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

[2020] 10 S.C.R. 857

THE STATE OF PUNJAB & ORS.

DAVINDER SINGH & ORS.

(Civil Appeal No. 2317 of 2011)

AUGUST 27, 2020

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Constitution of India – Arts. 14, 15, 16, 338, 341, 342 and342A – Punjab Scheduled Castes and Backward Classes(Reservation in Services) Act, 2006 – s. 4(5) – Sub-classificationwithin socially and educationally backward class (caste) – TheState Government by circular provided that out of seats reservedfor Scheduled Castes, fifty per cent of the vacancies would be offeredto Balmikis and Mazhabi Sikhs – The circular was struck down bythe High Court – The Supreme Court dismissed the S.L.P. againstthe same – The Punjab Act was notified in 2006 – s.4(5) of thePunjab Act made similar provisions as made in the circular, whichwas struck down – The High Court struck down the provisionscontained in s.4(5) of the Punjab Act relying upon the decision inE.V. Chinnaiah v. State of A.P. and Ors.– In the Supreme Court, athree Judges Bench referred the matter to larger Bench forconsideration opining that the judgment of 5-Judge Bench in E.V.Chinnaiah is required to be revisited in the light of Art. 338 of theConstitution and not correctly following the exposition of the lawin Indra Sawhney and Ors. v. Union of India – It was noted that thematter involved interpretation and interplay between Arts. 16(1),16(4), 338 and 341 of the Constitution – Held: In Indra Sawhney, itwas held that it is permissible to make sub-classification withinsocially and educationally backward classes – Same would beapplicable for Scheduled Castes and Scheduled Tribes as theyadmittedly fall u/Art. 16(4) – The sub-classification was madeu/s.4(5) of the Punjab Act to ensure that the benefit of the reservationpercolate down to the deprived section and do not remain on paperand to provide benefit to all and give them equal treatment – As faras its permissibility u/Art.14 is concerned, it would be permissibleon rationale basis to make such sub-classification to providebenefit to all to bring equality, and it would not amount to exclusion

CDEFG

Afrom the list as no class (caste) is deprived of reservation in totality– There are unequals within the list of Scheduled Castes, ScheduledTribes and socially and educationally backward classes – Variousreports indicate that Scheduled Castes and Scheduled Tribes donot constitute homogenous group – When the reservation createsinequalities within the reserved castes itself, it is required to be takenBcare of by the State making sub-classification and adopting adistribution justice method so that State Largesse does notconcentrate in few hands and equal justice to all is provided – TheState has the competence to grant reservation benefit to all ScheduledCastes and Scheduled Tribes in terms of Arts. 15(4), 16(4) and alsoCArts. 341(1) and 342(1) – It prescribes the extent/ percentage ofreservation to different classes – The State Government cannottamper with the list, it can neither include nor exclude any caste inthe list or make enquiry whether any synonym exists – The Statecan provide preference on rational criteria to the class within listsrequiring upliftment – There is no vested right to claim thatDreservation should be at particular percentage – It has to accordwith ground reality as no one can claim the right to enjoy the wholereservation, it can be proportionate one as per requirement – Theinterpretation of Arts.14, 15, 16, 338, 341, 342 and 342A is matterof immense public importance, and correct interpretation of bindingEprecedents in Indra Sawhney and other decisions – Therefore, theopinion of the 3 Judges Bench is endorsed that E.V. Chinnaiah isrequired to be revisited by larger Bench – The Hon’ble ChiefJustice is requested to place the matters before Bench of 7 Judgesor more as considered appropriate.

FReferring the matter to the larger Bench, the Court

HELD: 1. This Court discussed the concept of socially andeducationally backward classes in Indra Sawhney; however, theCourt observed that Scheduled Castes and Scheduled Tribes areadmittedly included within the backward classes, as such thereGwas no need to discuss that. Thus, the discussion was confinedto whether socially and educationally backward classes can beincluded in Article 16(4), it was opined that ken of Article 16(4)is wider than Article 15(4). It was also observed that backwardclasses contemplated under Article 16(4) do comprise somecastes. The Scheduled Castes include quite few castes. BasedH

on the aforesaid foundational basis, interpretation was made. Inopinion of this Court, the decision is relevant for interpretingArticle 16(4) provisions in their application to Scheduled Castes,Scheduled Tribes, and other backward classes. They stand onthe similar footing, and they cannot be treated as different fromother as also fortified by insertion of Article 342A which is parimateria to Article 341 or 342 and considering the definition inArticle 366(24) and (26C) and classification of backward classescan be done. The Scheduled Castes and Scheduled Tribesadmittedly are backward, and the same yardstick would apply toall. In Indra Sawhney, it was held that it is permissible to makesub-classification within socially and educationally backwardclasses. That discussion would be applicable for Scheduled Castesand Scheduled Tribes as they admittedly fall under Article 16(4).[Para 36][917-C-G]

2. There is cry, and caste struggle within the reserved classas benefit of reservation in services and education is beingenjoyed, who are doing better hereditary occupation. Thescavenger class given the name of Balmikis remains more orless where it was, and so on, disparity within Scheduled Caste iswrit large from various reports. The sub-classification was madeunder Section 4(5) of the Punjab Act to ensure that the benefit ofthe reservation percolate down to the deprived section and donot remain on paper and to provide benefit to all and give themequal treatment, whether it is violative of Article 14? In opinionof this Court, it would be permissible on rationale basis to makesuch sub-classification to provide benefit to all to bring equality,and it would not amount to exclusion from the list as no class(caste) is deprived of reservation in totality. In case benefit whichis meant for the emancipation of all the castes, included in thelist of Scheduled Castes, is permitted to be usurped by few castesthose who are adequately represented, have advanced andbelonged to the creamy layer, then it would tantamount to creatinginequality whereas in case of hunger every person is required tobe fed and provided bread. The entire basket of fruits cannot begiven to mighty at the cost of others under the guise of forming ahomogenous class. [Para 40][918-G-H; 919-A-B]

A3. The State’s obligation is to undertake the emancipationof the deprived section of the community and eradicateinequalities. When the reservation creates inequalities within thereserved castes itself, it is required to be taken care of by theState making sub-classification and adopting distributive justicemethod so that State largesse does not concentrate in few handsBand equal justice to all is provided. It involves redistribution andreallocation of resources and opportunities and equitable accessto all public and social goods to fulfil the very purpose of theconstitutional mandate of equal justice to all. [Para 42][919-E-F]

4. Providing percentage of the reservation withinCpermissible limit is within the powers of the State legislatures. Itcannot be deprived of its concomitant power to make reasonableclassification within the particular classes of Scheduled Castes,Scheduled Tribes, and socially and educationally backward classeswithout depriving others in the list. To achieve the real purpose

Dof reservation, within constitutional dynamics, needy can alwaysbe given benefit; otherwise, it would mean that inequality beingperpetuated within the class if preferential classification is notmade ensuring benefit to all. [Para 43][919-G-H; 920-A]

5. The sub-classification is to achieve the very purpose, asEenvisaged in the original classification itself and based thereuponevolved the very concept of reservation. Whether the sub-classification would be further extension of the principle of saiddynamics is the question to be considered authoritatively by theCourt. [Para 44][920-B]

F6. The Scheduled Castes as per Presidential List are notfrozen for all the time, and neither they are homogenous groupas evident from the vast anthropological and statistical datacollected by various Commissions. The State law of preferentialtreatment to limited extent, does not amend the list. It adoptsthe list as it is. The State law intends to provide reservation forGall Scheduled Castes in pragmatic manner based on statisticaldata. It distributes the benefits of reservations based on the needsof each Scheduled Caste. [Para 45][920-C]

7. The State has the competence to grant reservationbenefit to the Scheduled Castes and Scheduled Tribes in termsof Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). Itprescribes the extent/percentage of reservation to differentclasses. The State Government can decide the manner andquantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castesin the list based on the rationale that would conform with thevery spirit of Articles 14, 15, and 16 of the Constitution providingreservation. The State Government cannot temper with the list;it can neither include nor exclude any caste in the list or makeenquiry whether any synonym exists as held in Milind.[Para 46][920-D-F]

8. The State Government is conferred with the power toprovide reservation and to distribute it equitably. The StateGovernment is the best judge as to the disparities in differentareas. In opinion of this Court, it is for the State Government tojudge the equitable manner in which reservation has to bedistributed. It can work out its methodology and give thepreferential treatment to particular class more backward out ofScheduled Castes without depriving others of benefit. [Para47][920-F-G]

9. Apart from that, the other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward classes,who is not denied the benefit of reservation, cannot claim thatwhole or particular percentage of reservation should have beenmade available to them. The State can provide such preferenceon rational criteria to the class within lists requiring upliftment.There is no vested right to claim that reservation should be at aparticular percentage. It has to accord with ground reality as noone can claim the right to enjoy the whole reservation, it can beproportionate one as per requirement. The State cannot bedeprived of measures for upliftment of various classes, at thesame time, which is the very purpose of providing such measure.The spirit of the reservation is the upliftment of all the classesessential for the nation’s progress. [Para 48][920-H; 921-A-B]

10. In the federal structure, the State, as well as theParliament, have constitutional directive for the upliftment of

AScheduled Castes, Scheduled Tribes, and socially and backwardclasses. Only inclusion or exclusion in the Presidential notificationis by the Parliament. The State Government has the right toprovide reservation in the fields of employment and education.There is no constitutional bar to take further affirmative actionas taken by the State Government in the cases to achieve theBgoal. By allotting specific percentage out of reserved seats andto provide preferential treatment to particular class, cannot besaid to be violative of the list under Articles 341, 342, and 342Aas no enlisted caste is denied the benefit of reservation.[Para 49][921-C-D]

11. The “inadequate representation” is the fulcrum of theprovisions of Article 16(4). In opinion of this Court, it would beopen to the State to provide on rational basis the preferentialtreatment by fixing reasonable quota out of reserved seats toensure adequate representation in services. Reservation is veryDeffective tool for emancipation of the oppressed class. The benefitby and large is not percolating down to the neediest and poorestof the poor. [Para 50][921-E-F]

12. The interpretation of Articles 14, 15, 16, 338, 341, 342,and 342A is matter of immense public importance, and correctEinterpretation of binding precedents in Indra Sawhney and otherdecisions. Though this Cout has full respect for the principle ofstare decisis, at the same time, the Court cannot be silentspectator and shut eyes to stark realities. The constitutional goalof social transformation cannot be achieved without taking intoaccount changing social realities. [Para 51][921-F-G]F

Indra Sawhney and Ors. v. Union of India & Ors.,(1992) 3 Suppl. SCC 217 : [1992] 2 Suppl. SCR 454;Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,(2018) 10 SCC 396 : [ 2018] 10 SCR 663; K. C.Vasanth Kumar & Anr. v. State of Karnataka, (1985)GSuppl. SCC 714 : [1985] Suppl. SCR 352; State ofKerala & Anr. v. N. M. Thomas & Ors. (1976) 2 SCC310 : [1976] 1 SCR 906; Jagdish Negi, President,Uttarakhand Jan Morcha & Anr. v. State of U.P. & Anr.,(1997) 7 SCC 203 : [ 1997] 3 Suppl. SCR 477; State

of Maharashtra v. Milind & Ors.,(2001) 1 SCC 4 :[2000] 5 Suppl. SCR 65; GVK. Industries Limited& Anr.v. Income Tax Officer & Anr., (2011) 4 SCC 36 : [2011]

3 SCR 366 – relied on.

E. V. Chinnaiah v. State of A.P. and Ors. (2005) 1 SCC394 : [1992] 2 Suppl. SCR 454; M. R. Balaji & Ors. v.State of Mysore & Ors., [1963] 1 Suppl. SCR 439; BirSingh v. Delhi Jal Board & Ors., (2018) 10 SCC 312 :[2018] 10 SCR 513; M. Nagaraj & Ors. v. Union ofIndia & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl.SCR 336; I. R. Coelho v. State of T. N., (2007) 2 SCC 1: [2007] 1 SCR 706; Indra Sawhney and R. K.Sabharwal & Ors. v. State of Punjab & Ors., (1995) 2SCC 745 : [1995] 2 SCR 35; State of Tripura & Ors. v.Jayanta Chakraborty & Ors., (2018) 1 SCC 146 :[2017] 11 SCR 247; B. K. Pavitra & Ors. v. Union ofIndia & Ors., (2019) 16 SCC 129 : [ 2019] 7 SCR 1086;Marri Chandra Shekhar Rao v. Dean, Seth G. S. MedicalCollege & Ors., (1990) 3 SCC 130 : [ 1990] 2 SCR 843; Dr. Pradeep Jain & Ors. v. Union of India & Ors.,(1984) 3 SCC 654 : [1984] 3 SCR 942; Union of India& Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 :[2010] 1 SCR 483; Dega Venkata Harsha Vardhan &Ors. v. Akula Ventaka Harshavardhan & Ors., (2019)12 SCC 735; S. R. Chaudhuri v. State of Punjab &Ors. AIR 2001 SC 2707; T. M. A. Pai Foundation &Ors. v. State of Karnataka & Ors. (2002) 8 SCC 481 :[2002] 3 Suppl. SCR 587; Sobha Hymavathi Devi v.Setti Gangadhara Swamy & Ors. AIR 2005 SC 800 :[2005] 1 SCR 848; Ashoka Kumar Thakur v. Union ofIndia and Ors., (2008) 6 SCC 1 : [2008] 4 SCR 1; B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR316; Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877;Srish Kumar Choudhury v. State of Tripura & Ors.,(1990) Supp. SCC 220 : [1990] SCR 576; Palghat JillaThandan Samudhaya Samrakshna Samithi & Anr. v.State of Kerala & Anr., (1994) 1 SCC 359 : [1993] 3 Suppl. SCR 872; Heikham Surchandra Singh & Ors.v. Representatives of “Lois” Kakching, Manipur (A

[2007] 1 SCR 706[1997] 3 Suppl. SCR 477[1995] 2 SCR 35[2017] 11 SCR 247[2019] 7 SCR 1086[1990] 2 SCR 843[1984] 3 SCR 942[2010] 1 SCR 483(2019) 12 SCC 735AIR 2001 SC 2707[2002] 3 Suppl. SCR 587[2005] 1 SCR 848[2008] 4 SCR 1[1965] 1 SCR 316[1965] 2 SCR 877[1990] SCR 576[1993] 3 Suppl. SCR 872[1996] 7 Suppl. SCR 371[2007] 6 SCR 257[2003] 2 Suppl. SCR 743[2009] 12 SCR 978[1974] 1 SCR 1[1955] 2 SCR 603[1965] 2 SCR 908[1989] 3 SCR 316[2011] 3 SCR 366[1989] 1 Suppl. SCR 510[2010] 1 SCR 483

referred torelied onreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred torelied onreferred toreferred to

Para (9) (b)Para (10) (d)Para 16Para 16Para 16Para (20) (i)Para (20) (ii)Para(20) (iii)Para (20) (iv)Para 21Para 21Para 21 Para 24Para (31) (i)Para 31 (ii)Para 31 (iii)Para 31 (iv)Para 31 (viii)Para 31 (viii)Para 31 (ix)Para 31 (x)Para 32 (a)Para 32 (f)Para 33 (a)Para 33 (b)Para 34Para 35Para 39

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 2317of 2011.

