The State of Punjab & Ors. v. Davinder Singh & Ors.
vidhipandit.com/case/sc-2024-8-1321-1672
Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Issue for consideration
The Supreme Court was required to adjudicate upon whether the sub-classification of Scheduled Castes for the purpose of providing affirmative action, including reservation is valid. In this context, the following issues arose for consideration: Whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16 of the Constitution; Whether the Scheduled Castes constitute a homogenous or a heterogenous grouping; Whether Article 341 of the Constitution creates a homogenous class through the operation of the deeming fiction; and Whether there any limits on the scope of sub-classification.
Reporter's headnote (continued) and case details
Civil Appeal No. 2317 of 2011
Headnotes† Reservation – Whether sub-classification of Scheduled Castes for purposes of reservation is constitutionally permissible – Held (per majority), Yes. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): 1. Article 14 of the Constitution permits sub-classification of a class which is not similarly situated for the purpose of the law – The Court while testing the validity of sub- classification must determine if the class is a homogenous integrated class for fulfilling the objective of the sub-classification – If the class is not integrated for the purpose, the class can be further classified upon the fulfillment of the two-prong intelligible differentia standard. [Para 205(a)]
2. The holding in Chinnaiah that sub-classification of the Scheduled Castes is impermissible is overruled. [Para 205(f)] Held (per B.R. Gavai, J.) (Concurring): 1. E.V. Chinnaiah, which held that sub-classification amongst the Scheduled Castes for the * Author
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Digital Supreme Court Reports purpose of giving more beneficial treatment to a group in the larger group of the Scheduled Castes is not permissible, does not lay down a good law. [Para 296 (i)]
2. Sub-classification amongst the Scheduled Castes for giving more beneficial treatment is permissible in law. [Para 296 (ii)] Held (per Vikram Nath, J.) (Concurring): I am generally in agreement with the reasons and conclusions arrived at in the opinions of Hon’ble the Chief Justice and Brother Justice Gavai in particular that the holding in E.V. Chinnaiah, that sub-classification within Scheduled Castes was impermissible, does not lay down good law and stands over-ruled. [Para 1] Held (per Pankaj Mithal, J.) (Concurring): 1. The issue of sub- classification of scheduled castes has been appropriately answered by the Chief Justice and my esteemed brother Justice Gavai by their separate opinions with which I respectfully agree. [Para 9]
2. The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities – So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub-classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful. [Para 84(i)]
3. Sub-classification of Scheduled Castes is permissible in law for the purposes of reservation. [Para 85] Held (per Satish Chandra Sharma, J.) (Concurring): I have had the privilege of reading the lucid and detailed opinion(s) authored by Hon’ble Dr. Justice D.Y.Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively – I am fully in agreement with both opinions to the extent that the validity of sub-classification within Scheduled Castes has been held to be constitutionally permissible. [Para 1] Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law was settled by the Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in Davinder Singh, and that too without assigning any reason much less cogent reason for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis. [Para 79(i)]
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2. The Nine-Judge Bench in Indra Sawhney and the Five-Judge Bench in Jarnail Singh had not dealt with the issue of sub- classification of the “Scheduled Castes” in the context of Article 341, much less had dealt with the State’s powers to sub-classify or sub-divide or regroup the castes specified as “Scheduled Castes” under Article 341 of the Constitution, and therefore, it could not be held that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh. [Para 79(viii)]
3. The power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration – Even with the width of its amplitude, Article 142 cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with the subject, and thereby to achieve something indirectly which cannot be achieved directly – The action of the State, though well intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142. [Para 79(ix)]
4. The affirmative action and legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and constitutionality. [Para 79(x)]
5. The law laid down by the Five-Judge Bench in E.V. Chinnaiah is the correct law and deserves to be confirmed. [Para 80] Reservation – Whether sub-classification of Scheduled Castes for reservation was excluded or barred by the Nine Judge Bench decision in Indra Sawhney case – Held, No. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): In Indra Sawhney, this Court did not limit the application of sub-classification only to the Other Backward Class – This Court upheld the application of the principle to beneficiary classes under Articles 15(4) and 16(4). [Para 205(b)] Held (per B.R. Gavai, J.) (Concurring): In Indra Sawhney, 7 Learned Judges affirmed the position as laid down in N.M. Thomas
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Digital Supreme Court Reports that clause (4) of Article 16 is not by way of an exception to clause (1) of Article 16, but it is an emphatic way of stating a principle implicit in Article 16(1) – It has been held that further classification of backward classes into backward and more backward classes is permissible under the Constitution – It has been held in Indra Sawhney that under Article 16(4) the Scheduled Castes are also included in the term ‘backward class of citizens’. [Paras 247, 248] Held (per Pankaj Mithal, J.) (Concurring): The Chief Justice in his opinion has clearly opined that this Court in Indra Sawhney never intended to limit the application of sub-classification to the other backward classes only – If any class is not integrated it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution, so long persons in a class are not similarly situated. [Para 79] Held (per Bela M. Trivedi, J.): Though Indra Sawhney had sought to define “backward class” in terms of social backwardness, while considering the ambit of “backward class” for the purpose of Article 16(4), it did not deal with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the light of Article 341/342, rather it categorically kept the Scheduled Castes/ Scheduled Tribes outside the purview of consideration – The Scheduled Castes being the most backward class amongst the backward classes, and having acquired a special status by virtue of Article 341, the question of defining “backward class” qua the “Scheduled Castes” did not arise, and rightly not dealt with in Indra Sawhney for the purposes of Article 16(4) of the Constitution. [Para 70] Reservation – Whether Scheduled Castes under Article 341, constitute a homogeneous class – Held (per majority), No – Constitution of India – Art. 341. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): 1. In Chinnaiah, Justice Santosh Hegde observed that the Castes notified by the President in the exercise of power under Article 341 form a class in themselves – For this purpose, the learned Judge relied on certain observations of the Constitution Bench in NM Thomas case – In NM Thomas however, rules providing concessions to the members of the Scheduled Castes for qualifying at the entrance examination were challenged – One of the issues before the Court was whether the concession to the members of the Scheduled Castes violated Article 16(2) since it discriminates solely on the ground of “caste” – To overcome the embargo placed by Article 16(2), the learned Judges observed that provision for affirmative action is made in favour of the Scheduled Castes, which once notified by the President in exercise of the power under Article 341 are not a “caste” but a class – The class that is constituted by the Presidential notification as the Scheduled Castes consists of numerous castes, thereby forming a class – The observations in NM Thomas do not go further to state that it is a homogenous class that cannot be classified further – Additionally, the approach adopted in NM Thomas by this Court that the Scheduled Castes are a class because they comprise of a collection of castes must be read in the context of the nine-Judge Bench decision in Indra Sawhney, where this Court held that caste is itself a class – Therefore, the inference drawn by Justice Hegde in Chinnaiah that the Scheduled Castes are a homogenous class based on the above observations in NM Thomas is erroneous. [Paras 113, 114]
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2. Article 341(1) does not create a deeming fiction – The phrase “deemed” is used in the provision to mean that the castes or groups notified by the President shall be “regarded as” the Scheduled Castes – Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the only logical consequence that flows from it is that castes included in the list will receive the benefits that the Constitution provides to the Scheduled Castes – The operation of the provision does not create an integrated homogenous class. [Para 205(c)]
3. Sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List – Sub-classification would violate the provision only when either preference or exclusive benefit is provided to certain castes or groups of the Scheduled Castes over all the seats reserved for the class. [Para 205(d)] Held (per B.R. Gavai, J.) (Concurring): The ground realities cannot be denied – Even among the Scheduled Castes, there are some categories who have received more inhuman treatment for centuries and generations as compared to the other categories – The hardships and the backwardness which these categories have suffered historically would differ from category to category – Therefore, merely because they are part of a single or a combined Presidential List, it cannot be said that they form part of a homogeneous group. [Para 261]
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Held (per Bela M. Trivedi, J.) (Dissenting): 1. While giving a broad and generous construction to the Constitutional provisions, the rule of “plain meaning”, or “literal” interpretation, which is the “primary rule” has to be kept in mind. [Para 79(ii)]
2. The Presidential List specifying “Scheduled Castes” under Article 341 assumes finality on the publication of the notification, and the castes, races or tribes, or groups within castes, races or tribes specified in the notification are deemed to be the “Scheduled Castes” in relation to that State or Union Territory as the case may be, for the purposes of the Constitution and as such assume special status of “Scheduled Castes”. [Para 79(iii)]
3. It is only the Parliament by law which can include in or exclude from the list of the “Scheduled Castes” specified in the notification notified under Clause (1), any caste, race or tribe or part of or group within any caste, race or tribe – Such notification notified under Clause (1) cannot be varied even by the President by issuing any subsequent notification. [Para 79(iv)]
4. It is by virtue of the notification of the President under Article 341 that the “Scheduled Castes” come into being – Though the members of Scheduled Castes are drawn from different castes, races or tribes, they attain special status of “Scheduled Castes” by virtue of Presidential Notification – The etymological and evolutionary history and the background of the nomenclature “Scheduled Castes”, coupled with the Presidential orders published under Article 341 of the Constitution, make the “Scheduled Castes”, a homogenous class, which cannot be tinkered with by the States. [Para 79(v)] Reservation – Whether State legislature has the power of sub- classification of Scheduled Castes under Arts. 15 and 16 – Held (per majority), Yes – Constitution of India – Arts. 15 and 16. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogenous class – Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification. [Para 205(e)] Held (per B.R. Gavai, J.) (Concurring):
1. It is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented – If the State while discharging that duty finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for Scheduled Castes and Scheduled Tribes, can the State be denied its right to give more preferential treatment for such categories? The answer would be in the negative, since the same would not amount to tinkering with the Presidential List. [Para 258]
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2. No doubt that if the State decides to provide 100% of the reservation for Scheduled Castes to one or more categories enlisted in the Presidential List in that State to the exclusion of some categories, it may amount to tinkering with that list because, in effect, it would amount to denial of benefit of reservation to those Scheduled Caste categories which have been excluded – That would, in effect, amount to deletion of the said categories from the Presidential List notified under Article 341 of the Constitution, which power is exclusively reserved with Parliament; such an exercise would not be permissible. [Para 259]
