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

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After due inquiry, the community may be added to the List by Parliament, subject to its satisfaction that such a modification is required. Until then, the State has to apply the Scheduled Castes List as it is.180 Thus, to summarize, Article 341(2) bars the State Legislature from removing or adding castes from and to the List respectively. Sub-classification within the Scheduled Castes for the purposes of affirmative action, including reservation does not include or exclude any caste or group from the List. Section D(iii) of this judgment deals with the different models of sub-classification to determine if the operation of reservation upon sub- classification in-effect leads to exclusion. v. Historical and empirical evidence of inter-se backwardness within the Scheduled Castes

124Copy pinpoint124. Having held that Article 341 does not create an integrated homogenous class, we will next decide whether there is an intelligible differentia to group the castes within the Scheduled Castes. For this, it needs to be analyzed if the Scheduled Castes are a heterogenous class. The respondents submitted that there cannot be any sub- categorization of the Scheduled Castes because all the castes face the same form of social backwardness based on untouchability. The petitioners, on the other hand, submitted that there exists inter-se backwardness within the Scheduled Castes.

125Copy pinpoint125. The Constitution of India does not provide a definition of the Scheduled Castes. Article 366(24) states that castes/groups notified under Article 341 shall be Scheduled Castes. However, neither Article 341 nor Article 366(24) prescribes the criteria for their identification. The President issued the Constitution (Scheduled Castes) Order 1950 which nearly corresponds to the Government of India (Scheduled Castes) Order 1936 notified under the Government of India Act 1935.181 It is important to identify the criteria for inclusion of groups or castes in the Scheduled Castes Order 1936.

126Copy pinpoint126. The Government of India Act 1935 did not define the criteria for the identification of Scheduled Castes. Clause 26(1) of the First Schedule

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

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to it defined the Scheduled Castes as castes that corresponded to the classes of persons known as the “depressed classes”: “the scheduled castes” means such castes, races or tribes, or parts of or groups within castes, races or tribes being castes, races, tribes, parts or groups which appear to his Majesty in Council to correspond to the classes of persons formerly known as the depressed classes, as His Majesty in Council may specify.” (emphasis supplied)

127Copy pinpoint127. It is necessary that we briefly refer to the historical material on how the depressed classes were identified to analyze if the Scheduled Castes are a heterogenous class and whether there is an intelligible differentia distinguishing the sub-categories within the Scheduled Castes. a. Identification of the depressed classes

128Copy pinpoint128. In 1916, the definition of the depressed classes was raised in the Indian Legislative Council. It was suggested during the discussion that the expression should include criminal and wandering tribes, aboriginal tribes and untouchables.182 In 1917, Sir Henry Sharp, the Education Commissioner, prepared a list of depressed classes which included the aboriginal or hill tribes, depressed classes and criminal tribes. While preparing the list, Sir Henry stated that depressed classes “[…] includes communities which though not absolutely outside the pale of caste, are backward and educationally poor and despised and also certain classes of Muslims. Some have interpreted it as simply educationally backward”.183

129Copy pinpoint129. In 1919, the Southborough Franchise Committee adopted the test of untouchability to define the depressed class. The Indian Franchise Committee 1932, inter alia, was appointed to ascertain if a separate electorate must be provided to the depressed classes. The Committee also had to arrive at a definition of “depressed classes”. The Committee interpreted the phrase “depressed classes” as the ‘untouchability class’, that is, the class whose touch or approach is

182 Report of the Indian Franchise Committee (1932) Vol I, 112 183 Ibid, 113

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deemed to cause pollution as it exists in the United Provinces.184 The report stated that the depressed classes “should not include primitive or aboriginal tribes nor should it include those Hindus who are only economically poor and in other ways backward but are not regarded as untouchables.”185 The Committee accepted the tests of untouchability formulated by Hutton.186 Hutton had submitted a Census Report in 1931 by which depressed castes were defined as castes, contact with whom requires purification. The instruction which was given to determine if the caste is an untouchable caste was as follows: “I have explained depressed castes as castes, contact with whom entails purification on the part of high caste Hindus. It is not intended that the term should have any reference to occupation as such but to those castes which by reason of their traditional position in Hindu society are denied access to temples, for instance, or have to use separate wells or are not allowed to sit inside a school but have to remain outside or which suffer similar social disabilities. These disabilities vary in different parts of India being much more severe in the south of India than elsewhere.”187

130Copy pinpoint130. The following tests were directed to be considered to determine if the caste faces untouchability: a. Whether the caste or class in question can be served by clean Brahmans; b. Whether the caste or class in question can be served by the barbers, water-carriers, tailors, etc., who serve the caste Hindus; c. Whether the caste in question pollutes a high caste Hindu by contact or by proximity; d. Whether the caste or class in question is one from whose hands a caste Hindu can take water;

184 id 185 id 186 Ibid,Pg. 112 187 Hutton Censes Report (1931) 471

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e. Whether the caste or class in question is debarred from using public conveniences such as, roads, ferries, wells, or schools; f. Whether the caste or class in question is debarred from the use of Hindu temples; g. Whether in ordinary social intercourse, a well-educated member of a caste or class in question will be treated as an equal by high caste men of the same educational qualifications; h. Whether the caste or class in question is merely depressed on account of its own ignorance, illiteracy or poverty and but for that would be subject to no social disability; and i. Whether it is depressed on account of the occupation followed and whether but for that occupation it would be subject to no social disability.

131Copy pinpoint131. Though the test that was proposed to be used was that of untouchability, the criteria above and in particular, criteria (f), (g) and (h) indicate that other forms of social disability which cannot be strictly confined to untouchability were also considered. The report recognized that there may be a variance in the degree of restrictions based on the degree of untouchability. For example, a few castes may have been denied entry to a temple as compared to castes which were denied entry to the inner sanctuary of the temple.188

132Copy pinpoint132. The Note submitted by Assam casts light upon the heterogeneity amongst the castes which face untouchability. The Note states that untouchability as it existed in Madras, where an untouchable’s touch necessitated immediate purification, did not exist in Assam. Mr Maullan, the Census Superintendent in Assam defined the depressed class (which he termed as “exterior castes”) as castes whose water is not acceptable and in addition are so deficient in education, wealth, influence, or for some reason connected with their traditional occupations which prevents them from acquiring any further social privileges. The Superintendent further noted that there are influential and wealthy castes even among the jal-achals (that is, those whose water was not acceptable). The note also distinguished the untouchability which certain castes faced from other untouchable castes:189

188 Ibid, 472 189 Ibid, 495

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“The exterior castes themselves are, however, guilty of similar treatment to each other and an exterior caste which considers itself to be on a higher social level than another exterior caste adopts exactly the same attitude as the higher castes do towards the exterior castes. A case which recently happened in Sunamganj illustrates this point. The local ferryman there (a patni by caste) was prosecuted for refusing to row a Muchi and that it has always been the practice, if a Muchi wanted to cross the river, for the paddle to be given to him so that he could row himself across.”

133Copy pinpoint133. The Note of the Superintendent of Assam on Mahars further elucidated the point that there was no “uniformity” in the untouchability faced by members of various castes. The Note explained that Mahars were included in the list of depressed class though they were jal-chal in the limited sense in as much as a man of the forward caste “can smoke huka filled with water by a Mahar”. They were included because they were untouchables with respect to everything but for smoking requirements and they were a socially and educationally backward community:190 “I have made close and careful enquiries and there is a general consensus of opinion that the Mahars are not jal- chal and are a depressed class. The story of Raja Subid Narayan made them jal-chal for smoking requirements only, seems to be true. If the Mahars are at all jal-chal, they are jalchal only in the sense that a man of the higher caste can smoke a huka filled with water by a Mahara. There is not a single graduate among the Maharas in this subdivision and not even a single matriculate can be found. The deputy Inspector of Schools reports that the only educated Maharas he has met in the whole subdivision are three persons working as Vernacular teachers in Primary and Middle English Schools. So the Maharas are depressed both socially and educationally.”

