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5. The present case raises a dispute amongst various classes in the group of Scheduled Castes who claim to be more underprivileged and therefore claim for a more differential treatment qua the more advantageous in that group. Per contra, the rival classes inside them claim that once the classes are brought into the Presidential List of Scheduled Castes or Scheduled Tribes, they become a part of homogeneous group, and a further classification is not permissible under the Constitution.

6. This quest of the underprivileged for more preferential treatment as compared to the more advantageous in the larger group falls for consideration in the present reference.

7. The 5-Judge Bench of this Court in the case of E.V. Chinnaiah vs. State of A.P. and others1 has held that such a further classification on the ground of more backwardness among the backwards listed in the Presidential List is not permissible. However, another 5-Judge Bench of this Court in the case of The State of Punjab & Ors. vs. Davinder Singh & Ors.2 has doubted the view in E.V. Chinnaiah (supra) and referred the matter to a larger Bench. That is how these matters came up for consideration before us. II. ARTICLE 341, ARTICLE 342 AND THE PRESIDENTIAL ORDER FOR SCHEDULED CASTES AND SCHEDULED TRIBES

8. For appreciating the rival submissions before us, it is to be noted that while on one hand the struggle for gaining freedom for India was going on; on the other hand, on account of social discrimination prevailing since centuries, a quest for social reforms was also going on.

9. In the beginning, a nomenclature often used by Christian Missionaries was ‘depressed classes’ to describe the poor and downtrodden section of the society. A wide array of untouchable castes, aboriginal tribes, and other backward communities were all lumped together under that label. In 1909, leaders like Gopal Krishna Gokhale and Annie Besant also referred to low caste or marginalized communities in India as the ‘depressed classes’. Besant compared the ‘depressed classes’ in India to the ‘submerged tenth’ in England, i.e., unskilled labourers,

1 (2005) 1 SCC 394 2 (2020) 8 SCC 1

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scavengers, sweepers, casual dock labourers, etc., constituting 10% of the population of that country. However, by 1918, the term ‘depressed classes’ began to be used for only low-caste Hindus who suffered from the stigma of untouchability. The word ‘class’ in ‘depressed class’ was really a synonym for caste.3

10. It would be apposite to start with the Census Report of 1891. It refers to the manner of enumeration of castes including castes, tribes and sub-divisions. It also refers to the scheme of classification based on occupation divided into 60 categories. Then the said report regroups these 60 categories into 21 groups. The said report refers to Rajputs and Jats as tribes, larger than castes. Class VII deals with “Leather Workers and Lower Village Menials” and it includes the following groups: "40. Leather workers

41. Watchmen and Village Menials

42. Scavengers”

11. Thereafter comes the Indian Statutory Commission Report, 1930. The heading of Chapter 4 of Part I is “Caste and the Depressed Classes”. The report specifically states that a Caste has been described as “the foundation of the Indian social fabric”. It further states that every Hindu necessarily belongs to the caste of his parents, and in that caste he inevitably remains. It states that no accumulation of wealth and no exercise of talents can alter his caste status; and marriage outside his caste is prohibited or severely discouraged. It further states that in some cases, the application of the rule of caste seems almost to prescribe the means of livelihood of its members; indeed, many castes partake of the nature of occupational guilds. It states that the caste system, which may have originated in the preservation of ceremonial purity in social relations and in rules designed to limit admixture of blood, has during ages developed into an institution which assigns to each individual his duty and his position in orthodox Hinduism. However, the boundary which brings members of the same caste together also serves to separate them from innumerable compartments embracing other castes. It further

3 Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of India (Viking by Penguin Random House India 2023).

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states that this has resulted in a rigid and detailed subdivision of Hindu society which strongly contrasts with the theory of equalitarian ideas among Moslems and Christians.

12. Paragraph 53 of the Report deals with “the depressed classes”. It states that the depressed classes comprise about 20% of the total population of the British India or about 30% of the Hindu population. They constitute the lowest castes recognized as being within the Hindu religious and social system. It further states that in origin these castes seem to be partly “functional,’’ comprising those who followed occupations held to be unclean or degrading, such as scavenging or leather working, and partly “tribal,” i.e., aboriginal tribes absorbed into the Hindu fold and transformed into an impure caste. It further states that their essential characteristic is that, according to the tenets of orthodox Hinduism, they are, though within the Hindu system, “untouchable,” – that is to say, that for all other Hindus they cause pollution by touch and defile food or water. They are denied access to the interior of an ordinary Hindu temple. It states that they are not only the lowest in the Hindu social and religious system, but with few individual exceptions are also at the bottom of the economic scale and are generally quite uneducated. The Report shows that in the villages they are normally segregated in a separate quarter and very frequently eat food which would not be even touched by any other section of the community.

13. A large proportion of them are landless agricultural labourers employed by cultivators for small remuneration. It states that it was not uncommon for a particular shed in a factory to be reserved for depressed class workers.

14. Paragraph 54 of the Report deals with “Disabilities of the Untouchables”. It states that the actual disabilities, other than religious, suffered by the untouchables owing to their untouchability vary very greatly in different parts of India, not only from province to province, but also in different parts of the same province and even sometimes in different parts of the same district. It states that the two most widespread difficulties are about water and schools. It states that in many places it was customary for the untouchables to be denied access to the wells or tanks used by the other castes and great difficulty has often been found, when a new source of water supply has been provided from public funds by local authorities, in

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arranging for the untouchables to have use of it. The Report highlights that if any village draws its water from a river, the untouchables will be required to take their supply from a different point, lower down. In many places the children of untouchables are either excluded altogether from ordinary schools, although provided in whole or in part from public funds, otherwise they would be required to sit apart. In some cases, the untouchable children are required to attend the classes standing outside the classroom. The Report highlights that the difficulty of the administrator or political reformer was much increased by the fact that the great body of the untouchables yet accept their destiny as natural and inevitable. The Report states that their state is indeed pitiable inside the Hindu fold and yet not of it living on the edge of starvation, and unaware of any hope of improving their lot.

15. Paragraph 55 of the Report highlights that the depressed classes were most severely felt in Madras, and especially in Malabar. In Malabar, is still found the phenomenon of “unapproachability,’’ that is, the untouchable must not approach within a certain distance of a high caste Hindu and would have to leave the road to allow his passage, and even to shout to give warning of the risk of pollution. The Report states that the local authority in another part of Madras had preferred to leave the roads un-mended rather than employ untouchable labourers to repair them.

16. The Report further points out that in Bombay and the Central Provinces, the position was more or less comparable with that in Madras. The Report also refers to the telegrams from Nasik and Poona, in the Bombay Presidency, wherein organized action on the part of some untouchables was taken to assert a claim to enter Hindu temples.

