THE STATE OF PUNJAB & ORS. versus DAVINDER SINGH & ORS.
[2024] 8 S.C.R. 1321, Supreme Court of India, 2024
Outcome: Reference answered
Segment: Issues
on a parity with the forward communities 
in the matter of achieving the result which equality of 
opportunity would produce. Whether there is equality of 
opportunity can be gauged only by the equality attained in 
the result. 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. Equality of 
result is the test of equality of opportunity.
76. Daniel P. Moynihan, one of America’s leading urban 
scholars, spelled out the problem in a widely publicized 
study that he prepared while he was Assistant Secretary 
of Labour. The Moynihan Report, as it came to be known, 
made the point in a passage that deserves full quotation:
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“It is increasingly demanded that the distribution of 
success and failure within one group be roughly 
comparable to that within other groups. It is not 
enough that all individuals start out on even terms, if 
the members of one group almost invariably end up 
well to the fore and those of another far to the rear. 
This is what ethnic politics are all about in America, 
and in the main the Negro American demands are 
being put forth in this new traditional and established 
framework.
Here a point of semantics must be grasped. The 
demand for equality of opportunity has been generally 
perceived by White Americans as a demand for 
liberty, a demand not to be excluded from the 
competitions of life — at the polling place, in the 
scholarship examinations, at the personnel office, 
on the housing market. Liberty does, of course, 
demand that everyone be free to try his luck, or test 
his skill in such matters. But these opportunities do 
not necessarily produce equality: on the contrary, 
to the extent that winners imply losers, equality of 
opportunity almost insures inequality of results.
The point of semantics is that equality of opportunity 
now has a different meaning for Negroes than it has 
for Whites. It is not (or at least no longer) a demand 
for liberty alone, but also for equality — in terms of 
group results. In Bayard Rustin’s terms, ‘It is now 
concerned not merely with removing the
barriers 
to full opportunity but with achieving the fact of 
equality’. By equality Rustin means a distribution of 
achievements among Negroes roughly comparable 
to that among Whites. [The Moynihan Report and 
the Politics of Controversy, Eds. Lee Rainwater and 
William L. Yancey, p. 49]”
77. Beginning most notably with the Supreme Court’s 
condemnation of school segregation in 1954, the United 
States has finally begun to correct the discrepancy 
between its ideals and its treatment of the black man. 
The first steps, as reflected in the decisions of the courts
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and the civil rights laws of Congress, merely removed the 
legal and quasi-legal forms of racial discrimination. These 
actions while not producing true equality, or even equality 
of opportunity, logically dictated the next step: positive use 
of government power to create the possibility of a real 
equality. In the words of Professor Lipset:
“Perhaps the most important fact to recognise about 
the current situation of the American Negro is that 
(legal) equality is not enough to insure his movement 
into larger society.” [“The American Democracy”, 
Mcgrath, Cornwell and Goodman, p. 18]
78.  I agree that Article 16(4) is capable of being 
interpreted as an exception to Article 16(1) if the equality 
of opportunity visualized in Article 16(1) is a sterile 
one, geared to the concept of numerical equality which 
takes no account of the social, economic, educational 
background of the members of Scheduled Castes and 
scheduled tribes. 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 viz., even up to 
the point of making reservation.
79. The State can adopt any measure which would ensure 
the adequate representation in public service of the 
members of the Scheduled Castes and scheduled tribes 
and justify it as a compensatory
measure to ensure equality 
of opportunity provided the measure does not dispense 
with the acquisition of the minimum basic qualification 
necessary for the efficiency of administration.”
81.	 His Lordship observed that there is no reason why this Court 
should not require the State to adopt a standard of proportional 
equality which takes account of the differing conditions and 
circumstances of a class of citizens. His Lordship observed that 
whenever differing conditions and circumstances stand in the 
way of a class of citizens in their equal access to the enjoyment 
of basic rights or claims, the State would be required to adopt a 
standard of proportional equality.
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82.	 He observed that no member of the forward classes or communities 
should complain against a compensatory measure made by the 
Government to ensure that the members of Scheduled Castes and 
Scheduled Tribes get their due share of representation in public 
services. 
83.	 His Lordship observed that if reservation is necessary either at the 
initial stage or at the stage of promotion or at both, to ensure for the 
members of the Scheduled Castes and Scheduled Tribes equality of 
opportunity, then this would be permissible under Article 16(1) as that 
alone would put them on a parity with the forward communities in 
the matter of achieving the result which equality of opportunity would 
produce. It is observed that the 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. He observed that the equality of 
result is the test of equality of opportunity.
84.	 Mathew, J. rejects the contention that Article 16(4) is an exception to 
Article 16(1). He states that such an interpretation does not consider 
the social, economic, educational background of the members of the 
Scheduled Castes and Scheduled Tribes. He held 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) and 
that 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.
85.	 His Lordship observed that the State can adopt any measure which 
would ensure the adequate representation in public service of the 
members of the Scheduled Castes and Scheduled Tribes and justify 
it as a compensatory measure to ensure equality of opportunity 
provided the measure does not dispense with the acquisition of 
the minimum basic qualification necessary for the efficiency of 
administration.
86.	 Mathew, J. further observed thus:
“83. A classification is reasonable if it includes all persons 
who are similarly situated with respect to the purpose of 
the law. In other words, the classification must be founded 
on some reasonable ground which distinguishes persons 
who are grouped together and the ground of distinction must
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have rational relation to the object sought to be achieved 
by the rule or even the rules in question. It is a mistake to 
assume a priori that there can be no classification within a 
class, say, the lower division clerks. If there are intelligible 
differentia which separates a group within that class from 
the rest and that differentia have nexus with the object of 
classification, I see no objection to a further classification 
within the class. It is no doubt a paradox that though in one 
sense classification brings about inequality, it is promotive of 
equality if its object is to bring those who share a common 
characteristic under a class for differential treatment for 
sufficient and justifiable reasons. In this view, I have no doubt 
that the principle laid down in All India Station Masters and 
Assistant Station Masters Association v. General Manager, 
Central Railway [(1960) 2 SCR 311 : AIR 1960 SC 384.]; 
S.G. Jaisinghani v. Union of India and State of J&K. v. Triloki 
Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 
1 SCR 771.] has no application here.”
87.	 It has been observed that a classification is reasonable if it includes 
all persons who are similarly situated with respect to the purpose of 
the law. It has been observed that the classification must be founded 
on some reasonable ground which distinguishes persons who are 
grouped together and the ground of distinction must have rational
relation to the object sought to be achieved by the rule. It specifically 
observed that it is a mistake to assume a priori that there can be 
no classification within a class. He held that if there are intelligible 
differentia which separates a group within that class from the rest 
and that differentia have nexus with the object of classification, such 
a further classification within the class would be permissible in law. 
He observed that though in one sense classification brings about 
inequality it is promotive of equality if its object is to bring those 
who share a common characteristic under a class, for differential 
treatment for sufficient and justifiable reasons.
88.	 V.R. Krishna Iyer, J. in his concurring judgment observed thus:
“124. A word of sociological caution. In the light 
of experience, here and elsewhere, the danger of 
“reservation”, it seems to me, is threefold. Its benefits, 
by and large, are snatched away by the top creamy 
layer of the “backward” caste or class, thus keeping the
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weakest among the weak always weak and leaving the 
fortunate layers to consume the whole cake. Secondly, 
this claim is overplayed extravagantly in democracy by 
large and vocal groups whose burden of backwardness 
has been substantially lightened by the march of time 
and measures of better education and more opportunities 
of employment, but wish to wear the “weaker section” 
label as a means to score over their near-equals formally 
categorised as the upper brackets. Lastly, a lasting 
solution to the problem comes only from improvement 
of social environment, added educational facilities and 
cross-fertilisation of castes by inter-caste and inter-class 
marriages sponsored as a massive State programme, 
and this solution is calculatedly hidden from view by the 
higher “backward” groups with a vested interest in the 
plums of backwardism. But social science research, not 
judicial impressionism, will alone tell the whole truth and 
a constant process of objective re-evaluation of progress 
registered by the “underdog” categories is essential lest 
a once deserving “reservation” should be degraded into 
“reverse discrimination”. Innovations in administrative 
strategy to help the really untouched, most backward 
classes also emerge from such socio-legal studies and 
audit exercises, if dispassionately made. In fact, research 
conducted by the A.N. Sinha Institute of Social Studies, 
Patna, has
revealed a dual society among harijans, a 
tiny elite gobbling up the benefits and the darker layers 
sleeping distances away from the special concessions. 
For them, Articles 46 and 335 remain a “noble romance” 
[As Huxley called it in “Administrative Nihilism” (Methods 
and Results, Vol. 4 of Collected Essays).] , the bonanza 
going to the “higher” harijans. I mention this in the present 
case because lower division clerks are likely to be drawn 
from the lowest levels of harijan humanity and promotion 
prospects being accelerated by withdrawing, for a time, 
“test” qualifications for this category may perhaps delve 
deeper. An equalitarian breakthrough in a hierarchical 
structure has to use many weapons and Rule 13-AA 
perhaps is one.
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125. The core conclusion I seek to emphasise is that every 
step needed to achieve in action actual, equal, partnership 
for the harijans, alone amounts to social justice — not 
enshrinement of great rights in Part III and good goals in 
Part IV. Otherwise, the solemn undertakings in Articles 14 
to 16 read with Articles 46 and 335 may be reduced to a 
“teasing illusion or promise of unreality”. A clear vision of 
the true intendment of these provisions demands a deep 
understanding of the Indian spiritual-secular idea that 
divinity dwells in all and that ancient environmental pollution 
and social placement, which the State must extirpate, 
account for the current socio-economic backwardness of 
the blacked-out human areas described euphemistically 
as scheduled castes and scheduled tribes. The roots of 
our constitutional ideas — at least some of them — can 
be traced to our ancient culture. The noble Upanishadic 
behest of collective acquisition of cultural strength (सह वीीर्यय 
करवावहेे) is involved in and must evolve out of “equality”, 
if we are true to the subtle substance of our finer heritage.”
89.	 His Lordship categorizes three-fold danger of reservation. According 
to him, firstly the benefits, by and large, are snatched away by the 
top creamy layer of the “backward” caste or class, thus keeping the 
weakest among the weak always weak and leaving the fortunate layers 
to consume the whole cake. Secondly, this
claim of backwardness 
is overplayed extravagantly in democracy by large and vocal groups 
whose burden of backwardness has been substantially lightened by the 
march of time and measures of better education and more opportunities 
of employment. However, they wish to wear the “weaker section” label 
to score over their near-equals formally categorized as the upper 
brackets. Thirdly, according to him, a lasting solution to the problem 
would come only from improvement of social environment, added 
educational facilities and cross-fertilization of castes by inter-caste 
and inter-class marriages sponsored as a massive State program. 
90.	 His Lordship observed that every step needed to achieve in action 
actual, equal, partnership for the harijans, alone amounts to social 
justice. He observed that if this is not done, the solemn undertakings 
in Articles 14 to 16 read with Articles 46 and 335 may be reduced 
to a “teasing illusion or promise of unreality”.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
91.	 His Lordship further observed thus:
“136. The next hurdle in the appellant’s path relates to 
Article 16(4). To my mind, this sub-article serves not as 
an exception but as an emphatic statement, one mode 
of reconciling the claims of backward people and the 
opportunity for free competition the forward sections are 
ordinarily entitled to. In the language of Subba Rao, J.  
