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

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thereof would be that the State Legislatures are forbidden from doing that. A uniform yardstick must be adopted for giving benefits to the members of the Scheduled Castes for the purpose of the Constitution. The impugned legislation being contrary to the above constitutional scheme cannot, therefore, be sustained.”

156. It has been held that the conglomeration of castes given in the Presidential Order should be considered as representing a class as a whole. It has been held that 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 be subdivided or subclassified further. It has been held that 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.

157. The Court also held that classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness.

158. S.B. Sinha, J. in his separate concurring opinion held thus: “93. Scheduled Caste, however, is not a caste in terms of its definition as contained in Article 366(24) of the Constitution. They are brought within the purview of the said category by reason of their abysmal backwardness. Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes. They are not merely backward but the backwardmost. A person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion. (See Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204] and State of Kerala v. Chandramohanan [(2004) 3 SCC 429 : 2004 SCC (Cri) 818 : AIR 2004 SC 1672].)”

159. It could thus be seen that His Lordship has also recognized that the Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes and that they are not merely backward but the backwardmost.

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160. After referring to the observations of this Court in Indra Sawhney (supra) regarding the applicability of ‘means test’ and ‘creamy-layer test’, the Learned Judge observed thus: “96. But we must state that whenever such a situation arises in respect of Scheduled Caste, it will be Parliament alone to take the necessary legislative steps in terms of clause (2) of Article 341 of the Constitution. The States concededly do not have the legislative competence therefor.”

161. It is further observed in paragraph 113 thus: “113. The power of the State Legislature to decide as regards grant of benefit of reservation in jobs or in educational institutions to the backward classes is not in dispute. It is furthermore not in dispute that if such a decision is made the State can also lay down a legislative policy as regards extent of reservation to be made for different members of the backward classes including Scheduled Castes. But it cannot take away the said benefit on the premise that one or the other group amongst the members of the Scheduled Castes has advanced and, thus, is not entitled to the entire benefit of reservation. The impugned legislation, thus, must be held to be unconstitutional.”

162. The Learned Judge observed that the State can lay down a legislative policy as regards extent of reservation to be made for different members of the backward classes including Scheduled Castes. However, it cannot take away the said benefit on the premise that one or the other group amongst the members of the Scheduled Castes has advanced and, thus, is not entitled to the entire benefit of reservation. G. M. Nagaraj vs. Union of India

163. Next in line is the case of M. Nagaraj and others vs. Union of India and others,14 where the Constitution Bench of this Court was considering, inter alia, the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-first

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Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000, and the Constitution (Eighty-fifth Amendment) Act, 2001. Answering the aforesaid, the Court observed thus: “121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub- classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385], the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481].

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in

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public employment in addition to compliance with Article

335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.”

164. It could thus be seen that in M. Nagaraj (supra), the Court applied the test of creamy layer and the requirement for collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class even insofar as the Scheduled Castes and Scheduled Tribes are concerned. H. Jarnail Singh vs. Lachhmi Narain Gupta

165. The correctness of the decision in M. Nagaraj was referred to the Constitution Bench in the case of Jarnail Singh and others vs. Lachhmi Narain Gupta and others.15 The Constitution Bench in the said case considered two issues: firstly, with regard to the correctness of the view taken in M. Nagaraj about the requirement of collecting quantifiable data showing backwardness and inadequacy of representation of Scheduled Castes and Scheduled Tribes in public employment; and secondly, with regard to applicability of the creamy layer principle even to the Scheduled Castes and Scheduled Tribes.

166. The Court, insofar as the first issue is concerned, held that the requirement of collection of quantifiable data on backwardness and inadequacy of representation of Scheduled Castes and Scheduled Tribes in public employment is concerned, is contrary to the 9-Judge Bench judgment in the case of Indra Sawhney and liable to be struck down to that extent. However, insofar as the second issue regarding making the creamy layer principle applicable even to Scheduled Castes and Scheduled Tribes is concerned, the Court observed thus:

15 [2018] 10 SCR 663 : (2018) 10 SCC 396

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“26. The whole object of reservation is to see that Backward Classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation.

27. We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and

342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that constitutional courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub-group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. One of the most important principles that has been frequently applied in constitutional law is the doctrine of harmonious interpretation. When Articles 14 and 16 are harmoniously interpreted along with other Articles 341 and 342, it is clear that Parliament will have complete freedom

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to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, constitutional courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India. We do not agree with Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35] that the creamy layer principle is merely a principle of identification and not a principle of equality.

28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We may also add at this juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied by a number of judgments of this Court, namely: 28.1. Anil Chandra v. Radha Krishna Gaur [Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC 454 : (2009) 2 SCC (L&S) 683] (two-Judge Bench) (see paras 17 and 18). 28.2. Suraj Bhan Meena v. State of Rajasthan [Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 : (2011) 1 SCC (L&S) 1] (two-Judge Bench) (see paras 10, 50, and 67). 28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar [U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1 : (2012) 2

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SCC (L&S) 289] (two-Judge Bench) [see paras 61, 81(ix), and 86]. 28.4. S. Panneer Selvam v. State of T.N. [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 : (2016) 1 SCC (L&S) 76] (two-Judge Bench) (see paras 18, 19, and 36). 28.5. Central Bank of India v. SC/ST Employees Welfare Assn. [Central Bank of India v. SC/ST Employees Welfare Assn., (2015) 12 SCC 308 : (2016) 1 SCC (L&S) 355] (two-Judge Bench) (see paras 9 and 26). 28.6. Suresh Chand Gautam v. State of U.P. [Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] (two-Judge Bench) (see paras 2 and 45). 28.7. B.K. Pavitra v. Union of India [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] (two-Judge Bench) (see paras 17 to 22).”

167. The Court in unequivocal terms held that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. It is observed that the caste or group or sub-group named in the said List continues exactly as before. It has been further observed that it is only those persons within that group or sub-group, who, on account of belonging to the creamy layer, have come out of untouchability or backwardness would be excluded from the benefit of reservation.

168. The Court observed that even if we assume that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within the lists notified under Articles 341 and 342, constitutional courts, applying Articles 14 and 16 of the Constitution would be entitled to exclude the creamy layer. It has been held that the Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India.

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IV. PRESENT REFERENCE

170. Vide the judgment in The State of Punjab & Ors. vs. Davinder Singh & Ors.,18 the Constitution Bench observed thus: “52. The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the List based on the rationale that would conform with the very spirit of Articles 14, 15 and 16 of the Constitution providing reservation. The State Government cannot tamper with the List; it can neither include nor exclude any caste in the List or make enquiry whether any synonym exists as held

16 (2020) 8 SCC 65 17 (2020) 8 SCC 63 18 (2020) 8 SCC 1

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in Milind [State of Maharashtra v. Milind (2001) 1 SCC 4 : 2001 SCC (L&S) 117] .

53. The State Government is conferred with the power to provide reservation and to distribute it equitably. The State Government is the best judge as to the disparities in different areas. In our opinion, it is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit.

