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

p. 900 Copy page pinpoint

A T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481, Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Ors., AIR 2005 SC 800. In M. Nagaraj, the following observations were made: “122. We reiterate that the ceiling limit of 50%, the concept of B 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.” In Re. Application of Creamy Layer Concept to the C Scheduled Castes:

22Copy pinpoint22. (a) In Indra Sawhney, within those identified as backward classes, exclusion had been permitted to those who are socially and educationally advanced. B.P. Jeevan Reddy, J. (for himself and other three Judges) observed thus: D “792. …..While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and E has no relevance in the case of Scheduled Tribes and Scheduled Castes).

795. We see no reason to qualify or restrict the meaning of the expression “backward class of citizens” by saying that it means those other backward classes who are situated similarly to F Scheduled Castes and/or Scheduled Tribes. As pointed out in para 786, the relevant language employed in both the clauses is different. Article 16(4) does not expressly refer to Scheduled Castes or Scheduled Tribes; if so, there is no reason why we should treat their backwardness as the standard backwardness for all those claiming its protection. As a matter of fact, neither the several G castes/groups/tribes within the Scheduled Castes and Scheduled Tribes are similarly situated nor are the Scheduled Castes and Scheduled Tribes similarly situated. If any group or class is situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to be no basis either in fact or in principle for holding that other classes/groups must be situated H

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 901 [ARUN MISHRA, J.]

similarly to them for qualifying as backward classes. There is no A warrant to import any such a priori notions into the concept of Other Backward Classes. At the same time, we think it appropriate to clarify that backwardness, being a relative term, must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be. B More than this, it is difficult to say. How difficult is the process of ascertainment of backwardness would be known if one peruses Chapters III and XI of Volume I of the Mandal Commission Report along with Appendixes XII and XXI in Volume II. It must be left to the Commission/Authority appointed to identify the backward classes to evolve a proper and relevant criteria and test the several groups, castes, classes and sections of people against that criteria. If, in any case, a particular caste or class is wrongly designated or not designated as a backward class, it can always be questioned before a court of law as well. We may add that relevancy of the criteria evolved by Mandal Commission (Chapter XI) has not been questioned by any of the counsel before us. Actual identification is a different matter, which we shall deal with elsewhere. 796.-797. We may now summarise our discussion under Question No. 3. (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among 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 H

p. 902 Copy page pinpoint

A 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 B 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 C 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens”. The accent in Article 16(4) appears to be on social backwardness. D Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).” (emphasis supplied) E

23Copy pinpoint23. In Jarnail Singh, it was held that the application of the creamy layer concept to Articles 341 and 342 does not in any way tinker with the Presidential List. Following discussion was made: “26. The whole object of reservation is to see that Backward F 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

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 903 [ARUN MISHRA, J.]

creamy layer, who are excluded from the benefit of reservation. A 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. B

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 C 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 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, (2008) 6 SCC 1 that the creamy layer principle is merely a principle of identification and not a principle of equality.

28. Therefore, when Nagaraj, (2006) 8 SCC 212, applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(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, (2006) 8 H

p. 904 Copy page pinpoint

A SCC 212 to a seven-Judge Bench. We may also add at this juncture that Nagaraj, (2006) 8 SCC 212 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: B 28.1.Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454(two-Judge Bench) (see paras 17 and 18). 28.2.Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467(two-Judge Bench) (see paras 10, 50, and 67). 28.3.U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC C 1, (two-Judge Bench) [see paras 61, 81(ix), and 86]. 28.4.S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292, (two-Judge Bench) (see paras 18, 19, and 36). 28.5.Central Bank of India v. SC/ST Employees Welfare Assn., D (2015) 12 SCC 308 (two-Judge Bench) (see paras 9 and 26). 28.6.Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 (two-Judge Bench) (see paras 2 and 45). 28.7.B.K. Pavitra v. Union of India, (2017) 4 SCC 620 (two- Judge Bench) (see paras 17 to 22).” E (emphasis supplied)

24Copy pinpoint24. Reliance has been placed upon Ashoka Kumar Thakur v. Union of India and Ors., (2008) 6 SCC 1, to hammer home the point that the decision in Indra Sawhney (supra) was limited to other backward classes and not to Scheduled Castes. It was observed: F “395.In Sawhney (I), 1992 Supp (3) SCC 217, the entire discussion was confined only to Other Backward Classes. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the G Scheduled Castes and Scheduled Tribes.