17. It may not be out of place to mention that during the relevant period Dr. B.R. Ambedkar had also started a movement for opening waterbodies to the untouchables and even untouchables being permitted to enter the temples. One of such agitations was about a public tank called ‘Chavder tank’ in Mahad, held on 20th March 1927 and another was an attempt to enter Kalaram temple at Nashik on 2nd March 1930.

18. The Report further states that in Bengal, Bihar and Orissa and the United Provinces, although there were large numbers belonging to untouchable castes, in general they do not seem to suffer so universally or so severely as in the South. The Report, however,

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states that the problem did exist in these areas also. The Report also gives approximate percentage of population of the number of untouchables. The Report excludes aboriginals who are outside the Hindu fold.

19. The next document that requires a mention is ‘the Census of India 1931’. The said Report coins the phrase ‘primitive tribes’, who reside in hills, forests, and other nomadic groups. These primitive tribes provide a foundation for Scheduled Tribes. It also notes that the formerly depressed classes are now referred to as the Scheduled Castes.

20. It could thus be seen that while the primitive tribes who reside in hills, forests and remote areas provide a foundation for Scheduled Tribes, the so-called depressed classes which are so recognized on account of untouchability provide a foundation for Scheduled Castes. The Report also states that the 1931 Census Report remains the source material for present day Scheduled Castes and Scheduled Tribes.

21. Then comes the Government of India Act, 1935 (hereinafter referred to as “the 1935 Act”). Part II of the 1935 Act deals with “The Federation of India”. Chapter I thereof deals with “Establishment of Federation and Accession of Indian States”. Section 5 of the 1935 Act deals with “Proclamation of Federation of India” and Section 6 of the 1935 Act deals with “Accession of Indian States”. Clause (a) of sub-section (2) of Section 5 of the 1935 Act provided that the States, the Rulers whereof will, in accordance with the provisions contained in Part II of the First Schedule to this Act, be entitled to choose not less than fifty-two members of the Council of States. Clause (b) of sub-section (2) of Section 5 of the 1935 Act provided that the States, the aggregate population whereof, as ascertained in accordance with the said provisions, amounts to at least one- half of the total population of the States as so ascertained, have acceded to the Federation.

22. Section 18 of the 1935 Act deals with “Constitution of the Federal Legislature”. Sub-section (3) of Section 18 provided that representatives to be provided to the Council of States and the Federal Assembly shall be chosen in accordance with the provisions in that behalf contained in the First Schedule of the 1935 Act.

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23. Similarly, Section 60 of the 1935 Act deals with “Constitution of Provincial Legislatures”. Section 61 of the 1935 Act provides for “Composition of Chambers of Provincial Legislatures”. Sub-section (1) of Section 61 provided that the composition of the Chamber or Chambers of the Legislature of a Province shall be such as is specified in relation to that Province in the Fifth Schedule to the 1935 Act.

24. The First Schedule to the 1935 Act provided for “Composition of the Federal Legislature”. Clause 4 thereof inter alia provides for seats for representatives of the Scheduled Castes.

25. It will be relevant to reproduce Clause 8 of the First Schedule to the 1935 Act, which reads thus: “8. In any Province to which a seat to be filled by a representative of the scheduled castes is allotted, a person to fill that seat shall be chosen by the members of those castes who hold seats in the Chamber or, as the case may be, either Chamber of the Legislature of that Province.”

26. It could thus be seen that the 1935 Act provided that in any Province where seat(s) is/are to be filled by the representatives of the Scheduled Castes where they are so allotted, shall be chosen by the members of those castes who hold seats in the Chamber or either Chamber of the Legislature of that Province.

27. Clause 18 of the First Schedule deals with “The Federal Assembly”.

28. It could thus be seen that Clause 18 of First Schedule to the 1935 Act inter alia deals with seats reserved for members of the Scheduled Castes.

29. Clause 26 of the First Schedule to the 1935 Act is the interpretation clause. It defines “the Scheduled Castes” as under: ““the scheduled castes” means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty in Council to correspond to the classes of persons formerly known as “the depressed classes”, as His Majesty in Council may specify;”

30. It is thus clear that the 1935 Act defines ‘the Scheduled Castes” to mean such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which

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appear to His Majesty in Council to correspond to the classes of persons formerly known as “the depressed classes”, as His Majesty in Council may specify.

31. It could thus be seen that the definition of “the Scheduled Castes” can be traced to “the depressed classes”, which were used in a generic sense earlier and again traced to the most backward people suffering untouchability.

32. Then comes the Government of India (Scheduled Castes) Order, 1936 (hereinafter referred to as “the 1936 Order”), notified on 30th April

1936. It will be relevant to refer to the said order, which is as under: “THE GOVERNMENT OF INDIA (SCHEDULED CASTES) ORDER, 1936 ______________ AT THE COURT AT BUCKINGHAM PALACE The 30th day of April, 1936 Present, THE KING’S MOST EXCELLENT MAJESTY IN COUNCIL Whereas by certain provisions in the First, Fifth and Sixth Schedules to the Government of India Act, 1935, His Majesty in Council is empowered to specify the castes, races or tribe or parts of or groups within castes, races or tribes which are to be treated as the scheduled castes for the purposes of those Schedules: AND WHEREAS a draft of this Order was laid before Parliament in accordance with the provisions of subsection (1) of section three hundred and nine of the said Act and an Address has been presented by both Houses of Parliament praying that an Order may be made in the terms of this Order : NOW, THEREFORE, His Majesty, in the exercise of the said powers and of all other powers enabling Him in that behalf, is pleased by and with the advice of His Privy Council to order, and it is hereby ordered, as follows :-

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1. This Order may be cited as “The Government of India (Scheduled Castes) Order, 1936.”

2. Subject to the provisions of this Order, for the purposes of the First, Fifth and Sixth Schedules to the Government of India Act, 1935, the castes, races or tribes, or parts of or groups within castes, races or tribes specified in Parts I to IX of the Schedule to this Order shall, in the Provinces to which those Parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule.

3. Notwithstanding anything in the last preceding paragraph- (a) no Indian Christian shall be deemed to be a member of a scheduled caste; (b) in Bengal no person who professes Buddhism or a tribal religion shall be deemed to be a member of any scheduled caste; and if any question should arise as to whether any particular person does or does not profess Buddhism or a tribal religion, that question shall be determined according to the answers which he may make, in the prescribed manner, to such questions as may be prescribed.

4. In this Order the expression “Indian Christian” has the same meaning as it has for the purposes of Part I of the First Schedule to the Government of India Act, 1935, and the expression “prescribed” means prescribed by rules made by the Governor of Bengal, exercising his individual judgment.