54. Apart from that, the other class out of Scheduled Castes/ Scheduled Tribes/socially and educationally backward classes, who is not denied the benefit of reservation, cannot claim that whole or a particular percentage of reservation should have been made available to them. The State can provide such preference on rational criteria to the class within Lists requiring upliftment. There is no vested right to claim that reservation should be at a particular percentage. It has to accord with ground reality as no one can claim the right to enjoy the whole reservation, it can be proportionate one as per requirement. The State cannot be deprived of measures for upliftment of various classes, at the same time, which is the very purpose of providing such measure. The spirit of the reservation is the upliftment of all the classes essential for the nation›s progress.

55. In the federal structure, the State, as well as Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and (sic educationally) backward classes. Only inclusion or exclusion in the Presidential notification is by Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class,

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cannot be said to be violative of the List under Articles 341, 342 and 342-A as no enlisted caste is denied the benefit of reservation.

56. The “inadequate representation” is the fulcrum of the provisions of Article 16(4). In our opinion, it would be open to the State to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.

57. The interpretation of Articles 14, 15, 16, 338, 341, 342 and 342-A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.”

171. Recording the above observations, the Constitution Bench requested the Hon’ble Chief Justice to place the matter before the 7 Judges or more as considered appropriate. The matter was thus placed before the present Bench. V. CONSIDERATION

172. At one stage, the atrocious caste discrimination in India had even surpassed the racial discrimination and the slave trade, premised on the colour of skin, in other parts of the world. For centuries the people belonging to certain castes were inhumanly treated by the upper classes in society. They have been treated worse than animals. They were not permitted to be touched by the upper classes. In some areas, even the upper classes did not permit the shadow of such people to fall on them. As such, while walking, they were required to maintain a distance so that their shadow does not pollute the upper caste. In some areas, they were required to tie a broom to their back so that they clean the path after they travel from the same.

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173. These people were also denied water from the common places. In the villages where the water was drawn from the rivers, they were required to draw water from the downstream so that the water taken by the people from higher classes is not polluted. They were also denied the right to education. In schools, either they were required to sit separately or take their lessons standing outside their classroom.

174. While India was struggling to gain freedom from the colonial rulers, the country also witnessed a parallel movement for eradication of these inequalities and upliftment of the classes which were being treated inhumanly.

175. It would be apposite to refer to the statement by Dr. B.R. Ambedkar in ‘Evidence before the Southborough Committee’ (1919), where he gave several examples of the unjust treatment meted out to the untouchables by the oppressor castes as thus19: “From an untouchable trader no Hindu will buy. An untouchable cannot be engaged in lucrative service. Military service had been the monopoly of the untouchables since the days of the East India Company. They had joined the Army in such large numbers … But after the mutiny when the British were able to secure soldiers from the ranks of the Marathas, the position of the low-caste men who had been the prop of the Bombay Army became precarious, not because the Marathas were better soldiers but because their theological bias prevented them from serving under low-caste officers. The prejudice was so strong that even the non-caste British had to stop recruitment from the untouchable classes. In like manner, the untouchables are refused service in the Police Force. In a great many of the Government offices it is impossible for an untouchable to get a place. Even in the mills a distinction is observed. The untouchables are not admitted in Weaving Departments of the Cotton Mills though many of them are professional weavers. An instance at hand may be cited from the school system of

19 B.R. Ambedkar, ‘Evidence before the Southborough Committee on Franchise’ in Dr. Babasaheb Ambedkar: Writings and Speeches, ed. Vasant Moon, Ministry of Social Justice and Empowerment 2019, Vol.I, p. 255.

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the Bombay Municipality. This most cosmopolitan city ruled by a Corporation with a greater freedom than any other Corporation in India has two different sets of schools … one for the children of touchables and the other for those of the untouchables. This in itself is a point worthy of note. But there is something yet more noteworthy. Following the division of schools it has divided its teaching staff into untouchables and touchables. As the untouchable teachers are short of the demand, some of the untouchable schools are manned by teachers from the touchable class. The heart-killing fun of it is that if there is a higher grade open in untouchable school service, as there is bound to be because of a few untouchable trained teachers, a touchable teacher can be thrust into the grade. But if a higher grade is open in the touchable school service, no untouchable teacher can be thrust into that grade. He must wait till a vacancy occurs in the untouchable service! Such is the ethics of the Hindu social life.”

176. Dr. Ambedkar in order to fight against the inhuman treatment of untouchables, who were not even allowed to draw water from the common place, held an agitation at Mahad known as “Mahad Satyagraha” on 20th March 1927 so that the untouchables could be permitted to draw water from a public tank at Mahad.

177. Dr. Ambedkar also led agitations for opening the doors of places of worship to the untouchables. One such agitation which he led was in Nashik and was popularly known as “Kalaram Temple Satyagraha”.

178. Dr. Ambedkar was of the view that if untouchables come out of that stigma and participate in nation-building, they will only contribute to the progress of the nation. He was of the view that the movement for removal of untouchability is in true sense a movement for nation- building and fraternity.

179. I can gainfully refer to the collection of views of Dr. Ambedkar as put together lucidly by Anurag Bhaskar in the book appropriately titled as “The Foresighted Ambedkar”,20 which reads thus:

20 Anurag Bhaskar, The Foresighted Ambedkar: Ideas that shaped Indian constitutional Discourse (Viking by Penguin Random House 2024).

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“He asserted that the issue of temple entry or access to public resources is an issue of equality. He stated: “Another argument these Touchables give is that even if they do not allow the Untouchables into their temples, all are free to build a temple for themselves. I would like to ask those so-called learned ones why they object to Railways for having separate coaches for Whites and Indians? …There is only one answer to this and that is: it is not a matter of travel only, it is a matter of equality! … The Untouchables have the same reason for demanding the right to worship God in the same temple. They want to prove that the temple is not defiled by their entry ….. The Untouchables are not servants … On the basis of this alone they should accept the rights of the Untouchables. And when there are rights there is no question of custom of usage.”21 He further added that public property cannot be used as the private property of the oppressor castes. He noted: “Legally, the right to public property is not required to be established by any deed; it is available automatically to everybody. Even if he has no usage or it was not continuous, it does not deprive him of that right. Suppose, somebody did not walk on a particular road, does that mean he can never use that road? Therefore, it would be quite idiotic to say that since Untouchables never went to the temple or never drew water from the public wells, so now they cannot do that.”22 Dr. Ambedkar also dismissed the contention of the oppressor castes that the Untouchables should wait for them to change and allow equal rights. He referred to the Thirteenth Amendment to the American Constitution, which

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abolished slavery, to demand accountability and action from the oppressor castes. He stated: “I am aware that some Touchables are suggesting that the matter of equal rights for the Untouchables should be allowed to be resolved by the Touchables amongst themselves. It cannot be resolved by the movement of the Untouchables. The Untouchables should wait till the Touchables willingly allow them such equal rights. How can it be trusted that they will willingly grant such rights to the Untouchables? It will be sheer stupidity to wait for such a miracle to happen … Another section of the Touchables tells us that even if we launch our movement, we will not succeed. If we launch a struggle, whatever few Touchables who have sympathy with our cause will feel offended and we will lose their sympathy. The progressive Touchables will then join the orthodox Hindus against us. I want to tell them that if they have sympathy for us, if they feel anguished about the injustice caused to us, then they should support us wholeheartedly like the Whites supported the Blacks in America to end slavery. Otherwise, it does not matter whether you have sympathy or hatred towards us.””23

180. Accordingly, when I consider the present issue, I will have to consider it in this background.

181. It is a matter of great coincidence that Dr. Ambedkar, who fought for the cause of social equality and eradication of inhuman treatment for generations, got an opportunity to work as the Chief Architect of the Constitution of India.

