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
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341(2) consists of two parts. First, it grants only Parliament the 
power to “include or exclude” any caste or group, or a part of the 
caste or group, and second, “save as aforesaid”, a notification 
issued by the President under Article 341(1) shall not be varied 
by any other subsequent notification. It is important to understand 
the purport of the second part of the provision to understand the 
scope of Article 342(2). 
121.	 The second part of Article 341(2) must be read in the context 
of Article 367. Article 367 provides that unless the context 
otherwise requires, the General Clauses Act 1897 shall apply 
for the interpretation of the Constitution as it applies to the 
interpretation of an Act of the Legislature of the Dominion of India. 
Section 21 of the General Clauses Act 1897 states that the power 
to issue notifications includes the power to add to, amend, vary or 
rescind the notification.176 By Article 341(1) read with Article 367 
and Section 21 of the General Clauses Act 1897, the President 
would have the power to add to, amend, vary or rescind the 
notification. The first part of Article 341(2) removes the power of 
the President to include in and exclude from the List and places it 
in the domain of Parliament. This power is traceable to the words 
“add to” or “amend” in Section 21 of the General Clauses Act. The 
second part of Article 341(2) ensures that the President does not 
have any residual
power to “vary” the List. The phrase “vary” in 
common parlance has a wider meaning than exclusion or inclusion. 
It includes altering the list, even by partial change.177 However, the 
phrase “vary” in Article 341(2) takes the meaning of inclusion in 
and exclusion from the List, and not the other way around. This is 
clear with the use of the phrase “save as aforesaid” in the second 
part of the provision. Thus, by Article 341(2), the President does 
not have the power to vary the List notified under Article 341(1) 
by inclusion in and exclusion from it.
176	 21. Power to issue, to include power to add to, amend, vary or rescind notifications orders, rules, or 
bye-laws- Where, by any [Central Act] or Regulations a power to issue notifications, orders, rules, or 
bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to 
the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules, 
or bye-laws so issued. 
177	 “Vary” - to make changes to something to make it slightly different. Oxford Learner’s Dictionary, 
<https://www.oxfordlearnersdictionaries.com/definition/american_english/vary>; “vary” Merriam-Webster 
Dictionary <https://www.merriam-webster.com/thesaurus/vary#thesaurus-entry-1-2>
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
122.	 The power of Parliament to vary the list includes not merely the 
power to exclude or include “any caste, race or tribe” but also the 
power to exclude or include “parts of or groups within any caste, race 
or tribe”. In Milind (supra), the issue before this Court was whether 
an entry titled ‘Halba/Halbi’ in the Scheduled Tribe Order relating to 
the State of Maharashtra could be read to include the ‘Halba-Koshti’ 
tribe. This Court held that the Presidential list is to be read as it is 
and no evidence could be allowed to establish that an entry in the 
Scheduled Caste or Scheduled Tribe list included a particular group 
that was not included specifically in the List. The Court held that any 
other interpretation would infringe upon the power accorded solely 
to Parliament by Article 341(2). Justice Shivraj V Patil, writing for 
the Bench, held that unless a tribe is specified expressly in the List 
under Article 342, which is pari materia to Article 341, no inquiry 
could be held or evidence led to establish that such tribe, or any 
part thereof, is included within the meaning of an entry included in 
the Presidential Order.178 This Court underscored that the power of 
the States is limited to making recommendations at the initial stage 
of consultation, prior to the notification of the Presidential List under 
Article 341(1). This Court observed that the Constitution vests the 
power to
make any further changes to the List in Parliament to 
prevent alterations to the List due to political pressure. 179 
123.	 The prohibition under Article 341(2) entails that once a particular 
caste, race, tribe or a part or group of it is specified in the Presidential 
List under Article 341(1), the list shall be read as it is with no additions 
or deletions. The benefit of the special provisions shall not be given 
to any caste or sub-caste not included in the List with respect to that 
State. Article 341(2) uses the words “include in” or “exclude from” 
and “shall not be varied”. These terms contained in the provision 
are unambiguous. An inclusion would occur if the State were to 
enact a law that extends the benefits meant for Scheduled Castes 
in that State to a community that is not enumerated as a Scheduled 
Caste for that State. The only mechanism open to the State, in case 
it regards a community fit for inclusion in the List notified for that 
State, is to make a proposal to that effect to the central authorities. 
178	 Milind (supra) [12].
179	 Milind (supra) [15].
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After due inquiry, the community may be added to the List by 
Parliament, subject to its satisfaction that such a modification is 
required. Until then, the State has to apply the Scheduled Castes 
List as it is.180 Thus, to summarize, Article 341(2) bars the State 
Legislature from removing or adding castes from and to the List 
respectively. Sub-classification within the Scheduled Castes for 
the purposes of affirmative action, including reservation does not 
include or exclude any caste or group from the List. Section D(iii) 
of this judgment deals with the different models of sub-classification 
to determine if the operation of reservation upon sub- classification 
in-effect leads to exclusion. 
v.	
Historical and empirical evidence of inter-se backwardness 
within the Scheduled Castes 
124.	 Having held that Article 341 does not create an integrated 
homogenous class, we will next decide whether there is an intelligible 
differentia to group the castes within the Scheduled Castes. For this, 
it needs to be analyzed if the Scheduled Castes are a heterogenous 
class. The respondents submitted that there cannot be any sub-
categorization of the Scheduled Castes because all the castes face 
the same form of social backwardness based on untouchability. The 
petitioners, on the other hand, submitted that there exists inter-se 
backwardness within the Scheduled Castes. 
125.	 The Constitution of India does not provide a
definition of the 
Scheduled Castes. Article 366(24) states that castes/groups notified 
under Article 341 shall be Scheduled Castes. However, neither 
Article  341 nor Article 366(24) prescribes the criteria for their 
identification. The President issued the Constitution (Scheduled 
Castes) Order 1950 which nearly corresponds to the Government of 
India (Scheduled Castes) Order 1936 notified under the Government 
of India Act 1935.181 It is important to identify the criteria for inclusion 
of groups or castes in the Scheduled Castes Order 1936. 
126.	 The Government of India Act 1935 did not define the criteria for the 
identification of Scheduled Castes. Clause 26(1) of the First Schedule 
180	 Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala (1994) 1 SCC 359 [17, 18]
181	 Marc Galanter, Competing Equalities: Law and the Backward Classes in India, [Oxford University Press 
(1984)] 130
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
to it defined the Scheduled Castes as castes that corresponded to 
the classes of persons known as the “depressed classes”: 
“the scheduled castes” means such castes, races or 
tribes, or parts of or groups within castes, races or tribes 
being castes, races, tribes, parts or groups which appear 
to his Majesty in Council to correspond to the classes 
of persons formerly known as the depressed classes, 
as His Majesty in Council may specify.”
(emphasis supplied)
127.	 It is necessary that we briefly refer to the historical material on how 
the depressed classes were identified to analyze if the Scheduled 
Castes are a heterogenous class and whether there is an intelligible 
differentia distinguishing the sub-categories within the Scheduled 
Castes. 
a.	
Identification of the depressed classes 
128.	 In 1916, the definition of the depressed classes was raised in the 
Indian Legislative Council. It was suggested during the discussion 
that the expression should include criminal and wandering tribes, 
aboriginal tribes and untouchables.182 In 1917, Sir Henry Sharp, 
the Education Commissioner, prepared a list of depressed classes 
which included the aboriginal or hill tribes, depressed classes 
and criminal tribes. While preparing the list, Sir Henry stated that 
depressed classes “[…] includes communities which though not 
absolutely outside the pale of caste, are backward and educationally 
poor and
despised and also certain classes of Muslims. Some have 
interpreted it as simply educationally backward”.183 
129.	 In 1919, the Southborough Franchise Committee adopted the 
test of untouchability to define the depressed class. The Indian 
Franchise Committee 1932, inter alia, was appointed to ascertain if a 
separate electorate must be provided to the depressed classes. The 
Committee also had to arrive at a definition of “depressed classes”. 
The Committee interpreted the phrase “depressed classes” as the 
‘untouchability class’, that is, the class whose touch or approach is 
182	 Report of the Indian Franchise Committee (1932) Vol I, 112
183	 Ibid, 113
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deemed to cause pollution as it exists in the United Provinces.184 
The report stated that the depressed classes “should not include 
primitive or aboriginal tribes nor should it include those Hindus who 
are only economically poor and in other ways backward but are not 
regarded as untouchables.”185 The Committee accepted the tests 
of untouchability formulated by Hutton.186 Hutton had submitted a 
Census Report in 1931 by which depressed castes were defined 
as castes, contact with whom requires purification. The instruction 
which was given to determine if the caste is an untouchable caste 
was as follows: 
“I have explained depressed castes as castes, contact 
with whom entails purification on the part of high caste 
Hindus. It is not intended that the term should have any 
reference to occupation as such but to those castes which 
by reason of their traditional position in Hindu society are 
denied access to temples, for instance, or have to use 
separate wells or are not allowed to sit inside a school 
but have to remain outside or which suffer similar social 
disabilities. These disabilities vary in different parts of 
India being much more severe in the south of India than 
elsewhere.”187
130.	 The following tests were directed to be considered to determine if 
the caste faces untouchability: 
a.	
Whether the caste or class in question can be served by 
clean Brahmans;
b.	
Whether the caste or class in question can
be served by 
the barbers, water-carriers, tailors, etc., who serve the caste 
Hindus;
c.	
Whether the caste in question pollutes a high caste Hindu by 
contact or by proximity;
d.	
Whether the caste or class in question is one from whose 
hands a caste Hindu can take water;
184	 id
185	 id
186	 Ibid,Pg. 112 
187	 Hutton Censes Report (1931) 471
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
e.	
Whether the caste or class in question is debarred from using 
public conveniences such as, roads, ferries, wells, or schools;
f.	
Whether the caste or class in question is debarred from the 
use of Hindu temples; 
g.	
Whether in ordinary social intercourse, a well-educated 
member of a caste or class in question will be treated as an 
equal by high caste men of the same educational qualifications;
h.	
Whether the caste or class in question is merely depressed 
on account of its own ignorance, illiteracy or poverty and but 
for that would be subject to no social disability; and
i.	
Whether it is depressed on account of the occupation followed 
and whether but for that occupation it would be subject to no 
social disability. 
131.	 Though the test that was proposed to be used was that of 
untouchability, the criteria above and in particular, criteria (f), (g) 
and (h) indicate that other forms of social disability which cannot be 
strictly confined to untouchability were also considered. The report 
recognized that there may be a variance in the degree of restrictions 
based on the degree of untouchability. For example, a few castes 
may have been denied entry to a temple as compared to castes 
which were denied entry to the inner sanctuary of the temple.188 
132.	 The Note submitted by Assam casts light upon the heterogeneity 
amongst the castes which face untouchability. The Note states 
that
untouchability as it existed in Madras, where an untouchable’s 
touch necessitated immediate purification, did not exist in Assam. 
Mr Maullan, the Census Superintendent in Assam defined the 
depressed class (which he termed as “exterior castes”) as castes 
whose water is not acceptable and in addition are so deficient in 
education, wealth, influence, or for some reason connected with 
their traditional occupations which prevents them from acquiring 
any further social privileges. The Superintendent further noted that 
there are influential and wealthy castes even among the jal-achals 
(that is, those whose water was not acceptable). The note also 
distinguished the untouchability which certain castes faced from 
other untouchable castes:189 
188	 Ibid, 472
189	 Ibid, 495
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“The exterior castes themselves are, however, guilty of 
similar treatment to each other and an exterior caste 
which considers itself to be on a higher social level than 
another exterior caste adopts exactly the same attitude 
as the higher castes do towards the exterior castes.  
A case which recently happened in Sunamganj illustrates 
this point. The local ferryman there (a patni by caste) was 
prosecuted for refusing to row a Muchi and that it has 
always been the practice, if a Muchi wanted to cross the 
river, for the paddle to be given to him so that he could 
row himself across.”
133.	 The Note of the Superintendent of Assam on Mahars further 
elucidated the point that there was no “uniformity” in the untouchability 
faced by members of various castes. The Note explained that 
Mahars were included in the list of depressed class though they were 
jal-chal in the limited sense in as much as a man of the forward caste 
“can smoke huka filled with water by a Mahar”. They were included 
because they were untouchables with respect to everything but for 
smoking requirements and they were a socially and educationally 
backward community:190 
“I have made close and careful enquiries and there is a 
general consensus of opinion that the Mahars are not jal-
chal and are a depressed class. The story of Raja Subid 
Narayan made them jal-chal for smoking requirements only, 
seems to be true. If the Mahars are at all jal-chal,
they are 
jalchal only in the sense that a man of the higher caste can 
smoke a huka filled with water by a Mahara. There is not 
a single graduate among the Maharas in this subdivision 
and not even a single matriculate can be found. The 
deputy Inspector of Schools reports that the only educated 
Maharas he has met in the whole subdivision are three 
persons working as Vernacular teachers in Primary and 
Middle English Schools. So the Maharas are depressed 
both socially and educationally.”
190	 Ibid, 498
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
134.	 The list prepared by Madras noted that castes to whom the “technical 
stigma of untouchability” does not apply, had been excluded from 
the list. This approach when juxtaposed with the approach adopted 
by Assam, varies with respect to the stringency of the untouchability 
standard employed.191 It is evident that there is no one “form” of 
untouchability. Untouchability, like other forms of social disability 
differs in degree and severity.
135.	 Based on the tests for identifying untouchability laid down by Hutton, 
the Provincial Committee prepared the provincial estimates of 
depressed classes. In Madras, Bombay and the Central Province, 
there was a general agreement between the Provincial Committees 
and the Local Governments on the estimate of the depressed classes 
because the distinction between the depressed and other classes 
of the Hindu Communities was clearly defined. On the other hand, 
the States of Bihar, Orissa and Assam while stipulating the castes 
which faced untouchability observed that untouchability in the States 
did not exist in the same form as it existed in South India.
136.	 Mr SB Rambe, Mr CY Chintamani and Mr RR Bakhale submitted 
a note of dissent, inter alia, on the depressed classes in which 
they claim that the tests for untouchability were not applied with 
uniformity.192 They observed that untouchability only existed in 
Madras, Bombay and the Central
Province. They claimed that in 
other states, untouchability was not an adjunct of a person but the 
occupation that they pursued and thus, those castes should not have 
been included in the list of the depressed classes.193 It is here that 
the Note submitted by Dr B R Ambedkar on depressed classes is 
of particular importance for it encapsulates the heterogeneity within 
the castes which suffer untouchability. 