3. However, merely because more preferential treatment is provided to the more backward or more inadequately represented among the Scheduled Castes, it would not amount to tinkering with the Presidential List – The same would be permissible in view of the law laid down by the 9-Judge Bench in the case of Indra Sawhney. [Para 260] Held (per Bela M. Trivedi, J.) (Dissenting): 1. The States have no legislative competence to enact the law for providing reservation or giving preferential treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes” in the notification under Article 341. [Para 79(vi)]
2. Under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List, nor can tinker with Article 341 of the Constitution. [Para 79(vii)] Reservation – Criteria and scope for sub-classification of Scheduled Castes – Discussed. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): 1. The purpose of the reservation clause is to remedy the inadequate representation in public services of
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Digital Supreme Court Reports certain “classes” – The intent of Article 16(4) is to cover those classes which have been inadequately represented because of their backwardness. [Paras 165, 166]
2. However, adequacy of representation when determined purely from a numerical perspective without accounting for factors such as representation vis-à-vis posts would dilute the purpose of the provision – The objective of Article 16(4) is to ensure effective representation of the class in the services of the State across posts and grades – The objective of the provision is not to emulate the existing social hierarchy where the low-grade posts are occupied by the socially backward while supervisory and managerial posts continue to be occupied by the advanced classes – If the objective of Article 16(4) is to be achieved in the truest sense, the inadequacy of representation must not be determined only on the basis of the total number of members of the backward class in the services of the State but by assessing the representation of the class across various posts. [Paras 167, 168]
3. Since the purpose of Articles 15(4) and 16(4) is to ensure equality of opportunity of the socially backward classes, the criterion for sub-classification within a class (be it the Other Backward Classes or the Scheduled Castes or Tribes) must be an indicator of social backwardness – The yardstick for classification must differentiate the class based on inter-se social backwardness – The inter-se backwardness could be identified based on the same or different identity. [Para 174]
4. Since the State can use any yardstick to determine inter-se backwardness, it is not necessary that the criteria for sub- classification and the criteria used to distinguish the class from the other classes must be the same – How does the State identify inter-se social backwardness within the Scheduled Castes? The inter-se backwardness can, inter alia, be identified based on inadequacy of effective representation – However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness – The State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. [Paras 175, 177]
5. While the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State – It cannot merely act on its whims or as a matter of political expediency – The decision of the State is amenable to judicial review – When its action is challenged under Article 226 or before this Court under Article 32, the State must provide justification and the rationale for its determination – No State action can be manifestly arbitrary – It must be based on intelligible differentia which underlie the sub-classification – The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved. [Para 190]
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6. Though sub-categorization based on each caste is permissible, there can never be a situation where seats are allocated for every caste separately – Though each caste is a separate unit, the social backwardness suffered by each of them is not substantially distinguishable to warrant the State to reserve seats for each caste – If the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation. [Para 195]
7. The scope of sub-classification of the Scheduled Castes is summarized as follows: (i) The objective of any form of affirmative action including sub-classification is to provide substantive equality of opportunity for the backward classes – The State can sub- classify, inter alia, based on inadequate representation of certain castes – However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness; (ii) The State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness; and (iii) Article 335 of the Constitution is not a limitation on the exercise of power under Articles 16(1) and 16(4) – Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services – Efficiency of administration must be viewed in a manner which promotes inclusion and equality as required by Article 16(1). [Para 205(f)] Held (per B.R. Gavai, J.) (Concurring): 1. For sub-classification amongst the Scheduled Castes, the State will have to justify that the group for which more beneficial treatment is provided is inadequately represented as compared to the other castes in the said List. [Para 296 (iii)]
2. While doing so, the State will have to justify the same on the basis of empirical data that a sub-class in whose favour such more
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3. However, while providing for sub-classification, the State would not be entitled to reserve 100% seats available for Scheduled Castes in favour of a sub-class to the exclusion of other castes in the List. [Para 296 (v)]
4. Such a sub-classification would be permissible only if there is a reservation for a sub-class as well as the larger class. [Para 296 (vi)] Held (per Vikram Nath, J.) (Concurring): Any exercise involving sub-classification by the State must be supported by empirical data. [Para 1] Held (per Satish Chandra Sharma, J.) (Concurring): I am fully in agreement with the opinion(s) authored by Hon’ble Dr. Justice D.Y. Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively to the extent that any exercise involving sub-classification by the State, must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole. [Para 1] Reservation – Applicability of creamy layer principle to the Scheduled Castes – Discussed. Held (per B.R. Gavai, J.): 1. Taking into consideration that the Constitution itself recognizes the Scheduled Castes and Scheduled Tribes to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes – If a person from such a category, by bagging the benefit of reservation achieved a position of a peon or maybe a sweeper, he would continue to belong to a socially, economically and educationally backward class – At the same time, the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action – They have already reached a stage where on their own accord they should walk out of the special provisions and give way to the deserving and needy. [Para 294]
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2. The State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action – Only this and this alone can achieve the real equality as enshrined under the Constitution. [Para 295]
3. The finding of M. Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law. [Para 296 (vii)]
4. The criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. [Para 296 (viii)] Held (per Vikram Nath, J.) (Concurring): I am in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. [Para 2] Held (per Pankaj Mithal, J.) (Concurring): 1. Justice Gavai has rightly concluded that the State must evolve a policy of identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation. [Para 83]
2. In the Constitutional regime, there is no caste system and the country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC – Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural). [Para 84(ii)]
3. The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation. [Para 84(iii)]
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4. Periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category. [Para 84(iv)] Held (per Satish Chandra Sharma, J.) (Concurring): On the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State. [Para 2] Held (per Bela M. Trivedi, J.) (Dissenting): In so far as Article 15(4) and 15(5) are concerned, the use of the word “any” before the words “socially and educationally backward classes” and the use of the word “the” before “Scheduled Castes/Scheduled Tribes” clearly indicate that the said provisions pertain to the “Other Backward Classes” which are socially and educationally backward, and that the said provisions also pertain to the “Scheduled Castes” and “Scheduled Tribes”, however the “Scheduled Castes” do not require any further identification once they are notified under Article 341 – As rightly held in Ashok Kumar Thakur, the “creamy layer” principle is one of the parameters to identify backward classes – The “Scheduled Castes” having already been specified in the Presidential List under Article 341, the said creamy layer principle cannot be applied to the “Scheduled Castes” for their identification as backward class. [Para 71]
Case Law Cited
In the judgment of Dr Dhananjaya Y Chandrachud, CJI EV Chinnaiah v. State of Andhra Pradesh [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394 – overruled. State of Kerala v. NM Thomas [1976] 1 SCR 906 : (1976) 2 SCC 310; Indra Sawhney v. Union of India [1992] Supp. 2 SCR 454 : (1992) Supp. 3 SCC 217 – explained. Triloki Nath v. State of J&K [1969] 1 SCR 103; State of UP v. Pradip Tandon [1975] 2 SCR 761 : 1975 1 SCC 267; Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India [1981] 2 SCR 185 : (1981)
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1 SCC 246; State of Punjab v. Davinder Singh [2020] 10 SCR 857: (2020) 8 SCC 1; Jarnail Singh v. Lachhmi Narain Gupta [2018] 10 SCR 663 : (2018) 10 SCC 396; Bhaiyalal v. Harikishan Singh [1965] 2 SCR 877; State of Maharashtra v. Milind [2000] Supp. 5 SCR 65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board [2018] 10 SCR 513 : (2018) 10 SCC 312; B. Basavalingappa v. D. Munichinnapa [1965] 1 SCR 316; Srish Kumar Chodhury v. State of Tripura [1990] 1 SCR 576 : 1990 Supp SCC 220; State of West Bengal v. Anwar Ali Sarkar [1952] 1 SCR 284 : (1952) AIR 75; Chiranjit Lal Chowdhury v. Union of India [1950] 1 SCR 869 : 1950 SCC 833; General Manager, Southern Railway v. Rangachari [1962] 2 SCR 586 : AIR 1962 SC 36; CA Rajendra v. Union of India AIR 1968 SC 507; State of Madras v. Champakam Dorairajan [1951] 1 SCR 525; B Venkataramana v. The State of Madras AIR 1951 SC 229; Balaji v. State of Mysore [1963] Supp. 1 SCR 439 : AIR 1963 SC 649; Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684; Ajit Singh (II) v. State of Punjab (1999) INSC 407; Ajit Singh (I) v. State of Punjab [1996] 3 SCR 125 : (1996) 2 SCC 715; S Vinod Kumar v. Union of India [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580; T Devadasan v. Union of India [1964] 4 SCR 680; M Nagaraj v. Union of India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; Neil Aurelio Nunes v. Union of India [2022] 1 SCR 970 : (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka [2019] 7 SCR 1086 : (2019) 16 SCC 129; Janki Prasad Parimoo v. State of J&K [1973] 3 SCR 236 : (1973) 1 SCC 420; Shri Ram Krishna Dalmia v. Shri SR Tandolkar [1959] 1 SCR 279 : 1958 SCC OnLine SC 6; Special Courts Bill, 1978, In re [1979] 2 SCR 476 : (1979) 1 SCC 380; Moorthy Match Works v. CCE [1974] 3 SCR 121 : (1974) 4 SCC 428; Deepak Sibal v. Punjab University [1989] 1 SCR 689 : (1989) 2 SCC 145; Budhan Choudhry v. State of Bihar [1955] 1 SCR 1045; All India Station Masters & Assistant Station Master’s Association v. General Manager, Central Railways [1960] 2 SCR 311 : AIR 1960 SC 384; Mohd. Shujat Ali v. Union of India [1975] 1 SCR 449 : 1975 3 SCC 76; State of Jammu and Kashmir v. Triloki Nath Khosa [1974] 1 SCR 771 : 1974 1 SCC 19; Roshan Lal Tandon v. Union of India [1968] 1 SCR 185; Katyani Sayal v. Union of India [1980] 3 SCR 139 : (1980) 3 SCC 245; Col AS Iyer v. V Balasubramanyam [1980] 1 SCR 1036 : 1980 1 SCC 634; Navtej Singh Johar v. Union of India [2018] 7 SCR 379 : (2019) 3 SCC 345; Consolidated Coffee Ltd v. Coffee Board,
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Bangalore [1980] 3 SCR 625 : 1980 3 SCC 358; Bhuwalka Steel Industries Limited v. Union of India [2017] 2 SCR 993 : (2017) 5 SCC 598; St. Aubyn v. Attorney General 1952 AC 15; Industrial Supplies Private Limited v. Union of India [1981] 1 SCR 375 : (1980) 4 SCC 341; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR 296 : (2005) 1 SCC 754; Bengal Immunity Company Ltd v. State of Bihar [1955] 2 SCR 603 : (1955) SCC OnLine SC 2; Delhi Cloth & General Mills Co. Ltd v. State of Rajasthan [1980] 3 SCR 1109 : 1976 3 SCC 443; Punit Rai v. Dinesh Chaudhary [2003] Supp. 2 SCR 743 : 2003 8 SCC 204; Marri Chandra Shekar Rao v. Dean, Seth GS Medical College [1990] 2 SCR 843: (1990) 3 SCC 130; Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala [1993] Supp. 3 SCR 872 : (1994) 1 SCC 359; Janki Prasad Parimoo v. State of Jammu and Kashmir [1973] 3 SCR 236 : (1973) 1 SCC 420; RK Sabharwal v. State of Punjab [1995] 2 SCR 35 : (1995) 2 SCC 745; Triloki Nath v. State of Jammu and Kashmir (I) [1967] 2 SCR 265; Chitralekha v. State of Mysore. AIR 1964 SC 1823; P Rajendran v. State of Madras [1968] 2 SCR 786; Barium Chemicals v. Company Law Board (1992) Supp. 3 SCC 217 – referred to. East End Dwelling Co. Ltd. v. Finsbury Borough Council LR 1952 AC 109 – referred to.
