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have rational relation to the object sought to be achieved by the rule or even the rules in question. It is a mistake to assume a priori that there can be no classification within a class, say, the lower division clerks. If there are intelligible differentia which separates a group within that class from the rest and that differentia have nexus with the object of classification, I see no objection to a further classification within the class. It is no doubt a paradox that though in one sense classification brings about inequality, it is promotive of equality if its object is to bring those who share a common characteristic under a class for differential treatment for sufficient and justifiable reasons. In this view, I have no doubt that the principle laid down in All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway [(1960) 2 SCR 311 : AIR 1960 SC 384.]; S.G. Jaisinghani v. Union of India and State of J&K. v. Triloki Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771.] has no application here.”

87. It has been observed that a classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. It has been observed that the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must have rational relation to the object sought to be achieved by the rule. It specifically observed that it is a mistake to assume a priori that there can be no classification within a class. He held that if there are intelligible differentia which separates a group within that class from the rest and that differentia have nexus with the object of classification, such a further classification within the class would be permissible in law. He observed that though in one sense classification brings about inequality it is promotive of equality if its object is to bring those who share a common characteristic under a class, for differential treatment for sufficient and justifiable reasons.

88. V.R. Krishna Iyer, J. in his concurring judgment observed thus: “124. A word of sociological caution. In the light of experience, here and elsewhere, the danger of “reservation”, it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the “backward” caste or class, thus keeping the

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weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the “weaker section” label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calculatedly hidden from view by the higher “backward” groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone tell the whole truth and a constant process of objective re-evaluation of progress registered by the “underdog” categories is essential lest a once deserving “reservation” should be degraded into “reverse discrimination”. Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research conducted by the A.N. Sinha Institute of Social Studies, Patna, has revealed a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions. For them, Articles 46 and 335 remain a “noble romance” [As Huxley called it in “Administrative Nihilism” (Methods and Results, Vol. 4 of Collected Essays).] , the bonanza going to the “higher” harijans. I mention this in the present case because lower division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, “test” qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13-AA perhaps is one.

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125. The core conclusion I seek to emphasise is that every step needed to achieve in action actual, equal, partnership for the harijans, alone amounts to social justice — not enshrinement of great rights in Part III and good goals in Part IV. Otherwise, the solemn undertakings in Articles 14 to 16 read with Articles 46 and 335 may be reduced to a “teasing illusion or promise of unreality”. A clear vision of the true intendment of these provisions demands a deep understanding of the Indian spiritual-secular idea that divinity dwells in all and that ancient environmental pollution and social placement, which the State must extirpate, account for the current socio-economic backwardness of the blacked-out human areas described euphemistically as scheduled castes and scheduled tribes. The roots of our constitutional ideas — at least some of them — can be traced to our ancient culture. The noble Upanishadic behest of collective acquisition of cultural strength (सह वीीर्यय करवाावहेे) is involved in and must evolve out of “equality”, if we are true to the subtle substance of our finer heritage.”

89. His Lordship categorizes three-fold danger of reservation. According to him, firstly the benefits, by and large, are snatched away by the top creamy layer of the “backward” caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim of backwardness is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment. However, they wish to wear the “weaker section” label to score over their near-equals formally categorized as the upper brackets. Thirdly, according to him, a lasting solution to the problem would come only from improvement of social environment, added educational facilities and cross-fertilization of castes by inter-caste and inter-class marriages sponsored as a massive State program.

90. His Lordship observed that every step needed to achieve in action actual, equal, partnership for the harijans, alone amounts to social justice. He observed that if this is not done, the solemn undertakings in Articles 14 to 16 read with Articles 46 and 335 may be reduced to a “teasing illusion or promise of unreality”.

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91. His Lordship further observed thus: “136. The next hurdle in the appellant’s path relates to Article 16(4). To my mind, this sub-article serves not as an exception but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to. In the language of Subba Rao, J. (as he then was), in Devadasan [AIR 1964 SC 179: (1964) 4 SCR 680, 700 : (1965) 2 LLJ 560]. “The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.” True, it may be loosely said that Article 16(4) is an exception but, closely examined, it is an illustration of constitutionally sanctified classification. Public services have been a fascination for Indians even in British days, being a symbol of State power and so a special article has been devoted to it. Article 16(4) need not be a saving clause but put in due to the over-anxiety of the draftsman to make matters clear beyond possibility of doubt (see, for instance, CIT v. Shaw Wallace & Co. [59 IA 206: AIR 1932 PC 138] ).

137. “Reservation” based on classification of backward and forward classes, without detriment to administrative standards (as this Court has underscored) is but an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This Court has viewed Article 16(4)as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under

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Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335 as I have explained, the twin considerations of terrible backwardness of the type harijans endure and maintenance of administrative efficiency must be satisfied.”

92. Referring to the observation of Subba Rao, J. in the case of T. Devadasan vs. Union of India,9 Krishna Iyer, J. observed that Article 16(4) serves not as an exception but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to.

93. He observed that on a closer examination, it can be seen that clause (4) of Article 16 is an illustration of constitutionally sanctified classification. He observed that Article 16(4) need not be a saving clause but put in due to the over-anxiety of the draftsman to make matters clear beyond possibility of doubt.

94. It is observed that the “Reservation” based on classification of backward and forward classes, without detriment to administrative standards is an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. His Lordship further observed that Article 16(4) covers all backward classes. He however states that for earning the benefit of grouping under Article 16(1) based on Articles 46 and 335, the twin considerations of terrible backwardness of the type harijans endure and maintenance of administrative efficiency must be satisfied.

95. His Lordship also held that Articles 14 to 16 are a common code of guaranteed equality, the first laying down the broad doctrine, whereas the other two applying it to sensitive areas which are historically important and politically polemical in a climate of communalism and jobbery.

96. Fazal Ali, J. in his concurring judgment observed thus:

9 [1964] 4 SCR 680 : AIR 1964 SC 55

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“178. The concept of equality or equal opportunity as contained in Article 16 does not mean that same laws must be applicable to all persons under every circumstance. Indeed if this artificial interpretation is put on the scope and ambit of Article 16 it will lead to channelisation of legislation or polarisation of rules. Differences and disparities exist among men and things and they cannot be treated alike by the application of the same laws but the law has to come to terms with life and must be able to recognise the genuine differences and disparities that exist in human nature. Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification. In Morey v. Doud [354 US 457, 473] it was so aptly observed: “To recognise marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.”

