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

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48Copy pinpoint48. The State of Madras also notified that vacancies to the post of District Munsif would be filed on the basis of the Communal GO. In B Venkataramana v. The State of Madras,58 reservation of seats in services based on the Communal GO was challenged. The Constitution Bench observed that Article 16(4) permits the State to make provisions for ‘backward classes’ in the services if they are not adequately represented in the opinion of the State and that only Harijans and the backward Hindus can be considered as ‘backward classes’. The denial of admission to seats other than those reserved for Harijans and Backward Hindus, it was observed, would be a discrimination based on “caste,” violating Articles 16(1) and 16(2).

49Copy pinpoint49. The above judgments adopted a formalistic and reservation-limiting approach in the reading of the constitutional provisions. In this approach, reservation was viewed as an exception to the principle of equal opportunity in Articles 15(1) and 16(1). This Court had recognized the principle of reasonable classification in Article 14 before the decision in Champakam Dorairajan (supra). However, it did not transpose the principle to the realm of reservation.59 Even in Venkataramana (supra), this Court held that reservation in services is permissible only because the Constitution expressly provides for it. Reservation or any other form of affirmative action was regarded as antithetical to the equality principle and not a re-statement of it.

50Copy pinpoint50. The Constitution was amended by the Constitution (First Amendment) Act 1951 to include Clause (4) in Article 15 to overcome the judgment in Champakam Dorairajan (supra). Despite the inclusion of Article 15(4), a formalistic reading of the equality code continued. In Balaji v. State of Mysore,60 this Court observed that Articles 15(4) and 16(4) are special provisions (or in other words, an exception to the principle of equality) while prescribing a cap of fifty per cent on the total seats to be reserved. It was in NM Thomas v. State of Kerala,61 that this Court undertook an expansive and substantive reading of the equality code. In that case, proceedings were instituted for challenging the constitutional validity of Rule 13AA of the Kerala

58 AIR 1951 SC 229 59 Article 15(4) was included in the Constitution by the Constitution (First Amendment) Act 1951 to overcome the judgment in Champakam Dorairajan. 60 [1963] Supp. 1 SCR 439 : AIR 1963 SC 649 61 (1976) 2 SCC 310; the seeds of the expansive approach were sowed by Justice Subba Rao in T Devadasan.

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State and Subordinate Services Rules 1958 by which the qualifying criteria was relaxed for candidates belonging to the Scheduled Castes and Scheduled Tribes. The majority constituting the seven- Judge Bench interposed the principle of reasonable classification in Article 14 to Article 16(1)62 and observed that Article 16(4) is not an exception to the principle of equality of opportunity. Article 16(4), in the opinion of the Court, clarifies and explains the principle in Article 16(1).63 Chief Justice Ray observed that Article 16(1) will not be violated when the rule ensures “equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration”.64 Chief Justice Ray’s opinion rests on two conceptual foundations. First, the goal of Article 16(1) is to ensure equality of representation while maintaining efficiency of service; and second, the beneficiaries must be the unrepresented class. Equality of opportunity was framed in the language of equal representation subject to these two caveats. Justice K K Mathew adopted a different approach. The learned Judge broke down the conceptual foundation of the equality provision in the following manner: a. A criterion which is relevant to the apportionment of the good (that is, services) must be adopted;65 b. It must be determined if the relevant criterion leads to an a priori exclusion of a certain class. The State is required to identify if persons of all classes have an equal chance of satisfying the chosen criteria;66 and c. There is a violation of the right to equal opportunity if the relevant criterion leads to a priori exclusion. In that case, a compensatory provision must be made to offset the disadvantage.67

51Copy pinpoint51. In his concurring opinion, Justice Krishna Iyer observed that when two interpretations of Article 16(1) are available, that which ensures equal participation and fair representation in administration must be chosen.68

62 (1976) 2 SCC 310 [Ray CJI, 21] 63 (1976) 2 SCC 310 [Ray CJI, 37] 64 (1976) 2 SCC 310 [Ray CJI, 45] 65 (1976) 2 SCC 310 [Justice Mathew, 55] 66 (1976) 2 SCC 310 [ Justice Mathew, 58-59] 67 (1976) 2 SCC 310 [ Justice Mathew, 74] 68 (1976) 2 SCC 310 [Justice Krishna Iyer, 120]

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52Copy pinpoint52. Thus, at the end of the first phase, it was clarified that the Constitution espouses a substantive vision of equality where reservation is not an exception but, as Justice Krishna Iyer observed in NM Thomas (supra), an “illustration of constitutionally sanctified” classification.69 However, the Judges varied on the purpose of Article 16(1). While Chief Justice Ray defined equality in opportunity in terms of equality in representation and efficiency of service, Justice Mathew defined it in terms of equality in representation of the backward class. Additionally, Chief Justice Ray identified the beneficiary class as the ‘unrepresented’ class without laying down the basis of the under- representation. Justice Mathew on the other hand, identified the beneficiary class not merely on the basis of under-representation but on the cause for under-representation. It was this difference in the opinions that brooded over the post-NM Thomas era. In the subsequent section, we will discuss the impact of Chief Justice Ray’s reading of the principle of efficiency into Article 16 on the scope of reservation policies. II. The “efficiency” of reservation

53Copy pinpoint53. The expansive reading of the constitutional ideal of equality, noticed above, was not sufficient to realize the full potential of affirmative action. A barrier was raised through Article 335. Article 335 emphasizes that the State shall maintain efficiency of administration while deciding the claims of the Scheduled Castes and the Scheduled Tribes in appointments to services.70 This Court, while deciding the following four important questions relating to reservations, placed considerable emphasis on the efficiency of service to limit the scope of reservation: a. Whether reservation is limited to initial appointment; b. If reservation is extendable to promotions, the method to be employed to ascertain seniority;

69 (1976) 2 SCC 310 [Justice Krishna Iyer, 136] 70 335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of service, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.

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c. Whether lowering the standard of evaluation for backward classes violates the equal opportunity principle in Article 16; and d. The permissible method for calculating vacancies to be filled through reservation. The central theme that governed these four issues was whether the expansion of the scope of reservations would dilute the overall efficiency of the service.

54Copy pinpoint54. In General Manager, Southern Railway v. Rangachari,71 the issue was whether Article 16(4) permits reservations in promotions. Writing for the majority of the Constitution Bench, Justice Gajendragadkar observed that though reservations in promotions are detrimental to “efficiency”, a reading of Article 16(4) to include reservations in promotions would further substantive equality72: “27. It is true that in providing for the reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Article

335. Reservation of appointments or posts may theoretically and conceivably mean some impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts.” (emphasis supplied)

71 [1962] 2 SCR 586 72 [1962] 2 SCR 586 [27]; See Article 335 which provides that that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The majority in Rangachari (supra), interpreted the phrase “matters relating to employment” as it occurs in Article 16(1) to also include promotion. The next issue which fell for the consideration of the Court was whether Article 16(4) covers promotion because the provision only uses the phrases “appointments or posts”. This Court held that the phrase “posts” would - as held by the High Court - not mean ex-cadre posts but posts in the services under the State because any other interpretation would be contradictory to the purpose of Article 16(4) which is to ensure adequate representation.

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55Copy pinpoint55. Both the majority and the minority (consisting of Justice Wanchoo and Justice Ayyangar) agreed that reservations impair the efficiency of administration. The learned Judges belonging to the minority only disagreed on the balance which must be drawn between reservation and efficiency of service. Justice Gajendragadkar observed that though reservations in promotion will impair efficiency of administration, the social benefit of reservation will trump the cost of the impairment. Justice Wanchoo and Justice Ayyangar disagreed. According to the minority, an interpretation of Article 16(4) to include reservation in promotion would be contrary to the principles set out in Article 335.73 Similarly, in CA Rajendran v. Union of India,74 this Court observed that restricting reservations only to Class III and Class IV posts was justified because Class I and Class II posts require candidates with higher efficiency which would not be achieved if promotional posts are reserved.75

56Copy pinpoint56. The judgment in Rangachari (supra) was overruled in Indra Sawhney (supra). In Indra Sawhney (supra), this Court adopted the approach of the minority in Rangachari (supra), holding that reservations in promotions would dilute efficiency in administration.76 By the Constitution (Seventy-seventh Amendment) Act 1995, Parliament amended the Constitution to include Clause (4-A) into Article 16 permitting reservation for the Scheduled Castes and the Scheduled Tribes in promotion.

