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the law for sub-dividing or reclassifying/sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes”, which have acquired special status by virtue of Article 341 of the Constitution.

57. Under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List and tinker with Article 341. Such power if exercised by the State in absence of any executive or legislative power would be colourable exercise of powers. It hardly needs to be reiterated that the idea conveyed by the ‘doctrine of colourable legislation’ is that although apparently a legislature in passing a statute, purports to act within the limits of its powers, yet in substance and in reality, it transgressesits powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. As well-settled, the whole doctrine of “colourable exercise” is based on the maxim - “you cannot do indirectly what you cannot do directly.”* Any action of the State in the name of affirmative action, if not permitted by the Constitution, could not be validated or vindicated by the Courts by moulding or tinkering with the specific provisions of the Constitution. (III) WHETHER E.V. CHINNAIAH IS REQUIRED TO BE REVISITED IN VIEW OF CERTAIN OBSERVATIONS MADE IN INDRA SAWHNEY CONCERNING “OTHER BACKWARD CLASSES”?

58. Much reliance has been placed by the Five-Judge Bench in Davinder Singh for making reference to this Bench, on the decision of Indra Sawhney for opining that the view taken in E.V. Chinnaiah was not in consonance with Indra Sawhney however, in my opinion, Indra Sawhney had not dealt with the issue of sub-classification of the “Scheduled Castes” much less had dealt with the State’s power to sub-classify or sub-divide or re-group the Castes specified as “Scheduled Castes” under Article 341 of the Constitution.

59. So far as Indra Sawhney is concerned, the factual matrix was that the Government of India under Article 340 of the Constitution had constituted the “Second Backward Classes Commission” on January 1, 1979 under the Chairmanship of Shri B. P. Mandal (known as the Mandal Commission). The terms of the reference

* K.C. Gajapati Narayan Deo vs. State of Orissa (1953) 2 SCC 178

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of the said Commission were inter alia to determine the criteria for defining the socially and educationally backward classes, to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified, and to examine the desirability or otherwise of making provision for reservation of appointments or posts in favour of such backward classes of citizens which were not adequately represented in the public services and posts in connection with the affairs of the Union or of any State. The Government of India itself on the recommendations of the Mandal Commission issued an office memorandum on August 13, 1990 purporting to extend reservations for socially and educationally backward classes in its services w.e.f. August 7, 1990. The said O.M reserved 27% of the seats for SEBC in addition to those already reserved for the Scheduled Castes and Scheduled Tribes. The issuance of the said O.M led to widespread protest and filing of writ petitions in the Supreme Court questioning the said Memorandum. The Five-Judge Bench of this Court by its order dated October 1, 1990 stayed the operation of the said O.M. dated 13th August, 1990, however, the process of identification of castes for locating the SEBCs was permitted to continue. Thereafter, as a consequence of the change in the Government at the Centre, another O.M on September 25th, 1991 modifying the earlier O.M. of August 13, 1990 was issued, by introducing the economic criteria in the grant of reservation by giving preference to the poorer sections of the SEBC’s in the 27% quota and reserving another 10% of the vacancies in the civil services for other economically backward sections not covered by any of the existing schemes of reservation, which was explained to extend to the poorest amongst the higher caste and other religions also. The constitutionality of the said O.M dated September 25, 1991 was challenged before this Court and the Nine-Judge Bench was constituted to hear the matters. The matter was heard by the Nine-Judge Bench and by a 6:3 decision, the constitutionality, validity and enforceability of the impugned O.M dated 13.08.1990 subject to certain conditionalities and prerequisites was upheld, whereas paragraph 2(ii) of the second O.M. dated September 25, 1991 providing 10% additional reservation for the economically backward was held unconstitutional and struck down. Six separate judgments were delivered. The leading judgment was by B. P. Jeevan Reddy, J, (for M.H. Kania, C.J., and

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M.N. Venkatchaliah, A.M. Ahmadi and himself) with S.Ratnavel Pandian and P.B Sawant, J.J concurring by their separate judgments.

60. Several questions were posed before the Nine-Judge Bench in Indra Sawhney which have been broadly indicated and discussed in the leading judgment of Jeevan Reddy, J along with the miscellaneous questions discussed therein. The questions particularly germane to the Scheduled Castes/Scheduled Tribes were the Question-3(a), Question-3(e) and Question-10. The Question-3(a) was, “what does the expression “backward class of citizens” in Article 16(4) mean?”The Question-3(e) was, “whether the class, to be designated as a backward class, should be situated similarly to the Scheduled Castes/Scheduled Tribes?” The Question-10 was, “whether the distinction made in the second memorandum between poorer sections of the backward classes and others was permissible under Article 16?”

61. Justice Jeevan Reddy in his leading judgment while answering question 3(b) with regard to identification of “backward class of citizens” observed in Paragraph 781 as under: - “781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.”

62. Justice Jeevan Reddy further discussed the issue with regard to the “means test” and “creamy layer test” qua question no. 3 (d) and made a special note in paragraph 792 at page 725 that: - “This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes.”

63. While summarising the issues involved in Question no. 3, Justice Jeevan Reddy held in Para 796 and 797 as under: - “796.-797. We may now summarise our discussion under Question No. 3. (a) A caste can be and quite often is a social class in India. If it is backward socially, it would

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be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectivities for the purposes of Article 16(4). (b) Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does — what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country’s population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (d) ‘Creamy layer’ can be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who

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indubitably fall within the expression “backward class of citizens”. The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).”

64. Pandian, J. in his concurring opinion observed in Paragraph 39 that the words “backward class of citizens”, occurring in Article 16(4) are neither defined nor explained in the Constitution though the same words occurring in Article 15(4) are followed by a qualifying phrase, “socially and educationally”. In paragraph-126, he observed that it is not necessary for a class to be designated as backward class that it should be situated similarly to the Scheduled Castes and Scheduled Tribes.

65. Justice P.B. Sawant in his concurring judgment observed as under in paragraph 417: - “417. Under Article 16(4), the reservation in the State employment is to be provided for a “class of people” which must be “backward” and “in the opinion of the State” is “not adequately represented” in the services of the State. Under Article 46, the State is required to “promote with special care” the “educational and economic interests” of the “weaker sections” of the people and “in particular”, of the Scheduled Castes and Scheduled Tribes, and “to protect” them from “social injustice” and “all forms of exploitation”. Since in the present case, we are not concerned with the reservations in favour of the SCs/STs, it is not necessary to refer to Article 335 except to point out that, it is in terms provided there that the claims of SCs/STs in the services are to be taken into consideration, consistently with the maintenance of efficiency of administration. It must, therefore, mean that the claims of other backward class of citizens and weaker sections must also be considered consistently with the maintenance of the efficiency. For, whomsoever, therefore, reservation is made, the efficiency of administration is not to be sacrificed, whatever the efficiency may mean. That is the mandate of the Constitution itself.”

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66. After taking into consideration, the principles laid down in Indra Sawhney, Justice Hegde in E.V. Chinnaiah rightly observed in paragraph 38 as under: - “38. On behalf of the respondents, it was pointed out that in Indra Sawhney case [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] the Court had permitted subclassification of Other Backward Communities, as backward and more backward based on their comparative underdevelopment, therefore, the similar classification amongst the class enumerated in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or sub grouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.”

67. Justice H.K. Sema, J. concurring with Justice Hegde in E.V. Chinnaiah observed in Paragraph 48 as under: - “48. In Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court observed at SCC p. 725 that the discussion of creamy layer is confined to Other Backward Classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes.”