(as he then was), in Devadasan [AIR 1964 SC 179: (1964) 
4 SCR 680, 700 : (1965) 2 LLJ 560].
“The expression ‘nothing in this article’ is a legislative 
device to express its intention in a most emphatic way 
that the power conferred thereunder is not limited 
in any way by the main provision but falls outside 
it. It has not really carved out an exception, but 
has preserved a power untrammelled by the other 
provisions of the article.”
True, it may be loosely said that Article 16(4) is an 
exception but, closely examined, it is an illustration of 
constitutionally sanctified classification. Public services 
have been a fascination for Indians even in British days, 
being a symbol of State power and so a special article 
has been devoted to it. Article 16(4) need not be a saving 
clause but put in due to the over-anxiety of the draftsman 
to make matters clear beyond possibility of doubt (see, 
for instance, CIT v. Shaw Wallace & Co. [59 IA 206: AIR 
1932 PC 138] ).
137. “Reservation” based on classification of backward
and forward classes, without detriment to administrative 
standards (as this Court has underscored) is but an 
application of the principle of equality within a class and 
grouping based on a rational differentia, the object being 
advancement of backward classes consistently with 
efficiency. Article 16(1) and (4) are concordant. This Court 
has viewed Article 16(4)as an exception to Article 16(1). 
Does classification based on desperate backwardness 
render Article 16(4) redundant? No. Reservation 
confers pro tanto monopoly, but classification grants under
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Article 16(1) ordinarily a lesser order of advantage. The 
former is more rigid, the latter more flexible, although 
they may overlap sometimes. Article 16(4) covers all 
backward classes; but to earn the benefit of grouping under  
Article 16(1) based on Articles 46 and 335 as I have 
explained, the twin considerations of terrible backwardness 
of the type harijans endure and maintenance of 
administrative efficiency must be satisfied.”
92.	 Referring to the observation of Subba Rao, J. in the case of 
T. Devadasan vs. Union of India,9 Krishna Iyer, J. observed 
that Article 16(4) serves not as an exception but as an emphatic 
statement, one mode of reconciling the claims of backward people 
and the opportunity for free competition the forward sections are 
ordinarily entitled to.
93.	 He observed that on a closer examination, it can be seen that 
clause (4) of Article 16 is an illustration of constitutionally sanctified 
classification. He observed that Article 16(4) need not be a saving 
clause but put in due to the over-anxiety of the draftsman to make 
matters clear beyond possibility of doubt. 
94.	 It is observed that the “Reservation” based on classification of backward 
and forward classes, without detriment to administrative standards is 
an application of the principle of equality within a class and grouping 
based on a rational differentia, the object being advancement of 
backward classes consistently with
efficiency. His Lordship further 
observed that Article 16(4) covers all backward classes. He however 
states that for earning the benefit of grouping under Article 16(1) 
based on Articles 46 and 335, the twin considerations of terrible 
backwardness of the type harijans endure and maintenance of 
administrative efficiency must be satisfied.
95.	 His Lordship also held that Articles 14 to 16 are a common code of 
guaranteed equality, the first laying down the broad doctrine, whereas 
the other two applying it to sensitive areas which are historically 
important and politically polemical in a climate of communalism and 
jobbery. 
96.	 Fazal Ali, J. in his concurring judgment observed thus:
9	
[1964] 4 SCR 680 : AIR 1964 SC 55
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
“178. The concept of equality or equal opportunity as 
contained in Article 16 does not mean that same laws must 
be applicable to all persons under every circumstance. 
Indeed if this artificial interpretation is put on the scope 
and ambit of Article 16 it will lead to channelisation 
of legislation or polarisation of rules. Differences and 
disparities exist among men and things and they cannot 
be treated alike by the application of the same laws but 
the law has to come to terms with life and must be able to 
recognise the genuine differences and disparities that exist 
in human nature. Legislature has also to enact legislation 
to meet specific ends by making a reasonable and rational 
classification. In Morey v. Doud [354 US 457, 473] it was 
so aptly observed:
“To recognise marked differences that exist in fact 
is living law; to disregard practical differences and 
concentrate on some abstract identities is lifeless 
logic.”
179. Coming now to Article 16 it may be analysed into 
three separate categories so far as the facts of the present 
case are concerned:
Category I—clause (1) of Article 16
Category II—clause (2) of Article 16.
Category Ill—clause (4) of Article 16.
180. Clause (1) of Article 16 clearly provides for equality 
of opportunity to all citizens in the services under the 
State. It is important to note that the Constitution uses 
the words “equality of opportunity for all
citizens”. This 
inherently implies that the opportunity must be given not 
only to a particular section of the society or a particular 
class of citizens who may be advanced or otherwise more 
affluent but to all classes of citizens. This, therefore, can 
be achieved by making a reasonable classification so 
that every class of citizens is duly represented in services 
which will enable equality of opportunity to all citizens. 
The classification, however, must be a reasonable one 
and must fulfil the following conditions:
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(i) It must have a rational basis;
(ii) it must have a close nexus with the object sought 
to be achieved;
(iii) it should not select any person for hostile 
discrimination at the cost of others.”
97.	 His Lordship observed that differences and disparities exist among 
men and things, and they cannot be treated alike by the application 
of the same laws. He observed that the law must come to terms 
with life and must be able to recognize the genuine differences 
and disparities that exist in human nature. He observed that the 
Legislature has also to enact legislation to meet specific ends by 
making a reasonable and rational classification. 
98.	 It has been observed that clause (1) of Article 16 clearly provides for 
equality of opportunity to all citizens in the services under the State. 
His Lordship emphasized that the words “equality of opportunity for 
all citizens” used in the Constitution imply that the opportunity must 
be given not only to a particular section of the society or a particular 
class of citizens who may be advanced or otherwise more affluent 
but to all classes of citizens. According to the Learned Judge, this 
can be achieved by making a reasonable classification so that every 
class of citizens is duly represented in services which will enable 
equality of opportunity to all citizens. He however culls out three 
conditions, viz., (i) it must have a rational basis; (ii) it must have a 
close nexus
with the object sought to be achieved; and (iii) it should 
not select any person for hostile discrimination at the cost of others. 
99.	 Echoing the sentiments of the other Learned Judges, by holding 
that Article 16(4) is not a proviso to Article 16(1), the Learned Judge 
observed thus:
“187. For these reasons, therefore, I respectfully agree 
with the observations of Subba Rao, J., as he then was, in  
T. Devadasan v. Union of India [AIR 1964 SC 179 : (1964) 
4 SCR 680 : (1965) 2 LLJ 560] where he observed:
“That is why the makers of the Constitution introduced 
clause (4) in Article 16. The expression ‘nothing 
in this article’ is a legislative device to express its 
intention in a most emphatic way that the power 
conferred thereunder is not limited in any way by the
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
main provision but falls outside it. It has not really 
carved out an exception, but has preserved a power 
untrammelled by the other provisions of the article.”
My view that Article 16(4) is not a proviso to Article 16(1) 
but that this clause covers the whole field of Article 16 is 
amply supported by the decision of this Court in General 
Manager, Southern Railway v. Ranga-chari where it was 
observed: (p. 599)
“It is common ground that Article 16(4) does not cover 
the entire field covered by Article 16(1) and (2). Some 
of the matters relating to employment in respect of 
which equality of opportunity has been guaranteed 
by Article 16(1) and (2) do not fall within the mischief 
of non-obstantive clause in Article 16(4).”
C.	
Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs. 
Union of India 
100.	Next is the case of Akhil Bharatiya Soshit Karamchari Sangh 
(Railway) represented by its Assistant General Secretary on 
behalf of the Association vs. Union of India and others,10 where a 
bench of 3 Learned Judges of this Court was considering the policy 
directives issued by the Railway Board introducing reservation in 
cases of selection as well as non-selection posts and other related 
issues regarding affirmative action. 
101.	Krishna Iyer, J. in paragraph 12, observed thus:
“12. Granville Austin [Granville Austin : The Indian 
Constitution — Cornerstone of a Nation] quotes profusely 
from the
Constituent Assembly proceedings to prove the 
goal of the Indian Constitution to be social revolution. 
Radhakrishnan, representing the broad consensus, said 
that: [Ibid, p. 27]
“India must have a ‘socio-economic revolution’ 
designed not only to bring about the real satisfaction 
of the fundamental needs of the common man, but 
to go much deeper and bring about ‘a fundamental 
change in the structure of Indian society’.”
10	
[1981] 2 SCR 185 : (1981) 1 SCC 246
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102.	The Learned Judge refers to the speech of Dr. Radhakrishnan, 
representing the broad consensus, wherein he said that India must 
have a ‘socio-economic revolution’ designed not only to bring about 
the real satisfaction of the fundamental needs of the common man, 
but to go much deeper and bring about ‘a fundamental change in 
the structure of Indian society’. 
103.	Explaining the inter-relation between Articles 16(1) and 16(4), the 
Learned Judge observed thus:
“21. The preamble which promises justice, liberty and 
equality of status and opportunity within the framework of 
secular, socialist republic projects a holistic perspective. 
Article 16 which guarantees equal opportunity for all 
citizens in matters of State service inherently implies 
equalisation as a process towards equality but also hastens 
to harmonize the realistic need to jack up “depressed” 
classes to overcome initial handicaps and join the national 
race towards progress on an equal footing and devotes 
Article 16(4) for this specific purpose. In a given situation 
of large social categories being submerged for long, the 
guarantee of equality with the rest is myth, not reality, unless 
it is combined with affirmative State action for equalisation 
geared to promotion of eventual equality. Article 16(4) 
is not a jarring note but auxiliary to fair fulfilment of  
Article 16(1). The prescription of Article 16(1) needs, in 
the living conditions of
India, the concrete sanction of  
Article 16(4) so that those wallowing in the social quagmire 
are enabled to rise to levels of equality with the rest and 
march together with their brethren whom history had not 
so harshly hamstrung. To bury this truth is to sloganise 
Article 16(1) and sacrifice the facts of life.
22. This is not mere harmonious statutory construction 
of Article 16(1) and (4) but insightful perception of our 
constitutional culture, reflecting the current of resurgent 
India bent on making, out of a sick and stratified society 
of inequality and poverty, a brave new Bharat. If freedom, 
justice and equal opportunity to unfold one’s own 
personality belong alike to bhangi and brahmin, prince and 
pauper, if the panchama proletariat is to feel the social
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transformation Article 16(4) promises, the State must apply 
equalising techniques which will enlarge their opportunities 
and thereby progressively diminish the need for props. 
The success of State action under Article 16(4) consists 
in the speed with which result-oriented reservation withers 
away as no longer a need, not in the everwidening and 
everlasting operation of an exception [Article 16(4)] as if 
it were a super-fundamental right to continue backward 
all the time. To lend immortality to the reservation policy 
is to defeat its raison d’etre, to politicise this provision 
for communal support and Party ends is to subvert the 
solemn undertaking of Article 16(1), to casteify “reservation” 
even beyond the dismal groups of backwardmost people, 
euphemistically described as SC & ST, is to run a grave 
constitutional risk. Caste, ipso facto, is not class in a 
secular State.