In the judgment of B.R. Gavai, J. E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394; – held, not good law. State of Kerala and another v. N.M. Thomas and others [1976] 1 SCR 906 : (1976) 2 SCC 310; Indra Sawhney and others v. Union of India and others [1992] Supp. 2 SCR 454 : (1992) Supp 3 SCC 217 – explained. M. Nagaraj and others v. Union of India and others [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; [2020] 10 SCR 857 : (2020) 8 SCC 1; Jarnail Singh and others v. Lachhmi Narain Gupta and others [2018] 10 SCR 663 : (2018) 10 SCC 396 – affirmed. The State of Punjab & Ors. v. Davinder Singh & Ors. (2020) 8 SCC 65; State of Madras v. Smt. Champakam Dorairajan [1951] 1 SCR 525; M.R. Balaji and others v. State of Mysore [1963]
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Supp. 1 SCR 439 : 1962 SCC OnLine 147; State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad [1974] 3 SCR 760 : (1974) 4 SCC 656; His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; T. Devadasan v. Union of India [1964] 4 SCR 680 : AIR 1964 SC 55; Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association v. Union of India and others [1981] 2 SCR 185 : (1981) 1 SCC 246; K.C. Vasanth Kumar and another v. State of Karnataka [1985] Supp. 1 SCR 352 : 1985 Supp SCC 714; Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and others [1990] 2 SCR 843 : (1990) 3 SCC 130 – referred to.
In the judgment of Pankaj Mithal, J. E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394; Indra Sawhney and Ors. v. Union of India and Ors. [1992] Supp. 2 SCR 454 : (1992) Supp. 3 SCC 217; State of Madras v. Champakam Dorairajan [1951] 1 SCR 525 : AIR (1951) SC 226; B. Venkataramana v. State of Madras and Ors. AIR (1951) SC 229; S. Vinod Kumar and Anr. v. Union of India and Ors. [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580; Union of India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684; Ajit Singh Januja v. State of Punjab [1996] 3 SCR 125 : (1996) 2 SCC 715; Ajit Singh (II) v. State of Punjab (1999) INSC 546; Ashoka Kumar Thakur v. State of Bihar [1995] Supp. 3 SCR 269 : (1995) 5 SCC 403; Indra Sawhney (II) v. Union of India [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; M. Nagaraj v. Union of India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; TMA Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481; Islamic Academia Education v. State of Karnataka [2003] Supp. 2 SCR 474 : (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra [2005] Supp. 2 SCR 603 : (2005) 6 SCC 537; Ashok Pramati Educational & Cultural Trust v. Union of India [2014] 11 SCR 712 : (2014) 8 SCC 1; Ram Singh v. Union of India [2015] 5 SCR 670 : (2015) 4 SCC 697; Janhit Abhiyan v. Union of India (EWS Reservation) [2022] 14 SCR 1 : (2023) 5 SCC 1; M.R Balaji v. State of Mysore [1963] Supp. 1 SCR 439 : AIR 1963 SC 649; K C Vasantha Kumar & Anr. v. State of Karnataka (1985) SCC Suppl. 714; State of Kerala v. N M Thomas [1976] 1 SCR 906 : (1976) 2 SCC 310; Akhil Bharatiya Soshit
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Karamchari Sangh v. Union of India & Ors. [1981] 2 SCR 185 : (1981) 1 SCC 246; Jaishri Laxmanrao Patil v. State of Maharashtra (2021) 8 SCC 1 – referred to.
In the judgment of Bela M. Trivedi, J. Pradip Chandra Parija and Others v. Pramod Chandra Patnaik and Others [2001] Supp. 5 SCR 460 : 2002 (1) SCC 1; Maganlal ChhaganLal (P) Ltd. v. Municipal Corporation of Greater Bombay & Others [1975] 1 SCR 1 : (1974) 2 SCC 402; Lt. Col. Khajoor Singh v. Union of India & Another [1961] 2 SCR 828 : AIR 1961 SC 532; Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad [1965] 2 SCR 908 : AIR 1965 SC 1636; Dr. Shah Faesal and Others v. Union of India and Another [2020] 3 SCR 1115 : (2020) 4 SCC 1; GVK Industries Limited and Another v. Income Tax Officer and Another [2011] 3 SCR 366 : (2011) 4 SCC 36; Dr. JaiShri Laxman Rao Patil v. Chief Minister and Others [2021] 15 SCR 715 : (2021) 8 SCC 1; B. Basavalingappa v. D. Munichinnappa & others [1965] 1 SCR 316 : AIR (1965) SC 1269; Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877 : AIR (1965) SC 1557; State of Maharashtra vs. Milind and Others [2000] Supp. 5 SCR 65 : (2001) 1 SCC 4; Bir Singh v. Delhi Jal Board and Others [2018] 10 SCR 513 : (2018) 10 SCC 312; State of Kerala & Anr. v. N.M. Thomas & Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Ashok Kumar Thakur v. Union of India and Others [2007] 7 SCR 63 : (2008) 6 SCC 1; and Supreme Court Bar Association v. Union of India and Another [1998] 2 SCR 795 : (1998) 4 SCC 409 – followed. State of Haryana vs. Ranbir alias Rana [2006] 3 SCR 864 : (2006) 5 SCC 167; ADM Jabalpur vs. Shivakant Shukla (1976) 8 SCC 521; and Bharat Coking Coal Ltd. v. State of Bihar and Others [1990] 3 SCR 744 : (1990) 4 SCC 557– relied on. E.V. Chinnaiah v. State of Andhra Pradesh and Others [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394 – affirmed. Indra Sawhney v. Union of India and Others [1992] Supp. 2 SCR 454 : (1992) Suppl. 3 SCC 217; and Jarnail Singh v. Lachhmi Narain Gupta [2018] 10 SCR 663 : (2018) 10 SCC 396 – distinguished. K.C. Gajapati Narayan Deo v. State of Orissa [1954] 1 SCR 1 : (1953) 2 SCC 178; M. Nagaraj and Others v. Union of India and Others [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; State of Punjab and Others v. Davinder Singh and Others (2020) 8 SCC 65;
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State of Punjab and Others v. Davinder Singh and Others [2020] 10 SCR 857 : (2020) 8 SCC 1 – referred to. Northern Securities Company v. The United States (1903) 193 U.S. 197 (1903) – referred to.
Books and Periodicals Cited
In the judgment of Dr Dhananjaya Y Chandrachud, CJI 3rd meeting of the National Commission for Scheduled Castes held on 13.12.2010 under the Chairmanship of Dr PL Punia; Ashwini Deshpande, Double Jeopardy? Stigma of Identity and Affirmative Action, The Review of Black Political Economy 2019, Vol. 46(I) 38-64; Marc Galanter, Competing Equalities: Law and the Backward Classes in India, [Oxford University Press (1984)] 130; Report of the Indian Franchise Committee (1932) Vol I, 112; Hutton Census Report (1931) 471; Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise Committee, 231; Dr Ambedkar, Note on the Depressed Classes, Report of the Franchise Committee, 211; AM Shah, The ‘Dalit” category and its Differentiation; AM Shah, Untouchability, the Untouchables and Social Change in Gujarat in Dimensions of Social Life, Essays in Honor of David G Mandelbaum (edited by Paul Hockings); Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive Study of Practices and Conditions in 1589 Villages, 22-33; Ravinchandran Bathran, The many omissions of a concept: Discrimination amongst Scheduled Castes, Economic & Political Weekly, (Vol L1 No. 47, November 19, 2016) 1342-1346; Uma Ramaswamy, Protection and Inequality among Backward Groups, Economic & Political Weekly (Vol. 21 No. 9, 9 March 1986); B Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public Administration] 221; Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327] – referred to.
In the judgment of B.R. Gavai, J. Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of India (Viking by Penguin Random House India 2023); B.R. Ambedkar, ‘Evidence before the Southborough Committee on Franchise’ in Dr. Babasaheb Ambedkar: Writings and Speeches, ed. Vasant Moon, Ministry of Social Justice
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Digital Supreme Court Reports and Empowerment 2019, Vol.I, p. 255; Anurag Bhaskar, The Foresighted Ambedkar: Ideas that shaped Indian constitutional Discourse (Viking by Penguin Random House 2024); Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark Publishers Pvt. Ltd. 2014) – referred to.