633. In Indra Sawhney (1), 1992 Supp (3) SCC 217, creamy layer exclusion was only in regard to OBC. Reddy, J. speaking for the majority at SCC p. 725, para 792, stated that “[t]his discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 905 [ARUN MISHRA, J.]

Castes”. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes.” (emphasis supplied) In Ashoka Kumar (supra), no opinion was expressed concerning the creamy layer concept to Scheduled Castes and Scheduled Tribes. However, now Jarnail Singh (supra) is crystal clear in that regard and lays down that it can be applied to Scheduled Castes and Scheduled Tribes, and that would not amount to tinkering with lists under Articles 341 and 342. The question involved in the present matter is of classification and thereby preferential treatment without depriving any caste benefit of reservation.

25Copy pinpoint25. It was argued that E.V. Chinnaiah is contrary to other binding decisions in K.C. Vasanth Kumar and N.M. Thomas. (a) In K.C. Vasanth Kumar decision in M. R. Balaji was distinguished. It was held that classification between backward and more backward is necessary to help more backward classes. The sub- classification was held to be permissible to help those classes who are definitely far behind the advanced classes, but ahead of the very backward classes. Following opinion was expressed: E “55. It was also observed in Balaji, AIR 1963 SC 649, that the sub-classification made by the reservation order between backward classes and more backward classes did not appear to be justified under Article 15(4) as it appeared to be a measure devised to benefit all the classes of citizens who were less advanced when compared with the most advanced classes in the State, and that was not the scope of Article 15(4). A result of the sub-classification was that nearly 90 per cent of the population of the State was treated as backward. The propriety of such a course may be open to question on the facts of each case, but we do not see why on principle there cannot be a classification into backward classes and more backward classes, if both classes are not merely a little behind, but far far behind the most advanced classes. In fact such a classification would be necessary to help the more backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes might walk H

p. 906 Copy page pinpoint

A away with all the seats, just as, if reservation was confined to the more backward classes and no reservation was made to the slightly more advanced backward classes, the most advanced classes would walk away with all the seats available for the general category leaving none for the backward classes. All that we can say is that sub-classification may be permissible if there are classes of people who are definitely far behind the advanced classes but ahead of the very backward classes.” (emphasis supplied) (b) In N.M. Thomas, it was observed that there could be no objection to further classification within a class. It was held that men are born different, and some sort of differential treatment is required to achieve proportional equality. The Court opined thus: “82.The word “caste” in Article 16(2) does not include “scheduled caste”. The definition of “Scheduled Castes” in Article 366(24) D 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 E 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). F 83.A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. In other words, the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must have rational relation to the object sought to be achieved by the rule or even the rules in question. It G 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

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 907 [ARUN MISHRA, J.]

about inequality, it is promotive of equality if its object is to bring those who share a common characteristic under a class for differential treatment for sufficient and justifiable reasons. In this view, I have no doubt that the principle laid down in All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway, (1960) 2 SCR 311; S.G. B Jaisinghani v. Union of India and State of J&K. v. Triloki Nath Khosa, (1974) 1 SCR 771, has no application here. *** *** ***

167. A combined reading of Article 46 and clauses (24) and (25) of Article 366 clearly shows that the members of the scheduled castes and the scheduled tribes must be presumed to be backward classes of citizens, particularly when the Constitution gives the example of the scheduled castes and the scheduled tribes as being the weaker sections of the society.

169. Thus in view of these provisions the members of the scheduled castes and the scheduled tribes have been given a special status in the Constitution and they constitute a class by themselves. That being the position it follows that they do not fall within the purview of Article 16(2) of the Constitution which prohibits discrimination between the members of the same caste. If, therefore, the members of the scheduled castes and the scheduled tribes are not castes, then it is open to the State to make reasonable classification in order to advance or lift these classes so that they may be able to be properly represented in the services under the State. This can undoubtedly be done under Article 16(1) of the Constitution.” F (emphasis supplied)