From the Judgment and Order dated 29.03.2010 of the High Courtof Punjab and Haryana at Chandigarh in C.W.P. No. 18290 of 2009.

WithB

Civil Appeal Nos. 5586, 5597, 5589, 5593, 5600, 5598, 5587, 5595--5596 of 2010, 2324, 2318 of 2011, 289 of 2014, 6936 of 2015,Special Leave Petition (Civil) Nos. 30766 of 2010, 5454-5459, 8701,36500-36501 of 2011, Transferred Case (Civil) Nos. 37, 38 of 2011,Transfer Petition (Civil) No. 464 of 2015 and Writ Petition (Civil)CNo. 1477 of 2019.

Vikramjit Banerjee, ASG, Arun Bhardwaj, AAG, (Haryana), JayantMuthraj, AAG, Ranjit Kumar, Rakesh Kumar Khanna, Manoj Swarup,M.S. Ganesh, Shekhar Naphade, Nidhesh Gupta, Colin Gonsalves,R. Venkatramani, Sanjay Hegde, Sr. Advs., Ms. Uttara Babbar,DMs. Bhavana Duhoon, Manan Bansal, Anshuman Singh, O. P. Bhadani,Aditya P. Khanna, Ramya Khanna, Ankit Swarup, Neelmani Pant,Ms. Vidisha Swarup, Rohit Kumar Singh, K. Seshachari, Anant KumarVatsya, Vinay Kumar Misra, Devendra Singh, Dr. Monika Gusain, SanjayKumar Visen, Abhishek Sharma, Anandh Kannan N., Kamal MohanEGupta, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, R.K. Singh,Mrs. Neeraj Singh, Kumar Gaurav, Ritu Reniwal, P.S. Baghath Singh,V. Subramanian Maduri, Robin Khokhar, Kuldip Singh, R.K. Kapoor,Gurbhajan Singh, Shoaib Ahmad Khan, Anis Ahmed Khan, Rohit Sharma,Rounak Nayak, Atul Agrawal, Kumar Dushyant Singh, Anmol Chandan,Saurabh Mishra, Ms. Shruti Agarwal, Prashant Rawat, Raj BahadurFYadav, Gurmeet Singh Makker, Balaji Srinivasan, M. Yogesh Kanna,Ms. Japneet Kaur, Ms. S. Janani, Siddharth Seem, P. Venkatesan,Ms. Jyoti Mendiratta, G. Balaji, Bankey Bihari Sharma, ParmanandPandey, Kuldip Singh, R. V. Kameshwaran, Vipin Kumar Jai, TusharBakshi, Pranjal Kishore, Shovit Singh, Shiva Pujan Singh, Shekhar Kumar,GDr. K.S. Chauhan, Ravi Prakash, Ajit Kumar, Sandeep Malik, Mrs. RekhaPandey, P. Soma Sundaram, Ajit Kumar Ekka, R.S.M. Kalky, SunilKumar, Rahul Gupta, Naresh Bakshi, Kamal Mohan Gupta, SanjayKumar Visen, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, AabhasKshetarpal, Siddhartha Jha, Rakesh Dahiya, S. Gowthaman, AnandSanjay M. Nuli, Suraj Kaushik, Dharam Singh (for M/s. Nuli & Nuli),

K. Paari Vendhan, A. Subba Rao, Mrs. Niranjana Singh, Deepak Anand,Sanjay Jain, Brij Bhushan,Advs. for the appearing parties.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1. Bench of three Judges vide order dated 20.8.2014 referredthe matter to larger Bench for consideration opining that the judgmentof 5-Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors., (2005)1 SCC 394,is required to be revisited in the light of Article 338 of theConstitution of India, and not correctly following the exposition of thelaw in Indra Sawhney and Ors. v. Union of India & Ors., 1992 Suppl.(3) SCC 217. It was noted that matter involved interpretation and interplaybetween Articles 16(1), 16(4), 338 and 341 of the Constitution of India.

2. We, in order to consider the constitutional validity of Section4(5) of the Punjab Scheduled Caste and Backward Classes (Reservationin Services) Act, 2006 (for short, ‘the Punjab Act’) in the matter referred,framed the following issues on 4.2.2020:

“i) Whether the provisions contained under Section 4(5) of ThePunjab Scheduled Castes and Backward Classes (Reservation inServices) Act, 2006 are constitutionally valid?

ii) Whether the State had the legislative competence to enact theprovisions contained under Section 4(5) of the Act?

iii) Whether the decision in E.V. Chinnaiah Vs. State of A. P. &Ors. reported in (2005) 1 SCC 394 is required to be revisited?”

3. The background facts are that the Punjab Government byCircular No.1818-SW-75/10451 dated 5.5.1975 provided that out of seatsreserved for Scheduled Castes, fifty per cent of the vacancies would beoffered to Balmikis and Mazhabi Sikhs. The Circular was struck downby Division Bench of the Punjab and Haryana High Court vide judgmentdated 25.7.2006.This Court dismissed the S.L.P. against the same on10.3.2008.

4. The Punjab Act was notified on 5.10.2006. Section 4(5) of thePunjab Act made similar provisions as were made in the Circular, whichwas struck down. It stipulated that fifty per cent of the vacancies of thequota reserved for Scheduled Castes in direct recruitment shall be offeredto Balmikis and Mazhabi Sikhs, subject to their availability, by providingfirst preference from amongst the Scheduled Castes candidates.

868SUPREME COURT REPORTS

A5. Division Bench of the Punjab and Haryana High Court struckdown the provisions contained in Section 4(5) of the Punjab Act videjudgment dated 29.3.2010, relying upon the decision in E.V. Chinnaiah.

6. The constitutional validity of Section 4(5) of the Punjab Actdepends upon whether any such classification can be made within theBclass of Scheduled Castes or Scheduled Tribes or are to be treated as ahomogenous class.Whether it is not permissible to provide any furtherreservation to the weakest out the weak, particularly when it has notbeen possible to trickle down the benefit of reservation to the weakestand the same is utilised by the upper class within the group, who enjoythe benefit of reservation to the maximum creating disparities within itsCclass.

Submissions:

7. Shri Ranjit Kumar, learned senior counsel appearing for theState of Punjab raised the following arguments:

(a) The decision in E.V. Chinnaiah erroneously proceeded onthe premise that affirmative action taken by the States by giving preferenceto certain Scheduled Castes under Article 16(4) tinkers with thePresidential List under Article 341. Merely giving of preference doesnot tinker, rearrange, sub-classify, disturb or interfere with the list in anyEmanner whatsoever since there is no inclusion or exclusion of any castein the list as notified under the meaning of Article 341. The Punjab Acthas been enacted under Article 16(1) and 16(4) read with Articles 245and 246. The provisions of Section 4(5) of the Punjab Act are within thelegislative competence of the State.

F(b) The Court in E.V. Chinnaiah erred in correctly interpretingthe majority ratio in Indra Sawney on the question of sub-classificationwithin class.At least five out of nine Judges in Indra Sawney held thatamongst the backward, there may be some more backward, and whenState chooses to make such classification, it would be permissible inlaw.Unequivocally in the majority, it was held that backward classesGcan be classified into more backward and less backward classes.TheScheduled Castes and Scheduled Tribes fall within backward classes.There is no warrant for the submission that there cannot be classificationwithin the Scheduled Castes.

(c) Article 16(4) covers all backward classes, including ScheduledHCastes and Scheduled Tribes. The expression used in Article 16(4) is

“any backward class of citizens”. The expression “not adequatelyrepresented” covers all socially and educationally backward classes,who, on account of their backwardness, are inadequately represented inthe State’s services. The scope of Article 16(4) is wider in its ambit thanArticle 15(4). The expression “backward class of citizens”used in Article16(4) covers in its ambit the Scheduled Castes and Scheduled Tribesand other backward classes, including the socially and educationallybackward class.

(d) The preferential treatment is facet of equality under Article14. Any enactment by the State giving preference to more backwardamongst the backward fulfils the object of Article 16(4). Six out of nineJudges in Indra Sawney held that Article 16(4) is not an exception toArticle 16(1). The preferential treatment given to certain ScheduledCastes/Scheduled Tribes does not violate Article 14. It intends to provideproportional equality. The classification is based on intelligible differentia.The differentia bears reasonable nexus with the object, which is soughtto be achieved, of equitable representation of all Scheduled Castes inthe Government service. The specific reservations are required to bringabout real equality of opportunity between unequals and must be ensuredby the State.

(e) new concept has been applied by this Court to ScheduledCastes also. While considering Indra Sawney inrecent judgment by thisCourt in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,(2018) 10 SCC 396, it was held that the object of Article 16(4) is toensure that all backward classes march forward hand in hand and thatwill not be possible if only selective few get selected in all the covetedservices of the Government.It was opined that the application of the‘creamy layer concept’ to Articles 341 and 342 does not tinker with thePresidential List.

(f) The decision in E.V. Chinnaiah is contrary to other bindingjudgments, such as K. C. Vasanth Kumar & Anr. v. State of Karnataka,1985 Supp. SCC 714, which was approved in Indra Sawney. InM. R. Balaji & Ors. v. State of Mysore & Ors., 1963 Supp. (1) SCR439, it was held that sub-classification between backward and morebackward classes is necessary to help more backward classes. InE.V. Chinnaiah, the decision in State of Kerala & Anr. v. N.M. Thomas& Ors., (1976) 2 SCC 310, was not properly appreciated. It was laiddown in N. M. Thomas that there could be no objection to further

Aclassification within class. Men are born different, and some sort ofdifferential treatment is required to achieve proportional equality.

(g) In case it is assumed that all castes are homogeneous by virtueof being in the List within Article 341, it is only addition, or deletion ofany caste in the list would be impermissible as held by the ConstitutionBBench in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4 andBir Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312. It ispermissible for the State to give preferential treatment within the listbased on the comparative backwardness of any class, there is nothing inArticle 341, which prohibits the same. Article 341 does not take awaythe power of the State under Article 16(4) to make provisions for givingCpreference. Such preferential treatment is not only permissible butnecessary to bring equality.Thus, the decision in E.V. Chinnaiah, havingbeen rendered by Coordinate Bench of five Judges, deserves to bereferred to larger Bench for reconsideration as the question ofinterpretation of various provisions of the Constitution involves the largerDpublic interest and the decision is contrary to earlier decisions, it isappropriate to refer to larger Bench to settle the law.8. Shri R. Venkataramani, learned senior counsel appearing forthe State of Tamil Nadu argued that:(a) The decision in E.V. Chinnaiah has and will continue to haveEan empirically demonstrable baneful effect on the general interests ofthe public and is inconsistent with the legal philosophy of the Constitutionregarding equality and equal opportunity. The decision in E.V.Chinnaiah,which holds that Scheduled Castes and Scheduled Tribesonce classified are homogenous class, is removed from social andFeconomic reality. If the decision continues to operate, large section ofScheduled Castes and Scheduled Tribes would be deprived of theguarantees under Articles 14 to 16. The decision in E.V. Chinnaiahdeserves to be revisited by larger Bench.

(b) Articles 14 to 16 constitute triumvirate of citizens’ rights andGobligations and conceived as equality and social justice charters. TheState is under corresponding obligations to devise measures and methods,fashion, policies to promote and protect these rights. There is an interplaybetween these rights as held in Indra Sawney. The equality rights underArticle 14 and equal opportunity rights under Articles 15 and 16 havebeen mutually reinforcing facets. The State must undertake theHemancipation of the deprived and weaker sections of the community.

The obligation to eradicate inequalities in status and wealth is complexobligations involving redistribution and reallocation of resources,opportunities, and equitable access to all public and social goods.Education, health, and public employment are all public goods of immensevalue. Therefore, the State/States will always need the freedom to carryout informed experiments without being fettered by undue ordisproportionate claims. The court has to keep social dynamics in mindand be careful not to chain the State or clamp its hand while interpretingconstitutional provisions. The rule of law demands that the State is ableto harmonise and balance several competing claims and interests.

(c) In Indra Sawney, the word “backward classes” have beendeclared to include Scheduled Castes and Scheduled Tribes and what allconsideration involved in dealing with backward classes would also beattracted to the Scheduled Castes and Scheduled Tribes, i.e., grouping,classification or sub-classification of castes and tribes for effectuatingthe rights under Article 16(1) and 16(4) is permissible. There are inter-se distinctions and inequalities within Scheduled Castes/Scheduled Tribesin their ability to access education and employment, afford healthcare,and enjoy the same social status. They are undeniably classes within aclass. The data documented by the State shows that inter-se inequalitypersists. It is open to the State/States to deal with backward classesbased on each group’s needs or sub-class and handle the pervadingimbalances.

(d) The decision in E.V. Chinnaiah has frozen all State authoritiesunder Articles 14 to 16 of the Constitution. E.V. Chinnaiah does notanswer many questions raised. It is based on the premise that allScheduled Castes can and must collectively enjoy the benefits ofreservation regardless of inter-se inequality. The broad statement in E.V.Chinnaiah has no demonstrable truth in empirical terms and is notsupported under the judgment itself. The decision in E.V. Chinnaiahcannot be said to be absolute to standard so high based on stare decisisas to freeze our constitutional understanding permanently and place ofthe judicial pronouncement.Shri R. Venkataramani has attracted theCourt’s attention to various decisions concerning stare decisis in mattersof its constitutional importance.

9. Shri M.S. Ganesh, learned senior counsel appearing on behalfof Haryana Dhanak Sewa Samiti, while supporting the aforesaidsubmissions, additionally argued that:

A(a) the decision in E.V. Chinnaiah suffers from tunnel vision andlacks acuity, and he has referred to M. Nagaraj & Ors. v. Union ofIndia & Ors., (2006) 8 SCC 212. The impact test must also be appliedto Article 341 read with the tautologous definition clause of Article 366(24)of the Constitution. The specification in Article 341 of the castes, races,and tribes is rendered qua legal fiction. The purpose of legal fiction mustBbe ascertained, and then it is to be given full effect without letting theimagination boggle. It cannot be stretched beyond the purposes for whichthe legislature has created it. The legal fiction under Article 341 is limitedto the specification. The specification is not disturbed by sub-classificationof the Scheduled Castes mentioned in the List.

(b) The caste given further reservation are not represented in theservices of the State. The decision in E.V. Chinnaiah cannot be said tobe laying down good law in view of the decision in I.R. Coelho v. Stateof T.N., (2007) 2 SCC 1. The approach and reasoning in E.V. Chinnaiahwere that for Scheduled Castes, Article 341 was the bedrock of theDrights guaranteed by Articles 15(4) and 16(4) and was dominant tenementto which Articles 14 to 16 were subservient.

(c) That E.V. Chinnaiahis subject to Occam’s Razor entia nonsunt multiplicanda praeter necessitate (entities ought not to bemultiplied except from the necessity), which means that all unnecessaryEor constituents in the subject being analysed are to be eliminated. Theinclusion in the list cannot dictate to the enforcement and effectuationby the State of the rights guaranteed by Articles 15(4) and 16(4) betweenthose specified castes, races, or group inter-se.The assignment ofimportant role to ethicalprinciples in behavioural relation of the societyranges from Aristotle, Aquinas, Ockham, and Arthasastra are referredFto in ‘The Idea of Justice’ by Amartya Sen.