23. The authentic voice of our culture, voiced by all the 
great builders of modern India, stood for abolition of the 
hardships of the pariah, the mlecha, the bonded labour, 
the hungry, hard-working half-slave, whose liberation was 
integral to our independence. To interpret the Constitution 
rightly we must understand the people for whom it is 
made — the finer ethos, the frustrations, the aspirations, 
the parameters set by the Constitution for the principled 
solution of social disabilities. This synthesis of ends
and means, of life’s maladies and law’s remedies is a 
part of the know-how of constitutional interpretation if 
alienation from the people were not to afflict the justicing 
process: [J. Landis : Note on Statutory Interpretation,  
43 Harv L Rev 886, 891 (1930)]
A statute rarely stands alone. Back of Minerva was 
the brain of Jove, and behind Venus was the spume 
of the ocean.”
104.	The Learned Judge observed that the guarantee of equal opportunity 
provided under Article 16 for all citizens in matters of State service 
inherently implies equalization as a process towards equality. 
However, he also emphasizes the need to harmonize the realistic 
need to jack up “depressed” classes to overcome initial handicaps
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and join the national race towards progress on an equal footing. 
He states that Article 16(4) has been devoted for this very specific 
purpose. He observed that the guarantee of equality to the large social 
categories being submerged for long, with the rest, would be myth 
and not reality, unless it is combined with affirmative State action for 
equalization geared to promotion of eventual equality. He observed 
that Article 16(4) is not a jarring note but auxiliary to fair fulfilment 
of Article 16(1). He observed that the prescription of Article 16(1) 
needs the concrete sanction of Article 16(4) so that those wallowing 
in the social quagmire are enabled to rise to levels of equality with 
the rest and march together with their brethren whom history had 
not so harshly hamstrung.
105.	The Learned Judge observed that this is not mere harmonious 
statutory construction of Article 16(1) and (4) but an insightful 
perception of our constitutional culture. He emphasized that the State 
must apply equalizing techniques which will enlarge their opportunities 
and thereby progressively diminish the need for props. He further 
emphasized that to casteify “reservation” even beyond the dismal 
groups of backwardmost people, euphemistically described as SC & 
ST, is to run a grave constitutional risk. He further emphasized that 
to interpret the Constitution rightly we must understand the people 
for whom it is made. He observed
that the synthesis of ends and 
means, of life’s maladies and law’s remedies is a part of the know-
how of constitutional interpretation. 
106.	Krishna Iyer, J. further observed thus:
“34. Special provisions for depressed classes and even 
other castes have a pre-Constitution history. After the 
Constitution was enacted the legality of old rules based 
on caste became moot and the Central Government 
revised its policy. The post-Constitution reincarnation of 
the communal G.O. concentrated not on caste orientation 
but on elimination of socio-economic suppression and the 
diverse ways to achieve this objective.
xxx xxx xxx
36. Articles 14 to 16 form a code by themselves and embody 
the distilled essence of the Constitution’s casteless and 
classless egalitarianism. Nevertheless, our founding fathers
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were realists, and so did not declare the proposition of 
equality in its bald universality but subjected it to certain 
special provisions, not contradicting the soul of equality, 
but adapting that never-changing principle to the ever-
changing social milieu. That is how Articles 15(4) and 16(4) 
have to be read together with Articles 15(1) and 16(1). 
The first sub-article speaks of equality and the second 
sub-article amplifies its content by expressly interdicting 
caste as a ground of discrimination. Article 16(4) imparts to 
the seemingly static equality embedded in Article 16(1) a 
dynamic quality by importing equalisation strategies geared 
to the eventual achievement of equality as permissible 
State action, viewed as an amplification of Article 16(1) 
or as an exception to it. The same observation will hold 
good for the sub-articles of Article 15. Thus we have a 
constitutional fundamental guarantee in Articles 14 to 16; 
but it is a notorious fact of our cultural heritage that the 
Scheduled Castes and the Scheduled Tribes have been 
in unfree India nearly dehumanised, and a facet of the 
struggle for Freedom has been the restoration of full 
personhood to them together with the right to share in the 
social and economic development of the country. Article 46 
is a Directive Principle contained in Part IV. Every Directive 
Principle is fundamental in the governance of the country 
and it
shall be the duty of the State to apply that principle 
in making laws. Article 46, in emphatic terms, obligates 
the State “to promote with special care the educational 
and economic interests of the weaker sections of the 
people, and, in particular, of the Scheduled Castes and 
the Scheduled Tribes, and shall protect them from social 
injustice and all forms of exploitation”. Reading Article 46 
together with Article 16(4) the luscent intent of the 
Constitution-framers emerges that the exploited lot of the 
harijan-girijan groups in the past shall be extirpated with 
special care by the State. The inference is obvious that 
administrative participation by SC & ST shall be promoted 
with special care by the State. Of course, reservations 
under Article 16(4) and promotional strategies envisaged 
by Article 46 may be important but shall not run berserk
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and imperil administrative efficiency in the name of 
concessions to backward classes. Article 335 enters a 
caveat in this behalf:
“335. The claims of the members of the Scheduled 
Castes and the Scheduled Tribes shall be taken into 
consideration, consistently with the maintenance 
of efficiency of administration, in the making of 
appointments to services and posts in connection 
with the affairs of the Union or of a State.”
The positive accent of this article is that the claims of 
SC & ST to equalisation of representation in services 
under the State, having regard to their sunken social 
status and impotence in the power system, shall be 
taken into consideration. The negative element, which 
is part of the article, is that measures taken by the 
State, pursuant to the mandate of Articles 16(4), 46 
and 335, shall be consistent with and not subversive 
of “the maintenance of efficiency of administration”.
xxx       xxx        xxx
39. Article 341 makes it clear that a “scheduled Caste” 
need not be a “caste” in the conventional sense and, 
therefore, may not be a caste within the meaning of 
Article 15(2) or 16(2). Scheduled Castes become such 
only if the President specifies any castes, races or tribes 
or parts or groups within castes, races or tribes for the 
purpose of the Constitution. So, a group or a section of 
a group, which need not be a caste and may even be a 
hotchpotch of many castes or tribes or even
races, may 
still be a Scheduled Caste under Article 341. Likewise, 
races or tribal communities or parts thereof or part or 
parts of groups within them may still be Scheduled Tribes 
(Article 342) for the purpose of the Constitution. Under 
this definition, one group in a caste may be a Scheduled 
Caste and another from the same caste may not be. It 
is the socio-economic backwardness of a social bracket, 
not mere birth in a caste, that is decisive. Conceptual 
errors creep in when traditional obsessions obfuscate 
the vision.”
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107.	The Learned Judge refers to the pre-Constitution history wherein 
special provisions for depressed classes and even other castes were 
made. He stated that after the Constitution was enacted the legality of 
old rules based on caste became moot and the Central Government 
revised its policy. He stated that the post-Constitution reincarnation 
of the communal G.O. concentrated not on caste orientation but on 
elimination of socio-economic suppression and the diverse ways to 
achieve this objective. 
108.	He then stated that Articles 14 to 16 form a code by themselves 
and embody the distilled essence of the Constitution’s casteless and 
classless egalitarianism. He then considered the interplay between 
Articles 15(4) and 16(4) on the one hand and Articles 15(1) and 
16(1) on the other hand. He thereafter refers to the notorious fact of 
our cultural heritage that the Scheduled Castes and the Scheduled 
Tribes have been in unfree India nearly dehumanized, and a facet of 
the struggle for freedom has been the restoration of full personhood 
to them together with the right to share in the social and economic 
development of the country. He thereafter refers to Article 46 and 
the importance of the said Directive Principle in the governance of 
the country and observes that it shall be the duty of the State to 
apply that principle in making laws. He stated that reading Article 46 
together with
Article 16(4) expresses the intention of the Constitution-
framers that the exploitation of the harijan-girijan groups in the past 
shall be extirpated with special care by the State. For completeness, 
he then refers to Article 335 to state that measures taken by the 
State, pursuant to the mandate of Articles 16(4), 46 and 335, shall be 
consistent with and not subversive of “the maintenance of efficiency 
of administration”.
109.	Krishna Iyer, J. then observed that Article 341 makes it clear that a 
“Scheduled Caste” need not be a “caste” in the conventional sense 
and, therefore, may not be a caste within the meaning of Article 15(2) 
or 16(2). He states that Scheduled Castes become such only if the 
President specifies any castes, races or tribes or parts or groups 
within castes, races or tribes for the purpose of the Constitution. He 
observed that under the definition, one group in a caste may be a 
Scheduled Caste and another from the same caste may not be and 
that it is the socio-economic backwardness of a social bracket, not 
mere birth in a caste, that is decisive.
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110.	In paragraph 73, he refers to Dr. Ambedkar’s address to the 
Constituent Assembly, which has already been extracted by us in the 
beginning of the judgment. Paragraph 73 is reproduced hereunder:
“73. A luminous preface to the constitutional values nullified 
by social realities is found in Dr Ambedkar’s address to 
the Constituent Assembly earlier extracted, which draws 
poignant attention to the life of contradictions between 
the explosive social and economic inequalities and the 
processes of political democracy. “How long shall we 
continue to live this life of contradictions? How long shall 
we continue to deny equality in our social and economic 
life?” was the interrogation before the framers of the 
Constitution and they wanted to enforce the principle of 
“one man, one value”. This perspective must inform the 
code of equality contained in Articles 14 to 16. Equality 
being a dynamic concept with flexible import this Court 
has read into Articles 14 to 16 the pragmatic doctrine of 
classification and equal treatment to all who fall within each 
class. But care must be taken to see that classification 
is not pushed to such an extreme point as to make the 
fundamental right to equality cave in and collapse (see 
observations in Triloki Nath Khosa v. State of J&K [(1974) 
1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771] . 
Ray, C.J., in Kerala v. Thomas [(1976) 2 SCC 310, 331, 
332, 333, 334 : 1976 SCC (L&S)
227, 248 249, 250, 251 : 
(1976) 1 SCR 906, 926-29] epitomised the position in a 
few passages: [SCC pp. 331, 332, 333 & 334: SCC (L&S) 
pp. 248, 249, 250 & 251, paras 21, 24, 27, 28, 30 & 31
“Articles 14, 15 and 16 from part of a string of 
constitutional guaranteed rights. These rights 
supplement each other. Article 16 which ensures 
to all citizens equality of opportunity in matters 
relating to employment is an incident of guarantee 
of equality contained in Article 14. Article 16(1) gives 
effect to Article 14. Both Articles 14 and 16(1) permit 
reasonable classification having a nexus to be the 
object to be achieved.
* * *
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Discrimination is the essence of classification.... 
Classification is, therefore, to be founded on 
substantial differences which distinguish persons 
grouped together from those left out of the groups 
and such differential attributes must bear a just and 
rational relation to the object sought to be achieved.
* * *
There is no denial of equality of opportunity unless 
the person who complains of discrimination is 
equally situated with the person or persons who are 
alleged to have been favoured. Article 16(1) does 
not bar a reasonable classification of employees or 
reasonable tests for their selection (State of Mysore 
v. V.P. Narasing Rao [AIR 1968 SC 349 : (1968) 1 
SCR 407]).
This equality of opportunity need not be confused 
with absolute equality....
Under Article 16(1) equality of opportunity of 
employment means equality as between members 
of the same class of employees and not equality 
between members of separate, independent class....
The rule of parity is the equal treatment of equals 
in equal circumstances. The rule of differentiation 
is enacting laws differentiating between different 
persons or things in different circumstances. The 
circumstances which govern one set of persons 
or objects may not necessarily be the same as 
governing another set of persons or objects so 
that the question of unequal treatment does not 
really arise between persons governed by different
conditions and different sets of circumstances....  