182. I have already referred to his speech on draft Article 300A and draft Article 300B (now Articles 341 and 342). It will also be apposite to refer to the relevant part of Dr. Ambedkar’s speech on 30th November 1948 on Article 16 (which was draft Article 10), which reads thus:

23 Ibid.

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“Article 16 (Article 10 in Draft Constitution) The Hon’ble Dr. B.R. Ambedkar: ……..As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration. If honourable Members will bear these facts in mind–the three principles, we had to reconcile,–they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now–for historical reasons–been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub- clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find

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its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as “backward” the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word `backward’ which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly………..”

183. It could thus be seen that Dr. Ambedkar emphasized that a formula was required to be produced which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration. Dr. Ambedkar states that the equality of opportunity as specified in clause (1) has to be reconciled with the demand made by certain communities. He states that on account of historical reasons, the administration has been controlled by one community or a few communities, that such a situation should disappear and that the others also must have an opportunity of getting into the public services. However, he states that if the demand of such communities, in full, is accepted, it will destroy the first principle of equality guaranteed in clause (1). He gives an instance that if certain communities which are unrepresented or a group of communities have a population of 70% and if 70% reservation is provided for such communities, leaving only 30% for the open competition, it will destroy the very concept of equality of opportunity. He therefore advocates for confinement of reservation to a minority of seats. He therefore states that unless some qualifying phrase as “backward” is used for making reservation, the entire rule would be unworkable. He therefore justifies the efforts of the Drafting Committee in employing the word ‘backward’.

184. It will further be apposite to refer to the following observation in the said speech.

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Article 16 (Article 10 in Draft Constitution) “The Hon’ble Dr. B.R. Ambedkar: ……..Somebody asked me: “What is a backward community”? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend, Mr. T. T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner. …………”

185. Dr. Ambedkar observed that “what is a backward community” will have to be determined by each local Government. A backward community, in his view, is a community which is backward in the opinion of the Government. He also foresighted that if the local Government included in this category of reservations such a large number of seats, one could very well go to the Federal Court and the Supreme Court and contend that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed. He also foresighted that the court will then conclude whether the local Government or the State Government has acted in a reasonable and prudent manner.

186. His foresight as to the debate regarding the identification of the backward classes and the extent of reservations can be judged from the spate of litigations that this country has witnessed for last 74 years.

187. It could thus be seen that initially insofar as the issue regarding the identification of the backward classes except the Scheduled Castes and Scheduled Tribes was concerned, the same was left to the Executive. Insofar as the identification of Scheduled Castes

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and Scheduled Tribes is concerned, the Constitution of India under Articles 341 and 342 provided the issuance of a general notification specifying all the castes and tribes or groups thereof to be Scheduled Castes and Scheduled Tribes for the purposes of privileges which have been defined in the Constitution.

188. I have already referred to Dr. Ambedkar’s speech about the introduction of the said provisions. He, however, stated that if any elimination was to be made from the list so notified or any addition was to be made then they must be made by Parliament and not by the President. He stated that the object behind the same was to eliminate any kind of political factors having play in the matter.

189. As already discussed herein above, the question insofar as identification of Other Backward Classes is concerned, was left to the State. Insofar as the identification of Scheduled Castes and Scheduled Tribes is concerned, the same was complete at the stage of enactment of the Constitution in view of Articles 341 and 342 and any addition or alteration to the said notified list was permissible only by an Act of Parliament. It is further to be noted that the foundation of the Presidential List issued under Articles 341 and 342 finds place in the 1936 Order issued under the provisions of the 1935 Act.

190. No doubt that by the Constitution (One hundred and Second Amendment) Act, 2018, Article 342A regarding socially and educationally backward classes has been inserted. Clause (26C) in Article 366 of the Constitution of India has also been inserted by the said Amendment insofar as socially and educationally backward classes are concerned. It was sought to be argued before us that in view of the Constitution (One hundred and Second Amendment) Act, 2018, read with the law laid down by this Court in the case of Indra Sawhney regarding Other Backward Classes, the judgment of this Court in E.V. Chinnaiah needs a relook.

191. I do not find it necessary to go into that aspect of the matter, since I find that E.V. Chinnaiah does not correctly consider the provisions of Articles 46, 335, 14, 15 and 16 of the Constitution of India, as have been interpreted by the earlier precedents of this Court. I have discussed hereinbelow in depth as to how E.V. Chinnaiah incorrectly interpreted the earlier precedents.

192. This Court in E.V. Chinnaiah in paragraph 13, while considering the effect of Article 341 of the Constitution, held that there can be

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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. It is further observed that any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. This Court held that there is no reference to any sub-classification or division in the said list in any of the provisions of the Constitution except, maybe, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of the People. This Court held that it was clear to it 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.

193. Thereafter, referring to the view expressed by Mathew, J., Krishna Iyer, J and Fazal Ali, J. in the case of N.M. Thomas, it is held in paragraph 26 that castes once included in the Presidential List, form a class by themselves. Then the Court held 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.

194. In paragraph 31, it is observed that once the State reserve certain seats in educational institutions under Article 15(4) and in public services of the State under Article 16(4) in fulfillment of its constitutional obligation, it is not open to the State to subclassify a class already recognized by the Constitution and allot a portion of the already reserved quota amongst the State-created subclass within the list of Scheduled Castes.

195. In paragraph 38, this Court after referring to the case of Indra Sawhney held that the principles laid down in Indra Sawhney for sub-classification of Other Backward Classes cannot be applied for subclassification or subgrouping of Scheduled Castes in the Presidential List because that very judgment itself specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes.

196. In paragraph 41, this Court held that the conglomeration of castes given in the Presidential Order, in their opinion, should be considered as representing a class as a whole. It is held that the very idea of placing different castes or tribes or group or part thereof in a State as

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a conglomeration by way of a deeming definition clearly suggested that they were not to be subdivided or subclassified further. It goes on to hold that if a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the list and would amount to violation of Article 14 of the Constitution. The Court then disagreed 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. The Court, taking note of the fact that the benefits of reservation are not percolating to them equitably, suggested that measures should be taken to see that they are given such adequate or additional training to enable them to compete with the others.

197. This Court in paragraph 43 observed that 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, a further classification by way of micro-classification was not permissible.

198. To ascertain if E.V. Chinnaiah is good law, I will have to first examine whether the finding in E.V. Chinnaiah that N.M. Thomas held the Scheduled Castes to be a homogeneous group is correct or not.

199. E.V. Chinnaiah relies on the judgment of Mathew, J. in N.M. Thomas. In paragraph 82, what Mathew, J. observed is that it is by virtue of the notification of the President that the Scheduled Castes come into being. It has been observed that though the members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of the Presidential Notification.

