis and Mazhabi Sikhs. The Circular was struck down by a Division Bench of the Punjab and Haryana High Court vide judgment dated 25.7.2006.This Court dismissed the S.L.P. against the same on 10.3.2008. G

4Copy pinpoint4. The Punjab Act was notified on 5.10.2006. Section 4(5) of the Punjab Act made similar provisions as were made in the Circular, which was struck down. It stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates. H

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5Copy pinpoint5. A Division Bench of the Punjab and Haryana High Court struck down the provisions contained in Section 4(5) of the Punjab Act vide judgment dated 29.3.2010, relying upon the decision in E.V. Chinnaiah.

6Copy pinpoint6. The constitutional validity of Section 4(5) of the Punjab Act depends upon whether any such classification can be made within the class of Scheduled Castes or Scheduled Tribes or are to be treated as a homogenous class.Whether it is not permissible to provide any further reservation to the weakest out the weak, particularly when it has not been possible to trickle down the benefit of reservation to the weakest and the same is utilised by the upper class within the group, who enjoy the benefit of reservation to the maximum creating disparities within its class. Submissions:

7Copy pinpoint7. Shri Ranjit Kumar, learned senior counsel appearing for the State of Punjab raised the following arguments: D (a) The decision in E.V. Chinnaiah erroneously proceeded on the premise that affirmative action taken by the States by giving preference to certain Scheduled Castes under Article 16(4) tinkers with the Presidential List under Article 341. Merely giving of preference does not tinker, rearrange, sub-classify, disturb or interfere with the list in any E manner whatsoever since there is no inclusion or exclusion of any caste in the list as notified under the meaning of Article 341. The Punjab Act has been enacted under Article 16(1) and 16(4) read with Articles 245 and 246. The provisions of Section 4(5) of the Punjab Act are within the legislative competence of the State.

F (b) The Court in E.V. Chinnaiah erred in correctly interpreting the majority ratio in Indra Sawney on the question of sub-classification within a class.At least five out of nine Judges in Indra Sawney held that amongst the backward, there may be some more backward, and when State chooses to make such classification, it would be permissible in law.Unequivocally in the majority, it was held that backward classes G can be classified into more backward and less backward classes.The Scheduled Castes and Scheduled Tribes fall within backward classes. There is no warrant for the submission that there cannot be a classification within the Scheduled Castes. (c) Article 16(4) covers all backward classes, including Scheduled H Castes and Scheduled Tribes. The expression used in Article 16(4) is

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“any backward class of citizens”. The expression “not adequately A represented” covers all socially and educationally backward classes, who, on account of their backwardness, are inadequately represented in the State’s services. The scope of Article 16(4) is wider in its ambit than Article 15(4). The expression “backward class of citizens”used in Article 16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes B and other backward classes, including the socially and educationally backward class. (d) The preferential treatment is a facet of equality under Article

14. Any enactment by the State giving preference to more backward amongst the backward fulfils the object of Article 16(4). Six out of nine Judges in Indra Sawney held that Article 16(4) is not an exception to C Article 16(1). The preferential treatment given to certain Scheduled Castes/Scheduled Tribes does not violate Article 14. It intends to provide proportional equality. The classification is based on intelligible differentia. The differentia bears a reasonable nexus with the object, which is sought to be achieved, of equitable representation of all Scheduled Castes in D the Government service. The specific reservations are required to bring about real equality of opportunity between unequals and must be ensured by the State. (e) A new concept has been applied by this Court to Scheduled Castes also. While considering Indra Sawney inrecent judgment by this E Court in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10 SCC 396, it was held that the object of Article 16(4) is to ensure that all backward classes march forward hand in hand and that will not be possible if only selective few get selected in all the coveted services of the Government.It was opined that the application of the ‘creamy layer concept’ to Articles 341 and 342 does not tinker with the F Presidential List. (f) The decision in E.V. Chinnaiah is contrary to other binding judgments, such as K. C. Vasanth Kumar & Anr. v. State of Karnataka, 1985 Supp. SCC 714, which was approved in Indra Sawney. In M. R. Balaji & Ors. v. State of Mysore & Ors., 1963 Supp. (1) SCR G 439, it was held that sub-classification between backward and more backward classes is necessary to help more backward classes. In E.V. Chinnaiah, the decision in State of Kerala & Anr. v. N.M. Thomas & Ors., (1976) 2 SCC 310, was not properly appreciated. It was laid down in N. M. Thomas that there could be no objection to further H

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8Copy pinpoint8. Shri R. Venkataramani, learned senior counsel appearing for the State of Tamil Nadu argued that: (a) The decision in E.V. Chinnaiah has and will continue to have an empirically demonstrable baneful effect on the general interests of the public and is inconsistent with the legal philosophy of the Constitution regarding equality and equal opportunity. The decision in E.V. Chinnaiah,which holds that Scheduled Castes and Scheduled Tribes once classified are a homogenous class, is removed from social and economic reality. If the decision continues to operate, a large section of Scheduled Castes and Scheduled Tribes would be deprived of the guarantees under Articles 14 to 16. The decision in E.V. Chinnaiah deserves to be revisited by a larger Bench. (b) Articles 14 to 16 constitute a triumvirate of citizens’ rights and obligations and conceived as equality and social justice charters. The State is under corresponding obligations to devise measures and methods, fashion, policies to promote and protect these rights. There is an interplay between these rights as held in Indra Sawney. The equality rights under Article 14 and equal opportunity rights under Articles 15 and 16 have been mutually reinforcing facets. The State must undertake the emancipation of the deprived and weaker sections of the community.