(d) That Articles 15(4) and 16(4) by themselves are substantiveand enabling provisions. The power conferred is not limited in any wayby the main provision, but falls outside it. It has not carved out anexception but has preserved the power untrammelled by the otherGprovisions of the Article. The hands of the State cannot be restrainedunder Article 46 as done by E.V. Chinnaiah. In E.V. Chinnaiahhas lostsight of the nature of Part-XVI of the role of the provisions of that Part.

(e) If E.V. Chinnaiah is good law, its problematics give rise toprospects of challenge to the constitutional validity of Article 342A asHinserted by the Constitution (One Hundred and Second Amendment)

Act, 2018 necessitates revisiting the interpretation of Articles 341 and342 of the Constitution.

10. Shri Nidesh Gupta, learned senior counsel argued that:

(a) there is no bar to grant State’s preference under Articles341(2) and 342(2) of the Constitution. The Constitution does not forbidmere preference. The State Government cannot exercise powerconcerning inclusion and exclusion. This Court in Indra Sawneyuphelda classification of the backward and more backward class under Article16(4).

(b) In M. Nagaraj and Jarnail Singh,the exclusion of theScheduled Castes’ creamy layer under Article 16(4) was permitted. Thecreamy layer includes economic, social, educational, and other factors;therefore, the preference given to Balmikis and Mazhabi Sikhs, i.e.,the most backward amongst the Scheduled Castes, is in substance anapplication of the principle of creamy layer.

(c) reading of Articles 16(4), 16(4A), 335, 341, and 342 makesit clear that the State(s)has role to play at every stage of the reservationprocess. Therefore, it would be contrary to the constitutional scheme todeny them role in merely granting preference to the most backwardamong the Scheduled Castes.

(d) class of citizens cannot be treated to be socially andeducationally backward till perpetuity. The class is always required tobe judged in the light of the existing fact situation at given point of time,as observed in Jagdish Negi, President, Uttarakhand Jan Morcha &Anr. v. State of U.P.& Anr., (1997) 7 SCC 203.

11. Shri Shekhar Naphade, learned senior counsel, attracted theattention of the Court to the findings recorded by the Committee basedon which reservation has been provided to more backward of theScheduled Castes in the State of Tamil Nadu.He argued that:

(a) the Arunthathiyars communityis the lowest caste. Heattracted the attention of the Court to the representation of the group inthe State Government Departments and educational courses and thereservation formula recommended by the Committee. The Tamil NaduArunthathiyars (Special Reservation of seats in Educational Institutionsincluding Private Educational Institutions and appointments or posts inthe services under the State within the Reservation for Scheduled Castes)

AAct, 2009 does not tinker with the Presidential List of Scheduled Castesin any manner.

(b) Special reservation is fundamental aspect of Article 14 ofthe Constitution. E.V. Chinnaiah requires reconsideration in the light ofthe decision of the Constitution Bench in Jarnail Singh. Besides, itBfailed to take note of ground realities and is not based upon the statisticaldata collected by the State showing disparities amongst the ScheduledCastes and Scheduled Tribes.

(c) The State’s legislative competence in various fieldsfor makingreservation flows from Article 246(2) and 246(3) read with Entry 41 inCList II and Entry 25 in List III. Article 341 does not abrogate the legislativepower of the State to enact law providing for reservation in theemployment in the State Public Services or State Public ServiceCommission. It is open to the State to make law providing reservation inthe admissions to educational institutions.

D(d) The restriction under Article 341 is limited, relating to inclusionand exclusion of castes. The decision in E.V. Chinnaiah treats unequalsas equals. The object of the legislation is to improve the lot of ScheduledCastes and eliminate their social and educational backwardness andequally distribute the fruits among them. The special reservation is torender more meaningful social justice. The unequals cannot be treatedEequally. Differential treatment cannot be termed to be discriminatory.

12. Ms. Jyoti Mendiratta, learned counsel, attracted the attentionof the Court to the various reports and argued that in E.V. ChinnaiahScheduled Castes were taken to be homogeneous group, they are, infact, not homogeneous.F

(a) Learned counsel attracted our attention to the report of JusticeM.S. Janarthanam Committee of Inquiry for Special Reservation for theArunthathiyars. They were not able to reap the fruits of reservation asthere was upper crust within Scheduled Castes, and most of the postswere reserved for Scheduled Castes and Scheduled Tribes, thoughGArunthathiyars were 16 per cent of the Scheduled Caste population,they managed to obtain reservation to much lower extent. The figuresof representation of Arunthathiyars community in State services andeducational institutions have been furnished.

(b) Our attention was attracted to the report of JusticeHRamachandra Raju Committee, wherein it was observed that the Reli

group of communities was the most backward amongst the ScheduledCaste communities.

(c) Learned counsel also invited our attention to Justice UshaMehra Committee report (2008), indicating that Scheduled Castes donot constitute homogenous class in relation to their social, educational,and economic backwardness in the country. Individual social groupsinherit most traditional occupations by the incident of birth in the list ofScheduled Caste.

(d) Learned counsel further drew our attention to Justice LokurCommittee Report (1965). It was pointed out that the smaller and morebackward communities have tended to get lost in the democratic process,though most deserving of special aid. It was suggested in the report thatin the matters of planning and development, the distribution of benefitsneeds to be focused on the more backward and smaller groups on aselective basis. In E.V. Chinnaiah, the scope of Article 341 was notcorrectly appreciated about the power of the State concerning theallocation of percentage of reservation amongst the caste based uponrational differentia was ignored.

13. Shri Sanjay R. Hegde, learned senior counsel, while supportingE.V. Chinnaiah, argued that:

(a) The Parliament alone has the power to exclude castes listedin the Schedule. He has attracted our attention to Dr. Ambedkar’s speechin the Constituent Assembly regarding the purpose of Articles 341 and342. The object is to eliminate any kind of political factors having playin the matter of the disturbance in the schedule so published by thePresident. Considering the binding precedent doctrine, the decision inE.V. Chinnaiah is not required to be revisited wherein possible viewhas been taken. The judgment concerning the construction of statutesought not to be overruled except in exceptional cases. The unforeseeableconsequences would follow if the judgment is overruled. It requires tobe revisited if it causesgreat uncertainty, or it relates to some broadissue or principle, or the same is unjust or outmoded, not otherwise.

(b) In Indra Sawhney, the sub-classification was limited to sociallyand educationally backward classes. It was observed that none of itsobservations would apply to Scheduled Castes and Scheduled Tribes.The Scheduled Castes and Scheduled Tribes are backward for theprovisions of Article 16(4). The test or requirement of social and

Aeducational backwardness cannot be applied to Scheduled Castes andScheduled Tribes. The decision in Indra Sawhney was understood inthe correct perspective in E.V. Chinnaiah.

(c) In N.M. Thomas, it was held that Scheduled Castes andScheduled Tribes are backward classes. No sub-classification can beBmade. The exclusion from the list is prerogative of the Parliament. Theobject of Article 341(1) is to provide additional protection to the membersof the Scheduled Castes having regard to the economic and educationalbackwardness from which they suffer. In the Presidential Order, eventhe court cannot make any alteration. No enquiry is permissible todetermine whether or not some particular community falls within the listCor outside it as laid down in State of Maharashtra v. Milind & Ors.,(2001) 1 SCC 4.

(d) The legal fiction created under Article 341 is to be given fulleffect. The provisions of Section 4(5) of the Punjab Act cannot be saidto be constitutionally valid. The Governoris empoweredonly to makeDrecommendations under Article 341 for alteration in the list. No furtherclassification can be made once Scheduled Castes, and Scheduled Tribesare covered under Article 16(4).

(e) There is difference between Scheduled Castes and OtherBackward Classes. The Scheduled Castes are untouchables as held inEJarnail Singh. The Hindus are divided into two classes – the touchablesand the untouchables. The term “depressed classes” was replaced by“Scheduled Castes” under the Government of India Act, 1935. The specialtreatment is given to the Scheduled Castes due to untouchability withwhich they suffer. It is not open to the Parliamentor Legislature of Statesto make classification inter se Scheduled Castes/Scheduled Tribes onceFthey are included in the Schedule. The Parliament is empowered to includeor exclude any caste from the Presidential List. Article 341(1) providesadditional protection to the members of the Scheduled Castes. The powersunder Article 16(4) cannot be exercised de-hors Article 341.

G14. Shri Tushar Bakshi, learned counsel argued that sub-classification is not permissible in the caste grouped in one entry of thelist. It is not permissible to leave one caste grouped within the list. Thepower has been exercised maliciously.

15. Shri A. Subba Rao, learned counsel, appearing on behalf ofthe respondents argued that the Constitution (One Hundred and SecondH

Amendment) Act, 2018 came into effect on 11.8.2018. Article 338Bwas inserted constituting National Commission for Backward Classes.The real question for consideration is the interpretation of Articles 14,15, 16, 338, 338A, 338B, 341, 342, 342A, 366(24) and 366(26C). TheParliament alone has the power to deal with Scheduled Castes once thePresident notifies the Scheduled Castes list. He relied upon Bir Singh tosubmit that E.V. Chinnaiah has been correctly decided. The basicquestion for determination is of federalism. The powers conferred onthe Parliament to amend the list cannot be whittled down and diluted byinterpretation of the constitutional provisions. The reference to largerBench is not at all warranted.

16. Dr. K.S. Chauhan, learned counsel argued that law has beensettled in E.V. Chinnaiah. The State Government has no power to includeor exclude the castes in the List. The Constitution does not empower theUnion or the State to categorise or sub-categorise the castes enumeratedin the List. Any sub-classification may tantamount to varying the Listunder Article 341(1). The view taken in Indra Sawhney is that castesenumerated are not castes, these are classes. Learned counsel has pointedout the distinction between class and caste.In N.M. Thomas, it was laid down that Scheduled Castes are notcastes, they are class. Hence, he argued that they should not be furtherclassified. The principle settled in the decision of N.M. Thomas hasbeen disregarded in the decision of M. Nagaraj. The majority in IndraSawhney held that the provisions of Article 16(4) are classification ofArticle 16(1) of the Constitution, and the classification is permissible.The minority opinion in Indra Sawhney has been applied in M. Nagaraj,and the same is contrary to the law settled by the majority in IndraSawhney and R.K. Sabharwal & Ors. v. State of Punjab & Ors.,(1995) 2 SCC 745. reference was made regarding the correctness ofM. Nagaraj. The Constitution Bench in Jarnail Singh settled theprinciple based on Indra Sawhney. Still, new principle of socialbackwardness and creamy layer has been developed, and theconstitutional principles have been clarified and settled by modifying thelegal interpretation of M. Nagaraj. The correctness of the decision inM. Nagaraj was also doubted in State of Tripura & Ors. v. JayantaChakraborty & Ors., (2018) 1 SCC 146. The clarification by theConstitution Bench in Jarnail Singh, remained very short-lived onlyupto in B.K. Pavitra & Ors. v. Union of India & Ors., (2019) 16 SCC129. M. Nagaraj ought to have been referred to larger Bench.

17. Shri Robin Khokhar, learned counsel argued that based on theTamil Nadu Act No.4 of 2009, the Government of Tamil Nadu included7 castes out of 76 castesin the list of Scheduled Caste Aruthathiyar, thepower of classification could not have been exercised. The same is violativeto the basic feature of the Constitution and Article 341. Legislating sub-classification is constitutionally impermissible.

Discussion:

18. In E.V. Chinnaiah,it was held that Scheduled Castes formhomogenous classes and there cannot be any sub-division and with respectto Indra Sawhney, following discussion was made:

“38. On behalf of the respondents, it was pointed out that in IndraSawhney case, 1992 Suppl. (3) SCC 217, the Court had permittedsubclassification of Other Backward Communities, as backwardand more backward based on their comparative underdevelopment,therefore, the similar classification amongst the class enumeratedin the Presidential List of Scheduled Castes is permissible in law.We do not think the principles laid down in Indra Sawhney case,1992 Suppl. (3) SCC 217, for subclassification of Other BackwardClasses can be applied as precedent law for subclassification orsubgrouping Scheduled Castes in the Presidential List becausethat very judgment itself has specifically held that subdivision ofOther Backward Classes is not applicable to Scheduled Castesand Scheduled Tribes. This we think is for the obvious reason i.e.the Constitution itself has kept the Scheduled Castes and ScheduledTribes List out of interference by the State Governments.

41. The conglomeration of castes given in the Presidential Order,in our opinion, should be considered as representing class as awhole. The contrary approach of the High Court, in our opinion,was not correct. The very fact that legal fiction has been createdis itself suggestive of the fact that the legislature of State cannottake any action which would be contrary to or inconsistenttherewith. The very idea of placing different castes or tribes orgroup or part thereof in State as conglomeration by way of adeeming definition clearly suggests that they are not to besubdivided or subclassified further. If class within class ofmembers of the Scheduled Castes is created, the same wouldamount to tinkering with the list. Such subclassification would beviolative of Article 14 of the Constitution. It may be true, as hasbeen observed by the High Court, that the caste system has gotstuck up in the society but with view to do away with the evileffect thereof, legislation which does not answer theconstitutional scheme cannot be upheld. It is also difficult to agreewith the High Court that for the purpose of identifyingbackwardness, further inquiry can be made by appointing acommission as to who amongst the members of the ScheduledCastes is more backward. If benefits of reservation are notpercolating to them equitably, measures should be taken to seethat they are given such adequate or additional training so as toenable them to compete with the others but the same would notmean that in the process of rationalising the reservation to theScheduled Castes the constitutional mandate of Articles 14, 15and 16 could be violated.”

The following opinion expressed by S.B. Sinha, J. in E.V.Chinnaiah has been referred to:

“113. The power of the State Legislature to decide as regardsgrant of benefit of reservation in jobs or in educational institutionsto the backward classes is not in dispute. It is furthermore not indispute that if such decision is made the State can also lay downa legislative policy as regards extent of reservation to be madefor different members of the backward classes including ScheduledCastes. But it cannot take away the said benefit on the premisethat one or the other group amongst the members of the ScheduledCastes has advanced and, thus, is not entitled to the entire benefitof reservation. The impugned legislation, thus, must be held to beunconstitutional.”

19. One of the questions is whether E.V. Chinnaiah correctlyappreciated the majority decision in Indra Sawhney. It was arguedthat in Indra Sawhney, the majority of the Judges held that amongst thebackward, there may be some more backward, and if the State choosesto make such classification, it would be permissible in law.

(a) Following is the opinion of B.P. Jeevan Reddy, J. (for himselfand other three Judges) in Indra Sawhney:

“Question No. 5:

Whether Backward Classes can be further divided intobackward and more backward categories?

[2020] 10 S.C.R.