200. It cannot be disputed that there is no caste by the name of “Scheduled Castes”. As has been discussed in earlier paragraphs, the term “Scheduled Castes” has come on account of the 1936 Order and the 1950 Order.

201. There can be no doubt that once the castes, races, tribes or part of or groups of such castes, races or tribes are included in the Presidential Notification they shall be deemed to be Scheduled Castes for the purposes of the Constitution.

202. Then E.V. Chinnaiah refers to the judgment of Krishna Iyer, J. in N.M. Thomas. Krishna Iyer, J. in paragraph 135 observed that

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a bare reading of Article 341 and 342 shows that there are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. The Learned Judge observed that to confuse this backwardmost social composition with castes is to commit a constitutional error.

203. The observations made by the Learned Judge are in the context of the arguments that any special treatment on the ground of caste is prohibited under Article 16(2). The Learned Judge observed that Article 16(2) was not coming in the way to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division. The Learned Judge further observed that the Indian jurisprudence has generally regarded Scheduled Castes and Scheduled Tribes not as caste but as a large backward group deserving of societal compassion.

204. E.V. Chinnaiah thereafter relies on Fazal Ali, J.’s judgment.

205. Again, the observations made by Fazal Ali, J. in paragraph 169, are with regard to the arguments based on prohibition of Article 16(2). It is observed that the Scheduled Castes and Scheduled Tribes do not fall with the purview of Article 16(2) of the Constitution, which prohibits discrimination between the members of the same caste. It is observed that if, therefore, the members of the Scheduled Castes and the Scheduled Tribes are not castes, then it is open to the State to make reasonable classification to advance or lift these classes so that they may be able to be properly represented in the services under the State.

206. However, on reading of the majority judgments in N.M. Thomas it does not show that the Scheduled Castes are homogeneous group and sub-classification therein is not permissible.

207Copy pinpoint207. In paragraph 44 of the judgment in N.M. Thomas, Ray, C.J. observed that the equality of opportunity for unequals can only mean aggravation of inequality; equality of opportunity admits discrimination with reason and prohibits discrimination without reason; and discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. It is observed that preferential representation for the Backward Classes in services

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with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognized by the Constitution. He therefore held that the differential treatment in standards of selection is within the concept of equality.

208Copy pinpoint208. Mathew, J. in paragraph 54, refers to the principle of proportional equality and held that it can be attained only when equals are treated equally and unequals unequally. He held that differential treatment would be allowed if there is significant difference among the persons who are treated differentially.

209Copy pinpoint209. In paragraph 73, the Learned Judge observed that the State should adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.

210Copy pinpoint210. In paragraph 75, the Learned Judge observed that such sort of preferential treatment would be permissible under Article 16(1) as such a preferential treatment alone would put the backward class people on a parity with the forward communities. The Learned Judge observed that whether there is equality of opportunity can be gauged only by the equality attained in the result. He states that formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. It is observed that the equality of result is the test of equality of opportunity.

211Copy pinpoint211. Krishna Iyer, J. in paragraph 119 refers to the concept of ‘social engineering’. He quotes from a book that “One law for the Lion and Ox is oppression”.

212Copy pinpoint212. In paragraph 129, after considering the constitutional scheme, the Learned Judge observed that the Constitution itself demarcates harijans from others. That this is based on the stark backwardness of this bottom layer of the community. It is observed that the differentiation has been made to cover specifically the area of appointments to posts under the State. He further held that the twin objects, blended into one, are the claims of harijans to be considered in such posts and the maintenance of administrative efficiency. The Learned Judge observed that the State has been obligated to promote the economic interests of harijans and like backward classes.

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213Copy pinpoint213. In paragraph 142, the Learned Judge observed that the genius of Articles 14 to 16 consists not in literal equality but in progressive elimination of pronounced inequality. He observed that to treat sharply dissimilar persons equally is subtle injustice.

214Copy pinpoint214. In paragraph 149, Krishna Iyer, J. while concluding observed that “the heady upper berth occupants from ‘backward’ classes do double injury. They beguile the broad community into believing that backwardness is being banished. They rob the need-based bulk of the backward of the ‘office’ advantages the nation, by classification, reserves or proffers”.

215Copy pinpoint215. Fazal Ali, J. in paragraph 165, referring to clauses (24) and (25) of Article 366 of the Constitution observed that the said provisions create a presumption in favour of Scheduled Castes and Scheduled Tribes that they are backward classes of citizens. It is observed that it is not disputed that the members of the Scheduled Castes and Scheduled Tribes are specified in the notifications issued under Articles 341 and 342 of the Constitution and, therefore, they must be deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the Constitution.

216Copy pinpoint216. In paragraph 178, the Learned Judge observed that 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. He observed that if this artificial interpretation is put on the scope and ambit of Article 16 it will lead to channelization of legislation or polarization of rules. It is 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 has to come to terms with life and must be able to recognize the genuine differences and disparities that exist in human nature.

217Copy pinpoint217. The Learned Judge also held that the equality enshrined in clause (1) of Article 16 of the Constitution 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. He observed that that 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 lays down the conditions for the classification to be a reasonable one.

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218Copy pinpoint218. It can thus be seen that in none of the judgments in N.M. Thomas it is held that the Scheduled Castes are a homogeneous class. It has been held that once the Scheduled Castes and Scheduled Tribes have been identified and they find a place in the Presidential List, they will continue to be the Scheduled Castes and Scheduled Tribes. It has been held that by the very fact of they being included in the Presidential List, they are deemed to be backward and no further enquiry regarding their backwardness would be warranted.

219Copy pinpoint219. In Akhil Bharatiya Soshit Karamchari Sangh (supra), Krishna Iyer, J., in paragraph 94, rejects the plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions and that a swallow does not make a summer. He further observed that 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.

220Copy pinpoint220. Again, in paragraph 98, he considered the argument that there are rich and influential harijans who rob all the privileges leaving the serf- level sufferers as suppressed as ever. He advised the Administration to innovate and classify to weed out the creamy layer of Scheduled Castes/Scheduled Tribes. However, he observed that the Court cannot force the State in that behalf.

221Copy pinpoint221. In K.C. Vasanth Kumar, Chandrachud, C.J. in paragraph 2, observed that the reservation in employment and education in favour of Scheduled Castes and Scheduled Tribes must continue without the application of a means test for a further period not exceeding 15 years. He observed that after the said period of 15 years, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes. Insofar as Other Backward Classes are concerned, he stated that 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.

222Copy pinpoint222. Desai, J. in paragraph 31, observed that the approach suggested by him does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes since thousands of years of discrimination

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and exploitation cannot be wiped out in one generation. However, he suggested that 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.

223Copy pinpoint223. Chinnappa Reddy, J. in paragraph 51 did not agree with the view that while determining the social backwardness of other classes, the test to be applied is nearness to the conditions of existence of the Scheduled Castes. He observed that such a test would practically nullify the provision for reservation for socially and educationally backward classes other than Scheduled Castes and Tribes.

224Copy pinpoint224. Chinnappa Reddy, J. in paragraph 79, notes that a few members of those castes or social groups may have progressed far enough and forged ahead to compare favourably with the leading forward class economically, socially and educationally. He suggests that in such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it.