179. Coming now to Article 16 it may be analysed into three separate categories so far as the facts of the present case are concerned: Category I—clause (1) of Article 16 Category II—clause (2) of Article 16. Category Ill—clause (4) of Article 16.

180. Clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. It is important to note that the Constitution uses the words “equality of opportunity for all citizens”. This inherently implies that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. This, therefore, can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. The classification, however, must be a reasonable one and must fulfil the following conditions:

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(i) It must have a rational basis; (ii) it must have a close nexus with the object sought to be achieved; (iii) it should not select any person for hostile discrimination at the cost of others.”

97. His Lordship observed that differences and disparities exist among men and things, and they cannot be treated alike by the application of the same laws. He observed that the law must come to terms with life and must be able to recognize the genuine differences and disparities that exist in human nature. He observed that the Legislature has also to enact legislation to meet specific ends by making a reasonable and rational classification.

98. It has been observed that clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. His Lordship emphasized that the words “equality of opportunity for all citizens” used in the Constitution imply that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. According to the Learned Judge, this can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. He however culls out three conditions, viz., (i) it must have a rational basis; (ii) it must have a close nexus with the object sought to be achieved; and (iii) it should not select any person for hostile discrimination at the cost of others.

99. Echoing the sentiments of the other Learned Judges, by holding that Article 16(4) is not a proviso to Article 16(1), the Learned Judge observed thus: “187. For these reasons, therefore, I respectfully agree with the observations of Subba Rao, J., as he then was, in T. Devadasan v. Union of India [AIR 1964 SC 179 : (1964) 4 SCR 680 : (1965) 2 LLJ 560] where he observed: “That is why the makers of the Constitution introduced clause (4) in Article 16. The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the

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main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.” My view that Article 16(4) is not a proviso to Article 16(1) but that this clause covers the whole field of Article 16 is amply supported by the decision of this Court in General Manager, Southern Railway v. Ranga-chari where it was observed: (p. 599) “It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of non-obstantive clause in Article 16(4).” C. Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs. Union of India

100. Next is the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association vs. Union of India and others,10 where a bench of 3 Learned Judges of this Court was considering the policy directives issued by the Railway Board introducing reservation in cases of selection as well as non-selection posts and other related issues regarding affirmative action.

101. Krishna Iyer, J. in paragraph 12, observed thus: “12. Granville Austin [Granville Austin : The Indian Constitution — Cornerstone of a Nation] quotes profusely from the Constituent Assembly proceedings to prove the goal of the Indian Constitution to be social revolution. Radhakrishnan, representing the broad consensus, said that: [Ibid, p. 27] “India must have a ‘socio-economic revolution’ designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about ‘a fundamental change in the structure of Indian society’.”

10 [1981] 2 SCR 185 : (1981) 1 SCC 246

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102. The Learned Judge refers to the speech of Dr. Radhakrishnan, representing the broad consensus, wherein he said that India must have a ‘socio-economic revolution’ designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about ‘a fundamental change in the structure of Indian society’.

103. Explaining the inter-relation between Articles 16(1) and 16(4), the Learned Judge observed thus: “21. The preamble which promises justice, liberty and equality of status and opportunity within the framework of secular, socialist republic projects a holistic perspective. Article 16 which guarantees equal opportunity for all citizens in matters of State service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up “depressed” classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes Article 16(4) for this specific purpose. In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfilment of Article 16(1). The prescription of Article 16(1) needs, in the living conditions of India, the concrete sanction of Article 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. To bury this truth is to sloganise Article 16(1) and sacrifice the facts of life.

22. This is not mere harmonious statutory construction of Article 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one’s own personality belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social

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transformation Article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Article 16(4) consists in the speed with which result-oriented reservation withers away as no longer a need, not in the everwidening and everlasting operation of an exception [Article 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison d’etre, to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Article 16(1), to casteify “reservation” even beyond the dismal groups of backwardmost people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State.

23. The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life’s maladies and law’s remedies is a part of the know-how of constitutional interpretation if alienation from the people were not to afflict the justicing process: [J. Landis : Note on Statutory Interpretation, 43 Harv L Rev 886, 891 (1930)] A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean.”

104. The Learned Judge observed that the guarantee of equal opportunity provided under Article 16 for all citizens in matters of State service inherently implies equalization as a process towards equality. However, he also emphasizes the need to harmonize the realistic need to jack up “depressed” classes to overcome initial handicaps

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and join the national race towards progress on an equal footing. He states that Article 16(4) has been devoted for this very specific purpose. He observed that the guarantee of equality to the large social categories being submerged for long, with the rest, would be myth and not reality, unless it is combined with affirmative State action for equalization geared to promotion of eventual equality. He observed that Article 16(4) is not a jarring note but auxiliary to fair fulfilment of Article 16(1). He observed that the prescription of Article 16(1) needs the concrete sanction of Article 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung.

105. The Learned Judge observed that this is not mere harmonious statutory construction of Article 16(1) and (4) but an insightful perception of our constitutional culture. He emphasized that the State must apply equalizing techniques which will enlarge their opportunities and thereby progressively diminish the need for props. He further emphasized that to casteify “reservation” even beyond the dismal groups of backwardmost people, euphemistically described as SC & ST, is to run a grave constitutional risk. He further emphasized that to interpret the Constitution rightly we must understand the people for whom it is made. He observed that the synthesis of ends and means, of life’s maladies and law’s remedies is a part of the know- how of constitutional interpretation.