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The obligation to eradicate inequalities in status and wealth is complex obligations involving redistribution and reallocation of resources, opportunities, and equitable access to all public and social goods. Education, health, and public employment are all public goods of immense value. Therefore, the State/States will always need the freedom to carry out informed experiments without being fettered by undue or disproportionate claims. The court has to keep social dynamics in mind and be careful not to chain the State or clamp its hand while interpreting constitutional provisions. The rule of law demands that the State is able to harmonise and balance several competing claims and interests. (c) In Indra Sawney, the word “backward classes” have been declared to include Scheduled Castes and Scheduled Tribes and what all consideration involved in dealing with backward classes would also be attracted to the Scheduled Castes and Scheduled Tribes, i.e., grouping, classification or sub-classification of castes and tribes for effectuating the rights under Article 16(1) and 16(4) is permissible. There are inter- se distinctions and inequalities within Scheduled Castes/Scheduled Tribes D in their ability to access education and employment, afford healthcare, and enjoy the same social status. They are undeniably classes within a class. The data documented by the State shows that inter-se inequality persists. It is open to the State/States to deal with backward classes based on each group’s needs or sub-class and handle the pervading imbalances. E

(d) The decision in E.V. Chinnaiah has frozen all State authorities under Articles 14 to 16 of the Constitution. E.V. Chinnaiah does not answer many questions raised. It is based on the premise that all Scheduled Castes can and must collectively enjoy the benefits of reservation regardless of inter-se inequality. The broad statement in E.V. F Chinnaiah has no demonstrable truth in empirical terms and is not supported under the judgment itself. The decision in E.V. Chinnaiah cannot be said to be absolute to a standard so high based on stare decisis as to freeze our constitutional understanding permanently and place of the judicial pronouncement.Shri R. Venkataramani has attracted the G Court’s attention to various decisions concerning stare decisis in matters of its constitutional importance.

9Copy pinpoint9. Shri M.S. Ganesh, learned senior counsel appearing on behalf of Haryana Dhanak Sewa Samiti, while supporting the aforesaid submissions, additionally argued that: H

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A (a) the decision in E.V. Chinnaiah suffers from tunnel vision and lacks acuity, and he has referred to M. Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212. The impact test must also be applied to Article 341 read with the tautologous definition clause of Article 366(24) of the Constitution. The specification in Article 341 of the castes, races, and tribes is rendered qua legal fiction. The purpose of legal fiction must B be ascertained, and then it is to be given full effect without letting the imagination boggle. It cannot be stretched beyond the purposes for which the legislature has created it. The legal fiction under Article 341 is limited to the specification. The specification is not disturbed by sub-classification of the Scheduled Castes mentioned in the List. C (b) The caste given further reservation are not represented in the services of the State. The decision in E.V. Chinnaiah cannot be said to be laying down good law in view of the decision in I.R. Coelho v. State of T.N., (2007) 2 SCC 1. The approach and reasoning in E.V. Chinnaiah were that for Scheduled Castes, Article 341 was the bedrock of the rights guaranteed by Articles 15(4) and 16(4) and was dominant tenement to which Articles 14 to 16 were subservient. (c) That E.V. Chinnaiahis subject to Occam’s Razor entia non sunt multiplicanda praeter necessitate (entities ought not to be multiplied except from the necessity), which means that all unnecessary or constituents in the subject being analysed are to be eliminated. The inclusion in the list cannot dictate to the enforcement and effectuation by the State of the rights guaranteed by Articles 15(4) and 16(4) between those specified castes, races, or group inter-se.The assignment of important role to ethicalprinciples in behavioural relation of the society ranges from Aristotle, Aquinas, Ockham, and Arthasastra are referred to in ‘The Idea of Justice’ by Amartya Sen. (d) That Articles 15(4) and 16(4) by themselves are substantive and enabling provisions. The power conferred is not limited in any way by the main provision, but falls outside it. It has not carved out an exception but has preserved the power untrammelled by the other provisions of the Article. The hands of the State cannot be restrained under Article 46 as done by E.V. Chinnaiah. In E.V. Chinnaiahhas lost sight of the nature of Part-XVI of the role of the provisions of that Part. (e) If E.V. Chinnaiah is a good law, its problematics give rise to prospects of challenge to the constitutional validity of Article 342A as inserted by the Constitution (One Hundred and Second Amendment)

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Act, 2018 necessitates revisiting the interpretation of Articles 341 and A 342 of the Constitution.