68. Justice S.B. Sinha also in his concurring opinion observed in paragraph 76 and 92 as under: - “76. Having regard to the decision of this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] backward class citizens can be classified in four different categories —

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(i) more backward, (ii) backward, (iii) Scheduled Caste, and (iv) Scheduled Tribe. A contention has been raised that in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] the Court permitted a classification amongst Other Backward Classes and as such there is no reason as to why the said principle shall not be applied to the members of the Scheduled Castes. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] itself this Court categorically stated that it was not concerned with the question as regards members of Scheduled Castes and Scheduled Tribes. (SCC para 792 at p. 725) It is relevant to note that Question 5 formulated by Jeevan Reddy, J. was only in relation to the further division in the backward classes into backward and more backward categories. Advisedly, no question was framed as regards division of Scheduled Castes into more backward and backward Scheduled Castes.

92. The impugned Act as also the judgment of the High Court are premised on the observations in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] that there is no constitutional or legal bar for a State in categorising the backward classes as backward and more backward class. This Court, however, while referring to Article 16(4) of the Constitution stated that it recognised only one class viz. backward class of citizens in the following terms: (SCC p. 716, para 781) “781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.”

69. In Ashok Kumar Thakur vs. Union of India and Others,22 another Five-Bench judgment, after considering earlier judgments on the issue

22 [2007] 7 SCR 63 : (2008) 6 SCC 1

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whether the “creamy layer” principle is applicable to the Scheduled Castes and Scheduled Tribes, held that the said Principle cannot be applied to Scheduled Castes and Scheduled Tribes as they are separate classes by themselves. To be precise, it held as under: - “184. So far, this Court has not applied the “creamy layer” principle to the general principle of equality for the purpose of reservation. The “creamy layer” so far has been applied only to identify the backward class, as it required certain parameters to determine the backward classes. “Creamy layer” principle is one of the parameters to identify backward classes. Therefore, principally, the “creamy layer” principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. Ray, C.J., in an earlier decision, stated that “Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste”. And they are so identified by virtue of the notification issued by the President of India under Articles 341 and 342 of the Constitution. The President may, after consultation with the Governor, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the Constitution shall be deemed to be Scheduled Castes or Scheduled Tribes. Once the notification is issued, they are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is applicable. In E.V. Chinnaiah [(2005) 1 SCC 394] concurring with the majority judgment, S.B. Sinha, J. said : (SCC p. 403) “The Scheduled Castes and Scheduled Tribes occupy a special place in our Constitution. The President of India is the sole repository of the power to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive. The object of Articles 341 and 342 is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard

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to the economic and education backwardness wherefrom they suffer. Any legislation which would bring them out of the purview thereof or tinker with the order issued by the President of India would be unconstitutional. (Paras 52, 111 and 84) (emphasis supplied)

186. Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as “creamy layer” is not applied as one of the principles of equality, it cannot be applied to the Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of “creamy layer” are not applicable for Scheduled Castes and Scheduled Tribes.”

70. In view of the above, I am of the opinion that though Indra Sawhney had sought to define “backward class” in terms of social backwardness, while considering the ambit of “backward class” for the purpose of Article 16(4), it did not deal with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the light of Article 341/342, rather it categorically kept the Scheduled Castes/ Scheduled Tribes outside the purview of consideration. The Scheduled Castes being the most backward class amongst the backward classes, and having acquired a special status by virtue of Article 341, the question of defining “backward class” qua the “Scheduled Castes” did not arise, and rightly not dealt with in Indra Sawhney for the purposes of Article 16(4) of the Constitution.

71. In so far as Article 15(4) and 15(5) are concerned, the use of the word “any” before the words “socially and educationally backward classes” and the use of the word “the” before “Scheduled Castes/ Scheduled Tribes” clearly indicate that the said provisions pertain to the “Other Backward Classes” which are socially and educationally backward, and that the said provisions also pertain to the “Scheduled Castes” and “Scheduled Tribes”, however the“Scheduled Castes” do not require any further identification once they are notified under Article 341. As rightly held in Ashok Kumar Thakur,* the “creamy

* [2007] 7 SCR 63 : (2008) 6 SCC 1

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layer” principle is one of the parameters to identify backward classes. The “Scheduled Castes” having already been specified in the Presidential List under Article 341, the said creamy layer principle cannot be applied to the “Scheduled Castes” for their identification as backward class.In my opinion, the Five-Judge Bench has thoroughly misread and misinterpreted Indra Sawhney, to opine that Indra Sawhney permitted sub-classification of backward classes including the Scheduled Castes/Scheduled Tribes, rather they were categorically kept outside the purview of consideration by the Nine- Judge Bench in Indra Sawhney.

72. The reliance placed on Jarnail Singh is also thoroughly erroneous. In Jarnail Singh, the Five-Judge Bench was called upon to examine the correctness of the law laid down in Nagaraj. In para-17 of Jarnail Singh, the Bench observed that: - “The judgment in Chinnaiah has been referred by the three Judge Bench to a larger bench by an Order dated 20th August, 2014. This is because, according to the three Judge Bench,Chinnaiah is contrary to Article 338 of the Constitution of India and Indra Sawhney. Since the correctness of Chinnaiah does not arise before us, we need not say more about this reference which will be decided on its own merits.”

73. After noting above, the Five-Judge Bench in Jarnail Singh did not agree with the view taken by the Five-Judge Bench in Ashok Kumar * that the creamy layer principle is merely a principle of identification and not a principle of equality. The Bench in Jarnail Singh agreed with that part of decision in M. Nagaraj and Others vs. Union of India and Others* which held that the creamy layer test is applicable to the Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test,however, it did not agree with Nagaraj, when Nagaraj required the States to collect quantifiable data on backwardness, in so far as Scheduled Castes and Scheduled Tribes are concerned. The Bench in Jarnail Singh held that “it would clearly be contrary to Indra Sawhney, which had held that the requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who inevitably fall within the expression “Backward Class of Citizens” and * [2007] 7 SCR 63 : (2008) 6 SCC 1 * [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212

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therefore the decision the judgment in Nagaraj would have to be declared to be bad on this ground.” In my opinion, such observations in Jarnail Singh are self-contradictory. In any case, the Bench had no occasion to deal with nor had dealt with the issue whether sub-classification of “Scheduled Castes” notified in the Presidential List under Article 341 was permissible to be made by the States.

74. It is very common that the Constitutional Benches in their judgments deal with many complex facts and legal issues. Not all that has been said in the body of judgment would become a precedent or binding for other Courts. The judgments of the Constitution Benches have to be read in the context of questions which arose for consideration before them. Certain observations made in the judgment may be necessary for deciding the issues involved, but every observation made on law in the course of delivering the judgment may not have a binding effect as a precedent. Any observation or remark made or opinion expressed incidentally or collaterally, and not directly upon the question posed before the Court would be an ‘obiter dicta’ and not a ‘precedent’. A decision is an authority for what it decides and not what can logically be deduced therefrom, as held in State of Haryana vs. Ranbir alias Rana.23 It was also observed in ADM Jabalpur vs. Shivakant Shukla 24 that the statements which are not part of ratio decidendi constitute obiter dicta and are not authoritative.

75. In none of the cases – Indra Sawhney or Jarnail Singh, the issue of sub-classification of “Scheduled Castes” in the context of Article 341 was raised or argued, nor was decided by the concerned Benches, as was raised and decided in E.V. Chinnaiah. Hence, it would be a fallacy to hold that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh.

76. Since I have held that the State has neither executive nor legislative power to sub-classify or sub-divide or re-group the castes, races or tribes specified as the “Scheduled Castes” in the Presidential List notified under Article 341, the other questions pertaining to the criteria or yardstick for sub-classification, or requirement for collecting quantifiable data etc. by the State for sub-classification,are not required to be addressed.

23 [2006] 3 SCR 864 : (2006) 5 SCC 167 24 (1976) 8 SCC 521

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AFFIRMATIVE ACTION AND CONSTITUTIONAL FRAMEWORK

77. The affirmative actions of the States have to be within the Constitutional framework, and if they are not, the Courts cannot ratify the same by bending or moulding the specific mandates contained in the Constitution. Article 142 even with the width of its amplitude cannot be used to build a new edifice where none existed earlier, by ignoring Constitutional provisions dealing with the subject and thereby achieve something indirectly which cannot be achieved directly.* As held by the Constitution Bench in the landmark judgment in case of Supreme Court Bar Association vs. Union of India and Another.25 “47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being

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curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.”