106. Krishna Iyer, J. further observed thus: “34. Special provisions for depressed classes and even other castes have a pre-Constitution history. After the Constitution was enacted the legality of old rules based on caste became moot and the Central Government revised its policy. The post-Constitution reincarnation of the communal G.O. concentrated not on caste orientation but on elimination of socio-economic suppression and the diverse ways to achieve this objective. xxx xxx xxx

36. Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution’s casteless and classless egalitarianism. Nevertheless, our founding fathers

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were realists, and so did not declare the proposition of equality in its bald universality but subjected it to certain special provisions, not contradicting the soul of equality, but adapting that never-changing principle to the ever- changing social milieu. That is how Articles 15(4) and 16(4) have to be read together with Articles 15(1) and 16(1). The first sub-article speaks of equality and the second sub-article amplifies its content by expressly interdicting caste as a ground of discrimination. Article 16(4) imparts to the seemingly static equality embedded in Article 16(1) a dynamic quality by importing equalisation strategies geared to the eventual achievement of equality as permissible State action, viewed as an amplification of Article 16(1) or as an exception to it. The same observation will hold good for the sub-articles of Article 15. Thus we have a constitutional fundamental guarantee in Articles 14 to 16; but it is a notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree India nearly dehumanised, and a facet of the struggle for Freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. Article 46 is a Directive Principle contained in Part IV. Every Directive Principle is fundamental in the governance of the country and it shall be the duty of the State to apply that principle in making laws. Article 46, in emphatic terms, obligates the State “to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”. Reading Article 46 together with Article 16(4) the luscent intent of the Constitution-framers emerges that the exploited lot of the harijan-girijan groups in the past shall be extirpated with special care by the State. The inference is obvious that administrative participation by SC & ST shall be promoted with special care by the State. Of course, reservations under Article 16(4) and promotional strategies envisaged by Article 46 may be important but shall not run berserk

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and imperil administrative efficiency in the name of concessions to backward classes. Article 335 enters a caveat in this behalf: “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 administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.” The positive accent of this article is that the claims of SC & ST to equalisation of representation in services under the State, having regard to their sunken social status and impotence in the power system, shall be taken into consideration. The negative element, which is part of the article, is that measures taken by the State, pursuant to the mandate of Articles 16(4), 46 and 335, shall be consistent with and not subversive of “the maintenance of efficiency of administration”. xxx xxx xxx

39. Article 341 makes it clear that a “scheduled Caste” need not be a “caste” in the conventional sense and, therefore, may not be a caste within the meaning of Article 15(2) or 16(2). Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. So, a group or a section of a group, which need not be a caste and may even be a hotchpotch of many castes or tribes or even races, may still be a Scheduled Caste under Article 341. Likewise, races or tribal communities or parts thereof or part or parts of groups within them may still be Scheduled Tribes (Article 342) for the purpose of the Constitution. Under this definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be. It is the socio-economic backwardness of a social bracket, not mere birth in a caste, that is decisive. Conceptual errors creep in when traditional obsessions obfuscate the vision.”

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107. The Learned Judge refers to the pre-Constitution history wherein special provisions for depressed classes and even other castes were made. He stated that after the Constitution was enacted the legality of old rules based on caste became moot and the Central Government revised its policy. He stated that the post-Constitution reincarnation of the communal G.O. concentrated not on caste orientation but on elimination of socio-economic suppression and the diverse ways to achieve this objective.

108. He then stated that Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution’s casteless and classless egalitarianism. He then considered the interplay between Articles 15(4) and 16(4) on the one hand and Articles 15(1) and 16(1) on the other hand. He thereafter refers to the notorious fact of our cultural heritage that the Scheduled Castes and the Scheduled Tribes have been in unfree India nearly dehumanized, and a facet of the struggle for freedom has been the restoration of full personhood to them together with the right to share in the social and economic development of the country. He thereafter refers to Article 46 and the importance of the said Directive Principle in the governance of the country and observes that it shall be the duty of the State to apply that principle in making laws. He stated that reading Article 46 together with Article 16(4) expresses the intention of the Constitution- framers that the exploitation of the harijan-girijan groups in the past shall be extirpated with special care by the State. For completeness, he then refers to Article 335 to state that measures taken by the State, pursuant to the mandate of Articles 16(4), 46 and 335, shall be consistent with and not subversive of “the maintenance of efficiency of administration”.

109. Krishna Iyer, J. then observed that Article 341 makes it clear that a “Scheduled Caste” need not be a “caste” in the conventional sense and, therefore, may not be a caste within the meaning of Article 15(2) or 16(2). He states that Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. He observed that under the definition, one group in a caste may be a Scheduled Caste and another from the same caste may not be and that it is the socio-economic backwardness of a social bracket, not mere birth in a caste, that is decisive.

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110. In paragraph 73, he refers to Dr. Ambedkar’s address to the Constituent Assembly, which has already been extracted by us in the beginning of the judgment. Paragraph 73 is reproduced hereunder: “73. A luminous preface to the constitutional values nullified by social realities is found in Dr Ambedkar’s address to the Constituent Assembly earlier extracted, which draws poignant attention to the life of contradictions between the explosive social and economic inequalities and the processes of political democracy. “How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life?” was the interrogation before the framers of the Constitution and they wanted to enforce the principle of “one man, one value”. This perspective must inform the code of equality contained in Articles 14 to 16. Equality being a dynamic concept with flexible import this Court has read into Articles 14 to 16 the pragmatic doctrine of classification and equal treatment to all who fall within each class. But care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse (see observations in Triloki Nath Khosa v. State of J&K [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771] . Ray, C.J., in Kerala v. Thomas [(1976) 2 SCC 310, 331, 332, 333, 334 : 1976 SCC (L&S) 227, 248 249, 250, 251 : (1976) 1 SCR 906, 926-29] epitomised the position in a few passages: [SCC pp. 331, 332, 333 & 334: SCC (L&S) pp. 248, 249, 250 & 251, paras 21, 24, 27, 28, 30 & 31 “Articles 14, 15 and 16 from part of a string of constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to be the object to be achieved. ***

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Discrimination is the essence of classification.... Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. *** There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V.P. Narasing Rao [AIR 1968 SC 349 : (1968) 1 SCR 407]). This equality of opportunity need not be confused with absolute equality.... Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class.... The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.... A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.”

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The learned Chief Justice relied upon earlier decisions to substantiate this proposition. In Triloki Nath Khosa v. State of J&K [(1976) 2 SCC 310, 337 : 1976 SCC (L&S) 227, 254 : (1976) 1 SCR 906, 932] this Court had held that the State may make rules guided by realities just as the legislature “is free to recognise degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest”. Thus we arrive at the constitutional truism that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of Articles 14 to 16.”