A classification in order to be constitutional must 
rest upon distinctions that are substantial and 
not merely illusory. The test is whether it has 
a reasonable basis free from artificiality and 
arbitrariness embracing all and omitting none 
naturally falling into that category.”
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The learned Chief Justice relied upon earlier decisions 
to substantiate this proposition. In Triloki Nath Khosa v. 
State of J&K [(1976) 2 SCC 310, 337 : 1976 SCC (L&S) 
227, 254 : (1976) 1 SCR 906, 932] this Court had held 
that the State may make rules guided by realities just 
as the legislature “is free to recognise degrees of harm 
and it may confine its restrictions to those classes of 
cases where the need is deemed to be the clearest”. 
Thus we arrive at the constitutional truism that the State 
may classify, based upon substantial differentia, groups 
or classes and this process does not necessarily spell 
violation of Articles 14 to 16.”
111.	 After referring to Dr. Ambedkar’s speech, the Learned Judge observed 
that equality being a dynamic concept with flexible import, this Court 
has read into Articles 14 to 16 the pragmatic doctrine of classification 
and equal treatment to all who fall within each class. He, however, 
warns that classification should not be pushed to such an extreme 
point as to make the fundamental right to equality cave in and collapse.
112.	The Learned Judge further observed as under:
“76. Proceeding on this footing, the fundamental right of 
equality of opportunity has to be read as justifying the 
categorisation of SCs & STs separately for the purpose 
of “adequate representation” in the services under the 
State. The object is constitutionally sanctioned in terms, 
as Articles 16 (4)
and 46 specificate. The classification 
is just and reasonable. We may, however, have to test 
whether the means used to reach the end are reasonable 
and do not outrun the purposes of the classification. Thus 
the scope of the case is narrowed down.”
113.	His Lordship observed that the fundamental right of equality of 
opportunity must be read as justifying the categorization of SCs & 
STs separately for the purpose of “adequate representation” in the 
services under the State. He observed that the object is constitutionally 
sanctioned in terms, as Articles 16 (4) and 46 specificate. 
114.	While rejecting the argument that reservation in favour of Scheduled 
Castes and Scheduled Tribes could affect the efficiency in the 
administration, the Learned Judge observed thus:
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
“94. It is fashionable to say — and there is, perhaps, 
some truth in it — that from generation to generation 
there is a deterioration in efficiency in all walks of life from 
politics to pedagogy to officialdom and other professions. 
Nevertheless, the world has been going forward and only 
parties whose personal interest is affected forecast a 
doom on account of progressive deficiency in efficiency. 
We are not impressed with the misfortune predicted 
about governmental personnel being manned by morons 
merely because a sprinkling of harijans/girijans happen 
to find their way into the services. Their apathy and 
backwardness are such that in spite of these favourable 
provisions, the unfortunates have neither the awareness 
nor qualified members to take their rightful place in the 
administration of the country. The malady of modern India 
lies elsewhere, and the merit-mongers are greater risks 
in many respects than the naive tribals and the slightly 
better off low castes. Nor does the specious plea that 
because a few harijans are better off, therefore, the 
bulk at the bottom deserves no jack-up provisions 
merit scrutiny. A swallow does not make a summer. 
Maybe, the State may, when social conditions warrant, 
justifiably restrict harijan benefits to the harijans 
among the harijans and forbid the higher harijans 
from robbing the lowlier brethren.”
[emphasis supplied]
115.	The Learned
Judge rejected the contention that merely because 
a sprinkling of harijans/girijans happen to find their way into the 
services, the efficiency of the administration of the country would 
be affected. On the contrary, he states that the merit-mongers are 
greater risks in many respects than the naive tribals and the slightly 
better off low castes. 
116.	It is pertinent to note the observations made by the Learned Judge 
towards the end of paragraph 94 and in paragraph 98 are most 
important for the purposes of the present reference. Paragraph 98 
reads thus:
“98. The argument is that there are rich and influential 
harijans who rob all the privileges leaving the serf-level 
sufferers as suppressed as ever. The Administration may
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well innovate and classify to weed out the creamy layer 
of SCs/STs but the court cannot force the State in that 
behalf.”
117.	Chinnappa Reddy, J. in his separate concurring judgment observed 
thus:
“123. Because fundamental rights are justiciable and 
directive principles are not, it was assumed, in the 
beginning, that fundamental rights held a superior position 
under the Constitution than the directive principles, and that 
the latter were only of secondary importance as compared 
with the Fundamental Rights. That way of thinking is of 
the past and has become obsolete. It is now universally 
recognised that the difference between the Fundamental 
rights and directive principles lies in this that Fundamental 
rights are primarily aimed at assuring political freedom to 
the citizens by protecting them against excessive State 
action while the directive principles are aimed at securing 
social and economic freedoms by appropriate State action. 
The Fundamental rights are intended to foster the ideal 
of a political democracy and to prevent the establishment 
of authoritarian rule but they are of no value unless they 
can be enforced by resort to courts. So they are made 
justiciable. But, it is also evident that notwithstanding 
their great importance, the directive principles cannot in 
the very nature of things be enforced in a court of law. It 
is unimaginable that any court can compel a legislature 
to make a law. If
the court can compel Parliament to 
make laws then parliamentary democracy would soon be 
reduced to an oligarchy of Judges. It is in that sense that 
the Constitution says that the directive principles shall not 
be enforceable by courts. It does not mean that directive 
principles are less important than Fundamental rights or 
that they are not binding on the various organs of the 
State. Article 37 of the Constitution emphatically states 
that directive principles are nevertheless fundamental in 
the governance of the country and it shall be the duty 
of the State to apply these principles in making laws. It 
follows that it becomes the duty of the court to apply the 
directive principles in interpreting the Constitution and the
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
laws. The directive principles should serve the courts as 
a code of interpretation. Fundamental rights should thus 
be interpreted in the light of the directive principles and 
the latter should, whenever and wherever possible, be 
read into the former. Every law attacked on the ground of 
infringement of a Fundamental Right should, among other 
considerations, be examined to find out if the law does not 
advance one or other of the directive principles or if it is 
not in discharge of some of the undoubted obligations of 
the State, constitutional or otherwise, towards its citizens 
or sections of its citizens, flowing out of the preamble, the 
directive principles and other provisions of the Constitution.
124. So, we have it that the constitutional goal is the 
establishment of a socialist democracy in which Justice, 
economic, social and political is secure and all men are 
equal and have equal opportunity. Inequality, whether of 
status, facility or opportunity, is to end, privilege is to cease 
and exploitation is to go. The underprivileged, the deprived 
and the exploited are to be protected and nourished so as 
to take their place in an egalitarian society. State action is 
to be towards those ends. It is in this context that Article 
16 has to be interpreted when State action is questioned 
as contravening Article 16.”
118.	The Learned Judge discussed the interplay between the Fundamental
Rights and the Directive Principles. He observed that the Fundamental 
Rights are primarily aimed at assuring political freedom to the 
citizens by protecting them against excessive State action while 
the Directive Principles are aimed at securing social and economic 
freedoms by appropriate State action. The Learned Judge observed 
that merely because the Directive Principles are not enforceable by 
Courts, it does not mean that Directive Principles are less important 
than Fundamental rights or that they are not binding on the various 
organs of the State. Referring to Article 37 of the Constitution, the 
Learned Judge states that the Directive Principles are nevertheless 
fundamental in the governance of the country, and it shall be the duty 
of the State to apply these principles in making laws. He held that 
it becomes the duty of the court to apply the directive principles in 
interpreting the Constitution and the laws; that the directive principles 
should serve the courts as a code of interpretation. He held that
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the Fundamental rights should thus be interpreted in the light of the 
directive principles and the latter should, whenever and wherever 
possible, be read into the former. 
119.	He observed that the constitutional goal is the establishment of a 
socialist democracy in which Justice, economic, social and political 
is to secure and all men are equal and have equal opportunity. He 
further observed that the inequality, whether of status, facility or 
opportunity, is to end, privilege is to cease, and exploitation is to 
go. He further observed that the underprivileged, the deprived and 
the exploited are to be protected and nourished to take their place 
in an egalitarian society.
120.	Thereafter, the Learned Judge then while referring to interplay 
between Article 16(1) and Article 16(4) observed thus:
“125. Let us now take a look at Article 16(1) and Article 
16(4). Article 16(1) guarantees equality of opportunity for all 
citizens in matters relating to employment or appointment 
to any office under the State. To the class of citizens who 
are economically and socially backward this guarantee 
will be no more than mere wishful thinking, and mere 
“vanity ... wind and confusion”, if it is not translated into 
reality by necessary State action to protect and nurture 
such class of citizens so as to enable them to shake off 
the heart-crushing burden of a thousand years’ deprivation 
from their shoulders and to claim a fair
proportion of 
participation in the administration. Reservation of posts and 
all other measures designed to promote the participation 
of the Scheduled Castes and the Scheduled Tribes 
in the Public Services at all levels are in our opinion 
necessary consequences flowing from the Fundamental 
Right guaranteed by Article 16(1). This very idea is 
emphasised further by Article 16(4). Article 16(4) is not in 
the nature of an exception to Article 16(1). It is a facet of  
Article 16(1) which fosters and furthers the idea of equality 
of opportunity with special reference to an underprivileged 
and deprived class of citizens to whom egalite de droit 
(formal or legal equality) is not egalite de fait (practical or 
factual equality). It is illustrative of what the State must 
do to wipe out the distinction between egalite de droit
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
and egalite de fait. It recognises that the right to equality 
of opportunity includes the right of the underprivileged 
to conditions comparable to or compensatory of those 
enjoyed by the privileged. Equality of opportunity must 
be such as to yield “Equality of Results” and not that 
which simply enables people, socially and economically 
better placed, to win against the less fortunate, even 
when the competition is itself otherwise equitable.  
John Rawls in A Theory Of Justice demands the priority 
of equality in a distributive sense and the setting up of 
the social system “so that no one gains or loses from his 
arbitrary place in the distribution of natural assets or his 
own initial position in society without giving or receiving 
compensatory advantages in return”. His basic principle 
of social justice is: “All social primary goods — liberty and 
opportunity, income and wealth, and the bases of self-
respect — are to be distributed equally unless an unequal 
distribution of any or all these goods is to the advantage 
of the least favoured.” One of the essential elements 
of his conception of social justice is what he calls the 
principle of redress: “This is the principle that undeserved 
inequalities call for redress; and since inequalities of 
birth and natural endowment are undeserved, these 
inequalities are somehow to be compensated for.” Society 
must, therefore, treat more
favourably those with fewer 
native assets and those born into less favourable social 
positions. If the statement that “Equality of Opportunity 
must yield Equality of Results” and if the fulfilment of 
Article 16(1) in Article 16(4) ever needed a philosophical 
foundation it is furnished by Rawls› theory of justice and 
the redress Principle.”
121.	The Learned Judge observed that reading Article 16(1) and Article 
16(4) together would reveal that they recognize that the right to 
equality of opportunity includes the right of the underprivileged to 
conditions comparable to or compensatory of those enjoyed by the 
privileged. It is observed that the equality of opportunity must be such 
as to yield “Equality of Results” and not that which simply enables 
people, socially and economically better placed, to win against the 
less fortunate, even when the competition is itself otherwise equitable.