5. Any reference in the Schedule to this Order to any division, district, subdivision, tahsil or municipality shall be construed as a reference to that division, district, subdivision, tahsil or municipality as existing on the first day of July, nineteen hundred and thirty-six.

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SCHEDULE PART I – MADRAS (1) Scheduled castes throughout the Province :-

Adi-Andhra Gosangi Paidi Adi-Dravida Haddi Painda Adi-Karnataka Hasla Paky Ajila Holeya Pallan Arunthuthiyar Jaggali Pambada Baira Jambuvulu Pamidi Bakuda Kalladi Panchama Bandi Kanakkan Paniyan Bariki Kodalo Panniandi Battada Koosa Paraiyan Bavuri Koraga Paravan Bellara Kudumban Pulayan Byagari Kuravan Puthirai Vannan Chachati Madari Raneyar Chakkiliyan Madiga Relli Chalavadi Maila Samagara Chamar Mala Samban Chandala Mala Dasu Sapari Cheruman Matangi Semman Dandasi Moger Thoti Devandrakulathan Muchi Tiruvalluvar Ghasi Mundala Valluvan Godagali Nalakeyava Valmiki Godari Nayadi Vettuvan Godda Paga dai

(2) Scheduled castes throughout the Province except in any special constituency constituted under the

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Government of India Act, 1935, for the election of a representative of backward areas and backward tribes to the Legislative Assembly of the Province :-

Aranadan Kattunayakan Kuruman Dombo Kudiya Malasar Kadan Kudubi Mavilan Karimpalan Kurichchan Pano

PART II – BOMBAY Scheduled Castes : - (1) Throughout the Province : -

Asodi Dhor Mang Garudi Bakad Garode Meghval, or Menghwar Bhambi Halleer Mini Madig Bhangi Halsar, or Haslar, Mukri or Hulsavar Chakrawadya – Holaya Nadia Dasar Chalvadi Khalpa Shenva, or Shindhava Chambhar, or Kolcha, or Kolgha Shingdav, or Mochigar, or Shingadya Samagar Chena – Dasaru Koli Dhor Sochi Chuhar, or Lingader Timali Chuhra Dakaleru Madig, or Mang Turi Dhed Mahar Vankar Dhegu-Mega Vitholia (2) Throughout the Province except in the Ahmedabad, Kaira, Broaoh and Panch Mahals and Surat districts – Mochi. (3) In the Kanara district – Kotegar.

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PART III – Bengal Scheduled castes throughout the Province : -

Agariya Hari Mal Bagdi Ho Mallah Bahelia Jalia Kaibartta Malpahariya Baiti Jhalo Malo, or Malo Mech Bauri Kadar Mehtor Bediya Kan Muchi Beldar Kandh Munda Berua Kandra Musahar Bhatiya Kaora Nagesia Bhuimali Kapuria Namasudra Bhuiya Karenga Nat Bhumij Kastha Nuniya Bind Kaur Oraon Binjhia Khaira Paliya Chamar Khatik Pan Dhenuar Koch Pasi Dhoba Konai Patni Doai Konwar Pod Dom Kora Rabha Dosadh Kotal Rajbanshi Garo Lalbegi Rajwar Ghasi Lodha Santal Gonrhi Lohar Sunri Hadi Mahar Tiyar Hajang Mahli Turi Halalkhor

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PART IV – UNITED PROVINCES Scheduled castes :- (1) Throughout the Province :-

Agariya Chamar Kharot Aheriya Chero Karwar (except Benbansi) Badi Dabgar Khatik Badhik Dhangar Kol Baheliya Dhanuk (Bhangi) Korwa Bajaniya Dharkar Lalbegi Bajgi Dhobi Majhwar Balahar Dom Nat Balmiki Domar Pankha Banmanus Gharami Parahiya Bansphor Ghasiya Pasi Barwar Gual Patari Basor Habura Rawat Bawariya Hari Saharya Beldar Hela Sanaurhiya Bengali Kalabaz Sansiya Beriya Kanjar Shilpkar Bhantu Kapariya Tharu Bhuiya Karwal Turaiha Bhuyiar Khairaha Boriya

(2) Throughout the Province except in the Agra, Meerut and Rohilkhand divisions – Kori

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PART V – PUNJAB Scheduled Castes throughout the Province : -

Ad Dharmis Marija or Marecha Khatik Bawaria Bangali Kori Chamar Barar Nat Chuhra, or Balmiki Bazigar Pasi Dagi and Koli Bhanjra Perna Dumna Chanal Sapela Od Dhanak Sirkiband Sansi Gagra Meghs Sarera Gandhila Ramdasis

PART VI – BIHAR Scheduled Castes : - (1) Throughout the Province :-

Chamar Halalkhor Mochi Chaupal Hari Musahar Dhobi Kanjar Nat Dusadh Kurariar Pasi Dom Lalbegi (2) In the Patna and Tirhut divisions and the Bhagalpur, Mong Palamau and Purnea district:-

Bauri Bhumij Rajwar Bhogta Ghasi Turi Bhuiya Pan (3) In the Dhanbad subdivision of the Manbhum district and the Central Manbhum general rural constituency, and the Purulia and Raghunathpur municipalities : -

Bauri Ghasi Rajwar Bhogta Pan Turi Bhuiya

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PART VII – CENTRAL PROVINCES AND BERAR

Scheduled Localities Castes Basor, or Burud Chamar Dom Ganda Throughout the Province Mang Mehtar or Bhangi Mochi Satnami Audhelia : In the Bilaspur district Bahna : In the Amraoti district Balahi, or : In the Berar division and the Balaghat, Balai Bhandara, Betul, Chanda, Chhindwara, Hoshangabad, Jubbulpore, Mandla, Nagpur, Nimar Saugor and Wardha districts Bedar : In the Akola, Amraoti and Buldana districts. Chadar : In the Bhandara and Saugor districts Chauhan : In the Drug district Dahayat : In the Damoh subdivision of Saugor district. Dewar : In the Bilaspur, Drug and Raipur districts. Dhanuk : In the Saugor district, except in the Damoh subdivision thereof. Dhimar : In the Bhandara district Dhobi : In the Bhandara, Bilaspur, Raipur and Saugor districts, and the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district.