57Copy pinpoint57. The issue whether members of the Scheduled Castes and Scheduled Tribes should be considered senior to candidates of the general category (who were senior to the candidates of the reserved category in the feeder category)77 when they are being considered for subsequent promotion arose before this Court. In Union of India v. Virpal Singh Chauhan,78 this Court held that though the catch-up rule is not implicit in Article 16, it is a constitutionally valid practice

73 [1962] 2 SCR 586 [Justice Wanchoo, 35]; [Justice Ayyangar, 41] 74 AIR 1968 SC 507 75 AIR 1968 SC 507 [9] 76 (1992) Supp. 3 SCC 217 [Justice Reddy, 827, 828]; [Justice Thommen,302]; [Justice Sawant,552] 77 The service rule by which the general category retains their seniority is called the catch-up rule. The service rule by the seniority is measured based on the feeder pool is called consequential seniority. 78 [1995] Supp. 4 SCR 158 : (1995) 6 SCC 684

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to maintain “efficiency”.79 This was reiterated in Ajit Singh (I) v. State of Punjab.80 Justice NP Singh, writing for the three-Judge Bench observed that the process of appointments must balance both Article 16(4) and Article 335 and that the “principal object of a promotion system is to secure the best possible incumbents for the higher position”.81 Subsequently, Parliament amended Article 16(4-A) by the Constitution (Eighty-fifth Amendment) Act 2001 to overcome a series of judgments of this Court where the rule of consequential seniority in reservation was held to result in reverse-discrimination. Article 16(4-A), as amended by the Constitution (Eighty-fifth Amendment) Act 2001, enables the State to provide reservation in promotion with consequential seniority.

58Copy pinpoint58. In Indra Sawhney (supra), Justice Jeevan Reddy writing for four Judges observed that relaxation of qualifying marks in promotion would result in inefficiency of administration. This position was reiterated by a two-Judge Bench in S Vinod Kumar v. Union of India.82 A proviso was included in Article 335 by the Constitution (Eighty-second) Amendment Act 2000 to overcome this aspect of the ruling in Indra Sawhney (supra) and Vinod Kumar (supra). The proviso provides that Article 335 does not prevent the State from relaxing the qualifying marks in any examination for reservation in promotion.

59Copy pinpoint59. The method for calculating the permissible total percentage of reservation was another issue in which the “efficiency of administration” was used to limit the scope of reservation. This Court had held in Balaji (supra) and Indra Sawhney (supra) that reservation must not exceed 50 per cent. The State was faced with a peculiar situation where a sufficient number of persons from the reserved category was not available to fill the seats reserved for them. The issue was whether the unfilled seats of the reserved category could be carried over to the next year, and whether the carried forward vacancies could be counted while calculating the total percentage of reserved seats in that year.

79 Also see Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209 80 (1996) 2 SCC 715; “it cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for the purpose of promotion.” 81 (1996) 2 SCC 715 [15] 82 [1996] Supp. 7 SCR 142 : (1996) 6 SCC 580

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60Copy pinpoint60. In T Devadasan v. Union of India,83 the majority held that a carry forward of the unfilled vacancies of the reserved category to the next year will abrogate the equal opportunity principle and impair efficiency. Justice Subba Rao while dissenting, advocated for a harmonious reading of Articles 16, 46 and 335. Laying the groundwork for the jurisprudential development in NM Thomas (supra), the learned Judge observed that the phrase “any provision” in Article 16(4) is wide enough to include the carry forward rule. The observation of the majority that carrying forward the vacancies to the subsequent year is contrary to the equal opportunity principle was line with the judgment in Balaji (supra) because the judgment was delivered in the pre-NM Thomas (supra) era. However, besides the narrow interpretation of the equal opportunity principle, the concept of “efficiency” also weighed with the Court.

61Copy pinpoint61. By the Constitution (Eighty-first) Amendment Act 2000, the Constitution was amended to include Article 16(5) by which the States are permitted to carry forward the unfilled seats of the reserved category to be filled up in the succeeding years. The challenge to the constitutional validity of Article 16(4-A) and 16(4-B) was rejected by the Constitution Bench in M Nagaraj v. Union of India84 where it was held that the efficiency of administration is only relaxed and not “obliterated” by the inclusion of Articles 16(4-A) and 16(4-B).85

62Copy pinpoint62. As is evident from the discussion above, the jurisprudence in the second phase on questions involving the scope of reservation, evolved around the idea that reservation dilutes the efficiency in administration or to put it otherwise, reservation is anti-merit. The Constitution was amended to overcome this Court’s holding on each of the above issues, thereby overhauling the premise that reservation does not ensure efficiency in service. The Constitution, after the numerous turbulations within each of the issues traced, today advances a more substantive reading of the equality provision, expanding the sphere and the scope of reservation to ensure that the benefits trickle down to those who need it the most. However, traces of the friction between merit and reservation continue to persist

83 [1964] 4 SCR 680 : (1964) 4 SCR 680 84 [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212 85 (2006) 8 SCC 212 [108]

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even after the amendments to Articles 16 and 335.86 This Court has, with a few divergences,87 continued to uphold the binary of merit and reservations. The understanding of the Courts at the end of this phase was that the scope of reservation must be expanded to ensure substantive equality in spite of its dilution of efficiency,88 thereby continuing to read the requirement of efficiency into Article 16(4). III. The interplay of Article 16 and Article 335

63Copy pinpoint63. In this section, we will discuss whether the principle in Article 335 must be read as a limitation on the power of the State to provide reservations under Article 16. Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services. The proviso to the Article states that the provision shall not prevent the “relaxation of qualifying marks in any examination or lowering the standards of evaluation”, for reservation of the Scheduled Castes and the Scheduled Tribes in matters of promotion.

64Copy pinpoint64. Reservations under Article 16(4) are not restricted to the Scheduled Castes and Scheduled Tribes. The provision provides the State with the enabling power to provide reservations for the “backward classes” which are not adequately represented in the services of the State. The “backward class” encompasses more than the Scheduled Castes and the Scheduled Tribes. It encompasses all classes whose backwardness is attributable to social reasons.89 This includes other socially and educationally backward classes such as the Other Backward Class category, women and the disabled.

65Copy pinpoint65. Applying the additional requirement of “efficiency of administration” only with respect to the exercise of power under Article 16(4) vis-à-vis the Scheduled Castes and the Scheduled Tribes would be discriminatory. Reading this requirement into Article 16(4) assumes that a dilution of the principle of efficiency in administration is the necessary effect

86 Nagaraj v. Union of India (2006) 8 SCC 212 87 Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1; BK Pavitra (II) v. State of Karnataka (2019) 16 SCC 129 88 See General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36; T Devadasan v. Union of India [1964] 4 SCR 680 [Justice Subba Rao, 32] 89 See Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [116,117,492,788, 859(3)(e)]

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of reservation for the Scheduled Castes and Scheduled Tribes while the same standard is not applied to reservations for Other Backward Classes. Though this Court has not expressly stated so in as many words, efficiency of administration was added as a requirement for the exercise of power under Article 16(4) to prevent discrimination between the Scheduled Castes/Scheduled Tribes and other Socially and Educationally Backward Classes. If the requirement of efficiency of administration in Article 335 was not read into Article 16, then the requirement would only apply to reservations for the Scheduled Castes and the Scheduled Tribes but not for the reservation of other socially backward beneficiary classes.90

66Copy pinpoint66. However, such an interpretative exercise (that is, applying the principle of efficiency of service to restrict the power of the State to provide affirmative action policies) is contrary to the express language of Article 335 which is confined to the Scheduled Castes and the Scheduled Tribes. The preliminary error is that the requirement of efficiency of administration was viewed as an additional requirement and a roadblock to reservation provisions. Efficiency was not understood as a facet of the principle of equal opportunity.

67Copy pinpoint67. The meaning of the phrase “efficiency” as it occurs in Article 335 must be determined to take this argument to its logical conclusion. Though the Constitution does not define the phrase, the proviso to the Article offers interpretative guidance. The proviso states that “relaxation in qualifying marks in any examination or lowering the standards of evaluation” does not amount to a reduction in the efficiency of administration. There can be two possible deductions about the scope of the provision, based on a reading of the proviso. One possible meaning that can be deduced is that marks in the qualifying examination are not a marker of efficiency of administration because if they were, then a reduction of the qualifying standards/ marks would also lead to a reduction in efficiency. Another possible interpretation could be that the premise of the proviso is that while reduction or dilution of the evaluating standards or the qualifying marks is not inconsistent with maintenance of efficiency,

90 The opinion of Justice Sawant in Indra Sawhney (supra), highlights this aspect:” 434: […] It cannot, however, be doubted that the same considerations will have to prevail while making provisions for reservation in favour of all backward classes under Article 16(4). To hold otherwise would not only be irrational but discriminatory between two classes of backward classes.”

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a complete removal of the qualifying marks would be.91 Even if the latter interpretation is accepted, it only goes to establish that securing higher marks in an examination does not contribute to higher efficiency and that securing a minimum mark (and not the highest) in the examination is sufficient to maintain efficiency of administration. Thus, a policy which allows for lower qualifying marks or standards of evaluation is by the proviso to Article 335 not contrary to efficiency.

68Copy pinpoint68. The only constitutional provision which refers to an examination for appointments to posts in services is Article 320 which stipulates that the Union and State Public Service Commissions must conduct examinations for appointments to the services of the Union and the State. An examination is an assessment to determine the proficiency of candidates and their suitability for the post. The Constitution does not prescribe the exact method of assessment which must be adopted for the examination. The Constitution also does not prescribe that the examination must be framed in a manner which would only assess skill sets accessible to certain classes of people. The principle of equality in opportunity in Article 16(1) is therefore the guide for the State while it is determining the method of examination. The examination or any method of distribution of posts must ensure factual equality. An examination leads to a priori exclusion if it only assesses the skill set that is accessible to specific classes. It is to offset this disadvantage that affirmative action policies are introduced for the distribution of posts.