801. In Balaji, 1963 Supp 1 SCR 439, it was held:

“that the sub-classification made by the order betweenBackward Classes and More Backward Classes does notappear to be justified under Article 15(4). Article 15(4)authorises special provision being made for the really backwardclasses. In introducing two categories of Backward Classes,what the impugned order, in substance, purports to do is todevise measures for the benefit of all the classes of citizenswho are less advanced, compared to the most advanced classesin the State, and that, in our opinion, is not the scope of Article15(4). The result of the method adopted by the impugned orderis that nearly 90% of the population of the State is treated asbackward, and that illustrates how the order in fact divides thepopulation of the State into most advanced and the rest, andputs the latter into two categories of Backward and MoreBackward. The classification of the two categories, therefore,is not warranted by Article 15(4).” (SCR p. 465-66)

The correctness of this holding is questioned before us by thecounsel for the respondents. It is submitted that in principle thereis no justification for the said holding. It is submitted that evenamong backward classes there are some who are more backwardthan the others and that the backwardness is not and cannot beuniform throughout the country nor even within State. In supportof this contention, the respondents rely upon the observations ofChinnappa Reddy, J in Vasanth Kumar, 1985 Supp SCC 714,where the learned Judge said: (SCC p. 750, para 55)“[W]e do not see why on principle there cannot be aclassification into Backward Classes and More Backward Classes,if both classes are not merely little behind, but far behind themost advanced classes. In fact such classification would benecessary to help the More Backward Classes; otherwise thoseof the Backward Classes who might be little more advancedthan the More Backward Classes might walk away with all theseats.”

802. We are of the opinion that there is no constitutional or legalbar to State categorising the backward classes as backwardand more backward. We are not saying that it ought to be done.We are concerned with the question if State makes such

categorisation, whether it would be invalid? We think not. Let ustake the criteria evolved by Mandal Commission. Any caste, groupor class which scored eleven or more points was treated as abackward class. Now, it is not as if all the several thousands ofcastes/groups/classes scored identical points. There may be somecastes/groups/classes which have scored points between 20 to22 and there may be some who have scored points between elevenand thirteen. It cannot reasonably be denied that there is nodifference between these two sets of castes/groups/classes. Togive an illustration, take two occupational groups viz., goldsmiths-and vaddes (traditional stonecutters in Andhra Pradesh) bothincluded within Other Backward Classes. None can deny thatgoldsmiths are far less backward than vaddes. If both of themare grouped together and reservation provided, the inevitable resultwould be that goldsmiths would take away all the reserved postsleaving none for vaddes. In such situation, State may think itadvisable to make categorisation even among other backwardclasses so as to ensure that the more backward among thebackward classes obtain the benefits intended for them. Whereto draw the line and how to effect the sub-classification is,however, matter for the Commission and the State — and solong as it is reasonably done, the Court may not intervene. In thisconnection, reference may be made to the categorisation obtainingin Andhra Pradesh. The Backward Classes have been dividedinto four categories. Group comprises “Aboriginal tribes,Vimukta jatis, nomadic and semi-nomadic tribes etc.” Group Bcomprises professional group like tappers, weavers, carpenters,ironsmiths, goldsmiths, kamsalins etc. Group pertains to“Scheduled Castes converts to Christianity and their progeny”,while Group comprises all other classes/communities/groups,which are not included in Groups A, and C. The 25% vacanciesreserved for backward classes are sub-divided between them inproportion to their respective population. This categorisation wasjustified in Balram, (1972) 1 SCC 660. This is merely to show-that even among backward classes, there can be subclassification on reasonable basis.

803. There is another way of looking at this issue. Article16(4)recognises only one class viz., “backward class of citizens”. Itdoes not speak separately of Scheduled Castes and Scheduled

882SUPREME COURT REPORTS

ATribes, as does Article 15(4). Even so, it is beyond controversythat Scheduled Castes and Scheduled Tribes are also included inthe expression “backward class of citizens” and that separatereservations can be provided in their favour. It is well-acceptedphenomenon throughout the country. What is the logic behind it?It is that if Scheduled Tribes, Scheduled Castes and OtherBBackward Classes are lumped together, OBCs will take away allthe vacancies leaving Scheduled Castes and Scheduled Tribeshigh and dry. The same logic also warrants categorisation asbetween more backward and backward. We do not mean to say— we may reiterate — that this should be done. We are onlyCsaying that if State chooses to do it, it is not impermissible inlaw.

PART VII

859. We may summarise our answers to the various questionsdealt with and answered hereinabove:

(3) (a) caste can be and quite often is social class in India. Ifit is backward socially, it would be backward class for theEpurposes of Article 16(4). Among non-Hindus, there are severaloccupational groups, sects and denominations, which for historicalreasons, are socially backward. They too represent backwardsocial collectivities for the purposes of Article 16(4). (Paras 746to 779)

F****** ***

(d) ‘Creamy layer’ can be, and must be excluded. (Paras 790-793)

(5) There is no constitutional bar to classify the backward classesof citizens into backward and more backward categories. (ParasG801 to 803)”

(emphasis supplied)

(b) The opinion expressed by P.B. Sawant, J. (for himself)isextracted hereunder:

“523. As regards the second part of the question, in Balaji, 1963Supp 1 SCR 439, it was observed that the backward classes cannotbe further classified in backward and more backward classes.These observations, although made in the context of Article 15(4)which fell for consideration there, will no doubt be equally applicableto Article 16(4). The observations were made while dealing withthe recommendations of the Nagan Gowda Committee appointedby the State of Karnataka which had recommended theclassification of the backward communities into two divisions, theBackward and the More Backward. While making thoserecommendations the Committee had applied one test, viz., “Wasthe standard of education in the community in question less than50% of the State average? If it was, the community was regardedas more backward; if it was not, the community was regarded asbackward.” The Court opined that the sub-classification made bythe Report and the order based thereupon was not justified underArticle 15(4) which authorises special provision being made for‘really backward classes’. The Court further observed that inintroducing two categories of backward classes, what theimpugned order in substance purported to do was to devisemeasures “for the benefit of all the classes of citizens who areless advanced compared to the most advanced classes in theState”. That, according to the Court, was not the scope of Article15(4). The result of the method adopted by the impugned orderwas that nearly 90% of the population of the State was treated asBackward and that, observed the Court, illustrated how the orderin fact divided the population of the State into most advanced andthe rest, putting the latter into two categories of the Backwardand the More Backward. Thus, the view taken there against thesub-classification was on the facts of that case which showedthat almost 90% of the population of the State was classified asbackward, the backwardness of the Backward (as against that ofthe More Backward) being measured in comparison to the mostadvanced classes in the State. Those who were less advancedthan the most advanced, were all classified as Backward. TheCourt held that it is the More Backward or who were reallybackward who alone would be entitled to the benefit of theprovisions of Article 15(4). In other words, while the MoreBackward were classified there rightly as backward, the Backwardwere not classified rightly as backward.

524. It may be pointed out that in Vasanth Kumar, 1985 SuppSCC 714, Chinnappa Reddy, J after referring to theaforesaidview in Balaji, 1963 Supp 1 SCR 439observed that the proprietyof such test may be open to question on the facts of each case butthere was no reason why on principle there cannot be aclassification into Backwards and More Backwards if both classesare not merely little behind, but far far behind the most advancedclasses. He further observed that in fact, such classificationwould be necessary to help the more backward classes; otherwisethose of the backward classes who might be little more advancedthan the more backward classes, would walk away with all theseats just as if reservation was confined to the more backwardclasses and no reservation was made to the slightly more advancedof the backward classes, the backward classes would gain noseats since the advanced classes would walk away with all theseats available for the general category. With respect, this is thecorrect view of the matter. Whether the backward classes canbe classified into Backward and More Backward, would dependupon the facts of each case. So long as both backward and morebackward classes are not only comparatively but substantiallybackward than the advanced classes, and further, betweenthemselves, there is substantial difference in backwardness, notonly it is advisable but also imperative to make the sub-classificationif all the backward classes are to gain equitable benefit of thespecial provisions under the Constitution. To give an instance, theMandal Commission has, on the basis of social, educational andeconomic indicators evolved 22 points by giving different valuesto each of the three factors, viz., social, educational and economic.Those social groups which secured 22 points or above have beenlisted there as “socially and educationally backward” and the restas “advanced”. Now, between 11 and 22 points some may secure,say, 11 to 15 points while others may secure all 22 points. Thedifference in their backwardness is, therefore, substantial. Yetanother illustration which may be given is from Karnataka StateGovernment order dated October 13, 1986 on reservations issuedafter the decision in Vasanth Kumar, 1985 Supp SCC 714 wherethe backward classes are grouped into five categories, viz., A, B,C, and E. In category A, fall such castes or communities asthat of Bairagi, Banjari and Lambadi which are nomadic tribes,

and Bedaru, Ramoshi which were formerly stigmatised as criminaltribes whereas in category fall such castes as Kshatriya andRajput. To lump both together would be to deny totally the benefitof special provisions to the former, the latter taking away the entirebenefits. On the other hand, to deny the status of backwardnessto the latter and ask them to compete with the advanced classes,would leave the latter without any seat or post. In suchcircumstances, the sub-classification of the backward classes intobackward and more or most backward is not only desirable butessential. However, for each of them special quota has to beprescribed as is done in the Karnataka Government order. If it isnot done, as in the present case, and the reserved posts are firstoffered to the more backward and only the remaining to thebackward or less backward, the more backward may take awayall the posts leaving the backward with no posts. The backwardwill neither get his post in the reserved quota nor in the generalcategory for want of capacity to compete with the forward.

525. Hence, it will have to be held that depending upon the factsof each case, sub-classification of the backward classes into thebackward and more or most backward would be justifiableprovided separate quotas are prescribed for each of them.

552. The answers to the questions may now be summarised asfollows:

Question 1:***

Question 2:***Question 3:***Question 4:***

Question 5:

Article 16(4) permits classification of backward classes intobackward and more or most backward classes. However, thisclassification is permitted only on the basis of the degrees of socialbackwardness and not on the basis of the economic considerationalone.

If backward classes are classified into backward and moreor most backward classes, separate quotas of reservations will

Ahave to be kept for each of such classes. In the absence of suchseparate quotas, the reservations will be illegal.

It is not permissible to classify backward classes or abackward class social group into an advanced section and abackward section either on economic or any other consideration.BThe test of advancement lies in the capacity to compete with theforward classes. If the advanced section in backward class isso advanced as to be able to compete with the forward classes,the advanced section from the backward class no longer belongsto the backward class and should cease to be considered so anddenied the benefit of reservations under Article 16(4).”

(emphasis supplied)

(c) In Indra Sawhney, the question involved was of MandalCommission regarding other backward classes. The expression used inArticle 16(4) is ‘any backward class of citizens’. Article 16(4) is widerDin its ambit than Article 15(4). The expression ‘class’ is wider than ‘caste’,and the expression ‘backward class’ stipulated under Article 16(4) takesinto its ambit Scheduled Castes and Scheduled Tribes and all otherbackward classes including the socially and educationally backward class.Following discussion was made in the opinion expressed by B.P. JeevanReddy, J. (for himself and other three Judges):

“774.In our opiniontoo, the words “class of citizens — notadequately represented in the services under the State” wouldhave been vague and uncertain description. By adding the word“backward” and by the speeches of Dr Ambedkar and Shri K.M.Munshi, it was made clear that the “class of citizens … notFadequately represented in the services under the State” meantonly those classes of citizens who were not so represented onaccount of their social backwardness.

777. ….The word “community” is clearly wider than “caste” —and “backward communities” meant not only the castes —Gwherever they may be found —but also other groups, classesand sections among the populace.

778. Indeed, there are very good reasons why the Constitutioncould not have used the expression “castes” or “caste” in Article16(4) and why the word “class” was the natural choice in theHcontext. The Constitution was meant for the entire country and

for all time to come. Non-Hindu religions like Islam, Christianityand Sikh did not recognise caste as such though, as pointed outhereinabove, castes did exist even among these religions to avarying degree. Further, Constitution is supposed to be apermanent document expected to last several centuries. It mustsurely have been envisaged that in future many classes may springup answering the test of backwardness, requiring the protectionof Article 16(4). It, therefore, follows that from the use of theword “class” in Article 16(4), it cannot be concluded either that“class” is antithetical to “caste” or that caste cannot be classor that caste as such can never be taken as backward class ofcitizens. The word “class” in Article 16(4), in our opinion, is usedin the sense of social class — and not in the sense it is understoodin Marxist jargon.778-A. In Rajendran, (1968) 2 SCR 786, 790, TrilokiNath(II),(1969) 1 SCR 103, 105, Balram, (1972) 1 SCC 660 andPeeriakaruppan, (1971) 1 SCC 38, 48, this reality was recognisedand given effect to, notwithstanding the fact that they had to respectand operate within the rather qualified formulation of Balaji, 1963Supp 1 SCR 439.

778-B. For the sake of completeness, we may refer to fewpassages, from Vasanth Kumar, 1985 Supp SCC 714, to showwhat does the concept of ‘caste’ signify? D.A. Desai, J definesand describes “caste” in the following terms: (SCC pp. 730-31,para 22)

“What then is caste? Though caste has been discussedby scholars and jurists, no precise definition of the expressionhas emerged. caste is horizontal segmental division ofsociety spread over district or region or the whole Stateand also sometimes outside it. Homo Hierarchicus is expectedto be the central and substantive element of the caste-systemwhich differentiates it from other social systems. The conceptof purity and impurity conceptualises the caste system ….There are four essential features of the caste-system whichmaintained its homo hierarchicus character: (1) hierarchy; (2)commensality; (3) restrictions on marriage; and (4) hereditaryoccupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But ‘Pratilom’marriages are not wholly known.”

Venkataramiah, J also defined “caste” in practically the sameterms. He said: (SCC p. 786, para 110)

“A caste is an association of families which practicesthe custom of endogamy i.e. which permits marriages amongstthe members belonging to such families only. Caste rules prohibitits members from marrying outside their caste …. caste isbased on various factors, sometimes it may be class, raceor racial unit. caste has nothing to do with wealth. Thecaste of person is governed by his birth in family. Certainideas of ceremonial purity are peculiar to each caste …. Eventhe choice of occupation of members of caste waspredetermined in many cases, and the members of particularcastes were prohibited from engaging themselves in other typesof callings, professions or occupations. Certain occupationswere considered to be degrading or impure.”

779.The above material makes it amply clear that caste isnothing but social class — socially homogeneous class.It isalso an occupational grouping, with this difference that itsmembership is hereditary. One is born into it. Its membership isinvoluntary. Even if one ceases to follow that occupation, still heremains and continues member of that group. ….. But we areconcerned here with limited aspect of equality emphasised in—Article 16(4) equality of opportunity in public employment anda special provision in favour of backward class of citizens to enablethem to achieve it.

(b) Identification of “backward class of citizens”

780. Now, we may turn to the identification of “backward classof citizens”. How do you go about it? Where do you begin? Is themethod to vary from State to State, region to region and fromrural to urban? What do you do in the case of religions wherecaste-system is not prevailing? What about other classes, groupsand communities which do not wear the label of caste? Are thepeople living adjacent to cease-fire line (in Jammu and Kashmir)or hilly or inaccessible regions to be surveyed and identified asbackward classes for the purpose of Article 16(4)? And so onand so forth are the many questions asked of us. We shall answerthem. But our answers will necessarily deal with generalities ofthe situation and not with problems or issues of peripheral nature

which are peculiar to particular State, district or region.Eachand every situation cannot be visualised and answered. That mustbe left to the appropriate authorities appointed to identify. We canlay down only general guidelines.

781.At the outset, we may state that for the purpose of thisdiscussion, we keep aside the Scheduled Tribes and ScheduledCastes (since they are admittedly included within the backwardclasses), except to remark that backward classes contemplatedby Article 16(4) do comprise some castes— for it cannot bedenied that Scheduled Castes include quite few castes.

c) Whether the backwardness in Article 16(4) should be bothsocial and educational?