190 Ibid, 498

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134Copy pinpoint134. The list prepared by Madras noted that castes to whom the “technical stigma of untouchability” does not apply, had been excluded from the list. This approach when juxtaposed with the approach adopted by Assam, varies with respect to the stringency of the untouchability standard employed.191 It is evident that there is no one “form” of untouchability. Untouchability, like other forms of social disability differs in degree and severity.

135Copy pinpoint135. Based on the tests for identifying untouchability laid down by Hutton, the Provincial Committee prepared the provincial estimates of depressed classes. In Madras, Bombay and the Central Province, there was a general agreement between the Provincial Committees and the Local Governments on the estimate of the depressed classes because the distinction between the depressed and other classes of the Hindu Communities was clearly defined. On the other hand, the States of Bihar, Orissa and Assam while stipulating the castes which faced untouchability observed that untouchability in the States did not exist in the same form as it existed in South India.

136Copy pinpoint136. Mr SB Rambe, Mr CY Chintamani and Mr RR Bakhale submitted a note of dissent, inter alia, on the depressed classes in which they claim that the tests for untouchability were not applied with uniformity.192 They observed that untouchability only existed in Madras, Bombay and the Central Province. They claimed that in other states, untouchability was not an adjunct of a person but the occupation that they pursued and thus, those castes should not have been included in the list of the depressed classes.193 It is here that the Note submitted by Dr B R Ambedkar on depressed classes is of particular importance for it encapsulates the heterogeneity within the castes which suffer untouchability.

137Copy pinpoint137. Dr B R Ambedkar highlighted that applying a uniform criterion to identify the depressed class would be inappropriate. Dr Ambedkar observed that the differences in the tests of untouchability do not indicate differences in the conditions of the untouchables because the notion underlying both the standards would be the same,

191 Ibid, 499 192 Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise Committee, 231 193 id

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that it is below the dignity to interact or touch persons of certain castes. He observed that the difference in the rigidity with which untouchability is practiced does not eliminate the notion of such a practice.194 This indicates that the depressed classes were identified based on the notion of untouchability and not in the literal sense of the term. The effect of adopting the notional and not the literal test is that the social condition of all the castes included within the depressed classes is not uniform. Though the Government of India (Scheduled Castes) Order 1936 did not exactly correspond to the List published by Hutton or the Provincial Franchise Committees, the inclusions and exclusions to the list broadly matched.195

138Copy pinpoint138. The heterogeneity within the class is also evident from the Constitution (Scheduled Castes) Order 1950 where certain castes are notified as the Scheduled Castes in specific localities. For example, in the State of Madhya Pradesh, of the twenty-five castes, only nine are Scheduled Castes throughout the State. The criteria used to identify the Scheduled Castes itself indicates that the endeavor was not to include all castes that suffered from identical forms of untouchability. Thus, the Scheduled Castes are not a homogenous class. b. Empirical evidence of heterogeneity

139Copy pinpoint139. Field researchers have also accounted that the Scheduled Castes are not one homogenous class. Studies indicate that certain castes of the Scheduled Castes are not only sociologically backward vis- à-vis the forward castes but also amongst the Scheduled Castes themselves. AM Shah recounts that there was much less interaction between two Dalit castes in Gujarat than there was between a Dalit caste and a forward class. The author observes that the priests for the Dalits are placed high amongst the Dalit castes and the scavengers are placed the lowest, with the leather-workers and the rope makers occupying the intermediary positions:196 “Briefly, the Dalits have reproduced among themselves a hierarchy on the model of caste hierarchy in general.

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

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There is at the top a small caste of garodas (derived from the Sanskrit word ‘guru’), who are priests for other dalit castes, […] Similarly, just as there are castes of bards for the upper castes, there is a bardic caste of dalit mendicants called dhed bava or sadhu. The garudas, turi barots, and dhed sadhus are accorded certain sacredness. The bhangis (scavengers) are the bottom of the hierarchy and the most under-privileged. Between the garodas and bhangis there is a large caste, the higher stratum of which is traditionally vankar (weavers) and the lower stratum dhed (menial servants). […] The chamars (leatherworkers) and senwas (rope-makers) occupy positions intermediately between the vankar-cum-dheds and bhangis. The bhangis are the most oppressed.”

140Copy pinpoint140. The Robert F Kennedy Centre for Justice and Human Rights in collaboration with Navsarjan (an organization that promotes the rights of Dalits) undertook an extensive study on caste discrimination in 1589 villages in Gujarat. The census conducted by them produced results of horizontal discrimination, the practice by which certain Dalit castes practiced untouchability against other Dalit castes. The study identified that the practice of food, water and religion related untouchability is emulated within the Dalits as well. For example, Dalits of the lower sub-caste were prevented from sitting with the rest of the Dalit community during meals. They were not given tea when they visited the house of a higher sub-caste. It was also found that only in twelve percent of the villages could a Dalit belonging to a lower sub-caste receive water in the house of a Dalit of a higher sub-caste. The study also found that in 92.4 percent of the villages studied, all the Dalits did not have access to all-Dalit burial grounds and that the lower sub-castes were denied entry into to Dalit Temples in 79 percent of the villages.197

141Copy pinpoint141. Similarly, in Tamil Nadu, when an Arunthathiyar man and a Paraiyar woman (both the castes find a place in the Scheduled Castes list) eloped, the woman’s family allegedly raped the women of the man’s

197 Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive Study of Practices and Conditions in 1589 Villages, 22-33

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

198 Ravinchandran Bathran, The many omissions of a concept: Discrimination amongst Scheduled Castes, Economic & Political Weekly (Vol L1 No. 47, November 19, 2016) 1342-1346 199 Uma Ramaswamy, Protection and Inequality among Backward Groups, Economic & Political Weekly (Vol. 21 No. 9, 9 March 1986) 200 Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327]

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higher castes do not take either cooked food or water from Bindlas. Being worshippers of Shakti (the power) they do not take food or water from the hands of their satellite castes, since they consider themselves as sacred. Sindhu, the entertaining caste of Madigas” do not take food or water from Dakkals but their food or water is acceptable for Madigas. Dakkals who occupied a lowest social status in social hierarchy accept food and water from all castes, except Vishwa Brahamaa. The food or water of Dakkals is not acceptable to any other caste. Dakkals have to take food or water standing outside Madiga houses. Thus the higher caste Dalits do not drink or dine in common. These commenalities indicate the foundation of Panchama hierarchy and heterogeneous caste cleavages within Scheduled Castes in Andhra Pradesh.”

142Copy pinpoint142. Empirical evidence indicates that there is inequality even within the Scheduled Castes. The Scheduled Castes are not a homogenous integrated class. vi. The power of the State to sub-classify under Articles 15 and 16

143Copy pinpoint143. Article 16(4) provides the State with the enabling power to make provisions for reservations in appointments or posts in favour of “any backward class of citizens”. The provision, unlike Article 15(4), does not distinguish amongst the Scheduled Castes, Scheduled Tribes, and other Socially and Educationally Backward Classes. In Indra Sawhney (supra), this Court defined the backward class in terms of social backwardness. Social backwardness is attributable to several identities such as caste, gender and disability. Though, the backwardness caused due to these multiple identities are all collectively within the ambit of the backward class for the purposes of Article 16(4), the State is free to recognize the heterogeneity amongst the class and provide separate reservation to women and the Scheduled Castes to deal with the purpose.

144Copy pinpoint144. Article 15(4) recognizes the power of the State to make “any” special provisions for the advancement of “any” socially and educationally backward classes of citizens or for “the” Scheduled Castes and “the” Scheduled Tribes. Article 15(5) is similarly worded. It was submitted before this Court that the use of the preposition “any” before the

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socially and educationally backward class as opposed to the phrase “the” before Scheduled Castes and Scheduled Tribes indicates the Scheduled Castes and Scheduled Tribes are a homogenous integrated class. We do not agree with the submission. The provision provides the State with the power to make “any” special provisions for the Scheduled Castes and the Scheduled Tribes. Thereby, it recognizes the wide power of the State to employ a range of means to secure substantive equality. This would include sub-classification within the Scheduled Castes.