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Dohor : In the Berar division, and the Balaghat, Bhandara, Chanda, Nagpur and Wardha districts. Ghasia : In the Berar division and in the Balaghat, Bhandara, Bilaspur, Chanda, Drug, Nagpur, Raipur and Wardha districts. Holiya : In the Balaghat and Bhandara districts. Jangam : In the Bhandara district. Kaikari : In the Berar division, and in Bhandara, Chanda, Nagpur and Wardha districts. Katia : In the Berar division, in the Balaghat, Betul Bhandara, Bilaspur, Chanda, Drug, Nagpur, Nimar, Raipur and Wardha districts, in the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district, in the Chhindwara district, except in the Seoni subdivision thereof, and in the Saugor district, except in the Damoh subdivision thereof. Khangar : In the Bhandara, Buldhana and Saugor districts and the Hoshangabad and Seoni-Malwa tahsils of the Hoshangabad district. Khatik : In the Berar division, in the Balaghat, Bhandara, Chanda, Nagpur and Wardha districts, in the Hoshangabad tahsil of the Hoshangabad district, in the Chhindwara district, except in the Seoni subdivision thereof, and in the Saugor district, except in the Damoh subdivision thereof. Koli : In the Bhandara and Chanda district

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Kori : In the Amraoti, Balaghat, Betul, Bhandara, Buldana, Chhindwara, Jubbulpore, Mandla, Nimar, Raipur and Saugor districts, and in the Hoshangabad district, except in the Harda and Sohagpur tahsils thereof. Kumhar : In the Bhandara and Saugor districts and the Hoshangabad and Seoni- Malwa tahsils of the Hoshangabad district. Madgi : In the Berar division, and in the Balaghat Bhandara, Chanda, Nagpur and Wardha districts. Mala : In the Balaghat, Betul, Chhindwara, Hoshangabad, Jubbulpore, Mandla, Nimar and Saugor districts. Mehra, or : Throughout the Province, except in Mahar the Harda and Sohagpur tahsils of the Hoshangabad district. Nagarchi : In the Balaghat, Bhandara, Chhindwara, Mandla, Nagpur and Raipur districts. Ojha : In the Balaghat, Bhandara and Mandla districts and the Hoshangabad tahsil of the Hoshangabad district. Panka : In the Berar division, in the Balaghat, Bhandara, Bilaspur, Chanda, Drug, Nagpur, Raipur, Saugor and Wardha districts and in the Chhindwara district except in the Seoni subdivision thereof. Pardhi : In the Narsinghpur subdivision of the Hoshangabad district. Pradhan : In the Berar division, in the Bhandara Chanda, Nagpur, Nimar, Raipur and Wardha districts and in the Chhindwara district, except in the Seoni subdivision thereof. Rujjhar : In the Sohagpur tahsil of the Hoshangabad district.

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PART VIII – ASSAM Scheduled Castes : - (1) In the Assam Valley : -

Namasudra Hira Mehtar, or Bhangi Kaibartta Lalbegi Bansphor Bania, or Brittial-Bania (2) In the Surma Valley :-

Mali, or Bhuimali Sutradhar Kaibartta, or Jaliya Dhupi, or Dhobi Muchi Lalbegi Dugla, or Dholi Patni Mehtar, or Bhangi Jhalo and Malo Namasudra Bansphor Mahara

PART IX – ORISSA Scheduled castes : - (1) Throughout the Province :-

Adi-Andhra Godra Mangan Audhelia Gokha Mehra, or Mahar Bariki Haddi, or Hari Mehtar, or Bhangi Basor,or Burud Irika Mochi, or Muchi Bavuri Jaggali Paidi Chachati Kandra Painda Chamar Kantia Pamidi Chandala Kela Panchama Dandasi Kodalo Panka Dewar Madari Relli Dhoba, or Dhobi Madiga Sapari Ganda Mahuria Satnami Ghusuria Mala Siyal Godagali Mang Valamiki Godari

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(2) Throughout the Province except in the Khondmals district, the district of Sambalpur, and the areas transferred to Orissa under the provisions of the Government of India (Constitution of Orissa) Order, 1936, from the Vizagapatam and Ganjam Agencies in the Presidency of Madras:- Pan, or Pano (3) Throughout the Province except in the Khondmals district and the areas so transferred to Orissa from the said Agencies : - Dom, or Dombo (4) Throughout the Province except in the district of Sambalpur :

Bauri Bhumij Turi Bhuiya Ghasi, or Ghasia (5) In the Nawapara subdivision of the district of Sambalpur: -

Kori Nagarchi Pradhau

C. K. Rhodes, Joint Secy. to the Govt. of India”

33. It could thus be seen that for the purposes of the First, Fifth and Sixth Schedules to the 1935 Act , the castes, races or tribes, or parts of or groups within castes, races or tribes specified in Parts I to IX of the Schedule to the 1936 Order were deemed to be scheduled castes in the Provinces to which those Parts respectively relate.

34. A perusal of the 1936 Order would reveal that for different provinces different castes were notified as Scheduled Castes. In some of the provinces, a particular caste was to be considered as Scheduled Caste, except in the districts mentioned therein where it was not to be considered as Scheduled Caste. Similarly, in some of the cases, in particular areas or districts, the said castes were deemed to be Scheduled Castes in the same province.

35. It can thus be seen that a same caste in the same province could be a Scheduled Caste only in one or more districts and not in the other districts.

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36. It could be seen that insofar as the Bombay Province is concerned, the caste ‘Mochi’ would be a Scheduled Caste throughout the Province except in Ahmedabad, Kaira, Broaoh and Panch Mahals and Surat districts. Similarly, a caste ‘Kotegar’ would be a Scheduled Caste only in the Kanara district and not in the rest of the Province.

37. It could thus be seen that the 1936 Order formed the basis of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as “the 1950 Order”) issued under Article 341(1) after the commencement of the Constitution.

38. Then comes the most important event i.e. the debate in the Constituent Assembly on 17th September 1949, when Dr. B.R. Ambedkar moved two new draft Articles being Articles 300A and 300B, which read thus: “300A-Scheduled Castes (1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or Scheduled Castes parts of or groups within castes, races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 300B-Scheduled Tribes (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within

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any Tribe or Tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

39. While moving the said new draft Articles, Dr. B.R. Ambedkar stated thus: “The object of these two articles, as I stated, was to eliminate the, necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have, the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this : that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”

40. It could thus be seen that the idea behind draft Articles 300A and 300B, which are now Articles 341 and 342, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It was proposed that the President, in consultation with the Governor or Ruler of a State shall have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution.

41. It is thus clear that the purpose of draft Article 300A (now Article 341) and draft Article 300B (now Article 342) was for identifying the castes, races, or tribes, or parts of or groups within castes, races or tribes, which were entitled to the privileges which had been defined for them in the Constitution.

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42. It is thus clear that the purpose of draft Articles 300A and 300B (now Articles 341 and 342) was not providing the privileges but only identifying the castes, races, or tribes, or parts of or groups within castes, races or tribes, which would be entitled for the privileges which were elsewhere provided under the Constitution.