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122.	The Learned Judge thereafter refers to “A Theory of Justice” by John 
Rawls. He also refers to the ‘Principle of Redress’ according to which 
underserved inequalities call for redress; and since inequalities of 
birth and natural endowment are undeserved, these inequalities are 
somehow to be compensated for. 
D.	
K.C. Vasanth Kumar vs. State of Karnataka
123.	The next judgment of the Constitution Bench of this Court that requires 
consideration is the case of K.C. Vasanth Kumar and another vs. 
State of Karnataka.11 In the said case, the Court was invited not so 
much to deliver judgment but to express its opinion on the issue of 
reservations in the context of Articles 15(4) and 16(4), which would 
serve as a guideline to the Commission which the Government of 
Karnataka had proposed to appoint, for examining the question 
of affording better employment and educational opportunities to 
Scheduled Castes, Scheduled Tribes and Other Backward Classes. 
Each of the 5 Learned Judges comprising the Constitution Bench of 
this Court rendered their separate opinions. 
124.	Y.V. Chandrachud, C.J. laid down certain propositions. It will be 
relevant to refer to paragraph 2, which reads thus:
“2. I would state my opinion in the shape of the following 
propositions:
(1)	 The reservation in favour of Scheduled Castes and 
Scheduled Tribes must continue as at present, there 
is, without the application of a means test, for a
further period not exceeding fifteen years. Another 
fifteen years will make it fifty years after the advent 
of the Constitution, a period reasonably long for the 
upper crust of the oppressed classes to overcome 
the baneful effects of social oppression, isolation 
and humiliation.
(2)	 The means test, that is to say, the test of economic 
backwardness ought to be made applicable even to 
the Scheduled Castes and Scheduled Tribes after 
the period mentioned in (1) above. It is essential that 
11	
[1985] Supp. 1 SCR 352 : (1985) Supp. SCC 714
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the privileged section of the underprivileged society 
should not be permitted to monopolise preferential 
benefits for an indefinite period of time.
(3)	 Insofar as the other backward classes are concerned, 
two tests should be conjunctively applied for 
identifying them for the purpose of reservations in 
employment and education: One, that they should be 
comparable to the Scheduled Castes and Scheduled 
Tribes in the matter of their backwardness; and two, 
that they should satisfy the means test such as a 
State Government may lay down in the context of 
prevailing economic conditions.
(4)	 The policy of reservations in employment, education 
and legislative institutions should be reviewed every 
five years or so. That will at once afford an opportunity 
(i) to the State to rectify distortions arising out of 
particular facets of the reservation policy and (ii) to 
the people, both backward and non-backward, to 
ventilate their views in a public debate on the practical 
impact of the policy of reservations.”
125.	The Learned C.J. observed that for a further period of 15 years, the 
reservation in favour of Scheduled Castes and Scheduled Tribes must 
continue. He further observed that the means test, i.e., the test of 
economic backwardness ought to be made applicable even to the 
Scheduled Castes and Scheduled Tribes after the period of 15 years, 
as mentioned in clause (1). Insofar as the Other
Backward Classes 
are concerned, the Learned C.J. observed that the twin tests should 
be applied; one, that they should be comparable to the Scheduled 
Castes and Scheduled Tribes in the matter of their backwardness; 
and two, that they should satisfy the means test such as a State 
Government may lay down in the context of prevailing economic 
conditions. It is also observed that the policy of reservations in 
employment, education and legislative institutions should be reviewed 
every 5 years or so. 
126.	It will also be appropriate to refer to the observations of D.A. Desai, J. 
made in paragraphs 30 and 31, which read thus:
“30. Let me conclude. If economic criterion for compensatory 
discrimination or affirmative action is accepted, it would
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strike at the root cause of social and educational 
backwardness, and simultaneously take a vital step in 
the direction of destruction of caste structure which in 
turn would advance the secular character of the Nation. 
This approach seeks to translate into reality the twin 
constitutional goals: one, to strike at the perpetuation 
of the caste stratification of the Indian Society so as 
to arrest regressive movement and to take a firm step 
towards establishing a casteless society; and two, to 
progressively eliminate poverty by giving an opportunity 
to the disadvantaged sections of the society to raise their 
position and be part of the mainstream of life which means 
eradication of poverty.
31. Let me make abundantly clear that this approach 
does not deal with reservation in favour of Scheduled 
Castes and Scheduled Tribes. Thousands of years of 
discrimination and exploitation cannot be wiped out in 
one generation. But even here economic criterion is worth 
applying by refusing preferred treatment to those amongst 
them who have already benefited by it and improved their 
position. And finally reservation must have a time span 
otherwise concessions tend to become vested interests. 
This is not a judgment in a lis in an adversary system. 
When the arguments concluded, a statement was made 
that the Government of State of Karnataka would appoint 
a Commission to determine constitutionally sound and 
nationally
acceptable criteria for identifying socially and 
educationally backward classes of citizens for whose 
benefit the State action would be taken. This does not 
purport to be an exhaustive essay on guide lines but may 
point to some extent, the direction in which the proposed 
Commission should move.”
127.	It could thus be seen that the Learned Judge supports applying the 
economic criterion for the purpose of compensatory discrimination or 
affirmative action. According to the Learned Judge, it would strike at 
the root cause of social and educational backwardness. He further 
states that simultaneously it would be a vital step in the direction 
of destruction of caste structure which in turn would advance the 
secular character of the Nation.
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128.	Though he cautioned that such an approach does not deal with 
reservation in favour of Scheduled Castes and Scheduled Tribes, 
however, even in their cases, economic criterion is worth applying 
by refusing preferred treatment to those amongst them who have 
already benefited by it and improved their position.
129.	Rejecting the contention that the reservation is anti-imperialist, 
Chinnappa Reddy, J. observed thus:
“35. One of the results of the superior, elitist approach 
is that the question of reservation is invariably viewed 
as the conflict between the meritarian principle and the 
compensatory principle. No, it is not so. The real conflict 
is between the class of people, who have never been in 
or who have already moved out of the desert of poverty, 
illiteracy and backwardness and are entrenched in the 
oasis of convenient living and those who are still in the 
desert and want to reach the oasis. There is not enough 
fruit in the garden and so those who are in, want to keep 
out those who are out. The disastrous consequences of 
the so-called meritarian principle to the vast majority of 
the under-nourished, poverty-stricken, barely literate and 
vulnerable people of our country are too obvious to be 
stated. And, what is merit? There is no merit in a system 
which brings about such consequences. Is not a child of 
the Scheduled Castes, Scheduled Tribes or other backward 
classes who
has been brought up in an atmosphere of 
penury, illiteracy and anti-culture, who is looked down 
upon by tradition and Society, who has no books and 
magazines to read at home, no radio to listen, no TV to 
watch, no one to help him with his home work, who goes 
to the nearest local board school and college, whose 
parents are either illiterate or so ignorant and ill-informed 
that he cannot even hope to seek their advice on any 
matter of importance, a child who must perforce trudge 
to the nearest public reading room to read a newspaper 
to know what is happening in the world, has not this child 
got merit if he, with all his disadvantages is able to secure 
the qualifying 40 per cent or 50 per cent of the marks at a 
competitive examination where the children of the upper 
classes who have all the advantages, who go to St. Paul’s
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High School and St. Stephen’s College, and who have 
perhaps been specially coached for the examination may 
secure 70, 80 or even 90 per cent of the marks? Surely, 
a child who has been able to jump so many hurdles may 
be expected to do better and better as he progresses in 
life. If spring flower he cannot be, autumn flower he may 
be. Why then, should he be stopped at the threshold 
on an alleged meritarian principle? The requirements of 
efficiency may always be safeguarded by the prescription 
of minimum standards. Mediocrity has always triumphed in 
the past in the case of the upper classes. But why should 
the so-called meritarian principle be put against mediocrity 
when we come to Scheduled Castes, Scheduled Tribes 
and backward classes?”
130.	The Learned Judge observed that the disastrous consequences of 
the so-called meritarian principle to the vast majority of the under-
nourished, poverty-stricken, barely literate and vulnerable people 
of our country are too obvious to be stated. The Learned Judge 
compared a child of the Scheduled Castes, Scheduled Tribes or 
other backward classes who has been brought up in an atmosphere 
of penury, illiteracy and anti-culture, who is looked down upon by 
tradition and Society, who has no books and magazines to read 
at home, no radio to listen, no TV to watch, no one to help him 
with his homework, who goes to the nearest local board school 
and college, whose parents are
either illiterate or so ignorant and 
ill-informed that he cannot even hope to seek their advice on any 
matter of importance. The Learned Judge observed that with all 
these disadvantages, if he is able to secure the qualifying 40% or 
50% of the marks at a competitive examination, he cannot be said 
to have no merit, especially if he be compared with the children of 
the upper classes who have all the advantages, who go to St. Paul’s 
High School and St. Stephen’s College, and who have perhaps been 
specially coached for the examination and may secure 70, 80 or 
even 90% of the marks. The Learned Judge further observed that 
the requirements of efficiency may always be safeguarded by the 
prescription of minimum standards. 
131.	Emphasizing on the position of the Scheduled Castes, the Learned 
Judge observed thus:
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
“51. …….Now, anyone acquainted with the rural scene 
in India would at once recognise the position that the 
Scheduled Castes occupy a peculiarly degraded position 
and are treated, not as persons of caste at all, but as 
outcastes. Even the other admittedly backward classes 
shun them and treat them as inferior beings. It was 
because of the special degradation to which they had 
been subjected that the Constitution itself had to come 
forward to make special provision for them. There is no 
point in attempting to determine the social backwardness 
of other classes by applying the test of nearness to the 
conditions of existence of the Scheduled Castes. Such a 
test would practically nullify the provision for reservation 
for socially and educationally backward classes other than 
Scheduled Castes and Tribes. Such a test would perpetuate 
the dominance of the existing upper classes. Such a test 
would take a substantial majority of the classes who are 
between the upper classes and the Scheduled Castes and 
Tribes out of the category of backward classes and put 
them at a permanent disadvantage. Only the “enlightened” 
classes will capture all the “open” posts and seats and the 
reserved posts and seats will go to the Scheduled Castes 
and Tribes and those very near the Scheduled Castes 
and Tribes. The bulk of those behind the “enlightened” 
classes and ahead of the near Scheduled Castes and
Tribes would be left high and dry, with never a chance of 
imposing themselves.”
132.	The Learned Judge rejects the argument that insofar as Other 
Backward Classes are concerned, their social backwardness has to 
be ascertained by applying the test of nearness to the conditions of 
existence of the Scheduled Castes. The Learned Judge observed 
that such a test would practically nullify the provision for reservation 
for socially and educationally backward classes other than Scheduled 
Castes and Scheduled Tribes. He observed that such a test would 
take a substantial majority of the classes, who are between the upper 
classes and the Scheduled Castes and Tribes, out of the category 
of backward classes and put them at a permanent disadvantage. 
He observed that only the “enlightened” classes will capture all 
the “open” posts and seats and the reserved posts and seats will
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go to the Scheduled Castes and Tribes and those very near the 
Scheduled Castes and Tribes. However, the bulk of those behind 
the “enlightened” classes and ahead of the near Scheduled Castes 
and Tribes would be left high and dry.