137.	 Dr B R Ambedkar highlighted that applying a uniform criterion to 
identify the depressed class would be inappropriate. Dr Ambedkar 
observed that the differences in the tests of untouchability do not 
indicate differences in the conditions of the untouchables because 
the notion underlying both the standards would be the same, 
191	 Ibid, 499
192	 Minute of dissent by Mr SB Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of the Franchise 
Committee, 231 
193	 id
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that it is below the dignity to interact or touch persons of certain 
castes. He observed that the difference in the rigidity with which 
untouchability is practiced does not eliminate the notion of such a 
practice.194 This indicates that the depressed classes were identified 
based on the notion of untouchability and not in the literal sense 
of the term. The effect of adopting the notional and not the literal 
test is that the social condition of all the castes included within the 
depressed classes is not uniform. Though the Government of India 
(Scheduled Castes) Order 1936 did not exactly correspond to the 
List published by Hutton or the Provincial Franchise Committees, 
the inclusions and exclusions to the list broadly matched.195 
138.	 The heterogeneity within the class is also evident from the Constitution 
(Scheduled Castes) Order 1950 where certain castes are notified 
as the Scheduled Castes in specific localities. For example, in the 
State of Madhya Pradesh, of the twenty-five castes, only nine are 
Scheduled Castes throughout the State. The criteria used to identify 
the Scheduled Castes itself indicates that the endeavor was not to 
include all castes that suffered from identical forms of untouchability. 
Thus, the Scheduled Castes are not a homogenous class. 
b.	
Empirical evidence of heterogeneity 
139.	 Field researchers have also accounted that the Scheduled Castes 
are not one homogenous class.
Studies indicate that certain castes 
of the Scheduled Castes are not only sociologically backward vis-
à-vis the forward castes but also amongst the Scheduled Castes 
themselves. AM Shah recounts that there was much less interaction 
between two Dalit castes in Gujarat than there was between a Dalit 
caste and a forward class. The author observes that the priests 
for the Dalits are placed high amongst the Dalit castes and the 
scavengers are placed the lowest, with the leather-workers and the 
rope makers occupying the intermediary positions:196 
“Briefly, the Dalits have reproduced among themselves 
a hierarchy on the model of caste hierarchy in general. 
194	 Dr Ambedkar, Note on the Depressed Classes, Report of the Franchise Committee, 211
195	 Galanter, supra, 130
196	 AM Shah, The ‘Dalit” category and its Differentiation; Also see AM Shah, Untouchability, the Untouchables 
and Social Change in Gujarat in Dimensions of Social Life, Essays in Honor of David G Mandelbaum 
(edited by Paul Hockings)
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
There is at the top a small caste of garodas (derived from 
the Sanskrit word ‘guru’), who are priests for other dalit 
castes, […] Similarly, just as there are castes of bards for 
the upper castes, there is a bardic caste of dalit mendicants 
called dhed bava or sadhu. The garudas, turi barots, and 
dhed sadhus are accorded certain sacredness. 
The bhangis (scavengers) are the bottom of the hierarchy 
and the most under-privileged. Between the garodas and 
bhangis there is a large caste, the higher stratum of which 
is traditionally vankar (weavers) and the lower stratum dhed 
(menial servants). […] The chamars (leatherworkers) and 
senwas (rope-makers) occupy positions intermediately 
between the vankar-cum-dheds and bhangis. The bhangis 
are the most oppressed.”
140.	 The Robert F Kennedy Centre for Justice and Human Rights in 
collaboration with Navsarjan (an organization that promotes the rights 
of Dalits) undertook an extensive study on caste discrimination in 
1589 villages in Gujarat. The census conducted by them produced 
results of horizontal discrimination, the practice by which certain 
Dalit castes practiced untouchability against other Dalit castes. The 
study identified that the practice of food, water and religion related 
untouchability is emulated within the Dalits as well. For example, 
Dalits of the lower sub-caste were prevented from sitting with the 
rest of the Dalit
community during meals. They were not given tea 
when they visited the house of a higher sub-caste. It was also found 
that only in twelve percent of the villages could a Dalit belonging 
to a lower sub-caste receive water in the house of a Dalit of a 
higher sub-caste. The study also found that in 92.4 percent of the 
villages studied, all the Dalits did not have access to all-Dalit burial 
grounds and that the lower sub-castes were denied entry into to 
Dalit Temples in 79 percent of the villages.197 
141.	 Similarly, in Tamil Nadu, when an Arunthathiyar man and a Paraiyar 
woman (both the castes find a place in the Scheduled Castes list) 
eloped, the woman’s family allegedly raped the women of the man’s 
197	 Robert F Kennedy, Center for Justice and Human Rights, Understanding Untouchability: A comprehensive 
Study of Practices and Conditions in 1589 Villages, 22-33
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family in retaliation.198 The inequality within the Scheduled Castes in 
Andhra Pradesh has also been studied. Uma Ramaswamy draws 
on the inequality within the Scheduled Castes by comparing the 
social positions of members of the Mala and Madiga Castes.199 The 
Madigas traditionally pursue the occupation of leather work which is 
assigned a lower status when compared to the weaving occupation 
of Malas. The author states that neither do members of both the 
castes live in the same hamlet nor do they draw water from the 
same well. The study found that the hierarchy between the castes 
translated to their relative progress in education, employment and 
political activity. In 1961, 10 percent of Malas were literate as against 
5.1 percent of Madigas. In 1971, the proportion of literates among 
Malas had gone up to 12.9 per cent in comparison to 6.2 percent 
among the Madigas. The author stated that hierarchy exists even 
within the Mala caste. Mala Jangam and Mala Desari are priestly 
castes and are spiritual advisors to Mala satellite castes. Within the 
Mala satellite castes, Mala Jangam is at the top, followed by Mala 
Pambala, Masti and Gurra Malas. The sub-castes also follow rules 
of untouchability amongst themselves:200
“There are certain rules that restrict the taking of food, 
water and access to the temples among the Dalits. The 
Malas, higher caste Dalit do not take food or water from 
the Madigas, the lower caste
Dalit in village India. Mala 
Jangam, Mala Dasari and Mithal Ayyalwar do not eat or 
drink from Malas, Madigas and Dakkal. Similarly other 
castes do not take cooked food or water from these castes. 
Malas and Madigas have separate wells and temples. 
Malas do not take food and water from Mastu, Gurram 
Malas and Madigas. But all these castes take food and 
water from priestly class of Malas. The singari, the gurus 
to Madigas, strictly refrain from eating food touched or 
cooked by Madigas or other satellite caste. Bindla though 
enjoys higher social status in Madigas satellite caste. The 
198	 Ravinchandran Bathran, The many omissions of a concept: Discrimination amongst Scheduled Castes, 
Economic & Political Weekly (Vol L1 No. 47, November 19, 2016) 1342-1346
199	 Uma Ramaswamy, Protection and Inequality among Backward Groups, Economic & Political Weekly 
(Vol. 21 No. 9, 9 March 1986) 
200	 Justice Usha Mishra Report on National Commission to Examine Issue of Sub-Categorisation [327]
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
higher castes do not take either cooked food or water from 
Bindlas. Being worshippers of Shakti (the power) they do 
not take food or water from the hands of their satellite 
castes, since they consider themselves as sacred. Sindhu, 
the entertaining caste of Madigas” do not take food or 
water from Dakkals but their food or water is acceptable 
for Madigas. Dakkals who occupied a lowest social status 
in social hierarchy accept food and water from all castes, 
except Vishwa Brahamaa. The food or water of Dakkals 
is not acceptable to any other caste. Dakkals have to 
take food or water standing outside Madiga houses. Thus 
the higher caste Dalits do not drink or dine in common. 
These commenalities indicate the foundation of Panchama 
hierarchy and heterogeneous caste cleavages within 
Scheduled Castes in Andhra Pradesh.” 
142.	 Empirical evidence indicates that there is inequality even within the 
Scheduled Castes. The Scheduled Castes are not a homogenous 
integrated class. 
vi.	
The power of the State to sub-classify under Articles 15 and 16 
143.	 Article 16(4) provides the State with the enabling power to make 
provisions for reservations in appointments or posts in favour of 
“any backward class of citizens”. The provision, unlike Article 15(4), 
does not distinguish amongst the Scheduled Castes, Scheduled 
Tribes, and other Socially and Educationally Backward Classes. In 
Indra Sawhney
(supra), this Court defined the backward class in 
terms of social backwardness. Social backwardness is attributable 
to several identities such as caste, gender and disability. Though, 
the backwardness caused due to these multiple identities are all 
collectively within the ambit of the backward class for the purposes 
of Article 16(4), the State is free to recognize the heterogeneity 
amongst the class and provide separate reservation to women and 
the Scheduled Castes to deal with the purpose. 
144.	 Article 15(4) recognizes the power of the State to make “any” special 
provisions for the advancement of “any” socially and educationally 
backward classes of citizens or for “the” Scheduled Castes and “the” 
Scheduled Tribes. Article 15(5) is similarly worded. It was submitted 
before this Court that the use of the preposition “any” before the
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socially and educationally backward class as opposed to the phrase 
“the” before Scheduled Castes and Scheduled Tribes indicates 
the Scheduled Castes and Scheduled Tribes are a homogenous 
integrated class. We do not agree with the submission. The provision 
provides the State with the power to make “any” special provisions 
for the Scheduled Castes and the Scheduled Tribes. Thereby, it 
recognizes the wide power of the State to employ a range of means 
to secure substantive equality. This would include sub-classification 
within the Scheduled Castes.
145.	 The first prong of the test for sub-classification is whether the 
Scheduled Castes form a homogenous integrated class for all 
purposes. We have held above that even if Article 341 creates a 
deeming fiction, the provision does not create an integrated class 
that cannot be further sub-classified. The provision only puts certain 
castes or groups or parts of them into a group called the Scheduled 
Castes. The castes or groups within the Scheduled Castes form an 
integrated class for the limited purpose of constitutional identification. 
They do not form an integrated class for any other purpose. We 
have also established through historical and empirical evidence that 
the Scheduled Castes notified by the President under Article 341 
are a heterogenous class where groups within the class suffer 
from varying degrees of social backwardness. Thus, the first test 
is
satisfied. 
146.	 The State in exercise of its power under Articles 15 and 16 is free 
to identify the different degrees of social backwardness and provide 
special provisions (such as reservation) to achieve the specific 
degree of harm identified. If the Scheduled Castes are not similarly 
situated for the purposes of the law (or the specific harm identified), 
there is nothing in Articles 15, 16 and 341 which prevents the State 
from applying the principle of sub-classification to the class. Thus, 
the Scheduled Castes can be further classified if: (a) there is a 
rational principle for differentiation; and (b) if the rational principle 
has a nexus with the purpose of sub-classification.
147.	 One of the issues before this Court in Chinnaiah (supra) was 
whether the State has the legislative competence to sub-classify. 
Justice Santosh Hegde observed that having once fulfilled the 
mandate of providing reservations under Articles 15(4) and 16(4), 
the enactments were beyond the legislative competence of the State
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because - first, the primary object of the law was grouping of sub-
castes and apportionment of reservations was merely consequential 
and second, the State could not under Entry 41 of List II and Entry 25 
of List III (of the Seventh Schedule) dealing with State services 
and education respectively, divide the Scheduled Castes List.201 
Justice Sinha noted that the legislative competence of the State 
legislatures under Article 246 is subject to the other provisions of 
the Constitution, namely Article 341 of the Constitution.202 
148.	 The opinions in Chinnaiah (supra), conflate the issue of legislative 
competence, which is referrable to Articles 245 and 246, with the 
power to ensure substantive equality under Articles 15 and 16. 
Article 245 read with the Seventh Schedule lays down the legislative 
competence of the State Legislatures and Parliament. Articles 15(4) 
and 16(5) recognize the power of the State to make special provisions 
for the advancement of the backward class, including the Scheduled 
Castes. These provisions permit the State to confer the benefit of 
affirmative action on classes where it is most necessary. Thus, the 
power of the State to sub-classify the Scheduled Castes for the 
purpose of affirmative action, including reservations, is traceable to 
Articles 15(4) and 16(5) in the case of educational institutions and 
appointments, respectively.
vii.	
Criteria for
sub-classification 
149.	 The object of the special provisions in Articles 15(4) and 16(4) is 
to provide substantive equality to the beneficiary class.203 Inter-
se backwardness within the class is a roadblock to achieving 
substantive equality. Sub-classification is one of the means to 
achieve substantive equality. But the crucial question is, what 
should be the rational principle to distinguish categories within the 
Scheduled Caste? Should it be based on the form of untouchability 
or any form of inter-se social backwardness? We will discuss the 
rational principle which must be used for sub-categorization in this 
segment of the judgment. 
201	 Chinnaiah (supra) [Justice Hegde, 31]
202	 Chinnaiah (supra) [Justice Sinha, 90]
203	 See NM Thomas (supra)
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150.	 It is important to understand the provision from the perspective of 
the beneficiary class for whose advancement it has been adopted, 
to elucidate the rational principle for differentiation. Though both 
Articles 15(4) and 16(4) share a similarity to the extent that they 
enable the State to provide affirmative action policies, there exist 
some dissimilarities in the language of the provisions. Firstly, 
Articles 15(4) and 16(4) deal with different spheres. Article 15(4) 
is a general provision which gives effect to the principle of 
substantive equality by recognizing that the non-discrimination 
provisions shall not prevent the State from making “any special 
provision” for the advancement of the beneficiary class. On the 
other hand, Article 16(4) deals specifically with matters of public 
employment. Secondly, Article 16(4) only deals with reservation while 
Article 15(4) recognizes other forms of affirmative action. Article 15(4) 
is broader and all-encompassing as compared to Article  16(4). 
Thirdly, the beneficiary class under Article 15(4) must be “socially 
and educationally backward” while the class under Article 16(4) 
is a backward class which is not adequately represented. The 
Scheduled Castes and the Scheduled Tribes are expressly carved 
out in Article 15(4), unlike Article 16(4), where they are encompassed 
within the “backward class”. 
151.	 One of the issues that must be adjudicated while
discussing the 
scope of the provisions is whether the beneficiary classes in 
Articles 15(4) and 16(4) are different. This issue must be decided 
with reference to: 
a.	
The use of the qualifiers “socially and educationally” backward 
in Article 15(4); and
b.	
The use of the qualifier “adequate representation” in Article 
16(4). 
a.	
The meaning of “Backward Class”
152.	 Article 15(4), unlike Article 16(4), provides that the beneficiary class 
for the purposes of the provision must be socially and educationally 
backward. In Balaji (supra), this Court held that the beneficiary class 
under Article 15(4) must be both socially and educationally backward. 
Justice Gajendragadkar observed that caste, occupation and 
poverty are important factors for determining the socially backward 
class.204 This was reiterated in Janki Prasad Parimoo v. State of 
204	 MR Balaji v. State of Mysore, AIR 1963 SC 649 [24,25]
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Jammu and Kashmir.205 Justice D G Palekar writing for this Court 
made a crucial observation on the relationship between social and 
educational backwardness. The learned Judge observed that though 
the phrases ‘socially’ and ‘educationally’ are used cumulatively for 
the purposes of identifying the backward class under Article 15(4), 
“if a class as a whole is educationally advanced it is generally also 
socially advanced because of the reformative effect of education 
on that class”.206 The relationship between social and educational 
backwardness where social backwardness contributes to educational 
backwardness was reiterated in Indra Sawhney (supra). Thus, 
though the criteria of socially and educationally backward class must 
be cumulatively read for the purposes of identifying the beneficiary 
class, they are not mutually exclusive concepts. They have a causal 
relationship, where the educational backwardness of a class is an 
impact of its social backwardness. 
153.	 The next issue is whether the beneficiary classes in Article 15(4) and 
Article 16(4) are the same even though, unlike Article 15(4), Article 
16(4) does not include the qualifiers of “social” and “educational”. 