111. After referring to Dr. Ambedkar’s speech, the Learned Judge observed that equality being a dynamic concept with flexible import, this Court has read into Articles 14 to 16 the pragmatic doctrine of classification and equal treatment to all who fall within each class. He, however, warns that classification should not be pushed to such an extreme point as to make the fundamental right to equality cave in and collapse.

112. The Learned Judge further observed as under: “76. Proceeding on this footing, the fundamental right of equality of opportunity has to be read as justifying the categorisation of SCs & STs separately for the purpose of “adequate representation” in the services under the State. The object is constitutionally sanctioned in terms, as Articles 16 (4) and 46 specificate. The classification is just and reasonable. We may, however, have to test whether the means used to reach the end are reasonable and do not outrun the purposes of the classification. Thus the scope of the case is narrowed down.”

113. His Lordship observed that the fundamental right of equality of opportunity must be read as justifying the categorization of SCs & STs separately for the purpose of “adequate representation” in the services under the State. He observed that the object is constitutionally sanctioned in terms, as Articles 16 (4) and 46 specificate.

114. While rejecting the argument that reservation in favour of Scheduled Castes and Scheduled Tribes could affect the efficiency in the administration, the Learned Judge observed thus:

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“94. It is fashionable to say — and there is, perhaps, some truth in it — that from generation to generation there is a deterioration in efficiency in all walks of life from politics to pedagogy to officialdom and other professions. Nevertheless, the world has been going forward and only parties whose personal interest is affected forecast a doom on account of progressive deficiency in efficiency. We are not impressed with the misfortune predicted about governmental personnel being manned by morons merely because a sprinkling of harijans/girijans happen to find their way into the services. Their apathy and backwardness are such that in spite of these favourable provisions, the unfortunates have neither the awareness nor qualified members to take their rightful place in the administration of the country. The malady of modern India lies elsewhere, and the merit-mongers are greater risks in many respects than the naive tribals and the slightly better off low castes. Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren.” [emphasis supplied]

115. The Learned Judge rejected the contention that merely because a sprinkling of harijans/girijans happen to find their way into the services, the efficiency of the administration of the country would be affected. On the contrary, he states that the merit-mongers are greater risks in many respects than the naive tribals and the slightly better off low castes.

116. It is pertinent to note the observations made by the Learned Judge towards the end of paragraph 94 and in paragraph 98 are most important for the purposes of the present reference. Paragraph 98 reads thus: “98. The argument is that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may

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well innovate and classify to weed out the creamy layer of SCs/STs but the court cannot force the State in that behalf.”

117. Chinnappa Reddy, J. in his separate concurring judgment observed thus: “123. Because fundamental rights are justiciable and directive principles are not, it was assumed, in the beginning, that fundamental rights held a superior position under the Constitution than the directive principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete. It is now universally recognised that the difference between the Fundamental rights and directive principles lies in this that Fundamental rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the directive principles are aimed at securing social and economic freedoms by appropriate State action. The Fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justiciable. But, it is also evident that notwithstanding their great importance, the directive principles cannot in the very nature of things be enforced in a court of law. It is unimaginable that any court can compel a legislature to make a law. If the court can compel Parliament to make laws then parliamentary democracy would soon be reduced to an oligarchy of Judges. It is in that sense that the Constitution says that the directive principles shall not be enforceable by courts. It does not mean that directive principles are less important than Fundamental rights or that they are not binding on the various organs of the State. Article 37 of the Constitution emphatically states that directive principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the court to apply the directive principles in interpreting the Constitution and the

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laws. The directive principles should serve the courts as a code of interpretation. Fundamental rights should thus be interpreted in the light of the directive principles and the latter should, whenever and wherever possible, be read into the former. Every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does not advance one or other of the directive principles or if it is not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the preamble, the directive principles and other provisions of the Constitution.

124. So, we have it that the constitutional goal is the establishment of a socialist democracy in which Justice, economic, social and political is secure and all men are equal and have equal opportunity. Inequality, whether of status, facility or opportunity, is to end, privilege is to cease and exploitation is to go. The underprivileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society. State action is to be towards those ends. It is in this context that Article 16 has to be interpreted when State action is questioned as contravening Article 16.”

118. The Learned Judge discussed the interplay between the Fundamental Rights and the Directive Principles. He observed that the Fundamental Rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Learned Judge observed that merely because the Directive Principles are not enforceable by Courts, it does not mean that Directive Principles are less important than Fundamental rights or that they are not binding on the various organs of the State. Referring to Article 37 of the Constitution, the Learned Judge states that the Directive Principles are nevertheless fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws. He held that it becomes the duty of the court to apply the directive principles in interpreting the Constitution and the laws; that the directive principles should serve the courts as a code of interpretation. He held that

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the Fundamental rights should thus be interpreted in the light of the directive principles and the latter should, whenever and wherever possible, be read into the former.

119. He observed that the constitutional goal is the establishment of a socialist democracy in which Justice, economic, social and political is to secure and all men are equal and have equal opportunity. He further observed that the inequality, whether of status, facility or opportunity, is to end, privilege is to cease, and exploitation is to go. He further observed that the underprivileged, the deprived and the exploited are to be protected and nourished to take their place in an egalitarian society.