78. The action of the State though well-intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142. The removal of inequalities or remedy to remove inequalities cannot be permitted at the cost of violation of the specific provision of the Constitution. When the wordings of the provision of the statutes, in the instant case of Article 341 of the Constitution are clear, as also the intention of the draftsmen of the Constitution, the Court cannot add or subtract words from such provision to give it a meaning which the Court feels would achieve the goal of social transformation. Sometimes the affirmative action and the Constitution intersect with each other in complex ways, as the affirmative action policies are framed by the States to promote diversity and to address historical inequalities, while the legal frameworks have to ensure that these policies are implemented within the bounds of the Constitution. The implementation of the affirmative action policies must align with the Constitutional and legal principles, particularly those related to

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equality and non-discrimination. In short, the affirmative action and the legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and Constitutionality.

79. The upshot of the above discussion may be summarised as under: - (i) When the law was settled by the Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in Davinder Singh, and that too without assigning any reason much less cogent reason for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis. (ii) While giving a broad and generous construction to the Constitutional provisions, the rule of “plain meaning”, or “literal” interpretation, which is the “primary rule” has to be kept in mind. (iii) The Presidential List specifying “Scheduled Castes” under Article 341 assumes finality on the publication of the notification, and the castes, races or tribes, or groups within castes, races or tribes specified in the notification are deemed to be the “Scheduled Castes” in relation to that State or Union Territory as the case may be, for the purposes of the Constitution and as such assume special status of “Scheduled Castes”. (iv) It is only the Parliament by law which can include in or exclude from the list of the “Scheduled Castes” specified in the notification notified under Clause (1), any caste, race or tribe or part of or group within any caste, race or tribe. Such notification notified under Clause (1) cannot be varied even by the President by issuing any subsequent notification. (v) It is by virtue of the notification of the President under Article 341 that the “Scheduled Castes” come into being. Though the members of Scheduled Castes are drawn from different castes, races or tribes, they attain special status of “Scheduled Castes” by virtue of Presidential Notification. The etymological and evolutionary history and the background of the nomenclature “Scheduled Castes”, coupled with the Presidential orders

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published under Article 341 of the Constitution, make the “Scheduled Castes”, a homogenous class, which cannot be tinkered with by the States. (vi) The States have no legislative competence to enact the law for providing reservation or giving preferential treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying or regrouping the castes, races or tribes enumerated as the “Scheduled Castes” in the notification under Article 341. (vii) Under the guise of providing reservation or under the pretext of taking affirmative action for the weaker of the weakest sections of the society, the State cannot vary the Presidential List,nor can tinker with Article 341 of the Constitution. (viii) The Nine-Judge Bench in Indra Sawhney and the Five- Judge Bench in Jarnail Singh had not dealt with the issue of sub-classification of the “Scheduled Castes” in the context of Article 341, much less had dealt with the State’s powers to sub-classify or sub-divide or regroup the castes specified as “Scheduled Castes” under Article 341 of the Constitution, and therefore, it could not be held that the law laid down in E.V. Chinnaiah was not in consonance with Indra Sawhney or Jarnail Singh. (ix) The power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. Even with the width of its amplitude, Article 142 cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with the subject, and thereby to achieve something indirectly which cannot be achieved directly. The action of the State, though well intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142. (x) The affirmative action and legal frameworks, though both do aim at more equitable society, they must navigate complex legal principles to ensure fairness and constitutionality.

80. In that view of the matter, I am of the opinion that the law laid down by the Five-Judge Bench in E.V. Chinnaiah is the correct law and deserves to be confirmed.

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Pankaj Mithal, J. Index*

1. Introduction 4-10 Amendments to Constitution with reference to

2. 10-23 Case Laws Central Government and State Government

3. 23-33 Commissions on SC/ST and OBC’s 4 The Ramifications of Reservation 33-39 Casteless Society - Caste System vis-à-vis the

5. 39-45 Varna System Reservation is only a medium of facility and its

6. 45-48 execution revives Casteism

7. Conclusion 49-54

INTRODUCTION

1. The issue under reference to this Constitution Bench as succinctly described by the Chief Justice in his opinion is whether sub-classification of the scheduled castes is constitutionally permissible for the purposes of reservation.

2. The issue arose as the Punjab legislature enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, inter alia providing for reservation of 25% in favour of scheduled castes and that 50% of the aforesaid percentage shall be offered to particular scheduled castes such as Balmikis and Mazhbi Sikhs in direct recruitment.

3. The validity of providing 50% reservation in favour of the above two categories of scheduled castes, out of the various mentioned in the Presidential list of scheduled castes, was challenged before the High Court by invoking the writ jurisdiction under Article 226 of the Constitution of India. The High Court of Punjab and Haryana relying upon the Constitution Bench decision of this Court in E.V. Chinnaiah vs. State of Andhra Pradesh and Ors.1 declared Section 4(5) of

* Ed. Note: Pagination as per the original Judgment. 1 (2005) 1 SCC 394

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the aforesaid Act which sub-classified the scheduled castes and provided for 50% reservation of the 25% admissible to the scheduled castes in favour of the above two categories of scheduled castes only to be invalid.

4. The Chinnaiah case (supra) arose from the decision of the Andhra Pradesh High Court whereby it rejected the challenge to the provision of Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000, which provided for apportionment of reservation among scheduled castes by classifying them into four groups: 1% for Group A, 7% for Group B, 6% for Group C and 1% again for Group D.

5. The Constitution Bench in Chinnaiah’s case was of the unanimous opinion that the provision of the above Act of sub-classifying the scheduled castes into four groups and apportioning the reservation criteria group wise was unconstitutional. It was held that the sub- classification permitted by Indra Sawhney and Ors. vs. Union of India and Ors.2 was limited only to backward and other backward classes and is not applicable to scheduled castes.

6. It is in the above background that the Constitution Bench dealing with one of the cases at hand i.e. State of Punjab and Ors. vs. Davinder Singh and Ors. held that the matter requires to be revisited by a larger Bench.

7. In somewhat similar fashion, a matter came to be referred from the State of Haryana and another from the State of Tamil Nadu wherein by notification in the State of Haryana scheduled castes were classified into two categories i.e. A and B for the purposes of applying reservation and in the State of Tamil Nadu by an Act of 2009, reservation of seats was provided to Arunthathiyar’s in educational institution and for appointment in services.

8. All the three categories of matters i.e. from the State of Punjab, State of Haryana and the State of Tamil Nadu are before the Bench in the form of Civil Appeals, Writ Petitions, TP (C) & TC (C) and Special Leave Petition (Civil) and have been taken up as clubbed matters as the issue is common as described in the beginning.

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9. The issue of sub-classification of scheduled castes has been appropriately answered by the Chief Justice and my esteemed brother Justice Gavai by their separate opinions with which I respectfully agree but at the same time since the matter in issue is basically concerning “reservation”, I consider it to be of utmost importance and, therefore, deem it appropriate to pen down my own views separately.

10. Man/human as rightly understood is a social animal and has to live in a society. An ideal form of society is one which progresses on merit or where merit alone prevails. This is evident from Articles 14 and 15 of the Constitution which provides for equality before law and that State shall not discriminate on grounds of religion, race, caste, sex or place of birth. Articles 14 and 15 (as it originally stood) are quoted below: “Article14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 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.”