43. Dr. B.R. Ambedkar further observed that the only limitation that has been imposed was that once a notification has been issued by the President, which he would be issuing in consultation with and on the advice of the Government of the State, thereafter, if any elimination or addition was to be made in the List so notified, the same can be done only by Parliament and not by the President. The purpose was to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.

44. It is amply clear that the purpose behind the said provisions was that once an identification has been done in the List so notified, the Executive should not tinker with it and any addition or deletion had to be made only by Parliament.

45. It will also be relevant to refer to the speech of Shri V.I.Muniswami Pillai, given on the same day i.e. 17th September 1949 in support of the amendment, which reads as under: “Shri V. I. Muniswami Pillai : Mr. President, I come to support the amendments that have been moved by the Honourable Dr. Ambedkar. These amendments deal with the definition of Scheduled Castes. As far as I can see he has made it clear that, according to the second part of it, the President on the 26th January 1950 will publish a list of such communities that come under the category of Scheduled Castes. But I would like to inform this House of the background which brought out the special name of Scheduled Castes. It was the intouchability, the, social evil that has been practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu society. Going backwards to 1916 it was in that year when Government found that something had to be done for the untouchable classes, (when they said untouchable classes, they were always understood to be

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Hindus,) and they had to be recognised. In Madras there were six communities that came under this classification. During the Montago Chelmsford reforms they were made ten. In 1930 when the great epoch-making fast of Mahatma Gandhi came about, then only the country saw who were the real untouchable classes. And in the 1935 Act, the Government thoroughly examined the whole thing and as far as the Province of Madras is concerned they brought 86 communities into this list or category, though there were some touchable classes also. Now, after further examination the Provincial Governments have drawn up a list and I think according to the amendment mover’s suggestions, all those communities that come-under the category of untouchables and those who profess Hinduism will be the Scheduled Castes, because I want to emphasise about the religion. I emphasise this because of late there have been some movements here and there; there are people who have left Scheduled Castes and Hinduism and joined other religions and they also are claiming to be scheduled Castes. Such convert cannot come under the scope of this definition. While I have no objection to Government granting any concessions to these converts, I feel strongly that they should not be clubbed along with Scheduled Castes. Sir, I am grateful to the Drafting Committee and also to the Chairman of that Committee for making the second portion of it very clear, that in future, after the declaration by the President as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude, anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. I feel grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs; and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed.

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I strongly oppose the amendment moved by Pandit Bhargava. The reason is that he wants to have the ten years period for observing these amendments. But he has entirely forgotten that under another article that we have already passed, or will pass the Constitution provides for the appointment of a Special officer at the Centre and also various officers in all the Provinces to go into the various disabilities of these communities and to submit a report to the President who will then be able to know whether the Scheduled Castes have reached a stage when the facilities now given to them could be withdrawn. I do not think that the reasons that he has advanced are fair and square for the uplift of the Harijans. With these few words, I support the amendment.”

46. It can thus be seen that the Learned Member of the Constituent Assembly refers to the background which brought out the special name of Scheduled Castes. He refers to untouchability, the social evil that has been practiced by the Hindu Community for ages. He states that a section of people, though Hindus, were kept at the outskirts of the Hindu society and it was in the year 1916 when the Government found that something had to be done for the untouchable classes. He refers to the efforts made by Mahatma Gandhi. He identified as to who were the actual untouchable classes. He refers to the 1935 Act and the efforts of the Government in thoroughly examining the whole thing and states that as far as the Province of Madras is concerned they brought 86 communities into the list or category. He states that according to the amendment mover’s suggestions, all those communities that come-under the category of untouchables and those who profess Hinduism will be the Scheduled Castes. However, he opined that those people who have left Hinduism and joined other religions should not be entitled to claim the benefits of Scheduled Castes. He states that if the Government wants to grant any concessions to these converts, they should not be clubbed among the Scheduled Castes.

47. He acknowledges the vision of the Drafting Committee and its Chairman as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. He states that he is grateful to the Chairman for

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bringing in this clause and that when Harijans behave independently or assert their right on some matters, not only the members of that community but their entire community is harassed.

48. Having referred to the history of as to how the concept of Scheduled Castes and Scheduled Tribes has emerged, I, now, for the sake of convenience, refer to the provisions in the Constitution of India dealing with the special treatment provided to the Scheduled Castes, Scheduled Tribes and Other Backward Classes. Since we are not concerned with political reservations, I do not find it necessary to refer to the provisions dealing therewith. Since Articles 341 and 342 are draft Articles 300A and 300B, which were approved by the Constituent Assembly on 17th September 1949, I do not repeat the same here. Article 15, 16, 46, 335, 338, Clauses 24 and 25 of Article 366 “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any

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special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. (6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category. Explanation.—For the purposes of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.” “16. Equality of opportunity in matters of public employment.—(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office 14[under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4),

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in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.” “46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” “335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.” “338. National Commission for Scheduled Castes.— (1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

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(4) The Commission shall have the power to regulate its own procedure. (5) It shall be duty of the Commission— (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes ; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such report recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is

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concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. (8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes. (10) In this article references to the Scheduled Castes shall be construed as including references to the Anglo-Indian community.” “366. Definitions.—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say— ********

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(24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution; (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution;”

49. It will be relevant to note that in the draft definition of ‘the Scheduled Castes’, the word used earlier was “specify”. However, in the final clause (24) of Article 366, the word “specify” has been changed to “deemed”. III. JUDICIAL PRECEDENTS

50. In the last 74 years, the aforesaid constitutional provisions have been considered by this Court on a number of occasions. It will be relevant to refer to some of these judgments.

51. It will also be relevant to note that by the First Amendment to the Constitution in the year 1951 by which clause (4) was added to Article 15 was necessitated on account of the judgment of this Court in the case of State of Madras vs. Smt. Champakam Dorairajan4 wherein Government Order specifying reservation for Harijans was set aside. A. M.R. Balaji vs. State of Mysore

52. In the case of M.R. Balaji and others vs. State of Mysore,5 the subject matter of challenge before the Constitution Bench of this Court was an order issued by the State of Mysore under Article 15(4) of the Constitution of India. Vide the said order, the State reserved 68% of the seats in the engineering and medical colleges and other technical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes and only 32% seats were available for the merit pool.

53. The Constitution Bench of this Court held that the provisions contained in Articles 15(4) and 16(4) are similar provisions. It further held that Article 15(4) is an enabling provision and that it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary.