145Copy pinpoint145. The first prong of the test for sub-classification is whether the Scheduled Castes form a homogenous integrated class for all purposes. We have held above that even if Article 341 creates a deeming fiction, the provision does not create an integrated class that cannot be further sub-classified. The provision only puts certain castes or groups or parts of them into a group called the Scheduled Castes. The castes or groups within the Scheduled Castes form an integrated class for the limited purpose of constitutional identification. They do not form an integrated class for any other purpose. We have also established through historical and empirical evidence that the Scheduled Castes notified by the President under Article 341 are a heterogenous class where groups within the class suffer from varying degrees of social backwardness. Thus, the first test is satisfied.

146Copy pinpoint146. The State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified. If the Scheduled Castes are not similarly situated for the purposes of the law (or the specific harm identified), there is nothing in Articles 15, 16 and 341 which prevents the State from applying the principle of sub-classification to the class. Thus, the Scheduled Castes can be further classified if: (a) there is a rational principle for differentiation; and (b) if the rational principle has a nexus with the purpose of sub-classification.

147Copy pinpoint147. One of the issues before this Court in Chinnaiah (supra) was whether the State has the legislative competence to sub-classify. Justice Santosh Hegde observed that having once fulfilled the mandate of providing reservations under Articles 15(4) and 16(4), the enactments were beyond the legislative competence of the State

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because - first, the primary object of the law was grouping of sub- castes and apportionment of reservations was merely consequential and second, the State could not under Entry 41 of List II and Entry 25 of List III (of the Seventh Schedule) dealing with State services and education respectively, divide the Scheduled Castes List.201 Justice Sinha noted that the legislative competence of the State legislatures under Article 246 is subject to the other provisions of the Constitution, namely Article 341 of the Constitution.202

148Copy pinpoint148. The opinions in Chinnaiah (supra), conflate the issue of legislative competence, which is referrable to Articles 245 and 246, with the power to ensure substantive equality under Articles 15 and 16. Article 245 read with the Seventh Schedule lays down the legislative competence of the State Legislatures and Parliament. Articles 15(4) and 16(5) recognize the power of the State to make special provisions for the advancement of the backward class, including the Scheduled Castes. These provisions permit the State to confer the benefit of affirmative action on classes where it is most necessary. Thus, the power of the State to sub-classify the Scheduled Castes for the purpose of affirmative action, including reservations, is traceable to Articles 15(4) and 16(5) in the case of educational institutions and appointments, respectively. vii. Criteria for sub-classification

149Copy pinpoint149. The object of the special provisions in Articles 15(4) and 16(4) is to provide substantive equality to the beneficiary class.203 Inter- se backwardness within the class is a roadblock to achieving substantive equality. Sub-classification is one of the means to achieve substantive equality. But the crucial question is, what should be the rational principle to distinguish categories within the Scheduled Caste? Should it be based on the form of untouchability or any form of inter-se social backwardness? We will discuss the rational principle which must be used for sub-categorization in this segment of the judgment.

201 Chinnaiah (supra) [Justice Hegde, 31] 202 Chinnaiah (supra) [Justice Sinha, 90] 203 See NM Thomas (supra)

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150Copy pinpoint150. It is important to understand the provision from the perspective of the beneficiary class for whose advancement it has been adopted, to elucidate the rational principle for differentiation. Though both Articles 15(4) and 16(4) share a similarity to the extent that they enable the State to provide affirmative action policies, there exist some dissimilarities in the language of the provisions. Firstly, Articles 15(4) and 16(4) deal with different spheres. Article 15(4) is a general provision which gives effect to the principle of substantive equality by recognizing that the non-discrimination provisions shall not prevent the State from making “any special provision” for the advancement of the beneficiary class. On the other hand, Article 16(4) deals specifically with matters of public employment. Secondly, Article 16(4) only deals with reservation while Article 15(4) recognizes other forms of affirmative action. Article 15(4) is broader and all-encompassing as compared to Article 16(4). Thirdly, the beneficiary class under Article 15(4) must be “socially and educationally backward” while the class under Article 16(4) is a backward class which is not adequately represented. The Scheduled Castes and the Scheduled Tribes are expressly carved out in Article 15(4), unlike Article 16(4), where they are encompassed within the “backward class”.

151Copy pinpoint151. One of the issues that must be adjudicated while discussing the scope of the provisions is whether the beneficiary classes in Articles 15(4) and 16(4) are different. This issue must be decided with reference to: a. The use of the qualifiers “socially and educationally” backward in Article 15(4); and b. The use of the qualifier “adequate representation” in Article 16(4). a. The meaning of “Backward Class”

152Copy pinpoint152. Article 15(4), unlike Article 16(4), provides that the beneficiary class for the purposes of the provision must be socially and educationally backward. In Balaji (supra), this Court held that the beneficiary class under Article 15(4) must be both socially and educationally backward. Justice Gajendragadkar observed that caste, occupation and poverty are important factors for determining the socially backward class.204 This was reiterated in Janki Prasad Parimoo v. State of

204 MR Balaji v. State of Mysore, AIR 1963 SC 649 [24,25]

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Jammu and Kashmir.205 Justice D G Palekar writing for this Court made a crucial observation on the relationship between social and educational backwardness. The learned Judge observed that though the phrases ‘socially’ and ‘educationally’ are used cumulatively for the purposes of identifying the backward class under Article 15(4), “if a class as a whole is educationally advanced it is generally also socially advanced because of the reformative effect of education on that class”.206 The relationship between social and educational backwardness where social backwardness contributes to educational backwardness was reiterated in Indra Sawhney (supra). Thus, though the criteria of socially and educationally backward class must be cumulatively read for the purposes of identifying the beneficiary class, they are not mutually exclusive concepts. They have a causal relationship, where the educational backwardness of a class is an impact of its social backwardness.

153Copy pinpoint153. The next issue is whether the beneficiary classes in Article 15(4) and Article 16(4) are the same even though, unlike Article 15(4), Article 16(4) does not include the qualifiers of “social” and “educational”. In Janki Prasad Parimoo (supra), this Court read the requirement of social and educational backwardness into Article 16(4).207 This was reiterated in Vasant Kumar v. State of Karnataka208 by a Constitution Bench of this Court. However, in Indra Sawhney (supra), Justice B P Jeevan Reddy speaking for four Judges (Chief Justice Kania, Justice Venkatachaliah, Justice AM Ahmadi and himself) observed that there is no basis for this assumption. The learned Judge observed that Article 16(4) applies to a much larger class. The socially and educationally backward class is one of the categories, to which Article 16(4) applies. The socially and educationally backward classes are included within the broader class to which Article 16(4) applies. Justice Jeevan Reddy also held that reading educational backwardness in Article 16(4), which deals with reservation in appointments at any level, would not appropriate:

205 [1973] 3 SCR 236 : (1973) 1 SCC 420 206 (1973) 1 SCC 420 [24] 207 [1968] 2 SCR 786 208 [1985] Supp. 1 SCR 352 : (1985) Supp SCC 714; Justice Chinnappa Reddy observed that “backward classes of citizens referred to in Article 16(4), despite the short description, are the same as the socially and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, so fully described in Article 15(4).” Justice Sen and Justice Venkataramiah (as the learned Chief Justice then was) observed that Articles 15(4) and 16(4) are intended for the benefit of those who belong to casts, communities which are traditionally disfavored and which have suffered societal discrimination in the past.

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“787. […] “Backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4). […] Thus, SEBCs referred to in Article 340 is only [one] of the categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services- which may mean, at any level whatsoever-insisting upon educational backwardness may not be quite appropriate.”