786. The other aspect to be considered is whether thebackwardness contemplated in Article 16(4) is socialbackwardness or educational backwardness or whether it is bothsocial and educational backwardness. Since the decision in Balaji,1963 Supp 1 SCR 439, it has been assumed that the backwardclass of citizens contemplated by Article 16(4) is the same as thesocially and educationally backward classes, Scheduled Castesand Scheduled Tribes mentioned in Article 15(4). Though Article15(4) came into existence later in 1951 and Article 16(4) does notcontain the qualifying words “socially and educationally” precedingthe words “backward class of citizens” the same meaning cameto be attached to them. Indeed, it was stated in Janki PrasadParimoo, (1973) 1 SCC 420 (Palekar, J speaking for theConstitution Bench) that:

“Article 15(4) speaks about ‘socially and educationallybackward classes of citizens’ while Article 16(4) speaks onlyof ‘any backward class citizens’. However, it is now settledthat the expression ‘backward class of citizens’ in Article 16(4)means the same thing as the expression ‘any socially andeducationally backward class of citizens’ in Article 15(4). Inorder to qualify for being called ‘backward class citizen’ hemust be member of socially and educationally backwardclass. It is social and educational backwardness of classwhich is material for the purposes of both Articles 15(4) and”16(4).

A787. It is true that no decision earlier to it specifically said so, yetsuch an impression gained currency and it is that impression whichfinds expression in the above observation. In our respectful opinion,however, the said assumption has no basis. Clause (4) of Article16 does not contain the qualifying words “socially andeducationally” as does clause (4) of Article 15. It may beBremembered that Article 340 (which has remained unamended)does employ the expression ‘socially and educationally backwardclasses’ and yet that expression does not find place in Article16(4). The reason is obvious: “backward class of citizens” in Article16(4) takes in Scheduled Tribes, Scheduled Castes and all otherCbackward classes of citizens including the socially and educationallybackward classes. Thus, certain classes which may not qualifyfor Article 15(4) may qualify for Article 16(4). They may notqualify for Article 15(4) but they may qualify as backward classof citizens for the purposes of Article 16(4).It is equally relevantto notice that Article 340 does not expressly refer to services orDto reservations in services under the State, though it may be thatthe Commission appointed thereunder may recommend reservationin appointments/posts in the services of the State as one of thesteps for removing the difficulties under which SEBCs arelabouring and for improving their conditions. Thus, SEBCs referredEto in Article 340 is only of the categories for whom Article 16(4)was enacted: Article 16(4) applies to much larger class than theone contemplated by Article 340. It would, thus, be not correct tosay that ‘backward class of citizens’ in Article 16(4) are the sameas the socially and educationally backward classes in Article 15(4).Saying so would mean and imply reading limitation into beneficialFprovision like Article 16(4). Moreover, when speaking ofreservation in appointments/posts in the State services — whichmay mean, at any level whatsoever — insisting upon educationalbackwardness may not be quite appropriate.

788. Further, if one keeps in mind the context in which ArticleG16(4) was enacted it would be clear that the accent was uponsocial backwardness. It goes without saying that in the Indiancontext, social backwardness leads to educational backwardnessand both of them together lead to poverty — which in turn breedsand perpetuates the social and educational backwardness. TheyHfeed upon each other constituting vicious circle. It is well-

known fact that till independence the administrative apparatuswas manned almost exclusively by members of the ‘upper’ castes.The Shudras, the Scheduled Castes and the Scheduled Tribes andother similar backward social groups among Muslims andChristians had practically no entry into the administrative apparatus.It was this imbalance which was sought to be redressed byproviding for reservations in favour of such backward classes. Inthis sense Dr Rajeev Dhavan may be right when he says that theobject of Article 16(4) was “empowerment” of the backwardclasses. The idea was to enable them to share the state power.We are, accordingly, of the opinion that the backwardnesscontemplated by Article 16(4) is mainly social backwardness. Itwould not be correct to say that the backwardness under Article16(4) should be both social and educational. The Scheduled Tribesand the Scheduled Castes are without doubt backward for thepurposes of the clause; no one has suggested that they shouldsatisfy the test of social and educational backwardness …..”

(emphasis supplied)

(d)(i) The question of preferential treatment given by the Statewas held to be facet of equality under Article 14 as giving preference tomore backward amongst the backwards furthers the aim and object ofArticle 16(4). Six out of nine Judges in Indra Sawhney held that Article16(4) is not an exception to Article 16(1). The opinion expressed by B.P.Jeevan Reddy, J. (for himself and other three Judges) is extractedhereunder:

“733.At this stage, we wish to clarify one particular aspect. Article16(1) is facet of Article 14. Just as Article 14 permits reasonableclassification, so does Article 16(1). classification may involvereservation of seats or vacancies, as the case may be. In otherwords, under clause (1) of Article 16, appointments and/or postscan be reserved in favour of class. But an argument is now—being advanced evidently inspired by the opinion of Powell, Jin Bakke, 57 L Ed 2d 750, that Article 16(1) permits onlypreferences but not reservations. The reasoning in supportof thesaid argument is the same as was put forward by Powell, J. Thisargument, in our opinion, disregards the fact that that is not theunanimous view of the court in Bakke, 57 L Ed 2d 750. FourJudges including Brennan, J took the view that such reservation

was not barred by the Fourteenth Amendment while the otherfour (including Warren Burger, CJ) took the view that theFourteenth Amendment and Title VI of the Civil Rights Act, 1964bars all race-conscious programmes. At the same time, there area series of decisions relating to school desegregation — fromBrown, 347 US 483 to North Carolina Board of Education v.Swann, 28 L Ed 2d 586 — where the court has been consistentlytaking the view that if race be the basis of discrimination, racecan equally form the basis of remedial action. The shift in approachindicated by Metro Broadcasting Inc., 58 IW 5053is equallysignificant. The ‘lingering effects’ (of past discrimination) theoryas well as the standard of strictest scrutiny of race-consciousprogrammes have both been abandoned. Suffice it to note that nosingle uniform pattern of thought can be discerned from thesedecisions. Ideas appear to be still in the process of evolution.

Question 2(a):

Whether clause (4) of Article 16 is an exception to clause(1)?

741. In Balaji, 1963 Supp 1 SCR 439 it was held — “there is nodoubt that Article 15(4) has to be read as proviso or an exceptionto Articles 15(1) and 29(2)”. It was observed that Article 15(4)was inserted by the First Amendment in the light of the decision inChampakam, 1951 SCR 525 with view to remove the defectpointed out by this court namely, the absence of provision inArticle 15 corresponding to clause (4) of Article 16. FollowingBalaji, 1963 Supp 1 SCR 439, it was held by another ConstitutionBench (by majority) in Devadasan, (1964) 4 SCR 680 — “furtherthis Court has already held that clause (4) of Article 16 is by wayof proviso or an exception to clause (1)”. Subba Rao, J, however,opined in his dissenting opinion that Article 16(4) is not an exceptionto Article 16(1) but that it is only an emphatic way of stating theprinciple inherent in the main provision itself. Be that as it may,since the decision in Devadasan, (1964) 4 SCR 680, it wasassumed by this Court that Article 16(4) is an exception to Article16(1). This view, however, received severe setback from themajority decision in State of Kerala v. N.M. Thomas, (1976) 2SCC 310. Though the minority (H.R. Khanna and A.C. Gupta,JJ) stuck to the view that Article 16(4) is an exception, the majority

(Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article16(4) is not an exception to Article 16(1) but that it was merely anemphatic way of stating principle implicit in Article 16(1). (Beg,J took slightly different view which it is not necessary to mentionhere.) The said four learned Judges — whose views have beenreferred to in para 713 — held that Article 16(1) being facet ofthe doctrine of equality enshrined in Article 14 permits reasonableclassification just as Article 14 does. In our respectful opinion, theview taken by the majority in Thomas, (1976) 2 SCC 310, is thecorrect one. We too believe that Article 16(1) does permitreasonable classification for ensuring attainment of the equalityof opportunity assured by it. For assuring equality of opportunity,it may well be necessary in certain situations to treat unequallysituated persons unequally. Not doing so, would perpetuate andaccentuate inequality.Article 16(4) is an instance of suchclassification, put in to place the matter beyond controversy. The“backward class of citizens” are classified as separate categorydeserving special treatment in the nature of reservation ofappointments/posts in the services of the State. Accordingly, wehold that clause (4) of Article 16 is not exception to clause (1) ofArticle 16. It is an instance of classification implicit in and permittedby clause (1). The speech of Dr Ambedkar during the debate ondraft Article 10(3) [corresponding to Article 16(4)] in theConstituent Assembly — referred to in para 693 — shows that asubstantial number of members of the Constituent Assemblyinsisted upon “provision (being) made for the entry of certaincommunities which have so far been outside the administration”,and that draft clause (3) was put in in recognition and acceptanceof the said demand. It is provision which must be read alongwith and in harmony with clause (1). Indeed, even without clause(4), it would have been permissible for the State to have evolvedsuch classification and made provision for reservation ofappointments/posts in their favour. Clause (4) merely puts thematter beyond any doubt in specific terms.

742. Regarding the view expressed in Balaji, 1963 Supp 1 SCR439 and Devadasan, (1964) 4 SCR 680, it must be rememberedthat at that time it was not yet recognised by this Court that Article16(1) being facet of Article 14 does implicitly permit classification.Once this feature was recognised the theory of clause (4) being

DEF

an exception to clause (1) became untenable. It had to be acceptedthat clause (4) is an instance of classification inherent in clause(1). Now, just as Article 16(1) is facet or an elaboration of theprinciple underlying Article 14, clause (2) of Article 16 is also anelaboration of facet of clause (1). If clause (4) is an exceptionto clause (1) then it is equally an exception to clause (2). Questionthen arises, in what respect if clause (4) an exception to clause(2), if ‘class’ does not means ‘caste’. Neither clause (1) nor clause(2) speak of class. Does the contention mean that clause (1) doesnot permit classification and therefore clause (4) is an exceptionto it. Thus, from any point of view, the contention of the petitionershas no merit.

Question 2(c):

Whether Article 16(4) is exhaustive of the very concept ofreservations?

744. The aspect next to be considered is whether clause (4) isexhaustive of the very concept of reservations? In other words,the question is whether any reservations can be provided outsideclause (4) i.e., under clause (1) of Article 16. There are two viewson this aspect. On fuller consideration of the matter, we are ofthe opinion that clause (4) is not, and cannot be held to be,exhaustive of the concept of reservations; it is exhaustive ofreservations in favour of backward classes alone. Merely because,one form of classification is stated as specific clause, it does notfollow that the very concept and power of classification implicit inclause (1) is exhausted thereby. To say so would not be correct inprinciple. But, at the same time, one thing is clear. It is in veryexceptional situations, — and not for all and sundry reasons —that any further reservations, of whatever kind, should be providedunder clause (1). In such cases, the State has to satisfy, if calledupon, that making such provision was necessary (in publicinterest) to redress specific situation. The very presence ofclause (4) should act as damper upon the propensity to createfurther classes deserving special treatment. The reason for sayingso is very simple. If reservations are made both under clause (4)as well as under clause (1), the vacancies available for freecompetition as well as reserved categories would be acorrespondingly whittled down and that is not reasonable thingto do.

Whether clause (1) of Article 16 does not permit anyreservations?

745. For the reasons given in the preceding paragraphs, we mustreject the argument that clause (1) of Article 16 permits onlyextending of preference, concessions and exemptions, but doesnot permit reservation of appointments/posts. As pointed out inpara 733 the argument that no reservations can be made underArticle 16(1) is really inspired by the opinion of Powell, J in Bakke,57 L Ed 2d 750. But in the very same paragraph we had pointedout that it is not the unanimous opinion of the Court. In principle,we see no basis for acceding to the said contention. What kind ofspecial provision should be made in favour of particular class isa matter for the State to decide, having regard to the facts andcircumstances of given situation — subject, of course, to theobservations in the preceding paragraph.”

(emphasis supplied)

(ii) The opinion expressed by P.B. Sawant, J. (for himself) isextracted hereunder:

“428. With the majority decision of this Court in State of Keralav. N.M. Thomas, (1976) 2 SCC 310, having confirmed the minorityopinion of Subba Rao, J in T. Devadasan v. Union of India,(1964) 4 SCR 680, the settled judicial view is that clause (4) ofArticle 16 is not an exception to clause (1) thereof, but is merelyan emphatic way of stating what is implicit in clause (1).

429. Equality postulates not merely legal equality but also realequality. The equality of opportunity has to be distinguished fromthe equality of results. The various provisions of our Constitutionand particularly those of Articles 38, 46, 335, 338 and 340 togetherwith the Preamble, show that the right to equality enshrined in ourConstitution is not merely formal right or vacuous declaration.It is positive right, and the State is under an obligation to undertakemeasures to make it real and effectual. …..

430.If, however, clause (4) is treated as an exception to clause(1), an important but unintended consequence may follow. Therewould be no other classification permissible under clause (1), andclause (4) would be deemed to exhaust all the exceptions that canbe made to clause (1). It would then not be open to make provision

Afor reservation in services in favour of say, physically handicapped,army personnel and freedom fighters and their dependents, projectaffected persons, etc. The classification made in favour of personsbelonging to these categories is not hit by clause (2). Apart fromthe fact that they cut across all classes, the reservations in theirfavour are made on considerations other than that of backwardnessBwithin the meaning of clause (4). Some of them may belong to thebackward classes while some may belong to forward classes orclasses which have an adequate representation in the services.They are, however, more disadvantaged in their own class whetherbackward or forward. Hence, even on this ground it will have toCbe held that Article 16(4) carves out from various classes forwhom reservation can be made, specific class, viz., the backwardclass of citizens, for emphasis and to put things beyond doubt.

431. For these very reasons, it will also have to be held that so faras “backward classes” are concerned, the reservations for themDcan only be made under clause (4) since they have been takenout from the classes for which reservation can be made underArticle 16(1). Hence, Article 16(4) is exhaustive of all thereservations that can be made for the backward classes as such,but is not exhaustive of reservations that can be made for classesother than backward classes under Article 16(1). So also, noEreservation can be made under Article 16(4) for classes otherthan “backward classes” implicit in that article. They have to lookfor their reservations, to Article 16(1).

432. It may be added here that reservations can take variousforms whether they are made for backward or other classes.FThey may consist of preferences, concessions, exemptions, extrafacilities etc. or of an exclusive quota in appointments as in thepresent case. When measures other than an exclusive quota forappointments are adopted, they form part of the reservationmeasures or are ancillary to or necessary for availing of theGreservations. Whatever the form of reservation, the backwardclasses have to look for them to Article 16(4) and the other classesto Article 16(1).”

(emphasis supplied)

(iii) The opinion of S. Ratnavel Pandian, J. (for himself) is extractedHhereunder:

“168. In my view, clause (4) of Article 16 is not an exception toArticle 16(1) and (2) but it is an enabling provision and permissivein character overriding Article 16(1) and (2); that it is source ofreservation for appointments or posts in the Services so far as thebackward class of citizens is concerned and that under clause (1)of Article 16 reservation for appointments or posts can be madeto other sections of the society such as physically handicappedetc.