4 [1951] SCR 525 5 [1963] Supp. 1 SCR 439 : 1962 SCC OnLine 147 : AIR 1963 SC 649

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54. It will be relevant to refer to the following observations of this Court: “20. Article 15(4) authorises the State to make a special provision for the advancement of any socially and educationally backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub-clauses (24) and (25) of Article 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made under Article 15(4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them. Article 34(1) provides for the issue of public notification specifying the castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union territory as the case may be. Similarly Article 342 makes a provision for the issue of public notification in respect of Scheduled Tribes. Under Article 338(3), it is provided that references to the Scheduled Castes and Scheduled Tribes shall be construed as including references to such other Backward Classes as the President may, on receipt of the report of a commission appointed under Article 340(1) by order, specify and also to the Anglo-Indian community. It would thus be seen that this provision contemplates that some Backward Classes

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may by the Presidential order be included in Scheduled Castes and Tribes. That helps to bring out the point that the Backward Classes for whose improvement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes.”

55. This Court observed that the backward classes of citizens for whom special provision is authorized to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. It has been observed that the Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. However, it was realized that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less backward than the Scheduled Castes and Scheduled Tribes, and it was thought that some special provision ought to be made even for them. The Court observed that the Backward Classes for whose improvement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes.

56. It will also be apposite to refer to the following observations of this Court: “21. ……The backwardness under Article 15(4) must be social and educational. It is not either social or educational, but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to determined.”

57. It is thus clear that the Constitution Bench of this Court observed that the backwardness under Article 15(4) must be social and educational. It is neither social nor educational, but it has to be both social and educational.

58. The Court then considered the question as to whether caste can be made the sole basis for determining the social backwardness was permissible or not. The Court observed that the group of citizens to whom Article 15(4) applies are described as “classes of citizens”, not as castes of citizens. The Court observed that therefore in dealing with the question as to whether any class of citizens is socially

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backward or not, it may not be irrelevant to consider the caste of the said group of citizens. It has been observed that though the caste of the group of citizens may be relevant, its importance should not be exaggerated. The Court further observed that social backwardness is, on the ultimate analysis, the result of poverty to a very large extent. It observed that the classes of citizens who are deplorably poor automatically become socially backward. It observed that they do not enjoy a status in society and have, therefore, to be content to take a backward seat. The Court therefore held that both caste and poverty are relevant in determining the backwardness of citizens.

59. The Court further observed that the occupations of citizens may also contribute to making classes of citizens socially backward. It has been observed that there are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. It has been observed that the place of habitation also plays a role in determining the backwardness of a community of persons. It therefore held that the problem of determining who are socially backward classes is very complex. It has been held that sociological, social, and economic considerations come into play in solving the problem, and evolving proper criteria for determining which classes are socially backward. However, it observed, that is the function of the State which purports to act under Article 15(4) of the Constitution of India.

60. In the facts of the said case, the Court found that the State had applied the sole criteria of caste without regard to the other factors. It was therefore held that the criteria of social backwardness of the communities to whom the order impugned therein was applied was not permissible under Article 15(4) of the Constitution of India.

61. Insofar as the educational backwardness of the classes of citizens is concerned, the State had applied the formula that all castes whose average student population in the last three High School classes of all High Schools in the State was less than the State average of 6.9 per thousand should be regarded as backward communities. Insofar as more backward communities are concerned, the criteria applied was that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more backward classes.

62. The Court held that the State was not justified in including in the list of Backward Classes, castes, or communities whose average of

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student population per thousand was slightly above, or very near, or just below the State average. B. State of Kerala vs. N.M. Thomas

63. Coming next to one of the most important judgments dealing with the affirmative action which is the 7-Judge Bench judgment of this Court in the case of State of Kerala and another vs. N.M. Thomas and others.6 In the said case, out of the 7 Learned Judges, 5 Learned Judges upheld the provisions made by the Kerala Government for providing affirmative action to ameliorate the situation of Scheduled Castes and Scheduled Tribes.

64. It will be apposite to refer to the following observation made by A.N. Ray, C.J.: “21. Articles 14, 15 and 16 form part of a string of constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.

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23. In Ambica Mills case [(1974) 4 SCC 656 : 1974 SCC (L&S) 381] this Court explained reasonable classification to be one which includes all who are similarly situated and none who are not. The question as to who are similarly situated has been answered by stating that one must look beyond the classification to the purpose of law. “The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.” [SCC p. 675: SCC (L&S) p. 400, para 54]

24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. xxx xxx xxx

28. This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Articles 16(1) and (2) give effect to equality

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before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). Promotion to selection post is covered by Article 16(1) and (2).

29. The power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the Backward Classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. (General Manager, S. Rly. v. Rangachari [AIR 1962 SC 36 : (1962) 2 SCR 586] .) The present case is not one of reservation of posts by promotion.

30. Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Roadside Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station Masters claimed equality of opportunity for promotion vis-à-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The Roadside Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Assistant Station Masters’ Association v. General Manager, Central Railway [AIR 1960 SC 384 : (1960) 2 SCR 311].) The present case is not to create separate avenues of promotion for these persons.”

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65. It could thus be seen that in the opinion of Ray, C.J., Articles 14, 15 and 16 form part of a string of constitutional rights guaranteed by it, which supplement each other. His Lordship observed that Article 16, which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. In turn, Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus with the objects to be achieved.

66. Referring to the judgment of this Court in the case of State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad,7 His Lordship explained the reasonable classification to be one which includes all who are similarly situated and none who are not. He further observed that discrimination is the essence of classification, and that equality is violated if it rests on an unreasonable basis. He observed that those who are similarly circumstanced are entitled to an equal treatment and that equality is amongst equals. He observed that the classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups. He further observed that such differential attributes must bear a just and rational relation to the object sought to be achieved. He further observed that there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. He observed that Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection. He observed that this equality of opportunity need not be confused with absolute equality. It is observed that power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. His Lordship observed that in providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the Backward Classes consistently with the maintenance of the efficiency of administration.

67. His Lordship further observed thus: “38. The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment,

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promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum- merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.”

68. It is observed that the rule which provides that given the necessary requisite merit, a member of the backward class shall get priority so as to ensure adequate representation and the said rule will not violate Article 14 or Article 16(1) and (2). The relevant consideration would be to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.

69. His Lordship further observed thus: “43. Scheduled Castes and scheduled tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh [AIR 1965 SC 1557 : (1965) 2 SCR 877] this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a scheduled caste and his declaration that he belonged to the Chamar caste which was a scheduled caste could not be premitted because of the provisions contained in Article 341. No court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.

44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially,

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economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.”

70. His Lordship clearly observed that Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. He observed that no court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. It is observed that the object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.