26Copy pinpoint26. It was argued that the class of citizens cannot be treated to be socially and educationally backward till perpetuity those who have come up must be excluded like the creamy layer. The question arises for exclusion by courts of such class. The power of the court was upheld in G Jarnail Singh. To take home the submission, reliance has been placed on Jagdish Negi, President, Uttarakhand Jan Morcha, in which it was held as under: “9. It is, therefore, obvious that residents of hills and Uttarakhand areas were treated as socially and educationally backward classes H

p. 908 Copy page pinpoint

A of citizens entitled to benefit under Articles 15(1), 15(4) and 29(2) of the Constitution in the year 1974 when this Court decided that case. But simply on this basis it cannot be urged that this class of citizens could be condemned as socially and educationally backward class of citizens till eternity, however much they may like to be stigmatized as educationally and socially backward class B of citizens. This class is always required to be judged in the light of the existing fact situation at a given point of time. There cannot be a class of citizens which can be treated perpetually to be a socially and educationally backward class of citizens. Every citizen has the right to develop socially and educationally. …….

C 14. It is, however, not possible to agree with the contention of learned Senior Counsel for the petitioners that such reservation should continue without any limitation or there cannot be periodical review about the said reservation policy. ….. Consequently the question whether a given category of citizens continues to be socially and educationally backward class of citizens at a given point of time or not has to be left to the State concerned for its objective decision from time to time. The State cannot be bound in perpetuity to treat such classes of citizens for all times as socially and educationally backward classes of citizens. The principle of “once a mortgage always a mortgage” cannot be pressed into service for submitting that once a backward class of citizens, always such a backward class. In other words, it is open to the State to review the situation from time to time and to decide whether a given class of citizens that has earned the benefit of 27 per cent reservation as socially and educationally backward class of citizens has continued to form a part of that category or has ceased to fall in that category. Thereby it cannot be said that the first respondent is adopting a policy which is contrary to the constitutional scheme of reservation. Within the four corners of Article 15(4) or Article 16(4) such an exercise cannot be said to be unauthorised. Such an exercise has been upheld by the G Constitution Bench of this Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.” (emphasis supplied) In Re. Effect of insertion of Article 342A:

27Copy pinpoint27. Article 341 is extracted hereunder:

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 909 [ARUN MISHRA, J.]

“341. Scheduled Castes.—(1) The President may with respect A to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that B 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 C notification.” Articles 342 and 342A deal with Scheduled Tribes and socially and educationally backward classes respectively. They are extracted hereunder: D “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 E State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 342A. Socially and educationally backward classes.— (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. H

p. 910 Copy page pinpoint

A (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.” B It is provided in Article 341(1) that the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes in relation to a State or Union territory. As per Article 341(2), the Parliament has the power to include or exclude from the list of Scheduled Castes. Article 366 defines ‘Scheduled Castes’, ‘Scheduled Tribes’ and ‘Socially and Educationally Backward Classes’, thus: C “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— D (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 E communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution; (26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A F for the purposes of this Constitution;” Article 342A has been inserted by the Constitution (One Hundred and Second Amendment) Act, 2018, w.e.f. 14.8.2018. In Indra Sawhney, the question of reservation of socially and educationally backward classes was involved. Article 342A’s provisions are pari materia to Articles 341and 342 dealing with Scheduled Castes and Scheduled Tribes. Under G Article 342A the President is empowered to issue public notification with respect to socially, and educationally backward classes which shall for the Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory and the Parliament may by law has the power to include in or exclude from the Central list of socially and educationally backward class. The power of variation

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 911 [ARUN MISHRA, J.]

can be exercised only once. When we consider the definition of ‘socially and educationally backward classes’ as defined in Article 366(26C), it means such backward classes as are so deemed under Article 342A for the purposes of the Constitution. In order to be recognised, it is necessary that socially and educationally class to find a place in the notification issued under Article 342A(1). The provisions of Articles 341, 342, and B 342A are pari materia, and the reservation for socially and educationally backward classes was the subject matter under consideration in Indra Sawhney. Thus, the question arises how different opinions can be expressed with respect to Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes for the purposes of the classification. The provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. The authoritative pronouncement is required with respect to the effect of aforesaid provisions of the Constitution and whether sub- classification is permissible only with respect to the socially and educationally backward classes covered under Article 342A read with Article 366(26C) and not with respect to Scheduled Castes and Scheduled Tribes covered under similar provisions, i.e., under Articles 341 and 342 read with Article 366(24) and 366(25) respectively. The question of immense public importance arises in view of the insertion of Article 342A. When we consider Indra Sawhney, permitting such classification of socially and educationally backward class, and provisions of Articles 341, 342, and 342A are pari materia, the Court is required to have a fresh look on the decision rendered in E.V. Chinnaiah. In the spirit of constitutional provisions, the question is required to be re- examined authoritatively by this Court being of immense public importance. Thus, the case is required to be heard by a larger Bench than the one which decided E.V. Chinnaiah. Whether sub-classification amounts to exclusion under Article 341(2)?