133.	It will also be relevant to refer to the following observations of 
Venkataramiah, J. (as His Lordship then was) in the case of 
K.C. Vasanth Kumar (supra):
“143. This view is in conformity with the intention underlying 
clause (6) of the resolution regarding the aims and 
objects of the Constitution moved by Jawaharlal Nehru on 
December 13, 1946 which asked the Constituent Assembly 
to frame a Constitution providing adequate safeguards 
for minorities, backward and tribal areas and depressed 
and other backward classes and also with the provisions 
of Article 338 and Article 340 of the Constitution. Unless 
the above restriction is imposed on the Government, it 
would become possible for the Government to call any 
caste or group or community which constitutes a powerful 
political lobby in the State as backward even though in 
fact it may be an advanced caste or group or community 
but just below some other forward community. There is 
another important reason why such advanced castes or 
groups or communities should not be included in the list of 
backward classes and that is that if castes or groups and 
communities which are fairly well advanced and castes 
and groups and communities
which are really backward 
being at the rock-bottom level are classified together 
as backward classes, the benefit of reservation would 
invariably be eaten up by the more advanced sections 
and the really deserving sections would practically go 
without any benefit as more number of children of the more 
advanced castes or groups or communities amongst them 
would have scored higher marks than the children of more 
backward castes or groups or communities. In that event 
the whole object of reservation would become frustrated. It 
is stated that it was with a view to avoiding this anomalous 
situation, the Government of Devaraj Urs had to appoint 
the Havanur Commission to make recommendations for 
the purpose of effectively implementing the objects of
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Article 15(4) and Article 16(4). Hence as far as possible 
while preparing the list of backward classes, the State 
Government has to bear in mind the above principle 
as a guiding factor. The adoption of the above principle 
will not unduly reduce the number of persons who 
will be eligible for the benefits under Article 15(4) and  
Article 16(4) of the Constitution since over the years the 
level of the Scheduled Castes and Scheduled Tribes is also 
going up by reason of several remedial measures taken 
in regard to them by the State and Central Governments. 
At the same time, it will also release the really backward 
castes, groups and communities from the stranglehold of 
many advanced groups which have had the advantage 
of reservation along with the really backward classes for 
nearly three decades. It is time that more attention is given 
to those castes, groups and communities who have been 
at the lowest level suffering from all the disadvantages 
and disabilities (except perhaps untouchability) to which 
many of the Scheduled Castes and Scheduled Tribes have 
been exposed but without the same or similar advantages 
that flow from being included in the list of the Scheduled 
Castes and the Scheduled Tribes.
144. Since economic condition is also a relevant criterion, 
it would be appropriate to incorporate a “means test” as 
one of the tests in determining the backwardness as was 
done by the
Kerala Government in Jayasree case63. 
These two tests namely, that the conditions of caste or 
group or community should be more or less similar to the 
conditions in which the Scheduled Castes or Scheduled 
Tribes are situated and that the income of the family 
to which the candidate belongs does not exceed the 
specified limit would serve as useful criteria in determining 
beneficiaries of any reservation to be made under Article 
15(4). For the purpose of Article 16(4) however, it should 
also be shown that the backward class in question is in 
the opinion of the Government not adequately represented 
in the Government services.”
134.	The Learned Judge observed that two tests namely, that the conditions 
of caste or group or community should be more or less similar to the
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conditions in which the Scheduled Castes or Scheduled Tribes are 
situated and that the income of the family to which the candidate 
belongs does not exceed the specified limit would serve as useful 
criteria in determining beneficiaries of any reservation to be made 
under Article 15(4). The Learned Judge observed that insofar as 
Article 16(4) is concerned, it should also be shown that the backward 
class in question is in the opinion of the Government not adequately 
represented in the Government services.
E.	
Indra Sawhney vs. Union of India 
135.	Then next comes the 9-Judge Bench judgment of this Court in 
the case of Indra Sawhney and others vs. Union of India and 
others,12 which could be considered as an important milestone laying 
down the law about reservations for Other Backward Classes. The 
extracts from the said judgment of 9-Judge Bench have in-extenso 
been reproduced in the referral judgment (The State of Punjab & 
Ors. vs. Davinder Singh & Ors.13).
136.	I will refer to some of the observations made by B.P. Jeevan Reddy, 
J., who has authored the judgment for himself and M.H. Kania, C.J., 
M.N. Venkatachaliah, J. and A.M. Ahmadi, J. (as Their Lordships 
then were).
“781. At the outset, we may state that for the purpose of 
this discussion, we keep aside the Scheduled Tribes and 
Scheduled Castes (since they are admittedly included within 
the backward classes), except to remark that backward 
classes
contemplated by Article 16(4) do comprise some 
castes — for it cannot be denied that Scheduled Castes 
include quite a few castes.”
137.	His Lordship (Jeevan Reddy, J.) observed that with regard to 
identification of ‘backward class of citizens’, we keep aside the 
Scheduled Tribes and Scheduled Castes. It will be relevant to note 
that in the said part of the judgment His Lordship (Jeevan Reddy, J.) 
was considering an issue with regard to identification of backward 
class of citizens. In this background, it was observed that the court 
was keeping aside Scheduled Tribes and Scheduled Castes since 
12	
(1992) Supp. 3 SCC 217
13	
(2020) 8 SCC 1
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
they are admittedly included within the backward classes. It was 
further observed that backward classes contemplated by Article 16(4) 
do comprise some castes since it cannot be denied that Scheduled 
Castes include quite a few castes.
138.	From paragraph 790 onwards, His Lordship considered the 
‘Means-test’ and ‘creamy layer’. It will be apposite to reproduce 
paragraph 792, which reads thus:
“792. In our opinion, it is not a question of permissibility 
or desirability of such test but one of proper and more 
appropriate identification of a class — a backward class. 
The very concept of a class denotes a number of persons 
having certain common traits which distinguish them from 
the others. In a backward class under clause (4) of Article 
16, if the connecting link is the social backwardness, it 
should broadly be the same in a given class. If some of 
the members are far too advanced socially (which in the 
context, necessarily means economically and, may also 
mean educationally) the connecting thread between them 
and the remaining class snaps. They would be misfits in 
the class. After excluding them alone, would the class be 
a compact class. In fact, such exclusion benefits the truly 
backward. Difficulty, however, really lies in drawing the 
line — how and where to draw the line? For, while drawing 
the line, it should be ensured that it does not result in 
taking away with one hand what
is given by the other. The 
basis of exclusion should not merely be economic, unless, 
of course, the economic advancement is so high that it 
necessarily means social advancement. Let us illustrate 
the point. A member of backward class, say a member 
of carpenter caste, goes to Middle East and works there 
as a carpenter. If you take his annual income in rupees, 
it would be fairly high from the Indian standard. Is he to 
be excluded from the Backward Class? Are his children in 
India to be deprived of the benefit of Article 16(4)? Situation 
may, however, be different, if he rises so high economically 
as to become — say a factory owner himself. In such a 
situation, his social status also rises. He himself would be 
in a position to provide employment to others. In such a
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case, his income is merely a measure of his social status. 
Even otherwise there are several practical difficulties too in 
imposing an income ceiling. For example, annual income 
of Rs 36,000 may not count for much in a city like Bombay, 
Delhi or Calcutta whereas it may be a handsome income 
in rural India anywhere. The line to be drawn must be a 
realistic one. Another question would be, should such a 
line be uniform for the entire country or a given State or 
should it differ from rural to urban areas and so on. Further, 
income from agriculture may be difficult to assess and, 
therefore, in the case of agriculturists, the line may have 
to be drawn with reference to the extent of holding. While 
the income of a person can be taken as a measure of his 
social advancement, the limit to be prescribed should not 
be such as to result in taking away with one hand what is 
given with the other. The income limit must be such as to 
mean and signify social advancement. At the same time, 
it must be recognised that there are certain positions, the 
occupants of which can be treated as socially advanced 
without any further enquiry. For example, if a member 
of a designated backward class becomes a member 
of IAS or IPS or any other All India Service, his status 
is society (social status) rises; he is no longer socially 
disadvantaged. His children get full opportunity to realise 
their potential. They are in no way
handicapped in the 
race of life. His salary is also such that he is above want. 
It is but logical that in such a situation, his children are 
not given the benefit of reservation. For by giving them 
the benefit of reservation, other disadvantaged members 
of that backward class may be deprived of that benefit. 
It is then argued for the respondents that ‘one swallow 
doesn’t make the summer’, and that merely because a few 
members of a caste or class become socially advanced, 
the class/caste as such does not cease to be backward. 
It is pointed out that clause (4) of Article 16 aims at group 
backwardness and not individual backwardness. While we 
agree that clause (4) aims at group backwardness, we 
feel that exclusion of such socially advanced members will 
make the ‘class’ a truly backward class and would more
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
appropriately serve the purpose and object of clause (4). 
(This discussion is confined to Other Backward Classes 
only and has no relevance in the case of Scheduled Tribes 
and Scheduled Castes).”
139.	His Lordship observed that if some of the members in a class are 
far too advanced socially, the connecting thread between them and 
the remaining class snaps. The Court observed that ‘too advanced 
socially’ means economically and may also mean educationally. It 
has been observed that they would be misfits in the class. The Court 
considered the difficulty in drawing the line. It is observed that it 
should not amount to taking away with one hand what is given with 
the other. The Court observed that the basis of exclusion should not 
merely be economic, unless, of course, the economic advancement 
is so high that it necessarily means social advancement. The Court 
observed that the line to be drawn must be a realistic one. The Court 
posed a question as to whether such a line should be uniform for 
the entire country or a given State or should it differ from rural to 
urban areas and so on. It has been observed that since it is difficult 
to assess income from agriculture, in the case of agriculturists, the 
line may have to be drawn with reference to the extent of holding. It 
is observed that the income limit must be such as to mean and signify 
social advancement. The Court observed that at the
same time, it 
must be recognized that there are certain positions, the occupants 
of which can be treated as socially advanced without any further 
enquiry. It has been observed that if a member of a designated 
backward class would become a member of IAS or IPS or any other 
All India Service, his status in the society rises and he is no longer 
socially disadvantaged. The Court observed that clause (4) of Article 
16 aims at group backwardness, the exclusion of such socially 
advanced members will make the ‘class’ a truly backward class and 
would more appropriately serve the purpose and object of clause (4). 
No doubt, it has been specified that the said discussion was confined 
to Other Backward Classes only and had no relevance in the case 
of Scheduled Tribes and Scheduled Castes.
140.	Then the question as to whether Backward Classes can be further 
divided into backward and more backward categories has been 
answered thus:
“802. We are of the opinion that there is no constitutional 
or legal bar to a State categorising the backward classes
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as backward and more backward. We are not saying that 
it ought to be done. We are concerned with the question 
if a State makes such a categorisation, whether it would 
be invalid? We think not. Let us take the criteria evolved 
by Mandal Commission. Any caste, group or class which 
scored eleven or more points was treated as a backward 
class. Now, it is not as if all the several thousands of 
castes/groups/classes scored identical points. There 
may be some castes/groups/classes which have scored 
points between 20 to 22 and there may be some who 
have scored points between eleven and thirteen. It cannot 
reasonably be denied that there is no difference between 
these two sets of castes/groups/classes. To give an 
illustration, take two occupational groups viz., goldsmiths 
and vaddes (traditional stone-cutters in Andhra Pradesh) 
both included within Other Backward Classes. None can 
deny that goldsmiths are far less backward than vaddes. 