In Janki Prasad Parimoo (supra), this Court read the requirement 
of social and educational backwardness into Article 16(4).207 This 
was reiterated in Vasant Kumar v. State of Karnataka208 by a 
Constitution Bench of
this Court. However, in Indra Sawhney 
(supra), Justice B P Jeevan Reddy speaking for four Judges 
(Chief Justice Kania, Justice Venkatachaliah, Justice AM Ahmadi 
and himself) observed that there is no basis for this assumption. 
The learned Judge observed that Article 16(4) applies to a much 
larger class. The socially and educationally backward class is one 
of the categories, to which Article 16(4) applies. The socially and 
educationally backward classes are included within the broader class 
to which Article 16(4) applies. Justice Jeevan Reddy also held that 
reading educational backwardness in Article 16(4), which deals with 
reservation in appointments at any level, would not appropriate:
205	 [1973] 3 SCR 236 : (1973) 1 SCC 420
206	 (1973) 1 SCC 420 [24]
207	 [1968] 2 SCR 786 
208	 [1985] Supp. 1 SCR 352 : (1985) Supp SCC 714; Justice Chinnappa Reddy observed that “backward 
classes of citizens referred to in Article 16(4), despite the short description, are the same as the socially 
and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, so 
fully described in Article 15(4).” Justice Sen and Justice Venkataramiah (as the learned Chief Justice then 
was) observed that Articles 15(4) and 16(4) are intended for the benefit of those who belong to casts, 
communities which are traditionally disfavored and which have suffered societal discrimination in the past.
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“787. […] “Backward class of citizens” in Article 16(4) 
takes in Scheduled Tribes, Scheduled Castes and all 
other backward classes of citizens including the socially 
and educationally backward classes. Thus, certain 
classes which may not qualify for Article 15(4) may qualify 
for Article 16(4). They may not qualify for Article 15(4) 
but they may qualify as backward class of citizens for 
the purposes of Article 16(4). […] Thus, SEBCs referred 
to in Article 340 is only [one] of the categories for whom 
Article 16(4) was enacted: Article 16(4) applies to a much 
larger class than the one contemplated by Article 340. It 
would, thus, be not correct to say that ‘backward class 
of citizens’ in Article 16(4) are the same as the socially 
and educationally backward classes in Article 15(4). 
Saying so would mean and imply reading a limitation 
into a beneficial provision like Article 16(4). Moreover, 
when speaking of reservation in appointments/posts 
in the State services- which may mean, at any level 
whatsoever-insisting upon educational backwardness 
may not be quite appropriate.”
154.	 The observation above must not be read in a vacuum. The purport 
of the observation by Justice Jeevan Reddy is clarified in the 
subsequent paragraph where the learned Judge observed that 
though educational backwardness is not to be excluded as a criterion, 
social backwardness must have caused educational backwardness:
“788. […] It
goes without saying that in the Indian context, 
social backwardness leads to educational backwardness 
and both of them together lead to poverty- which in 
turn breeds and perpetuates the social and educational 
backwardness. They feel upon each other constituting a 
vicious cycle. It is a well-known fact that till independence 
the administrative apparatus was manned almost 
exclusively by members of the ‘upper’ castes. The Shudras, 
the Scheduled Castes and the Scheduled Tribes and 
other similar backward social groups among Muslims and 
Christians had practically no entry into the administrative 
apparatus. It was this imbalance which was sought to be 
redressed by providing for reservations in favour of such
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backward classes.[…] We are, accordingly, of the opinion 
that the backwardness contemplated by Article 16(4) is 
mainly social backwardness. It would not be correct to 
say that the backwardness under Article 16(4) should be 
both social and educational.” 
155.	 In Indra Sawhney (supra), Justice Pandian defined the backward 
class of citizens as “a group of persons having common traits or 
attributes coupled with retarded social, material (economic) and 
intellectual (educational) development in the sense that not having 
so much of intellect and ability will fall within the ambit of ‘any 
backward class of citizens’ under Article 16(4)”.209 The learned Judge 
further elucidated that the “primary consideration” in identifying the 
backward class is social backwardness.210 Justice Sawant also 
observed that in identifying the beneficiary class under Article 16(4), 
social backwardness must be given importance. Justice Sawant 
held that the criterion for the identification of the beneficiary class 
is whether it is socially backward and whether the class which is 
educationally and economically backward, is so because of its 
social backwardness.211 
156.	 Justice Kuldip Singh adopted a different approach. The learned 
Judge held that the beneficiary classes in Articles 15(4) and 16(4) 
are different. Justice Kuldeep Singh observed that unlike the 
determination of the beneficiary class in Article
15(4) which must 
be socially and educationally backward, the class identified for the 
purposes of Article 16(4) need not be backward because: 
a.	
The Constituent Assembly Debates indicate that reservation 
under Article 16(4) is to provide access to communities that 
have not had a ‘look in’ at the administration of the State. 
The object of including the phrase “backward” in Article 
16(4) - which did not find a place in the initial draft - was only 
for the purpose of reducing the number of claimants for the 
reserved posts;212
209	 (1992) Supp. 3 SCC 217 [58]
210	 (1992) Supp. 3 SCC 217 [117]
211	 (1992) Supp. 3 SCC 217, [Justice Thommen, 273]; [Justice Sawant 441,552]
212	 (1992) Supp. 3 SCC 217 [363]
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b.	
Inadequate representation in the services of the State is the 
only test for the identification of the beneficiary class under 
Article 16(4). Inadequate representation can be identified 
based on occupation, economic criterion, family income, 
political sufferers, border areas, backward areas, communities 
kept out of State services or any other means.213 The 
‘backward class’ must be culled out from the classes which 
are inadequately represented;214 
c.	
The backward class cannot be classified into adequately 
represented and inadequately represented. A class that is 
adequately represented cannot be considered backward. 
Reading the qualifier of inadequate representation with respect 
to the backward class would render the former expression 
redundant; and215
d.	
The Constitution has expressly mentioned the Scheduled 
Castes and the Scheduled Tribes whenever the Constitution 
grants protection to the “weaker classes”.216
157.	 Contrary to the opinion of Justice Kuldeep Singh, which held that the 
determining character of the class in Article 16(4) is not backwardness 
but inadequacy of representation,217 the majority in Indra Sawhney 
(Justice Reddy writing for four Judges, Justice Pandian and Justice 
Sawant) held that the predominant factor which must be employed 
to identify the “backward class” must be social backwardness. The 
majority also held that the backward class in Article 16(4) subsumes 
the socially
and educationally backward class identified under 
Article 15(4).218 Thus, the objective of both Articles 15(4) and 16(4) is 
to ensure substantive equality by uplifting the socially backward class.
b.	
Inadequacy of representation in services of the State
158.	 The issue on the identification of beneficiaries which will impact 
the scope of reservation is whether the class is both backward 
213	 (1992) Supp. 3 SCC 217 [368]
214	 (1992) Supp. 3 SCC 217 [364]
215	 (1992) Supp. 3 SCC 217 [366]
216	 (1992) Supp. 3 SCC 217 [367]
217	 See opinion of CJ Ray in MN Thomas (supra)
218	 (1992) Supp. 3 SCC 217 [Justice Reddy,787]; [Justice Sahai, 583]
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
and inadequately represented. That is, whether they are mutually 
exclusive qualifiers. In Indra Sawhney (supra), Justice Sawant 
writing the concurring opinion observed that only classes which 
are inadequately represented must be provided reservation under 
Article 16(4). In the opinion of the learned Judge, a class that is 
backward will cease to be a beneficiary when the class becomes 
adequately represented. This observation aligns with the argument 
that reservation must not be provided once the goal of the provision, 
which is securing adequate representation is achieved.
159.	 To navigate this issue, it is necessary that we refer to the debates 
of the Sub-Committee of Minorities and Sub-Committee of 
Fundamental Rights to ascertain the reason for the inclusion of the 
phrase “inadequate representation” in Article 16(4). The Objectives 
Resolution which was introduced by Mr Jawaharlal Nehru on 
13 December 1946 resolved to provide adequate safeguards for 
minorities, backward and tribal areas, and the depressed and other 
backward classes. The equality provision in the first draft report 
submitted by the Sub-Committee on Fundamental Rights did not 
provide for reservation of seats for the backward community or 
the minorities. Though the report included provisions emphasizing 
anti-discrimination and equal opportunity, it did not recommend an 
enabling provision for affirmative action.219
The Sub-Committee 
on Minorities along with the Fundamental Rights Sub-Committee 
decided to examine the clauses recommended to determine if any 
of them required to be amended to protect minority rights. During 
the discussion, Mr KM Munshi stated that reservation may have 
to be made for the minorities in public employment.220 An Advisory 
219	 There shall be no discrimination against any person on any of the grounds aforesaid in regard to the use 
of wells, ranks, roads, schools and places of public resort maintained wholly or party out of public funds 
or dedicated to the use of the general public
(b) There shall be equality of opportunity for all citizens-
(i) in matters of public employment
(ii) in the sercise or carrying on of any occupation, trade, business or profession;
and no citizen shall on any of the grounds aforesaid be ineligible for public office or be prohibited from 
acquiring, holding or disposing of property or exercising or carrying on any occuptation, trade, business 
or profession within the Union
(2) Any enactment, regulation, judgment, order, custom or interpretation of law, in force immediately 
before the commencement of this Constitution by which any penalty, disadvantage, or disability is 
imposed upon or any discrimination is made against any citizen on any of the grounds aforesaid shall 
cease to have effect.
220	 B Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public 
Administration] 221
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Committee was formed to make recommendations on how best 
to reconcile the anti-discrimination provision with the provision for 
reservation. The Sub-Committee on Minorities recommended that a 
proviso may have to be added to meet the claims of representation 
of the marginalized communities.221 
160.	 After the discussion, Dr Ambedkar representing the Advisory 
Committee, suggested the inclusion of the following provision: 
“Nothing herein contained shall prevent the State from 
making provisions for reservation in public services in 
favour of classes as may be prescribed by the State.”
(emphasis supplied)
161.	 The Sub-Committee on Fundamental Rights debated two issues 
related to the above clause. First, whether the word “minority” or 
“class” must be used to signify the beneficiaries. The debates indicate 
that the phrase “class” was preferred over “minority” because the 
latter has a specific connotation, that is, religious or political minorities 
and this would exclude classes who constitute the majority but are 
yet not adequately represented. The reason is best explained by 
Dr Ambedkar in the Annexure to the Memorandum and Draft Articles 
on the Rights of States and Minorities, where he noted that “to make 
religious affiliation the determining factor for constitutional safeguards 
is to overlook the fact that religious affiliation may be accompanied 
by an intense degree of social separation and
discrimination”.222 
162.	 The second issue was whether the provision must be qualified with 
the phrase “adequately represented”. A few members expressed 
the fear that the use of the phrase “adequate representation” would 
become litigious.223 In spite of this apprehension, the phrase was 
retained to restrict the discretion of the State since the phrase 
“class” and not “minority” was adopted. Without the phase “adequate 
representation”, the clause would have also included reservations 
221	 Ibid, 258-259; KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason 
which I gave was that minorities in India have come to have a specific meaning, that is to say, religious 
or political minorities, Muslims, Sikhs etc. 
222	 Shiva Rao, supra, 109
223	 BR Ambedkar: “I am omitting the words “not adequately represented”. If we have the words “not 
adequately represented”, any reservation made by the State may be open to be challenged in a court. 
The court may say that reservation is made for a class although it is adequately represented.”
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
for adequately represented majorities for whom the benefit was not 
intended. However, with the inclusion of the phrase “adequately 
represented” qualifying the phrase “classes”, the benefit of the 
provision extends to classes which may be considered ‘majorities’ 
but are yet inadequately represented.224 
163.	 The debates in the Sub-Committee on Fundamental Rights and 
Sub-Committee on Minorities indicate that the beneficiaries of 
reservation are classes that are not “adequately represented” and 
this could include classes which are numerical majorities. Provisions 
for reservation are now available not only to the members of the 
Scheduled Castes and Scheduled Tribes but also of the socially 
and educationally backward classes which are numerical religious 
majorities. The phrase “backward” preceding “class” was absent in 
the draft circulated by the Sub-Committee. The phrase was included 
in Article 10 of the Draft Constitution. The inclusion of the phrase 
backward along with the qualifier of adequate representation clarifies 
the scope of the beneficiary class. 
164.	 Dr B R Ambedkar stated in the Constituent Assembly that 
reservations under Article 10 of the Draft Constitution [Article 16 
of the Constitution of India] are given to those who have not had 
a “proper look-in” to the administration because it has historically 
been controlled by a few communities.225 Referring to the above
observations of Dr Ambedkar, Justice Jeevan Reddy held in Indra 
Sawhney (supra) that the objective of Article 16(4) is to ensure that 
the backward classes get the opportunity to share state power.226 
165.	 It is clear from the debates extracted above that the purpose of 
the reservation clause is to remedy the inadequate representation 
in public services of certain “classes”. The cause for inadequate 
224	 KM Panikkar: “I was responsible for the change from the word ‘minorities’. The reason which I gave 
was that minorities in India have come to have a specific meaning, that is to say, religious or political 
minorities, Muslims, Sikhs etc. Sikh, Muslim, Depressed Classes, either a political or religious minority. 
The meaning has come to that. There may be among the majority, among the Hindus for example, many 
classes who have not adequate representation in the services.”
225	 CAD Vol 7. P. 701
226	 Reddy J [694] “[…] In short, the objective behind Article 16(4) is empowerment of the deprived backward 
communities- to give them a share in the administrative apparatus and in the governance of the 
community.” Also see Paragraph 161 where Justice Pandian states that “inadequate representation is 
not confined to any specific section of the people, but all those who fall under the group of backwardness 
whether they are Shudras of Hindu community or similarly situated other backward classes of people in 
other communities, namely, Muslims, Sikhs, Christians etc.
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represented could be two-fold. First, it may be a result of laws that 
expressly excluded certain classes from accessing the good, that 
is posts in public service. Second, it may be the result of a class 
being excluded not expressly by law but through social exclusion. 
A class may be socially excluded from accessing skills which are 
relevant for acquiring the good. These restrictions could either be 
in the form of social and informal or legal and formal restrictions. 
166.	 In Indra Sawhney (supra), Justice Jeevan Reddy observed that a 
class for the purpose of securing reservations under Article 16(4) 
should not only be a backward class but must also be inadequately 
represented in the services of the State.227 Thus, the beneficiary 
class is not to be determined solely on the basis of whether the 
class is a numerical minority or a majority in the services of the 
State. The focus instead is on identifying classes that have been 
excluded from public services not as a matter of chance or choice 
but because of the operation of the system of hierarchy. Thus, 
both the phrases, “backward” and “not adequately represented,” in 
Article 16(4) cannot be interpreted in a mutually exclusive manner 
in determining the beneficiary class under Article 16(4). The 
intent of Article 16(4) is to cover those classes which have been 
inadequately represented because of their backwardness. Thus, 
the requirement of inadequate
representation cannot be detached 
from the requirement of backwardness. 
c.	