154Copy pinpoint154. The observation above must not be read in a vacuum. The purport of the observation by Justice Jeevan Reddy is clarified in the subsequent paragraph where the learned Judge observed that though educational backwardness is not to be excluded as a criterion, social backwardness must have caused educational backwardness: “788. […] It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty- which in turn breeds and perpetuates the social and educational backwardness. They feel upon each other constituting a vicious cycle. It is a well-known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such

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backward classes.[…] We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social and educational.”

155Copy pinpoint155. In Indra Sawhney (supra), Justice Pandian defined the backward class of citizens as “a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense that not having so much of intellect and ability will fall within the ambit of ‘any backward class of citizens’ under Article 16(4)”.209 The learned Judge further elucidated that the “primary consideration” in identifying the backward class is social backwardness.210 Justice Sawant also observed that in identifying the beneficiary class under Article 16(4), social backwardness must be given importance. Justice Sawant held that the criterion for the identification of the beneficiary class is whether it is socially backward and whether the class which is educationally and economically backward, is so because of its social backwardness.211

156Copy pinpoint156. Justice Kuldip Singh adopted a different approach. The learned Judge held that the beneficiary classes in Articles 15(4) and 16(4) are different. Justice Kuldeep Singh observed that unlike the determination of the beneficiary class in Article 15(4) which must be socially and educationally backward, the class identified for the purposes of Article 16(4) need not be backward because: a. The Constituent Assembly Debates indicate that reservation under Article 16(4) is to provide access to communities that have not had a ‘look in’ at the administration of the State. The object of including the phrase “backward” in Article 16(4) - which did not find a place in the initial draft - was only for the purpose of reducing the number of claimants for the reserved posts;212

209 (1992) Supp. 3 SCC 217 [58] 210 (1992) Supp. 3 SCC 217 [117] 211 (1992) Supp. 3 SCC 217, [Justice Thommen, 273]; [Justice Sawant 441,552] 212 (1992) Supp. 3 SCC 217 [363]

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b. Inadequate representation in the services of the State is the only test for the identification of the beneficiary class under Article 16(4). Inadequate representation can be identified based on occupation, economic criterion, family income, political sufferers, border areas, backward areas, communities kept out of State services or any other means. 213 The ‘backward class’ must be culled out from the classes which are inadequately represented;214 c. The backward class cannot be classified into adequately represented and inadequately represented. A class that is adequately represented cannot be considered backward. Reading the qualifier of inadequate representation with respect to the backward class would render the former expression redundant; and215 d. The Constitution has expressly mentioned the Scheduled Castes and the Scheduled Tribes whenever the Constitution grants protection to the “weaker classes”.216

157Copy pinpoint157. Contrary to the opinion of Justice Kuldeep Singh, which held that the determining character of the class in Article 16(4) is not backwardness but inadequacy of representation,217 the majority in Indra Sawhney (Justice Reddy writing for four Judges, Justice Pandian and Justice Sawant) held that the predominant factor which must be employed to identify the “backward class” must be social backwardness. The majority also held that the backward class in Article 16(4) subsumes the socially and educationally backward class identified under Article 15(4).218 Thus, the objective of both Articles 15(4) and 16(4) is to ensure substantive equality by uplifting the socially backward class. b. Inadequacy of representation in services of the State

158Copy pinpoint158. The issue on the identification of beneficiaries which will impact the scope of reservation is whether the class is both backward

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

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and inadequately represented. That is, whether they are mutually exclusive qualifiers. In Indra Sawhney (supra), Justice Sawant writing the concurring opinion observed that only classes which are inadequately represented must be provided reservation under Article 16(4). In the opinion of the learned Judge, a class that is backward will cease to be a beneficiary when the class becomes adequately represented. This observation aligns with the argument that reservation must not be provided once the goal of the provision, which is securing adequate representation is achieved.

159Copy pinpoint159. To navigate this issue, it is necessary that we refer to the debates of the Sub-Committee of Minorities and Sub-Committee of Fundamental Rights to ascertain the reason for the inclusion of the phrase “inadequate representation” in Article 16(4). The Objectives Resolution which was introduced by Mr Jawaharlal Nehru on 13 December 1946 resolved to provide adequate safeguards for minorities, backward and tribal areas, and the depressed and other backward classes. The equality provision in the first draft report submitted by the Sub-Committee on Fundamental Rights did not provide for reservation of seats for the backward community or the minorities. Though the report included provisions emphasizing anti-discrimination and equal opportunity, it did not recommend an enabling provision for affirmative action.219 The Sub-Committee on Minorities along with the Fundamental Rights Sub-Committee decided to examine the clauses recommended to determine if any of them required to be amended to protect minority rights. During the discussion, Mr KM Munshi stated that reservation may have to be made for the minorities in public employment.220 An Advisory

219 There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use of wells, ranks, roads, schools and places of public resort maintained wholly or party out of public funds or dedicated to the use of the general public (b) There shall be equality of opportunity for all citizens- (i) in matters of public employment (ii) in the sercise or carrying on of any occupation, trade, business or profession; and no citizen shall on any of the grounds aforesaid be ineligible for public office or be prohibited from acquiring, holding or disposing of property or exercising or carrying on any occuptation, trade, business or profession within the Union (2) Any enactment, regulation, judgment, order, custom or interpretation of law, in force immediately before the commencement of this Constitution by which any penalty, disadvantage, or disability is imposed upon or any discrimination is made against any citizen on any of the grounds aforesaid shall cease to have effect. 220 B Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public Administration] 221

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Committee was formed to make recommendations on how best to reconcile the anti-discrimination provision with the provision for reservation. The Sub-Committee on Minorities recommended that a proviso may have to be added to meet the claims of representation of the marginalized communities.221

160Copy pinpoint160. After the discussion, Dr Ambedkar representing the Advisory Committee, suggested the inclusion of the following provision: “Nothing herein contained shall prevent the State from making provisions for reservation in public services in favour of classes as may be prescribed by the State.” (emphasis supplied)

161Copy pinpoint161. The Sub-Committee on Fundamental Rights debated two issues related to the above clause. First, whether the word “minority” or “class” must be used to signify the beneficiaries. The debates indicate that the phrase “class” was preferred over “minority” because the latter has a specific connotation, that is, religious or political minorities and this would exclude classes who constitute the majority but are yet not adequately represented. The reason is best explained by Dr Ambedkar in the Annexure to the Memorandum and Draft Articles on the Rights of States and Minorities, where he noted that “to make religious affiliation the determining factor for constitutional safeguards is to overlook the fact that religious affiliation may be accompanied by an intense degree of social separation and discrimination”.222

162Copy pinpoint162. The second issue was whether the provision must be qualified with the phrase “adequately represented”. A few members expressed the fear that the use of the phrase “adequate representation” would become litigious.223 In spite of this apprehension, the phrase was retained to restrict the discretion of the State since the phrase “class” and not “minority” was adopted. Without the phase “adequate representation”, the clause would have also included reservations

221 Ibid, 258-259; KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave was that minorities in India have come to have a specific meaning, that is to say, religious or political minorities, Muslims, Sikhs etc. 222 Shiva Rao, supra, 109 223 BR Ambedkar: “I am omitting the words “not adequately represented”. If we have the words “not adequately represented”, any reservation made by the State may be open to be challenged in a court. The court may say that reservation is made for a class although it is adequately represented.”

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for adequately represented majorities for whom the benefit was not intended. However, with the inclusion of the phrase “adequately represented” qualifying the phrase “classes”, the benefit of the provision extends to classes which may be considered ‘majorities’ but are yet inadequately represented.224

163Copy pinpoint163. The debates in the Sub-Committee on Fundamental Rights and Sub-Committee on Minorities indicate that the beneficiaries of reservation are classes that are not “adequately represented” and this could include classes which are numerical majorities. Provisions for reservation are now available not only to the members of the Scheduled Castes and Scheduled Tribes but also of the socially and educationally backward classes which are numerical religious majorities. The phrase “backward” preceding “class” was absent in the draft circulated by the Sub-Committee. The phrase was included in Article 10 of the Draft Constitution. The inclusion of the phrase backward along with the qualifier of adequate representation clarifies the scope of the beneficiary class.