120. Thereafter, the Learned Judge then while referring to interplay between Article 16(1) and Article 16(4) observed thus: “125. Let us now take a look at Article 16(1) and Article 16(4). Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. To the class of citizens who are economically and socially backward this guarantee will be no more than mere wishful thinking, and mere “vanity ... wind and confusion”, if it is not translated into reality by necessary State action to protect and nurture such class of citizens so as to enable them to shake off the heart-crushing burden of a thousand years’ deprivation from their shoulders and to claim a fair proportion of participation in the administration. Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and the Scheduled Tribes in the Public Services at all levels are in our opinion necessary consequences flowing from the Fundamental Right guaranteed by Article 16(1). This very idea is emphasised further by Article 16(4). Article 16(4) is not in the nature of an exception to Article 16(1). It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an underprivileged and deprived class of citizens to whom egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). It is illustrative of what the State must do to wipe out the distinction between egalite de droit

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and egalite de fait. It recognises that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield “Equality of Results” and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable. John Rawls in A Theory Of Justice demands the priority of equality in a distributive sense and the setting up of the social system “so that no one gains or loses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return”. His basic principle of social justice is: “All social primary goods — liberty and opportunity, income and wealth, and the bases of self- respect — are to be distributed equally unless an unequal distribution of any or all these goods is to the advantage of the least favoured.” One of the essential elements of his conception of social justice is what he calls the principle of redress: “This is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are somehow to be compensated for.” Society must, therefore, treat more favourably those with fewer native assets and those born into less favourable social positions. If the statement that “Equality of Opportunity must yield Equality of Results” and if the fulfilment of Article 16(1) in Article 16(4) ever needed a philosophical foundation it is furnished by Rawls› theory of justice and the redress Principle.”

121. The Learned Judge observed that reading Article 16(1) and Article 16(4) together would reveal that they recognize that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. It is observed that the equality of opportunity must be such as to yield “Equality of Results” and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable.

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122. The Learned Judge thereafter refers to “A Theory of Justice” by John Rawls. He also refers to the ‘Principle of Redress’ according to which underserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are somehow to be compensated for. D. K.C. Vasanth Kumar vs. State of Karnataka

123. The next judgment of the Constitution Bench of this Court that requires consideration is the case of K.C. Vasanth Kumar and another vs. State of Karnataka.11 In the said case, the Court was invited not so much to deliver judgment but to express its opinion on the issue of reservations in the context of Articles 15(4) and 16(4), which would serve as a guideline to the Commission which the Government of Karnataka had proposed to appoint, for examining the question of affording better employment and educational opportunities to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Each of the 5 Learned Judges comprising the Constitution Bench of this Court rendered their separate opinions.

124. Y.V. Chandrachud, C.J. laid down certain propositions. It will be relevant to refer to paragraph 2, which reads thus: “2. I would state my opinion in the shape of the following propositions: (1) The reservation in favour of Scheduled Castes and Scheduled Tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. (2) The means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above. It is essential that

11 [1985] Supp. 1 SCR 352 : (1985) Supp. SCC 714

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the privileged section of the underprivileged society should not be permitted to monopolise preferential benefits for an indefinite period of time. (3) Insofar as the other backward classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education: One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. (4) The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. That will at once afford an opportunity (i) to the State to rectify distortions arising out of particular facets of the reservation policy and (ii) to the people, both backward and non-backward, to ventilate their views in a public debate on the practical impact of the policy of reservations.”

125. The Learned C.J. observed that for a further period of 15 years, the reservation in favour of Scheduled Castes and Scheduled Tribes must continue. He further observed that the means test, i.e., the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period of 15 years, as mentioned in clause (1). Insofar as the Other Backward Classes are concerned, the Learned C.J. observed that the twin tests should be applied; one, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. It is also observed that the policy of reservations in employment, education and legislative institutions should be reviewed every 5 years or so.

126. It will also be appropriate to refer to the observations of D.A. Desai, J. made in paragraphs 30 and 31, which read thus: “30. Let me conclude. If economic criterion for compensatory discrimination or affirmative action is accepted, it would

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strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest regressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty.

31. Let me make abundantly clear that this approach does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes. Thousands of years of discrimination and exploitation cannot be wiped out in one generation. But even here economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position. And finally reservation must have a time span otherwise concessions tend to become vested interests. This is not a judgment in a lis in an adversary system. When the arguments concluded, a statement was made that the Government of State of Karnataka would appoint a Commission to determine constitutionally sound and nationally acceptable criteria for identifying socially and educationally backward classes of citizens for whose benefit the State action would be taken. This does not purport to be an exhaustive essay on guide lines but may point to some extent, the direction in which the proposed Commission should move.”

127. It could thus be seen that the Learned Judge supports applying the economic criterion for the purpose of compensatory discrimination or affirmative action. According to the Learned Judge, it would strike at the root cause of social and educational backwardness. He further states that simultaneously it would be a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation.

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128. Though he cautioned that such an approach does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes, however, even in their cases, economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position.

129. Rejecting the contention that the reservation is anti-imperialist, Chinnappa Reddy, J. observed thus: “35. One of the results of the superior, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And, what is merit? There is no merit in a system which brings about such consequences. Is not a child of the Scheduled Castes, Scheduled Tribes or other backward classes who has been brought up in an atmosphere of penury, illiteracy and anti-culture, who is looked down upon by tradition and Society, who has no books and magazines to read at home, no radio to listen, no TV to watch, no one to help him with his home work, who goes to the nearest local board school and college, whose parents are either illiterate or so ignorant and ill-informed that he cannot even hope to seek their advice on any matter of importance, a child who must perforce trudge to the nearest public reading room to read a newspaper to know what is happening in the world, has not this child got merit if he, with all his disadvantages is able to secure the qualifying 40 per cent or 50 per cent of the marks at a competitive examination where the children of the upper classes who have all the advantages, who go to St. Paul’s

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High School and St. Stephen’s College, and who have perhaps been specially coached for the examination may secure 70, 80 or even 90 per cent of the marks? Surely, a child who has been able to jump so many hurdles may be expected to do better and better as he progresses in life. If spring flower he cannot be, autumn flower he may be. Why then, should he be stopped at the threshold on an alleged meritarian principle? The requirements of efficiency may always be safeguarded by the prescription of minimum standards. Mediocrity has always triumphed in the past in the case of the upper classes. But why should the so-called meritarian principle be put against mediocrity when we come to Scheduled Castes, Scheduled Tribes and backward classes?”