If both of them are grouped together and reservation 
provided, the inevitable result would be that goldsmiths 
would take away all the reserved posts leaving none for 
vaddes. In such a situation, a State may think it advisable 
to make a categorisation even among other backward 
classes so as to ensure that the more backward among 
the backward classes obtain the benefits intended for 
them. Where to draw the line and how to effect the sub-
classification is, however, a matter for
the Commission 
and the State — and so long as it is reasonably done, 
the Court may not intervene. In this connection, reference 
may be made to the categorisation obtaining in Andhra 
Pradesh. The Backward Classes have been divided into 
four categories. Group A comprises “Aboriginal tribes, 
Vimukta jatis, nomadic and semi-nomadic tribes etc.” 
Group B comprises professional group like tappers, 
weavers, carpenters, ironsmiths, goldsmiths, kamsalins 
etc. Group C pertains to “Scheduled Castes converts to 
Christianity and their progeny”, while Group D comprises 
all other classes/communities/groups, which are not 
included in Groups A, B and C. The 25% vacancies 
reserved for backward classes are sub-divided between 
them in proportion to their respective population. This
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
categorisation was justified in Balram [(1972) 1 SCC 
660 : (1972) 3 SCR 247] . This is merely to show that 
even among backward classes, there can be a sub-
classification on a reasonable basis.
803. There is another way of looking at this issue. 
Article 16(4) recognises only one class viz., “backward 
class of citizens”. It does not speak separately of Scheduled 
Castes and Scheduled Tribes, as does Article 15(4). Even 
so, it is beyond controversy that Scheduled Castes and 
Scheduled Tribes are also included in the expression 
“backward class of citizens” and that separate reservations 
can be provided in their favour. It is a well-accepted 
phenomenon throughout the country. What is the logic 
behind it? It is that if Scheduled Tribes, Scheduled Castes 
and Other Backward Classes are lumped together, OBCs 
will take away all the vacancies leaving Scheduled Castes 
and Scheduled Tribes high and dry. The same logic also 
warrants categorisation as between more backward and 
backward. We do not mean to say — we may reiterate — 
that this should be done. We are only saying that if a State 
chooses to do it, it is not impermissible in law.”
141.	The Court in unequivocal terms held that even among backward 
classes, there can be a sub-classification on a reasonable basis. The 
Court held that there can be backward and more backward classes 
and the State may think it advisable to provide a special
benefit to the 
more backward among the backward classes. It has been observed 
that where to draw the line and how to effect the sub-classification 
is, however, a matter for the Commission and the State, and so long 
as it is reasonably done, the Court may not intervene. 
142.	The Court observed that Article 16(4) recognizes only one class 
i.e., “backward class of citizens”. It is observed that it does not 
speak separately of Scheduled Castes and Scheduled Tribes, as 
does Article 15(4). It has therefore been observed that it is beyond 
controversy that Scheduled Castes and Scheduled Tribes are also 
included in the expression “backward class of citizens” and that 
separate reservations can be provided in their favour. 
143.	It has also been observed that if Scheduled Tribes, Scheduled Castes 
and Other Backward Classes are lumped together, the OBCs will take
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away all the vacancies leaving Scheduled Castes and Scheduled 
Tribes high and dry. It has been observed that the same logic also 
warrants categorization as between more backward and backward. 
The Court, however, cautioned that it may not be construed as 
implying that the State should do it, but it was only saying that if the 
State chooses to do so, it is not impermissible in law. 
144.	Similar view has also been expressed by P.B. Sawant, J. in paragraphs 
523, 524 and 525, which read thus:
“523. As regards the second part of the question, in 
Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] it was 
observed that the backward classes cannot be further 
classified in backward and more backward classes. These 
observations, although made in the context of Article 
15(4) which fell for consideration there, will no doubt 
be equally applicable to Article 16(4). The observations 
were made while dealing with the recommendations of 
the Nagan Gowda Committee appointed by the State 
of Karnataka which had recommended the classification 
of the backward communities into two divisions, the 
Backward and the More Backward. While making those 
recommendations the Committee had applied one test, 
viz., “Was the standard of education in the community in 
question less than 50% of the State average? If it was, 
the community was regarded as more backward; if it was 
not, the community was regarded as backward.” The Court 
opined that
the sub-classification made by the Report 
and the order based thereupon was not justified under  
Article 15(4) which authorises special provision being 
made for ‘really backward classes’. The Court further 
observed that in introducing two categories of backward 
classes, what the impugned order in substance purported 
to do was to devise measures “for the benefit of all the 
classes of citizens who are less advanced compared to 
the most advanced classes in the State”. That, according 
to the Court, was not the scope of Article 15(4). The result 
of the method adopted by the impugned order was that 
nearly 90% of the population of the State was treated as 
Backward and that, observed the Court, illustrated how 
the order in fact divided the population of the State into
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
most advanced and the rest, putting the latter into two 
categories of the Backward and the More Backward. Thus, 
the view taken there against the sub-classification was on 
the facts of that case which showed that almost 90% of 
the population of the State was classified as backward, 
the backwardness of the Backward (as against that of the 
More Backward) being measured in comparison to the 
most advanced classes in the State. Those who were less 
advanced than the most advanced, were all classified as 
Backward. The Court held that it is the More Backward 
or who were really backward who alone would be entitled 
to the benefit of the provisions of Article 15(4). In other 
words, while the More Backward were classified there 
rightly as backward, the Backward were not classified 
rightly as backward.
524. It may be pointed out that in Vasanth Kumar  
[1985 Supp SCC 714 : 1985 Supp 1 SCR 352] Chinnappa 
Reddy, J after referring to the aforesaid view in Balaji 
[1963 Supp 1 SCR 439 : AIR 1963 SC 649] observed 
that the propriety of such test may be open to question 
on the facts of each case but there was no reason why on 
principle there cannot be a classification into Backwards 
and More Backwards if both classes are not merely a little 
behind, but far far behind the most advanced classes. He 
further observed that in fact, such a classification would be 
necessary to help the more backward
classes; otherwise 
those of the backward classes who might be a little more 
advanced than the more backward classes, would walk 
away with all the seats just as if reservation was confined 
to the more backward classes and no reservation was 
made to the slightly more advanced of the backward 
classes, the backward classes would gain no seats since 
the advanced classes would walk away with all the seats 
available for the general category. With respect, this is the 
correct view of the matter. Whether the backward classes 
can be classified into Backward and More Backward, 
would depend upon the facts of each case. So long 
as both backward and more backward classes are not 
only comparatively but substantially backward than the
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advanced classes, and further, between themselves, there 
is a substantial difference in backwardness, not only it is 
advisable but also imperative to make the sub-classification 
if all the backward classes are to gain equitable benefit 
of the special provisions under the Constitution. To give 
an instance, the Mandal Commission has, on the basis 
of social, educational and economic indicators evolved 
22 points by giving different values to each of the three 
factors, viz., social, educational and economic. Those 
social groups which secured 22 points or above have been 
listed there as “socially and educationally backward” and 
the rest as “advanced”. Now, between 11 and 22 points 
some may secure, say, 11 to 15 points while others may 
secure all 22 points. The difference in their backwardness 
is, therefore, substantial. Yet another illustration which may 
be given is from Karnataka State Government order dated 
October 13, 1986 on reservations issued after the decision 
in Vasanth Kumar [1985 Supp SCC 714 : 1985 Supp 1 
SCR 352] where the backward classes are grouped into 
five categories, viz., A, B, C, D and E. In category A, fall 
such castes or communities as that of Bairagi, Banjari and 
Lambadi which are nomadic tribes, and Bedaru, Ramoshi 
which were formerly stigmatised as criminal tribes whereas 
in category D fall such castes as Kshatriya and Rajput. To 
lump both together would be to deny totally the
benefit of 
special provisions to the former, the latter taking away the 
entire benefits. On the other hand, to deny the status of 
backwardness to the latter and ask them to compete with 
the advanced classes, would leave the latter without any 
seat or post. In such circumstances, the sub-classification 
of the backward classes into backward and more or most 
backward is not only desirable but essential. However, for 
each of them a special quota has to be prescribed as is 
done in the Karnataka Government order. If it is not done, 
as in the present case, and the reserved posts are first 
offered to the more backward and only the remaining to 
the backward or less backward, the more backward may 
take away all the posts leaving the backward with no posts. 
The backward will neither get his post in the reserved
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
quota nor in the general category for want of capacity to 
compete with the forward.
525. Hence, it will have to be held that depending upon 
the facts of each case, sub-classification of the backward 
classes into the backward and more or most backward 
would be justifiable provided separate quotas are 
prescribed for each of them.”
145.	His Lordship held that sub-classification of the backward classes 
into the backward and more or most backward would be justifiable 
provided separate quotas are prescribed for each of them. 
146.	The question as to whether Backward Classes can be further divided 
into backward and more backward categories has been answered 
by P.B. Sawant, J. as under (Paragraph 552):
“Question 5:
Article 16(4) permits classification of backward classes into 
backward and more or most backward classes. However, 
this classification is permitted only on the basis of the 
degrees of social backwardness and not on the basis of 
the economic consideration alone.
If backward classes are classified into backward and more 
or most backward classes, separate quotas of reservations 
will have to be kept for each of such classes. In the absence 
of such separate quotas, the reservations will be illegal.
It is not permissible to classify backward classes or a 
backward class social group into an advanced section 
and a backward section either on economic or any other 
consideration. The test
of advancement lies in the capacity 
to compete with the forward classes. If the advanced 
section in a backward class is so advanced as to be able 
to compete with the forward classes, the advanced section 
from the backward class no longer belongs to the backward 
class and should cease to be considered so and denied 
the benefit of reservations under Article 16(4).”
147.	It could thus be seen that Sawant, J. observed that if the advanced 
section in a backward class is so advanced as to be able to compete 
with the forward classes, the advanced section from the backward
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class no longer belongs to the backward class and should cease 
to be considered so and denied the benefit of reservations under 
Article 16(4).
F.	
E.V. Chinnaiah vs. State of A.P.
148.	In the case of E.V. Chinnaiah, the validity of the Andhra Pradesh 
Scheduled Castes (Rationalisation of Reservations) Act, 2000 
(A.P. Act 20 of 2000) was challenged before the High Court of 
Andhra Pradesh at Hyderabad. The same was dismissed by the 
5-Judge Bench by a majority of 4:1. Under the said Act, the castes 
in the Presidential List of Scheduled Castes came to be classified 
in 4 groups. The seats were apportioned in different proportions 
amongst the said 4 groups. 
149.	N. Santosh Hegde, J. for himself, S.N. Variava, and B.P. Singh, JJ. 
(as Their Lordships then were) observed thus:
“13. We will first consider the effect of Article 341 of the 
Constitution and examine whether the State could, in 
the guise of providing reservation for the weaker of the 
weakest, tinker with the Presidential List by subdividing 
the castes mentioned in the Presidential List into different 
groups. Article 341 which is found in Part XVI of the 
Constitution refers to special provisions relating to certain 
classes which includes the Scheduled Castes. This article 
provides that the President may with respect to any State 
or Union Territory after consultation with the Governor 
thereof by public notification, specify the castes, races 
or tribes
or parts of or groups within castes, races or 
tribes which shall for the purposes of this Constitution be 
deemed to be Scheduled Castes in relation to that State 
or Union Territory. This indicates that there can be only 
one list of Scheduled Castes in regard to a State and 
that list should include all specified castes, races or tribes 
or part or groups notified in that Presidential List. Any 
inclusion or exclusion from the said list can only be done 
by Parliament under Article 341(2) of the Constitution. In 
the entire Constitution wherever reference has been made 
to “Scheduled Castes” it refers only to the list prepared by 
the President under Article 341 and there is no reference 
to any subclassification or division in the said list except,
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1537
The State of Punjab & Ors. v. Davinder Singh & Ors. 
maybe, for the limited purpose of Article 330, which refers 
to reservation of seats for Scheduled Castes in the House 
of the People, which is not applicable to the facts of this 
case. It is also clear from Article 341 that except for a 
limited power of making an exclusion or inclusion in the 
list by an Act of Parliament there is no provision either to 
subdivide, subclassify or subgroup these castes which 
are found in the Presidential List of Scheduled Castes. 