164Copy pinpoint164. Dr B R Ambedkar stated in the Constituent Assembly that reservations under Article 10 of the Draft Constitution [Article 16 of the Constitution of India] are given to those who have not had a “proper look-in” to the administration because it has historically been controlled by a few communities.225 Referring to the above observations of Dr Ambedkar, Justice Jeevan Reddy held in Indra Sawhney (supra) that the objective of Article 16(4) is to ensure that the backward classes get the opportunity to share state power.226

165Copy pinpoint165. It is clear from the debates extracted above that the purpose of the reservation clause is to remedy the inadequate representation in public services of certain “classes”. The cause for inadequate

224 KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave was that minorities in India have come to have a specific meaning, that is to say, religious or political minorities, Muslims, Sikhs etc. Sikh, Muslim, Depressed Classes, either a political or religious minority. The meaning has come to that. There may be among the majority, among the Hindus for example, many classes who have not adequate representation in the services.” 225 CAD Vol 7. P. 701 226 Reddy J [694] “[…] In short, the objective behind Article 16(4) is empowerment of the deprived backward communities- to give them a share in the administrative apparatus and in the governance of the community.” Also see Paragraph 161 where Justice Pandian states that “inadequate representation is not confined to any specific section of the people, but all those who fall under the group of backwardness whether they are Shudras of Hindu community or similarly situated other backward classes of people in other communities, namely, Muslims, Sikhs, Christians etc.

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represented could be two-fold. First, it may be a result of laws that expressly excluded certain classes from accessing the good, that is posts in public service. Second, it may be the result of a class being excluded not expressly by law but through social exclusion. A class may be socially excluded from accessing skills which are relevant for acquiring the good. These restrictions could either be in the form of social and informal or legal and formal restrictions.

166Copy pinpoint166. In Indra Sawhney (supra), Justice Jeevan Reddy observed that a class for the purpose of securing reservations under Article 16(4) should not only be a backward class but must also be inadequately represented in the services of the State.227 Thus, the beneficiary class is not to be determined solely on the basis of whether the class is a numerical minority or a majority in the services of the State. The focus instead is on identifying classes that have been excluded from public services not as a matter of chance or choice but because of the operation of the system of hierarchy. Thus, both the phrases, “backward” and “not adequately represented,” in Article 16(4) cannot be interpreted in a mutually exclusive manner in determining the beneficiary class under Article 16(4). The intent of Article 16(4) is to cover those classes which have been inadequately represented because of their backwardness. Thus, the requirement of inadequate representation cannot be detached from the requirement of backwardness. c. The requirement of “effective” representation

167Copy pinpoint167. Conventionally, the State has assessed if the class is adequately represented by comparing the representation of the class in the services to the total population of the State.228 However, adequacy of representation when determined purely from a numerical perspective without accounting for factors such as representation vis-à-vis posts would dilute the purpose of the provision. The objective of Article 16(4) is to ensure effective representation of the class in the services of the State across posts and grades. Classes which are

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socially backward occupy the lowest of the social strata primarily because of the traditional occupation accorded to the class by social rules. For example, certain Dalit castes are regarded as scavenger castes. Even with the provision of reservation, it is very difficult for the backward classes to shed the traditional occupation that is ascribed to them by society and optimize the opportunities even at the lowest levels. The struggles that the class faces do not disappear with their representation in the lower grades. The endeavor is to ensure true and effective representation of the socially backward classes across posts.

168Copy pinpoint168. Opportunities for real and effective representation must be created in all posts and grades. The objective of the provision is not to emulate the existing social hierarchy where the low-grade posts are occupied by the socially backward while supervisory and managerial posts continue to be occupied by the advanced classes. If the objective of Article 16(4) is to be achieved in the truest sense, the inadequacy of representation must not be determined only on the basis of the total number of members of the backward class in the services of the State but by assessing the representation of the class across various posts.

169Copy pinpoint169. The meaning of the phrase “adequate representation” fell for the consideration of this Court in Rangachari (supra). Writing for the majority, Justice Gajendragadkar observed that adequate representation means not only numerical representation but qualitative representation as well: “25. […] This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression “adequately represented” imports considerations of “size” as well as “values”, numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the

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numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service can be judged.” (emphasis supplied)

170Copy pinpoint170. On the other hand, Justice Wanchoo and Justice Rajgopala Ayyangar observed that the phrase ‘adequate representation’ only conveys the meaning of inadequacy of representation in the quantitative sense and does not convey any idea of equality.229 In Triloki Nath v. State of Jammu and Kashmir (I),230 a reservation policy providing 50 percent of the seats to Muslims from Jammu and Kashmir, 60 percent of the remaining fifty percent seats to Hindus from Jammu and the remaining 40 percent of the 50 percent to Kashmiri Pandits was challenged. The State contended that the sole test of backwardness for the beneficiary class under Article 16(4) is inadequacy of representation in the services of the State. The Constitution Bench rejected the argument, observing that if it is accepted, the benefit would be conferred only on the ‘rich and cultured’ who are socially and educationally advanced.

171Copy pinpoint171. Justice Jeevan Reddy also adopted a value-ridden interpretation of the phrase “adequately represented” in Indra Sawhney (supra). The learned Judge held that the principal test to determine the adequacy of representation is “effective representation or effective voice in the administration” and not mere numerical presence. Effective representation can only be achieved, in this view, when there is adequate representation at all levels or posts in the administration. Justice Sawant also adopted a similar approach.231

172Copy pinpoint172. We are in complete agreement with the opinions of Justice Jeevan Reddy in Indra Sawhney (supra) and Justice Gajendragadkar in Rangachari (supra) on this aspect which is being discussed in

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the present segment. Adequate representation means meaningful and effective representation. The sphere of public services is a constitutionally recognized realm for reservation because being a part of the administrative mechanism of the State is itself an indicator of social power. It is for the same reason that the Constitution, when it was adopted, guaranteed reservation in the legislature. However, there exists a hierarchy in social power within the sphere of public service. Positions that are higher up in the pyramid are positions that command greater authority. For example, let us assume a situation where the Class III and Class IV posts in the State are filled by members of a certain class while the higher positions of authority and power are filled by members of a certain class. This demographic of representation, if the service is taken as a whole unit, does not paint a realistic picture of the inequality that persists within the sphere. If numerical representation is used as an indicator, provision for representation will have to be made in favour of classes which are unrepresented in Class III and Class IV which does not align with the purpose of the provision. In fact, that would be nothing but another indicator of the existence of unequal social structures where members of the backward classes are subject to the authority and power of the more advanced. Thus, a numeric-representation focused interpretation of the phrase ‘inadequate representation’ does not fulfill the purpose of the provision.

173Copy pinpoint173. In view of the discussion above, the following principles are summarized with respect to the objective and yardstick for identifying the beneficiary class under Articles 15(4) and 16(4): a. The beneficiary class in Article 15(4) must be a socially and educationally backward class. “Socially and educationally backward” are not mutually exclusive concepts. The phrase constitutes a constitutional recognition of the sociological reality that educational backwardness is caused by the social backwardness of the class; b. The beneficiary class in Article 16(4), similar to the class under Article 15(4), must predominantly be socially backward. The purpose of both the provisions is to ensure substantive equality of opportunity to the socially backward communities. The beneficiary class in Article 16(4) subsumes the socially and educationally backward classes under Article 15(4);

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c. The qualifier of inadequate representation in Article 16(4) is not mutually exclusive of the requirement of backwardness. The inadequate representation of the class in the services of the State must be because of social backwardness; and d. The adequacy of representation must be determined based on the standard of effective representation and not numerical representation.

d. Yardstick for sub-classification

174Copy pinpoint174. This takes us to the next question. What must be the rational basis for sub-classification within the beneficiary classes? Since the purpose of Articles 15(4) and 16(4) is to ensure equality of opportunity of the socially backward classes, the criterion for sub-classification within a class (be it the Other Backward Classes or the Scheduled Castes or Tribes) must be an indicator of social backwardness. The yardstick for classification must differentiate the class based on inter-se social backwardness. The inter-se backwardness could be identified based on the same or different identity. The State has identified the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes.232 Here, the State sub-classifies based on the same identity, that is, social backwardness because of caste identity. Horizontal reservation is provided to classes which face backwardness due to identities other than caste such as gender233 and disability.234 Here, the State sub-classified based on a different identity.