225Copy pinpoint225. As already discussed hereinabove, the 9-Judge Bench of this Court in Indra Sawhney has in unequivocal terms held that further classification of backward classes into more backward classes is permissible in law.

226Copy pinpoint226. Jeevan Reddy, J. in paragraph 802, in the case of Indra Sawhney, gives an illustration with regard to two occupational groups viz., goldsmiths and vaddes (traditional stonecutters in Andhra Pradesh). He stated that both are included within Other Backward Classes. He observed that none can deny that goldsmiths are far less backward than vaddes and so if both are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. The Learned Judge further observed that in such a situation, a State may think it advisable to make a categorization even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. He stated that where to draw the line and how to effect the sub-classification, however, is a matter for the Commission and the State and so long as it is reasonably done, the Court may not intervene.

227Copy pinpoint227. It will also be relevant to note that in paragraph 803, the Learned Judge observed that Article 16(4) recognizes only one class i.e.,

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“backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). The Learned Judge 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. The Learned Judge observed 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. He states that the same logic also warrants categorization as between more backward and backward.

228Copy pinpoint228. As has already been noted before, in paragraph 781 of Indra Sawhney, Jeevan Reddy, J. states that for the purpose of the discussion in the judgment, the Scheduled Castes and Scheduled Tribes, which were admittedly included within the backward classes, were kept aside.

229Copy pinpoint229. It is pertinent to note that the said discussion in the judgment was pertaining to “identification” of backward classes of citizens. As discussed hereinabove, insofar as the Scheduled Castes and Scheduled Tribes are concerned, identification is already covered by the Presidential List issued under Artiles 341 and 342.

230Copy pinpoint230. Sawant, J. in his judgment also held that Article 16(4) permits classification of backward classes into backward and more or most backward classes. However, this classification is permitted only because of the degrees of social backwardness and not based on economic consideration alone. He held that if backward classes are classified into backward and more or most backward classes, separate quotas of reservations would be kept for each of such classes. In the absence of such separate quotas, the reservations will be illegal.

231Copy pinpoint231. This Court in E.V. Chinnaiah has observed that the law laid down in the case of Indra Sawhney would not be applicable since Jeevan Reddy, J. in his judgment has himself stated that the same would not be applicable to Scheduled Castes and Scheduled Tribes in paragraph 781, which paragraph deals with identification of backward classes of citizens. Jeevan Reddy, J. states that for the purpose of the said discussion, we keep aside the Scheduled Castes and Scheduled Tribes. He observed that this was done since they are admittedly included within the backward classes. However,

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in paragraph 803, he specifically observed that under Article 16(4) there is no mention of Scheduled Castes and Scheduled Tribes and that Scheduled Castes and Scheduled Tribes are also part of backward class of citizens.

232Copy pinpoint232. Insofar as the observation in paragraph 792 wherein Jeevan Reddy, J. observed that the said discussion has no relevance in the case of Scheduled Tribes and Scheduled Castes is concerned, the said discussion was regarding applicability of the ‘means test’ or ‘creamy layer test’.

233Copy pinpoint233. That being the case, if the Scheduled Castes and Scheduled Tribes are a part of backward class of citizens under Article 16(4), then the question would be, as to why sub-classification which is permitted in case of Other Backward Classes cannot be permitted in case of Scheduled Castes and Scheduled Tribes?

234Copy pinpoint234. Though the initial view of this Court was that Article 16(4) is by way of exception to Article 16(1), the same has undergone a thorough change, particularly after the judgment of this Court in the case of His Holiness Kesavananda Bharati Sripadagalavaru vs. State of Kerala 24 in relation to interplay between the Fundamental Rights and the Directive Principles. Shortly after the judgment in Kesavananda Bharati, came the judgment of 7-Judge Bench of this Court in N.M. Thomas wherein the 5-Learned Judges took a view that Article 16(4) was not by way of exception to Article 16(1). It was held that the trinity of Articles 14 to 16 embodied the concept of equality. It was emphasized that equality does not mean equality to all. It was held that equality as enshrined under the Constitution did not mean formal equality but real equality. It was held that to bring real equality unequal treatment to unequals was what was contemplated under the Constitution. It was held that if unequals are to be treated equally it will lead to nothing else but perpetuating inequality. It was held that only giving an unequal treatment to unequals so that they can march ahead can bring out real equality.

235Copy pinpoint235. This Court in unequivocal terms held that preferential treatment for members of backward classes alone can mean equality of opportunity for all citizens. The Court held that clause (4) of Article 16 was an emphatic way of stating a principle implicit in Article 16(1).

24 [1973] Supp. SCR 1 : (1973) 4 SCC 225

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236Copy pinpoint236. Ray, C.J. observed that all legitimate methods were available for equality of opportunity in services under Article 16(1). He stated that Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1)

237Copy pinpoint237. Mathew, J. observed that the claim for equality is in fact a protest against unjust, underserved and unjustified inequalities. It is a symbol of man’s revolt against chance, fortuitous disparity, unjust power and crystallized privileges. He stated that if equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried i.e., even up to the point of making reservation.

238Copy pinpoint238. In paragraph 83, he emphatically states that it is a mistake to assume a priori that there can be no classification within a class. He states that if there are intelligible differentia which separates a group within that class from the rest and that differentia has nexus with the object of classification, then there should be no objection to a further classification within the class.

239Copy pinpoint239. Krishna Iyer, J. in paragraph 124 refers to the research conducted by the A.N. Sinha Institute of Social Studies, Patna which would reveal a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions. He observed that, for them, Articles 46 and 335 remain a ‘noble romance’, the bonanza going to the ‘higher’ harijans. He states in paragraph 136 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. He observes in paragraph 142 that the genius of Articles 14 to 16 consists not in literal equality but in progressive elimination of pronounced inequality. According to him, to treat sharply dissimilar persons equally is subtle injustice. He held that if Article 16(4) admits of reasonable classification, so does Article 16(1).

240Copy pinpoint240. In K.C. Vasanth Kumar, Y.V. Chandrachud, C.J. observed that the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after a period of 15 years from the date of the judgment. Desai, J. in the said judgment observed that even in the case of Scheduled Castes and Scheduled Tribes the economic criterion was worth applying by refusing preferred

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treatment to those amongst them who have already benefitted by it and improved their position.

241Copy pinpoint241. Fazal Ali, J., after referring to all the judgments of the Learned Judges in Kesavananda Bharati with regard to interplay between Part III and Part IV of the Constitution, held that Fundamental Rights guaranteed by the Constitution has to be read in harmony with the Directive Principles contained in Part IV. He also reiterates that Article 16(4) is not a proviso to Article 16(1).

242Copy pinpoint242. M.H. Beg, J. concurs with the views expressed by the aforesaid Learned Judges.

243Copy pinpoint243. Further, Krishya Iyer, J. in Akhil Bharatiya Soshit Karamchari Sangh reiterates that Articles 14 to 16 form a code by themselves and embody the distilled essence of the Constitution’s casteless and classless egalitarianism. He states that 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”. He states that reading Article 46 together with Article 16(4), the inference is obvious that administrative participation by the Scheduled Castes and Scheduled Tribes shall be promoted with special care by the State.