Therefore, it is clear that the Constitution intended all the 
castes including the subcastes, races and tribes mentioned 
in the list to be members of one group for the purpose of 
the Constitution and this group could not be subdivided 
for any purpose. A reference to the Constituent Assembly 
in this regard may be useful at this stage.”
150.	His Lordship observed that from the perusal of Article 341 of the 
Constitution, there can be only one list of Scheduled Castes regarding 
a State and that list should include all specified castes, races or 
tribes or part or groups notified in that Presidential List. It has been 
observed that any inclusion or exclusion from the said list can only 
be done by Parliament under Article 341(2) of the Constitution. It 
is observed that it is also clear from Article 341 that except for a 
limited power of making an exclusion or inclusion in the list by an Act 
of Parliament there is no provision
either to subdivide, subclassify 
or subgroup these castes which are found in the Presidential List 
of Scheduled Castes. It has been observed that the Constitution 
intended all the castes including the subcastes, races and tribes 
mentioned in the list to be members of one group for the purpose 
of the Constitution and that the said group could not be subdivided 
for any purpose. 
151.	In paragraph 26, it has been observed thus:
“26. Thus from the scheme of the Constitution, Article 341 
and above opinions of this Court in the case of N.M. 
Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] it is 
clear that the castes once included in the Presidential List, 
form a class by themselves. If they are one class under 
the Constitution, any division of these classes of persons 
based on any consideration would amount to tinkering 
with the Presidential List.”
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152.	The Court, relying on Article 341 and the opinions expressed in the 
case of N.M. Thomas, observed that it was clear that the castes 
once included in the Presidential List, form a class by themselves. It 
has been observed that if they are one class under the Constitution, 
any division of these classes of persons based on any consideration 
would amount to ‘tinkering’ with the Presidential List.
153.	In paragraph 31, the Court observed thus:
“31. On a detailed perusal of the Act it is seen that  
Section 3 is the only substantive provision in the Act, rest 
of the provisions are only procedural. Section 3 of the Act 
provides for the creation of 4 groups out of the castes 
enumerated in the Presidential List of the State. After the 
regrouping it provides for the proportionate allotment of 
the reservation already made in favour of the Scheduled 
Castes amongst these 4 groups. Beyond that the Act does 
not provide for anything else. Since the State had already 
allotted 15% of the total quota of the reservation available 
for the backward classes to the Scheduled Castes the 
question of allotting any reservation under this enactment 
to the backward classes does not arise. Therefore, it 
is clear that the purpose or the true intendment of this 
Act is only to first divide the castes in the Presidential 
List of the Scheduled Castes into 4 groups and then  
divide 15% of reservation allotted to the Scheduled Castes
as a class, amongst these 4 groups. Thus it is clear that 
the Act does not for the first time provide for reservation to 
the Scheduled Castes but only intends to redistribute the 
reservation already made by subclassifying the Scheduled 
Castes which is otherwise held to be a class by itself. It is 
a well-settled principle in law that reservation to a backward 
class is not a constitutional mandate. It is the prerogative 
of the State concerned if it so desires, with an object of 
providing opportunity of advancement in the society to 
certain backward classes which includes the Scheduled 
Castes, to reserve certain seats in educational institutions 
under Article 15(4) and in public services of the State 
under Article 16(4). That part of its constitutional obligation, 
as stated above, has already been fulfilled by the State.
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1539
The State of Punjab & Ors. v. Davinder Singh & Ors. 
Having done so, it is not open to the State to subclassify 
a class already recognised by the Constitution and allot a 
portion of the already reserved quota amongst the State-
created subclass within the list of Scheduled Castes. From 
the discussion hereinabove, it is clear that the primary 
object of the impugned enactment is to create groups of 
subcastes in the list of Scheduled Castes applicable to the 
State and, in our opinion, apportionment of the reservation 
is only secondary and consequential. Whatever may be 
the object of this subclassification and apportionment of 
the reservation, we think the State cannot claim legislative 
power to make a law dividing the Scheduled Castes 
List of the State by tracing its legislative competence to  
Entry 41 of List II or Entry 25 of List III. Therefore, we are 
of the opinion that in pith and substance the enactment 
is not a law governing the field of education or the field 
of State public services.”
154.	It can thus be seen that this Court held that whatever may be the 
object of the sub-classification and apportionment of the reservation, 
the State cannot claim legislative power to make a law dividing 
the Scheduled Castes List of the State by tracing its legislative 
competence to Entry 41 of List II or Entry 25 of List III. The Court 
held that, in pith and substance the enactment is not a law governing 
the field of education or the field
of State public services.
155.	Then the Court posed a question as to whether the impugned 
enactment creates sub-classification or micro-classification of the 
Scheduled Castes so as to violate Article 14 of the Constitution. The 
same is answered as under:
“41. The conglomeration of castes given in the Presidential 
Order, in our opinion, should be considered as representing 
a class as a whole. The contrary approach of the High 
Court, in our opinion, was not correct. The very fact that 
a legal fiction has been created is itself suggestive of the 
fact that the legislature of a State cannot take any action 
which would be contrary to or inconsistent therewith. The 
very idea of placing different castes or tribes or group or 
part thereof in a State as a conglomeration by way of a 
deeming definition clearly suggests that they are not to
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be subdivided or subclassified further. If a class within a 
class of members of the Scheduled Castes is created, 
the same would amount to tinkering with the list. Such 
subclassification would be violative of Article 14 of the 
Constitution. It may be true, as has been observed by 
the High Court, that the caste system has got stuck up 
in the society but with a view to do away with the evil 
effect thereof, a legislation which does not answer the 
constitutional scheme cannot be upheld. It is also difficult 
to agree with the High Court that for the purpose of 
identifying backwardness, a further inquiry can be made by 
appointing a commission as to who amongst the members 
of the Scheduled Castes is more backward. If benefits of 
reservation are not percolating to them equitably, measures 
should be taken to see that they are given such adequate 
or additional training so as to enable them to compete 
with the others but the same would not mean that in the 
process of rationalising the reservation to the Scheduled 
Castes the constitutional mandate of Articles 14, 15 and 
16 could be violated.
42. Reservation must be considered from the social 
objective angle, having regard to the constitutional 
scheme, and not as a political issue and, thus, adequate 
representation must be given to the members of the 
Scheduled Castes as a group and not to two or more 
groups of persons or members of castes.
43. The very fact that
the members of the Scheduled 
Castes are most backward amongst the backward classes 
and the impugned legislation having already proceeded 
on the basis that they are not adequately represented 
both in terms of clause (4) of Article 15 and clause (4) of  
Article 16 of the Constitution, a further classification by way 
of micro-classification is not permissible. Such classification 
of the members of different classes of people based on their 
respective castes would also be violative of the doctrine 
of reasonableness. Article 341 provides that exclusion 
even of a part or a group of castes from the Presidential 
List can be done only by Parliament. The logical corollary
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1541
The State of Punjab & Ors. v. Davinder Singh & Ors. 
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 
14	
[2006] Supp. 7 SCR 336 : (2006) 8 SCC 212
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1543
The State of Punjab & Ors. v. Davinder Singh & Ors. 
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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1545
The State of Punjab & Ors. v. Davinder Singh & Ors. 
“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
[2024] 8 S.C.R. 
1547
The State of Punjab & Ors. v. Davinder Singh & Ors. 
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 
169.	A 3-Judge Bench of this Court in the case of State of Punjab and 
others vs. Davinder Singh and others16 vide order dated 20th August 
2014, doubted the correctness of the Constitution Bench decision 
of this Court in the case of E.V. Chinnaiah and referred it to the 
larger Bench. The larger Bench of 5-Learned Judges proposed the 
following issues.17
“1.1. (i) Whether the provisions contained under Section 
4(5) of the Punjab Scheduled Castes and Backward Classes 
(Reservation in Services) Act, 2006 are constitutionally 
valid?
1.2. (ii) Whether the State had the legislative competence to 
enact the provisions contained under Section 4(5) of the Act?
1.3. (iii) Whether the decision in E.V. Chinnaiah v. State of 
A.P. [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : 
(2008) 2 SCC (L&S) 329] is required to be revisited?”
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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1549
The State of Punjab & Ors. v. Davinder Singh & Ors. 
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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
“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 
21	
Narendra Jadhav, Ambedkar: Awakening India’s Social Conscience. (Konark Publishers Pvt. Ltd. 2014).
22	
Ibid.
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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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1555
The State of Punjab & Ors. v. Davinder Singh & Ors. 
“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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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. 
207.	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. 
208.	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. 
209.	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. 
210.	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.
211.	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”. 
212.	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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213.	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. 
214.	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”. 
215.	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. 
216.	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. 
217.	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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218.	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. 
219.	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.
220.	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. 
221.	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. 
222.	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. 
223.	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. 
224.	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. 
225.	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. 
226.	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. 
227.	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. 
228.	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. 
229.	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.
230.	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.
231.	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. 
232.	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’. 
233.	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?
234.	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. 
235.	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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236.	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)
237.	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. 
238.	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. 
239.	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).
240.	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. 
241.	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). 
242.	M.H. Beg, J. concurs with the views expressed by the aforesaid 
Learned Judges. 
243.	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.
244.	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. 
245.	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. 
246.	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. 
247.	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). 
248.	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’. 
249.	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.
250.	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. 
251.	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. 
252.	The provisions of affirmative action including reservations in the 
matter of public employment are contained in Article 16 of the 
Constitution of India. 
253.	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. 
254.	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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
255.	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.”
256.	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. 
257.	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 
25	
[1990] 2 SCR 843 : (1990) 3 SCC 130
26	
Report of Justice Usha Mehra National Commission on Sub-Categorization of Scheduled Castes in 
Andhra Pradesh (submitted to Ministry of Social Justice and Empowerment, Government of India on 1st 
May 2008).
27	
Section 4(5) of The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 
2006 (Punjab Act No. 22 of 2006)
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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. 
258.	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.
259.	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. 
260.	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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
permissible in view of the law laid down by the 9-Judge Bench in 
the case of Indra Sawhney. 
261.	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. 
262.	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. 
263.	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.
264.	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. 
265.	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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266.	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. 
267.	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. 
268.	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. 
269.	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. 
270.	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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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. 
271.	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
272.	That leaves us with the question regarding the applicability of creamy 
layer principle to the Scheduled Castes and Scheduled Tribes. 
273.	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.
274.	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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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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).”
275.	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. 
276.	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. 
277.	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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Digital Supreme Court Reports
278.	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.
279.	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. 
280.	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.
281.	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.
282.	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.
283.	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. 
284.	I have already referred hereinabove to the observations made by 
Krishna Iyer, J. in N.M. Thomas and the observations made by