175Copy pinpoint175. Though Article 16(4) only refers to the “backward class” collectively, the Scheduled Castes are differentiated because they suffer from social backwardness in the form of untouchability which leads to educational and economic backwardness. The Scheduled tribes are classified as a separate class because they suffer from social backwardness because of their spatial and cultural isolation from the rest of the population.235 Since the State can use any yardstick to determine inter-se backwardness, it is not necessary that the criteria for sub-classification and the criteria used to distinguish

232 See the Central Educational Institutions (Reservation in Admission) Act 2006 233 Seats have been reserved for women through executive notifications issued by various states. 234 See The Rights of Persons with Disabilities Act 2016, Sections 32, 34 235 Galanter,supra, 147

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the class from the other classes must be the same. That is, if the criteria for recognizing the Scheduled Castes as a backward class is untouchability, it is not necessary that the group can be sub- classified only if there is inter-se backwardness due to the same identity (that is, untouchability).

176Copy pinpoint176. The Scheduled Castes are a collection of castes, races or tribes or parts of groups, races or tribes.236 Caste is both a unit in the sense that it consists of a homogenous group of people and is also an indicator of backwardness because it is an occupational grouping.237 The nexus between caste and occupation continues to persist, more predominantly in the rural areas. This position has been expounded by numerous cases right from Balaji (supra) to Indra Sawhney (supra). A caste whose traditional occupation is that of scavenging and another caste whose traditional occupation is that of weaving may both face the stigma of untouchability. However, the caste whose traditional occupation is that of scavenging will be more socially backward when compared to the weaver caste because of the caste-occupation-poverty nexus.

177Copy pinpoint177. How does the State identify inter-se social backwardness within the Scheduled Castes? As discussed above, the inter-se backwardness can, inter alia, be identified based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness. I have had the benefit of reading the erudite opinion of my learned Brother, Justice Gavai. My learned Brother and I agree that the State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. viii. The limits of sub-classification

178Copy pinpoint178. Having held that sub-classification of the Scheduled Castes for the purposes of reservation is valid and having laid down the yardstick which must be used for further categorization, the next issue that falls for our consideration is its scope. In this section, we will answer the following issues:

236 Constitution of India 1950; Article 366(24) 237 (1992) Supp. 3 SCC 217 [ Justice Jeevan Reddy, 779]

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a. Whether the State should earmark seats for the each of the sub-categorized classes or follow a preference model; and b. Whether the State can allocate seats or preference for each of the castes in the Scheduled Castes List. This section is not intended to prescribe an inflexible criterion for the State. Our analysis will lay down broad constitutional parameters without trenching on matters of policy. a. Model of special provisions

179Copy pinpoint179. A crucial issue which arises for consideration is with respect to the model of reservations for the sub-classified classes. There are two models that the State may employ while reserving seats for the sub-classified castes. It needs to be analyzed if both the methods are constitutional.

180Copy pinpoint180. In the first model, the class(es) that are more socially backward are given a preference to all the seats that are reserved for the Scheduled Castes. There are two variations of this model. In the first variation, certain castes are given a preference over all the seats reserved for the category of Scheduled Castes. In other words, the sub-categorized class will get the first bite at the apple. In the second variation, the sub-categorized class will have a preference over a certain percentage of seats. Any unfilled seats will be available to the other categories.

181Copy pinpoint181. In the second model, seats shall be exclusively available to certain castes. The exclusive model differs from the preference model to the limited extent that in the former, the seats that are not filled will be carried over to be filled by the same castes in the subsequent year while in the latter, the seats that are not filled will be available to the other castes within the same class. There are two variations to this model as well. In the first variation, a certain percentage of seats will be reserved for the sub-categorized class and the State shall carry forward the unfilled seats, if any, to be filled by the same class in the subsequent year. In the second variation, all the seats are exclusively available to a certain caste from the category and the State shall carry forward the unfilled seats.

182Copy pinpoint182. Whether the preference or the exclusive model is unconstitutional would depend on whether the variation in-effect excludes any caste

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notified as a Scheduled Caste with respect to that State by the President under Article 341(1). With respect to the preference model, the first variation by which preference is given to certain castes to all the seats would be an unconstitutional approach because there is a possibility that other categories within the class of the Scheduled Castes are excluded. For example, if the State grants preference to three of the thirty castes classified as the Scheduled Castes over all the seats reserved for the Scheduled Castes, it is possible that the three castes exercise their preference and fill up all the seats. This would lead to a situation where the other twenty-seven castes classified as the Scheduled Castes would be excluded from the benefit of reservation. This model will be arbitrary and unreasonable also because the Other Backward Classes which are socially advanced compared to the castes classified as the Scheduled Castes would receive the benefit of reservation but the castes or groups within the Scheduled Castes would not. The castes classified as the Scheduled Castes must be given the opportunity to secure the benefit. If not, the provision would become otiose for their purposes.

183Copy pinpoint183. However, the second variation of the first model is differently placed vis-à-vis the scope of Article 341(2). In the second variation, preference to certain castes is given only over a certain percentage of the seats. Thus, castes for whom preference is not given but which are included in the List of Scheduled Castes will be able to compete for a certain percentage of seats. In addition to those seats, they may get the opportunity to compete for the percentage of seats reserved for the sub-classified caste, if they are left unfilled. Thus, this model does not have the effect of excluding any of the castes in the Scheduled Castes List.

184Copy pinpoint184. The difference between the first and the second model is the method in which unfilled vacancies of the more-backward sub-category are to be filled. In the former, the more backward sub-category only has a preference to a certain percentage of seats while in the latter, a percentage of the seats is exclusively available to them and the unfilled seats, if any, will not be available to be filled by the more advanced category of the class. The State may carry forward the unfilled vacancies to the subsequent year which will be available to the same category for which the seats were reserved.

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185Copy pinpoint185. Article 16(4-B) provides that the State can consider carrying forward the unfilled vacancies of the year, which were reserved to be filled by classes under Article 16(4) and 16(4-A), to the subsequent year or years. The provision further provides that the unfilled vacancies shall not be considered together with the vacancies of the subsequent year for determining the ceiling of fifty percent reservation on total vacancies for that year.

186Copy pinpoint186. Article 16(4-B) does not make any distinction between a class and sub-classified classes. The provision stipulates that the State can carry forward vacancies of unfilled seats which were reserved to be filled under Articles 16(4) and 16(4-A) of the Constitution. As held in the preceding section, the power of the State to sub-classify within the Scheduled Castes is traceable to Article 16(4). Further, the seats that remain unfilled will not in any manner reduce the seats which are available to the other sub-categories of the Scheduled Castes. The Constitutional validity of Article 16(4-B) was upheld in Nagaraj (supra). Thus, there is no reason to prevent the State from exercising its power under Article 16(4-B) of carrying forward the vacancies which are reserved for a specific sub-category. Such an exercise will be legal and valid.