130. The Learned Judge observed that the disastrous consequences of the so-called meritarian principle to the vast majority of the under- nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. The Learned Judge compared a child of the Scheduled Castes, Scheduled Tribes or other backward classes who has been brought up in an atmosphere of penury, illiteracy and anti-culture, who is looked down upon by tradition and Society, who has no books and magazines to read at home, no radio to listen, no TV to watch, no one to help him with his homework, who goes to the nearest local board school and college, whose parents are either illiterate or so ignorant and ill-informed that he cannot even hope to seek their advice on any matter of importance. The Learned Judge observed that with all these disadvantages, if he is able to secure the qualifying 40% or 50% of the marks at a competitive examination, he cannot be said to have no merit, especially if he be compared with the children of the upper classes who have all the advantages, who go to St. Paul’s High School and St. Stephen’s College, and who have perhaps been specially coached for the examination and may secure 70, 80 or even 90% of the marks. The Learned Judge further observed that the requirements of efficiency may always be safeguarded by the prescription of minimum standards.

131. Emphasizing on the position of the Scheduled Castes, the Learned Judge observed thus:

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“51. …….Now, anyone acquainted with the rural scene in India would at once recognise the position that the Scheduled Castes occupy a peculiarly degraded position and are treated, not as persons of caste at all, but as outcastes. Even the other admittedly backward classes shun them and treat them as inferior beings. It was because of the special degradation to which they had been subjected that the Constitution itself had to come forward to make special provision for them. There is no point in attempting to determine the social backwardness of other classes by applying the test of nearness to the conditions of existence of the Scheduled Castes. Such a test would practically nullify the provision for reservation for socially and educationally backward classes other than Scheduled Castes and Tribes. Such a test would perpetuate the dominance of the existing upper classes. Such a test would take a substantial majority of the classes who are between the upper classes and the Scheduled Castes and Tribes out of the category of backward classes and put them at a permanent disadvantage. Only the “enlightened” classes will capture all the “open” posts and seats and the reserved posts and seats will go to the Scheduled Castes and Tribes and those very near the Scheduled Castes and Tribes. The bulk of those behind the “enlightened” classes and ahead of the near Scheduled Castes and Tribes would be left high and dry, with never a chance of imposing themselves.”

132. The Learned Judge rejects the argument that insofar as Other Backward Classes are concerned, their social backwardness has to be ascertained by applying the test of nearness to the conditions of existence of the Scheduled Castes. The Learned Judge observed that such a test would practically nullify the provision for reservation for socially and educationally backward classes other than Scheduled Castes and Scheduled Tribes. He observed that such a test would take a substantial majority of the classes, who are between the upper classes and the Scheduled Castes and Tribes, out of the category of backward classes and put them at a permanent disadvantage. He observed that only the “enlightened” classes will capture all the “open” posts and seats and the reserved posts and seats will

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go to the Scheduled Castes and Tribes and those very near the Scheduled Castes and Tribes. However, the bulk of those behind the “enlightened” classes and ahead of the near Scheduled Castes and Tribes would be left high and dry.

133. It will also be relevant to refer to the following observations of Venkataramiah, J. (as His Lordship then was) in the case of K.C. Vasanth Kumar (supra): “143. This view is in conformity with the intention underlying clause (6) of the resolution regarding the aims and objects of the Constitution moved by Jawaharlal Nehru on December 13, 1946 which asked the Constituent Assembly to frame a Constitution providing adequate safeguards for minorities, backward and tribal areas and depressed and other backward classes and also with the provisions of Article 338 and Article 340 of the Constitution. Unless the above restriction is imposed on the Government, it would become possible for the Government to call any caste or group or community which constitutes a powerful political lobby in the State as backward even though in fact it may be an advanced caste or group or community but just below some other forward community. There is another important reason why such advanced castes or groups or communities should not be included in the list of backward classes and that is that if castes or groups and communities which are fairly well advanced and castes and groups and communities which are really backward being at the rock-bottom level are classified together as backward classes, the benefit of reservation would invariably be eaten up by the more advanced sections and the really deserving sections would practically go without any benefit as more number of children of the more advanced castes or groups or communities amongst them would have scored higher marks than the children of more backward castes or groups or communities. In that event the whole object of reservation would become frustrated. It is stated that it was with a view to avoiding this anomalous situation, the Government of Devaraj Urs had to appoint the Havanur Commission to make recommendations for the purpose of effectively implementing the objects of

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Article 15(4) and Article 16(4). Hence as far as possible while preparing the list of backward classes, the State Government has to bear in mind the above principle as a guiding factor. The adoption of the above principle will not unduly reduce the number of persons who will be eligible for the benefits under Article 15(4) and Article 16(4) of the Constitution since over the years the level of the Scheduled Castes and Scheduled Tribes is also going up by reason of several remedial measures taken in regard to them by the State and Central Governments. At the same time, it will also release the really backward castes, groups and communities from the stranglehold of many advanced groups which have had the advantage of reservation along with the really backward classes for nearly three decades. It is time that more attention is given to those castes, groups and communities who have been at the lowest level suffering from all the disadvantages and disabilities (except perhaps untouchability) to which many of the Scheduled Castes and Scheduled Tribes have been exposed but without the same or similar advantages that flow from being included in the list of the Scheduled Castes and the Scheduled Tribes.

144. Since economic condition is also a relevant criterion, it would be appropriate to incorporate a “means test” as one of the tests in determining the backwardness as was done by the Kerala Government in Jayasree case63. These two tests namely, that the conditions of caste or group or community should be more or less similar to the conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). For the purpose of Article 16(4) however, it should also be shown that the backward class in question is in the opinion of the Government not adequately represented in the Government services.”

134. The Learned Judge observed that two tests namely, that the conditions of caste or group or community should be more or less similar to the

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conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). The Learned Judge observed that insofar as Article 16(4) is concerned, it should also be shown that the backward class in question is in the opinion of the Government not adequately represented in the Government services. E. Indra Sawhney vs. Union of India

135. Then next comes the 9-Judge Bench judgment of this Court in the case of Indra Sawhney and others vs. Union of India and others,12 which could be considered as an important milestone laying down the law about reservations for Other Backward Classes. The extracts from the said judgment of 9-Judge Bench have in-extenso been reproduced in the referral judgment (The State of Punjab & Ors. vs. Davinder Singh & Ors.13).

136. I will refer to some of the observations made by B.P. Jeevan Reddy, J., who has authored the judgment for himself and M.H. Kania, C.J., M.N. Venkatachaliah, J. and A.M. Ahmadi, J. (as Their Lordships then were). “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.”