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11. However, no society can exist in its ideal form as all citizens are not alike. The basic needs of everyone are different and have to be taken into account to carry the society forward. Therefore, there is pressing need to consider the social, economic and political need of all persons or classes of persons. In the context of India, the trinity of social, economic and political justice has to be balanced and to promote social justice, provisions have to be made for the upliftment of the so-called marginalized citizens or the depressed classes of persons who later came to be known as backward class of persons and scheduled castes as well as scheduled tribes etc. It is to achieve the above social objective of bringing every citizen or a class of citizen on equal level and at par in law that provision for reservation came to be made in the Constitution.

12. The provision for reservation for any class of persons at first sight may appear to be anti-merit but if weighed on the scales of social justice, it is imperative.

13. The poor and the downtrodden sections of the Indian society were earlier described by the ruling class as the “depressed classes” which included a wide range of persons such as untouchables, persons of various backward communities and those living in tribes in hills and forests or in remote areas of the country. Slowly, these depressed classes of persons came to be classified into various groups according to their vocation such as scavengers, leather workers, ironsmiths, carpenters, watchman and other menial workers and were referred to as scheduled castes; and those living in tribes in hills, forests or remote areas came to be recognized as scheduled tribes. The remaining depressed classes of persons or marginalized classes were later classified as other backward classes.

14. The Government of India Act, 1935, for the first time, recognized the above referred depressed classes of persons as scheduled castes and the primitive tribes as backward tribes and inter alia provided reservation of seats for the scheduled castes and backward tribes in the federal legislature. The objective was of bringing about political equality only.

15. The Constitution of India as enacted and adopted on 26th November, 1949 and enforced w.e.f. 26th January, 1950, originally provided for

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two categories of reservation, one for the political purposes and the other for social purposes vide Articles 330 & 332 and Articles 15(3) & 16(4).

16. Articles 330 and 332 of the Constitution aimed to achieve political justice by providing reservation of seats for scheduled castes and scheduled tribes in Lok Sabha and State Legislatures whereas Article 15(3) and 16(4) were aimed at social justice and provided for special provision for women & children and for reservation in the services in favour of backward classes of persons respectively. AMENDMENTS TO CONSTITUTION WITH REFERENCE TO CASE LAWS

17. On the legislative front, in the wake of various verdicts of the apex court concerning reservation, a constitutional amendment regime commenced bringing about amendments after amendments in the Constitution to overcome the difficulties in the implementation of the reservation policy in the light of the decisions of the courts in context with reservation.

18. The Constitution (First Amendment) Act, 1951 w.e.f. 18 th June, 1951, was brought about in order to solve the problems posed by the decision of 5 Judges Constitution Bench of this Court in State of Madras vs. Champakam Dorairajan3 which struck down caste- based reservation for admission in medical colleges being violative of Article 29(2) of the Constitution and by an other 5 Judges Constitution Bench decision in B. Venkataramana vs. State of Madras and Ors.4 which held that the appointment of judicial officers as unconstitutional as Article 16(4) permitted reservation for backward classes of citizens only. Thus, Sub-Article (4) to Article 15 of the Constitution of India was introduced so as to empower the State for making special provision for the advancement of any socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes.

19. In this manner, Articles 16(4), 15(3) and 15(4) as introduced, envisaged to bring about social justice amongst the citizens of the country.

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20. After the Constitution Bench decision in Indra Sawhney (supra), there was a spate of amendments in the Constitution to overcome the difficulties caused by various observations of the court.

21. The Constitution (Seventy-seventh Amendment) Act, 1995 added Article 16(4)(A) to the Constitution so as to provide reservation in promotion in favour of scheduled castes and scheduled tribes which are not adequately represented in the services of the State.

22. It was followed by the Constitution (Eighty-first Amendment) Act, 2000 which inserted Article 16(4)(B) so as to make provisions for carry forward of unfilled vacancies of the reserved category. The new Article 16(4)(B) provided that the State is not denuded of power to consider any unfilled vacancies of a year reserved for being filled up in that year in accordance with the provisions for reservation made under Clause 4 or Clause 4(A) of Article 16 to be carried forward to be filled up in any succeeding year or years and that such carried forward vacancies shall not be counted for determining the sealing of 50% reservation in total number of vacancies of that year.

23. In immediate succession came the Constitution (Eighty-second Amendment) Act, 2000 which was necessitated to overcome one of the decisions of this Court in case of S. Vinod Kumar and Anr. vs. Union of India and Ors.5 which held that even if reservation in promotion is permissible, no lower qualifying marks or lesser level of evaluation for promotion is legally permissible for the reserved categories. The said amendment permitted provision for relaxation in qualifying marks in any examination or for lowering the standards of evaluation for reservation in the matters of promotion to any class or classes of services for posts in connection with the affairs of the Union or the State.

24. In Union of India vs. Virpal Singh Chauhan,6 this Court held that the accelerated promotion to the persons of the reserved categories would not give them consequential seniority and that their seniority in promoted category shall be governed by their seniority in the feeder cadre.

5 [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580 6 [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684

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25. The above view was reaffirmed in Ajit Singh Januja vs. State of Punjab7 and it was held that reserved category persons are entitled only for accelerated promotion and not consequential seniority.

26. The above two decisions were followed by Ajit Singh (II) vs. State of Punjab8 wherein upholding the principles of accelerated promotion and consequential seniority as laid down in the above two cases it was clarified that the general candidates on promotion will get seniority over reserved candidates who were already promoted by way of accelerated promotion, if both were in the same cadre.

27. The Constitution (Eighty-Fifth Amendment) Act, 2002, was enacted to undo the principles laid down by the above decisions especially in Ajit Singh (II) case (supra) and the expression “with consequential seniority” was inserted in Article 16 (4)(A) of the Constitution. This amendment was given retrospective effect w.e.f. 07.06.1995, the date on which Article 14(4)(A) was inserted into Article 16 of the Constitution by the Constitution (Seventy-Seventh Amendment) Act, 1995.

28. In the meantime, following the directions of the Supreme Court in Indra Sawhney’s case (supra), an office memorandum was issued by the Government of India on 08.09.1993 designating certain categories of people as “creamy layer”. The State of Bihar and Uttar Pradesh vide The Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995, and Uttar Pradesh Public Services Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994, provided that IAS and IPS Officers would be within “creamy layer” if they have a (i) salary of Rs.10,000/- per month; (ii) either of the spouse is a graduate; and (iii) one of them owns a house in an urban area. Similarly, professionals with income of Rs.10 lakhs per annum were also categorized under the “creamy layer” with additional criteria that either of the spouse should be a graduate and the family owns an immovable property of at least Rs.20 lakhs.

7 [1996] 3 SCR 125 : (1996) 2 SCC 715 8 (1999) 7 SCC 209

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29. In Ashoka Kumar Thakur vs. State of Bihar,9 this Court struck down the additional conditions of education and property prescribed in the Bihar and by U.P. enactment to be unconstitutional for identifying the “creamy layer” as violative of Articles 16(4) and 14 of the Constitution.

30. In Indra Sawhney (II) vs. Union of India,10 the Kerala State Backward Classes Act, 1995, which provided that there are no socially advanced sections in any backward classes of the State and that the backward classes in the State are not adequately represented in the services under the State and as such backward classes would continue to avail the benefit of reservation, thus, declaring that there was no ‘creamy layer’ amongst the OBC in the State, was struck down holding that ‘creamy layer’ in the backward classes is to be treated at par with the forward classes and are not entitled to benefit of reservation. It was also observed that “creamy layer” is to be excluded otherwise it will be discriminatory and violative of Articles 14 and 16 as “forwards” and “creamy layer of backward classes” cannot be treated unequally.

31. In M. Nagaraj vs. Union of India,11 the validity of the constitutional amendments namely Constitution (Seventy-Seventh Amendment) Act, 1995, Constitution (Eighty-first Amendment) Act, 2000, Constitution (Eighty-second Amendment) Act, 2000 and Constitution (Eighty-fifth Amendment) Act, 2002, were upheld.