In the judgment of Bela M. Trivedi, J. Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law P.283 and Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University Press, 13th Edition 1946) 141 – referred to.
In the judgment of Pankaj Mithal, J. Nani Palkiwala, We, The Nation: The Lost Decades 179 (Mehta Publishing House 1995) and Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34 – referred to.
List of Acts Constitution of India; Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006; Tamil Nadu Arunthathiyars (Special Reservation of seats in educational institutions including private educational Institutions and of appointments or posts in services under State within the Reservation for the Scheduled Castes) Act 2009; Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act 2000; Constitution (One Hundred and Second Amendment) Act, 2018; Constitution (Seventy-seventh Amendment) Act 1995; Constitution (Eighty-first) Amendment Act 2000; Constitution (Eighty-second) Amendment Act 2000; Constitution (One Hundred and Fifth) Amendment Act, 2021; First Amendment to the Constitution.
List of Keywords Articles 14, 15, 16 and 341 of Constitution; Reservation; Scheduled Castes; Sub-classification; Affirmative action; Homogenous or heterogenous grouping; Operation of deeming fiction; Limits on scope of sub-classification; Intelligible differentia; Beneficial treatment; Doctrine of Precedent; Stare decisis; Substantive law; Backward class; Integrated homogenous class; Presidential List; Historical and empirical evidence; Socially heterogenous class; Rational principle for differentiation; Preferential treatment;
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Inadequate representation; Criteria and scope for sub-classification; Inter-se backwardness; Judicial review; Reasonable nexus; Sub- categorization based on caste; Social backwardness; Empirical data; more ‘disadvantaged’ status; Creamy layer principle.
Case Arising From CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No. 2317 of 2011 From the Judgment and Order dated 29.03.2010 of the High Court of Punjab & Haryana at Chandigarh in CWP No.18290 of 2009 With C.A. No. 6936 of 2015, C.A. No. 5597 of 2010, W.P.(C) No. 21 of 2023, C.A. No. 5593 of 2010, S.L.P.(C) No. 30766 of 2010, S.L.P.(C) Nos. 8701, 36500-36501 of 2011, T.C.(C) No. 38 of 2011, T.P.(C) No. 464 of 2015, W.P.(C) No.1477 of 2019, C.A. Nos. 5586, 5598 and 5595-5596 of 2010, C.A. No. 2324 of 2011, T.C.(C) No. 37 of 2011, C.A. Nos. 5589, 5600 And 5587 of 2010, S.L.P.(C) Nos. 5454-5459 of 2011, C.A. No. 2318 of 2011, C.A. No. 289 of 2014 And W.P.(C) No. 562 of 2022 Appearances for Parties R. Venkataramani, AG, Tushar Mehta, SG, K.M. Nataraj, ASG, Saurabh Mishra, Shadan Farasat, AAGs, Vivek Jain, DAG, Gurminder Singh, Adv.Gen./Sr. Adv., Kapil Sibal, Vijay Hansaria, M.S. Ganesh, Salman Khurshid, Rakesh Khanna, Arun Bhardwaj, Manoj Swarup, Dr. K.S. Chauhan, Salil Sagar, Shekhar Naphade, P.S. Teji, Saket Singh, Dama Seshadri Naidu, Nidhesh Gupta, Dr. Manish Singhvi, Siddharth Luthra, Sanjay Hegde, Colin Gonsalves, Dr. S. Muralidhar, A.D.N. Rao, Sr. Advs., Karan Sharma, Karmanbir Singh, Harshit Anand, Abhishek Babbar, Mohit Siwach, Rishabh Sharma, Ms. Hrishika Jain, Ms. Princy Sharma, Ms. Mreganka Kukreja, Ms. Natasha Maheshwari, Ms. Devyani Gupta, Ms. Aparajita Jamwal, Gautam Bhatia, Nizam Pasha, Rishabh Parikh, Rahul Narayan, Ms. Arjoo Rawat, Ms. Saushriya Havelia, Ms. Tanvi Anand, Ms. Rupali Samuel, Thomas Franklin Caesar, S. Gowthaman, V. Puneedhan, Dhuli Venkata Krishna, Selvam P, Sameer Aslam, Samar Vijay Singh, Resham Singh, Ms. Roopa Paul, H.L. Chumber, Ms. Sunita Bhardwaj, Parveen Paul, Ms. Vasundhara Rana, Rahul Kumar, Satyendra Kumar, Anandh Kannan N., Ms. Kavya Jhawar,
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Ms. Nandini Rai, R.K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, P.S. Bhagat Singh, V. Subramanian, Ajay Chaudhary, Praveen Pathak, Ram Bhadauria, Robin Khokhar, Devendra Singh, K. Seshachary, Sanchar Anand, Anant Kumar Vatsya, Ms. Poonam Datta, Ms. Yashswini, Nikhil Hooda, Gajinder Chauhan, Kaushal Yadav, Ms. Lubna Naaz, Nandlal Kumar Mishra, Aditya Pushkal Khanna, Ms. Arushi Jain, Ram Kishor Singh Yadav, Ms. Ramya Khanna, Ms. Vidhi Jain, Dr. Sushil Balwada, Dr. Rashmi Khanna, Dr. Ajay Kumar, Dr. Vikas Pahal, Ms. Shilpita, Mrs. Anila Bharti, Arjun Raghuvanshi, Arpit Kumar, Ritul Tandon, Dr. Monika Gusain, Gauraan, Abhishek Sharma, Shrutanjaya Bhardwaj, Hariom Yaduvanshi, Ms. S. Harini, Ankit Swarup, Rohit Kumar Singh, Neelmani Pant, Ms. Apoorva Singh, Rishi Bhargava, Ms. Yashvi Aswani, Ms. Rajlakshmi, Ms. Supriya Juneja, Apoorv Kurup, Shailesh Madiyal, Kanu Agrawal, Mrs. Sonali Jain, Raman Yadav, Chitvan Singhal, Kartikay Aggarwal, Abhishek Kumar Pandey, Amrish Kumar, Gurmeet Singh Makker, Ms. Sonali Jain, Chitvan Sinhal, Anmol Chandan, Saurabh Mishra, Mukesh Kumar Maroria, Rajat Nair, Tadimalla Bhaskar Gowtham, Vatsal Joshi, Bhuvan Kapoor, Krishna Kant Dubey, Ms. Indira Bhakar, Shashwat Parihar, Rajesh Singh Chauhan, Vinayak Sharma, Karanbir Singh, Ms. Nupur Kumar, Aman Naqvi, Shadab Azhar, Ajit Kumar Ekka, Pratik R. Bombarde, R.S.M. Kalky, S.P. Singh, Sunil Kumar, Murari Lal, Dr. K. Elumalai, Ramesh Kumar, Sumit Kishore, Abhishek Chauhan, Bhim Kishore, Sandeep Malik, Ajit Kumar, Samarth Sagar, Sankalp Sagar, Mithu Jain, Sanchit Garga, Birendra Kumar Mishra, Ms. Poonam Atey, Hemendra, Sirajuddin, Balbir Singh Sewak, Ripudaman Singh Sidhu, M.F. Philip, Ms. Purnima Krishna, Ms. Aishwarya Dash, Ms. Farah Hashmi, Karamveer Singh Yadav, Prashant, Sanjay Kumar Visen, Kuldeep Singh Kuchaliya, Neelesh Singh Rao, Prativa Prakash Janapriya Nayak, Mrs. Sangeeta Singh, Ms. Sarvshree, Mrs. Niranjana Singh, Ms. Japneet Kaur, G. Balaji, Ms. Shivali Chaudhary, Ms. Vriti Gujral, Ananvay, Poorna Chandan, Sandeep Kumar Jha, Kumar Vaibhaw, Ms. Devina Sehgal, Seehzan Hashmi, Vineet George, Anas Tanwir, Shahrukh Ali, Ebad Ur Rahman, Ms. Stuti Shrivastav, Ms. Riyal Suryawanshi, Ankit Tiwari, Tanay Hegde, Satya Mitra, Ms. Hetvi Patel, P. Venkateshan, Bankey Bihari Sharma, Ms. S. Janani, Rahul Gupta, R.V. Kameshwaran, Ravi Prakash, Tushar Bakshi, Shakti Kanta Pattanaik, Mrs. Naresh Bakshi, Raj Kumar Gupta, Shekhar Kumar, Santosh Krishnan, MA Karthik, Maitreya Subramaniam, Ms. Pallak Bhagat, Girish Chowdhary,
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Ms. Deepshikha Sansanwal, Ms. Vasundhra Rana, Rakesh Dahiya, Brij Bhushan, Vishal Prasad, Abhay Anil Anturkar, Dhruv Tank, Aniruddha Awalgaonkar, Ms. Surbhi Kapoor, Ms. Deepanwita Priyanka, B.K. Satija, Dr. Vinod Kumar Tewari, Vishwanathan Iyer, Aman Roop Sharma, Ms. Shymphy Sharma, Pramod Tiwari, Vivek Tiwari, Ms. Jyoti Mehra, Ms. Madhusmita Bora, Nishe Rajen Shonker, Sunny Choudhary, Prateek Bhatia, Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Ajay Pal, D. Kumanan, Sheikh F Kalia, Mrs. Deepa. S, Veshal Tyagi, Vishwa Pal Singh, Dhawal Uniyal, Ashish Pandey, Mukesh Kumar, Srikant Singh, Ashutosh Bhardwaj, Prateek Rai, Shubham Saxena, Sanjeev Kaushik, Ms. Anvita Dwivedi, Ms. Astha Sharma, Shreekant Neelappa Terdal, Abhimanyu Tewari, Ms. Eliza Bar, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupama Ngangom, Ms. Rajkumari Divyasana, Avijit Mani Tripathi, Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit Kumar Singh, Ms. Chubalemla Chang, Prang Newmai, Sameer Abhyankar, Ms. Vani Vandana Chhetri, Ms. Nishi Sangtani, Ms. Zinnea Mehta, Aakash Thakur, Vatsalya Vigya, Dr. Ashok Siddhartha Priya Ram Singh, Dharma Dutt Verma, Rohit Verma, Vivek C. Solshe, Varun V. Solshe, Anjani Kumar Jha, P. Venkatesan, Ronak Karanpuria, Parteek Kumar, Jai Wadhwa, Akarsh Jain, Ankit Swarup, Annam Venkatesh, P. Soma Sundaram, Krishan Kumar, Vipin Kumar Jai, Raj Bahadur Yadav, Ms. Shraddha Deshmukh, Ms. Charanya Lakshmikumaran, Rahul Jajoo, Veeradasu Vankata Rathnam, Y.K. Viswanath, A. Veeresh Kumar, Kashapogu Suresh, Dr. Manoj Gorkela, Ms. Sitwat Nabi, Ms. Raina Anand, Varun Kumar, M/s. Gorkela Law Office, S. Prabu Ramasubramanian, A Manoj Kumar, K. Paari Vendhan, M/s. Nuli & Nuli, Vivek Sharma, Sanjay Jain, Raghunatha Sethupathy B, Vikalp Mudgal, Ms. Jyoti Mendiratta, M/s. Mukesh Kumar Singh & Co., Sravan Kumar Karanam, Potturi Suresh Kumar, Pusa Mallesh, Ms. Pranali Tayade, Mrs. Medha Singh, P. Santhosh Kumar, Ms. Shireesh Tyagi, Mrs. B. Renuka Devi, Mrs. Mamatha Ralla, V.K. Biju, Anirudha Purushotham, Abhay Pratap Singh, Mrs. Ria Sachthey, Chetanya Singh, Shaji George, Dr. Ranjeet Bharti, Mayank Pandey, Ms. Viajy Lakshmi, Mrs. Rubina Jawed, Amlendu Kumar Akhilesh Kumar Jha, Mrs. Rekha Pandey, Nitin Meshram, Ashutosh Dubey, Advs. for theappearing parties. Applicant-in-person.