137. His Lordship (Jeevan Reddy, J.) observed that with regard to identification of ‘backward class of citizens’, we keep aside the Scheduled Tribes and Scheduled Castes. It will be relevant to note that in the said part of the judgment His Lordship (Jeevan Reddy, J.) was considering an issue with regard to identification of backward class of citizens. In this background, it was observed that the court was keeping aside Scheduled Tribes and Scheduled Castes since

12 (1992) Supp. 3 SCC 217 13 (2020) 8 SCC 1

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they are admittedly included within the backward classes. It was further observed that backward classes contemplated by Article 16(4) do comprise some castes since it cannot be denied that Scheduled Castes include quite a few castes.

138. From paragraph 790 onwards, His Lordship considered the ‘Means-test’ and ‘creamy layer’. It will be apposite to reproduce paragraph 792, which reads thus: “792. In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class — a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line — how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a

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case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that ‘one swallow doesn’t make the summer’, and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more

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appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).”

139. His Lordship observed that if some of the members in a class are far too advanced socially, the connecting thread between them and the remaining class snaps. The Court observed that ‘too advanced socially’ means economically and may also mean educationally. It has been observed that they would be misfits in the class. The Court considered the difficulty in drawing the line. It is observed that it should not amount to taking away with one hand what is given with the other. The Court observed that the basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. The Court observed that the line to be drawn must be a realistic one. The Court posed a question as to whether such a line should be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. It has been observed that since it is difficult to assess income from agriculture, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. It is observed that the income limit must be such as to mean and signify social advancement. The Court observed that at the same time, it must be recognized that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. It has been observed that if a member of a designated backward class would become a member of IAS or IPS or any other All India Service, his status in the society rises and he is no longer socially disadvantaged. The Court observed that clause (4) of Article 16 aims at group backwardness, the exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). No doubt, it has been specified that the said discussion was confined to Other Backward Classes only and had no relevance in the case of Scheduled Tribes and Scheduled Castes.

140. Then the question as to whether Backward Classes can be further divided into backward and more backward categories has been answered thus: “802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes

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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. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub- classification is, however, a matter for the Commission and the State — and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group A comprises “Aboriginal tribes, Vimukta jatis, nomadic and semi-nomadic tribes etc.” Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to “Scheduled Castes converts to Christianity and their progeny”, while Group D comprises all other classes/communities/groups, which are not included in Groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This

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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.”

141. The Court in unequivocal terms held that even among backward classes, there can be a sub-classification on a reasonable basis. The Court held that there can be backward and more backward classes and the State may think it advisable to provide a special benefit to the more backward among the backward classes. It has been observed that where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State, and so long as it is reasonably done, the Court may not intervene.

142. The Court observed that Article 16(4) recognizes only one class i.e., “backward class of citizens”. It is observed that it does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). It has therefore been observed that 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.

143. It has also been observed that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, the OBCs will take

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away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. It has been observed that the same logic also warrants categorization as between more backward and backward. The Court, however, cautioned that it may not be construed as implying that the State should do it, but it was only saying that if the State chooses to do so, it is not impermissible in law.

144. Similar view has also been expressed by P.B. Sawant, J. in paragraphs 523, 524 and 525, which read thus: “523. As regards the second part of the question, in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] it was observed that the backward classes cannot be further classified in backward and more backward classes. These observations, although made in the context of Article 15(4) which fell for consideration there, will no doubt be equally applicable to Article 16(4). The observations were made while dealing with the recommendations of the Nagan Gowda Committee appointed by the State of Karnataka which had recommended the classification of the backward communities into two divisions, the Backward and the More Backward. While making those recommendations the Committee had applied one test, viz., “Was the standard of education in the community in question less than 50% of the State average? If it was, the community was regarded as more backward; if it was not, the community was regarded as backward.” The Court opined that the sub-classification made by the Report and the order based thereupon was not justified under Article 15(4) which authorises special provision being made for ‘really backward classes’. The Court further observed that in introducing two categories of backward classes, what the impugned order in substance purported to do was 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”. That, according to the Court, was not the scope of Article 15(4). The result of the method adopted by the impugned order was that nearly 90% of the population of the State was treated as Backward and that, observed the Court, illustrated how the order in fact divided the population of the State into

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most advanced and the rest, putting the latter into two categories of the Backward and the More Backward. Thus, the view taken there against the sub-classification was on the facts of that case which showed that almost 90% of the population of the State was classified as backward, the backwardness of the Backward (as against that of the More Backward) being measured in comparison to the most advanced classes in the State. Those who were less advanced than the most advanced, were all classified as Backward. The Court held that it is the More Backward or who were really backward who alone would be entitled to the benefit of the provisions of Article 15(4). In other words, while the More Backward were classified there rightly as backward, the Backward were not classified rightly as backward.

524. It may be pointed out that in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1 SCR 352] Chinnappa Reddy, J after referring to the aforesaid view in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] observed that the propriety of such test may be open to question on the facts of each case but there was no reason why on principle there cannot be a classification into Backwards and More Backwards if both classes are not merely a little behind, but far far behind the most advanced classes. He further observed that in fact, such a classification would be necessary to help the more backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes, would walk away with all the seats just as if reservation was confined to the more backward classes and no reservation was made to the slightly more advanced of the backward classes, the backward classes would gain no seats since the advanced classes would walk away with all the seats available for the general category. With respect, this is the correct view of the matter. Whether the backward classes can be classified into Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the

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advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution. 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. However, for each of them a special quota has to be prescribed as is done in the Karnataka Government order. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved

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quota nor in the general category for want of capacity to compete with the forward.

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

145. His Lordship held that sub-classification of the backward classes into the backward and more or most backward would be justifiable provided separate quotas are prescribed for each of them.

146. The question as to whether Backward Classes can be further divided into backward and more backward categories has been answered by P.B. Sawant, J. as under (Paragraph 552): “Question 5: Article 16(4) permits classification of backward classes into backward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social backwardness and not on the basis of the economic consideration alone. If backward classes are classified into backward and more or most backward classes, separate quotas of reservations will have to be kept for each of such classes. In the absence of such separate quotas, the reservations will be illegal. It is not permissible to classify backward classes or a backward class social group into an advanced section and a backward section either on economic or any other consideration. The test of advancement lies in the capacity to compete with the forward classes. If the advanced section in a backward class is so advanced as to be able to compete with the forward classes, the advanced section from the backward class no longer belongs to the backward class and should cease to be considered so and denied the benefit of reservations under Article 16(4).”