32. In TMA Pai Foundation vs. State of Karnataka,12 the 11 Judges Constitution Bench of this Court laid down various principles regarding right to establish educational institutions, the procedure for grant of admission, the right of minorities and the extent of State regulatory mechanism. The said judgment came to be interpreted and clarified by Islamic Academia Education vs. State of Karnataka.13 In P.A. Inamdar vs. State of Maharashtra,14 the 7 Judges Constitution Bench held that the 5 Judges Constitution Bench in Islamic Academia Education case did not interpret the TMA Pai Foundation case correctly. In such a situation, Constitution (Ninety-Third Amendment) Act, 2006, was brought about to overcome the confusion alleged

9 [1995] Supp. 3 SCR 269 : (1995) 5 SCC 403 10 [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168 11 (2006) 8 SCC 212 12 [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481 13 [2003] Supp. 2 SCR 474 : (2003) 6 SCC 697 14 (2005) 6 SCC 537

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to have been created in the interpretation of TMA Pai Foundation case and Sub-Article (5) was inserted in Article 15 of the Constitution which reads as under: “Article 15 (5)- Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any 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 in so far 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.”

33. The validity of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld by the 5 Judges Constitution Bench in Ashok Kumar Thakur case (supra) which provided reservation for socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes in educational institutions insofar as it relates to State maintained institutions and Government aided educational institutions.

34. A similar view was expressed in Pramati Educational & Cultural Trust vs. Union of India,15 wherein also the constitutional validity of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld and reservation for socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes in unaided private institutions as well was upheld.

35. In Ram Singh vs. Union of India,16 reservation for Jats in various States was struck down as no such reservation in their favour was recommended by the National Commission for Backward Classes and there was no quantifiable data for justifying reservation in their favour. Accordingly, Constitution (One Hundred and Second Amendment) Act, 2018, was brought about and Articles 338B & 342A were inserted constituting a separate commission for socially and educationally backward classes and empowering the President to specify socially and educationally backward classes.

15 (2014) 8 SCC 1 16 [2015] 5 SCR 670 : (2015) 4 SCC 697

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36. In Jaishri Laxmanrao Patil vs. State of Maharashtra,17 5 Judges Constitution Bench struck down the reservation for Marathas in the State of Maharashtra on the ground that the State does not have power to declare any class of people as socially and educationally backward classes.

37. In order to overcome the difficulty created by the above decision, Constitution (One Hundred and Fifth Amendment) Act, 2021 was brought about amending Article 342A so as to provide that the list of socially and educationally backward classes of citizens prepared by the President is only for the Central Government but the State can also prepare its own list.

17 (2021) 8 SCC 1

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sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”

39. The validity of the aforesaid amendment was upheld in Janhit Abhiyan vs. Union of India (EWS Reservation).18

40. The various amendments carried out in the Constitution since its adoption in relation to making provision for reservation can be summarised as under:-

1. Constitution Inserting Sub-Article (4) to Article 15 (First Amendment) providing reservation for socially and Act, 1951 educationally backward classes.

2. Constitution Inserting Sub-Article (4)(A) to Article 16 (Seventy-seventh providing reservation in promotion. Amendment) Act, 1995

3. Constitution (Eighty-first Inserting Sub-Article (4)(B) to Article 16 Amendment) Act, 2000 providing for carry forward of vacancies.

4. Constitution Inserting proviso to Article 335 providing (Eighty-second relaxation of qualifying marks for the Amendment) Act, 2000 reserved category of persons.

5. Constitution (Eighty-Fifth Inserting the phrase “with consequential Amendment) Act, 2002 seniority” in Article 16(4)(A) providing not only accelerated promotion but consequential seniority as well to the reserved category.

6. Constitution (Ninety-Third Inserting Sub-Article (5) to Article 15 Amendment) Act, 2006 providing for mechanism of admission in Education Institution to the reserved category.

7. Constitution (One Hundred Providing for identification of backward and Second Amendment) classes by the Centre and the States by Act, 2018, and Constitution inserting Article 342A. (One Hundred and Fifth Amendment) Act, 2021

8. Constitution (One Hundred Providing for reservation of equally and Third Amendment) weaker section EWS by inserting Act, 2019 Sub-Article (6) of Article 16.

18 [2022] 14 SCR 1 : (2023) 5 SCC 1

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41. The above summary of the constitutional amendments carried out for the purposes of extending the benefit of reservation to the reserved categories would reveal that the Constitution has been amended as many as 9 times in order to implement the reservation policy in a fair and impartial manner so that the so-called depressed classes may be elevated at par with the forward classes. Most of the times the amendments to the Constitution were carried out either to undo the decisions of this Court or to carry out the directions or the observations made by this Court in implementation of the reservation policy in a more fair and reasonable manner so that the benefit of reservation trickles down to the most backward of the other backward classes/ scheduled castes/scheduled tribes. CENTRAL GOVERNMENT AND STATE GOVERNMENT COMMISSIONS ON SC/ST AND OBCs

42. Apart from the above legislative exercise, the Union Government after independence, set up a Backward Class Commission in the year 1953 under the chairpersonship of Kaka Saheb Kalelkar. The Commission in its Report recommended inter alia that all women as a ‘class’ be treated as ‘backward’; all qualified students of backward classes be granted benefit of 70% seats reservation in all technical and professional Institutions; in all Government services and local bodies backward classes should be provided minimum reservation that is 25% in Class-I, 33-½% in Class-II, 40% in Class-III and 40% in Class-IV. The said Commission in its Report observed : “if entire communities, with some exceptions, are treated to be backward, actual needy would lose in the mob and they seldom attract attention towards them and get sufficient help.”

43. The Commission also observed that in certain States such as Rajasthan vagabond/restless movers/wanderers who groom and breed animals should be given special protection. The report was placed in the Parliament with an action plan but it went undebated. The Central Government at that time had spent a sum of Rs. 4.5 lakh which is equivalent to about Rs. 5 crore as of today.

44. In 1965, the Central Government appointed a Committee to advise on the revision of the existing list of scheduled castes and scheduled tribes. This Committee popularly known as B.N. Lokur Committee,

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reported and concluded that the question of de-scheduling (or excluding) of relatively advanced communities should receive serious and urgent consideration. It recommended for the intensive periodical survey of the socio-economic progress made by each of the scheduled castes and scheduled tribes, probably to exclude certain communities that have progressed and to include those that have been left behind. It further recommended that in framing of development schemes for scheduled castes and scheduled tribes, priority ought to be given to the welfare of the most backward amongst them. It also prepared a list of communities (castes/tribes) that were relatively forward and recommended to de-schedule or exclude 14 scheduled tribes and 28 scheduled castes from the list.

45. The Constitution though aimed at a casteless society, it defined certain depressed/disadvantageous classes as Scheduled Castes and certain tribes living in forest, hilly areas and other remote areas as Scheduled Tribes. However, a significant segment of the population that was otherwise socially, economically and politically backward were not given any privileges or benefits of upliftment. They were marginalised and were left behind in education as well as employment. In order to address this anomaly, the most talked about second backward class Commission was constituted on 1st January, 1979 by the Government of India which is popularly known as B. P. Mandal Commission. This Commission was entrusted with the job to investigate the conditions of socially and educationally backward classes, to recommend the criteria for defining such classes of citizens, steps to be taken for their advancement and upliftment and the manner in which they can be extending the benefit of the reservation.

46. The Commission submitted its report on 31st December, 1980. The Commission on the basis of 1961 census compiled a national list of 3743 classes of persons under the heading ‘Other Backward Classes’ out of which 2108 were classified as ‘depressed backward classes’. The Commission recorded that 52 per cent (including 44 per cent hindus and 8 per cent non-hindus) of the citizens are Other Backward Classes whereas 22.5 per cent are Scheduled Castes and Scheduled Tribes in India.