The requirement of “effective” representation 
167.	 Conventionally, the State has assessed if the class is adequately 
represented by comparing the representation of the class in the 
services to the total population of the State.228 However, adequacy of 
representation when determined purely from a numerical perspective 
without accounting for factors such as representation vis-à-vis 
posts would dilute the purpose of the provision. The objective of 
Article 16(4) is to ensure effective representation of the class in the 
services of the State across posts and grades. Classes which are 
227	 Also see Nagaraj (supra) where this Court observed that the discretion of the State under Article 16(4) is 
subject to the existence of “backwardness” which must be based on objective factors and “inadequacy 
of representation” which must factually exist.
228	 See RK Sabharwal v. State of Punjab (1995) 2 SCC 745 [4]; BK Pavitra (II) v. State of Kerala (2019) 16 
SCC 129 [107]; Indra Sawhney (1992) Supp (3) SCC 217 [807 and 808]
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socially backward occupy the lowest of the social strata primarily 
because of the traditional occupation accorded to the class by social 
rules. For example, certain Dalit castes are regarded as scavenger 
castes. Even with the provision of reservation, it is very difficult 
for the backward classes to shed the traditional occupation that is 
ascribed to them by society and optimize the opportunities even at 
the lowest levels. The struggles that the class faces do not disappear 
with their representation in the lower grades. The endeavor is to 
ensure true and effective representation of the socially backward 
classes across posts. 
168.	 Opportunities for real and effective representation must be created in 
all posts and grades. The objective of the provision is not to emulate 
the existing social hierarchy where the low-grade posts are occupied 
by the socially backward while supervisory and managerial posts 
continue to be occupied by the advanced classes. If the objective of 
Article 16(4) is to be achieved in the truest sense, the inadequacy 
of representation must not be determined only on the basis of the 
total number of members of the backward class in the services of 
the State but by assessing the representation of the class across 
various posts. 
169.	 The meaning of the phrase “adequate representation” fell for 
the consideration of this Court in Rangachari (supra). Writing 
for the
majority, Justice Gajendragadkar observed that adequate 
representation means not only numerical representation but 
qualitative representation as well:
“25. […] This condition precedent may refer either to the 
numerical inadequacy of representation in the services 
or even to the qualitative inadequacy of representation. 
The advancement of the socially and educationally 
backward classes requires not only that they should 
have adequate representation in the lowest rung 
of services but that they should aspire to secure 
adequate representation in selection posts in the 
services as well. In the context the expression “adequately 
represented” imports considerations of “size” as well as 
“values”, numbers as well as the nature of appointments 
held and so it involves not merely the numerical test but 
also the qualitative one. It is thus by the operation of the
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numerical and a qualitative test that the adequacy or 
otherwise of the representation of backward classes in 
any service can be judged.”
(emphasis supplied) 
170.	 On the other hand, Justice Wanchoo and Justice Rajgopala 
Ayyangar observed that the phrase ‘adequate representation’ 
only conveys the meaning of inadequacy of representation in the 
quantitative sense and does not convey any idea of equality.229 In 
Triloki Nath v. State of Jammu and Kashmir (I),230 a reservation 
policy providing 50 percent of the seats to Muslims from Jammu 
and Kashmir, 60 percent of the remaining fifty percent seats to 
Hindus from Jammu and the remaining 40 percent of the 50 
percent to Kashmiri Pandits was challenged. The State contended 
that the sole test of backwardness for the beneficiary class under 
Article 16(4) is inadequacy of representation in the services of the 
State. The Constitution Bench rejected the argument, observing that 
if it is accepted, the benefit would be conferred only on the ‘rich and 
cultured’ who are socially and educationally advanced.
171.	 Justice Jeevan Reddy also adopted a value-ridden interpretation of 
the phrase “adequately represented” in Indra Sawhney (supra). The 
learned Judge held that the principal test to determine the adequacy 
of representation is “effective representation or effective voice in 
the administration” and not mere numerical presence. Effective 
representation can only be
achieved, in this view, when there is 
adequate representation at all levels or posts in the administration. 
Justice Sawant also adopted a similar approach.231
172.	 We are in complete agreement with the opinions of Justice Jeevan 
Reddy in Indra Sawhney (supra) and Justice Gajendragadkar in 
Rangachari (supra) on this aspect which is being discussed in 
229	 Justice Wanchoo’s opinion “32. Therefore, when Article 16(4) says that reservation may be made in 
order that any backward class of citizens may be adequately represented in the services it means that 
reservation may be made in order to make the number of any backward class sufficient in the services 
under the State. These words do not in my opinion convey any idea of equality […]; Justice Ayyangar 
[Paragraph 43]: “[…] I have drawn attention to this because it pointedly demonstrates that the correct 
view is that when “inadequacy of representation” is referred to in Article 16(4) as justifying a reservation, 
the only rational and reasonable construction of the words are that it refers to a quantitative deficiency 
in the representation of the backward classes in the service taken as a whole and not to an inadequate 
representation at each grade of service or in respect of each post in the service.”
230	 [1967] 2 SCR 265
231	 (1992) Supp. 3 SCC 217 [517]
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the present segment. Adequate representation means meaningful 
and effective representation. The sphere of public services is a 
constitutionally recognized realm for reservation because being a part 
of the administrative mechanism of the State is itself an indicator of 
social power. It is for the same reason that the Constitution, when 
it was adopted, guaranteed reservation in the legislature. However, 
there exists a hierarchy in social power within the sphere of public 
service. Positions that are higher up in the pyramid are positions 
that command greater authority. For example, let us assume a 
situation where the Class III and Class IV posts in the State are 
filled by members of a certain class while the higher positions of 
authority and power are filled by members of a certain class. This 
demographic of representation, if the service is taken as a whole 
unit, does not paint a realistic picture of the inequality that persists 
within the sphere. If numerical representation is used as an indicator, 
provision for representation will have to be made in favour of classes 
which are unrepresented in Class III and Class IV which does not 
align with the purpose of the provision. In fact, that would be nothing 
but another indicator of the existence of unequal social structures 
where members of the backward classes are subject to the authority 
and power of the more advanced. Thus, a
numeric-representation 
focused interpretation of the phrase ‘inadequate representation’ 
does not fulfill the purpose of the provision. 
173.	 In view of the discussion above, the following principles are 
summarized with respect to the objective and yardstick for identifying 
the beneficiary class under Articles 15(4) and 16(4): 
a.	
The beneficiary class in Article 15(4) must be a socially and 
educationally backward class. “Socially and educationally 
backward” are not mutually exclusive concepts. The phrase 
constitutes a constitutional recognition of the sociological 
reality that educational backwardness is caused by the social 
backwardness of the class;
b.	
The beneficiary class in Article 16(4), similar to the class 
under Article 15(4), must predominantly be socially backward. 
The purpose of both the provisions is to ensure substantive 
equality of opportunity to the socially backward communities. 
The beneficiary class in Article 16(4) subsumes the socially 
and educationally backward classes under Article 15(4);
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c.	
The qualifier of inadequate representation in Article 16(4) is 
not mutually exclusive of the requirement of backwardness. 
The inadequate representation of the class in the services 
of the State must be because of social backwardness; and
d.	
The adequacy of representation must be determined based 
on the standard of effective representation and not numerical 
representation. 
d.	
Yardstick for sub-classification 
174.	 This takes us to the next question. What must be the rational basis for 
sub-classification within the beneficiary classes? Since the purpose 
of Articles 15(4) and 16(4) is to ensure equality of opportunity of 
the socially backward classes, the criterion for sub-classification 
within a class (be it the Other Backward Classes or the Scheduled 
Castes or Tribes) must be an indicator of social backwardness. 
The yardstick for classification must differentiate the class based 
on inter-se social backwardness. The inter-se backwardness could 
be identified based on the same or different identity. The State has 
identified the Other Backward Classes, the Scheduled Castes and 
the Scheduled Tribes.232 Here, the State sub-classifies based on 
the same identity, that is, social backwardness because of caste 
identity. Horizontal reservation is provided to classes which face 
backwardness due to identities other than caste such as gender233 
and disability.234 Here, the State sub-classified based on a
different 
identity. 
175.	 Though Article 16(4) only refers to the “backward class” collectively, 
the Scheduled Castes are differentiated because they suffer from 
social backwardness in the form of untouchability which leads to 
educational and economic backwardness. The Scheduled tribes 
are classified as a separate class because they suffer from social 
backwardness because of their spatial and cultural isolation from 
the rest of the population.235 Since the State can use any yardstick 
to determine inter-se backwardness, it is not necessary that the 
criteria for sub-classification and the criteria used to distinguish 
232	 See the Central Educational Institutions (Reservation in Admission) Act 2006
233	 Seats have been reserved for women through executive notifications issued by various states. 
234	 See The Rights of Persons with Disabilities Act 2016, Sections 32, 34
235	 Galanter,supra, 147
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the class from the other classes must be the same. That is, if the 
criteria for recognizing the Scheduled Castes as a backward class 
is untouchability, it is not necessary that the group can be sub-
classified only if there is inter-se backwardness due to the same 
identity (that is, untouchability).
176.	 The Scheduled Castes are a collection of castes, races or tribes 
or parts of groups, races or tribes.236 Caste is both a unit in the 
sense that it consists of a homogenous group of people and is 
also an indicator of backwardness because it is an occupational 
grouping.237 The nexus between caste and occupation continues to 
persist, more predominantly in the rural areas. This position has been 
expounded by numerous cases right from Balaji (supra) to Indra 
Sawhney (supra). A caste whose traditional occupation is that of 
scavenging and another caste whose traditional occupation is that 
of weaving may both face the stigma of untouchability. However, 
the caste whose traditional occupation is that of scavenging will 
be more socially backward when compared to the weaver caste 
because of the caste-occupation-poverty nexus. 
177.	 How does the State identify inter-se social backwardness within the 
Scheduled Castes? As discussed above, the inter-se backwardness 
can, inter alia, be identified based on inadequacy of effective 
representation. However, it must be proved that inadequacy 
of
effective representation of a caste is because of its social 
backwardness. I have had the benefit of reading the erudite opinion 
of my learned Brother, Justice Gavai. My learned Brother and I 
agree that the State must prove that the group/caste carved out 
from the larger group of Scheduled Castes is more disadvantaged 
and inadequately represented.
viii.	
The limits of sub-classification 
178.	 Having held that sub-classification of the Scheduled Castes for the 
purposes of reservation is valid and having laid down the yardstick 
which must be used for further categorization, the next issue that 
falls for our consideration is its scope. In this section, we will answer 
the following issues:
236	 Constitution of India 1950; Article 366(24) 
237	 (1992) Supp. 3 SCC 217 [ Justice Jeevan Reddy, 779]
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a.	
Whether the State should earmark seats for the each of the 
sub-categorized classes or follow a preference model; and
b.	
Whether the State can allocate seats or preference for each 
of the castes in the Scheduled Castes List. 
This section is not intended to prescribe an inflexible criterion for 
the State. Our analysis will lay down broad constitutional parameters 
without trenching on matters of policy. 
a.	
Model of special provisions 
179.	 A crucial issue which arises for consideration is with respect to the 
model of reservations for the sub-classified classes. There are two 
models that the State may employ while reserving seats for the 
sub-classified castes. It needs to be analyzed if both the methods 
are constitutional. 
180.	 In the first model, the class(es) that are more socially backward 
are given a preference to all the seats that are reserved for the 
Scheduled Castes. There are two variations of this model. In the first 
variation, certain castes are given a preference over all the seats 
reserved for the category of Scheduled Castes. In other words, the 
sub-categorized class will get the first bite at the apple. In the second 
variation, the sub-categorized class will have a preference over a 
certain percentage of seats. Any unfilled seats will be available to 
the other categories. 
181.	 In the second model, seats shall be exclusively available to certain 
castes. The exclusive model differs
from the preference model to 
the limited extent that in the former, the seats that are not filled will 
be carried over to be filled by the same castes in the subsequent 
year while in the latter, the seats that are not filled will be available 
to the other castes within the same class. There are two variations 
to this model as well. In the first variation, a certain percentage of 
seats will be reserved for the sub-categorized class and the State 
shall carry forward the unfilled seats, if any, to be filled by the same 
class in the subsequent year. In the second variation, all the seats 
are exclusively available to a certain caste from the category and 
the State shall carry forward the unfilled seats. 
182.	 Whether the preference or the exclusive model is unconstitutional 
would depend on whether the variation in-effect excludes any caste
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
notified as a Scheduled Caste with respect to that State by the 
President under Article 341(1). With respect to the preference model, 
the first variation by which preference is given to certain castes to all 
the seats would be an unconstitutional approach because there is 
a possibility that other categories within the class of the Scheduled 
Castes are excluded. For example, if the State grants preference 
to three of the thirty castes classified as the Scheduled Castes 
over all the seats reserved for the Scheduled Castes, it is possible 
that the three castes exercise their preference and fill up all the 
seats. This would lead to a situation where the other twenty-seven 
castes classified as the Scheduled Castes would be excluded 
from the benefit of reservation. This model will be arbitrary and 
unreasonable also because the Other Backward Classes which 
are socially advanced compared to the castes classified as the 
Scheduled Castes would receive the benefit of reservation but the 
castes or groups within the Scheduled Castes would not. The castes 
classified as the Scheduled Castes must be given the opportunity 
to secure the benefit. If not, the provision would become otiose for 
their purposes. 
183.	 However, the second variation of the first model is differently 
placed vis-à-vis the scope of Article 341(2). In the second variation, 
preference to certain castes is given only over a
certain percentage 
of the seats. Thus, castes for whom preference is not given but 
which are included in the List of Scheduled Castes will be able 
to compete for a certain percentage of seats. In addition to those 
seats, they may get the opportunity to compete for the percentage 
of seats reserved for the sub-classified caste, if they are left unfilled. 
Thus, this model does not have the effect of excluding any of the 
castes in the Scheduled Castes List.
184.	 The difference between the first and the second model is the method 
in which unfilled vacancies of the more-backward sub-category are 
to be filled. In the former, the more backward sub-category only has 
a preference to a certain percentage of seats while in the latter, 
a percentage of the seats is exclusively available to them and the 
unfilled seats, if any, will not be available to be filled by the more 
advanced category of the class. The State may carry forward the 
unfilled vacancies to the subsequent year which will be available 
to the same category for which the seats were reserved.
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185.	 Article 16(4-B) provides that the State can consider carrying forward 
the unfilled vacancies of the year, which were reserved to be filled 
by classes under Article 16(4) and 16(4-A), to the subsequent year 
or years. The provision further provides that the unfilled vacancies 
shall not be considered together with the vacancies of the subsequent 
year for determining the ceiling of fifty percent reservation on total 
vacancies for that year. 
186.	 Article 16(4-B) does not make any distinction between a class and 
sub-classified classes. The provision stipulates that the State can 
carry forward vacancies of unfilled seats which were reserved to be 
filled under Articles 16(4) and 16(4-A) of the Constitution. As held in 
the preceding section, the power of the State to sub-classify within 
the Scheduled Castes is traceable to Article 16(4). Further, the 
seats that remain unfilled will not in any manner reduce the seats 
which are available to the other sub-categories of the Scheduled 
Castes. The Constitutional validity of Article 16(4-B) was upheld in 
Nagaraj (supra). Thus, there is no reason to prevent the State from 
exercising its power under Article 16(4-B) of carrying forward the 
vacancies which are reserved for a specific sub-category. Such an 
exercise will be legal and valid. 