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Judgment
Judgment / Order of the Supreme Court
Judgment Dr Dhananjaya Y Chandrachud, CJI INDEX*
A. Background..................................................................... 5 i. Relevant constitutional provisions...................... 5 ii. The genesis of the reference to the Constitution Bench ..................................................................... 7 iii. The judgment in Chinnaiah .................................. 11 iv. The reference ........................................................ 16 B. Submissions ................................................................... 18 i. Submissions of Petitioners ................................. 18 ii. Submissions of Respondents .............................. 25 C. Issues ............................................................................. 31 D. Analysis ......................................................................... 32 i. The jurisprudence on reservation........................... 32 a. Reservation as an exposition of substantive equality ............................................................. 32 I. The competing visions of equality ............. 32 II. The “efficiency” of reservation .................. 38 III. The interplay of Article 16 and Article 335 44 ii. Permissibility of sub-classification under Article 14 ............................................................. 52 a. The contours of Article 14 .............................. 53 b. Sub-classification as a facet of equality ......... 55 c. Micro-classification: the limits of sub- classification .................................................... 61 iii. Sub-classification in reservations: tracing the journey through Balaji, Vasanth Kumar and Indra Sawhney ................................................................. 63 a. Indra Sawhney did not exclude sub-classification within the Scheduled Castes .......................... 69
* Ed. Note: Pagination as per the original Judgment.
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iv. The import of the deeming fiction in Article 341... 72 a. Chinnaiah on the deeming fiction in Article 341 ... 72 b. Scope of deeming fiction ................................. 74 c. Article 341 does not create a deeming fiction.. 76 d. Article 341(1) read with Article 341(2) only proscribes exclusion from and inclusion in the Scheduled Castes List...................................... 81 v. Historical and empirical evidence of inter-se backwardness within the Scheduled Castes...... 88 a. Identification of the depressed classes ............. 89 b. Empirical evidence of heterogeneity ................ 96 vi. The power of the State to sub-classify under Articles 15 and 16 ................................................. 100 vii. Criteria for sub-classification ................................ 103 a. The meaning of “Backward Class” .................. 104 b. Inadequacy of representation in services of the State .................................................................. 110 c. The requirement of “effective” representation.. 115 d. Yardstick for sub-classification.......................... 120 viii. The limits of sub-classification ........................... 122 a. Model of special provisions ............................... 122 b. The caste-class conundrum ............................. 128 ix. Scope for judicial review ...................................... 131 a. Inter-se backwardness ...................................... 131 b. Adequacy of representation .............................. 133 E. Conclusion ...................................................................... 138
11. The reference to this Constitution Bench raises significant questions relating to the right to equal opportunity guaranteed by the Constitution. The principal issue is whether sub-classification of the Scheduled Castes for reservation is constitutionally permissible.
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A. Background i. Relevant constitutional provisions
22. Article 14 of the Constitution stipulates that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 15(1) states that the State should not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(4) stipulates that nothing in Article 15 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.1
33. Article 16 deals with equality of opportunity in matters of public employment. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) stipulates that no citizen shall be discriminated in or be ineligible for any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Clause (4) of the provision states that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State.2
44. Article 366(24) of the Constitution defines the term ‘Scheduled Castes’ to mean such castes, tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Article 341(1) grants the President the power to notify the castes, races or tribes (or parts of or groups within castes, races or tribes) which shall be deemed to be Scheduled Castes for a State or a Union Territory for the purposes of the Constitution. The President has been empowered to issue the notification with respect to a State in consultation with the Governor of the State. Article 341(2) stipulates that Parliament may by law include or exclude any caste, race, or tribe (or part of
1 Article 15 (4) “Nothing in this article or in clause (2) of Article 29 shall prevent the State form making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” 2 Article 16 (4) “Nothing in this article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the services under the State.”
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or group within any caste, race, or tribe) from the list of Scheduled Castes specified in the notification and that a notification issued under clause (1) shall not be varied by any subsequent notification. Article 341 is extracted below for reference: “Article 341. Scheduled Castes.- (1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes, or parts of or groups within castes, races, tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. (2) Parliament may by law include or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race, or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
55. Articles 3423 and 342-A4 relate to notification of Scheduled Tribes and socially and educationally backward classes respectively and contain provisions pari materia to Article 341. ii. The genesis of the reference to the Constitution Bench
66. The State Legislature of Punjab enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006.5
3 Article 342. Scheduled Tribes.-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 4 Article 342A. Socially and educationally backward classes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify 6 [the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government] be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 5 “Punjab Act”
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The long title stipulates that it is a statute to provide for reservation in services for the members of the Scheduled Castes and Backward Classes and for matters incidental thereto. Section 2(f) defines “Scheduled Castes” as Scheduled Castes notified by the President under Article 341 of the Constitution by the Constitution (Scheduled Castes) Order 1950, as amended from time to time. Section 4(2) provides that reservation of twenty-five percent shall be made for the members of the Scheduled Castes and twelve percent for Backward Classes while filing up vacancies by direct recruitment in services. Section 4(5) stipulates that fifty percent of the vacancies of the quota reserved for the Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, if available, as a first preference from amongst the Scheduled Castes.
77. Proceedings were instituted under Article 226 of the Constitution for challenging the validity of Section 4(5) of the Punjab Act. By a judgment dated 29 March 2010, the High Court of Punjab and Haryana declared Section 4(5) unconstitutional, relying on the judgment of the Constitution Bench of this Court in EV Chinniah v. State of Andhra Pradesh.6
88. Opposing the State’s appeal against the order of the High Court, the respondents relied upon the judgment of the Constitution Bench in Chinnaiah (supra). The State submitted that Chinnaiah (supra) does not apply to the controversy in hand and that the decision is in any event, not consistent with the judgment of the nine-Judge Bench in Indra Sawhney v. Union of India.7 On 20 August 2014, a three-Judge Bench referred the correctness of Chinnaiah (supra) for consideration by a larger Bench. The three-Judge Bench observed that the judgment needs to be revisited, considering Article 338, the judgment of this Court in Indra Sawhney (supra) and the interplay between Article 16 and Articles 338 and 341 of the Constitution.
99. On 9 November 1994, the Government of Haryana issued a notification8 by which the Scheduled Castes in the State were classified into two categories - Blocks A and B - for the purposes of reservation. Block B consisted of Chamars, Jatia Chamars, Rahgars, Raigars, Ramdasias or Ravidasias. Block A consisted of
6 [2004] Supp. 5 SCR 972 : (2005) 1 SCC 394 7 (1992) Supp. 3 SCC 217 8 Notification No.22/5590-3-GS/111
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the remaining thirty-six castes in the list of Scheduled Castes for the State. Within the quota reserved for Scheduled Castes in direct recruitment for Government jobs, fifty percent of the vacancies were to be offered to candidates from Block A and the other fifty percent were to be offered to candidates from Block B. The notification further stipulated that in case suitable candidates from Block A were unavailable, candidates from Block B should be recruited against those vacancies. Similarly, in the event that suitable candidates from Block B were unavailable, candidates from Block A should be recruited against those vacancies. Thus, preference would be given to castes belonging to Block A and Block B in the fifty per cent earmarked for them. Proceedings were initiated under Article 226 for challenging the constitutional validity of the notification. By a judgment dated 6 July 2006, the High Court of Punjab and Haryana quashed the notification on the ground that the sub-classification of castes placed in the list of Scheduled Castes is unconstitutional in view of the judgment of this Court in Chinnaiah (supra). The Special Leave Petitions challenging the judgment of the High Court of Punjab and Haryana were tagged with the appeals involving the challenge to the Punjab Act.