244Copy pinpoint244. While considering the criticism that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever, he suggested that the Administration may well innovate and classify to weed out the creamy layer of SCs/STs. However, records a caution that the Court cannot force the State in that behalf.

245Copy pinpoint245. Chinnappa Reddy, J. in the same judgment states that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws. He states that the Directive Principles should serve the courts as a code of interpretation. He states that the Fundamental Rights should be interpreted in the light of the Directive Principles and the latter should, whenever and wherever possible, be read into the former.

246Copy pinpoint246. Chinnappa Reddy, J advocates that the State action should be towards protection and nourishment of the underprivileged, the

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deprived and the exploited so that they can take their place in an egalitarian society.

247Copy pinpoint247. In Indra Sawhney, 7 Learned Judges affirmed the position as laid down in N.M. Thomas that clause (4) of Article 16 is not by way of an exception to clause (1) of Article 16, but it is an emphatic way of stating a principle implicit in Article 16(1).

248Copy pinpoint248. As already discussed hereinabove, it has been held that further classification of backward classes into backward and more backward classes is permissible under the Constitution. The only caveat put by Sawant, J. is that if it is done there has to be a reservation for both backward as well as for more or most backward classes. It has been held in Indra Sawhney that under Article 16(4) the Scheduled Castes are also included in the term ‘backward class of citizens’.

249Copy pinpoint249. If that be so, I find no justification in E.V. Chinnaiah holding that the State is not empowered to do the exercise of sub-classification among the Scheduled Castes.

250Copy pinpoint250. The basic error that appears to have been committed in E.V. Chinnaiah is that it proceeds on the understanding that Article 341 has to do with the reservation of the seats.

251Copy pinpoint251. As already discussed hereinabove, Articles 341 and 342 are only with regard to identification of the Scheduled Castes and Scheduled Tribes. Articles 341 and 342 read with clauses (24) and (25) of Article 366 of the Constitution provide that those castes included in the Presidential List shall be deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the Constitution. However, at the cost of repetition, I reiterate that Articles 341 and 342 do not deal with reservation.

252Copy pinpoint252. The provisions of affirmative action including reservations in the matter of public employment are contained in Article 16 of the Constitution of India.

253Copy pinpoint253. As already discussed herein above, this Court in Indra Sawhney has held that further classification of backward classes into backward and more backward classes is permissible in law.

254Copy pinpoint254. By that corollary, if a State finds that any of the castes, races, tribes or part of or groups within the castes, races or tribes are not adequately represented, could the State be denied its right to make a special provision for that?

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255Copy pinpoint255. In a catena of decisions, this Court held that the State must resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. It has been held that State should take affirmative action by way of giving preference and reservation to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, to bring about real equality. Reference in this respect may be made to the Constitution Bench judgment of this Court in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and others,25 wherein this Court observed thus: “20. …. Reservations should and must be adopted to advance the prospects of weaker sections of society, but while doing so care should be taken not to exclude the legitimate expectations of the other segments of the community.”

256Copy pinpoint256. Some startling facts have been brought to our notice. Though the Presidential List for the State of Andhra Pradesh has a list of 60 Scheduled Castes, Justice Usha Mehra Commission Report26 shows that out of these 60 Scheduled Castes, only 4 or 5 had availed the benefits of reservation, leaving the rest of the Scheduled Castes in the Presidential List high and dry. The Report shows that the same has resulted in an anomaly that none of the majority caste despite their inclusion in the Presidential List for the State of Andhra Pradesh, have been able to seek reservation benefits including entry into Government service under the State except for the job of Sweepers and/or Farash.

257Copy pinpoint257. Insofar as the State of Punjab is concerned, it is sought to be urged on behalf of the State of Punjab that though Balmikis and Mazhabi Sikhs constitute 41.9% of the total population of the Scheduled Castes, the percentage of these categories in public employment is totally disproportionate to their population among the Scheduled Castes. In any case, it is urged that what is provided under the Act27 was only

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differential treatment insofar as 50% of the vacancies reserved for Scheduled Castes is concerned. Only if the candidates from these categories are available, the seats would go to these categories. On account of non-availability of the candidates from these categories, the seats would fall into the other categories of the Scheduled Castes.

258Copy pinpoint258. I find that, as has been observed by this Court in various judgments, it is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented. If the State while discharging that duty finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for Scheduled Castes and Scheduled Tribes, can the State be denied its right to give more preferential treatment for such categories? In my view, the answer would be in the negative, since the same would not amount to tinkering with the Presidential List.

259Copy pinpoint259. No doubt that if the State decides to provide 100% of the reservation for Scheduled Castes to one or more categories enlisted in the Presidential List in that State to the exclusion of some categories, it may amount to tinkering with that list because, in effect, it would amount to denial of benefit of reservation to those Scheduled Caste categories which have been excluded. In my view, that would, in effect, amount to deletion of the said categories from the Presidential List notified under Article 341 of the Constitution, which power is exclusively reserved with Parliament, in my opinion, such an exercise would not be permissible.

260Copy pinpoint260. In this respect, I may take support from the observations made by Sawant, J. in Indra Sawhney. He held that if the reservation is provided only for the more or most backward classes, then the people belonging to higher echelons would grab the open seats whereas the people from more or most backward classes would eat up the entire reservation, leaving the other backward classes high and dry. He therefore held that the sub-classification of backward classes would be permissible provided the reserved seats are available for backward classes as well as more or most backward classes. I am therefore of the considered view that merely because more preferential treatment is provided to the more backward or more inadequately represented among the Scheduled Castes, it would not amount to tinkering with the Presidential List. In my view, the same would be

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permissible in view of the law laid down by the 9-Judge Bench in the case of Indra Sawhney.

261Copy pinpoint261. The ground realities cannot be denied. Even among the Scheduled Castes, there are some categories who have received more inhuman treatment for centuries and generations as compared to the other categories. The hardships and the backwardness which these categories have suffered historically would differ from category to category. In my view, therefore, merely because they are part of a single or a combined Presidential List, it cannot be said that they form part of a homogeneous group. I therefore have no hesitation in holding that E.V. Chinnaiah has been wrongly decided.

262Copy pinpoint262. The concept of sub-classification was sought to be attacked on the ground that this would lead to giving reservation for political reasons. It was argued that a political party in power to gain political advantage may provide special treatment to a particular class in the list of Scheduled Castes. I see no merit in the argument.

263Copy pinpoint263. Dr. Ambedkar had foreseen such a difficulty. In his speech in the Constituent Assembly, Dr. B.R. Ambedkar said that ‘backward community” will have to be left to be determined by each local government. On a query by Shri T.T. Krishnamachari, as to whether this rule will be justiciable, he observed that it would be a justiciable matter. He stated that if the local Government included in this category of reservations such a large number of seats, one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

264Copy pinpoint264. Various judicial pronouncements referred to hereinabove have emphasized that a reasonable classification is implicit in the trinity of Articles 14 to 16. Therefore, if somebody approaches the Court, the Court can always examine as to whether such a classification is reasonable or not.