69Copy pinpoint69. The underlying premise of the decision in NM Thomas (supra) is that the distribution of public resources including seats in educational institutions and public services must be based on considerations of equality and justice. Thus, Article 335 is not a limitation on the exercise of power under Articles 16(1) and 16(4). Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services. Efficiency of administration must not be viewed in terms of the narrow lense of scores in an examination which a priori excludes certain classes but in terms of inclusivity and equality as required by Article 16(1).

91 See Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [835]; M Nagaraj v. Union of India (2006) 8 SCC 212 [108]

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70Copy pinpoint70. This Court has previously challenged the binary of reservation and merit. In Devadasan (supra), Justice Subba Rao observed that there is no conflict between the provisions of Articles 16(4) and 335 and that the latter has no bearing on the interpretation of the former. Justice Rao observed that the former provision, is directory while the latter is a mandatory provision by which the State is required to consider the “claims”92 of the Scheduled Castes and Scheduled Tribes.93 Subsequently, in Vasanth Kumar (supra) Justice Chinnappa Reddy echoed this view. The learned Judge observed that reservation cannot be viewed as a conflict between the principles of merit and distributive justice. It is rather, the conflict between the haves and the have-nots.94

71Copy pinpoint71. This line of reasoning was furthered in BK Pavitra (II) v. State of Karnataka,95 where this Court observed that the assumption of the critiques of reservation is that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency.96 In BK Pavitra (II) (supra) and Neil Aurelio Nunes v. Union of India,97 this Court highlighted the folly of measuring “merit” based on the performance of candidates in a seemingly “neutral” selection process which is factually not neutral since the process does not provide equal opportunity to candidates belonging to classes which face widespread inequalities in accessing facilities required to ace the examinations.98 In Neil Aurelio Nunes (supra), a two- Judge Bench of this Court discussed the privileges that accrue to the advanced classes in the form of cultural capital which ensures that a child is unconsciously trained by the familial environment and the economic capital: “24. […] the privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for

92 Justice Krishna Iyer in NM Thomas (supra) observed that the usage of the phrase ‘claims’ in Article 335 indicates that reservation is a right and not the provision of charity or benevolence. [paragraph 128] 93 [1964] 4 SCR 680 [25] 94 (1985) Supp. SCC 714 [35, 36] 95 [2019] 7 SCR 1086 : (2019) 16 SCC 129 96 (2019) 16 SCC 129 [129] 97 [2022] 1 SCR 970 : (2022) 4 SCC 1 98 Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1

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a competitive examination but also includes their social networks and cultural capital) communication skills, accent, books or academic accomplishments) that they inherit from their family. […] Social networks based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examination and advance in their career.”

72Copy pinpoint72. One of us (DY Chandrachud J) writing for the Bench, observed that while examinations are a convenient method to allocate educational resources, they are not effective markers of merit, and that merit should be understood in terms of the social good of equality and inclusivity.99

73Copy pinpoint73. Before concluding the discussion in this section, we deem it necessary to discuss the opinion of the nine-Judge Bench in Indra Sawhney (supra) on the binary of merit and reservation because this Bench sitting in a composition of seven is bound by the opinion of the larger Bench. The petitioners in that case argued that the necessary effect of reservation is the appointment of less meritorious persons while the respondents argued that marks obtained in an examination do not represent the inherent merit of the candidate. Justice B P Jeevan Reddy, authoring the plurality opinion, observed that it is not necessary to express their view on the competing visions of reservation and merit. However, the learned Judge observed that reservation is not anti-merit. The learned Judge made two conceptual observations: first, even if merit is not synonymous with efficiency in administration, its relevance and significance cannot be ignored. Reservations imply the selection of a less meritorious person;100 and second, members of disadvantaged sections, given the opportunity, would overcome the barriers and prove their merit.

74Copy pinpoint74. Applying these two principles, Justice Jeevan Reddy held that: (a) the removal of minimum marks in qualifying examinations for the backward class is invalid; (b) there cannot be reservations in

99 Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1 [28]; BK Pavitra (II) v. State of Karnataka (2019) 16 SCC 129 [131] 100 Also see, Janki Prasad Parimoo v. State of J&K (1973) 1 SCC 420, Justice Khanna in NM Thomas v. State of Kerala (1976) 2 SCC 310; Justice Subba Rao in Devadasan v. Union of India, [1964] 4 SCR 680

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promotions;101 and (c) there cannot be any reservation in certain positions of services “where either on account of the nature of duties attached to them or the level (in the hierarchy)”, merit alone counts. The learned Judge also proceeded to give a non-exhaustive list of such positions. The list included technical posts in research and development organizations/departments/institutions; specialties and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics; defense services; posts of professors; airline pilots; and scientists and technicians in nuclear and space application. Justice Pandian also agreed with this view,102 making it the view of the majority.

75Copy pinpoint75. Justice Jeevan Reddy recognized that reservation is not anti-merit. Two constitutional amendments overruled the above aspects of the holding in Indra Sawhney (supra). These amendments altered the intersection between the exercise of power under Article 16(4) and Article 335. The Constitution (Seventy-seventh Amendment) Act 1995 included Article 16(4-A) enabling the State to provide reservations for the Scheduled Castes and the Scheduled Tribes in promotions. The Constitution (Eighty-second) Amendment Act 2000 added the proviso to Article 335 stipulating that lowering the standards of evaluation will not be inconsistent with the maintenance of efficiency. The amendments recognize the difficulties and struggles faced by members of the Scheduled Castes and the Scheduled Tribes during promotions. In a formal sense, the criteria of selection for promotions a priori excludes the members of the Scheduled Castes and Scheduled Tribes because the criteria which are considered to be appropriate are not accessible to them. In a more informal but substantive manner, the members of the Scheduled Castes and the Scheduled Tribes are often unable to climb up the ladder because of the stigma of incompetence held against candidates who are selected through reservation. The stereotype operates against them because they are externalized as “affirmative action beneficiaries” or “quota candidates”.103 The amendments recognize

101 The holding that there shall not be reservations in promotions was based on the link between Article 16(4) and Article 335. See, Justice Reddy [827] and Justice Sawant [552-224] 102 Justice Pandian in Indra Sawhney (1992) Supp. 3 SCC 217 [243(11)] 103 See Ashwini Deshpande, Double Jeopardy? Stigma of Identity and Affirmative Action, The Review of Black Political Economy 2019, Vol. 46(I) 38-64

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the discrimination through the operation of both human conduct and recruitment processes. They are an emphatic repudiation of the binary of reservation and merit. ii. Permissibility of sub-classification under Article 14

76Copy pinpoint76. In Chinnaiah (supra), one of the issues was “whether the impugned enactment creates sub-classification or micro-classification of Scheduled Castes”.104 Justice Santosh Hegde, writing for himself and two other Judges noted that according to the decision in NM Thomas (supra), all the castes in the list acquired a special status as a ‘class’ and that a classification for the purpose of reservation already existed. The learned Judge observed that the Scheduled Castes form a class by themselves and any further classification would violate the doctrine of reasonableness. 105 Justice Hegde observed that a class cannot be sub-divided to give more preference to a “miniscule proportion of the Scheduled Castes in preference to the other members of the same class”.106 In his concurring opinion, Justice Sema observed that further classification of the Scheduled Castes, who constitute a homogenous group would amount to “discrimination in reverse” and would run contrary to Article 14.107 Justice Sinha observed that the Constitution permitted additional measures in respect of disadvantaged groups to bring them at par with the advantaged groups, but the class which requires the benefits of additional protection, cannot be discriminated inter se when both satisfy the test of abysmal backwardness and inadequate representation in public service.108 Justice Sinha further noted that the state had not discharged the burden of proving reasonable classification and the nexus of the classification with the purpose of the enactment.109

77Copy pinpoint77. In Chinnaiah (supra), this Court held that the Scheduled Castes cannot be further classified for the purpose of reservation because they constitute an internally homogenous class by virtue of their

104 Chinnaiah (supra) [Justice Hegde J,32] 105 Chinnaiah (supra) [Justice Hegde,37,43] 106 Chinnaiah (supra) [Justice Hegde,36] 107 Chinnaiah (supra) [Justice Sema, 46-50] 108 Chinnaiah (supra) [Justice Sinha, 81] 109 ibid.