28Copy pinpoint28. Whether sub-classification amounts to exclusion? What is provided under Articles 341(2), 342(2), and 342A(2) with respect to Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes in the Central list, the Parliament has the power concerning inclusion or exclusion. Once there is exclusion, there is no power to re-include. The Parliament has the power to include in or exclude H

p. 912 Copy page pinpoint

A from the Central list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.

29Copy pinpoint29. The question arising for consideration is whether sub- classification made or preferential treatment within the class of Scheduled Castes, Scheduled Tribes and socially and educationally backward classes can be said to be an exercise of inclusion or exclusion particularly when the other castes in the list of Scheduled Caste persons are not deprived of the benefit of reservation in totality. All the castes included in the list of Scheduled Caste are given the benefit of reservation as per representation in service, but only specific percentage fixed for preferential treatment to a caste/class which was not able to enjoy the benefit of reservation on account of their being more backward within the backward classes of Scheduled Castes. The preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of the castes in the list of Scheduled Caste under Article 341(2). Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor. Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating that there is inequality inter se various castes included within the list of E Scheduled Castes. They do not constitute homogenous class have been relied upon. Based on the report and to give adequate representation to those who continue to remain the most backward of the downtrodden class, the provisions containing a certain percentage of preferential treatment subject to availability without depriving others in the list were made.

30Copy pinpoint30. In the Speech made by Dr. Ambedkar in the Constituent Assembly regarding the enactment of Articles 341 and 342, he stated that the object is to eliminate any kind of political factor in the matter of the disturbance in the schedule so published by the President. The same has been referred to in Milind thus: “14. In the debates of Constituent Assembly (Official Report, Vol. 9) while moving to add new Articles 300-A and 300-B after Article 300 (corresponding to Articles 341 and 342 of the Constitution), Dr B.R. Ambedkar explained as follows: H

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 913 [ARUN MISHRA, J.]

“The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President in consultation with the Governor or ruler of a State should have the power to issue a general notification in the Gazette specifying all the castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purpose of these privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made 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.” D (emphasis supplied)

31Copy pinpoint31. The law is settled that once the President has issued a notification specifying the list included in the Scheduled under Article 341(1), the Parliament is competent to make the variation in the notification as provided under Article 341(2) from the following decisions: E (i) B. Basavalingappa v. D. Munichinnappa, (1965) 1 SCR 316, it was held that the power was given to the Parliament to modify the notification and any subsequent notification shall not vary same; hence, the making of notification by the President is final for all times except for modification by law as provided by clause (2). F (ii) In Bhaiya Lal v. Harikishan Singh (1965) 2 SCR 877, it was observed that before issuing a public notification under Article 341(1), an elaborate enquiry is required to be made. As a result, thereof social justice is sought to be done to the castes, races, or tribes. There can be specifications by reference to different areas in the State. Educational G and social backwardness may not be uniform or of the same intensity in the whole of the State. (iii) In Srish Kumar Choudhury v. State of Tripura & Ors., (1990) Supp. SCC 220, it was opined that the State Government may initiate appropriate proposals for modification in case the claim is genuine H and tenable.

p. 914 Copy page pinpoint

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 915 [ARUN MISHRA, J.]

having regard to the economic and educational backwardness from which they suffer. (x) In Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458, the question arose concerning migrants not listed in the Presidential notification. Whether they could claim the benefit of reservation? It was held that the subject of reservation, vis-à-vis inclusion of castes/tribes. The presence of Articles 338, 338-A, 341, 342 in the Constitution precludes that. The Central Government and the State Government may lay down a policy decision regarding reservation having regard to Articles 15 and 16, but such a policy cannot violate other constitutional provisions. C