187.	 Like the first model, the constitutionality of the exclusive model 
depends on the percentage of reservation for the
sub-categorized 
castes. The model of sub-classification will be unconstitutional if it 
excludes some Scheduled Castes from the benefit. This, similar to the 
first variant of the preference model, would violate of Article 341(2), 
and would thus be unconstitutional. However, the second version 
of the exclusive model in which only a certain percentage of 
seats is exclusively allotted to the sub-classified castes would be 
constitutional. For example, if ten percent of the seats reserved for 
the Scheduled Castes are reserved for the more backward among 
Scheduled Castes, the other castes will have the chance to compete 
for the other ninety percent of the seats, thus, not excluding any of 
the castes. The sole test is whether the operation of the policy has 
the effect of eliminating the possibility of castes or groups competing 
for the seats reserved for the Scheduled Castes. 
188.	 Article 341(2), as we have noted above, unambiguously prevents 
inclusion in and exclusion from the Scheduled Castes List by anyone 
except Parliament. Inclusion could be by way of extending the
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benefits meant for Scheduled Castes in the State, to a community 
that is not specifically mentioned in the State Scheduled Castes 
List (as was the case in Milind (supra)), by reading as a part of an 
enumerated entry or by reading it as a synonym of an enumerated 
entry. Such an exercise is not open to the States or for that matter 
to the Courts. Only Parliament is entrusted with the power to make 
inclusions to or exclusions from the Lists of Scheduled Castes and 
Tribes. The thrust of the prohibition, as Dr Ambedkar also indicated, 
is a proscription on the elimination of an entry or addition of an entry 
to the List. Such elimination or addition, it was apprehended could 
arise out of political calculations in the hope of short-term electoral 
gains. Therefore, only Parliament is invested with the exclusive 
power to make such variations to the List. Any legislative effort 
by the State that does not either include unspecified communities 
or exclude specified communities from the Scheduled Castes List 
applicable to that State does not fall foul of Article 341(2) of the 
Constitution. 
189.	 The state has the power to follow either of the two permissible models 
discussed above while reserving seats through sub-classification. 
The decision of the State to choose from either of the two models 
will depend on multiple considerations such as the degree of 
backwardness of certain castes
vis-à-vis the other castes and the 
total number of qualifying candidates belonging to the Scheduled 
Castes (both the more backward castes of the Scheduled Castes 
and the others).
190.	 The course of action adopted by the State is subject to judicial 
review, when faced with a constitutional challenge. Where the 
action is challenged, the State will have to justify the basis of its 
action. The basis of the sub-classification and the model which 
has been followed will have to be justified on the basis of empirical 
data gathered by the State. In other words, while the State may 
embark on an exercise of sub-classification, it must do so on the 
basis of quantifiable and demonstrable data bearing on levels of 
backwardness and representation in the services of the State. It 
cannot in other words merely act on its whims or as a matter of 
political expediency. The decision of the State is amenable to judicial 
review. When its action is challenged under Article 226 or before 
this Court under Article 32, the State must provide justification and
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the rationale for its determination. No State action can be manifestly 
arbitrary. It must be based on intelligible differentia which underlie 
the sub-classification. The basis of the sub-classification must bear 
a reasonable nexus to the object sought to be achieved. 
b.	
The caste-class conundrum
191.	 One of the issues that arises is whether the State may provide special 
provisions for each caste within the class. In Indra Sawhney (supra), 
the State classified the Other backward Castes into two categories – 
the backward class and the more backward class. Thus, the class 
was only sub-divided into two categories. Is it permissible to classify 
the Scheduled Castes by providing preference or reservation in a 
percentage of seats to every caste? 
192.	 Both Articles 15(4) and 16(4) do not enable reservation based on 
castes but only on classes. The absence of the use of “caste” in 
Articles 15(4) and 16(4) when coupled with its use in Articles 15(2) 
and 16(2) led the courts to hold that caste cannot be the sole basis 
of reservation.238 However, as Marc Galanter notes, the court had 
erroneously fused the two distinct usages of caste, as a unit or 
class, and as a criterion of backwardness.239 
193.	 In Balaji (supra), the criterion for the determination of social 
and educational backwardness was in question. This Court held 
that caste is a relevant consideration for determining social 
backwardness. However, the
Court observed that caste cannot 
be the sole basis for determining the beneficiary class because it 
would perpetuate the vice of castes. Disagreeing with the Nagan 
Gowda report, Justice Gajendragadkar writing for the Bench, held 
that economic backwardness and not caste is the ultimate cause 
of social backwardness. This interpretation of the permissibility of 
caste as a criterion to determine the backward class was approved 
in Chitralekha v. State of Mysore.240 In P Rajendran v. State 
of Madras,241 this Court deviated from the approach adopted in 
238	 Venkataramana v. State of Madras, AIR 1951 SC 226; Balaji v. State of Mysore, AIR 1963 SC 649
239	 Galanter, supra, Pg. 189 
240	 AIR 1964 SC 1823
241	 [1968] 2 SCR 786
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Chitralekha (supra) and MR Balaji (supra) observing that caste 
is a class because it is a homogenous “unit”.242 The approach in 
P Rajendran (supra) was later approved by a nine-Judge Bench in 
Indra Sawhney (supra), where this Court observed that to determine 
a socially backward class, a caste can be identified as a unit since 
it is homogenous and then the criteria for backwardness can be 
applied to it.243 
194.	 The Constitution does not bar the allocation of a percentage of seats 
to a caste since every caste is a class. However, the State must 
have sufficient material to prove inter-se backwardness between 
each of the castes. The State must with the submission of cogent 
material prove that there is a rationale principle which distinguishes 
the groups included and those excluded from the class. However, 
the rational principle will have nexus with the object only when the 
principle can identify the inter-se social backwardness of the class. 
For example, if the State allocates a separate percentage of seats 
for the dhobi caste and the barber caste, it must prove that these 
two castes suffer from differing levels of social backwardness. It is 
not merely sufficient for the State to base the classification on the 
difference in the traditional occupation of the two castes. Rather, the 
State must on the basis of quantifiable data prove that the castes 
suffer from different levels of
social backwardness. The State must 
also back this with the submission of data on effective representation 
of the caste in the services of the State. 
195.	 Though sub-categorization based on each caste is permissible, we 
are of the opinion that there can never be a situation where seats 
are allocated for every caste separately. Though each caste is a 
separate unit, the social backwardness suffered by each of them 
is not substantially distinguishable to warrant the State to reserve 
seats for each caste. If the social backwardness of two or more 
classes is comparable, they must be grouped together for the 
purposes of reservation.
242	 “It must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and 
educationally backward, reservation can be made in favour of such a caste on the ground that it is a 
socially and educationally backward classes within the meaning of Article 15(4).”
243	 (1992) Supp. 3 SCC 217 [859]
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ix.	
Scope for judicial review 
196.	 The scope of judicial review of reservation policies was laid down in 
Indra Sawhney (supra). Justice Jeevan Reddy observed that a class 
for meriting reservations must be both backward and inadequately 
represented in the “services under the State”. In Nagaraj (supra), 
this Court held that backwardness must be based on objective 
standards whereas inadequacy of representation must factually exist. 
The Court held that the State must submit quantifiable data to prove 
backwardness and inadequacy of representation. This standard 
applies for classifying groups for the purpose of reservations and 
would, equally apply for sub-classification within a group because 
it is premised on the same principle of difference and inequality. 
197.	 Two prominent considerations arise while discussing the scope of 
judicial review of sub-classification of the Scheduled Castes and 
the Scheduled Tribes. First, whether the State must prove inter-se 
backwardness given the position of law laid down in Indra Sawhney 
(supra) that the backwardness of the Scheduled Castes and the 
Scheduled Tribes is not required to be proved. Second, whether 
the inadequacy of representation of the more backward of the 
Scheduled Castes must be proved. 
a.	
Inter-se backwardness 
198.	 In Indra Sawhney (supra), this Court held that the requirement 
of social and educational backwardness cannot be applied to the 
Scheduled
Castes and the Scheduled Tribes because they admittedly 
fall within the backward class of citizens.244 One of the issues before 
the Constitution Bench of this Court in Jarnail Singh v. Lachhmi 
Narain Gupta,245 was whether Nagaraj (supra) in requiring the State 
to collect quantifiable data showing backwardness is contrary to 
the decision in Indra Sawhney (supra), where this Court held that 
backwardness of the Scheduled Castes and the Scheduled Tribes 
need not be proved. In Jarnail Singh (supra), this Court held that 
observations in Nagaraj (supra) that the State is required to collect 
quantifiable data to prove the backwardness of the Scheduled Castes 
and the Scheduled Tribes is bad in law because it is contrary to 
Indra Sawhney (supra). 
244	 (1992) Supp. 3 SCC 217 [Justice Reddy 781; 796-797]
245	 [2018] 10 SCR 663 : (2018) 10 SCC 396
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199.	 The decision in Indra Sawhney (supra) exempts the State from 
having to prove that the Scheduled Castes and the Scheduled Tribes 
are backward for the purposes of securing benefits under Articles 15 
and 16. The observations do not exempt the State from having to 
justify the decision of sub-classifying within the Scheduled Castes 
and Scheduled Tribes for the purposes of reservation. The basis 
of sub-classification is that few of the castes or groups within the 
class are more backward. Thus, though the State is not required 
to collect quantifiable data to prove backwardness of the entire 
class of the Scheduled Castes/Tribes, it is required to collect data 
to prove inter-se backwardness within the class, where it seeks to 
make a sub-classification within the class. 
b.	
Adequacy of representation 
200.	 Justice Jeevan Reddy noted in Indra Sawhney (supra) that the 
issue of whether a class is inadequately represented is a matter 
within the subjective satisfaction of the State which is evident from 
the use of the phrase “in the opinion of the State”, and that the 
subjective satisfaction of the executive action must be judicially 
reviewed based on the standard laid down in Barium Chemicals 
v. Company Law Board.246 In Barium Chemicals (supra), a 
Constitution Bench of this Court while determining the validity of 
administrative actions held that though the formation of opinion by 
the
State may be based on its subjective satisfaction, the State 
could not act based on circumstances it ‘thinks’ existed. There 
must be apparent circumstances that merit a certain inference 
by the State, and such circumstances, must be shown to exist at 
least prima facie.247 In the preceding section, we have held that 
inadequacy of effective representation is a criterion for determining 
inter-se backwardness. Hence, quantifiable data for that purpose 
must be submitted. 
201.	 In Nagaraj (supra), this Court held that the State must submit 
quantifiable data to satisfy the court that reservations are necessary 
“on account of inadequacy of representation of the Scheduled Castes 
and Scheduled Tribes in a particular class or classes of posts”.248 
246	 AIR 1967 SC 295; (1992) Supp. 3 SCC 217 [Justice Reddy, 798]
247	 AIR 1967 SC 295 [28]
248	 Nagaraj v. Union of India (2006) 8 SCC 212 [117]
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However, in the subsequent paragraphs, this Court held that the 
cadre strength must be taken as a unit to ascertain whether a given 
class or group is adequately represented. These observations were 
made in the backdrop of RK Sabharwal (supra) where this Court 
held that the entire cadre strength should be taken into account 
to determine if the quota limit has been breached. The relevant 
observations are delineated as under: 
“82. Before dealing with the scope of the constitutional 
amendments we need to recap the judgments in Indra 
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) 
Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal [(1995) 
2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]. In 
the former case the majority held that 50% rule should be 
applied to each year otherwise it may happen that the open 
competition channel may get choked if the entire cadre 
strength is taken as a unit. However, in R.K. Sabharwal 
[(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 
ATC 481] this Court stated that the entire cadre strength 
should be taken into account to determine whether the 
reservation up to the quota limit has been reached. It 
was clarified that the judgment in Indra Sawhney [1992 
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 
ATC 385] was confined to initial appointments and not to 
promotions. The operation of the roster for filling the cadre 
strength, by itself, ensures that the reservation
remains 
within the ceiling limit of 50%.
83. In our view, the appropriate Government has to apply 
the cadre strength as a unit in the operation of the roster 
in order to ascertain whether a given class/group 
is adequately represented in the service. The cadre 
strength as a unit also ensures that upper ceiling limit of 
50% is not violated. Further, roster has to be post-specific 
and not vacancy based.”
(emphasis supplied)
202.	 At this juncture, it is important that we clarify the observations in 
Nagaraj (supra) extracted above. In Nagaraj (supra), this Court 
referred to the judgment in RK Sabharwal while observing that
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the cadre must be taken as a unit to determine the inadequacy 
of representation. However, the context in which RK Sabharwal 
(supra) held cadre must be considered as a unit was different. In 
that case, two issues were considered. First, whether appointments 
of the backward classes in the general category must be counted 
while working out the percentage of reservation for the backward 
classes. Second, whether the reservation is complete when the 
posts earmarked for the Scheduled Castes or Scheduled Tribes are 
filled. It is while answering the second of the issues that this Court 
held that reservations must operate in accordance with the roster 
maintained in the Department which will be a running account every 
year to ensure that there is no excessive reservation. This Court 
explained the working of the calculation of cadre-based vacancy as 
follows: posts falling in specific serial numbers would be reserved 
seats allotted to each class and when a reserved seat falls vacant, 
it must be filled by the person of the same category:
“5. […] concept of “running account” in the impugned 
instructions has to be so interpreted that it does not 
result in excessive reservation. “16% of the posts …” 
are reserved for members of the Scheduled Castes and 
Backward Classes. In a lot of 100 posts those falling at 
Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 
80, 87 and 91 have been reserved
and earmarked in the 
roster for the Scheduled Castes. Roster points 26 and 76 
are reserved for the members of Backward Classes. It is 
thus obvious that when recruitment to a cadre starts then 14 
posts earmarked in the roster are to be filled from amongst 
the members of the Scheduled Castes. To illustrate, first 
post in a cadre must go to the Scheduled Caste and 
thereafter the said class is entitled to 7th, 15th, 22nd and 
onwards up to 91st post. When the total number of posts 
in a cadre are filled by the operation of the roster then the 
result envisaged by the impugned instructions is achieved. 
In other words, in a cadre of 100 posts when the posts 
earmarked in the roster for the Scheduled Castes and the 
Backward Classes are filled the percentage of reservation 
provided for the reserved categories is achieved. We see 
no justification to operate the roster thereafter. The “running 
account” is to operate only till the quota provided under
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the impugned instructions is reached and not thereafter. 
[…] As and when there is a vacancy whether permanent 
or temporary in a particular post the same has to be filled 
from amongst the category to which the post belonged 
in the roster. For example the Scheduled Caste persons 
holding the posts at roster points 1, 7, 15 retire then these 
slots are to be filled from amongst the persons belonging 
to the Scheduled Castes. Similarly, if the persons holding 
the post at points 8 to 14 or 23 to 29 retire then these 
slots are to be filled from among the general category. By 
following this procedure there shall neither be shortfall nor 
excess in the percentage of reservation.”