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inclusion in the Presidential list and thus, as a class, groups within the Scheduled Castes cannot be treated differently. In view of the already existing classification of the Scheduled Castes under the Constitution, further classification and consequent preferential treatment were held to violate Article 14, as it would amount to a constitutionally proscribed ‘micro-classification’. To appreciate the correctness of this view of Article 14 and micro-classification, we must analyze the contours of the equality guarantee and permissibility of sub-classification under Article 14. a. The contours of Article 14

78Copy pinpoint78. Article 14 employs two expressions – equality before the law and equal protection of the laws. Both different in content and sweep.110 “Equality before the law”-, an expression derived from the English Common law, entails absence of special privileges for any individual within the territory. It does not mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated.111 The expression “equal protection of the laws” means that among equals, laws must be equally administered. It enjoins the State with the power to reasonably classify those who are differently placed. The mandate of “equal protection of laws” casts a positive obligation on the state to ensure that everyone may enjoy equal protection of the laws, and no one is unfairly denied this protection. In essence, the guarantee of equality entails that all persons in like circumstances must be treated alike. That there must be a parity of treatment under parity of conditions.112 Equality does not entail sameness. The State is allowed to classify in a manner that is not discriminatory. The doctrine of classification gives content to the guarantee of equal protection of the laws.113 Under this approach, the focus is on the equality of results or opportunities over equality of treatment.114

110 Indra Sawhney (supra) [Justice Reddy,643] 111 Gauri Shankar v. Union of India, AIR 1995 SC 55 112 Indra Sawhney (supra), [Thommen J, 260] 113 HM Seervai, Constitutional Law of India, 4th Edition, Volume I, page 439. 114 Sandra Fredman, Substantive Equality Revisited, International Journal of Constitutional Law, Volume 14, Issue 3, 2016, 712-738.

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79Copy pinpoint79. The Constitution permits valid classification if two conditions are fulfilled. First, there must be an intelligible differentia which distinguishes persons grouped together from others left out of the group. The phrase “intelligible differentia” means difference capable of being understood.115 The difference is capable of being understood when there is a yardstick to differentiate the class included and others excluded from the group.116 In the absence of the yardstick, the differentiation would be without a basis and hence, unreasonable. The basis of classification must be deducible from the provisions of the statute; surrounding circumstances or matters of common knowledge.117 In making the classification, the State is free to recognize degrees of harm.118 Though the classification need not be mathematical in precision, there must be some difference between the persons grouped and the persons left out, and the difference must be real and pertinent.119 The classification is unreasonable if there is “little or no difference”.120 Second, the differentia must have a rational relation to the object sought to be achieved by the law, that is, the basis of classification must have a nexus with the object of the classification.121 b. Sub-classification as a facet of equality

80Copy pinpoint80. The first issue that arises for the consideration of this Court is whether the principle of sub-classification per se violates Article 14. It is established precept that Article 14 guarantees factual and not formal equality. Thus, if persons are not similarly situated in reference to the purpose of the law, classification is permissible. The same logic of classification equally applies to sub-classification. The law can further classify a class that is already created by law for a limited purpose if it is heterogeneous for another purpose. This Court has in multiple judgments held that such classification within a class is valid under Article 14.122

115 State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCC 1 116 Anwar Ali Sarkar (supra) (1952) 1 SCC 1, [Das J, 66] 117 Shri Ram Krishna Dalmia v. Shri SR Tandolkar 1958 SCC OnLine SC 6, [12] 118 Ibid; Special Courts Bill, 1978, In re (1979) 1 SCC 380 119 Moorthy Match Works v. CCE (1974) 4 SCC 428 120 Deepak Sibal v. Punjab University (1989) 2 SCC 145 121 Indra Sawhney (supra) [Reddy J, 643]; State of Kerala v. N.M. Thomas (1976) 2 SCC 310; Ram Krishna Dalmia v. Justice S.R. Tendolkar, [1959] 1 SCR 279; Budhan Choudhry v. State of Bihar [1955] 1 SCR 1045 122 State of Kerala v. NM Thomas [Justice Mathew J, 83]; DS Nakara v, Union of India (1983) 1 SCC 305 [Justice Desai, 48]

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81Copy pinpoint81. To lay down the contours of the scope of sub-classification, it needs to be determined if the class is an integrated homogenous class. In All India Station Masters & Assistant Station Master’s Association v. General Manager, Central Railways,123 the issue before a Constitution Bench of this Court was whether ‘road-side Station Masters’ could be differentiated from Guards for the purpose of promotion to the higher post of Station Masters. Answering the issue in the affirmative, this Court held that the Station Masters and Guards did not form an integrated class since they were recruited and trained separately. Thus, a distinction between the two classes was held not to be violative of the equality code which only requires the State to treat equals equally. Similarly, in Mohd. Shujat Ali v. Union of India,124 another Constitution bench of this Court held that the distinction between graduate and non-graduate Supervisors for the purpose of promotion to the post of Assistant Engineer was valid because there was no integration between the two categories. The pay scale and even the nomenclature for the two classes were different.

82Copy pinpoint82. In All India Station Masters (supra) and Mohd. Shujat Ali (supra), this Court did not specifically answer the question of whether there could be sub-classification within an integrated class. That issue arose for adjudication before this Court in State of Jammu and Kashmir v. Triloki Nath Khosa.125 The rules provided that only Assistant Engineers who possessed a degree or certain other qualifications were entitled to promotion to the post of Divisional Engineer. However, the pool of Assistant Engineers consisted of both degree and diploma holding graduates. The diploma holders among them challenged the constitutionality of the rule on the ground that it classified within the class of “Assistant Engineers” based on their educational qualification, and such a classification within a class was violative of Article 14. It was argued that if persons recruited from different sources are integrated into one class, they cannot thereafter be classified to permit preferential treatment in favour of some of them. This Court upheld the validity of the rule holding that the classification based on educational qualifications, for the purpose of promotions is not unreasonable. Justice YV Chandrachud (as he

123 [1960] 2 SCR 311 : AIR 1960 SC 384 124 [1975] 1 SCR 449 : (1975) 3 SCC 76 125 [1974] 1 SCR 771 : (1974) 1 SCC 19

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then was), writing for the bench held that the classification had a reasonable nexus with the objective of promotions, which was to achieve administrative efficiency in engineering services.

83Copy pinpoint83. It was also submitted that if persons recruited from different sources are integrated into one class, no further classification can be made within that class. In this case, the direct recruits to the post of Assistant Engineer were required to hold a degree in civil engineering. However, the promotees were drawn from the service which was open to both degree and diploma holders (the latter did not require a civil engineering degree). Thus, it was argued that a classification based on educational qualifications is a classification which is based on the source of service. This Court held that though persons were appointed from various sources such as promotion and direct recruitment, they came to be integrated into a common class of Assistant Engineers.126 However, despite this integration into a class, they could be validly classified based on educational qualifications because it was not a classification based on the source of service.

84Copy pinpoint84. In this context, this Court cautioned that the judgment ought not to be interpreted as a justification for minute and microcosmic classifications and that the theory of classification could not be evolved through “imperceptible extensions”, diluting the very substance of the equality guarantee.127 Distinguishing the judgment in Roshan Lal Tandon v. Union of India,128 this Court observed in Triloki Nath (supra) that the issue in the former was whether the yardstick for integration (that is, the source of recruitment) could be used as a yardstick for further integration, which was not the issue in Triloki Nath (supra). Thus, Triloki Nath (supra) is the leading judgment for the proposition that

126 ibid, [YV Chandrachud J, 50]. “50. We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma- holders does not violate Articles 14 and 16 of the Constitution and must be upheld.” 127 ibid, [YV Chandrachud J, 51]. “51. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: What after all is the operational residue of equality and equal opportunity?” 128 [1968] 1 SCR 185

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an integrated class can be further classified if there is intelligible differentia and if the yardstick used has a nexus to the object of the provision.129

85Copy pinpoint85. It is not a given that appointees of different sources form an integrated class merely upon their appointment to one post. Even upon integration, the groups retain their separate identity for other purposes. In Katyani Sayal v. Union of India,130 this Court held that the Assistant Officers of the Railways recruited through a competitive examination and those recruited on the recommendation of the Union Public Service Commission do not form an integrated homogenous class because the objects of recruitment, the tenure and even the appointing authority are different. In Col AS Iyer v. V Balasubramanyam,131 a Constitution Bench of this Court upheld Survey of India promotion rules that reserved 50% more posts for engineers drawn from the military than for civilian engineers. Justice Krishna Iyer, writing for the Bench, observed that the army engineers never merged into the Survey of India service, along with their civilian counterparts.