47. The Government while implementing the recommendations of the Mandal Commission took a historic decision on 6th August, 1990 to introduce 27 per cent reservation for Other Backward Classes

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which were socially and educationally backward classes. This was in addition to 22.5 per cent reservation for Scheduled Castes and Scheduled Tribes. The 27 per cent reservation in favour of other backward classes was confined as this Court in M.R Balaji vs. State of Mysore19 has put a cap of 50 per cent mark for the purposes of reservation.

48. The Mandal Commission thus recommended for 27 per cent reservation for OBCs in public sector and Government jobs and in promotion at all levels. It is also recommended that in the event the above quota remains unfilled in a particular year, the remaining vacancies be carried forward for a period of 3 years whereupon the unfilled vacancies if any would stand de-reserved. It further recommended for age relaxation to the OBCs at par with the Scheduled Castes & Scheduled Tribes. The validity of the aforesaid 27 per cent reservation in favour of OBCs was upheld by this Court in the year 1992 in Indra Sawhney (supra).

49. In addition to the above exercise of the Government on the executive/ administrative side, on the direction of this Court in the case of E.V. Chinnaiah’s (supra), the Government of India appointed a single Member Justice Usha Mehra Commission of a National level to examine the issue of sub-categorization of scheduled castes in Andhra Pradesh. This Commission appointed in the year 2006 was followed by another Commission set up by the Central Government in 2007 under the chairpersonship of Justice G. Rohini. It was also entrusted with the task of studying the entries in the Centre list of the OBCs and to examine the extent of equitable distribution of benefits of reservation amongst the OBCs. One important aspect which was also entrusted to this Commission was to work out a mechanism for sub-categorization of OBCs.

50. This apart, different States on different occasions had set up various State Level Committees and Commissions to study and report about the improvements to be made in reservation policy and the smooth implementation of the provisions of reservations vis-a-vis the concerned State. In this context, it may be beneficial to refer to some of the such Committees and Commissions set up by different States:

19 [1963] Supp. 1 SCR 439 : AIR 1963 SC 649

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1. 1961 Dr R. Naganna It suggested 50% reservation in technical Gowda and professional institutions and 45% in Committee, Government services. Karnataka

2. 1963 V.K. It recommended reserving 40% seats in Vishwanathan technical and professional colleges for OBC Commission, students and 10% for SC/ST students. Kerala

3. 1964 B.D. It recommended grouping of backward Deshmukh classes into four categories and reservation Committee, in Government services and educational Maharashtra institutions related in the ratio of their percentage in the State.

4. 1969 A.N. It submitted its Report in 1970 and recommended Sattanathan 33% reservation in State Government jobs and Commission, in educational institutions. Tamil Nadu

5. 1970 Manohar It identified four different categories of OBCs Pershad and recommended reservations in their Commission, favour, in both professional colleges and in Andhra Government services. Pradesh

6. 1970 J.N. Wazir On the basis of the recommendations of Committee, this Committee “The Jammu and Kashmir Jammu and Scheduled Castes and Backward Classes Kashmir (Reservation) Rules, 1970” were framed by the State Government.

7. 1973 Dhebar This Commission was set up to study the Commission vulnerable tribal groups. It suggested creation Ministry of of separate category for the less developed Tribal Affairs among the tribal groups. In 1975 Government of India carried out an exercise to identify the most vulnerable tribal groups as a separate category and declared 52 of them to be in such a group wherein 23 new groups were added in 1993 making it a total of 75 out of 705 scheduled tribes.

8. 1975 L.G. Havanur It recommended 16% reservation for backward Commission, communities, 10% for backward castes and 6% Karnataka for backward tribes in Government vacancies and educational institutions.

9. 1976 Mungeri Lal It identified 128 communities as backward and Commission, 94 of them as most backward. It recommended Bihar 20% reservation in Government services and 24% in professional institutions.

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10. 1976 A.R. Bakshi It listed 82 castes and communities as socially Commission, and educationally backward and recommended Gujarat 10% reservation in Government services and in professional institutions.

11. 1977 Chhedi It is one of the most talked about Commission Lal Sathi on most backward classes. It recommended Commission, classification of backward classes into Uttar Pradesh 3 categories and suggested reservation in Government services and educational institutions under a separate quota. 12 1990 Justice The Commission found that reservation Gurnam Singh benefits have been primarily availed by one Commission, particular scheduled caste and the overall Haryana benefits have not percolated down to rest of the 36 scheduled castes. Consequently, the scheduled castes’ list for the purposes of reservation in Haryana was divided into Block ‘A’ and Block ‘B’ putting the 36 scheduled castes in Block ‘A’ and the one that has availed most of the benefits in Block ‘B’.

13. 1997 Justice P. This Commission was set up on the demand Ramchandra of the extremely backward castes within the Raju scheduled castes of the State of Andhra Commission, Pradesh. The Report opined that largely the Andhra benefits of reservation had gone to a particular Pradesh caste among the scheduled castes and therefore recommended for categorizing of the scheduled castes into Group A, B, C and D. It is on the basis of the recommendation of this Commission that scheduled castes in Andhra Pradesh were categorized in Group A, B, C and D which enactment led to E.V. Chinnaiah where this Court declared such classification as unconstitutional opining that scheduled castes/scheduled tribes are one homogenous class and cannot be sub-categorised for the purposes of reservation.

14. 2001 Hukam Singh The Committee upon study found that the Committee, benefits of reservation was not percolating Uttar Pradesh down to the most depressed classes of persons rather the Yadav’s alone had a maximum share of jobs. Thus, it recommended sub- categorisation of list of scheduled castes/OBC.

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15. 2003 Lahuji Salve This Commission was appointed to study the Commission, socio-economic condition of Mangs caste Maharashtra which was within the list of scheduled castes. The Commission recommended the sub- classification of the scheduled castes as Mangs being the lowest in the hierarchy of caste system were not being adequately benefited.

16. 2005 Justice A.J. This Commission was appointed to identify the Sadashiva castes, races and tribes of scheduled castes Commission, in the State to whom the benefit of reservation was not being adequately extended. Karnataka The Commission recommended the division of 101 castes specified in the Presidential List into four categories with 15% of the total reservation of scheduled castes to each of the categories.

17. 2007 Mahadalit The Commission was to identify the castes Commission, within the scheduled castes that lagged behind. Bihar The Commission recommended inclusion of 18 castes as extremely weaker castes from amongst the list of scheduled castes.

18. 2007 Justice Jasraj The Committee reported that Gurjar’s live Chopra in remote, isolated and uninhabited areas Committee, and are extremely backward and therefore Rajasthan recommended that they may be provided with better facilities than those available to the other backward classes.

19. 2008 Justice The Committee recommended that the Thiru M.S. Arunthathiyar’s deserve differential treatment Janarthanam in reservation. Committee, Tamil Nadu

20. 2017 K. Ratna Based upon the recommendation of this Prabha Committee, The Karnataka Extension of Committee, Consequential Seniority to Govt. Servants Karnataka Promoted on the Basis of Reservation (to the posts in the Civil Services of the State) Act, 2018 was enacted and the matter came up to the Supreme Court wherein the validity of the Act was upheld and it was opined that the reserved category candidates are not only entitled to accelerated promotion but to consequential seniority.

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21. 2018 Justice According to the Report there are 79 castes Raghvendra under the OBC category in the State out of Kumar which 9 are backward, 37 are more backward Committee, and 33 are most backward classes. Therefore, it recommended splitting of 27% quota of OBC Uttar Pradesh in the State: 7% for backward classes, 11% for more backward classes and 9% for most backward classes.

THE RAMIFICATIONS OF RESERVATION

51. The above history of “Reservation” in the country would amply indicate that tremendous amount of effort has been put in by all the three organs of the State i.e. the Legislature, the Executive and the Judiciary to bring about social justice by promoting the reservation policy and its implementation in such a manner that not only the backwards but the most backwards of the backwards are brought into the forefront with the mainstream. So the question arises that how far has the reservation policy succeeded in someone’s wild guess? Notwithstanding, the success or failure of the reservation policy, one thing is for sure that it has burdened the Judiciary at all levels specially the High Courts and the Supreme Courts with enormous litigation which could have been avoided if a robust reservation policy with a vision would have been envisaged under the constitutional provisions in the very beginning instead of making piecemeal changes.