1010. The State Legislature of Tamil Nadu enacted the Tamil Nadu Arunthathiyars (Special Reservation of seats in educational institutions including private educational Institutions and of appointments or posts in services under State within the Reservation for the Scheduled Castes) Act 2009.9 The long title to the legislation states that it is an Act to provide for reservation of seats to Arunthathiyars in educational institutions, including private educational institutions in the State and for appointment in services under the State. The Tamil Nadu Act defines Arunthathiyars to mean the castes of Arunthathiyar, Chakkiliyan, Madari, Madiga, Pagadi, Thoti and Adi Andhra from the list of seventy-six Scheduled Castes notified by the President under Article 341, as amended from time to time.10 Section 3 stipulates that sixteen per cent of the seats reserved for the Scheduled Castes in educational institutions shall be offered to the Arunthathiyars, if available, having regard to the social aand educational backwardness of the community. Section 4 makes a similar provision for the
9 “Tamil Nadu Act” 10 Tamil Nadu Act; Section 2(a)
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Arunthathiyars in recruitment to Government posts.11 Proceedings under Article 32 of the Constitution were instituted before this Court for challenging the constitutional validity of the Tamil Nadu Act on the ground that it contravenes the judgment of this Court in Chinnaiah (supra). The batch of matters challenging the Tamil Nadu Act was tagged with the batch of matters challenging the Punjab Act. iii. The judgment in Chinnaiah
1111. A three - judge Bench of this Court was called upon to adjudicate on the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act 2000. The Act was enacted following the recommendations of the Ramachandran Raju Commission constituted by the State Government. The Commission was tasked with ascertaining the groups among the Scheduled Castes in the State who had failed to avail of the benefits of reservations in college admissions and state public services. The Commission found inter-se backwardness among the Scheduled Castes in the state in matters of reservation in education and appointment. Accepting its findings- that there were inequalities among the Scheduled Castes as far as the distribution of the benefits of reservation was concerned - the State Government promulgated the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Ordinance 1999. While proceedings challenging the Ordinance were pending, the State enacted a law to replace Ordinance. Section 3, which provided for ‘Rationalisation of Reservations,’ apportioned the benefits of reservation among Scheduled Castes into four groups – Groups A, B, C and D - in varying percentages : 1% for Group A, 7% for Group B, 6% for Group C and 1% for Group D respectively, subject to the availability of eligible candidates. The Andhra Pradesh High Court rejected challenges to the Act, leading to appeals which came to be decided by this Court in Chinnaiah (supra).
11 4. Notwithstanding anything contained in the 1994 Act or the 2006 Act or in any other law for the time being in force or in any judgment, decree or order of any Court or other authority, having regard to the social and educational backwardness of Arunthathiyars included in the Scheduled Castes, sixteen per cent of the appointments or posts reserved for the Scheduled Castes shall be offered to Arunthathiyars, if available, in appointments or posts in the services under the State, on preferential basis amongst the Scheduled Castes, in such manner as may be prescribed. Explanation.- For the purposes of this Act, “services under the State” includes the services under- (i) The Government (ii) He legislature of the State (iii) Any local authority (iv) Any Corporation or Company owned or controlled by the Government; or (v) Any other authority in respect of which the State Legislature has power to make laws
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1212. The appellants argued that the State legislature lacked legislative competence to enact the law. They argued that once enumerated in the Presidential List under Article 341 of the Constitution, the Scheduled Castes constitute a homogenous class, which is incapable of further subdivision/sub-classification. Such a classification, they argued, amounted to tinkering with the Presidential List, in violation of Article 341(2) and Article 14 of the Constitution.
1313. The respondent-State on the other hand, argued that Article 341 allows the President to identify certain castes as Scheduled Castes and only Parliament can include or exclude entries from the List so created. The State argued that it could, in exercise of powers under Articles 15(4) and 16(4) decide the scope and extent of reservations. This power, they argued, was not limited by Article 341 which operates in an entirely different field. The State urged that the Act of 2000 was a form of affirmative action and it did not exclude or include anyone from the Presidential List under Article 341. Such a sub-classification of the Scheduled Castes was claimed to be permissible under Article 16(4) for the same reason that this Court had held in Indra Sawhney (supra) that the backward classes could be divided into the ‘more backward’ and ‘backward’, depending on inter-se backwardness.
1414. A Constitution Bench of this Court, speaking through Justice Santosh Hegde (for himself, Justice SN Variava and Justice BP Singh), Justice HK Sema and Justice SB Sinha unanimously held that the Andhra Pradesh Act was unconstitutional.
1515. Justice Hegde examined whether the Andhra Pradesh Act tinkered with the Presidential List notified under Article 341 and held that the States have no power to deal with the Scheduled Castes except the maintenance of efficiency of administration. Justice Hegde observed that certain members of the Constituent Assembly sought to give power to the States to interfere with the list but the amendments to that effect were unsuccessful. Analysing the opinion of Justice Hegde, the following formulations emerge:12 a. The Scheduled Castes form a class by themselves 13 as elucidated in the opinions of Justice Krishna Iyer and Justice Fazl Ali in State of Kerala v. NM Thomas;14
12 Chinnaiah (supra) [Justice Hegde, 13-19]. 13 Chinnaiah (supra) [Justice Hegde, 20-26]. 14 Chinnaiah (supra) [Justice Hegde, 82, 135 and 169].
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b. The purpose of the Act was to divide the castes in the Presidential List and then to distribute the 15% reservations for the Scheduled Castes in the state among four groups. The Act did not provide reservations for the first time but redistributed them by sub-classifying the Scheduled Castes. Reservations are not a constitutional mandate and once the state has fulfilled the obligation to reserve certain seats under Articles 15(4) and 16(4), it cannot apportion reservations among sub-classes. Notwithstanding the purpose of such sub-classification, the State cannot claim legislative competence under Entry 41, List II and Entry 25, List III of the Seventh Schedule in order to divide the Scheduled Castes’ List. The pith and substance of the law in question was not traceable to these entries;15 c. The Scheduled Castes constitute a class, and a classification already exists. The issue was whether a further classification is permissible within this class with the objective of providing reservations.16 The rationale of Indra Sawhney (supra), to the extent that it permitted sub-classification of the Other Backward Classes,17 did not apply to the Scheduled Castes.18 Sub-classification was akin to giving preference to a ‘miniscule proportion’ of the Scheduled Castes, over other groups and would be impermissible in view of Article 14;19 and d. The Constitution creates a legal fiction in terms of which the Scheduled Castes constitute a “class as a whole”. The States cannot sub-divide them. Such a sub-classification would tinker with the Presidential list and violate Article 14. If the benefits of reservation are not being distributed equitably, they can be supplemented by additional measures such as training, which would not be contrary to Articles 14 and 15.20 A further sub- classification amongst the Scheduled Castes would not be reasonable and a uniform yardstick must be adopted to give benefits to the Scheduled Castes.21
15 Chinnaiah (supra) [Justice Hegde, 30-31] 16 Chinnaiah (supra) [Justice Hegde, 38] 17 “OBCs” 18 Chinnaiah (supra) [Justice Hegde, 38] 19 Chinnaiah (supra) [Justice Hegde, 39,40] 20 Chinnaiah (supra) [Justice Hegde, 43] 21 ibid.
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1616. In his concurring opinion, Justice HK Sema held that the purpose of reservations is to afford special protection to the members of the Scheduled Castes and Scheduled Tribes as a homogenous class of persons. Further classification of this class of people would amount to tinkering with the Presidential List. This regrouping of a homogenous group would, also amount to reverse discrimination and be violative of Article 14.22
1717. In his concurring opinion, Justice SB Sinha held that Indra Sawhney (supra), while determining whether backward classes could be divided into more backward and backward classes, was not dealing with Scheduled Castes.23 In that context, Justice Sinha observed: a. Unlike the Other Backward Classes, Scheduled Castes and Scheduled Tribes are treated as a separate class by the Scheduled Castes and Tribes Orders;24 b. The State had failed to establish the reasonableness of its classification among the Scheduled Castes;25 c. The Relli Community was the most backward community and hardly received any benefits of reservations. On the other hand, the Adi Andhra community was numerically larger and educationally better off compared to the Rellis. Both these groups were placed in Group A and Group D respectively and each was given the same 1% share in total reservations. The Act thus wrongly treated them alike despite apparent differences, without any basis;26 d. Micro-classification was impermissible under Article 14;27
22 Chinnaiah (supra) [Justice Sema, 49, 50] 23 Chinnaiah (supra) [Justice Sinha, 75] 24 Chinnaiah (supra) [Justice Sinha, 77] 25 Chinnaiah (supra) [Justice Sinha, 81] 26 Chinnaiah (supra) [Justice Sinha, 97] 27 Chinnaiah (supra) [Justice Sinha, 98]. Relied on Triloki Nath v. State of J&K [1969] 1 SCR 103; State of UP v. Pradip Tandon 1975 1 SCC 267; Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India (1981) 1 SCC 246.