32Copy pinpoint32. For revisiting the decision of E.V. Chinnaiah and doctrine of stare decisis, several decisions have been cited at the Bar. They are as follows: (a) In Sambhu Nath Sarkar v. State of West Bengal & Ors., (1973) 1 SCC 856, it was held that the Court would review its earlier D decisions if it is satisfied with its error or of the baneful effect such a decision would have on the general interest of the public or if it is inconsistent with the legal philosophy of Constitution, as such perpetuation would be harmful to public interests. (b) In State of Washington v. Dawson & Co., 264 U.S. 219, E observed that a judgment seriously affects the lives of men, women, and children, and the general welfare, the stare decisis is not a universal, inexorable command. (c) In David Burnet v. Colorado Oil & Gas Company, 285 U.S. 393, it was observed that in cases involving the Federal Constitution, F where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognising that the process of trial and error, fruitful in the physical sciences, is also appropriate in the judicial function. G (d) In Graves v. People of the State of New York, 306 U.S. 466, it was observed that the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it. (e) In Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304; 4 L. Ed. 97, 102, it was held that it could not be foreseen what new changes H

p. 916 Copy page pinpoint

A and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. (f) In Bengal Immunity Company Limited v. State of Bihar & B Ors., (1955) 2 SCR 603, this Court observed that if the Court is convinced of the baneful effect on the general interests of the public, the decision has to be revisited, if its effect is far-reaching as it affects the rights of all consuming public. (g) In M. Nagaraj, it was laid down that a right becomes a C fundamental right because it has foundational value. A Constitution is to be given a generous and purposive construction. It would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. (h) In I.R. Coelho, it was held that the Court can also examine additional grounds in the constitutional matters of public interest.

33Copy pinpoint33. With respect to the value of binding precedent, Shri Sanjay Hegde, learned senior counsel, has relied upon the following decisions: (a) Keshav Mills Co. Ltd. v. Commissioner of Income Tax, (1965) 2 SCR 908, to lay down that unless there are compelling and substantial reasons, the court would be reluctant to entertain pleas for E the reconsideration and revision of its earlier decision. (b) In Union of India & Anr. v. Raghubir Singh (dead) by LRs. etc., (1989) 2 SCC 754, while laying down that the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. F

34Copy pinpoint34. It was rightly pointed out by Shri R. Venkataramani that no provision and indeed no word or expression of the Constitution exists in isolation; they are necessarily related to transforming and, in turn being transformed by other provisions, words and phrases in the Constitution as held in GVK. Industries Limited& Anr. v. Income Tax Officer & G Anr., (2011) 4 SCC 36. The observations made are extracted hereunder: “37. In interpreting any law, including the Constitution, the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. However, in light of the serious issues it would always be prudent, as a H matter of constitutional necessity, to widen the search for the true

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 917 [ARUN MISHRA, J.]

meaning, purport and ambit of the provision under consideration. A 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.”

35Copy pinpoint35. A Constitutional Court declares law as contained in the B Constitution, but in doing so, it rightly reflects that a Constitution is a living and organic thing, which of all instruments has the greatest claim to be construed broadly and liberally as observed in Goodyear India Ltd. & Ors. v. State of Haryana & Anr., (1990) 2 SCC 71.

36Copy pinpoint36. This Court discussed the concept of socially and educationally C backward classes in Indra Sawhney; however, the Court observed in paragraph 781 extracted above that Scheduled Castes and Scheduled Tribes are admittedly included within the backward classes, as such there was no need to discuss that. Thus, the discussion was confined to whether socially and educationally backward classes can be included in Article 16(4), it was opined that ken of Article 16(4) is wider than Article D 15(4). It was also observed that backward classes contemplated under Article 16(4) do comprise some castes. The Scheduled Castes include quite a few castes. Based on the aforesaid foundational basis, interpretation was made. In our opinion, the decision is relevant for interpreting Article 16(4) provisions in their application to Scheduled E Castes, Scheduled Tribes, and other backward classes. They stand on the similar footing, and they cannot be treated as different from other as also fortified by insertion of Article 342A which is pari materia to Article 341 or 342 and considering the definition in Article 366(24) and (26C) and classification of backward classes can be done. The Scheduled Castes and Scheduled Tribes admittedly are backward, and the same yardstick would apply to all. In Indra Sawhney, it was held that it is permissible to make sub-classification within socially and educationally backward classes. That discussion would be applicable for Scheduled Castes and Scheduled Tribes as they admittedly fall under Article 16(4).