203.	 The inference in Nagaraj (supra) that cadre must be taken as a 
unit to determine inadequacy of reservation based on the above 
observations in RK Sabharwal (supra), in our respectful opinion, is 
misplaced. The cadre as a unit was considered only for the purpose 
of preparation of roster to draw a balance between the reserved and 
open seats. This Court did not hold that cadre must be used as a 
unit for the purpose of determining the adequacy of representation. 
In fact, RK Sabharwal (supra) says to the contrary. RK Sabharwal 
(supra) observed that the State Government may take the total 
population of a particular Backward Class and its representation in 
the State Services while determining adequacy of representation: 
“4. […] It is,
therefore, incumbent on the State Government 
to reach a conclusion that the Backward Class/Classes 
for which the reservation is made is not adequately 
represented in the State Services. While doing so the 
State Government may take the total population of a 
particular Backward Class and its representation in the 
State Services.”
As observed above, the inadequacy of representation in the services 
of the State is an indicator to determine the backwardness of the 
class in the services of the State. When the cadre-strength is used, 
the inadequacy of representation of the class is not determined. 
Rather, it determines the inadequacy of representation in a cadre, 
thereby, merging the distinction between quantitative and qualitative 
representation. Further, the observations in Nagaraj (supra) that 
adequate reservation of the class or group must be measured
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
against the cadre is contrary to the plain language of Articles 16(4) 
and 16(4-A). Both the provisions use the phrase “not adequately 
represented in the services under the State”.
204.	 Thus, in view of the above discussion, the State for a valid exercise 
of power to sub-classify under Article 16(4) is required to collect 
quantifiable data with respect to the inadequacy of representation 
of the sub-categories in the services of the State. As held in the 
preceding section, the inadequacy of representation is an indicator 
of backwardness and thus, to use the cadre as a unit to determine 
representation alters the purpose of the indicator itself. The State 
while deciding if the class is adequately represented must calculate 
adequacy based on effective and not quantitative representation.
E.	
Conclusion 
205.	 In view of the discussion above, the following are our conclusions:
a.	
Article 14 of the Constitution permits sub-classification of a 
class which is not similarly situated for the purpose of the 
law. The Court while testing the validity of sub-classification 
must determine if the class is a homogenous integrated class 
for fulfilling the objective of the sub-classification. If the class 
is not integrated for the purpose, the class can be further 
classified upon the fulfillment of the two-prong intelligible 
differentia standard;
b.	
In Indra Sawhney (supra), this Court did not limit
the 
application of sub-classification only to the Other Backward 
Class. This Court upheld the application of the principle to 
beneficiary classes under Articles 15(4) and 16(4);
c.	
Article 341(1) does not create a deeming fiction. The phrase 
“deemed” is used in the provision to mean that the castes 
or groups notified by the President shall be “regarded 
as” the Scheduled Castes. Even if it is accepted that the 
deeming fiction is used for the creation of a constitutional 
identity, the only logical consequence that flows from it is 
that castes included in the list will receive the benefits that 
the Constitution provides to the Scheduled Castes. The 
operation of the provision does not create an integrated 
homogenous class;
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d.	
Sub-classification within the Scheduled Castes does not 
violate Article 341(2) because the castes are not per se 
included in or excluded from the List. Sub-classification 
would violate the provision only when either preference or 
exclusive benefit is provided to certain castes or groups of 
the Scheduled Castes over all the seats reserved for the 
class;
e.	
Historical and empirical evidence demonstrates that the 
Scheduled Castes are a socially heterogenous class. Thus, 
the State in exercise of the power under Articles 15(4) and 
16(4) can further classify the Scheduled Castes if (a) there 
is a rational principle for differentiation; and (b) the rational 
principle has a nexus with the purpose of sub-classification; and 
f.	
The holding in Chinnaiah (supra) that sub-classification of the 
Scheduled Castes is impermissible is overruled. The scope 
of sub-classification of the Scheduled Castes is summarized 
below: 
i.	
The objective of any form of affirmative action including 
sub-classification is to provide substantive equality of 
opportunity for the backward classes. The State can sub-
classify, inter alia, based on inadequate representation 
of certain castes. However, the State must establish 
that the inadequacy of representation of a caste/group 
is because of its backwardness;
ii.	
The State must collect data on the inadequacy of 
representation in the “services of the State” because 
it is used as an
indicator of backwardness; and
iii.	
Article 335 of the Constitution is not a limitation on the 
exercise of power under Articles 16(1) and 16(4). Rather, 
it is a restatement of the necessity of considering the 
claims of the Scheduled Castes and the Scheduled 
Tribes in public services. Efficiency of administration 
must be viewed in a manner which promotes inclusion 
and equality as required by Article 16(1).
206.	 The Registry is directed to obtain administrative instructions from 
Chief Justice for placing the matters before an appropriate Bench.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
B.R. Gavai, J.
INDEX*
I.
BACKGROUND 
Paras 1 to 7
II.
ARTICLE 341, ARTICLE 342 AND THE 
PRESIDENTIAL ORDER FOR SCHEDULED 
CASTES AND SCHEDULED TRIBES
Paras 8 to 49
III.
JUDICIAL PRECEDENTS
Paras 50 to 168
A. 
M.R. Balaji vs. State of Mysore
Paras 52 to 62
B.
State of Kerala vs. N.M. Thomas
Paras 63 to 99
C.
Akhil Bharatiya Soshit Karamchari Sangh 
(Railway) vs. Union of India
Paras 100 to 122
D.
K.C. Vasanth Kumar vs. State of Karnataka
Paras 123 to 134
E.
Indra Sawhney vs. Union of India
Paras 135 to 147
F.
E.V. Chinnaiah vs. State of A.P.
Paras 148 to 162
G.
M. Nagaraj vs. Union of India
Paras 163 to 164
H.
Jarnail Singh vs. Lachhmi Narain Gupta
Paras 165 to 168
IV.
PRESENT REFERENCE 
Paras 169 to 171
V.
CONSIDERATION 
Paras 172 to 271
VI.
THE WAY FORWARD
Paras 272 to 295
VII.
CONCLUSION
Para 296
I have gone through the erudite and scholarly judgment authored 
by Hon’ble the Chief Justice of India. I am in agreement with the 
views expressed by the Hon’ble the Chief Justice of India. Taking 
into consideration the importance of the matter, I find it apposite to 
express my opinion through this separate judgment. 
Since the facts and submissions of the learned counsel appearing 
on behalf of the parties have been elaborately considered in the 
judgment of the Hon’ble the Chief Justice of India, in order to avoid 
repetition, I have not referred to them. 
I.	
BACKGROUND
“The third thing we must do is
not to be content with mere 
political democracy. We must make our political democracy 
a social democracy as well. Political democracy cannot 
* Ed. Note: Pagination as per the original Judgment.
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last unless there lies at the base of it social democracy. 
What does social democracy mean? It means a way of 
life which recognizes liberty, equality and fraternity as 
the principles of life. These principles of liberty, equality 
and fraternity are not to be treated as separate items in 
a trinity. They form a union of trinity in the sense that to 
divorce one from the other is to defeat the very purpose 
of democracy. Liberty cannot be divorced from equality, 
equality cannot be divorced from liberty. Nor can liberty 
and equality be divorced from fraternity. Without equality, 
liberty would produce the supremacy of the few over the 
many. Equality without liberty would kill individual initiative. 
Without fraternity, liberty and equality could not become 
a natural course of things. It would require a constable to 
enforce them. We must begin by acknowledging the fact 
that there is complete absence of two things in Indian 
Society. One of these is equality. On the social plane, 
we have in India a society based on the principle of 
graded inequality which means elevation for some and 
degradation for others. On the economic plane, we have 
a society in which there are some who have immense 
wealth as against many who live in abject poverty. On 
the 26th of January 1950, we are going to enter into a life 
of contradictions. In politics we will have equality and in 
social and economic life we will have inequality. In
politics 
we will be recognizing the principle of one man one vote 
and one vote one value. In our social and economic life, 
we shall, by reason of our social and economic structure, 
continue to deny the principle of one man one value. 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? If we continue to deny it for long, we 
will do so only by putting our political democracy in peril. 
We must remove this contradiction at the earliest possible 
moment or else those who suffer from inequality will blow 
up the structure of political democracy which this Assembly 
has so laboriously built up.”
1.	
These are the words of warning, which Dr. B.R. Ambedkar, the 
Chief Architect of the Indian Constitution, gave in his speech on 25th
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
November 1949, while replying to the debate on the final draft of 
the Constitution. This was the day prior to 26th November 1949, on 
which day, the Constituent Assembly adopted, enacted, and gave 
to our country the most cherished document for every Indian, “the 
Constitution of India”.
2.	
He warned that we should not be content with mere political 
democracy but make our political democracy a social democracy 
as well. He emphasized that a social democracy would mean a 
way of life which recognizes liberty, equality, and fraternity as the 
principles of life. According to him, liberty, equality, and fraternity, not 
individually but a trinity of the three was necessary for converting 
our political democracy into social democracy. He pointed out 
the contradictions in the country about the social and economic 
structure. He warned that if we continue to deny equality in social 
and economic life for long, we will do so only by putting our political 
democracy in peril. He therefore appealed to the nation to remove 
this contradiction at the earliest possible moment. He warned that 
if we do not do so, those who suffer from inequality will blow up 
the structure of political democracy which the Constituent Assembly 
had so laboriously built up. 
3.	
Two months thereafter, the Constitution of India came into force on 
26th January 1950. On 26th November 2023, we have completed 74 
years from the
date on which the Constitution of India was enacted, 
adopted, and given to ourselves. On 26th January 2024, we have 
completed 74 years from the date on which the Constitution of India 
came into effect. We are now in the 75th year of our Republic. 
4.	
For the last 75 years, there has been a march towards achieving 
social and economic equality. There have been efforts to give social 
and economic justice to the millions of citizens who on account of 
centuries and centuries of discrimination and inhuman treatment 
were denied the legitimate right to come into the mainstream of 
life. The trinity of Articles 14, 15, and 16 along with Articles 46, 335, 
338, 341 and 342 have provided a tool to march towards social and 
economic equality; emphasis on affirmative action so as to give a 
special treatment to the underprivileged so that they can march 
forward; providing reservations in the matters of education and in 
the matter of public employment have been used so as to provide 
a special treatment to these backward classes.
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5.	
The present case raises a dispute amongst various classes in the 
group of Scheduled Castes who claim to be more underprivileged 
and therefore claim for a more differential treatment qua the more 
advantageous in that group. Per contra, the rival classes inside them 
claim that once the classes are brought into the Presidential List 
of Scheduled Castes or Scheduled Tribes, they become a part of 
homogeneous group, and a further classification is not permissible 
under the Constitution. 
6.	
This quest of the underprivileged for more preferential treatment as 
compared to the more advantageous in the larger group falls for 
consideration in the present reference. 
7.	
The 5-Judge Bench of this Court in the case of E.V. Chinnaiah vs. 
State of A.P. and others1 has held that such a further classification 
on the ground of more backwardness among the backwards listed 
in the Presidential List is not permissible. However, another 5-Judge 
Bench of this Court in the case of The State of Punjab & Ors. vs. 
Davinder Singh & Ors.2 has doubted the view in E.V. Chinnaiah 
(supra) and referred the matter to a larger Bench. That is how these 
matters came up for consideration before us. 
II.	
ARTICLE 341, ARTICLE 342 AND THE PRESIDENTIAL 
ORDER FOR SCHEDULED CASTES AND SCHEDULED 
TRIBES
8.	
For appreciating the rival submissions before us, it is to be noted that 
while on one hand the struggle for gaining freedom for India was
going 
on; on the other hand, on account of social discrimination prevailing 
since centuries, a quest for social reforms was also going on. 
9.	
In the beginning, a nomenclature often used by Christian Missionaries 
was ‘depressed classes’ to describe the poor and downtrodden section 
of the society. A wide array of untouchable castes, aboriginal tribes, 
and other backward communities were all lumped together under that 
label. In 1909, leaders like Gopal Krishna Gokhale and Annie Besant 
also referred to low caste or marginalized communities in India as 
the ‘depressed classes’. Besant compared the ‘depressed classes’ 
in India to the ‘submerged tenth’ in England, i.e., unskilled labourers, 
1	
(2005) 1 SCC 394
2	
(2020) 8 SCC 1
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
scavengers, sweepers, casual dock labourers, etc., constituting 
10% of the population of that country. However, by 1918, the term 
‘depressed classes’ began to be used for only low-caste Hindus 
who suffered from the stigma of untouchability. The word ‘class’ in 
‘depressed class’ was really a synonym for caste.3 
10.	 It would be apposite to start with the Census Report of 1891. 
It refers to the manner of enumeration of castes including castes, 
tribes and sub-divisions. It also refers to the scheme of classification 
based on occupation divided into 60 categories. Then the said report 
regroups these 60 categories into 21 groups. The said report refers 
to Rajputs and Jats as tribes, larger than castes. Class VII deals 
with “Leather Workers and Lower Village Menials” and it includes 
the following groups:
"40.	 Leather workers
41.	 Watchmen and Village Menials
42.	 Scavengers”
11.	 Thereafter comes the Indian Statutory Commission Report, 1930. The 
heading of Chapter 4 of Part I is “Caste and the Depressed Classes”. 
The report specifically states that a Caste has been described as 
“the foundation of the Indian social fabric”. It further states that 
every Hindu necessarily belongs to the caste of his parents, and 
in that caste he inevitably remains. It states that no accumulation 
of wealth and no exercise of talents can alter his caste status; and 
marriage outside his caste is prohibited or
severely discouraged. It 
further states that in some cases, the application of the rule of caste 
seems almost to prescribe the means of livelihood of its members; 
indeed, many castes partake of the nature of occupational guilds. 
It states that the caste system, which may have originated in the 
preservation of ceremonial purity in social relations and in rules 
designed to limit admixture of blood, has during ages developed 
into an institution which assigns to each individual his duty and his 
position in orthodox Hinduism. However, the boundary which brings 
members of the same caste together also serves to separate them 
from innumerable compartments embracing other castes. It further 
3	
Abhinav Chandrachud, These Seats are Reserved: Caste, Quotas and the Constitution of India (Viking 
by Penguin Random House India 2023).
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states that this has resulted in a rigid and detailed subdivision of 
Hindu society which strongly contrasts with the theory of equalitarian 
ideas among Moslems and Christians. 
12.	 Paragraph 53 of the Report deals with “the depressed classes”. It 
states that the depressed classes comprise about 20% of the total 
population of the British India or about 30% of the Hindu population. 
They constitute the lowest castes recognized as being within the 
Hindu religious and social system. It further states that in origin these 
castes seem to be partly “functional,’’ comprising those who followed 
occupations held to be unclean or degrading, such as scavenging 
or leather working, and partly “tribal,” i.e., aboriginal tribes absorbed 
into the Hindu fold and transformed into an impure caste. It further 
states that their essential characteristic is that, according to the tenets 
of orthodox Hinduism, they are, though within the Hindu system, 
“untouchable,” – that is to say, that for all other Hindus they cause 
pollution by touch and defile food or water. They are denied access 
to the interior of an ordinary Hindu temple. It states that they are not 
only the lowest in the Hindu social and religious system, but with 
few individual exceptions are also at the bottom of the economic 
scale and are generally quite uneducated. The Report shows that 
in the villages they are normally segregated in a separate quarter 
and very
frequently eat food which would not be even touched by 
any other section of the community. 