10Copy pinpoint10. Shri Nidesh Gupta, learned senior counsel argued that: (a) there is no bar to grant a State’s preference under Articles 341(2) and 342(2) of the Constitution. The Constitution does not forbid mere preference. The State Government cannot exercise power B concerning inclusion and exclusion. This Court in Indra Sawneyupheld a classification of the backward and more backward class under Article 16(4). (b) In M. Nagaraj and Jarnail Singh,the exclusion of the Scheduled Castes’ creamy layer under Article 16(4) was permitted. The C creamy layer includes economic, social, educational, and other factors; therefore, the preference given to Balmikis and Mazhabi Sikhs, i.e., the most backward amongst the Scheduled Castes, is in substance an application of the principle of creamy layer. (c) A reading of Articles 16(4), 16(4A), 335, 341, and 342 makes it clear that the State(s)has a role to play at every stage of the reservation process. Therefore, it would be contrary to the constitutional scheme to deny them a role in merely granting a preference to the most backward among the Scheduled Castes. (d) A class of citizens cannot be treated to be socially and educationally backward till perpetuity. The class is always required to be judged in the light of the existing fact situation at a given point of time, as observed in Jagdish Negi, President, Uttarakhand Jan Morcha & Anr. v. State of U.P.& Anr., (1997) 7 SCC 203.

11Copy pinpoint11. Shri Shekhar Naphade, learned senior counsel, attracted the attention of the Court to the findings recorded by the Committee based on which reservation has been provided to more backward of the Scheduled Castes in the State of Tamil Nadu.He argued that: (a) the Arunthathiyars communityis the lowest caste. He attracted the attention of the Court to the representation of the group in the State Government Departments and educational courses and the reservation formula recommended by the Committee. The Tamil Nadu Arunthathiyars (Special Reservation of seats in Educational Institutions including Private Educational Institutions and appointments or posts in the services under the State within the Reservation for Scheduled Castes) H

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A Act, 2009 does not tinker with the Presidential List of Scheduled Castes in any manner. (b) Special reservation is a fundamental aspect of Article 14 of the Constitution. E.V. Chinnaiah requires reconsideration in the light of the decision of the Constitution Bench in Jarnail Singh. Besides, it B failed to take note of ground realities and is not based upon the statistical data collected by the State showing disparities amongst the Scheduled Castes and Scheduled Tribes. (c) The State’s legislative competence in various fieldsfor making reservation flows from Article 246(2) and 246(3) read with Entry 41 in C List II and Entry 25 in List III. Article 341 does not abrogate the legislative power of the State to enact a law providing for reservation in the employment in the State Public Services or State Public Service Commission. It is open to the State to make law providing reservation in the admissions to educational institutions. D (d) The restriction under Article 341 is limited, relating to inclusion and exclusion of castes. The decision in E.V. Chinnaiah treats unequals as equals. The object of the legislation is to improve the lot of Scheduled Castes and eliminate their social and educational backwardness and equally distribute the fruits among them. The special reservation is to render more meaningful social justice. The unequals cannot be treated E equally. Differential treatment cannot be termed to be discriminatory.

12Copy pinpoint12. Ms. Jyoti Mendiratta, learned counsel, attracted the attention of the Court to the various reports and argued that in E.V. Chinnaiah Scheduled Castes were taken to be a homogeneous group, they are, in fact, not homogeneous. F (a) Learned counsel attracted our attention to the report of Justice M.S. Janarthanam Committee of Inquiry for Special Reservation for the Arunthathiyars. They were not able to reap the fruits of reservation as there was upper crust within Scheduled Castes, and most of the posts were reserved for Scheduled Castes and Scheduled Tribes, though G Arunthathiyars were 16 per cent of the Scheduled Caste population, they managed to obtain reservation to a much lower extent. The figures of representation of Arunthathiyars community in State services and educational institutions have been furnished. (b) Our attention was attracted to the report of Justice H Ramachandra Raju Committee, wherein it was observed that the Reli

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 875 [ARUN MISHRA, J.]

group of communities was the most backward amongst the Scheduled A Caste communities. (c) Learned counsel also invited our attention to Justice Usha Mehra Committee report (2008), indicating that Scheduled Castes do not constitute a homogenous class in relation to their social, educational, and economic backwardness in the country. Individual social groups inherit most traditional occupations by the incident of birth in the list of Scheduled Caste. (d) Learned counsel further drew our attention to Justice Lokur Committee Report (1965). It was pointed out that the smaller and more backward communities have tended to get lost in the democratic process, though most deserving of special aid. It was suggested in the report that in the matters of planning and development, the distribution of benefits needs to be focused on the more backward and smaller groups on a selective basis. In E.V. Chinnaiah, the scope of Article 341 was not correctly appreciated about the power of the State concerning the allocation of percentage of reservation amongst the caste based upon rational differentia was ignored.