86Copy pinpoint86. The judgment of this Court in DS Nakara v. Union of India132 has dwelt on the issue of sub-classification. In Nakara,133 a scheme which divided pensioners into two groups based on the date of retirement, to provide pension was challenged. A Constitution Bench held that pensioners formed a class. Notably, this Court, similar to Triloki Nath (supra), did not hold that sub-classification is impermissible merely because the pensioners constitute a class in themselves. As opposed to the inherent impermissibility of sub-classification, the particular basis of classification in that case namely, the date of retirement, was found to be arbitrary considering the objective of granting pensions. It was held that if this basis of classification was accepted as valid, it would create an artificial distinction between two persons who retired within forty-eight hours of each other. Writing

129 See NM Thomas [Justice Mathew, 83] 130 [1980] 3 SCR 139 : (1980) 3 SCC 245 131 [1980] 1 SCR 1036 : (1980) 1 SCC 634 132 (1983) 1 SCC 305 133 ibid [48]

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for the Bench, Justice D A Desai held that this Court while deciding if sub-classification is permissible must determine if the class is homogenous for the purpose of the law.134

87Copy pinpoint87. Nakara (supra) goes a step further than Triloki Nath (supra) to state that the scope of sub-classification does not hinge on the yardstick which is used to integrate groups into a class but on the issue of whether the class is homogenous or integrated for the specific objective of the law. When a law integrates a class, such as diploma and degree holders, it integrates the class for the purpose of that specific law and not for all purposes. Thus, a class which is not similarly situated for the purpose of the law can be further classified. The test that the Court must follow to determine the validity of the sub-classification of a class is as follows: a. Whether the class is “homogenous” or “similarly situated” for the purpose of the specific law; b. If the answer to ‘a’ above is in the affirmative, the class cannot be sub-classified; c. If the answer to ‘a’ above is in the negative, the class can be sub-classified upon the fulfilment of the following standard: i. There must be a yardstick (or intelligible differentia) further classifying the class; and ii. The yardstick must have a rational nexus with the object of the statute. c. Micro-classification: the limits of sub-classification

88Copy pinpoint88. The next issue which arises is whether there are any limits to sub- classification. In numerous judgments, this Court has held that the State must not micro-classify since such classifications would denude (rather than promote) the guarantee of equality, replacing the doctrine of equality with the doctrine of classification.135 When does sub-classification take the properties of micro-classification?

134 DS Nakara (supra) [Desai J,42] : “If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogenous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision and would such classification be founded on some rational principle?” 135 Mohammad Shujat Ali and Others v. Union of India (1975) 3 SCC 76 [Justice Bhagwati, 24-26]

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89Copy pinpoint89. In Nakara (supra), this Court incidentally illustrated what could be termed as a microscopic classification. This Court observed that if each pensioner were to be classified based on their individual dates of retirement or the month of their retirement, it would be too microscopic a classification. Notably, it was not the State’s argument that every individual pensioner retiring on a particular date was a class unto themselves or that the date of retirement was the basis of classification. Rather, the argument was that those retiring before the designated date were a class, distinct from those retiring after that date: “9. Is this class of pensioners further divisible for the purpose of “entitlement” and “payment” of pension into those who retired by certain date and those who retired after that date? If date of retirement can be accepted as a valid criterion for classification, on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. It is only after the recommendations of the Third Central Pay Commission were accepted by the Government of India that the retirement dates have been specified to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. In other words, all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. Now, if date of retirement is a valid criterion for classification, those who retire at the end of every month shall form a class by themselves. This is too microscopic a classification to be upheld for any valid purpose. Is it permissible or is it violative of Article 14?” (emphasis supplied)

90Copy pinpoint90. All persons are unequal in one or the other aspect. In a given situation, even a single individual may be treated as a class by themselves.136 In that case, it is particularly important that laws do

136 Charanjit Chowdhury (supra) 833 [58]; Ram Krishna Dalmia (supra) [11]

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not micro-classify. The question of whether the classification amounts to a micro-classification which is impermissible under Article 14 would depend on the facts of each case. However, the two crucial components of the standard of intelligible differentia prescribe the limits of sub-classification. The two components are (a) the purpose; and (b) the rational basis (or principle) for the differentiation. This Court has previously held that the purpose must be independent of the differentiation.137 The Court grants the State sufficient latitude in identifying the purpose, including the degrees of harm.138 The same degree of latitude is not accorded to the principle underlying the differentiation. It is not sufficient if the principle underlying the classification is relevant or shares a nexus to the purpose. The principle underlying the classification must be reasonable and rational.139 In Nakara (supra), this Court questioned the rationale of classifying the beneficiary class based on the date of retirement. In a concurring opinion in Navtej Singh Johar v. Union of India,140 Justice Indu Malhotra held that a principle of differentiation based on “core and immutable” characteristics is not rational. For example, if the law stipulates that the loan of farmers from one specific village in a State will be fully waived, it must prove through the submission of cogent material that there is a rational principle distinguishing one village from other villages in the State. In this context, the State will for example have to prove that location of the land is a rational principle of categorization and then subsequently prove that the village is not similarly situated for the purpose of the law. With this background, we proceed to analyze the specific issue of whether the sub-classification within the Scheduled Castes is constitutionally permissible. iii. Sub-classification in reservations: tracing the journey through Balaji, Vasanth Kumar and Indra Sawhney

91Copy pinpoint91. The issue of whether the State can further sub-classify within a class for the purpose of reservation first arose in MR Balaji (supra). The State of Mysore appointed the Mysore Backward Class Committee

137 Deepak Sibal v. Punjab University (1989) 2 SCC 145 138 See Anwar Ali Sarkar (Supra) [7]; Ram Krishna Dalmia (supra) [11]; State of Gujarat v. Shri Ambica Mills (1974) 4 SCC 656 [61] 139 See DS Nakara (supra) [43] 140 [2018] 7 SCR 379 : (2019) 3 SCC 345

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to advise it on the adoption of criteria for the determination of the socially and educationally backward class. Based on the report of the Committee, the State recommended the sub-classification of the Backward Class into the Backward Class and More Backward Class based on educational backwardness.141 In MR Balaji (supra) the Constitution Bench held the sub-classification of the backward class to be unconstitutional because it: (a) was solely based on caste;142 and (b) devised measures for the benefit of “all” classes of citizens who are less advanced when compared to the most advanced class in the State which is not the scope of Article 15(4)143: “ 29. In this connection, it is necessary to add that the sub-classification made by the order between Backward Classes and More Backward Classes does not appear to the justified under Article 15(4). Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes what the impugned order, in substance purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced, compared to the most advanced classes in the State, and that, in our opinion, is not the scope of Article 15(4). The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Article 15(4).”

141 The criterion for the sub-classification was whether the standard of education in the community is less than 50% of the State Average. If it is, the community must be regarded as a more backward community. If it is not, then the community must be regarded as the backward community. 142 AIR 1963 SC 649 [25] 143 AIR 1963 SC 649 [29] This observation must be read along with the observation in Paragraph 21 where this Court held that the test of relativity must not be used to determine the backward class: “21. In considering the scope and extent of the expression “Backward Classes” under Article 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who are backward in relation to the most advanced classes of the society should be included in it. If such relative tests were to be applied by reason of the most advanced classes, there would be several layers or strata of backward classes and each one of them may claim to be included under Article 15(4).”

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92Copy pinpoint92. This view was critiqued by Justice O Chinnappa Reddy in Vasanth Kumar (supra). In Vasanth Kumar (supra), this Court was invited to deliver its opinion on reservations which may serve as a guideline to the Commission that the Government of Karnataka proposed to appoint for examining the question of reservation in education and employment sectors. In his concurring opinion, Justice Chinnappa Reddy observed that as a matter of principle, sub-classification within a reserved class is valid provided that both the classes are far behind the advanced class and that one of the classes is ahead of the most backward class.144 The learned Judge observed that the validity of the classification of the Backward Class into Backward and More Backward Classes may be open to adjudication on the facts of each case.

93Copy pinpoint93. In Indra Sawhney (supra), an Office Memorandum which introduced a criterion giving preference for the poorer of the Socially and Educationally Backward Class was under challenge. The learned Judges diverged on the interpretation of the phrase “poorer”. Justice Pandian construed the phrase “poorer” in the Memorandum to mean economically weaker sections. Justice B P Jeevan Reddy, authoring the plurality opinion, construed the phrase “poorer” not in the economic sense but in the socio-economic sense. The learned Judges adopted a different approach while dealing with the issue of sub-classification owing to this divergence. Justice Pandian observed that preference for a section of the socially and educationally backward section would eliminate or exclude the other section of the class.145 This observation of the learned Judge must be read along with a previous observation that the socially and educationally backward class shares a common characteristic of social backwardness which cannot then be further divided solely based on economic criteria. Thus, the learned Judge did not find the sub-classification of the socially and educationally backward classes unconstitutional per se but the sub-classification of the class based on economic criteria which is alien to the determination of the beneficiary class. Another reason for the decision of the learned Judge was the model of sub- classification which was prescribed by the Office Memorandum.

144 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [55] 145 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [207(5)]

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The Office Memorandum provided that the poorer section would have preference over all the seats reserved for a class, leaving the possibility of excluding the rest open.

94Copy pinpoint94. Justice Jeevan Reddy observed that there is no constitutional or legal bar in classifying the backward class into backward and most backward class.146 The learned Judge held that sub-classification is valid for two reasons. First, there may be inter-se backwardness within same class and in such a situation, sub-classification ensures that the more backward of the class can secure the benefit.147 Second, the constitutional scheme expressly provides for sub-classification. Article 16(4) only identifies the beneficiary class as the “backward class” unlike Article 15(4) which expressly identifies the socially and educationally backward class, the Scheduled Castes and the Scheduled Tribes. The relevant observation is extracted below: “803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression “backward class of citizens” and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say — we may reiterate — that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.”

146 Indra Sawhney v. Union of India (1992) Supp. 3 SCC 217 [802] 147 “802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/ classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes.”

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95Copy pinpoint95. The learned Judge also construed the phrase “preference” in the Office Memorandum to mean “equitable apportionment” such that preference does not exclude the benefit to the less backward of the socially and educationally backward class.