37Copy pinpoint37. In Indra Sawhney, B.P. Jeevan Reddy, J. observed that several castes or tribes within the Scheduled Castes and Scheduled Tribes are not similarly situated. In N.M. Thomas, it was held that Scheduled Castes are group of castes, races, tribes, communities, or parts thereof found suitable by the commission and notified by the President. Caste is nothing H

p. 918 Copy page pinpoint

A but a social class or socially homogenous class. It is based on occupational grouping. Its membership is by birth, and they inherit the same occupation.

38Copy pinpoint38. 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 342A, in view of the decisions in Indra Sawhney, permitting sub-classifications of backward classes and in Jarnail Singh, in which, it was opined that ‘creamy layer concept’ for exclusion of benefit can be applied to the Scheduled Castes and Scheduled Tribes and it does not in any manner tinker with the Presidential list under Article 341 or 342 of the Constitution. The caste or group or 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 D 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.

39Copy pinpoint39. Reservation was not contemplated for all the time by the framers E 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 & Ors. v. State of A.P. & Ors., 2020 SCC OnLine SC 383, the necessity of revising lists was pointed out relying on Indra Sawney and Union of India & Ors. v. Rakesh Kumar & Ors., (2010) F 4 SCC 50.

40Copy pinpoint40. There is cry, and caste struggle within the reserved class as benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation. The scavenger class given the name of Balmikis remains more or less where it was, and so on, disparity within Scheduled Caste is writ large from various reports. The sub- classification was made under Section 4(5) of the Punjab Act to ensure that the benefit of the reservation percolate down to the deprived section and do not remain on paper and to provide benefit to all and give them equal treatment, whether it is violative of Article 14? In our opinion, it would be permissible on rationale basis to make such sub-classification

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 919 [ARUN MISHRA, J.]

to provide benefit to all to bring equality, and it would not amount to exclusion from the list as no class (caste) is deprived of reservation in totality. In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented,have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread. The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class.

41Copy pinpoint41. The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye. The social realities cannot be ignored and overlooked while the Constitution C aims at the comprehensive removal of the disparities. The very purpose of providing reservation is to take care of disparities. The Constitution takes care of inequalities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Various reports indicate that Scheduled Castes and Scheduled D Tribes do not constitute a homogenous group. The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream.At the same time, various castes by and large remain where they were, and they remain unequals, are they destined to carry their backwardness till eternity? E

42Copy pinpoint42. The State’s obligation is to undertake the emancipation of the deprived section of the community and eradicate inequalities. When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub-classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided. It involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil the very purpose of the constitutional mandate of equal justice to all.

43Copy pinpoint43. 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 H

p. 920 Copy page pinpoint

A inequality being perpetuated within the class if preferential classification is not made ensuring benefit to all.

44Copy pinpoint44. The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based thereupon evolvedthe very concept of reservation. Whether the sub-classification B would be a further extension of the principle of said dynamics is the question to be considered authoritatively by the Court.

45Copy pinpoint45. The Scheduled Castes as per Presidential List are not frozen for all the time, and neither they are a homogenous group as evident from the vast anthropological and statistical data collected by various C 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.

46Copy pinpoint46. 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 E 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.

47Copy pinpoint47. 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 G preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit.

48Copy pinpoint48. 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 H

THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 921 [ARUN MISHRA, J.]

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.

49Copy pinpoint49. In the federal structure, the State, as well as the Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and backward classes. Only inclusion or exclusion in the Presidential notification is by the Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the list under Articles 341, 342, and 342A as no enlisted caste is denied the benefit of reservation.

50Copy pinpoint50. 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. F

51Copy pinpoint51. The interpretation of Articles 14, 15, 16, 338, 341, 342, and 342A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without G taking into account changing social realities.

52Copy pinpoint52. We endorse the opinion of a Bench of 3 Judges that E.V. Chinnaiah is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place. H

p. 922 Copy page pinpoint

A We cannot revisit E.V. Chinnaiahbeing 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.

Ankit Gyan Matter referred to Larger Bench B