13Copy pinpoint13. Shri Sanjay R. Hegde, learned senior counsel, while supporting E.V. Chinnaiah, argued that: (a) The Parliament alone has the power to exclude castes listed in the Schedule. He has attracted our attention to Dr. Ambedkar’s speech in the Constituent Assembly regarding the purpose of Articles 341 and

342. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the schedule so published by the President. Considering the binding precedent doctrine, the decision in E.V. Chinnaiah is not required to be revisited wherein a possible view has been taken. The judgment concerning the construction of statutes ought not to be overruled except in exceptional cases. The unforeseeable consequences would follow if the judgment is overruled. It requires to be revisited if it causesgreat uncertainty, or it relates to some broad issue or principle, or the same is unjust or outmoded, not otherwise. G (b) In Indra Sawhney, the sub-classification was limited to socially and educationally backward classes. It was observed that none of its observations would apply to Scheduled Castes and Scheduled Tribes. The Scheduled Castes and Scheduled Tribes are backward for the provisions of Article 16(4). The test or requirement of social and H

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A educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes. The decision in Indra Sawhney was understood in the correct perspective in E.V. Chinnaiah. (c) In N.M. Thomas, it was held that Scheduled Castes and Scheduled Tribes are backward classes. No sub-classification can be made. The exclusion from the list is prerogative of the Parliament. The object of Article 341(1) is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. In the Presidential Order, even the court cannot make any alteration. No enquiry is permissible to determine whether or not some particular community falls within the list or outside it as laid down in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4. (d) The legal fiction created under Article 341 is to be given full effect. The provisions of Section 4(5) of the Punjab Act cannot be said to be constitutionally valid. The Governoris empoweredonly to make recommendations under Article 341 for alteration in the list. No further classification can be made once Scheduled Castes, and Scheduled Tribes are covered under Article 16(4). (e) There is a difference between Scheduled Castes and Other Backward Classes. The Scheduled Castes are untouchables as held in E Jarnail Singh. The Hindus are divided into two classes – the touchables and the untouchables. The term “depressed classes” was replaced by “Scheduled Castes” under the Government of India Act, 1935. The special treatment is given to the Scheduled Castes due to untouchability with which they suffer. It is not open to the Parliamentor Legislature of States F to make classification inter se Scheduled Castes/Scheduled Tribes once they are included in the Schedule. The Parliament is empowered to include or exclude any caste from the Presidential List. Article 341(1) provides additional protection to the members of the Scheduled Castes. The powers under Article 16(4) cannot be exercised de-hors Article 341.

14Copy pinpoint14. Shri Tushar Bakshi, learned counsel argued that sub- classification is not permissible in the caste grouped in one entry of the list. It is not permissible to leave one caste grouped within the list. The power has been exercised maliciously.

15Copy pinpoint15. Shri A. Subba Rao, learned counsel, appearing on behalf of the respondents argued that the Constitution (One Hundred and Second H

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 877 [ARUN MISHRA, J.]

Amendment) Act, 2018 came into effect on 11.8.2018. Article 338B A was inserted constituting National Commission for Backward Classes. The real question for consideration is the interpretation of Articles 14, 15, 16, 338, 338A, 338B, 341, 342, 342A, 366(24) and 366(26C). The Parliament alone has the power to deal with Scheduled Castes once the President notifies the Scheduled Castes list. He relied upon Bir Singh to submit that E.V. Chinnaiah has been correctly decided. The basic question for determination is of federalism. The powers conferred on the Parliament to amend the list cannot be whittled down and diluted by interpretation of the constitutional provisions. The reference to a larger Bench is not at all warranted.

16Copy pinpoint16. Dr. K.S. Chauhan, learned counsel argued that law has been settled in E.V. Chinnaiah. The State Government has no power to include or exclude the castes in the List. The Constitution does not empower the Union or the State to categorise or sub-categorise the castes enumerated in the List. Any sub-classification may tantamount to varying the List under Article 341(1). The view taken in Indra Sawhney is that castes enumerated are not castes, these are classes. Learned counsel has pointed out the distinction between class and caste. In N.M. Thomas, it was laid down that Scheduled Castes are not castes, they are class. Hence, he argued that they should not be further classified. The principle settled in the decision of N.M. Thomas has been disregarded in the decision of M. Nagaraj. The majority in Indra Sawhney held that the provisions of Article 16(4) are classification of Article 16(1) of the Constitution, and the classification is permissible. The minority opinion in Indra Sawhney has been applied in M. Nagaraj, and the same is contrary to the law settled by the majority in Indra Sawhney and R.K. Sabharwal & Ors. v. State of Punjab & Ors., F (1995) 2 SCC 745. A reference was made regarding the correctness of M. Nagaraj. The Constitution Bench in Jarnail Singh settled the principle based on Indra Sawhney. Still, a new principle of social backwardness and creamy layer has been developed, and the constitutional principles have been clarified and settled by modifying the G legal interpretation of M. Nagaraj. The correctness of the decision in M. Nagaraj was also doubted in State of Tripura & Ors. v. Jayanta Chakraborty & Ors., (2018) 1 SCC 146. The clarification by the Constitution Bench in Jarnail Singh, remained very short-lived only upto in B.K. Pavitra & Ors. v. Union of India & Ors., (2019) 16 SCC