71. His Lordship (Ray, C.J.) further observed that our Constitution aims at equality of status and opportunity for all citizens including

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those who are socially, economically and educationally backward. It has been held that if members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. It has been observed that special provisions have been made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. It has been emphasized that only such special provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). His Lordship goes on to say that preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. It has been observed that equality of opportunity for unequals can only mean aggravation of inequality and that equality of opportunity admits discrimination with reason and prohibits discrimination without reason. His Lordship held that discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. It has been held that Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognized by the Constitution. It has been held that the differential treatment in standards of selection is within the concept of equality.

72. I now refer to the following observations of K.K. Mathew, J.: “53. Formal equality is achieved by treating all persons equally: “Each man to count for one and no one to count for more than one.” But men are not equal in all respects. The claim for equality is in fact a protest against unjust, undeserved and unjustified inequalities. It is a symbol of man’s revolt against chance, fortuitous disparity, unjust power and crystallised privileges. Although the decision to grant equality is motivated prima facie by the alleged reason that all men are equal yet, as soon as we clear up the confusion between equality in the moral sense and equality in the physical sense, we realise that the opposite is the truth; for, we think that it is just to promote certain equalities precisely to compensate for the fact that men

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are actually born different. We, therefore, have to resort to some sort of proportionate equality in many spheres to achieve justice.

54. The principle of proportional equality is attained only when equals are treated equally and unequals unequally. This would raise the baffling question: Equals and unequals in what? The principle of proportional equality therefore involves an appeal to some criterion in terms of which differential treatment is justified. If there is no significant respect in which persons concerned are distinguishable, differential treatment would be unjustified. But what is to be allowed as a significant difference such as would justify differential treatment?

55. In distributing the office of a State, not any sort of personal equality is relevant; for, unless we employ criteria appropriate to the sphere in question, it would turn out that a man’s height or complexion could determine his eligibility or suitability for a post. As Aristotle said, claims to political office cannot be based on prowess in athletic contests. Candidates for office should possess those qualities that go to make up an effective use of the office. But this principle also does not give any satisfactory answer to the question when differential treatment can be meted out. As I said, the principle that if two persons are being treated or are to be treated differently there should be some relevant difference between them is, no doubt, unexceptionable. Otherwise, in the absence of some differentiating feature what is sauce for the goose is sauce for the gander. The real difficulty arises in finding out what constitutes a relevant difference.

56. If we are all to be treated in the same manner, this must carry with it the important requirement that none of us should be better or worse in upbriging, education, than anyone else which is an unattainable ideal for human beings of anything like the sort we now see. Some people maintain that the concept of equality of opportunity is an unsatisfactory concept. For, a complete formulation of it renders it incompatible with any form of human society. Take for instance, the case of equality of opportunity for

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education. This equality cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. To remedy this, all children might be brought up in State nurseries, but, to achieve the purpose, the nurseries would have to be run on vigorously uniform lines. Could we guarantee equality of opportunity to the young even in those circumstances? The idea is well expressed by Laski: “Equality means, in the second place, that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by no means equal. Children who are brought up in an atmosphere where things of the mind are accounted highly are bound to start the race of life with advantages no legislation can secure. Parental character will inevitably affect profoundly the equality of the children whom it touches. So long, therefore, as the family endures — and there seems little reason to anticipate or to desire its disappearance — the varying environments it will create make the notion of equal opportunities a fantastic one. [“Liberty and Equality” in Special Problems and Public Policy : Inequality and Justice, Ed. Lee Rainwater, pp. 26 to 31]

57. Though complete identity of equality of opportunity is impossible in the world, measures compensatory in character and which are calculated to mitigate surmountable obstacles to ensure equality of opportunity can never incur the wrath of Article 16(1).”

73. Mathew, J. observed that formal equality is achieved by treating all persons equally. Formally, it requires that all men have to be treated as the same. He observed that men are not equal in all respects. The claim for equality is in fact a protest against unjust, undeserved and unjustified inequalities. It is a symbol of man’s revolt against chance, fortuitous disparity, unjust power and crystallized privileges. He observed that as soon as we clear up the confusion between equality in the moral sense and equality in the physical sense, it is just to promote certain equalities precisely to compensate for the

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fact that men are actually born different. He explains the theory of proportional equality and observed that the principle of proportional equality can be attained only when equals are treated equally and unequals unequally. He observed that if there is no significant respect in which persons concerned are distinguishable, differential treatment would be unjustified. But if there is significant respect in which persons concerned are distinguishable, the same would justify differential treatment. His Lordship observed that if two people are being treated or are to be treated differently there should be some relevant difference between them. Otherwise, in the absence of some differentiating feature what is sauce for the goose is sauce for the gander. He observed that the real difficulty arises in finding out what constitutes a relevant difference.

74. His Lordship observed that if we all were to be treated in the same manner, the same would carry with it the requirement that none of us should be better or worse in upbringing and education than anyone else. He observed that the equality of opportunity for education cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. His Lordship referred to Laski, who opined that parental character will inevitably affect the equality of the children whom it touches. His Lordship then observed that though complete identity of equality of opportunity is impossible in the world, compensatory measures in character calculated to mitigate surmountable obstacles to ensure equality of opportunity would not violate Article 16(1).

75. It will also be apposite to refer to the following observations of Mathew, J. in N.M. Thomas (supra): “64. It would follow that if we want to give equality of opportunity for employment to the members of the Scheduled Castes and scheduled tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the court when it makes a decision as the court also is ‘state’ within the meaning of Article 12 and makes law even though “interstitially from the molar to the molecular”. I have explained at some length the reason why court is “State” under Article 12 in my judgment in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] .

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65. Equality of opportunity is not simply a matter of legal equality. Its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It obtains insofar as, and only insofar as, each member of a community, whatever his birth or occupation or social position, possesses in fact, and not merely in form, equal chances of using to the full his natural endowments of physique, of character, and of intelligence. [See R.H. Tawney, “Equality”, (1965) pp. 103-04]

66. The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims Fundamental rights as enacted in Part III of the Constitution are, by and large, essentially negative in character. They mark off a world in which the Government should have no jurisdiction. In this realm, it was assumed that a citizen has no claim upon Government except to be left alone. But the language of Article 16(1) is in marked contrast with that of Article 14. Whereas the accent in Article 14 is on the injunction that the State shall not deny to any person equality before the law or the equal protection of the laws that is, on the negative character of the duty of the State, the emphasis in Article 16(1) is on the mandatory aspect, namely, that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State implying thereby that affirmative action by the Government would be consistent with the article if it is calculated to achieve it. If we are to achieve equality, we can never afford to relax: “While inequality is easy since it demands no more than to float with the current, equality is difficult for it involves swimming against it. [R.H. Tawney, “Equality”, (1952), p. 47] ”