187Copy pinpoint187. Like the first model, the constitutionality of the exclusive model depends on the percentage of reservation for the sub-categorized castes. The model of sub-classification will be unconstitutional if it excludes some Scheduled Castes from the benefit. This, similar to the first variant of the preference model, would violate of Article 341(2), and would thus be unconstitutional. However, the second version of the exclusive model in which only a certain percentage of seats is exclusively allotted to the sub-classified castes would be constitutional. For example, if ten percent of the seats reserved for the Scheduled Castes are reserved for the more backward among Scheduled Castes, the other castes will have the chance to compete for the other ninety percent of the seats, thus, not excluding any of the castes. The sole test is whether the operation of the policy has the effect of eliminating the possibility of castes or groups competing for the seats reserved for the Scheduled Castes.

188Copy pinpoint188. Article 341(2), as we have noted above, unambiguously prevents inclusion in and exclusion from the Scheduled Castes List by anyone except Parliament. Inclusion could be by way of extending the

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benefits meant for Scheduled Castes in the State, to a community that is not specifically mentioned in the State Scheduled Castes List (as was the case in Milind (supra)), by reading as a part of an enumerated entry or by reading it as a synonym of an enumerated entry. Such an exercise is not open to the States or for that matter to the Courts. Only Parliament is entrusted with the power to make inclusions to or exclusions from the Lists of Scheduled Castes and Tribes. The thrust of the prohibition, as Dr Ambedkar also indicated, is a proscription on the elimination of an entry or addition of an entry to the List. Such elimination or addition, it was apprehended could arise out of political calculations in the hope of short-term electoral gains. Therefore, only Parliament is invested with the exclusive power to make such variations to the List. Any legislative effort by the State that does not either include unspecified communities or exclude specified communities from the Scheduled Castes List applicable to that State does not fall foul of Article 341(2) of the Constitution.

189Copy pinpoint189. The state has the power to follow either of the two permissible models discussed above while reserving seats through sub-classification. The decision of the State to choose from either of the two models will depend on multiple considerations such as the degree of backwardness of certain castes vis-à-vis the other castes and the total number of qualifying candidates belonging to the Scheduled Castes (both the more backward castes of the Scheduled Castes and the others).

190Copy pinpoint190. The course of action adopted by the State is subject to judicial review, when faced with a constitutional challenge. Where the action is challenged, the State will have to justify the basis of its action. The basis of the sub-classification and the model which has been followed will have to be justified on the basis of empirical data gathered by the State. In other words, while the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. It cannot in other words merely act on its whims or as a matter of political expediency. The decision of the State is amenable to judicial review. When its action is challenged under Article 226 or before this Court under Article 32, the State must provide justification and

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the rationale for its determination. No State action can be manifestly arbitrary. It must be based on intelligible differentia which underlie the sub-classification. The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved. b. The caste-class conundrum

191Copy pinpoint191. One of the issues that arises is whether the State may provide special provisions for each caste within the class. In Indra Sawhney (supra), the State classified the Other backward Castes into two categories – the backward class and the more backward class. Thus, the class was only sub-divided into two categories. Is it permissible to classify the Scheduled Castes by providing preference or reservation in a percentage of seats to every caste?

192Copy pinpoint192. Both Articles 15(4) and 16(4) do not enable reservation based on castes but only on classes. The absence of the use of “caste” in Articles 15(4) and 16(4) when coupled with its use in Articles 15(2) and 16(2) led the courts to hold that caste cannot be the sole basis of reservation.238 However, as Marc Galanter notes, the court had erroneously fused the two distinct usages of caste, as a unit or class, and as a criterion of backwardness.239

193Copy pinpoint193. In Balaji (supra), the criterion for the determination of social and educational backwardness was in question. This Court held that caste is a relevant consideration for determining social backwardness. However, the Court observed that caste cannot be the sole basis for determining the beneficiary class because it would perpetuate the vice of castes. Disagreeing with the Nagan Gowda report, Justice Gajendragadkar writing for the Bench, held that economic backwardness and not caste is the ultimate cause of social backwardness. This interpretation of the permissibility of caste as a criterion to determine the backward class was approved in Chitralekha v. State of Mysore.240 In P Rajendran v. State of Madras,241 this Court deviated from the approach adopted in

238 Venkataramana v. State of Madras, AIR 1951 SC 226; Balaji v. State of Mysore, AIR 1963 SC 649 239 Galanter, supra, Pg. 189 240 AIR 1964 SC 1823 241 [1968] 2 SCR 786

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

194Copy pinpoint194. The Constitution does not bar the allocation of a percentage of seats to a caste since every caste is a class. However, the State must have sufficient material to prove inter-se backwardness between each of the castes. The State must with the submission of cogent material prove that there is a rationale principle which distinguishes the groups included and those excluded from the class. However, the rational principle will have nexus with the object only when the principle can identify the inter-se social backwardness of the class. For example, if the State allocates a separate percentage of seats for the dhobi caste and the barber caste, it must prove that these two castes suffer from differing levels of social backwardness. It is not merely sufficient for the State to base the classification on the difference in the traditional occupation of the two castes. Rather, the State must on the basis of quantifiable data prove that the castes suffer from different levels of social backwardness. The State must also back this with the submission of data on effective representation of the caste in the services of the State.

195Copy pinpoint195. Though sub-categorization based on each caste is permissible, we are of the opinion that there can never be a situation where seats are allocated for every caste separately. Though each caste is a separate unit, the social backwardness suffered by each of them is not substantially distinguishable to warrant the State to reserve seats for each caste. If the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation.

242 “It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward classes within the meaning of Article 15(4).” 243 (1992) Supp. 3 SCC 217 [859]

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ix. Scope for judicial review

196Copy pinpoint196. The scope of judicial review of reservation policies was laid down in Indra Sawhney (supra). Justice Jeevan Reddy observed that a class for meriting reservations must be both backward and inadequately represented in the “services under the State”. In Nagaraj (supra), this Court held that backwardness must be based on objective standards whereas inadequacy of representation must factually exist. The Court held that the State must submit quantifiable data to prove backwardness and inadequacy of representation. This standard applies for classifying groups for the purpose of reservations and would, equally apply for sub-classification within a group because it is premised on the same principle of difference and inequality.

197Copy pinpoint197. Two prominent considerations arise while discussing the scope of judicial review of sub-classification of the Scheduled Castes and the Scheduled Tribes. First, whether the State must prove inter-se backwardness given the position of law laid down in Indra Sawhney (supra) that the backwardness of the Scheduled Castes and the Scheduled Tribes is not required to be proved. Second, whether the inadequacy of representation of the more backward of the Scheduled Castes must be proved. a. Inter-se backwardness

198Copy pinpoint198. In Indra Sawhney (supra), this Court held that the requirement of social and educational backwardness cannot be applied to the Scheduled Castes and the Scheduled Tribes because they admittedly fall within the backward class of citizens.244 One of the issues before the Constitution Bench of this Court in Jarnail Singh v. Lachhmi Narain Gupta,245 was whether Nagaraj (supra) in requiring the State to collect quantifiable data showing backwardness is contrary to the decision in Indra Sawhney (supra), where this Court held that backwardness of the Scheduled Castes and the Scheduled Tribes need not be proved. In Jarnail Singh (supra), this Court held that observations in Nagaraj (supra) that the State is required to collect quantifiable data to prove the backwardness of the Scheduled Castes and the Scheduled Tribes is bad in law because it is contrary to Indra Sawhney (supra).