129. M. Nagaraj ought to have been referred to a larger Bench. H

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17Copy pinpoint17. Shri Robin Khokhar, learned counsel argued that based on the Tamil Nadu Act No.4 of 2009, the Government of Tamil Nadu included 7 castes out of 76 castesin the list of Scheduled Caste Aruthathiyar, the power of classification could not have been exercised. The same is violative to the basic feature of the Constitution and Article 341. Legislating sub- classification is constitutionally impermissible. B Discussion:

18Copy pinpoint18. In E.V. Chinnaiah,it was held that Scheduled Castes form homogenous classes and there cannot be any sub-division and with respect to Indra Sawhney, following discussion was made: C “38. On behalf of the respondents, it was pointed out that in Indra Sawhney case, 1992 Suppl. (3) SCC 217, the Court had permitted subclassification of Other Backward Communities, as backward and more backward based on their comparative underdevelopment, therefore, the similar classification amongst the class enumerated D in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sawhney case, 1992 Suppl. (3) SCC 217, for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that subdivision of E Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.

41. The conglomeration of castes given in the Presidential Order, F in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be subdivided or subclassified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the list. Such subclassification would be violative of Article 14 of the Constitution. It may be true, as has

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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 B 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 C Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated.” The following opinion expressed by S.B. Sinha, J. in E.V. Chinnaiah has been referred to: “113. The power of the State Legislature to decide as regards D 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 E 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.” F

19Copy pinpoint19. One of the questions is whether E.V. Chinnaiah correctly appreciated the majority decision in Indra Sawhney. It was argued that in Indra Sawhney, the majority of the Judges held that amongst the backward, there may be some more backward, and if the State chooses to make such classification, it would be permissible in law. G (a) Following is the opinion of B.P. Jeevan Reddy, J. (for himself and other three Judges) in Indra Sawhney: “Question No. 5: Whether Backward Classes can be further divided into backward and more backward categories? H

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A 801. In Balaji, 1963 Supp 1 SCR 439, it was held: “that the sub-classification made by the order between Backward Classes and More Backward Classes does not appear to be justified under Article 15(4). Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes, what the impugned order, in substance, purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced, compared to the most advanced classes in the State, and that, in our opinion, is not the scope of Article 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Article 15(4).” (SCR p. 465-66) The correctness of this holding is questioned before us by the counsel for the respondents. It is submitted that in principle there is no justification for the said holding. It is submitted that even among backward classes there are some who are more backward than the others and that the backwardness is not and cannot be uniform throughout the country nor even within a State. In support of this contention, the respondents rely upon the observations of Chinnappa Reddy, J in Vasanth Kumar, 1985 Supp SCC 714, where the learned Judge said: (SCC p. 750, para 55)

F “[W]e do not see why on principle there cannot be a classification into Backward Classes and More Backward Classes, if both classes are not merely a little behind, but far behind the most advanced classes. In fact such a classification would be necessary to help the More Backward Classes; otherwise those of the Backward Classes who might be a little more advanced G than the More Backward Classes might walk away with all the seats.”

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. H We are concerned with the question if a State makes such a

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categorisation, whether it would be invalid? We think not. Let us A 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 B 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 F “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 categorisation was justified in Balram, (1972) 1 SCC 660. This is merely to show G 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. Article16(4) recognises only one class viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled H

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A 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 B 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 C saying that if a State chooses to do it, it is not impermissible in law. PART VII

859. We may summarise our answers to the various questions dealt with and answered hereinabove: D (1) ** (2) ** (3) (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the E purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Article 16(4). (Paras 746 to 779) F *** *** *** (d) ‘Creamy layer’ can be, and must be excluded. (Paras 790- 793) (5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. (Paras G 801 to 803)” (emphasis supplied) (b) The opinion expressed by P.B. Sawant, J. (for himself)is extracted hereunder: H

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“523. As regards the second part of the question, in Balaji, 1963 A Supp 1 SCR 439, it was observed that the backward classes cannot be further classified in backward and more backward classes. These observations, although made in the context of Article 15(4) which fell for consideration there, will no doubt be equally applicable to Article 16(4). The observations were made while dealing with B 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 C 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 D ‘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 E 15(4). The result of the method adopted by the impugned order was that nearly 90% of the population of the State was treated as Backward and that, observed the Court, illustrated how the order in fact divided the population of the State into most advanced and the rest, putting the latter into two categories of the Backward F 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 G 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. H

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A 524. It may be pointed out that in Vasanth Kumar, 1985 Supp SCC 714, Chinnappa Reddy, J after referring to the aforesaid view in Balaji, 1963 Supp 1 SCR 439observed that the propriety of such test may be open to question on the facts of each case but there was no reason why on principle there cannot be a classification into Backwards and More Backwards if both classes are not merely a little behind, but far far behind the most advanced classes. He further observed that in fact, such a classification would be necessary to help the more backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes, would walk away with all the seats just as if reservation was confined to the more backward classes and no reservation was made to the slightly more advanced of the backward classes, the backward classes would gain no seats since the advanced classes would walk away with all the seats available for the general category. With respect, this is the correct view of the matter. Whether the backward classes can be classified into Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution. To give an instance, the Mandal Commission has, on the basis of social, educational and economic indicators evolved 22 points by giving different values to each of the three factors, viz., social, educational and economic. F 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 G 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 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, H

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 885 [ARUN MISHRA, J.]

and Bedaru, Ramoshi which were formerly stigmatised as criminal A tribes whereas in category D fall such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special provisions to the former, the latter taking away the entire benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without any seat or post. In such circumstances, the sub-classification of the backward classes into backward and more or most backward is not only desirable but essential. However, for each of them a special quota has to be prescribed as is done in the Karnataka Government order. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved quota nor in the general category for want of capacity to compete with the forward. D

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.