96Copy pinpoint96. With respect to the sub-classification of the backward classes, Justice Sawant observed that both the sub-categories must be substantially (and not comparatively) backward when compared to the forward class and there must be a substantial difference in backwardness between the sub-categories themselves. The learned Judge notes that if these two criteria are fulfilled, then it is not only advisable but imperative to sub-classify. Echoing the opinion of Justice Jeevan Reddy, Justice Sawant observed that sub-classification would lead to the exclusion of classes if the preference model is followed instead of the model whereby a percentage of seats are allotted to the most backward.148

97Copy pinpoint97. The observations in Indra Sawhney (supra), elucidate the following three principles with respect to sub-classification: a. Sub-categorization within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class; b. Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted; and c. Sub-classification among a class must be on a reasonable basis. Justice Sawant held that the distinction between the

148 “524.[…] To give an instance, the Mandal Commission has, on the basis of social, educational and economic indicators evolved 22 points by giving different values to each of the three factors, viz., social, educational and economic. Those social groups which secured 22 points or above have been listed there as “socially and educationally backward” and the rest as “advanced”. Now, between 11 and 22 points some may secure, say, 11 to 15 points while others may secure all 22 points. The difference in their backwardness is, therefore, substantial. Yet another illustration which may be given is from Karnataka State Government order dated October 13, 1986 on reservations issued after the decision in Vasanth Kumar [(1985) Supp. SCC 714 : [1985] Supp 1 SCR 352] where the backward classes are grouped into five categories, viz., A, B, C, D and E. In category A, fall such castes or communities as that of Bairagi, Banjari and Lambadi which are nomadic tribes, and Bedaru, Ramoshi which were formerly stigmatised as criminal tribes whereas in category D fall such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special provisions to the former, the latter taking away the entire benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without any seat or post. In such circumstances, the sub-classification of the backward classes into backward and more or most backward is not only desirable but essential.”

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categories must be substantial. Justice Jeevan Reddy held that the sub-categorization must be reasonable. a. Indra Sawhney did not exclude sub-classification within the Scheduled Castes

98Copy pinpoint98. In Chinnaiah (supra), this Court observed that the principles in Indra Sawhney (supra) on sub-classification of the Other Backward Class will not apply to the Scheduled Castes because the judgment specifically observed that it is only ruling on the sub-classification of the Other Backward Class and not the Scheduled Castes and the Scheduled Tribes.149 At two places in Indra Sawhney (supra), Justice Jeevan Reddy limited the observations to the Other Backward Classes and did not extend them to the Scheduled Castes and Scheduled Tribes. While dealing with the identification of the backward class of citizens under Article 16(4), the learned judge made the following observations:150 “781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes – for it cannot be denied that Scheduled Castes include quite a few castes.”

99Copy pinpoint99. These observations were made in the specific context of the recognition of the Scheduled Castes and the Scheduled Tribes as a separate class of beneficiaries under Article 15(5) and their absence in Article 16(4). Justice Jeevan Reddy noted that it is admitted that the Backward Class in Article 16(4) includes the Scheduled Castes and Scheduled Tribes even though the provision does not expressly state so.

100Copy pinpoint100. While discussing the issue of the exclusion of the creamy layer in the identification of the beneficiary class under Article 16(4), Justice Jeevan Reddy noted that the discussion is confined to the Other Backward Class and does not have any relevance to the

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Scheduled Castes and the Scheduled Tribes.151 This observation must also be understood in the context in which it was made. While discussing the necessity of the exclusion of the creamy layer of the Other Backward Class for the purposes of reservation, Justice Reddy observed that social backwardness is the connecting link in a class identified under Article 16(4). The learned Judge remarked that the class does not remain a homogenous class if some of the members of the class are socially forward. This Court noted that economic advancement can be a relevant criterion to exclude the creamy layer provided that the economic advancement is so high as to cause social advancement. The observation that this does not apply to the Scheduled Castes and Scheduled Tribes was made because they suffer from a more egregious form of social backwardness when compared to the Other Backward Class. The Court did not deem it necessary to decide the issue of whether the financial advancement of the members of the Scheduled Castes and Scheduled Tribes would cause social advancement since the issue in Indra Sawhney (supra) was only with respect to reservation for the Other Backward Class.

101Copy pinpoint101. The question then is whether there is any reason to not extend the principle of sub-classification to the Scheduled Castes when a nine- Judge Bench of this Court has already extended the principle to the beneficiary classes under Articles 15 and 16. It is true that the social backwardness of the Other Backward Class is not comparable to that of the Scheduled Castes since they are more socially advanced than the Scheduled Castes. That is precisely why the Constitution groups them into two separate classes in Article 15(4). It is also true that the castes included within the class of Other Backward Class do not suffer from a single form of social backwardness. The castes which are included within the Other Backward Class suffer from a certain degree of comparable backwardness but the form of social backwardness amongst them may vary. As opposed to this position, the Scheduled Castes suffer from a common form of social backwardness through untouchability.

102Copy pinpoint102. It is one thing to argue that the Scheduled Castes cannot be sub- categorized on account of their limited heterogeneity and common

151 (1992) Supp. 3 SCC 217 [792]

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identity as opposed to the Other Backward Class. But it is another issue to completely disregard the application of the principle of sub-classification to the Scheduled Castes on the ground that Indra Sawhney (supra) limited its application to the Other Backward Class. We do not find that the purport of the observations in Indra Sawhney (supra) on sub-classification was to limit it to the Other Backward Classes, to the exclusion of the Scheduled Castes. The principle of sub-classification was given judicial assent in Indra Sawhney (supra) to ensure that the principle of substantive equality is fulfilled. The principle of sub-classification will be applicable to the Scheduled Castes if the social positions of the constituents among the castes/groups is not comparable. In the subsequent section, we will analyze if Article 341 through the operation of the deeming fiction creates an integrated homogenous class that cannot be further classified. iv. The import of the deeming fiction in Article 341

103Copy pinpoint103. Article 366(24) defines the Scheduled Castes as the castes, groups, races or tribes which are deemed to be Scheduled Castes under Article 341(1). The provision does not offer any assistance on the criteria which must be satisfied by the castes, groups, races or tribes for them to be notified as a Scheduled Caste under Article 341. The definition clause only refers to the deeming fiction created by Article

341. Article 341(1) also does not lay down the criteria for inclusion of a caste as a Scheduled Caste. Sub-clause (1) of Article 341 refers to the power of the President to specify the castes, races, tribes or parts of or groups within these three groups. Specified as such, they shall be deemed to be Scheduled Castes for the purpose of the Constitution in relation to the state. The respondents submitted that the “deeming fiction” creates a homogenous integrated class that cannot be further classified. The tenability of the submission needs to be analyzed. a. Chinnaiah on the deeming fiction in Article 341

104Copy pinpoint104. In his opinion in Chinnaiah (supra), Justice Santosh Hegde relied on NM Thomas (supra) to hold that the Scheduled Castes, though drawn from various castes, races and tribes, attain a new status by the Presidential notification. Justice Sema noted that once notified through a Presidential Notification under Article 341 (1), Scheduled

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Castes attain a homogenous status. The learned Judge then held that the objective of the notification was to afford special protection to the Scheduled Castes as a homogenous group, which cannot be regrouped in the manner in which it was done by the Andhra Pradesh Act. Justice Sinha noted that Scheduled Castes constitute a class of persons entitled to special protection and could not be discriminated inter se, as all of them satisfied the test of abysmal backwardness and inadequate representation. He specifically observed that the Scheduled Castes are a “single integrated class of most backward citizens”.

105Copy pinpoint105. One of the issues in Jarnail Singh (supra) was whether the judgment in Nagaraj (supra) was correct to apply the principle of the exclusion of the creamy layer to the Scheduled Castes and Scheduled Tribes. It was argued before the Court in Jarnail Singh (supra) that the application of the creamy layer principle to the Scheduled Castes and Scheduled Tribes would have the effect of amending the List, which is not permissible under Articles 341(2) and 342(2). The Constitution Bench held that the exclusion of the creamy layer from the Scheduled Castes and the Scheduled Tribes is justified under the equality code because the members of the creamy layer no longer require reservation since they have moved “forward so that they may march hand in hand with other citizens of India on an equal basis.”152 Writing for the Bench, Justice Nariman observed that the application of the principle of creamy layer to reservations for the Scheduled Castes and the Scheduled Tribes per se will not have the effect of tinkering with the Lists notified under Articles 341 and 342 because a caste as a whole is not excluded from the List but only persons who have overcome backwardness are excluded.153

106Copy pinpoint106. Thus, it needs to be determined if the interpretation of the scope of Article 341 in Chinnaiah (supra) is correct. We must decide, first, whether Article 341 creates a deeming fiction. Second, if it does, the purpose and effect of the legal fiction created under Article 341 must be analyzed. That is, we must decide whether the legal fiction creates a homogenous class which cannot be further classified.