265Copy pinpoint265. For a classification to be reasonable, it will have to be established that any group or sub-group carved out in the larger group is significantly different than the larger group and that the classification has a nexus with the object to be achieved.

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266Copy pinpoint266. In a case, like the present one, if a classification is made, it will have to be established that the group carved out from the larger group is more disadvantageous and not adequately represented. The result of classification would be to provide more preferential treatment to this more disadvantageous and less represented group. The ultimate object would be to achieve real equality among all the sub-groups in the larger group.

267Copy pinpoint267. In any case, as has been held by judicial pronouncements, when the State does such an exercise, it will have to be supported by an empirical data. Unless the State or the Commission comes to a finding that the group carved out needs special treatment is more disadvantageous and not adequately represented as compared to the other categories in the group, such a sub-classification would not stand the scrutiny of the law. I, therefore, find that the fear that is posed is not substantiated.

268Copy pinpoint268. I find that the attitude of the categories in the Presidential List opposing such a sub-classification is that of a person in the general compartment of the train. Firstly, the persons outside the compartment struggled to get into the general compartment. However, once they get inside it, they make every attempt possible to prevent the persons outside such a compartment from entering it.

269Copy pinpoint269. In fact, what the people belonging to the categories who are availing of large chunk of reservations and denying a special treatment to the less privileged among them are doing, is what the people from the higher castes have done to these people for centuries as a result of which backward classes were kept away from the mainstream of society for ages, for no fault of theirs. Only on account of the principle of social and economic justice as enshrined under the Constitution, they have availed themselves of the benefits of special treatment. However, when the State endeavours to ensure that the said benefit percolates to the more underprivileged and less adequately represented, the sections from the Scheduled Castes who oppose them, stand in the shoes of those who oppressed them.

270Copy pinpoint270. The categories in the Presidential List who have already enjoyed a major chunk of reservations should not object to the State providing a special treatment to those who have been deprived of such a benefit

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and particularly when such a benefit is not being taken away from them. Only part of that benefit is being reserved for percolating the same to the more disadvantageous and less represented.

271Copy pinpoint271. I find that to achieve real equality as envisaged by this Court in various judicial pronouncements, sub-classification amongst the Scheduled Castes for giving more beneficial treatment is wholly permissible under the Constitution. VI. THE WAY FORWARD

272Copy pinpoint272. That leaves us with the question regarding the applicability of creamy layer principle to the Scheduled Castes and Scheduled Tribes.

273Copy pinpoint273. No doubt that in Indra Sawhney, Jeevan Reddy, J. while considering the applicability of ‘means test’ and ‘creamy layer’ has observed that the discussion therein is confined only to Other Backward Classes, and it has no relevance in the case of Scheduled Castes and Scheduled Tribes.

274Copy pinpoint274. In paragraph 792, Jeevan Reddy, J. observed 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

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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 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

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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 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).”

275Copy pinpoint275. It has been observed that the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. It is observed that 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. He observed that they would be misfits in the class. It is further observed that after excluding them alone, would the class be a compact class. It is observed that in fact, such exclusion would benefit the truly backward.

276Copy pinpoint276. His Lordship gave an example that, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises; he is no longer socially disadvantaged. His children would get full opportunity to realize their potential. They are in no way handicapped in the race of life. It is observed that it is logical that in such a situation, his children are not given the benefit of reservation. It is further observed that by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.

277Copy pinpoint277. Rejecting the argument of ‘one swallow doesn’t make the summer’, i.e. merely because few members of a caste/class become socially advanced the caste/class as such does not cease to be backward, the Learned Judge answered that though clause (4) of Article 16 aims at group backwardness, he was of the view that 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) of Article 16.

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278Copy pinpoint278. As early as in 1981, in Akhil Bharatiya Soshit Karamchari Sangh, Krishna Iyer, J., in paragraph 94, while rejecting the argument that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions, had observed that 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.

279Copy pinpoint279. Again, in paragraph 98, he observed that the Administration may well innovate and classify to weed out the creamy layer of Scheduled Castes and Scheduled Tribes. However, he cautioned that the Court cannot force the State in that behalf.

280Copy pinpoint280. Chinnappa Reddy, J. also records that a few members of those castes or social groups may have progressed far enough and forged ahead so as to compare favourably with the leading forward class economically, socially and educationally. He observed that in such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it.

281Copy pinpoint281. In M. Nagaraj, the Court also applied the principle of quantifiable data and creamy layer even in the case of Scheduled Castes and Scheduled Tribes. The correctness of the same was considered in Jarnail Singh.

282Copy pinpoint282. Though Jarnail Singh held that insofar as applicability of quantifiable data on backwardness insofar as Scheduled Castes and Scheduled Tribes is concerned, M. Nagaraj was not correct, however, insofar as the applicability of creamy layer principle even to Scheduled Castes and Scheduled Tribes is concerned, it upheld the view taken in M. Nagaraj. In doing so, Jarnail Singh is basically relying on the judgment of 7-Judge Bench of this Court in N.M. Thomas. The view taken in Jarnail Singh has also been approved in Davinder Singh.

283Copy pinpoint283. The correctness of the view taken in Jarnail Singh and Davinder Singh is not questioned. However, since in the present reference we are dealing with the question about equality among the group of unequals, I find it appropriate to consider the said issue also.

284Copy pinpoint284. I have already referred hereinabove to the observations made by Krishna Iyer, J. in N.M. Thomas and the observations made by

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Chinnappa Reddy, J. in K.C. Vasanth Kumar regarding applicability of creamy layer principle. It is worthwhile to note that the 7-Judge Bench in N.M. Thomas was considering the question about affirmative action in case of Scheduled Castes and Scheduled Tribes.

285Copy pinpoint285. In N.M. Thomas, Krishna Iyer, J., in more than one place, had observed that the State is entitled to take steps for weeding out the socially, economically and educationally advanced sections of the Scheduled Castes and Scheduled Tribes from the applicability of reservation.

286Copy pinpoint286. Krishna Iyer, J. has again reiterated this position in paragraphs 94 and 98 in Akhil Bharatiya Soshit Karamchari Sangh.

287Copy pinpoint287. When the 9-Judge Bench in Indra Sawhney held that applicability of such a test insofar as Other Backward Classes are concerned would advance equality as enshrined in the Constitution, then why such a test should not also be made applicable to the Scheduled Castes and Scheduled Tribes.

288Copy pinpoint288. As observed hereinabove, there are stark ground realities, and we cannot be ignorant of them. Nearly 75 years have elapsed from the day on which the Constitution was brought into effect. Special provisions have been made for the advancement of the Scheduled Castes and Scheduled Tribes and backward class of citizens. By judicial interpretation, the equality enshrined in the trinity of Articles 14 to 16 of the Constitution has been considered to be equal treatment among equals and unequal treatment among unequals. The question that will have to be posed is, whether equal treatment to unequals in the category of Scheduled Castes would advance the constitutional objective of equality or would thwart it? Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village?

289Copy pinpoint289. The education facilities and the other facilities that would be available to a child of a parent of the first category would be much higher, maybe the facilities for additional coaching would also be available; the atmosphere in the house will be far superior and conducive for educational upliftment.