552. The answers to the questions may now be summarised as E follows: Question 1:*** Question 2:*** Question 3:*** F Question 4:*** Question 5: Article 16(4) permits classification of backward classes into backward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social G 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 H

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A 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. B 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).” C (emphasis supplied) (c) In Indra Sawhney, the question involved was of Mandal Commission regarding other backward classes. The expression used in Article 16(4) is ‘any backward class of citizens’. Article 16(4) is wider D in its ambit than Article 15(4). The expression ‘class’ is wider than ‘caste’, and the expression ‘backward class’ stipulated under Article 16(4) takes into its ambit Scheduled Castes and Scheduled Tribes and all other backward classes including the socially and educationally backward class. Following discussion was made in the opinion expressed by B.P. Jeevan Reddy, J. (for himself and other three Judges): E “774.In our opinion too, the words “class of citizens — not adequately represented in the services under the State” would have been a vague and uncertain description. By adding the word “backward” and by the speeches of Dr Ambedkar and Shri K.M. Munshi, it was made clear that the “class of citizens … not F adequately represented in the services under the State” meant only those classes of citizens who were not so represented on account of their social backwardness.

777. ….The word “community” is clearly wider than “caste” — and “backward communities” meant not only the castes — G wherever they may be found —but also other groups, classes and sections among the populace.

778. Indeed, there are very good reasons why the Constitution could not have used the expression “castes” or “caste” in Article 16(4) and why the word “class” was the natural choice in the H context. The Constitution was meant for the entire country and

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 887 [ARUN MISHRA, J.]

for all time to come. Non-Hindu religions like Islam, Christianity A and Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last several centuries. It must surely have been envisaged that in future many classes may spring up answering the test of backwardness, requiring the protection of Article 16(4). It, therefore, follows that from the use of the word “class” in Article 16(4), it cannot be concluded either that “class” is antithetical to “caste” or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word “class” in Article 16(4), in our opinion, is used in the sense of social class — and not in the sense it is understood in Marxist jargon. 778-A. In Rajendran, (1968) 2 SCR 786, 790, Triloki Nath(II),(1969) 1 SCR 103, 105, Balram, (1972) 1 SCC 660 and Peeriakaruppan, (1971) 1 SCC 38, 48, this reality was recognised and given effect to, notwithstanding the fact that they had to respect and operate within the rather qualified formulation of Balaji, 1963 Supp 1 SCR 439. 778-B. For the sake of completeness, we may refer to a few passages, from Vasanth Kumar, 1985 Supp SCC 714, to show what does the concept of ‘caste’ signify? D.A. Desai, J defines and describes “caste” in the following terms: (SCC pp. 730-31, para 22) “What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system …. G There are four essential features of the caste-system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriage; and (4) hereditary occupation. Most of the castes are endogamous groups. Inter- marriage between two groups is impermissible. But ‘Pratilom’ H marriages are not wholly known.”

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A Venkataramiah, J also defined “caste” in practically the same terms. He said: (SCC p. 786, para 110) “A caste is an association of families which practices the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste …. A caste is based on various factors, sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to each caste …. Even the choice of occupation of members of caste was predetermined in many cases, and the members of a particular castes were prohibited from engaging themselves in other types of callings, professions or occupations. Certain occupations were considered to be degrading or impure.”

779. The above material makes it amply clear that a caste is nothing but a social class — a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. ….. But we are concerned here with a limited aspect of equality emphasised in Article 16(4) — equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it. (b) Identification of “backward class of citizens”

F 780. Now, we may turn to the identification of “backward class of citizens”. How do you go about it? Where do you begin? Is the method to vary from State to State, region to region and from rural to urban? What do you do in the case of religions where caste-system is not prevailing? What about other classes, groups and communities which do not wear the label of caste? Are the people living adjacent to cease-fire line (in Jammu and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward classes for the purpose of Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer them. But our answers will necessarily deal with generalities of the situation and not with problems or issues of a peripheral nature

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 889 [ARUN MISHRA, J.]

which are peculiar to a particular State, district or region. Each A and every situation cannot be visualised and answered. That must be left to the appropriate authorities appointed to identify. We can lay down only general guidelines.

781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled B Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes. c) Whether the backwardness in Article 16(4) should be both C social and educational?