152 (2018) 10 SCC 396 [26, 34] 153 ibid [26]

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Third, the scope of the prohibition under Article 341 (2) must be determined in relation to the effect of the legal fiction created by Article 341(1). b. Scope of deeming fiction

107Copy pinpoint107. The use of the phrase “deemed to be” is not conclusive of a legal fiction.154 The word deemed is used for many purposes, such as for the artificial construction of a word and to clarify uncertain constructions, or plainly just to mean “regarded as being”.155 A legal fiction is essentially a presumption that certain facts which do not exist in fact, will be treated as real and existing for the purpose of law. Courts have evolved two principles on the operation of legal fictions. The first principle is that a legal fiction must be confined to its ‘legitimate field’, for the specific purpose for which it was created.156 In Bengal Immunity Company Ltd v. State of Bihar,157 a seven-Judge Bench of this Court held that legal fictions are created only for a certain purpose and they must be confined only to that “legitimate field”. In its decision in that case, this Court held that the deeming fiction in the Explanation to Article 286(1)(a), before the Constitution (Sixth Amendment) Act 1956, (by which a sale was deemed to have taken place in the State where the goods were delivered because of the direct sale) only applied to Article 286(1)(a) and not to Article 286(2). This Court held that the scope of Article 286(1)(a) which barred a State from imposing tax on sales outside the State, was different from the scope of Article 286 (2) which stated that unless otherwise provided by law, State laws could not tax a sale or purchase which took place in the course of inter-state trade or commerce.158

154 See Consolidated Coffee Ltd v. Coffee Board, Bangalore (1980) 3 SCC 358 [11,12]; Bhuwalka Steel Industries Limited v. Union of India (2017) 5 SCC 598 [36,37,43,44] 155 St. Aubyn v. Attorney General, 1952 AC 15, 53 [Lord Radcliffe] 156 Industrial Supplies Private Limited v. Union of India (1980) 4 SCC 341 [25]; K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754 [39]; See Bengal Immunity Company Ltd v. State of Bihar (1955) SCC OnLine SC 2 157 Bengal Immunity Company Ltd v. State of Bihar (1955) SCC OnLine SC 2 [Justice Das, 32] 158 52. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the consequences which flow from that state of facts have got to be worked out to their logical extent. But due regard must be had in this behalf to the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose of sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which

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108Copy pinpoint108. The second principle is that the scope of the legal fiction must be extended to the consequences which “logically” flow from its creation. The opinion of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council159 is the leading case for this proposition. The Law Lord observed that the effect of a legal fiction must not be limited to treating facts that do not exist as real but must be expanded to understand the effects and consequences that flow from the legal fiction. 160 However, a law creating a deeming fiction cannot create presumptions in favor of a legal consequence but only presumptions about facts from which certain legal consequences may follow. In Delhi Cloth & General Mills Co. Ltd v. State of Rajasthan,161 the constitutional validity of the Kota Municipal Limits (Continued Existence) Validating Act of 1975 was challenged. The Municipalities Act prescribed a mandatory procedure for delimitation of municipalities including a public notice inviting objections. This mandatory procedure was flouted in the inclusion and exclusion of certain villages to and from the Kota municipality in the State. The Validating Act provided that notwithstanding the mandatory provisions of the Municipalities Act, those villages would be deemed to have always continued to exist as they do within the limits of Kota municipality. The Court held that the Validating Act required the deeming of a legal position rather than the deeming of a fact from which such legal consequence would follow. The Bench found that this was not a permissible creation of a fiction. Article 341 must be interpreted based on the above principles.

was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of converting the inter-State character of the transaction into an intra-State one. This type of conversion could not have been in the contemplation of the Constitution-makers and is contrary to the express purpose for which the legal fiction was created as set out in the Explanation to Article 286(1)(a). [emphasis supplied] 159 LR 1952 AC 109 160 ibid at page 132. “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” 161 [1980] 3 SCR 1109 : (1976) 3 SCC 443.

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c. Article 341 does not create a deeming fiction

109Copy pinpoint109. In Punit Rai v. Dinesh Chaudhary,162 the issue before a three- Judge Bench of this Court was whether the Respondent, who contested an election for a seat reserved for the Scheduled Castes in the Legislative Assembly, belonged to the Scheduled Caste community. Justice Sinha, writing the concurring opinion made a passing observation that Article 341(1) creates a deeming fiction.163 However, this observation does not form the ratio decidendi of the judgment. Thus, it needs to be analyzed if Article 341(1) creates a deeming fiction.

110Copy pinpoint110. Article 341(1) consists of three parts. The first part lays down the procedure for notifying a caste as a Scheduled Caste. The President, in consultation with the Governor (if the notification is with respect to a State) is empowered to specify castes which shall be Scheduled Castes. In the second part, a provision similar to Article 366(26), provides some clarity on who could be notified as a Scheduled Caste: a caste, race, or tribe or parts of or groups within the caste, race or tribe. The third part, with the use of the words “for the purposes of this Constitution be deemed to be Scheduled Castes” includes a substantive provision. In the absence of the word “deemed”, the provision would have solely been a procedural clause, empowering the President to notify the Scheduled Castes. The use of the word “deemed” ensures that the castes or groups of castes shall be regarded as Scheduled Castes by the very act of notifying them. Thus, the inclusion of the word ‘deemed’ in Articles 341(2) and 342(2) does not create a legal fiction since it does not provide any artificial construction. To that extent, the observations of the three- Judge Bench of this Court in Punit Rai (supra) that Article 341(2) creates a deeming fiction are erroneous.

111Copy pinpoint111. In Milind (supra), a Constitution Bench of this Court observed that the purpose of Article 341(1) is to recognize and identify the Scheduled Castes for the purpose of the Constitution and to prevent disputes as to who would constitute a Scheduled Caste for the purpose of the benefits under the Constitution.164 The Indian

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social order consists of castes or groups which suffer from varying degrees of social backwardness, ranging from untouchability to occupational segregation. These castes are grouped into different classes by the Constitution, such as the Scheduled Castes or the Scheduled Tribes, based on the degree of marginalization for the purpose of conferring benefits through affirmative action. A caste only becomes a Scheduled Caste or a Scheduled Tribe or a socially and educationally backward caste when the President issues a notification to that effect in the exercise of the power under Articles 341, 342 and 342A respectively. Thus, it could be argued that the word “deemed” in the provision creates a legal fiction for creating a constitutional identity for the castes which are included in the lists.

112Copy pinpoint112. Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the fiction can neither be extended to other purposes nor can it create legal consequences that do not logically flow from the fiction. Accepting the respondents’ argument that once included in the List, communities specified in the List of Scheduled Castes assume homogeneity would be akin to extending the legal fiction to a purpose that was not envisaged. The purpose of the deeming fiction is ‘identification’ of castes which are the Scheduled Castes. The logical corollary of the identification of castes or groups as Scheduled Castes is not that this creates a homogenous unit. The inclusion of certain castes within the Scheduled Caste category is only to demarcate them from other castes which are not included in the category. The inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified. Article 341 creates a legal fiction for the limited purpose of identification of Scheduled Castes by distinguishing them from other groups. It offers no guidance on how the Scheduled Castes fare among themselves or on heterogeneity among the Scheduled Castes for the purpose of the Constitution. The legal fiction which assigns an identity to the Scheduled Castes, separate from other categories cannot be stretched to draw inferences about the existence or non-existence of internal differences among the Scheduled Castes. The only logical consequence is that each of the groups that is included in the list will receive the benefits that the Constitution provides to the Scheduled Castes as a class.

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113Copy pinpoint113. In Chinnaiah (supra), Justice Santosh Hegde observed that the Castes notified by the President in the exercise of power under Article 341 form a class in themselves. For this purpose, the learned Judge relied on the following observations of the Constitution Bench in NM Thomas (supra): a. Justice Mathew observed that the members of the Scheduled Castes attain a new status by the Presidential Notification;165 b. Justice Krishna Iyer observed that the Scheduled Castes are not castes within the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President;166 and c. Justice Fazal Ali observed that the Scheduled Castes and the Scheduled Tribes have been given a special status in the Constitution and they constitute a class by themselves.167

114Copy pinpoint114. It is necessary to understand the context of the case to understand the import of the above observations. In NM Thomas (supra), rules providing concessions to the members of the Scheduled Castes for qualifying at the entrance examination were challenged. One of the issues before the Court was whether the concession to the members of the Scheduled Castes violated Article 16(2) since it discriminates solely on the ground of “caste”. To overcome the embargo placed by Article 16(2), the learned Judges observed that provision for affirmative action is made in favour of the Scheduled Castes, which once notified by the President in exercise of the power under Article 341 are not a “caste” but a class. The class that is constituted by the Presidential notification as the Scheduled Castes consists of numerous castes, thereby forming a class. The observations in NM Thomas (supra) do not go further to state that it is a homogenous class that cannot be classified further. In fact, Justice Mathew observed in the very next paragraph that there can be further classification within a class if there is an intelligible

165 NM Thomas (supra) [Justice Mathew, 82] 166 NM Thomas (supra) [Justice Iyer, 135] 167 NM Thomas (supra) [Justice Fazal Ali, 169] : “If, therefore, the members of the scheduled castes and the scheduled tribes are not castes, then it is open to the State to make reasonable classification in order to advance or lift these classes so that they may be properly represented in the services under the State.”