52. It is a matter of experience that every kind of process of selection and appointment in the government services and admission at higher level has come to be challenged before the courts inter-alia on the grounds of misapplication of the rule of reservation. Most of the times, the appointments and admissions get stuck up for years on account of litigation. This has caused enormous delay in the recruitment process and the vacancies remaining unfilled for long, giving rise to stop-gap/ad-hoc appointments resulting in further litigation. It is also noticeable that enough time and energy has been spent by all the three wings of the State in streamlining the process of reservation and to evolve a flawless mechanism for implementing the reservation policy but still the non-visionary approach to handle the upliftment of the backward castes has created more difficulties rather than ironing them out.

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53. It is a matter of record that in pro-reservation agitations and anti- reservation agitations, the peace and tranquillity of the entire country, at times, stood disturbed. Specially, during the anti-Mandal Commission agitation somewhere in 1990, most of the States witnessed large scale disturbances. The turmoil so created by such agitations and demonstrations particularly in the months of August-November of 1990 is the ample indication of the wide spread violence.

54. It may not be out of context to point out that apart from the anti- Mandal Commission violence, the country witnessed similar violence in the year 2006 when the students of IITs and AIIMS came out on the streets opposing reservation. Also, there was violence in Maharashtra against the Maratha reservation, to talk about the few.

55. After independence, a special provision was made in the Directive Principles of State Policy to provide compulsory primary education to all children within a period of 10 years but the target could not be achieved even after 77 years of independence. The Central Government, few years back, in order to provide free education to children enacted Right to Education Act, 2009. The aforesaid Act proved to be a very weak legislation and have not been able to provide primary education to one and all irrespective of the caste, creed, race, religion and sex as most of the children of the so-called depressed class either fail to attend schools or drop out after one and two years of education. There is no compulsion to give education to such children. The policy of reservation is applicable at the higher level only and for the purposes of employment. Thus, depriving such children or the drop outs, at the primary level of the benefit of reservation or upliftment in any other manner, as a result of which these children ultimately remain the most backward of the backwards.

56. The statistics proves that the deprived and the marginalized persons have not been able to achieve the benefit of reservation which is permissible at higher level as about 50% of the students from the most backward classes drop out of school before Class-V and 75% drop out before Class-VIII. The figure goes to even 95 per cent when it comes to the level of high school. Thus, only the children of some of the castes, who are already affluent or urbanized, are able to obtain higher education and the benefits of reservation.

57. By referring to the above agitations, disturbances, violence, litigation and shortcomings, I do not to intend to suggest that the task of

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upliftment of the downtrodden be brought to an end or that the government should give up the reservation policy. But the issue is how to carry out the process to bring about equality and development of all, the manner of identification of the so-called depressed classes or the downtrodden and the form/nature of steps to be taken for their upliftment. The Government has used caste as the basis for the upliftment rather than identifying the class of people on the basis of vocation or their social and economic conditions who actually requires help to be promoted to the level of the forward class. It is for this reason, today we are grappling with a situation of sub-classification of the castes notified for the purpose of reservation. The experience shows that the better of the class amongst the backwards eats up most of the vacancies/seats reserved leaving the most backward with nothing in their hands.

58. This may be illustrated and better explained by taking three students namely ‘A’, ‘B’ and ‘C’. Both ‘A’ & ‘B’ are equals in every manner as they come from well-to-do family having same kind of status, family background, education and financial capacity. ‘A’ being a general category candidate, qualifies for admission in higher education on merits whereas ‘B’ who belongs to a backward class competes and qualifies for admission in the reserved category. The student ‘C’ who is also of the backward class but has no advantage as that which is available to both ‘A’ and ‘B’, despite competing in the backward category remains unsuccessful. He continues to remain unsuccessful in the following years as well, as again and again backward category candidates having the status equivalent to that of a forward class or that which is available to ‘A’ and ‘B’ keeps on qualifying leaving the most backward of the backwards far behind. In this manner, the most backward of the backward category loses the battle even with the backward classes who are practically enjoying the status of the forward class people. CASTELESS SOCIETY-CASTE SYSTEM VIS-À-VIS THE VARNA SYSTEM

59. The Constitution virtually visualises a casteless society and a unified society but in the name of ‘equality’ to accord facility and privileges to the depressed class/downtrodden, it is said that we have continued with the so-called Manuwadi System of caste. I am not an expert of religious scriptures nor do I claim that I have any knowledge of any one of them though I may have gone through

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Bhagwad Gita and Ramcharit Manas some times. According to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature. This can very well be reflected by verse 13 of chapter 4 and verse 41 of chapter 18 of the Bhagwat Gita which I quote below.

60. चाातुुर्ववर्ण्यय मयाा सृृष्टंं गुुणकर्ममवि�भाागशःः। (Chapter 4, Verse 13, Bhagwat Gita) ब्रााह्मणक्षत्रि�यवि�शांं� शूूद्रााणांं� च परन्तप। ु ॥ (Chapter 18, Verse 41, Bhagwat Gita) कर्माा�णि� प्रवि�भक्ताानि� स्वभाावप्रभवैैर्गु�णैःः� Lord Krishna says that I have categorised humans in 4 varnas according to their nature and characteristics. Gita thus only promotes varna system which is different from present day caste system. It lays emphasis on abilities, qualities and consciousness of a person to have a balanced structure of society and to bring out the best in every person. The four varnas (occupational categories) are: -

1. Bharama Teachers, Priests and Intellectuals (Priestly class)

2. Kshatriyas Warriors, Police and Administrators (Administrative class)

3. Vaishayas Farmers, Merchants, Traders and Businessman (Mercantile and Farmer class)

4. Shudras Artisans, Workers and Labour class (Worker class)

61. The Bhagvad Gita in subsequent verses describes the intrinsic qualities of each of the varnas. The varna system depicting occupational categories can also be explained with the physical body of a person wherein the head of a person which does intellectual work is called ‘Bharaman’. The hands which protect him and his family does the job of a ‘Kshatriya’. The abdomen which requires food to convert it into energy refers to ‘Vaishayas’, who are predominantly the farmers and the merchants invested to earn livelihood. The lower limbs (legs) do all kind of labour work and are referred to as ‘Shudras’.

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62. The Skanda Purana also contains a shloka: जन्मनाा जाायत शूूद्रःः संं स्कााराात्् द्वि�ज उच्यतेे | 20 which means that everyone is born as Shudra i.e. to work and slowly each one of them elevates himself to a higher status of Vaishya, Kshatriya and Brahmin on the strength of his talent, quality, character and nature.

63. It means the duties of Brahmins, Kshatriyas, Vaishyas and Shudras were distributed according to their qualities (guns) and nature (and not by birth). All people have different nature and characteristics. Their personality is shaped according to their qualities (gunas). Thus, different professionals duties are suited to persons of different nature and character. Since the center of society is God (Parmatma), everyone (atma) works according to their intrinsic qualities to sustain themselves and the society.

64. According to the varna system no one is to be considered as lower or higher, rather it is preached that everyone is equal fragment and a part and parcel of Him, the Almighty. Gita nowhere preaches that the aforesaid varnas are on the basis of birth and are not interchangeable. However, with the passage of time, the varna system deteriorated and the people started labelling these varnas on the basis of birth, ignoring the nature and characteristics of a person which is exactly the opposite to what is preached in Gita. The varnas were given the nomenclature of castes in a very loose manner.