786. The other aspect to be considered is whether the backwardness contemplated in Article 16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji, D 1963 Supp 1 SCR 439, it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words “socially and educationally” preceding the words “backward class of citizens” the same meaning came to be attached to them. Indeed, it was stated in Janki Prasad Parimoo, (1973) 1 SCC 420 (Palekar, J speaking for the Constitution Bench) that: “Article 15(4) speaks about ‘socially and educationally backward classes of citizens’ while Article 16(4) speaks only of ‘any backward class citizens’. However, it is now settled that the expression ‘backward class of citizens’ in Article 16(4) means the same thing as the expression ‘any socially and educationally backward class of citizens’ in Article 15(4). In G order to qualify for being called a ‘backward class citizen’ he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4).” H

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A 787. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words “socially and educationally” as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained unamended) does employ the expression ‘socially and educationally backward classes’ and yet that expression does not find place in Article 16(4). The reason is obvious: “backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions. Thus, SEBCs referred to in Article 340 is only of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services — which may mean, at any level whatsoever — insisting upon educational backwardness may not be quite appropriate.

788. Further, if one keeps in mind the context in which Article G 16(4) was enacted it would be clear that the accent was upon social backwardness. It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty — which in turn breeds and perpetuates the social and educational backwardness. They H feed upon each other constituting a vicious circle. It is a well-

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 891 [ARUN MISHRA, J.]

known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes. In this sense Dr Rajeev Dhavan may be right when he says that the object of Article 16(4) was “empowerment” of the backward classes. The idea was to enable them to share the state power. We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It C would not be correct to say that the backwardness under Article 16(4) should be both social and educational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes of the clause; no one has suggested that they should satisfy the test of social and educational backwardness …..” D (emphasis supplied) (d)(i) The question of preferential treatment given by the State was held to be facet of equality under Article 14 as giving preference to more backward amongst the backwards furthers the aim and object of Article 16(4). Six out of nine Judges in Indra Sawhney held that Article E 16(4) is not an exception to Article 16(1). The opinion expressed by B.P. Jeevan Reddy, J. (for himself and other three Judges) is extracted hereunder: “733.At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under clause (1) of Article 16, appointments and/or posts can be reserved in favour of a class. But an argument is now being advanced — evidently inspired by the opinion of Powell, J in Bakke, 57 L Ed 2d 750, that Article 16(1) permits only preferences but not reservations. The reasoning in support of the said argument is the same as was put forward by Powell, J. This argument, in our opinion, disregards the fact that that is not the unanimous view of the court in Bakke, 57 L Ed 2d 750. Four Judges including Brennan, J took the view that such a reservation H

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741. In Balaji, 1963 Supp 1 SCR 439 it was held — “there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2)”. It was observed that Article 15(4) E was inserted by the First Amendment in the light of the decision in Champakam, 1951 SCR 525 with a view to remove the defect pointed out by this court namely, the absence of a provision in Article 15 corresponding to clause (4) of Article 16. Following Balaji, 1963 Supp 1 SCR 439, it was held by another Constitution F Bench (by majority) in Devadasan, (1964) 4 SCR 680 — “further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to clause (1)”. Subba Rao, J, however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself. Be that as it may, G since the decision in Devadasan, (1964) 4 SCR 680, it was assumed by this Court that Article 16(4) is an exception to Article 16(1). This view, however, received a severe setback from the majority decision in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310. Though the minority (H.R. Khanna and A.C. Gupta, H JJ) stuck to the view that Article 16(4) is an exception, the majority

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(Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article A 16(4) is not an exception to Article 16(1) but that it was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J took a slightly different view which it is not necessary to mention here.) The said four learned Judges — whose views have been referred to in para 713 — held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas, (1976) 2 SCC 310, is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). The speech of Dr Ambedkar during the debate on draft Article 10(3) [corresponding to Article 16(4)] in the E Constituent Assembly — referred to in para 693 — shows that a substantial number of members of the Constituent Assembly insisted upon a “provision (being) made for the entry of certain communities which have so far been outside the administration”, and that draft clause (3) was put in in recognition and acceptance F of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms. G

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A an exception to clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification inherent in clause (1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is equally an exception to clause (2). Question B then arises, in what respect if clause (4) an exception to clause (2), if ‘class’ does not means ‘caste’. Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does not permit classification and therefore clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners C has no merit. Question 2(c): Whether Article 16(4) is exhaustive of the very concept of reservations?

D 744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, — and not for all and sundry reasons — that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a H correspondingly whittled down and that is not a reasonable thing to do.

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Whether clause (1) of Article 16 does not permit any reservations?

745. For the reasons given in the preceding paragraphs, we must reject the argument that clause (1) of Article 16 permits only extending of preference, concessions and exemptions, but does not permit reservation of appointments/posts. As pointed out in para 733 the argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J in Bakke, 57 L Ed 2d 750. But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision should be made in favour of a particular class is C a matter for the State to decide, having regard to the facts and circumstances of a given situation — subject, of course, to the observations in the preceding paragraph.” (emphasis supplied) D (ii) The opinion expressed by P.B. Sawant, J. (for himself) is extracted hereunder: “428. With the majority decision of this Court in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, having confirmed the minority opinion of Subba Rao, J in T. Devadasan v. Union of India, E (1964) 4 SCR 680, the settled judicial view is that clause (4) of Article 16 is not an exception to clause (1) thereof, but is merely an emphatic way of stating what is implicit in clause (1).

429. Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from F the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. ….. G 430.If, however, clause (4) is treated as an exception to clause (1), an important but unintended consequence may follow. There would be no other classification permissible under clause (1), and clause (4) would be deemed to exhaust all the exceptions that can be made to clause (1). It would then not be open to make provision H

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A for reservation in services in favour of say, physically handicapped, army personnel and freedom fighters and their dependents, project affected persons, etc. The classification made in favour of persons belonging to these categories is not hit by clause (2). Apart from the fact that they cut across all classes, the reservations in their favour are made on considerations other than that of backwardness within the meaning of clause (4). Some of them may belong to the backward classes while some may belong to forward classes or classes which have an adequate representation in the services. They are, however, more disadvantaged in their own class whether backward or forward. Hence, even on this ground it will have to be held that Article 16(4) carves out from various classes for whom reservation can be made, a specific class, viz., the backward class of citizens, for emphasis and to put things beyond doubt.

431. For these very reasons, it will also have to be held that so far as “backward classes” are concerned, the reservations for them can only be made under clause (4) since they have been taken out from the classes for which reservation can be made under Article 16(1). Hence, Article 16(4) is exhaustive of all the reservations that can be made for the backward classes as such, but is not exhaustive of reservations that can be made for classes other than backward classes under Article 16(1). So also, no reservation can be made under Article 16(4) for classes other than “backward classes” implicit in that article. They have to look for their reservations, to Article 16(1).

432. It may be added here that reservations can take various forms whether they are made for backward or other classes. F They may consist of preferences, concessions, exemptions, extra facilities etc. or of an exclusive quota in appointments as in the present case. When measures other than an exclusive quota for appointments are adopted, they form part of the reservation measures or are ancillary to or necessary for availing of the reservations. Whatever the form of reservation, the backward classes have to look for them to Article 16(4) and the other classes to Article 16(1).” (emphasis supplied) (iii) The opinion of S. Ratnavel Pandian, J. (for himself) is extracted hereunder:

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“168. In my view, clause (4) of Article 16 is not an exception to A Article 16(1) and (2) but it is an enabling provision and permissive in character overriding Article 16(1) and (2); that it is a source of reservation for appointments or posts in the Services so far as the backward class of citizens is concerned and that under clause (1) of Article 16 reservation for appointments or posts can be made to other sections of the society such as physically handicapped etc.

169. There is complete unanimity of judicial opinion of this Court that under Article 16(4) the State can make adequate provisions for reservations of appointments or posts in favour of any backward class of citizens, if in the opinion of the State such ‘backward class’ is not adequately represented in the State. In fact in B. Venkataramana v. State of Madras, AIR 1951 SC 229, a seven- Judge Bench of this Court held that “[r]eservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional”. Not a single decision of this Court D has cast slightest shadow of doubt on the constitutional validity of reservation. Therefore, in view of the above position of law, I am not inclined to embark upon an elaborate discussion on this question any further.”

20Copy pinpoint20. On behalf of the State of Punjab, it was argued that preferential treatment given by the State to certain Scheduled Castes and Scheduled Tribes does not violate Article 14 but brings about proportional equality. The classification made based on intelligible differentia is inter-se backwardness and share in population vis-à-vis proportion of representation in Government services. The differentia bears a reasonable nexus with the object sought to be achieved. Those who are unequal class of Scheduled Caste and Scheduled Tribe can be given the benefit of reservation to ensure that benefit reaches to them as guaranteed under Article 14. For this purpose, reliance has been placed on the following decisions: (i) In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical G College & Ors., (1990) 3 SCC 130, the Court held: “8. Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(4), however, enjoins that nothing in that article or in clause (2) of Article 29 of the Constitution shall prevent the State from making any special H

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A provision of the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Therefore, reservation in favour of Scheduled Tribes or Scheduled Castes for the purpose of advancement of socially or educationally backward citizens to make them equal with other segments of community in educational or job facilities is the mandate of the Constitution. Equality is the dictate of our Constitution. Article 14 ensures equality in its fullness to all our citizens. State is enjoined not to deny to any persons equality before law and equal protection of the law within the territory of India. Where it is necessary, however, for the purpose of bringing about real equality of opportunity between those who are unequals, certain reservations are necessary and these should be ensured. Equality under the Constitution is a dynamic concept which must cover every process of equalisation. Equality must become a living reality for the large masses of the people. Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. Existence of equality of opportunity depends not merely on the absence of disabilities but on presence of abilities. It is not simply a matter of legal equality. De jure equality must ultimately find its raison d’etre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. It is necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference and reservation to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. In this connection, reference may be made to the observations of this Court in Pradeep Jain v. Union of India, (1984) 3 SCC 654.” H (emphasis supplied)

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 899 [ARUN MISHRA, J.]

21Copy pinpoint21. The object-oriented approach has to be adopted as observed in S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001 SC 2707, H