169. There is complete unanimity of judicial opinion of this Courtthat under Article 16(4) the State can make adequate provisionsfor reservations of appointments or posts in favour of any backwardclass of citizens, if in the opinion of the State such ‘backwardclass’ is not adequately represented in the State. In fact in B.Venkataramana v. State of Madras, AIR 1951 SC 229, seven-Judge Bench of this Court held that “[r]eservation of posts infavour of any backward class of citizens cannot, therefore, beregarded as unconstitutional”. Not single decision of this Courthas cast slightest shadow of doubt on the constitutional validity ofreservation. Therefore, in view of the above position of law, I amnot inclined to embark upon an elaborate discussion on this questionany further.”20. On behalf of the State of Punjab, it was argued that preferentialtreatment given by the State to certain Scheduled Castes and ScheduledTribes does not violate Article 14 but brings about proportional equality.The classification made based on intelligible differentia is inter-sebackwardness and share in population vis-à-vis proportion ofrepresentation in Government services. The differentia bears reasonablenexus with the object sought to be achieved. Those who are unequalclass of Scheduled Caste and Scheduled Tribe can be given the benefitof reservation to ensure that benefit reaches to them as guaranteedunder Article 14. For this purpose, reliance has been placed on thefollowing decisions:

(i) In Marri Chandra Shekhar Rao v. Dean, Seth G.S. MedicalCollege & Ors., (1990) 3 SCC 130, the Court held:

“8. Article 15 of the Constitution prohibits discrimination on groundsof religion, race, caste, sex or place of birth. Article 15(4), however,enjoins that nothing in that article or in clause (2) of Article 29 ofthe Constitution shall prevent the State from making any special

Aprovision of the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and theScheduled Tribes. Therefore, reservation in favour of ScheduledTribes or Scheduled Castes for the purpose of advancement ofsocially or educationally backward citizens to make them equalwith other segments of community in educational or job facilitiesBis the mandate of the Constitution. Equality is the dictate of ourConstitution. Article 14 ensures equality in its fullness to all ourcitizens. State is enjoined not to deny to any persons equality beforelaw and equal protection of the law within the territory of India.Where it is necessary, however, for the purpose of bringing aboutCreal equality of opportunity between those who are unequals,certain reservations are necessary and these should be ensured.Equality under the Constitution is dynamic concept which mustcover every process of equalisation. Equality must become livingreality for the large masses of the people. Those who are unequal,in fact, cannot be treated by identical standards; that may beDequality in law but it would certainly not be real equality. Existenceof equality of opportunity depends not merely on the absence ofdisabilities but on presence of abilities. It is not simply matter oflegal equality. De jure equality must ultimately find its raison d’etrein de facto equality. The State must, therefore, resort toEcompensatory State action for the purpose of making people whoare factually unequal in their wealth, education or socialenvironment, equal in specified areas. It is necessary to take intoaccount de facto inequalities which exist in the society and totake affirmative actionby way of giving preference and reservationto the socially and economically disadvantaged persons or inflictingFhandicaps on those more advantageously placed, in order to bringabout real equality. Such affirmative action though apparentlydiscriminatory is calculated to produce equality on broader basisby eliminating de facto inequalities and placing the weaker sectionsof the community on footing of equality with the stronger andGmore powerful sections so that each member of the community,whatever is his birth, occupation or social position may enjoy equalopportunity of using to the full his natural endowmentsof physique,of character and of intelligence. In this connection, reference maybe made to the observations of this Court in Pradeep Jain v.Union of India, (1984) 3 SCC 654.”

(emphasis supplied)

(ii) In Dr. Pradeep Jain & Ors. v. Union of India & Ors.,(1984) 3 SCC 654, the following observations were made:

“13. ….. What the famous poet William Blake said graphically isvery true, namely, “One law for the Lion and the Ox is oppression”.Those who are unequal, in fact, cannot be treated by identicalstandards; that may be equality in law but it would certainly notbe real equality. It is, therefore, necessary to take into account defacto inequalities which exist in the society and to take affirmativeaction by way of giving preference to the socially and economicallydisadvantaged persons or, inflicting handicaps on those moreadvantageously placed, in order to bring about real equality. ….”

(emphasis supplied)

(iii) In Union of India & Ors. v. Rakesh Kumar & Ors., (2010)4 SCC 50, it was opined:

“37. It is well-accepted premise in our legal system that ideassuch as “substantive equality” and “distributive justice” are at theheart of our understanding of the guarantee of “equal protectionbefore the law”. The State can treat unequals differently with theobjective of creating level-playing field in the social, economicand political spheres. The question is whether “reasonableclassification” has been made on the basis of intelligible differentiaand whether the same criteria bears direct nexus with legitimategovernmental objective. When examining the validity of affirmativeaction measures, the enquiry should be governed by the standard“”of proportionality rather than the standard of strict scrutiny.Ofcourse, these affirmative action measures should be periodicallyreviewed and various measures modified or adapted from time totime in keeping with the changing social and economic conditions.Reservation of seats in panchayats is one such affirmative actionmeasure enabled by Part IX of the Constitution.”

(emphasis supplied)

(iv) In Dega Venkata Harsha Vardhan & Ors. v. Akula VentakaHarshavardhan & Ors., (2019) 12 SCC 735, similar observations weremade.

21. The object-oriented approach has to be adopted as observedin S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001 SC 2707,

AT.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002)8 SCC 481, Sobha Hymavathi Devi v. Setti Gangadhara Swamy &Ors., AIR 2005 SC 800. In M. Nagaraj, the following observationswere made:

“122. We reiterate that the ceiling limit of 50%, the concept ofBcreamy layer and the compelling reasons, namely, backwardness,inadequacy of representation and overall administrative efficiencyare all constitutional requirements without which the structure ofequality of opportunity in Article 16 would collapse.”

In Re. Application of Creamy Layer Concept to theCScheduled Castes:

22. (a) In Indra Sawhney, within those identified as backwardclasses, exclusion had been permitted to those who are socially andeducationally advanced. B.P. Jeevan Reddy, J. (for himself and otherthree Judges) observed thus:

“792. …..While we agree that clause (4) aims at groupbackwardness, we feel that exclusion of such socially advancedmembers will make the ‘class’ truly backward class and wouldmore appropriately serve the purpose and object of clause (4).(This discussion is confined to Other Backward Classes only andhas no relevance in the case of Scheduled Tribes and ScheduledECastes).

795. We see no reason to qualify or restrict the meaning of theexpression “backward class of citizens” by saying that it meansthose other backward classes who are situated similarly toFScheduled Castes and/or Scheduled Tribes. As pointed out in para786, the relevant language employed in both the clauses is different.Article 16(4) does not expressly refer to Scheduled Castes orScheduled Tribes; if so, there is no reason why we should treattheir backwardness as the standard backwardness for all thoseclaiming its protection. As matter of fact, neither the severalGcastes/groups/tribes within the Scheduled Castes and ScheduledTribes are similarly situated nor are the Scheduled Castes andScheduled Tribes similarly situated. If any group or class is situatedsimilarly to the Scheduled Castes, they may have case forinclusion in that class but there seems to be no basis either in factor in principle for holding that other classes/groups must be situated

similarly to them for qualifying as backward classes. There is nowarrant to import any such priori notions into the concept ofOther Backward Classes. At the same time, we think it appropriateto clarify that backwardness, being relative term, must in thecontext be judged by the general level of advancement of theentire population of the country or the State, as the case may be.More than this, it is difficult to say. How difficult is the process ofascertainment of backwardness would be known if one perusesChapters III and XI of Volume I of the Mandal Commission Reportalong with Appendixes XII and XXI in Volume II. It must be leftto the Commission/Authority appointed to identify the backwardclasses to evolve proper and relevant criteria and test the severalgroups, castes, classes and sections of people against that criteria.If, in any case, particular caste or class is wrongly designated ornot designated as backward class, it can always be questionedbefore court of law as well. We may add that relevancy of thecriteria evolved by Mandal Commission (Chapter XI) has not beenquestioned by any of the counsel before us. Actual identificationis different matter, which we shall deal with elsewhere.

796.-797. We may now summarise our discussion under QuestionNo. 3. (a) caste can be and quite often is social class in India.If it is backward socially, it would be backward class for thepurposes of Article 16(4). Among non-Hindus, there are severaloccupational groups, sects and denominations, which for historicalreasons are socially backward. They too represent backward socialcollectivities for the purposes of Article 16(4). (b) Neither theconstitution nor the law prescribe the procedure or method ofidentification of backward classes. Nor is it possible or advisablefor the court to lay down any such procedure or method. It mustbe left to the authority appointed to identify. It can adopt suchmethod/procedure as it thinks convenient and so long as its surveycovers the entire populace, no objection can be taken to it.Identification of the backward classes can certainly be done withreference to castes among, and along with, other groups, classesand sections of people. One can start the process with the castes,wherever they are found, apply the criteria (evolved for determiningbackwardness) andfind out whether it satisfies the criteria. If itdoes — what emerges is “backward class of citizens” withinthe meaning of and for the purposes of Article 16(4). Similar process

ABC

Acan be adopted in the case of other occupational groups,communities and classes, so as to cover the entire populace. Thecentral idea and overall objective should be to consider all availablegroups, sections and classes in society. Since caste represents anexisting, identifiable social group/class encompassing anoverwhelmingmajority of the country’s population, one can wellBbegin with it and then go to other groups, sections and classes. (c)It is not necessary for class to be designated as backwardclass that it is situated similarly to the Scheduled Castes/ScheduledTribes. (d) ‘Creamy layer’ can be, and must be, excluded. (e) It isnot correct to say that the backward class contemplated by ArticleC16(4) is limited to the socially and educationally backward classesreferred to in Article 15(4) and Article 340. It is much wider. Thetest or requirement of social and educational backwardness cannotbe applied to Scheduled Castes and Scheduled Tribes, whoindubitably fall within the expression “backward class of citizens”.The accent in Article 16(4) appears to be on social backwardness.DOf course, social, educational and economic backwardness areclosely intertwined in the Indian context. The classes contemplatedby Article 16(4) may be wider than those contemplated by Article15(4).”

(emphasis supplied)

23. In Jarnail Singh, it was held that the application of the creamylayer concept to Articles 341 and 342 does not in any way tinker withthe Presidential List. Following discussion was made:

“26. The whole object of reservation is to see that BackwardFClasses of citizens move forward so that they may march hand inhand with other citizens of India on an equal basis. This will notbe possible if only the creamy layer within that class bag all thecoveted jobs in the public sector and perpetuate themselves, leavingthe rest of the class as backward as they always were. This beingthe case, it is clear that when court applies the creamy layerGprinciple to Scheduled Castes and Scheduled Tribes, it does not inany manner tinker with the Presidential List under Articles 341 or342 of the Constitution of India. The caste or group or sub-groupnamed in the said List continues exactly as before. It is only those-persons within that group or subgroup, who have come out ofHuntouchability or backwardness by virtue of belonging to the

creamy layer, who are excluded from the benefit of reservation.Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. Itis only when it comes to the application of the reservation principleunder Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation.

27. We do not think it necessary to go into whether Parliamentmay or may not exclude the creamy layer from the PresidentialLists contained under Articles 341 and 342. Even on the assumptionthat Articles 341 and 342 empower Parliament to exclude the-creamy layer from the groups or subgroups contained within theseLists, it is clear that constitutional courts, applying Articles 14 and16 of the Constitution to exclude the creamy layer cannot be saidto be thwarted in this exercise by the fact that persons stated tobe within particular group or sub-group in the Presidential Listmay be kept out by Parliament on application of the creamy layerprinciple. One of the most important principles that has beenfrequently applied in constitutional law is the doctrine of harmoniousinterpretation. When Articles 14 and 16 are harmoniouslyinterpreted along with other Articles 341 and 342, it is clear thatParliament will have complete freedom to include or excludepersons from the Presidential Lists based on relevant factors.Similarly, constitutional courts, when applying the principle ofreservation, will be well within their jurisdiction to exclude the-creamy layer from such groups or subgroups when applying theprinciples of equality under Articles 14 and 16 of the Constitutionof India. We do not agree with Balakrishnan, C.J.’s statement inAshoka Kumar Thakur, (2008) 6 SCC 1 that the creamy layerprinciple is merely principle of identification and not principleof equality.

28. Therefore, when Nagaraj, (2006) 8 SCC 212, applied thecreamy layer test to Scheduled Castes and Scheduled Tribes inexercise of application of the basic structure test to uphold theconstitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s powerunder Article 341 or Article 342. We are, therefore, clearly of theopinion that this part of the judgment does not need to be revisited,and consequently, there is no need to refer Nagaraj, (2006) 8

ASCC 212 to seven-Judge Bench. We may also add at this juncturethat Nagaraj, (2006) 8 SCC 212 is unanimous judgment of fivelearned Judges of this Court which has held sway since the year2006. This judgment has been repeatedly followed and applied bya number of judgments of this Court, namely:

B28.1.Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC454(two-Judge Bench) (see paras 17 and 18).

28.2.Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC467(two-Judge Bench) (see paras 10, 50, and 67).

28.3.U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCCC1, (two-Judge Bench) [see paras 61, 81(ix), and 86].

28.4.S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292,(two-Judge Bench) (see paras 18, 19, and 36).

28.5.Central Bank of India v. SC/ST Employees Welfare Assn.,(2015) 12 SCC 308 (two-Judge Bench) (see paras 9 and 26).

D28.6.Suresh Chand Gautam v. State of U.P., (2016) 11 SCC113 (two-Judge Bench) (see paras 2 and 45).

28.7.B.K. Pavitra v. Union of India, (2017) 4 SCC 620 (two-Judge Bench) (see paras 17 to 22).”

(emphasis supplied)

24. Reliance has been placed upon Ashoka Kumar Thakur v.Union of India and Ors., (2008) 6 SCC 1, to hammer home the pointthat the decision in Indra Sawhney (supra) was limited to other backwardclasses and not to Scheduled Castes. It was observed:F

“395.In Sawhney (I), 1992 Supp (3) SCC 217, the entirediscussion was confined only to Other Backward Classes. Similarly,in the instant case, the entire discussion was confined only toOther Backward Classes. Therefore, I express no opinion withregard to the applicability of exclusion of creamy layer to theGScheduled Castes and Scheduled Tribes.

633. In Indra Sawhney (1), 1992 Supp (3) SCC 217, creamylayer exclusion was only in regard to OBC. Reddy, J. speakingfor the majority at SCC p. 725, para 792, stated that “[t]hisdiscussion is confined to Other Backward Classes only and hasHno relevance in the case of Scheduled Tribes and Scheduled

Castes”. Similarly, in the instant case, the entire discussion wasconfined only to Other Backward Classes. Therefore, I expressno opinion with regard to the applicability of exclusion of creamy”layer to the Scheduled Castes and Scheduled Tribes.

(emphasis supplied)

In Ashoka Kumar (supra), no opinion was expressed concerningthe creamy layer concept to Scheduled Castes and Scheduled Tribes.However, now Jarnail Singh (supra) is crystal clear in that regard andlays down that it can be applied to Scheduled Castes and ScheduledTribes, and that would not amount to tinkering with lists under Articles341 and 342. The question involved in the present matter is ofclassification and thereby preferential treatment without depriving anycaste benefit of reservation.