65. Later, children of Brahmins started calling themselves as Brahmins, irrespective of whether they possessed the corresponding qualities or not. Similarly, the children of other varnas also adopted the varna of their father ignoring their own nature, talent and qualities. When this system grew rigid & birth based, it became dysfunctional.

66. In short, what is intended to be conveyed is that according to Gita there is no caste system and the varna system (categorization) referred to therein is quite distinct, based upon persons nature & qualities. Thus, there was no caste system in ancient India i.e., Bharat. The misconstruction of the varna system as a caste system was a social defect that crept in with time and was not considered to be good as it divided the society and brought about discrimination & inequality.

20 Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34.

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67. The social problems created by the so-called caste system or the problem of untouchability etc. were widely considered to be bad practices prevailing in the Indian society. Thus, social reformers always propagated giving up of such malpractices.

69. The Constitution at the same time vide Article 341 conferred power upon the President to notify certain castes, races or tribes or part of such caste, races and tribes to be deemed to be Scheduled Castes. In fact, the constitution otherwise does not recognise any caste except for the above deeming provision. The country as such had moved into a casteless society except for the above legal fiction only for the purposes of the constitution and not otherwise.

70. In other words, to put it summarily there was no caste system in primitive India. Slowly the varna system prevalent was misconstrued to be a caste system which practice was found to be socially non- acceptable and as such after independence with the adoption of the Constitution we again tried to move into a casteless society but in the name of social welfare to uplift the depressed and the backward classes, we again fell into the trap of caste system. We gave privilege of reservation to the depressed or the backward class or the Scheduled Caste to bring about equality.

71. It is common understanding that what is conceded once to appease any class cannot be taken back. So are the benefits extended to the

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reserved category of persons under the constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also. RESERVATION IS ONLY A MEDIUM OF FACILITY BUT ITS EXECUTION REVIVES CASTEISM

72. ‘Reservation’ is one of the modes of helping or uplifting the status of the OBCs/SCs/STs. Anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as ‘Anti Dalit’. At the cost of being called ‘Anti Dalit’, I quote Nani A Palkiwala from his book ‘We, The Nation, The Lost Decades)21 “The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism, the judgment fractures the nation and disregards the basic structure of the Constitution. The decision would revitalise casteism, cleave the nation into two – forward and backward - and open new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgments will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would not become the privileged.”

73. In fact, Scheduled Castes, Scheduled Tribes and other backward classes simply deserve equality with the other forward classes of people. Justice O. Chinnappa Reddy in K C Vasantha Kumar & Anr. vs. State of Karnataka22 said “they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of rights and not of philanthrophy. They ask for parity and not charity.”

74. In State of Kerala vs. N M Thomas,23 Justice V R Krishna Ayer said “you can’t throw to the winds considerations of administrative

21 NANI PALKIWALA, WE, THE NATION: THE LOST DECADES 179 (Mehta Publishing House 1995) 22 [1985] Supp. 1 SCR 352 : (1985) Supp. SCC 714 23 [1976] 1 SCR 906 : (1976) 2 SCC 310

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capability and grind the wheels of Government to a hault in the name of ‘harijan welfare’.”

75. This Court in A. Periakaruppan Chettiar vs. State of Tamil Nadu & Ors.24 observed that reservations should not be allowed to become a vested interest. In Akhil Bharatiya Soshit Karamchari Sangh vs. Union of India & Ors.25 it was observed that efficacy of the reservation policy will depend upon how soon reservations can be done away with. The then Chief Justice of India Y.V. Chandrachud counselled in Vasanth Kumar (supra), “the policy of reservation in employment, education and legislative institutions should be reviewed every five years or so.”

76. Pandit Jawahar Lal Nehru in his letter dated 27th June 1961 addressed to all the Chief Ministers of all the States laments upon the habit of giving reservations and privileges to any caste or group and expresses that such practice ought to be given up and emphasis to help the citizens on economic considerations and not on caste basis and that the Scheduled Castes and Scheduled Tribes do deserve help but not in the shape of any kind of reservation more particularly in services. He wrote: “I want my country to be a first-class country in everything. The moment we encourage the second-rate, we are lost. The only real way to help a backward group is to give opportunities of good education, this includes technical education which is becoming more and more important. Everything else is a provision of some kind of crutches which do not add to the strength or health of the body.” In the same letter he went on to speak about two very important decisions, “one is, universal free elementary education that is the base; and the second is scholarship on a very wide scale at every grade of education to the bright boys and girls”. He went on to express if reservation on communal and caste basis continues, India will remain second rate or third rate. He said “This way lies not only folly, but disaster. Let us help the backward groups by all means, but never at the cost of efficiency.”

24 (1971) 1 SCC 38 25 [1981] 2 SCR 185 : (1981) 1 SCC 246

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CONCLUSION

77. Our predecessors, not only the Judges but also the former Prime Minister have appeared to be against providing reservation to any class or caste of persons on purely caste basis and wanted to take the country forward on merit basis. Despite the views so expressed, the Constitutional amendments envisaged to promote the depressed and the backward classes of persons to bring them to the level of the privileged class enjoying the status of an urban elite. Thus, the reservation policy was rightly applied and since its implementation faced difficulties as some in the backward classes have marched ahead, it has become imperative to uplift the backward of the backwards, for which purpose sub-classification has become the order of the day.

78. I had the privilege of going through the erudite judgments of the Chief Justice and my esteemed brother Justice Gavai.

79. The Chief Justice in his opinion has dwelled upon the legal aspects to answer the core issue whether sub-classification of the scheduled castes is constitutionally permissible for the purposes of reservation. He has clearly opined that this Court in Indra Sawhney (Supra) never intended to limit the application of sub-classification to the other backward classes only. If any class is not integrated it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution, so long persons in a class are not similarly situated. There is no violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste as by such sub-classification no caste is being included or excluded from the list of scheduled castes.

80. His Lordship Justice Gavai in his opinion quoted an example where a member of a backward class becomes an IAS or an IPS or any other officer of the All India Service and improves upon his status in the society but even then his children get full benefits of reservation. No doubt, “one swallow does not make a summer” meaning thereby that if few members of a particular caste/class advances in the society the entire caste or class would not cease to be backward. Nonetheless if any member of designated backward class acquires a higher status and attains equality with the forward class, it is difficult to comprehend how his children would be treated as depressed, downtrodden or backward in any manner be it socially, economically or educationally. Therefore, the caste to which this person belongs may not be excluded as a whole from the benefit of reservation but

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certainly the family which has obtained the benefit once shall not be allowed to take advantage of reservation in the next generation. The reservation to such families has to be confined to one generation only.

81. It has rightly been stated by my brother Justice Gavai in his opinion that Justice Krishna Iyer in N. M. Thomas (supra) has repeatedly observed that State is entitled to take steps for weeding out socially, economically and educationally advanced sections of scheduled castes and scheduled tribes from the ambit of reservation.

82. It has rightly been observed that a child studying in St. Stephen’s College or any good urban college cannot be equated with a child studying in a rural school/college and that he cannot be grouped into a same bracket.

83. In these circumstances my brother Justice Gavai has rightly concluded that the State must evolve a policy of identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation.

84. Agreeing with the scholarly separate opinions authored by the Chief Justice and Brother Gavai, J., I summarise my views as under: (i) The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub-classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful; (ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);

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(iii) The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and (iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.

85. The reference is accordingly answered and it is held that sub- classification of scheduled castes is permissible in law for the purposes of reservation.

Satish Chandra Sharma, J.

1. I have had the privilege of reading the lucid and detailed opinion(s) authored by Hon’ble Dr. Justice D.Y. Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively. I am fully in agreement with both opinions to the extent that the validity of sub-classification within Scheduled Castes has been held to be constitutionally permissible. Moreover, I am fully in agreement with the opinion(s) to the extent that any exercise involving sub-classification by the State, must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole.

2. However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.

Result of the case: Reference answered.

† Headnotes prepared by: Bibhuti Bhushan Bose