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e. Backwardness of the class was the link holding this class together and a classification that is justifiable based on backwardness of the class cannot be based on backwardness of the caste;28 f. Article 16(4) must be read with Article 335 and efficiency of administration cannot be sacrificed to benefit some castes out of the homogenous Scheduled Castes;29 and g. The validity of the sub-classification and not the extent of the reservation was in question. Therefore, the argument that the States have the prerogative to decide the extent of reservations was inapplicable.30 The State could certainly stipulate the legislative policy about the extent of reservations but it could not take away the benefit of reservations on the ground that certain groups among the Scheduled Castes have advanced in the hierarchy.31 iv. The reference
1818. On 27 August 2020, in State of Punjab v. Davinder Singh,32 a Constitution Bench held that the judgment in Chinnaiah (supra) requires to be revisited by a larger Bench of seven Judges because it failed to consider significant aspects bearing on the issue. These aspects have been formulated thus: a. In Indra Sawhney (supra),33 this Court held that it is constitutional to classify the backward class into the ‘backward’ and the ‘more backward’ class of citizens. The provisions of Articles 341, 342, and 342A are pari materia. That being the case, this Court has to analyse how a contrary conclusion to the effect that sub- classification is permissible within the Backward Class but not within the Scheduled Castes, could be reached. In Indra Sawhney (supra) the phrase “Backward Classes” in Article 16(4) was interpreted to include both socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes;34
28 Chinnaiah (supra) [Justice Sinha, 104] 29 Chinnaiah (supra) [Justice Sinha, 105] 30 Chinnaiah (supra) [Justice Sinha, 112,113] 31 Chinnaiah (supra) [Justice Sinha, 114] 32 [2020] 10 SCR 857 : (2020) 8 SCC 1 33 (1992) Supp. 3 SCC 217 [Justice Reddy,803];[Justice Sawant, 524 and 525] 34 (2020) 8 SCC 1 [42]
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b. The Scheduled Castes are not a homogenous class. 35 Preferential treatment can be given to the most downtrodden of the class who are not adequately represented. Such a sub- classification is made to provide equality of opportunity, so as to achieve the purpose of reservation;36 c. It would be open to the State, under Article 16(4), to grant the benefits of reservation on a rational basis to certain castes within the Scheduled Castes by fixing a reasonable quota of the reserved seats for them if they are inadequately represented;37 and d. Preferential treatment to certain castes would not lead to the exclusion of other castes from the list prepared under Article 341.38 In Jarnail Singh v. Lachhmi Narain Gupta,39 this Court observed that the exclusion of the “creamy layer” from the Scheduled Castes for securing the benefit of reservation does not tinker with the Presidential List under Article 341. All the castes included in the list of Scheduled Castes are given the benefit of reservation even if they are sub-classified. B. Submissions
1919. The submissions of the counsel were restricted to the issue of whether the judgment of this Court in Chinnaiah (supra) requires to be reconsidered since the High Court had held that the Punjab Act and the Haryana Notification were unconstitutional solely for the reason that they are contrary to the above judgment. i. Submissions of Petitioners
2020. Mr Gurminder Singh, Advocate General for the State of Punjab and Mr Shadan Farasat, Additional Advocate General made the following submissions: a. The judgment in Chinnaiah (supra) erroneously treats the Scheduled Castes as an indivisible monolith/block;
35 Relied on the observation of Justice Reddy in Indra Sawhney (supra) 36 (2020) 8 SCC 1 [50] 37 (2020) 8 SCC 1 [52, 56] 38 (2020) 8 SCC 1 [35] 39 [2018] 10 SCR 663 : (2018) 10 SCC 396
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b. Preferential treatment promotes substantive equality. Chinnaiah (supra) is against the very idea of reservations which mandates protective discrimination based on relative backwardness; c. Justice SB Sinha’s judgment in Chinnaiah (supra) is self- contradictory. While it recognizes inter-se disparity among the Scheduled Castes, it holds the remedy to address this disparity to be unconstitutional. Once inter-se disparity is acknowledged, sub-classification of the class would be in pursuance of substantive equality; d. The State has the power to sub-classify because the enabling power to reserve seats includes ancillary and supplemental provisions such as preferences, concessions and exemptions; e. In Indra Sawhney (supra) this court has recognised internal differences between castes.40 Sub-classification within a class aligns with the opinion of Justice Mathew in NM Thomas (supra) holding that further classification within the class was possible;41 f. The Scheduled Castes are not a homogenous group but face varying degrees of discrimination. The first part of the obligation under Article 16(4) to ascertain backwardness has been accomplished by the President and subsequently, by the Parliament under Article 341. The second part of the enquiry about ‘inadequate representation’ is a mandate for the States. If the Scheduled Castes list were to be treated as a monolith, it would render the second part of Article 16(4) otiose and make the role of the States redundant; g. Sub-classification varies from the creamy layer principle since (i) economic advancement does not offset social discrimination faced by the Scheduled Castes; (ii) while the creamy layer excludes the socially advanced, sub-classification aims to identify within the Scheduled Castes, those who face the maximum social discrimination; (iii) sub-classification mainstreams certain castes and creates a preference based on qualitative inclusion, contradistinguished from exclusion of the creamy layer; and
40 Relied on Indra Sawhney (supra) [Justice Reddy, 802] 41 Relied on NM Thomas (supra) [Justice Mathew, 43]
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(iv) preferential treatment identifies certain castes within the Scheduled Castes’ list, while the creamy layer exclusion applies to individuals; h. Scheduled Castes do not lose their identity once enumerated because caste is a sociological reality while the enumeration in the list is through the operation of a legal fiction. The limited preference to some groups by sub-classification because of their relative disadvantage will not exclude the other Scheduled Castes in the List notified under Article 341; i. The State Legislatures have the legislative competence to make preferences for the purposes of laws in relation to Entry 41 of List II and Entry 25 of List III of the Seventh Schedule; and j. Article16(4) is not subject to Article 335. ‘Efficiency’ under Article 335 must be defined in an inclusive sense.
2121. Mr Kapil Sibal, senior counsel made the following submissions: a. The Constitution permits sub-classification. Article 366(34) which defines the Scheduled Castes envisages that even a part of a caste or a group may be included; b. While Justice Mathew in NM Thomas (supra) noted that “they are no castes in the Hindu fold but an amalgam of castes …”, in Chinnaiah (supra), Justice Hegde replaced “they” with “there” in the above paragraph and noted instead, “there are no castes…”. This replacement completely alters the meaning of the quotation in NM Thomas (supra) which was that the Scheduled Castes and Scheduled Tribes are a conglomeration of groups placed outside of the caste hierarchy, and not that Scheduled Castes/Scheduled Tribes are homogenous;42 c. When Dr. B R Ambedkar stated in the Constituent Assembly that Article 341 is meant to “eliminate any kind of political factors” in “disturbing” the List, he was referring to inclusion and exclusion from the List. Sub-classification has no bearing on the power of inclusion and exclusion. Potential political tinkering cannot obviate the present constitutional need for acknowledging and remedying inter-se inequality among the Scheduled Castes;
42 Chinnaiah (supra) [Justice Hegde, 22] relying on NM Thomas (supra) [Justice Iyer, 135]
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d. Article 342A of the Constitution inserted by the Constitution (One Hundred and Second Amendment) Act 2018 empowers the President to notify socially and educationally backward classes. This Article is pari materia to Article 341 and Article 342. Sub-classification is permissible for Schedule Castes because Indra Sawhney (supra) permits sub-classification for the Socially and Educationally Backward Classes and after the inclusion of Article 342A, they are at par with the Scheduled Castes; and e. Chinnaiah (supra) is not in line with empirical data collected by the State. According to the view of Justice Reddy in Indra Sawhney (supra),43 several castes or tribes within the Scheduled Castes and Scheduled Tribes are not similarly situated.
2222. Mr Shekhar Naphade, senior counsel appearing on behalf of the State of Tamil Nadu submitted that: a. Chinnaiah (supra) does not provide connecting links between Article 341 and subclassification. The plain meaning of Article 341 does not limit the power of the State legislature to classify the listed Scheduled Castes; and b. Classification based on inter-se backwardness is in pursuance of Article 14. This inter-se backwardness is not among individuals but among groups in the Scheduled Castes. Indra Sawhney (supra) is applicable to sub-classification of the Scheduled Castes.
2323. Mr Gopal Sankaranarayanan, senior counsel submitted on behalf of Intervenor Madiga Jana Seva Samiti that Scheduled Castes or Tribes are not castes because Article 366(24) uses “deemed”. Article 16(2) uses “only”; thus, a Scheduled Caste, identified due to historic untouchability, is not “caste” under Articles 15(1) and16(2).
2424. Mr KK Venugopal, learned senior counsel for the Petitioner Madiga Reservation Porata Samithi submitted that Article 14 does not only mandate equal treatment to all but also bars discrimination by equal treatment of unequals. He submitted that Article 38(2) entitles those who are unequal in status to special treatment to bring them on the same plane. Article 341 has to be read along with Article 38(2).
43 Relied on Indra Sawhney (supra) [Justice Reddy, 795].
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2525. Mr R Venkataramani, Attorney General of India submitted that Articles 14 to 16 and Articles 341 and 342 operate in different fields. Mere designation under Article 341 does not entail homogeneity.
2626. Mr Tushar Mehta, Solicitor General of India submitted that equality is not a static concept. It has evolved from the judgment of this Court in Champakam Dorairajan (supra), to Indra Sawhney (supra). Sub- classification is an issue of rationalising the affirmative action regime.
2727. Mr Nidhesh Gupta, Senior Counsel submitted that adequate representation is a matter within the subjective satisfaction of the state, subject to backwardness and inadequacy of representation. Courts cannot scrutinize underlying data to reach that satisfaction of the state. Since Article 16(4) refers to “backward classes of citizens” collectively, Scheduled Castes are at par with the Backward Classes. Article 16(4) is a broader provision that Articles 15 (4) and 15(5). While Articles 15(4), 15(5) refer to “any special provisions for the Scheduled Castes..”, Article 16(4) uses “..any backward class of citizens”. The use of “any” in Article 16(4), as opposed to the use of the word “the” to qualify the beneficiary classes in Articles 15(4) and 15(5), indicates that there is a greater discretionary power under Article 16(4).
2828. Mr Vijay Hansaria, Senior Counsel submitted that the List under Article 341 is not a constitutional provision in itself, but an executive order passed by the President that can be modified by Parliament.
2929. Dr S Muralidhar, Senior Counsel appearing on behalf of the State of Andhra Pradesh submitted that the State has not enacted a new law consequent to the decision in Chinnaiah (supra).
3030. Mr Arun Bhardwaj, Senior Counsel appearing on behalf of the State of Haryana submitted that there are disadvantaged groups within the Scheduled Castes and the State should be allowed to alleviate their concerns.
3131. Mr Kanu Agarwal, standing counsel for Chandigarh submitted that affirmative action can be summarized as a two- step process including identification (Articles 341 and 342) and extension (i.e. how affirmative action can be undertaken).
3232. Ms Shraddha Deshmukh, counsel submitted that rights cannot be bundled up for the unequal members of the Scheduled Castes,
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without ensuring that the rights accrue to them in proportion to their lack of representation. Sub-classification is therefore, essential for better representation of the weaker among the Scheduled Castes.