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290Copy pinpoint290. Per contra, the child of parent of the second category would be having only the bare minimum education; the facilities of coaching, etc., would be totally unavailable to him. He will be living in the company of his parents who do not have education and have not even been in a position to guide such a child.

291Copy pinpoint291. As observed by Chinnappa Reddy, J., in K.C. Vasanth Kumar, a child studying in the St. Paul’s High School and St. Stephen’s College cannot be equated with a child studying in a rural school. He observed that if a child of the first category secures 90% marks and the child of the second category secures 50% of the marks, would treating both by the same standard achieve real justice.

292Copy pinpoint292. It is also commonly known that disparities and social discrimination, which is highly prevalent in the rural areas, start diminishing when one travels to the urban and metropolitan areas. I have no hesitation to hold that putting a child studying in St. Paul’s High School and St. Stephen’s College and a child studying in a small village in the backward and remote area of the country in the same bracket would obliviate the equality principle enshrined in the Constitution.

293Copy pinpoint293. I may note that some of the officers from the Scheduled Castes and Scheduled Tribes categories, who after receiving the benefit of reservation under the Constitution have reached high positions, are doing their bit to pay back to society. They are providing coaching and other facilities to the less advantaged so that they can compete and come up in their life. However, putting the children of the parents from the Scheduled Castes and Scheduled Tribes who on account of benefit of reservation have reached a high position and ceased to be socially, economically and educationally backward and the children of parents doing manual work in the villages in the same category would defeat the constitutional mandate.

294Copy pinpoint294. However, I may observe that taking into consideration that the Constitution itself recognizes the Scheduled Castes and Scheduled Tribes to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes. If a person from such a category, by bagging the benefit of reservation achieved a position of a peon or maybe a sweeper, he

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would continue to belong to a socially, economically and educationally backward class. At the same time, the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action. They have already reached a stage where on their own accord they should walk out of the special provisions and give way to the deserving and needy. I may gainfully refer to the observations of Dr. B.R. Ambedkar as under: “History shows that where ethics and economics come in conflict, victory is always with economics. Vested interests have never been known to have willingly divested themselves unless there was sufficient force to compel them.”28

295Copy pinpoint295. I am therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution. VII. CONCLUSION

296Copy pinpoint296. I, therefore, hold: (i) that E.V. Chinnaiah, which held that sub-classification amongst the Scheduled Castes for the purpose of giving more beneficial treatment to a group in the larger group of the Scheduled Castes is not permissible, does not lay down a good law; (ii) that sub-classification amongst the Scheduled Castes for giving more beneficial treatment is permissible in law; (iii) that for doing so, the State will have to justify that the group for which more beneficial treatment is provided is inadequately represented as compared to the other castes in the said List; (iv) that while doing so, the State will have to justify the same on the basis of empirical data that a sub-class in whose favour

28 What Gandhi and Congress have done to Untouchables, Chap. VII.

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such more beneficial treatment is provided is not adequately represented; (v) that, however, while providing for sub-classification, the State would not be entitled to reserve 100% seats available for Scheduled Castes in favour of a sub-class to the exclusion of other castes in the List; (vi) that such a sub-classification would be permissible only if there is a reservation for a sub-class as well as the larger class; (vii) that the finding of M. Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law; (viii) that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.

297Copy pinpoint297. Before I part with the judgment, I place on record my deep appreciation for the valuable assistance rendered by learned counsel appearing for the parties.

Vikram Nath, J.

1. I am generally in agreement with the reasons and conclusions arrived at in the opinions of Hon’ble the Chief Justice and Brother Justice Gavai in particular that the holding in E.V.Chinnaih, that sub-classification within Scheduled Castes was impermissible, does not lay down good law and stands over-ruled. Further, any exercise involving sub-classification by the State must be supported by empirical data.

2. I am also in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.

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Bela M. Trivedi, J.

1. Though unanimity and consensus in the opinions expressed by the larger Benches on the Constitutional matters are desirable for the sake of certainty and strength of the law laid down, I for one, believe that the “dissent” for well-chosen reasons would be equally important for an effective adjudication in a democratic functioning of judiciary, which would have a potential to develop the law in future.

2. Justice William O. Douglas of the US Supreme Court,1 a great dissenter who had written as many as 486 dissenting opinions, had stated: “The right to dissent is the only thing that makes life tolerable for a Judge of an Appellate Court…………. It is the right of dissent, not the right or duty to conform, which gives dignity, worth, and individuality to man”.

3. Justice Oliver Wendell Holmes, another great dissenter, in his first dissent in the Supreme Court in Northern Securities Company Vs. The United States (1903) 2 had stated: “I am unable to agree with the judgment of the majority of the Court, and although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it………”

4. With somewhat similar feelings, and with due respect, I beg to differ from the erudite expression of opinions expressed by the Learned Chief Justice and my esteemed Brothers Justice B.R. Gavai and Justice Pankaj Mithal, and pen down my own opinion with reasons for my dissent.

5. For the sake of brevity and avoid repetition, the facts and the submissions made by the learned advocates for the parties as narrated in the opinion expressed by the learned Chief Justice, are not reiterated. At the outset, it may be noted that neither the Referral Order made in the State of Punjab and Others vs. Davinder Singh and Others,3 contains a formulation of precise questions nor the Order dated 12.10.2023 made in the Reference case sets out specific

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questions for consideration by this Bench. Hence, having regard to the opinions expressed in Davinder Singh and in E.V. Chinnaiah vs. State of Andhra Pradesh and Others,4 and having regard to the submissions - oral and written - made by the learned advocates for the parties, following substantial questions of law are formulated for consideration. (I) Whether the law laid down by the Five-Judge Bench in E.V. Chinnaiah could have been doubted and referred to the larger Bench by the Bench of three judges, without recording any cogent reasons for their disagreement with the said decision in E.V. Chinnaiah, more particularly when the said decision held the field for a long period of fifteen years? (II) Whether the States should be permitted to tinker with or vary the Presidential List specifying the “Scheduled Castes” as notified under Clause (1) of Article 341, by sub-classifying or sub-dividing or re-grouping the castes conglomerated in the said list, under the guise of providing reservation for the weaker of the weakest, and thereby commit the breach of the mandate contained in Clause (2) of Article 341? (III) Whether the decision in E.V. Chinnaiah is required to be revisited in view of certain observations made by the Nine-Judge Bench in Indra Sawhney Vs. Union of India and Others5 concerning the Other Backward Class?

6. Before embarking on the issues involved, let us go through the trajectory of the Reference made by the Five-Judge Bench in the State of Punjab and Others vs. Davinder Singh and Others6 to this Bench. TRAJECTORY OF THE REFERENCE TO SEVEN JUDGES

7. The State of Andhra Pradesh passed an enactment, namely the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 on 02.05.2000 dividing 57 castes enumerated in the Presidential List prepared under Article 341(1) of the Constitution, into 4 groups based on inter-state backwardness, and fixed separate quotas in reservation

4 (2005) 1 SCC 394 5 (1992) Supp. 3 SCC 217 6 [2020] 10 SCR 857 : (2020) 8 SCC 65