13.	 A large proportion of them are landless agricultural labourers 
employed by cultivators for small remuneration. It states that it was 
not uncommon for a particular shed in a factory to be reserved for 
depressed class workers. 
14.	 Paragraph 54 of the Report deals with “Disabilities of the 
Untouchables”. It states that the actual disabilities, other than 
religious, suffered by the untouchables owing to their untouchability 
vary very greatly in different parts of India, not only from province 
to province, but also in different parts of the same province and 
even sometimes in different parts of the same district. It states that 
the two most widespread difficulties are about water and schools. It 
states that in many places it was customary for the untouchables to 
be denied access to the wells or tanks used by the other castes and 
great difficulty has often been found, when a new source of water 
supply has been provided from public funds by local authorities, in
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
arranging for the untouchables to have use of it. The Report highlights 
that if any village draws its water from a river, the untouchables will 
be required to take their supply from a different point, lower down. 
In many places the children of untouchables are either excluded 
altogether from ordinary schools, although provided in whole or in 
part from public funds, otherwise they would be required to sit apart. 
In some cases, the untouchable children are required to attend the 
classes standing outside the classroom. The Report highlights that the 
difficulty of the administrator or political reformer was much increased 
by the fact that the great body of the untouchables yet accept their 
destiny as natural and inevitable. The Report states that their state 
is indeed pitiable inside the Hindu fold and yet not of it living on the 
edge of starvation, and unaware of any hope of improving their lot.
15.	 Paragraph 55 of the Report highlights that the depressed classes 
were most severely felt in Madras, and especially in Malabar. In 
Malabar, is still found the phenomenon of “unapproachability,’’ that 
is, the untouchable must not approach within a certain distance of 
a high caste Hindu and would have to leave the road to allow his 
passage, and even to shout to give warning of the risk of pollution. 
The Report states that the local authority in another part of Madras 
had preferred to leave
the roads un-mended rather than employ 
untouchable labourers to repair them. 
16.	 The Report further points out that in Bombay and the Central 
Provinces, the position was more or less comparable with that in 
Madras. The Report also refers to the telegrams from Nasik and 
Poona, in the Bombay Presidency, wherein organized action on 
the part of some untouchables was taken to assert a claim to enter 
Hindu temples.
17.	 It may not be out of place to mention that during the relevant period Dr. 
B.R. Ambedkar had also started a movement for opening waterbodies 
to the untouchables and even untouchables being permitted to enter 
the temples. One of such agitations was about a public tank called 
‘Chavder tank’ in Mahad, held on 20th March 1927 and another was 
an attempt to enter Kalaram temple at Nashik on 2nd March 1930.
18.	 The Report further states that in Bengal, Bihar and Orissa and the 
United Provinces, although there were large numbers belonging 
to untouchable castes, in general they do not seem to suffer so 
universally or so severely as in the South. The Report, however,
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states that the problem did exist in these areas also. The Report 
also gives approximate percentage of population of the number of 
untouchables. The Report excludes aboriginals who are outside the 
Hindu fold. 
19.	 The next document that requires a mention is ‘the Census of India 
1931’. The said Report coins the phrase ‘primitive tribes’, who reside 
in hills, forests, and other nomadic groups. These primitive tribes 
provide a foundation for Scheduled Tribes. It also notes that the 
formerly depressed classes are now referred to as the Scheduled 
Castes. 
20.	 It could thus be seen that while the primitive tribes who reside in 
hills, forests and remote areas provide a foundation for Scheduled 
Tribes, the so-called depressed classes which are so recognized 
on account of untouchability provide a foundation for Scheduled 
Castes. The Report also states that the 1931 Census Report 
remains the source material for present day Scheduled Castes 
and Scheduled Tribes.
21.	 Then comes the Government of India Act, 1935 (hereinafter referred 
to as “the 1935 Act”). Part II of the 1935 Act deals with “The 
Federation of India”. Chapter I thereof deals with “Establishment of 
Federation and Accession of Indian States”. Section 5 of the 1935 
Act deals with “Proclamation of Federation of India” and Section 6 
of the 1935 Act deals with “Accession of Indian States”. Clause (a) 
of sub-section (2) of Section 5 of the 1935 Act
provided that the 
States, the Rulers whereof will, in accordance with the provisions 
contained in Part II of the First Schedule to this Act, be entitled to 
choose not less than fifty-two members of the Council of States. 
Clause (b) of sub-section (2) of Section 5 of the 1935 Act provided 
that the States, the aggregate population whereof, as ascertained 
in accordance with the said provisions, amounts to at least one-
half of the total population of the States as so ascertained, have 
acceded to the Federation.
22.	 Section 18 of the 1935 Act deals with “Constitution of the 
Federal Legislature”. Sub-section (3) of Section 18 provided that 
representatives to be provided to the Council of States and the 
Federal Assembly shall be chosen in accordance with the provisions 
in that behalf contained in the First Schedule of the 1935 Act.
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23.	 Similarly, Section 60 of the 1935 Act deals with “Constitution of 
Provincial Legislatures”. Section 61 of the 1935 Act provides for 
“Composition of Chambers of Provincial Legislatures”. Sub-section (1) 
of Section 61 provided that the composition of the Chamber or 
Chambers of the Legislature of a Province shall be such as is specified 
in relation to that Province in the Fifth Schedule to the 1935 Act. 
24.	 The First Schedule to the 1935 Act provided for “Composition of the 
Federal Legislature”. Clause 4 thereof inter alia provides for seats 
for representatives of the Scheduled Castes.
25.	 It will be relevant to reproduce Clause 8 of the First Schedule to the 
1935 Act, which reads thus:
“8. In any Province to which a seat to be filled by a 
representative of the scheduled castes is allotted, a person 
to fill that seat shall be chosen by the members of those 
castes who hold seats in the Chamber or, as the case may 
be, either Chamber of the Legislature of that Province.”
26.	 It could thus be seen that the 1935 Act provided that in any Province 
where seat(s) is/are to be filled by the representatives of the Scheduled 
Castes where they are so allotted, shall be chosen by the members 
of those castes who hold seats in the Chamber or either Chamber 
of the Legislature of that Province. 
27.	 Clause 18 of the First Schedule deals with “The Federal Assembly”. 
28.	 It could thus be seen
that Clause 18 of First Schedule to the 1935 
Act inter alia deals with seats reserved for members of the Scheduled 
Castes. 
29.	 Clause 26 of the First Schedule to the 1935 Act is the interpretation 
clause. It defines “the Scheduled Castes” as under:
““the scheduled castes” means such castes, races or 
tribes or parts of or groups within castes, races or tribes, 
being castes, races, tribes, parts or groups which appear 
to His Majesty in Council to correspond to the classes of 
persons formerly known as “the depressed classes”, as 
His Majesty in Council may specify;”
30.	 It is thus clear that the 1935 Act defines ‘the Scheduled Castes” to 
mean such castes, races or tribes or parts of or groups within castes, 
races or tribes, being castes, races, tribes, parts or groups which
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appear to His Majesty in Council to correspond to the classes of 
persons formerly known as “the depressed classes”, as His Majesty 
in Council may specify. 
31.	 It could thus be seen that the definition of “the Scheduled Castes” 
can be traced to “the depressed classes”, which were used in a 
generic sense earlier and again traced to the most backward people 
suffering untouchability. 
32.	 Then comes the Government of India (Scheduled Castes) Order, 1936 
(hereinafter referred to as “the 1936 Order”), notified on 30th April 
1936. It will be relevant to refer to the said order, which is as under:
“THE GOVERNMENT OF INDIA (SCHEDULED CASTES)
ORDER, 1936
______________
AT THE COURT AT BUCKINGHAM PALACE
The 30th day of April, 1936
Present,
THE KING’S MOST EXCELLENT MAJESTY
IN COUNCIL
Whereas by certain provisions in the First, Fifth and Sixth 
Schedules to the Government of India Act, 1935, His 
Majesty in Council is empowered to specify the castes, 
races or tribe or parts of or groups within castes, races 
or tribes which are to be treated as the scheduled castes 
for the purposes of those Schedules:
AND WHEREAS a draft of this Order was laid before 
Parliament in accordance with the provisions of 
subsection (1) of section three hundred and nine of the 
said Act and an Address has been presented by both 
Houses of Parliament praying that an Order may be made 
in the terms of this Order :
NOW, THEREFORE, His Majesty, in
the exercise of the 
said powers and of all other powers enabling Him in that 
behalf, is pleased by and with the advice of His Privy 
Council to order, and it is hereby ordered, as follows :-
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
1.	
This Order may be cited as “The Government of India 
(Scheduled Castes) Order, 1936.”
2.	
Subject to the provisions of this Order, for the 
purposes of the First, Fifth and Sixth Schedules to 
the Government of India Act, 1935, the castes, races 
or tribes, or parts of or groups within castes, races 
or tribes specified in Parts I to IX of the Schedule 
to this Order shall, in the Provinces to which those 
Parts respectively relate, be deemed to be scheduled 
castes so far as regards members thereof resident in 
the localities specified in relation to them respectively 
in those Parts of that Schedule.
3.	
Notwithstanding anything in the last preceding 
paragraph- 
(a)	 no Indian Christian shall be deemed to be a 
member of a scheduled caste;
(b)	 in Bengal no person who professes Buddhism 
or a tribal religion shall be deemed to be a 
member of any scheduled caste;
and if any question should arise as to whether any particular 
person does or does not profess Buddhism or a tribal 
religion, that question shall be determined according to the 
answers which he may make, in the prescribed manner, 
to such questions as may be prescribed.
4.	
In this Order the expression “Indian Christian” has 
the same meaning as it has for the purposes of Part I 
of the First Schedule to the Government of India 
Act, 1935, and the expression “prescribed” means 
prescribed by rules made by the Governor of Bengal,
exercising his individual judgment.
5.	
Any reference in the Schedule to this Order to any 
division, district, subdivision, tahsil or municipality 
shall be construed as a reference to that division, 
district, subdivision, tahsil or municipality as existing 
on the first day of July, nineteen hundred and 
thirty-six.

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SCHEDULE
PART I – MADRAS
(1)	 Scheduled castes throughout the Province :-
Adi-Andhra
Gosangi
Paidi
Adi-Dravida
Haddi
Painda
Adi-Karnataka
Hasla
Paky
Ajila
Holeya
Pallan
Arunthuthiyar
Jaggali
Pambada
Baira
Jambuvulu
Pamidi
Bakuda
Kalladi
Panchama
Bandi
Kanakkan
Paniyan
Bariki
Kodalo
Panniandi
Battada
Koosa
Paraiyan
Bavuri
Koraga
Paravan
Bellara
Kudumban
Pulayan
Byagari
Kuravan
Puthirai Vannan
Chachati
Madari
Raneyar
Chakkiliyan
Madiga
Relli
Chalavadi
Maila
Samagara
Chamar
Mala
Samban
Chandala
Mala Dasu
Sapari
Cheruman
Matangi
Semman
Dandasi
Moger
Thoti
Devandrakulathan
Muchi
Tiruvalluvar
Ghasi
Mundala
Valluvan
Godagali
Nalakeyava
Valmiki
Godari
Nayadi
Vettuvan
Godda
Paga dai
(2)	 Scheduled castes throughout the Province except 
in any special constituency constituted under the
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Government of India Act, 1935, for the election of 
a representative of backward areas and backward 
tribes to the Legislative Assembly of the Province :-
Aranadan
Kattunayakan
Kuruman
Dombo
Kudiya
Malasar
Kadan
Kudubi
Mavilan 
Karimpalan 
Kurichchan
Pano
PART II – BOMBAY 
Scheduled Castes : -
(1)	 Throughout the Province : -
Asodi
Dhor
Mang Garudi
Bakad
Garode
Meghval, or 
Menghwar
Bhambi
Halleer
Mini Madig
Bhangi
Halsar, or Haslar, 
or Hulsavar
Mukri
Chakrawadya – 
Dasar
Holaya
Nadia
Chalvadi
Khalpa
Shenva, or 
Shindhava
Chambhar, or 
Mochigar, or 
Samagar
Kolcha, or Kolgha
Shingdav, or 
Shingadya
Chena – Dasaru
Koli Dhor
Sochi
Chuhar, or 
Chuhra
Lingader
Timali
Dakaleru
Madig, or Mang
Turi
Dhed
Mahar
Vankar
Dhegu-Mega
Vitholia
(2)	 Throughout the Province except in the Ahmedabad, 
Kaira, Broaoh and Panch Mahals and Surat  
districts – Mochi. 
(3)	 In the Kanara district – Kotegar.
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PART III – Bengal 
Scheduled castes throughout the Province : - 
Agariya
Hari
Mal
Bagdi
Ho
Mallah
Bahelia
Jalia Kaibartta
Malpahariya
Baiti
Jhalo Malo, or Malo
Mech
Bauri
Kadar
Mehtor
Bediya
Kan
Muchi
Beldar
Kandh
Munda
Berua
Kandra
Musahar
Bhatiya
Kaora
Nagesia
Bhuimali
Kapuria
Namasudra
Bhuiya
Karenga
Nat
Bhumij
Kastha
Nuniya
Bind
Kaur
Oraon
Binjhia
Khaira
Paliya
Chamar
Khatik
Pan
Dhenuar
Koch
Pasi
Dhoba
Konai
Patni
Doai
Konwar
Pod
Dom
Kora
Rabha
Dosadh
Kotal
Rajbanshi
Garo
Lalbegi
Rajwar
Ghasi
Lodha
Santal
Gonrhi
Lohar
Sunri
Hadi 
Mahar
Tiyar
Hajang
Mahli
Turi
Halalkhor

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The State of Punjab & Ors. v. Davinder Singh & Ors. 
PART IV – UNITED PROVINCES
Scheduled castes :-
(1)	 Throughout the Province :- 
Agariya
Chamar
Kharot
Aheriya
Chero
Karwar 
(except 
Benbansi)
Badi
Dabgar
Khatik
Badhik
Dhangar
Kol
Baheliya
Dhanuk (Bhangi)
Korwa
Bajaniya
Dharkar
Lalbegi
Bajgi
Dhobi
Majhwar
Balahar
Dom
Nat
Balmiki
Domar
Pankha
Banmanus
Gharami
Parahiya
Bansphor
Ghasiya
Pasi
Barwar
Gual
Patari
Basor
Habura
Rawat
Bawariya
Hari
Saharya
Beldar
Hela
Sanaurhiya
Bengali
Kalabaz
Sansiya
Beriya
Kanjar
Shilpkar
Bhantu
Kapariya
Tharu
Bhuiya
Karwal
Turaiha
Bhuyiar
Khairaha
Boriya
(2)	 Throughout the Province except in the Agra, Meerut 
and Rohilkhand divisions – Kori
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PART V – PUNJAB 
Scheduled Castes throughout the Province : -
Ad Dharmis
Marija or Marecha
Khatik
Bawaria
Bangali
Kori
Chamar
Barar
Nat
Chuhra, or Balmiki
Bazigar
Pasi
Dagi and Koli
Bhanjra
Perna
Dumna
Chanal
Sapela
Od
Dhanak
Sirkiband
Sansi
Gagra
Meghs
Sarera
Gandhila
Ramdasis
PART VI – BIHAR
Scheduled Castes : - 
(1)	 Throughout the Province :-
Chamar
Halalkhor
Mochi
Chaupal
Hari
Musahar
Dhobi
Kanjar
Nat
Dusadh
Kurariar
Pasi
Dom
Lalbegi
(2)	 In the Patna and Tirhut divisions and the Bhagalpur, 
Mong Palamau and Purnea district:-
Bauri
Bhumij
Rajwar
Bhogta
Ghasi
Turi
Bhuiya
Pan
(3)	 In the Dhanbad subdivision of the Manbhum district 
and the Central Manbhum general rural constituency, 
and the Purulia and Raghunathpur municipalities : - 
Bauri
Ghasi
Rajwar
Bhogta
Pan
Turi
Bhuiya
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1459
The State of Punjab & Ors. v. Davinder Singh & Ors. 