3333. Mr Dama Sheshadri Naidu, Mr Rajesh Kumar Khanna, Mr Sidharth Luthra, senior counsel, and Dr Vivek Sharma, Mr Shivam Singh and Mr Sanjay Jain, counsel appearing on behalf of other Petitioners and Intervenors have adopted the above submissions. ii. Submissions of Respondents
3434. Mr Manoj Swarup, senior counsel made the following submissions: a. The Scheduled Castes constituted by a notification issued by the President under Article 341(1) are a class in themselves. The latter part of Article 341(2) stipulates that no variation to the List is permitted except by a law enacted by Parliament. The class constituted by the Presidential notification can be interfered with only by Parliament under Article 341(2). As is evident from the Constituent Assembly debates on Article 341, Parliament is solely vested with the power to alter the Presidential list otherwise, the executive would tinker with the list to achieve political ends; b. Upon the issuance of a notification by the President under Article 341, the castes notified are deemed to be Scheduled Castes for the purposes of the Constitution. The castes which are included in the Presidential list under Article 341 are heterogenous. However, once notified, the castes are put in an artificial mould of homogeneity by the deeming fiction; c. The necessary effect of the preferential treatment to Balmiki Sikhs and Mazhabis in the fifty percent seats reserved for Scheduled Castes in Punjab is that the persons belonging to other Scheduled Castes are excluded from those seats; d. None of the entries in the Seventh Schedule deal with Scheduled Castes. The only entry under which a law on reservation for the Scheduled Castes can be enacted is Entry 97 of List I. Thus, even if sub-classification of the Scheduled Castes is permissible, only Parliament and not the Legislature of the State has the power to enact such a law;
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e. The National Commission for Scheduled Castes constituted under Article 338 can consider any new data sets or experiences of the Scheduled Castes and make recommendations. However, the power to alter the list solely vests with Parliament; f. Courts through a judicial exercise cannot include or exclude any caste from the list of Scheduled Castes or Scheduled Tribes notified by the President;44 g. Classification within the Scheduled Castes is based on caste which is impermissible by virtue of Article 16(2); and h. Contrary to the submissions of the petitioners, Chinnaiah (supra) discusses the interplay between Articles 16(4) and 341 of the Constitution.
3535. Mr Salil Sagar, senior counsel made the following submissions: a. The direct impact and effects standard45 must be used to decide the issue of whether granting preference to certain castes amounts to tinkering the Presidential List. Sub-classification, in effect, restricts the scope and operation of the Presidential list in the following manner: i. It has an exclusionary effect, disturbing the scheme of reservation sought to be implemented; ii. It disproportionately increases the share of reservation available to certain communities and decreases the share available to the rest of the communities; and iii. The sub-grouping of castes violates the legal fiction in Article 341 by which a homogenous group is created for the purposes of the Constitution. b. In Indra Sawhney (supra), this Court held that sub-classification of other backward classes is constitutionally valid. This Court cautioned against the application of the same principles to Scheduled Castes and Scheduled Tribes; and
44 Bhaiyalal v. Harikishan Singh (1965) 2 SCR 877; State of Maharashtra v. Milind (2001) 1 SCC 4; Bir Singh v. Dekhi Jal Board (2018) 10 SCC 312 45 Relied on IR Coelho v. State of Tamil Nadu (2007) 2 SCC 1
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c. Sub-classification of the Scheduled Castes cannot be held constitutional merely because Articles 341, 342 and 342-A are pari materia. The classes represented by the Scheduled Castes and the Other Backward Classes are distinct. Castes which are notified as Scheduled Castes have a feature of commonality; they all suffer from the historical injustice of untouchability.
3636. Dr KS Chauhan, senior counsel made the following submissions: a. In Indra Sawhney (supra), this Court held that a caste can be a class for the purposes of reservation under Article 16 if the caste is socially and educationally backward;46 and b. In Indra Sawhney (supra), Justice Jeevan Reddy observed that Article 16(4) of the Constitution mainly contemplates that reservation must be on the grounds of social backwardness. There cannot be any further classification of the Scheduled Castes since all the castes which are notified as Scheduled Castes by the President share the commonality of social backwardness in the form of untouchability.
3737. Mr Sanjay Hegde, senior counsel made the following submissions: a. This Court in the judgments delivered after Indra Sawhney (supra) has observed that it was limited in its application to Other Backward Classes;47 b. In State of Kerala v. NM Thomas,48 this Court held that the Scheduled Castes constitute a class in themselves. Similar observations were made in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India;49 c. The notification issued by the President under Article 341 can be altered only by law made by Parliament;50
46 (1992) Supp. 3 SCC 217 [Justice Pandian, 57,60,67,82,95]; [Justice Jeevan Reddy, 782,784] 47 Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 [293, 393, 633]; Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396 [16, 24, 34] 48 [1976] 1 SCR 906 : (1976) 2 SCC 310 49 [1981] 2 SCR 185 : (1981) 1 SCC 246 50 Relied on B. Basavalingappa v. D. Munichinnapa (1965) 1 SCR 316; Bhaiya Lal v. Harikrishnan Singh (1965) 2 SCR 877; Srish Kumar Chodhury v. State of Tripura, (1990) Supp. SCC 220; Palghat Jilla Than dan Samudhya Samrakshna Samiti v. State of Kerala (1994) 1 SCC 359; State of Maharashtra v. Milind (2001) 1 SCC 4 [15]; Bir Singh v. Delhi Jal Board (2018) 10 SCC 312
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d. States must confer the benefits to members of all the castes notified by the President under Article 341. If the State Government is of the opinion that benefits are not required to be conferred to the caste, then it can make a recommendation for its exclusion from the list of Scheduled Castes; and e. The purpose of conferring Parliament with the power to alter the list issued by the President under Article 321 is to prevent the tinkering of the list for political purposes.
3838. Mr Mallela Venkata Rao, counsel submitted that the opinion of Justice SB Sinha in Chinnaiah (supra) that other forms of affirmative action must be employed to remedy inter-se backwardness within the Scheduled Castes is the appropriate and constitutional approach.
3939. Mahendra Kumar Mitra, Petitioner-in-person appearing on behalf of Dr. Ambedkar Scheduled Castes Federation, Karnataka submitted that the recommendation of the Justice Usha Mehra Committee to include Clause (3) to Article 341 providing Parliament the power to sub-categorize castes upon a resolution received from the State was not accepted by the National Commission for Scheduled Castes.51
4040. Anusuchit Jaati-Janjati Adhikari Evam Karamchari Sangh, a social welfare association submitted that sub-classification of the Scheduled Castes defeats the purpose of providing special reservation to Scheduled Castes.
4141. Mr Saket Singh, appearing for the Haryana Pradesh Chamar Mahasabha, submitted that the deeming fiction in Article 341 creates a common identity of Scheduled Castes even though each caste within the list possesses a unique identity. Counsel further submitted that the Constitution would expressly provide a provision for the special treatment of certain castes where necessary.
4242. Mr Vembadi Subramanian and Mr VK Biju, counsel, made submissions on the same lines.
51 3rd meeting of the National Commission for Scheduled Castes held on 13.12.2010 under the Chairmanship of Dr PL Punia.
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C. Issues
4343. The Constitution Bench has to adjudicate upon whether the sub- classification of Scheduled Castes for the purpose of providing affirmative action, including reservation is valid. In this context, the following issues arise for consideration: a. Whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16; b. Whether the Scheduled Castes constitute a homogenous or a heterogenous grouping; c. Whether Article 341 creates a homogenous class through the operation of the deeming fiction; and d. Whether there any limits on the scope of sub-classification. D. Analysis i. The jurisprudence on reservation
4444. The jurisprudence surrounding reservations has undergone turbulations, both inside and outside the courts. Two crucial issues have dominated the jurisprudential debate – identifying the model of equality espoused by the Constitution and the interplay of equality with ‘efficiency’ or ‘merit’. It is important that we trace the core principles governing reservations in India before we proceed to answer the issue of whether sub-classification of the Scheduled Castes is violative of Articles 14,15 and 16. This would enable us to analyze whether sub-classification furthers the constitutional promise of equality. a. Reservation as an exposition of substantive equality
4545. The purpose of the equal opportunity principle in Article 16(1) and the reservation provision in Article 16(4) has emerged as a focal point of the jurisprudence on reservations in this Court. A discussion of the journey of the competing models of equality that the Court has espoused and their evolution over the course of the years is necessary to understand the constitutional vision on equality. I. The competing visions of equality
4646. Articles 14, 15 and 16 of the Constitution encompass an equality code in pursuance of the preambular values of equality of status and opportunity and social justice. Article 14 lays down general principles
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governing equality by postulating that there must be “equality before the law” and “equal protection of law”. In its formative years, this Court interpreted Article 14 through the lens of the classification doctrine52 which is premised on the recognition that formal equality in law, by which every person irrespective of their circumstances is treated alike, does not translate to factual equality. The underlying foundation of this doctrine is that two persons who are not similarly situated cannot be treated alike.53
4747. Articles 15(1) and 16(1) were viewed as an elucidation of the equality principle housed in Article 14.54 However, the Courts were reticent in applying the doctrine of reasonable classification and its underlying assumption that ‘not all persons (and not all situations) are alike’ to the realm of reservation. The reason for the hesitation was that the means adopted (that is, reservation) were understood to not have relevance to securing equality of opportunity which was defined in terms of formal equality and efficiency.55 In the State of Madras (now Tamil Nadu), seats in Medical and Engineering colleges were apportioned among different groups in the proportion set forth in a Government Order called the “Communal GO”. Seats were apportioned in specific proportions for Non-Brahmins (Hindus), Backward Hindus, Brahmins, Harijans, Anglo-Indians, Christians and Muslims.56 In State of Madras v. Champakam Dorairajan,57 a Constitution Bench of this Court held the reservation of seats in educational institutions on that basis to be unconstitutional and violative Article 29(2) which stipulates that no citizen shall be denied admission in any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language, or any of them. The Court observed that Article 29 does not contain an exception clause such as Article 16(4) which would permit reservation of seats in educational institutions.
52 See State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75 53 Chiranjit Lal Chowdhury v. Union of India (1950) SCC 833 [38,39] 54 Chiranjit Lal Chowdhury v. Union of India (1950) SCC 833 [38,39] 55 General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; CA Rajendra v. Union of India, AIR 1968 SC 507 56 Non-Brahmin (Hindus): 6; Backward Hindus: 2; Brahmins: 2; Harijan: 2, Anglo-Indians and Indian Christians (1); Muslims: 1. 57 [1951] SCR 525
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