147. It could thus be seen that Sawant, J. observed that if the advanced section in a backward class is so advanced as to be able to compete with the forward classes, the advanced section from the backward

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class no longer belongs to the backward class and should cease to be considered so and denied the benefit of reservations under Article 16(4). F. E.V. Chinnaiah vs. State of A.P.

148. In the case of E.V. Chinnaiah, the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (A.P. Act 20 of 2000) was challenged before the High Court of Andhra Pradesh at Hyderabad. The same was dismissed by the 5-Judge Bench by a majority of 4:1. Under the said Act, the castes in the Presidential List of Scheduled Castes came to be classified in 4 groups. The seats were apportioned in different proportions amongst the said 4 groups.

149. N. Santosh Hegde, J. for himself, S.N. Variava, and B.P. Singh, JJ. (as Their Lordships then were) observed thus: “13. We will first consider the effect of Article 341 of the Constitution and examine whether the State could, in the guise of providing reservation for the weaker of the weakest, tinker with the Presidential List by subdividing the castes mentioned in the Presidential List into different groups. Article 341 which is found in Part XVI of the Constitution refers to special provisions relating to certain classes which includes the Scheduled Castes. This article provides that the President may with respect to any State or Union Territory after consultation with the Governor thereof by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory. This indicates that there can be only one list of Scheduled Castes in regard to a State and that list should include all specified castes, races or tribes or part or groups notified in that Presidential List. Any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. In the entire Constitution wherever reference has been made to “Scheduled Castes” it refers only to the list prepared by the President under Article 341 and there is no reference to any subclassification or division in the said list except,

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maybe, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of the People, which is not applicable to the facts of this case. It is also clear from Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, subclassify or subgroup these castes which are found in the Presidential List of Scheduled Castes. Therefore, it is clear that the Constitution intended all the castes including the subcastes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution and this group could not be subdivided for any purpose. A reference to the Constituent Assembly in this regard may be useful at this stage.”

150. His Lordship observed that from the perusal of Article 341 of the Constitution, there can be only one list of Scheduled Castes regarding a State and that list should include all specified castes, races or tribes or part or groups notified in that Presidential List. It has been observed that any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. It is observed that it is also clear from Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, subclassify or subgroup these castes which are found in the Presidential List of Scheduled Castes. It has been observed that the Constitution intended all the castes including the subcastes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution and that the said group could not be subdivided for any purpose.

151. In paragraph 26, it has been observed thus: “26. Thus from the scheme of the Constitution, Article 341 and above opinions of this Court in the case of N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] it is clear that the castes once included in the Presidential List, form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.”

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152. The Court, relying on Article 341 and the opinions expressed in the case of N.M. Thomas, observed that it was clear that the castes once included in the Presidential List, form a class by themselves. It has been observed that if they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to ‘tinkering’ with the Presidential List.

153. In paragraph 31, the Court observed thus: “31. On a detailed perusal of the Act it is seen that Section 3 is the only substantive provision in the Act, rest of the provisions are only procedural. Section 3 of the Act provides for the creation of 4 groups out of the castes enumerated in the Presidential List of the State. After the regrouping it provides for the proportionate allotment of the reservation already made in favour of the Scheduled Castes amongst these 4 groups. Beyond that the Act does not provide for anything else. Since the State had already allotted 15% of the total quota of the reservation available for the backward classes to the Scheduled Castes the question of allotting any reservation under this enactment to the backward classes does not arise. Therefore, it is clear that the purpose or the true intendment of this Act is only to first divide the castes in the Presidential List of the Scheduled Castes into 4 groups and then divide 15% of reservation allotted to the Scheduled Castes as a class, amongst these 4 groups. Thus it is clear that the Act does not for the first time provide for reservation to the Scheduled Castes but only intends to redistribute the reservation already made by subclassifying the Scheduled Castes which is otherwise held to be a class by itself. It is a well-settled principle in law that reservation to a backward class is not a constitutional mandate. It is the prerogative of the State concerned if it so desires, with an object of providing opportunity of advancement in the society to certain backward classes which includes the Scheduled Castes, to reserve certain seats in educational institutions under Article 15(4) and in public services of the State under Article 16(4). That part of its constitutional obligation, as stated above, has already been fulfilled by the State.

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Having done so, it is not open to the State to subclassify a class already recognised by the Constitution and allot a portion of the already reserved quota amongst the State- created subclass within the list of Scheduled Castes. From the discussion hereinabove, it is clear that the primary object of the impugned enactment is to create groups of subcastes in the list of Scheduled Castes applicable to the State and, in our opinion, apportionment of the reservation is only secondary and consequential. Whatever may be the object of this subclassification and apportionment of the reservation, we think the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. Therefore, we are of the opinion that in pith and substance the enactment is not a law governing the field of education or the field of State public services.”

154. It can thus be seen that this Court held that whatever may be the object of the sub-classification and apportionment of the reservation, the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. The Court held that, in pith and substance the enactment is not a law governing the field of education or the field of State public services.

155. Then the Court posed a question as to whether the impugned enactment creates sub-classification or micro-classification of the Scheduled Castes so as to violate Article 14 of the Constitution. The same is answered as under: “41. The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to

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be subdivided or subclassified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the list. Such subclassification would be violative of Article 14 of the Constitution. It may be true, as has been observed by the High Court, that the caste system has got stuck up in the society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalising the reservation to the Scheduled Castes the constitutional mandate of Articles 14, 15 and 16 could be violated.

42. Reservation must be considered from the social objective angle, having regard to the constitutional scheme, and not as a political issue and, thus, adequate representation must be given to the members of the Scheduled Castes as a group and not to two or more groups of persons or members of castes.

43. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of clause (4) of Article 15 and clause (4) of Article 16 of the Constitution, a further classification by way of micro-classification is not permissible. Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List can be done only by Parliament. The logical corollary