67. Today, the political theory which acknowledges the obligation of Government under Part IV of the Constitution

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to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a State with obligation to help the weaker sections of its members seems to have increasing influence in constitutional law. The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the State to offset the effects of poverty by providing counsel, transcript of appeal, expert witnesses, etc. Today, the sense that Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in constitutional law. While special concessions for the underprivileged have been easily permitted, they have not traditionally been required. Decisions in the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may not be completely adequate. In these areas, the inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the State, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. [See “Developments — Equal Protection”, 82 Harv LR 1165]

68. The idea of compensatory State action to make people who are really unequal in their wealth, education or social environment, equal, in specified areas, was developed by the Supreme Court of the United States. Rousseau has said: “It is precisely because the force of circumstances tends to destroy equality that force of legislation must always tend to maintain it. [Contract Social ii, 11]””

76. His Lordship observed that if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational, and economic environment. His Lordship observed that the directive principle embodied in Article 46 is not only binding on the lawmaker, but it should equally inform and illuminate the approach of the court when it makes a decision. Referring to the exposition in the case of His Holiness Kesavananda Bharati Sripadagalavaru vs. State of

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

77. His Lordship observed that ‘equality of opportunity’ is not simply a matter of legal equality and that its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It has been observed that the guarantee of equality is something more than what is required by ‘formal equality’. It implies differential treatment of persons who are unequal. It has been observed that egalitarian principle requires that the Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claim Fundamental rights as enacted in Part III of the Constitution are, by and large, essentially negative in character. His Lordship observed that the emphasis in Article 16(1) is on the mandatory aspect that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It therefore implies that affirmative action by the Government would be consistent with the article if it is calculated to achieve it.

78. Referring to Article 14 of the Constitution, His Lordship observed that the State is under obligation to help the members of the weaker sections. His Lordship observed that under the constitutional law, the Government has affirmative responsibility for elimination of inequalities, social, economic or otherwise. Referring to the concept of proportional equality, His Lordship states that the State is required to frame legislation, to consider the private inequalities of wealth, of education and other circumstances.

79. Referring to the judgments of the Supreme Court of the United States, His Lordship opined that the idea of compensatory State action was to bring about the equality for the people who are really unequal in their wealth, education or social environment.

80. After referring to certain judgments of the United States Supreme Court, Mathew, J. observed thus: “73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those

8 [1973] Supp. SCR 1 : (1973) 4 SCC 225

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conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.

74. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and scheduled tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so-called forward communities complain of a compensatory measure made by the Government to ensure the members of Scheduled Castes and scheduled tribes their due share of representation in public services?

75. It is said that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes which according to the decision of this Court would include the power of the State to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give any adventitious aids by legislation or otherwise to the Backward Classes which would derogate from strict numerical equality. If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and scheduled tribes equality of opportunity in the matter of employment, I see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity.

76. Daniel P. Moynihan, one of America’s leading urban scholars, spelled out the problem in a widely publicized study that he prepared while he was Assistant Secretary of Labour. The Moynihan Report, as it came to be known, made the point in a passage that deserves full quotation:

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“It is increasingly demanded that the distribution of success and failure within one group be roughly comparable to that within other groups. It is not enough that all individuals start out on even terms, if the members of one group almost invariably end up well to the fore and those of another far to the rear. This is what ethnic politics are all about in America, and in the main the Negro American demands are being put forth in this new traditional and established framework. Here a point of semantics must be grasped. The demand for equality of opportunity has been generally perceived by White Americans as a demand for liberty, a demand not to be excluded from the competitions of life — at the polling place, in the scholarship examinations, at the personnel office, on the housing market. Liberty does, of course, demand that everyone be free to try his luck, or test his skill in such matters. But these opportunities do not necessarily produce equality: on the contrary, to the extent that winners imply losers, equality of opportunity almost insures inequality of results. The point of semantics is that equality of opportunity now has a different meaning for Negroes than it has for Whites. It is not (or at least no longer) a demand for liberty alone, but also for equality — in terms of group results. In Bayard Rustin’s terms, ‘It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality’. By equality Rustin means a distribution of achievements among Negroes roughly comparable to that among Whites. [The Moynihan Report and the Politics of Controversy, Eds. Lee Rainwater and William L. Yancey, p. 49]”

77. Beginning most notably with the Supreme Court’s condemnation of school segregation in 1954, the United States has finally begun to correct the discrepancy between its ideals and its treatment of the black man. The first steps, as reflected in the decisions of the courts

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and the civil rights laws of Congress, merely removed the legal and quasi-legal forms of racial discrimination. These actions while not producing true equality, or even equality of opportunity, logically dictated the next step: positive use of government power to create the possibility of a real equality. In the words of Professor Lipset: “Perhaps the most important fact to recognise about the current situation of the American Negro is that (legal) equality is not enough to insure his movement into larger society.” [“The American Democracy”, Mcgrath, Cornwell and Goodman, p. 18]

78. I agree that Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and scheduled tribes. If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up to the point of making reservation.

79. The State can adopt any measure which would ensure the adequate representation in public service of the members of the Scheduled Castes and scheduled tribes and justify it as a compensatory measure to ensure equality of opportunity provided the measure does not dispense with the acquisition of the minimum basic qualification necessary for the efficiency of administration.”

81. His Lordship observed that there is no reason why this Court should not require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens. His Lordship observed that whenever differing conditions and circumstances stand in the way of a class of citizens in their equal access to the enjoyment of basic rights or claims, the State would be required to adopt a standard of proportional equality.

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82. He observed that no member of the forward classes or communities should complain against a compensatory measure made by the Government to ensure that the members of Scheduled Castes and Scheduled Tribes get their due share of representation in public services.

83. His Lordship observed that if reservation is necessary either at the initial stage or at the stage of promotion or at both, to ensure for the members of the Scheduled Castes and Scheduled Tribes equality of opportunity, then this would be permissible under Article 16(1) as that alone would put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. It is observed that the formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. He observed that the equality of result is the test of equality of opportunity.

84. Mathew, J. rejects the contention that Article 16(4) is an exception to Article 16(1). He states that such an interpretation does not consider the social, economic, educational background of the members of the Scheduled Castes and Scheduled Tribes. He held that if equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1) and that it is only an emphatic way of putting the extent to which equality of opportunity could be carried i.e., even up to the point of making reservation.

85. His Lordship observed that the State can adopt any measure which would ensure the adequate representation in public service of the members of the Scheduled Castes and Scheduled Tribes and justify it as a compensatory measure to ensure equality of opportunity provided the measure does not dispense with the acquisition of the minimum basic qualification necessary for the efficiency of administration.

86. Mathew, J. further observed thus: “83. A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. In other words, the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must

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