25. It was argued that E.V. Chinnaiah is contrary to other bindingdecisions in K.C. Vasanth Kumar and N.M. Thomas.

(a) In K.C. Vasanth Kumar decision in M. R. Balaji wasdistinguished. It was held that classification between backward and morebackward is necessary to help more backward classes. The sub-classification was held to be permissible to help those classes who aredefinitely far behind the advanced classes, but ahead of the very backwardclasses. Following opinion was expressed:

“55. It was also observed in Balaji, AIR 1963 SC 649, that thesub-classification made by the reservation order between backwardclasses and more backward classes did not appear to be justifiedunder Article 15(4) as it appeared to be measure devised tobenefit all the classes of citizens who were less advanced whencompared with the most advanced classes in the State, and thatwas not the scope of Article 15(4). result of the sub-classificationwas that nearly 90 per cent of the population of the State wastreated as backward. The propriety of such course may beopen to question on the facts of each case, but we do not see whyon principle there cannot be classification into backward classesand more backward classes, if both classes are not merely littlebehind, but far far behind the most advanced classes.In fact sucha classification would be necessary to help the more backwardclasses; otherwise those of the backward classes who might be alittle more advanced than the more backward classes might walk

Aaway with all the seats, just as, if reservation was confined to themore backward classes and no reservation was made to the slightlymore advanced backward classes, the most advanced classeswould walk away with all the seats available for the generalcategory leaving none for the backward classes. All that we can-say is that subclassification may be permissible if there are classesBof people who are definitely far behind the advanced classes butahead of the very backward classes.”

(emphasis supplied)

(b) In N.M. Thomas, it was observed that there could be noCobjection to further classification within class. It was held that menare born different, and some sort of differential treatment is required toachieve proportional equality. The Court opined thus:

“82.The word “caste” in Article 16(2) does not include “scheduledcaste”. The definition of “Scheduled Castes” in Article 366(24)Dmeans

such castes, races or tribes or parts of or groups within suchcastes, races, or tribes as are deemed under Article 341 to beScheduled Castes for the purposes of this Constitution.

This shows that it is by virtue of the notification of the PresidentEthat the Scheduled Castes come into being. Though the membersof the Scheduled Castes are drawn from castes, races or tribes,they attain new status by virtue of the Presidential notification.Moreover, though the members of tribe might be included inScheduled Castes, tribe as such is not mentioned in Article 16(2).

F83.A classification is reasonable if it includes all persons who aresimilarly situated with respect to the purpose of the law. In otherwords, the classification must be founded on some reasonableground which distinguishes persons who are grouped together andthe ground of distinction must have rational relation to the objectsought to be achieved by the rule or even the rules in question.ItGis mistake to assume priori that there can be no classificationwithin class, say, the lower division clerks. If there are intelligibledifferentia which separates group within that class from therest and that differentia have nexus with the object of classification,I see no objection to further classification within the class. It isHno doubt paradox that though in one sense classification brings

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

****** ***

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

169. Thus in view of these provisions the members of thescheduled castes and the scheduled tribes have been given aspecial status in the Constitution and they constitute class bythemselves. That being the position it follows that they do not fallwithin the purview of Article 16(2) of the Constitution whichprohibits discrimination between the members of the same caste.If, therefore, the members of the scheduled castes and thescheduled tribes are not castes, then it is open to the State tomake reasonable classification in order to advance or lift theseclasses so that they may be able to be properly represented in theservices under the State. This can undoubtedly be done underArticle 16(1) of the Constitution.”

(emphasis supplied)

26. It was argued that the class of citizens cannot be treated to besocially and educationally backward till perpetuity those who have comeup must be excluded like the creamy layer. The question arises forexclusion by courts of such class. The power of the court was upheld inJarnail Singh. To take home the submission, reliance has been placedon Jagdish Negi, President, Uttarakhand Jan Morcha, in which itwas held as under:

“9. It is, therefore, obvious that residents of hills and Uttarakhandareas were treated as socially and educationally backward classes

of citizens entitled to benefit under Articles 15(1), 15(4) and 29(2)of the Constitution in the year 1974 when this Court decided thatcase. But simply on this basis it cannot be urged that this class ofcitizens could be condemned as socially and educationallybackward class of citizens till eternity, however much they maylike to be stigmatized as educationally and socially backward classof citizens. This class is always required to be judged in the lightof the existing fact situation at given point of time. There cannotbe class of citizens which can be treated perpetually to be asocially and educationally backward class of citizens. Every citizenhas the right to develop socially and educationally. …….

14.It is, however, not possible to agree with the contention oflearned Senior Counsel for the petitioners that such reservationshould continue without any limitation or there cannot be periodicalreview about the said reservation policy. ….. Consequently thequestion whether given category of citizens continues to besocially and educationally backward class of citizens at givenpoint of time or not has to be left to the State concerned for itsobjective decision from time to time. The State cannot be boundin perpetuity to treat such classes of citizens for all times as sociallyand educationally backward classes of citizens. The principle of“once mortgage always mortgage” cannot be pressed intoservice for submitting that once backward class of citizens,always such backward class. In other words, it is open to theState to review the situation from time to time and to decidewhether given class of citizens that has earned the benefit of 27per cent reservation as socially and educationally backward class

of citizens has continued to form part of that category or hasceased to fall in that category. Thereby it cannot be said that thefirst respondent is adopting policy which is contrary to theconstitutional scheme of reservation. Within the four corners ofArticle 15(4) or Article 16(4) such an exercise cannot be said tobe unauthorised. Such an exercise has been upheld by theConstitution Bench of this Court in Indra Sawhney v. Union ofIndia, 1992 Supp (3) SCC 217.”

(emphasis supplied)

In Re. Effect of insertion of Article 342A:

27. Article 341 is extracted hereunder:

“341. Scheduled Castes.—(1) The President may with respectto any State or Union Territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or groups withincastes, races or tribes which shall for the purposes of thisConstitution be deemed to be Scheduled Castes in relation to thatState or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from thelist of Scheduled Castes specified in notification issued underclause (1) any caste, race or tribe or part of or group within anycaste, race or tribe, but save as aforesaid notification issuedunder the said clause shall not be varied by any subsequentnotification.”

Articles 342 and 342A deal with Scheduled Tribes and sociallyand educationally backward classes respectively. They are extractedhereunder:

“342. Scheduled Tribes.—(1) The President may with respectto any State or Union territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the tribes or tribal communities or parts of or groups withintribes or tribal communities which shall for the purposes of thisConstitution be deemed to be Scheduled Tribes in relation to thatState or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list ofScheduled Tribes specified in notification issued under clause(1) any tribe or tribal community or part of or group within anytribe or tribal community, but save as aforesaid notification issuedunder the said clause shall not be varied by any subsequentnotification.

342A. Socially and educationally backward classes.— (1)The President may with respect to any State or Union territory,and where it is State, after consultation with the Governor thereof,by public notification, specify the socially and educationallybackward classes which shall for the purposes of this Constitutionbe deemed to be socially and educationally backward classes inrelation to that State or Union territory, as the case may be.

A(2) Parliament may by law include in or exclude from the CentralList of socially and educationally backward classes specified in anotification issued under clause (1) any socially and educationallybackward class, but save as aforesaid notification issued underthe said clause shall not be varied by any subsequent notification.”

BIt is provided in Article 341(1) that the President may specify thecastes, races or tribes or parts of or groups within castes, races or tribesin relation to State or Union territory. As per Article 341(2), theParliament has the power to include or exclude from the list of ScheduledCastes. Article 366 defines ‘Scheduled Castes’, ‘Scheduled Tribes’ and‘Socially and Educationally Backward Classes’, thus:C“366. Definitions.—In this Constitution, unless the contextotherwise requires, the following expressions have themeanings hereby respectively assigned to them, that is tosay—

D(24) “Scheduled Castes” means such castes, races or tribesor parts of or groups within such castes, races or tribes asare deemed under article 341 to be Scheduled Castes forthe purposes of this Constitution;”

(25) “Scheduled Tribes” means such tribes or tribalEcommunities or parts of or groups within such tribes ortribal communities as are deemed under Article 342 to beScheduled Tribes for the purposes of this Constitution;

(26C) “socially and educationally backward classes” meanssuch backward classes as are so deemed under article 342AFfor the purposes of this Constitution;”

Article 342A has been inserted by the Constitution (One Hundredand Second Amendment) Act, 2018, w.e.f. 14.8.2018. In Indra Sawhney,the question of reservation of socially and educationally backward classeswas involved. Article 342A’s provisions are pari materia to Articles341and 342 dealing with Scheduled Castes and Scheduled Tribes. UnderGArticle 342A the President is empowered to issue public notificationwith respect to socially, and educationally backward classes which shallfor the Constitution be deemed to be socially and educationally backwardclasses in relation to that State or Union territory and the Parliamentmay by law has the power to include in or exclude from the Central listHof socially and educationally backward class. The power of variationcan be exercised only once. When we consider the definition of ‘sociallyand educationally backward classes’ as defined in Article 366(26C), itmeans such backward classes as are so deemed under Article 342A forthe purposes of the Constitution. In order to be recognised, it is necessarythat socially and educationally class to find place in the notificationissued under Article 342A(1). The provisions of Articles 341, 342, and342A are pari materia, and the reservation for socially and educationallybackward classes was the subject matter under consideration in IndraSawhney. Thus, the question arises how different opinions can beexpressed with respect to Scheduled Castes, Scheduled Tribes, andsocially and educationally backward classes for the purposes of theclassification. The provisions of Article 16(4) and Article 342A indicatethat it would not be permissible to adopt different criteria for ScheduledCastes, Scheduled Tribes, and socially and educationally backwardclasses. The authoritative pronouncement is required with respect to theeffect of aforesaid provisions of the Constitution and whether sub-classification is permissible only with respect to the socially andeducationally backward classes covered under Article 342A read withArticle 366(26C) and not with respect to Scheduled Castes andScheduled Tribes covered under similar provisions, i.e., under Articles341 and 342 read with Article 366(24) and 366(25) respectively. Thequestion of immense public importance arises in view of the insertion ofArticle 342A. When we consider Indra Sawhney, permitting suchclassification of socially and educationally backward class, and provisionsof Articles 341, 342, and 342A are pari materia, the Court is required tohave fresh look on the decision rendered in E.V. Chinnaiah. In thespirit of constitutional provisions, the question is required to be re-examined authoritatively by this Court being of immense publicimportance. Thus, the case is required to be heard by larger Benchthan the one which decided E.V. Chinnaiah.

Whether sub-classification amounts to exclusion underArticle 341(2)?

28. Whether sub-classification amounts to exclusion? What isprovided under Articles 341(2), 342(2), and 342A(2) with respect toScheduled Castes, Scheduled Tribes, and socially and educationallybackward classes in the Central list, the Parliament has the powerconcerning inclusion or exclusion. Once there is exclusion, there is nopower to re-include. The Parliament has the power to include in or exclude

Afrom the Central list of Scheduled Castes, Scheduled Tribes, and sociallyand educationally backward classes.

29. The question arising for consideration is whether sub-classification made or preferential treatment within the class of ScheduledCastes, Scheduled Tribes and socially and educationally backward classesBcan be said to be an exercise of inclusion or exclusion particularly whenthe other castes in the list of Scheduled Caste persons are not deprivedof the benefit of reservation in totality. All the castes included in the listof Scheduled Caste are given the benefit of reservation as perrepresentation in service, but only specific percentage fixed forpreferential treatment to caste/class which was not able to enjoy theCbenefit of reservation on account of their being more backward withinthe backward classes of Scheduled Castes. The preferential treatmentwould not tantamount to excluding other classes as total deprivation causedto any of the castes in the list of Scheduled Caste under Article 341(2).Caste is nothing but class. It is the case of classification to provideDbenefit to all and to those deprived of the benefit of reservation, beingthe poorest of the poor. Whether the action based on intelligible differentiato trickle down the benefit can be said to be violative of Articles 14 and16 of the Constitution and whether sub-classification can be said to bean act of inclusion or exclusion particularly when various reports indicatingthat there is inequality inter se various castes included within the list ofEScheduled Castes. They do not constitute homogenous class have beenrelied upon. Based on the report and to give adequate representation tothose who continue to remain the most backward of the downtroddenclass, the provisions containing certain percentage of preferentialtreatment subject to availability without depriving others in the list wereFmade.

30. In the Speech made by Dr. Ambedkar in the ConstituentAssembly regarding the enactment of Articles 341 and 342, he statedthat the object is to eliminate any kind of political factor in the matter ofthe disturbance in the schedule so published by the President. The sameGhas been referred to in Milind thus:

“14. In the debates of Constituent Assembly (Official Report,Vol. 9) while moving to add new Articles 300-A and 300-B afterArticle 300 (corresponding to Articles 341 and 342 of theConstitution), Dr B.R. Ambedkar explained as follows:

“The object of these two articles, as I stated, was toeliminate the necessity of burdening the Constitution with longlists of Scheduled Castes and Scheduled Tribes. It is now proposedthat the President in consultation with the Governor or ruler of aState should have the power to issue general notification in theGazette specifying all the castes and tribes or groups thereofdeemed to be Scheduled Castes and Scheduled Tribes for thepurpose of these privileges which have been defined for them inthe Constitution. The only limitation that has been imposed is this:that once notification has been issued by the President, which,undoubtedly, he will be issuing in consultation with and on theadvice of the Government of each State, thereafter, if anyelimination was to be made from the list so notified or any additionwas to be made that must be made by Parliament and not by thePresident. The object is to eliminate any kind of political factorshaving play in the matter of the disturbance in the schedule”so published by the President.

(emphasis supplied)

31. The law is settled that once the President has issued anotification specifying the list included in the Scheduled under Article341(1), the Parliament is competent to make the variation in thenotification as provided under Article 341(2) from the following decisions:

(i) B. Basavalingappa v. D. Munichinnappa, (1965) 1 SCR316, it was held that the power was given to the Parliament to modifythe notification and any subsequent notification shall not vary same; hence,the making of notification by the President is final for all times exceptfor modification by law as provided by clause (2).

(ii) In Bhaiya Lal v. Harikishan Singh (1965) 2 SCR 877, it wasobserved that before issuing public notification under Article 341(1),an elaborate enquiry is required to be made. As result, thereof socialjustice is sought to be done to the castes, races, or tribes. There can bespecifications by reference to different areas in the State. Educationaland social backwardness may not be uniform or of the same intensity inthe whole of the State.

(iii) In Srish Kumar Choudhury v. State of Tripura & Ors.,(1990) Supp. SCC 220, it was opined that the State Government mayinitiate appropriate proposals for modification in case the claim is genuineand tenable.

A(iv) In Palghat Jilla Thandan Samudhaya Samrakshna Samithi& Anr. v. State of Kerala & Anr., (1994) 1 SCC 359, it was held that noenquiry could be held or evidence let in to determine whether or notsome particular caste falls within it or outside it.