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differentia separating a group within a class from another group.168 Additionally, the approach adopted in NM Thomas (supra) by this Court that the Scheduled Castes are a class because they comprise of a collection of castes must be read in the context of the nine- Judge Bench decision in Indra Sawhney (supra), where this Court held that caste is itself a class. Therefore, we are of the view that the inference drawn by Justice Hegde in Chinnaiah (supra) that the Scheduled Castes are a homogenous class based on the above observations in NM Thomas (supra) is erroneous. d. Article 341(1) read with Article 341(2) only proscribes exclusion from and inclusion in the Scheduled Castes List.

115Copy pinpoint115. In Chinnaiah (supra), this Court held that sub-classification amounted to tinkering with the Presidential list by the State legislature, and was therefore, violative of Article 341(2) which exclusively vests power in Parliament. Article 341(2) prescribes the only manner in which the Presidential Notification under Article 341(1) may be altered. The provision stipulates that castes, races or tribes, or parts of or groups within them once notified by the President under Article 341(1) may be included in or excluded from the List only by Parliament. The latter half of the clause states by way of abundant caution that ‘save as aforesaid’, the notification shall not be varied. The provision reads as follows: “(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” (emphasis supplied)

116Copy pinpoint116. Dr B R Ambedkar, while proposing the inclusion of Articles 300A and 300B of the Draft Constitution (which correspond to Articles 341 and 342 of the Constitution), indicated that once notified, any elimination from the list or an addition to the list was to be made by Parliament and not by the President. This limitation, he noted was to eliminate “political factors” from disturbing the list:

168 NM Thomas (supra) [Justice Mathew, 83].

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“..The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”169

117Copy pinpoint117. Unless amended in the manner prescribed under Article 341(2), the Presidential List notified under Article 341(1) is conclusive of which community is a Scheduled Caste and must be taken as it is. Article 341(2) prescribes the scope of permissible changes to the List published under Article 341(1) and exclusively vests the power to vary these lists in Parliament.

118Copy pinpoint118. The prohibitions in Articles 341 (1) and 342 (2) are two-fold : first, specification as a Scheduled Caste is circumscribed by the territorial limits of the State or the region, specific to which a particular group has been notified.170 For instance, Entry 23 of Part I of the Scheduled Castes Order for the State of Andhra Pradesh enumerates: “Godagalli, Godagula (in the districts of Srikakulam, Vizianagaram and Vishakhapatanam)”. Hence, the enlisted communities (Godagalli and Godagula) are treated as a Scheduled Caste for the districts named in the entry and not for the entire State. In Marri Chandra Shekar Rao v. Dean, Seth GS Medical College,171 a Constitution Bench of this Court considered whether a member of the Gouda community, recognized as a Scheduled Tribe in Andhra Pradesh, could seek admission to a seat reserved for the Scheduled Tribes in Maharashtra. Answering it in the negative, this Court observed that since the social conditions of caste groups vary across the country, a caste or tribe could not be generalized as a Scheduled Caste or Scheduled Tribe for the whole country. It held that the expression “in relation to that State” in Articles 341 (1) and 342(1)

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could not be rendered redundant by treating a caste specified as a Scheduled Caste in one State to be entitled to the benefits for Scheduled Castes in another State, where it was not so specified.172 In Bir Singh v. Delhi Jal Board,173 one of the issues before this Court was whether the power of the State to make provisions for affirmative action for the Scheduled Castes and Scheduled Tribes under Article 16(4) is impacted by the power of the President under Articles 341(1) and 342(1) of the Constitution. The Constitution Bench held that a State in exercise of its power under Article 16(4), cannot extend the benefits accorded to the Scheduled Castes to a caste which is not enumerated in the Presidential list notified under Article 341(1). The Court held that the enabling provision under Article 16(4) must be harmoniously read with Articles 341 and

342. Therefore, if a statute extends the policy of affirmative action to groups not enumerated specifically with respect to that State/ Union Territory, it would circumvent the mandate of Article 341(2) and would be an impermissible expansion of the List, contrary to the mandate of Article 341(1).174 Thus, this Court held that the benefit of reservation cannot be extended to a caste which is not enumerated as a Scheduled Caste in that State, though it finds a place in the Presidential List with respect to another State.

119Copy pinpoint119. Second, Article 341(2) provides that only Parliament can include in or exclude from the List any caste, tribe, race or their parts or groups. The Presidential notification cannot be varied by any subsequent notification, other than by an inclusion or exclusion by Parliament. By completely vesting in Parliament the power to include or exclude from the Presidential List, Article 341(2) correspondingly limits the power of the President (acting on the aid and advice of the Council of Ministers at the Centre) and the Governor (acting on the aid and advice of the State Government when consulted) to include or exclude castes or sub-castes from the List.

120Copy pinpoint120. In Chinnaiah (supra), this Court interpreted Article 341(2) as a limit on the power of the President to “tinker” with the list.175 Article

172 Marri (supra) [9] 173 [2018] 10 SCR 513 : (2018) 10 SCC 312. 174 ibid, [Justice Gogoi, 34]; [Justice Banumathi, 79, 81] 175 Chinnaiah (supra), [Justice Hegde, 43]

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341(2) consists of two parts. First, it grants only Parliament the power to “include or exclude” any caste or group, or a part of the caste or group, and second, “save as aforesaid”, a notification issued by the President under Article 341(1) shall not be varied by any other subsequent notification. It is important to understand the purport of the second part of the provision to understand the scope of Article 342(2).

121Copy pinpoint121. The second part of Article 341(2) must be read in the context of Article 367. Article 367 provides that unless the context otherwise requires, the General Clauses Act 1897 shall apply for the interpretation of the Constitution as it applies to the interpretation of an Act of the Legislature of the Dominion of India. Section 21 of the General Clauses Act 1897 states that the power to issue notifications includes the power to add to, amend, vary or rescind the notification.176 By Article 341(1) read with Article 367 and Section 21 of the General Clauses Act 1897, the President would have the power to add to, amend, vary or rescind the notification. The first part of Article 341(2) removes the power of the President to include in and exclude from the List and places it in the domain of Parliament. This power is traceable to the words “add to” or “amend” in Section 21 of the General Clauses Act. The second part of Article 341(2) ensures that the President does not have any residual power to “vary” the List. The phrase “vary” in common parlance has a wider meaning than exclusion or inclusion. It includes altering the list, even by partial change.177 However, the phrase “vary” in Article 341(2) takes the meaning of inclusion in and exclusion from the List, and not the other way around. This is clear with the use of the phrase “save as aforesaid” in the second part of the provision. Thus, by Article 341(2), the President does not have the power to vary the List notified under Article 341(1) by inclusion in and exclusion from it.

176 21. Power to issue, to include power to add to, amend, vary or rescind notifications orders, rules, or bye-laws- Where, by any [Central Act] or Regulations a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules, or bye-laws so issued. 177 “Vary” - to make changes to something to make it slightly different. Oxford Learner’s Dictionary, <https://www.oxfordlearnersdictionaries.com/definition/american_english/vary>; “vary” Merriam-Webster Dictionary <https://www.merriam-webster.com/thesaurus/vary#thesaurus-entry-1-2>

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122Copy pinpoint122. The power of Parliament to vary the list includes not merely the power to exclude or include “any caste, race or tribe” but also the power to exclude or include “parts of or groups within any caste, race or tribe”. In Milind (supra), the issue before this Court was whether an entry titled ‘Halba/Halbi’ in the Scheduled Tribe Order relating to the State of Maharashtra could be read to include the ‘Halba-Koshti’ tribe. This Court held that the Presidential list is to be read as it is and no evidence could be allowed to establish that an entry in the Scheduled Caste or Scheduled Tribe list included a particular group that was not included specifically in the List. The Court held that any other interpretation would infringe upon the power accorded solely to Parliament by Article 341(2). Justice Shivraj V Patil, writing for the Bench, held that unless a tribe is specified expressly in the List under Article 342, which is pari materia to Article 341, no inquiry could be held or evidence led to establish that such tribe, or any part thereof, is included within the meaning of an entry included in the Presidential Order.178 This Court underscored that the power of the States is limited to making recommendations at the initial stage of consultation, prior to the notification of the Presidential List under Article 341(1). This Court observed that the Constitution vests the power to make any further changes to the List in Parliament to prevent alterations to the List due to political pressure. 179

123Copy pinpoint123. The prohibition under Article 341(2) entails that once a particular caste, race, tribe or a part or group of it is specified in the Presidential List under Article 341(1), the list shall be read as it is with no additions or deletions. The benefit of the special provisions shall not be given to any caste or sub-caste not included in the List with respect to that State. Article 341(2) uses the words “include in” or “exclude from” and “shall not be varied”. These terms contained in the provision are unambiguous. An inclusion would occur if the State were to enact a law that extends the benefits meant for Scheduled Castes in that State to a community that is not enumerated as a Scheduled Caste for that State. The only mechanism open to the State, in case it regards a community fit for inclusion in the List notified for that State, is to make a proposal to that effect to the central authorities.

178 Milind (supra) [12]. 179 Milind (supra) [15].