244 (1992) Supp. 3 SCC 217 [Justice Reddy 781; 796-797] 245 [2018] 10 SCR 663 : (2018) 10 SCC 396

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199Copy pinpoint199. The decision in Indra Sawhney (supra) exempts the State from having to prove that the Scheduled Castes and the Scheduled Tribes are backward for the purposes of securing benefits under Articles 15 and 16. The observations do not exempt the State from having to justify the decision of sub-classifying within the Scheduled Castes and Scheduled Tribes for the purposes of reservation. The basis of sub-classification is that few of the castes or groups within the class are more backward. Thus, though the State is not required to collect quantifiable data to prove backwardness of the entire class of the Scheduled Castes/Tribes, it is required to collect data to prove inter-se backwardness within the class, where it seeks to make a sub-classification within the class. b. Adequacy of representation

200Copy pinpoint200. Justice Jeevan Reddy noted in Indra Sawhney (supra) that the issue of whether a class is inadequately represented is a matter within the subjective satisfaction of the State which is evident from the use of the phrase “in the opinion of the State”, and that the subjective satisfaction of the executive action must be judicially reviewed based on the standard laid down in Barium Chemicals v. Company Law Board. 246 In Barium Chemicals (supra), a Constitution Bench of this Court while determining the validity of administrative actions held that though the formation of opinion by the State may be based on its subjective satisfaction, the State could not act based on circumstances it ‘thinks’ existed. There must be apparent circumstances that merit a certain inference by the State, and such circumstances, must be shown to exist at least prima facie.247 In the preceding section, we have held that inadequacy of effective representation is a criterion for determining inter-se backwardness. Hence, quantifiable data for that purpose must be submitted.

201Copy pinpoint201. In Nagaraj (supra), this Court held that the State must submit quantifiable data to satisfy the court that reservations are necessary “on account of inadequacy of representation of the Scheduled Castes and Scheduled Tribes in a particular class or classes of posts”.248

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However, in the subsequent paragraphs, this Court held that the cadre strength must be taken as a unit to ascertain whether a given class or group is adequately represented. These observations were made in the backdrop of RK Sabharwal (supra) where this Court held that the entire cadre strength should be taken into account to determine if the quota limit has been breached. The relevant observations are delineated as under: “82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]. In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However, in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] this Court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota limit has been reached. It was clarified that the judgment in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensures that the reservation remains within the ceiling limit of 50%.

83. In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.” (emphasis supplied)

202Copy pinpoint202. At this juncture, it is important that we clarify the observations in Nagaraj (supra) extracted above. In Nagaraj (supra), this Court referred to the judgment in RK Sabharwal while observing that

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

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the impugned instructions is reached and not thereafter. […] As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.”

203Copy pinpoint203. The inference in Nagaraj (supra) that cadre must be taken as a unit to determine inadequacy of reservation based on the above observations in RK Sabharwal (supra), in our respectful opinion, is misplaced. The cadre as a unit was considered only for the purpose of preparation of roster to draw a balance between the reserved and open seats. This Court did not hold that cadre must be used as a unit for the purpose of determining the adequacy of representation. In fact, RK Sabharwal (supra) says to the contrary. RK Sabharwal (supra) observed that the State Government may take the total population of a particular Backward Class and its representation in the State Services while determining adequacy of representation: “4. […] It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services.” As observed above, the inadequacy of representation in the services of the State is an indicator to determine the backwardness of the class in the services of the State. When the cadre-strength is used, the inadequacy of representation of the class is not determined. Rather, it determines the inadequacy of representation in a cadre, thereby, merging the distinction between quantitative and qualitative representation. Further, the observations in Nagaraj (supra) that adequate reservation of the class or group must be measured

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against the cadre is contrary to the plain language of Articles 16(4) and 16(4-A). Both the provisions use the phrase “not adequately represented in the services under the State”.

204Copy pinpoint204. Thus, in view of the above discussion, the State for a valid exercise of power to sub-classify under Article 16(4) is required to collect quantifiable data with respect to the inadequacy of representation of the sub-categories in the services of the State. As held in the preceding section, the inadequacy of representation is an indicator of backwardness and thus, to use the cadre as a unit to determine representation alters the purpose of the indicator itself. The State while deciding if the class is adequately represented must calculate adequacy based on effective and not quantitative representation. E. Conclusion

205Copy pinpoint205. In view of the discussion above, the following are our conclusions: a. Article 14 of the Constitution permits sub-classification of a class which is not similarly situated for the purpose of the law. The Court while testing the validity of sub-classification must determine if the class is a homogenous integrated class for fulfilling the objective of the sub-classification. If the class is not integrated for the purpose, the class can be further classified upon the fulfillment of the two-prong intelligible differentia standard; b. In Indra Sawhney (supra), this Court did not limit the application of sub-classification only to the Other Backward Class. This Court upheld the application of the principle to beneficiary classes under Articles 15(4) and 16(4); c. Article 341(1) does not create a deeming fiction. The phrase “deemed” is used in the provision to mean that the castes or groups notified by the President shall be “regarded as” the Scheduled Castes. Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the only logical consequence that flows from it is that castes included in the list will receive the benefits that the Constitution provides to the Scheduled Castes. The operation of the provision does not create an integrated homogenous class;

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d. Sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List. Sub-classification would violate the provision only when either preference or exclusive benefit is provided to certain castes or groups of the Scheduled Castes over all the seats reserved for the class; e. Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogenous class. Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification; and f. The holding in Chinnaiah (supra) that sub-classification of the Scheduled Castes is impermissible is overruled. The scope of sub-classification of the Scheduled Castes is summarized below: i. The objective of any form of affirmative action including sub-classification is to provide substantive equality of opportunity for the backward classes. The State can sub- classify, inter alia, based on inadequate representation of certain castes. However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness; ii. The State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness; and iii. Article 335 of the Constitution is not a limitation on the exercise of power under Articles 16(1) and 16(4). Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services. Efficiency of administration must be viewed in a manner which promotes inclusion and equality as required by Article 16(1).

206Copy pinpoint206. The Registry is directed to obtain administrative instructions from Chief Justice for placing the matters before an appropriate Bench.

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I have gone through the erudite and scholarly judgment authored by Hon’ble the Chief Justice of India. I am in agreement with the views expressed by the Hon’ble the Chief Justice of India. Taking into consideration the importance of the matter, I find it apposite to express my opinion through this separate judgment. Since the facts and submissions of the learned counsel appearing on behalf of the parties have been elaborately considered in the judgment of the Hon’ble the Chief Justice of India, in order to avoid repetition, I have not referred to them. I. BACKGROUND “The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot

* Ed. Note: Pagination as per the original Judgment.

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last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

1. These are the words of warning, which Dr. B.R. Ambedkar, the Chief Architect of the Indian Constitution, gave in his speech on 25th

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November 1949, while replying to the debate on the final draft of the Constitution. This was the day prior to 26th November 1949, on which day, the Constituent Assembly adopted, enacted, and gave to our country the most cherished document for every Indian, “the Constitution of India”.

2. He warned that we should not be content with mere political democracy but make our political democracy a social democracy as well. He emphasized that a social democracy would mean a way of life which recognizes liberty, equality, and fraternity as the principles of life. According to him, liberty, equality, and fraternity, not individually but a trinity of the three was necessary for converting our political democracy into social democracy. He pointed out the contradictions in the country about the social and economic structure. He warned that if we continue to deny equality in social and economic life for long, we will do so only by putting our political democracy in peril. He therefore appealed to the nation to remove this contradiction at the earliest possible moment. He warned that if we do not do so, those who suffer from inequality will blow up the structure of political democracy which the Constituent Assembly had so laboriously built up.

3. Two months thereafter, the Constitution of India came into force on 26th January 1950. On 26th November 2023, we have completed 74 years from the date on which the Constitution of India was enacted, adopted, and given to ourselves. On 26th January 2024, we have completed 74 years from the date on which the Constitution of India came into effect. We are now in the 75th year of our Republic.

4. For the last 75 years, there has been a march towards achieving social and economic equality. There have been efforts to give social and economic justice to the millions of citizens who on account of centuries and centuries of discrimination and inhuman treatment were denied the legitimate right to come into the mainstream of life. The trinity of Articles 14, 15, and 16 along with Articles 46, 335, 338, 341 and 342 have provided a tool to march towards social and economic equality; emphasis on affirmative action so as to give a special treatment to the underprivileged so that they can march forward; providing reservations in the matters of education and in the matter of public employment have been used so as to provide a special treatment to these backward classes.

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