(v) In Milind, law to similar effect was laid down whether aBparticular Scheduled Caste or Scheduled Tribe in the list is to bedetermined looking to them as they are. The Article does not permitanyone to seek modification by leading evidence that other caste or tribeis part of the castes or tribes mentioned in the list. No purpose would beserved to look at gazetteers or glossaries for establishing the same. It isnot open to the court to modify or vary the order.C

(vi) In Bir Singh, it was held that any expansion/deletion of thelist of Scheduled Castes/Scheduled Tribes by any authority exceptParliament would be against the constitutional mandate under Articles341 and 342. If in the opinion of State it is necessary to extend thebenefit of reservation to class/category of Scheduled Castes/ScheduledDTribes beyond those specified in the lists, the State to make its views inthe matter prevail with the central authority to enable an appropriateparliamentary exercise to be made by an amendment of the lists ofScheduled Castes/Scheduled Tribes.

(vii) In Heikham Surchandra Singh & Ors. v. RepresentativesEof “Lois” Kakching, Manipur (A scheduled caste uplift body) &Ors., (1997) 2 SCC 523, it was observed that for the purpose of theConstitution, “Scheduled Tribes” defined under Article 366(25) assubstituted under the Act, and the Second Schedule are conclusive.

(viii) In Shree Surat Valsad Jilla K.M.G. Parishad v. Union ofFIndia & Ors., (2007) 5 SCC 360, law to similar effect was laid down.

(ix) Article 341(1) protects the Scheduled Caste’s members, havingregard to their economic and educational backwardness. In that context,the President is empowered to limit the notification to parts or groupswithin the castes. The notification issued in terms of the said provision isGexhaustive. The legal fiction is required to be given its full effect as laiddown in Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204. In PunitRai, it was observed that the President has been authorised to limit thenotification to parts or groups within the castes. The notification issuedis exhaustive. The object of Article 341(1) is to provide preferentialright by way of protection to the members of the Scheduled CastesH

having regard to the economic and educational backwardness from whichthey suffer.

(x) In Subhash Chandra v. Delhi Subordinate ServicesSelection Board, (2009) 15 SCC 458, the question arose concerningmigrants not listed in the Presidential notification. Whether they couldclaim the benefit of reservation? It was held that the subject of reservation,vis-à-vis inclusion of castes/tribes. The presence of Articles 338, 338-A,341, 342 in the Constitution precludes that. The Central Governmentand the State Government may lay down policy decision regardingreservation having regard to Articles 15 and 16, but such policy cannotviolate other constitutional provisions.

32. For revisiting the decision of E.V. Chinnaiah and doctrine ofstare decisis, several decisions have been cited at the Bar. They are asfollows:

(a) In Sambhu Nath Sarkar v. State of West Bengal & Ors.,(1973) 1 SCC 856, it was held that the Court would review its earlierdecisions if it is satisfied with its error or of the baneful effect such adecision would have on the general interest of the public or if it isinconsistent with the legal philosophy of Constitution, as such perpetuationwould be harmful to public interests.

(b) In State of Washington v. Dawson & Co., 264 U.S. 219,observed that judgment seriously affects the lives of men, women, andchildren, and the general welfare, the stare decisis is not universal,inexorable command.

(c) In David Burnet v. Colorado Oil & Gas Company, 285U.S. 393, it was observed that in cases involving the Federal Constitution,where correction through legislative action is practically impossible, thiscourt has often overruled its earlier decisions. The court bows to thelessons of experience and the force of better reasoning, recognising thatthe process of trial and error, fruitful in the physical sciences, is alsoappropriate in the judicial function.

(d) In Graves v. People of the State of New York, 306 U.S. 466,it was observed that the ultimate touchstone of constitutionality is theConstitution itself and not what we have said about it.

(e) In Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304; 4 L.Ed. 97, 102, it was held that it could not be foreseen what new changes

Aand modifications of power might be indispensable to effectuate thegeneral objects of the charter; and restrictions and specifications, which,at the present, might seem salutary, might, in the end, prove the overthrowof the system itself.

(f) In Bengal Immunity Company Limited v. State of Bihar &BOrs., (1955) 2 SCR 603, this Court observed that if the Court is convincedof the baneful effect on the general interests of the public, the decisionhas to be revisited, if its effect is far-reaching as it affects the rights ofall consuming public.

(g) In M. Nagaraj, it was laid down that right becomes aCfundamental right because it has foundational value. Constitution is tobe given generous and purposive construction. It would enable thecitizens to enjoy the rights guaranteed by it in the fullest measure.

(h) In I.R. Coelho, it was held that the Court can also examineadditional grounds in the constitutional matters of public interest.

D33. With respect to the value of binding precedent, Shri SanjayHegde, learned senior counsel, has relied upon the following decisions:

(a) Keshav Mills Co. Ltd. v. Commissioner of Income Tax,(1965) 2 SCR 908, to lay down that unless there are compelling andsubstantial reasons, the court would be reluctant to entertain pleas forEthe reconsideration and revision of its earlier decision.

(b) In Union of India & Anr. v. Raghubir Singh (dead) by LRs.etc., (1989) 2 SCC 754, while laying down that the doctrine of bindingprecedent has the merit of promoting certainty and consistency in judicialdecisions.F

34. It was rightly pointed out by Shri R. Venkataramani that noprovision and indeed no word or expression of the Constitution exists inisolation; they are necessarily related to transforming and, in turn beingtransformed by other provisions, words and phrases in the Constitutionas held in GVK. Industries Limited& Anr. v. Income Tax Officer &GAnr., (2011) 4 SCC 36. The observations made are extracted hereunder:

“37. In interpreting any law, including the Constitution, the text ofthe provision under consideration would be the primary sourcefor discerning the meanings that inhere in the enactment. However,in light of the serious issues it would always be prudent, as amatter of constitutional necessity, to widen the search for the true

meaning, purport and ambit of the provision under consideration.No provision, and indeed no word or expression, of the Constitutionexists in isolation—they are necessarily related to, transformingand in turn being transformed by, other provisions, words andphrases in the Constitution.”

35. Constitutional Court declares law as contained in theConstitution, but in doing so, it rightly reflects that Constitution is aliving and organic thing, which of all instruments has the greatest claimto be construed broadly and liberally as observed in Goodyear IndiaLtd. & Ors. v. State of Haryana & Anr., (1990) 2 SCC 71.

36. This Court discussed the concept of socially and educationallybackward classes in Indra Sawhney; however, the Court observed inparagraph 781 extracted above that Scheduled Castes and ScheduledTribes are admittedly included within the backward classes, as suchthere was no need to discuss that. Thus, the discussion was confined towhether socially and educationally backward classes can be included inArticle 16(4), it was opined that ken of Article 16(4) is wider than Article15(4). It was also observed that backward classes contemplated underArticle 16(4) do comprise some castes. The Scheduled Castes includequite few castes. Based on the aforesaid foundational basis,interpretation was made. In our opinion, the decision is relevant forinterpreting Article 16(4) provisions in their application to ScheduledCastes, Scheduled Tribes, and other backward classes. They stand onthe similar footing, and they cannot be treated as different from other asalso fortified by insertion of Article 342A which is pari materia to Article341 or 342 and considering the definition in Article 366(24) and (26C)and classification of backward classes can be done. The Scheduled Castesand Scheduled Tribes admittedly are backward, and the same yardstickwould apply to all. In Indra Sawhney, it was held that it is permissible tomake sub-classification within socially and educationally backwardclasses. That discussion would be applicable for Scheduled Castes andScheduled Tribes as they admittedly fall under Article 16(4).

37. In Indra Sawhney, B.P. Jeevan Reddy, J. observed that severalcastes or tribes within the Scheduled Castes and Scheduled Tribes arenot similarly situated. In N.M. Thomas, it was held that Scheduled Castesare group of castes, races, tribes, communities, or parts thereof foundsuitable by the commission and notified by the President. Caste is nothing

Abut social class or socially homogenous class. It is based on occupationalgrouping. Its membership is by birth, and they inherit the same occupation.

38. The question arises whether sub-classification for providingbenefit to all castes can be said to be tinkering with the list under Articles341, 342 and 342A, in view of the decisions in Indra Sawhney, permittingBsub-classifications of backward classes and in Jarnail Singh, in which,it was opined that ‘creamy layer concept’ for exclusion of benefit canbe applied to the Scheduled Castes and Scheduled Tribes and it does notin any manner tinker with the Presidential list under Article 341 or 342 ofthe Constitution. The caste or group or sub-group continued exactly asbefore in the list. It is only those persons within that group or sub-group,Cwho have come out of untouchability or backwardness by virtue ofbelonging to the creamy layer, who are excluded from the benefit ofreservation. The million dollar question is how to trickle down the benefitto the bottom rung; reports indicate that benefit is being usurped bythose castes (class) who have come up and adequately represented. ItDis clear that caste, occupation, and poverty are interwoven. The Statecannot be deprived of the power to take care of the qualitative andquantitative difference between different classes to take ameliorativemeasures.

39. Reservation was not contemplated for all the time by the framersEof the Constitution. On the one hand, there is no exclusion of those whohave come up, on the other hand, if sub-classification is denied, it woulddefeat right to equality by treating unequal as equal. In Chebrolu LeelaPrasad Rao & Ors. v. State of A.P. & Ors., 2020 SCC OnLine SC383, the necessity of revising lists was pointed out relying on IndraSawney and Union of India & Ors. v. Rakesh Kumar & Ors., (2010)F4 SCC 50.

40. There is cry, and caste struggle within the reserved class asbenefit of reservation in services and education is being enjoyed, whoare doing better hereditary occupation. The scavenger class given thename of Balmikis remains more or less where it was, and so on, disparityGwithin Scheduled Caste is writ large from various reports. The sub-classification was made under Section 4(5) of the Punjab Act to ensurethat the benefit of the reservation percolate down to the deprived sectionand do not remain on paper and to provide benefit to all and give themequal treatment, whether it is violative of Article 14? In our opinion, itHwould be permissible on rationale basis to make such sub-classification

to provide benefit to all to bring equality, and it would not amount toexclusion from the list as no class (caste) is deprived of reservation intotality. In case benefit which is meant for the emancipation of all thecastes, included in the list of Scheduled Castes, is permitted to be usurpedby few castes those who are adequately represented,have advancedand belonged to the creamy layer, then it would tantamount to creatinginequality whereas in case of hunger every person is required to be fedand provided bread. The entire basket of fruits cannot be given to mightyat the cost of others under the guise of forming homogenous class.41. The Constitution is an effective tool of social transformation;removal of inequalities intends to wipe off tears from every eye. Thesocial realities cannot be ignored and overlooked while the Constitutionaims at the comprehensive removal of the disparities. The very purposeof providing reservation is to take care of disparities. The Constitutiontakes care of inequalities. There are unequals within the list of ScheduledCastes, Scheduled Tribes, and socially and educationally backwardclasses. Various reports indicate that Scheduled Castes and ScheduledTribes do not constitute homogenous group. The aspiration of equaltreatment of the lowest strata, to whom the fruits of the reservationhave not effectively reached, remains dream.At the same time, variouscastes by and large remain where they were, and they remain unequals,are they destined to carry their backwardness till eternity?

42. The State’s obligation is to undertake the emancipation of thedeprived section of the community and eradicate inequalities. When thereservation creates inequalities within the reserved castes itself, it isrequired to be taken care of by the State making sub-classification andadopting distributive justice method so that State largesse does notconcentrate in few hands and equal justice to all is provided. It involvesredistribution and reallocation of resources and opportunities and equitableaccess to all public and social goods to fulfil the very purpose of theconstitutional mandate of equal justice to all.

43. Providing percentage of the reservation within permissiblelimit is within the powers of the State legislatures. It cannot be deprivedof its concomitant power to make reasonable classification within theparticular classes of Scheduled Castes, Scheduled Tribes, and sociallyand educationally backward classes without depriving others in the list.To achieve the real purpose of reservation,within constitutional dynamics,needy can always be given benefit; otherwise, it would mean that

Ainequality being perpetuated within the class if preferential classificationis not made ensuring benefit to all.

44. The sub-classification is to achieve the very purpose, asenvisaged in the original classification itself and based thereuponevolvedthe very concept of reservation. Whether the sub-classificationBwould be further extension of the principle of said dynamics is thequestion to be considered authoritatively by the Court.

45. The Scheduled Castes as per Presidential List are not frozenfor all the time, and neither they are homogenous group as evidentfrom the vast anthropological and statistical data collected by variousCCommissions. The State law of preferential treatment to limited extent,does not amend the list. It adopts the list as it is. The State law intends toprovide reservation for all Scheduled Castes in pragmatic manner basedon statistical data. It distributes the benefits of reservations based on theneeds of each Scheduled Caste.

D46. The State has the competence to grant reservation benefit tothe Scheduled Castes and Scheduled Tribes in terms of Articles 15(4)and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Governmentcan decide the manner and quantum of reservation. As such, the Statecan also make sub-classification when providing reservation to allEScheduled Castes in the list based on the rationale that would conformwith the very spirit of Articles 14, 15, and 16 of the Constitution providingreservation. The State Government cannot tamper with the list; it canneither include nor exclude any caste in the list or make enquiry whetherany synonym exists as held in Milind.F

47. The State Government is conferred with the power to providereservation and to distribute it equitably. The State Government is thebest judge as to the disparities in different areas. In our opinion, it is forthe State Government to judge the equitable manner in which reservationhas to be distributed. It can work out its methodology and give theGpreferential treatment to particular class more backward out ofScheduled Castes without depriving others of benefit.

48. Apart from that, the other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward classes, who isnot denied the benefit of reservation, cannot claim that whole or aparticular percentage of reservation should have been made available toH

them. The State can provide such preference on rational criteria to theclass within lists requiring upliftment. There is no vested right to claimthat reservation should be at particular percentage. It has to accordwith ground reality as no one can claim the right to enjoy the wholereservation, it can be proportionate one as per requirement. The Statecannot be deprived of measures for upliftment of various classes, at thesame time, which is the very purpose of providing such measure. Thespirit of the reservation is the upliftment of all the classes essential forthe nation’s progress.

49. In the federal structure, the State, as well as the Parliament,have constitutional directive for the upliftment of Scheduled Castes,Scheduled Tribes, and socially and backward classes. Only inclusion orexclusion in the Presidential notification is by the Parliament. The StateGovernment has the right to provide reservation in the fields ofemployment and education. There is no constitutional bar to take furtheraffirmative action as taken by the State Government in the cases toachieve the goal. By allotting specific percentage out of reserved seatsand to provide preferential treatment to particular class, cannot be saidto be violative of the list under Articles 341, 342, and 342A as no enlistedcaste is denied the benefit of reservation.

50. The “inadequate representation” is the fulcrum of the provisionsof Article 16(4). In our opinion, it would be open to the State to provideon rational basis the preferential treatment by fixing reasonable quotaout of reserved seats to ensure adequate representation in services.Reservation is very effective tool for emancipation of the oppressedclass. The benefit by and large is not percolating down to the neediestand poorest of the poor.

51. The interpretation of Articles 14, 15, 16, 338, 341, 342, and342A is matter of immense public importance, and correct interpretationof binding precedents in Indra Sawhney and other decisions. Thoughwe have full respect for the principle of stare decisis, at the same time,the Court cannot be silent spectator and shut eyes to stark realities.The constitutional goal of social transformation cannot be achieved withouttaking into account changing social realities.

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

AWe cannot revisit E.V. Chinnaiahbeing Bench of coordinatestrength. We request the Hon’ble Chief Justice to place the mattersbefore Bench comprising of 7 Judges or more as considered appropriate.

Ankit Gyan

Matter referred to Larger Bench