PART VII – CENTRAL PROVINCES AND BERAR
Scheduled 
Castes
Localities
Basor, or 
Burud
Throughout the Province
Chamar
Dom
Ganda
Mang
Mehtar or 
Bhangi
Mochi
Satnami
Audhelia
:
In the Bilaspur district
Bahna
:
In the Amraoti district
Balahi, or 
Balai
:
In the Berar division and the Balaghat, 
Bhandara, Betul, Chanda, Chhindwara, 
Hoshangabad, Jubbulpore, Mandla, 
Nagpur, Nimar Saugor and Wardha 
districts
Bedar
:
In the Akola, Amraoti and Buldana 
districts.
Chadar
:
In the Bhandara and Saugor districts
Chauhan
:
In the Drug district
Dahayat
:
In the Damoh subdivision of Saugor 
district.
Dewar
:
In the Bilaspur, Drug and Raipur 
districts.
Dhanuk
:
In the Saugor district, except in the 
Damoh subdivision thereof.
Dhimar
:
In the Bhandara district
Dhobi
: 
In the Bhandara, Bilaspur, Raipur 
and Saugor districts, and the 
Hoshangabad and Seoni-Malwa 
tahsils of the Hoshangabad district.
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Dohor
:
In the Berar division, and the 
Balaghat, Bhandara, Chanda, 
Nagpur and Wardha districts.
Ghasia
:
In the Berar division and in the 
Balaghat, Bhandara, Bilaspur, 
Chanda, Drug, Nagpur, Raipur and 
Wardha districts.
Holiya
:
In the Balaghat and Bhandara 
districts.
Jangam
:
In the Bhandara district.
Kaikari
:
In the Berar division, and in 
Bhandara, Chanda, Nagpur and 
Wardha districts. 
Katia
:
In the Berar division, in the 
Balaghat, Betul Bhandara, Bilaspur, 
Chanda, Drug, Nagpur, Nimar, 
Raipur and Wardha districts, in the 
Hoshangabad and Seoni-Malwa 
tahsils of the Hoshangabad district, 
in the Chhindwara district, except in 
the Seoni subdivision thereof, and 
in the Saugor district, except in the 
Damoh subdivision thereof.
Khangar
:
In the Bhandara, Buldhana and 
Saugor districts and the Hoshangabad 
and Seoni-Malwa tahsils of the 
Hoshangabad district.
Khatik
:
In the Berar division, in the Balaghat, 
Bhandara, Chanda, Nagpur and 
Wardha districts, in the Hoshangabad 
tahsil of the Hoshangabad district, in 
the Chhindwara district, except in the 
Seoni subdivision thereof, and in the 
Saugor district, except in the Damoh 
subdivision thereof. 
Koli
:
In the Bhandara and Chanda district
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Kori
:
In the Amraoti, Balaghat, Betul, 
Bhandara, Buldana, Chhindwara, 
Jubbulpore, Mandla, Nimar, Raipur 
and Saugor districts, and in the 
Hoshangabad district, except in the 
Harda and Sohagpur tahsils thereof.
Kumhar
:
In the Bhandara and Saugor districts 
and the Hoshangabad and Seoni-
Malwa tahsils of the Hoshangabad 
district. 
Madgi
:
In the Berar division, and in the 
Balaghat Bhandara, Chanda, Nagpur 
and Wardha districts.
Mala
:
In the Balaghat, Betul, Chhindwara, 
Hoshangabad, Jubbulpore, Mandla, 
Nimar and Saugor districts. 
Mehra, or 
Mahar
:
Throughout the Province, except in 
the Harda and Sohagpur tahsils of 
the Hoshangabad district. 
Nagarchi
:
In the Balaghat, Bhandara, 
Chhindwara, Mandla, Nagpur and 
Raipur districts.
Ojha
:
In the Balaghat, Bhandara and Mandla 
districts and the Hoshangabad tahsil 
of the Hoshangabad district.
Panka
:
In the Berar division, in the Balaghat, 
Bhandara, Bilaspur, Chanda, Drug, 
Nagpur, Raipur, Saugor and Wardha 
districts and in the Chhindwara district 
except in the Seoni subdivision thereof.
Pardhi
:
In the Narsinghpur subdivision of the 
Hoshangabad district. 
Pradhan
:
In the Berar division, in the Bhandara 
Chanda, Nagpur, Nimar, Raipur 
and Wardha districts and in the 
Chhindwara district, except in the 
Seoni subdivision thereof.
Rujjhar
:
In the Sohagpur tahsil of the 
Hoshangabad district.
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PART VIII – ASSAM
Scheduled Castes : -
(1)	 In the Assam Valley : -
Namasudra
Hira
Mehtar, or Bhangi
Kaibartta
Lalbegi
Bansphor
Bania, or Brittial-Bania
(2)	 In the Surma Valley :-
Mali, or Bhuimali
Sutradhar
Kaibartta, or Jaliya
Dhupi, or Dhobi
Muchi
Lalbegi
Dugla, or Dholi
Patni
Mehtar, or Bhangi
Jhalo and Malo
Namasudra
Bansphor
Mahara
PART IX – ORISSA
Scheduled castes : -
(1)	 Throughout the Province :-
Adi-Andhra
Godra
Mangan
Audhelia
Gokha
Mehra, or Mahar
Bariki
Haddi, or Hari
Mehtar, or Bhangi
Basor,or Burud
Irika
Mochi, or Muchi
Bavuri
Jaggali
Paidi
Chachati
Kandra
Painda
Chamar
Kantia
Pamidi
Chandala
Kela
Panchama
Dandasi
Kodalo
Panka
Dewar
Madari
Relli
Dhoba, or Dhobi
Madiga
Sapari
Ganda
Mahuria
Satnami
Ghusuria
Mala
Siyal
Godagali
Mang
Valamiki
Godari
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
(2)	 Throughout the Province except in the Khondmals 
district, the district of Sambalpur, and the areas 
transferred to Orissa under the provisions of the 
Government of India (Constitution of Orissa) Order, 
1936, from the Vizagapatam and Ganjam Agencies 
in the Presidency of Madras:-
Pan, or Pano
(3)	 Throughout the Province except in the Khondmals 
district and the areas so transferred to Orissa from 
the said Agencies : -
Dom, or Dombo
(4)	 Throughout the Province except in the district of 
Sambalpur : 
Bauri
Bhumij
Turi
Bhuiya
Ghasi, or Ghasia
(5)	 In the Nawapara subdivision of the district of 
Sambalpur: -
Kori
Nagarchi
Pradhau
C. K. Rhodes, 
Joint Secy. to the Govt. of India”
33.	 It could thus be seen that for the purposes of the First, Fifth and 
Sixth Schedules to the 1935 Act , the castes, races or tribes, or parts 
of or groups within castes, races or tribes specified in Parts I to IX 
of the Schedule to the 1936 Order were deemed to be scheduled 
castes in the Provinces to which those Parts respectively relate. 
34.	 A perusal of the 1936 Order would reveal that for different provinces 
different castes were notified as Scheduled Castes. In some of the 
provinces, a particular caste was to be considered as Scheduled 
Caste, except in the districts mentioned therein where it was not to 
be considered as Scheduled Caste. Similarly, in some of the cases, 
in particular areas or districts,
the said castes were deemed to be 
Scheduled Castes in the same province. 
35.	 It can thus be seen that a same caste in the same province could 
be a Scheduled Caste only in one or more districts and not in the 
other districts.
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36.	 It could be seen that insofar as the Bombay Province is concerned, 
the caste ‘Mochi’ would be a Scheduled Caste throughout the Province 
except in Ahmedabad, Kaira, Broaoh and Panch Mahals and Surat 
districts. Similarly, a caste ‘Kotegar’ would be a Scheduled Caste 
only in the Kanara district and not in the rest of the Province. 
37.	 It could thus be seen that the 1936 Order formed the basis of the 
Constitution (Scheduled Castes) Order, 1950 (hereinafter referred 
to as “the 1950 Order”) issued under Article 341(1) after the 
commencement of the Constitution. 
38.	 Then comes the most important event i.e. the debate in the Constituent 
Assembly on 17th September 1949, when Dr. B.R. Ambedkar moved 
two new draft Articles being Articles 300A and 300B, which read thus:
“300A-Scheduled Castes 
(1) The President may, after consultation with the 
Governor or Ruler of a State, by public notification 
specify the castes, races or tribes or Scheduled Castes 
parts of or groups within castes, races or tribes, which 
shall for purposes of this Constitution be deemed to 
be Scheduled Castes in relation to that State. 
(2) Parliament may by law include in or exclude from 
the list of Scheduled Castes specified in a notification 
issued by the President under clause (1) of this article 
any caste, race or tribe or part of or group within any 
caste, race or tribe, but save as aforesaid a notification 
issued under the said
clause shall not be varied by 
any subsequent notification.
300B-Scheduled Tribes 
(1) The President may after consultation with the 
Governor or Ruler of a State, by public notification 
specify the tribes or tribal communities or parts of or 
groups within tribes or tribal communities which shall 
for purposes of this Constitution be deemed to be 
scheduled tribes in relation to that State. 
(2) Parliament may by law include in or exclude from 
the list of scheduled tribes specified in a notification 
issued by the President under clause (1) of this article 
any Tribe or Tribal community or part of or group within
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
any Tribe or Tribal community but save as aforesaid 
a notification issued under the said clause shall not 
be varied by any subsequent notification.”
39.	 While moving the said new draft Articles, Dr. B.R. Ambedkar stated 
thus:
“The object of these two articles, as I stated, was to 
eliminate the, necessity of burdening the Constitution with 
long lists of Scheduled Castes and Scheduled Tribes. It 
is now proposed that the President, in consultation with 
the Governor or Ruler of a State should have, the power 
to issue a general notification in the Gazette specifying 
all the Castes and tribes or groups thereof deemed to be 
Scheduled Castes and Scheduled Tribes for the purposes 
of the privileges which have been defined for them in the 
Constitution. The only limitation that has been imposed 
is this : that once a notification has been issued by the 
President, which, undoubtedly, he will be issuing in 
consultation with and on the advice of the Government 
of each State, thereafter, if any elimination was to be 
made from the List so notified or any addition was to be 
made, that must be made by Parliament and not by the 
President. The object is to eliminate any kind of political 
factors having a play in the matter of the disturbance in 
the Schedule so published by the President.”
40.	 It could thus be seen that the idea behind draft Articles 300A and 
300B, which are now Articles 341 and
342, was to eliminate the 
necessity of burdening the Constitution with long lists of Scheduled 
Castes and Scheduled Tribes. It was proposed that the President, 
in consultation with the Governor or Ruler of a State shall have the 
power to issue a general notification in the Gazette specifying all the 
Castes and tribes or groups thereof deemed to be Scheduled Castes 
and Scheduled Tribes for the purposes of the privileges which have 
been defined for them in the Constitution. 
41.	 It is thus clear that the purpose of draft Article 300A (now 
Article 341) and draft Article 300B (now Article 342) was for identifying 
the castes, races, or tribes, or parts of or groups within castes, races 
or tribes, which were entitled to the privileges which had been defined 
for them in the Constitution.
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42.	 It is thus clear that the purpose of draft Articles 300A and 300B 
(now Articles 341 and 342) was not providing the privileges but only 
identifying the castes, races, or tribes, or parts of or groups within 
castes, races or tribes, which would be entitled for the privileges 
which were elsewhere provided under the Constitution. 
43.	 Dr. B.R. Ambedkar further observed that the only limitation that has 
been imposed was that once a notification has been issued by the 
President, which he would be issuing in consultation with and on the 
advice of the Government of the State, thereafter, if any elimination 
or addition was to be made in the List so notified, the same can be 
done only by Parliament and not by the President. The purpose was 
to eliminate any kind of political factors having a play in the matter 
of the disturbance in the Schedule so published by the President. 
44.	 It is amply clear that the purpose behind the said provisions was 
that once an identification has been done in the List so notified, the 
Executive should not tinker with it and any addition or deletion had 
to be made only by Parliament. 
45.	 It will also be relevant to refer to the speech of Shri V.I.Muniswami 
Pillai, given on the same day i.e. 17th September 1949 in support of 
the amendment, which reads as under:
“Shri V. I. Muniswami Pillai : Mr. President, I come to 
support the amendments that have been moved by the 
Honourable Dr.
Ambedkar. These amendments deal with 
the definition of Scheduled Castes. As far as I can see 
he has made it clear that, according to the second part 
of it, the President on the 26th January 1950 will publish a 
list of such communities that come under the category of 
Scheduled Castes. But I would like to inform this House 
of the background which brought out the special name 
of Scheduled Castes. It was the intouchability, the, social 
evil that has been practised by the Hindu Community for 
ages, that was responsible for the Government and the 
people to know the section of people coming under the 
category of Hindus and who were kept at the outskirts 
of the Hindu society. Going backwards to 1916 it was in 
that year when Government found that something had 
to be done for the untouchable classes, (when they said 
untouchable classes, they were always understood to be
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Hindus,) and they had to be recognised. In Madras there 
were six communities that came under this classification. 
During the Montago Chelmsford reforms they were made 
ten. In 1930 when the great epoch-making fast of Mahatma 
Gandhi came about, then only the country saw who were 
the real untouchable classes. And in the 1935 Act, the 
Government thoroughly examined the whole thing and as 
far as the Province of Madras is concerned they brought 
86 communities into this list or category, though there 
were some touchable classes also. Now, after further 
examination the Provincial Governments have drawn up 
a list and I think according to the amendment mover’s 
suggestions, all those communities that come-under the 
category of untouchables and those who profess Hinduism 
will be the Scheduled Castes, because I want to emphasise 
about the religion. I emphasise this because of late there 
have been some movements here and there; there are 
people who have left Scheduled Castes and Hinduism 
and joined other religions and they also are claiming to 
be scheduled Castes. Such convert cannot come under 
the scope of this definition. While I have no objection to 
Government granting any concessions to these converts, 
I feel strongly that they should not be clubbed along with 
Scheduled Castes. 
Sir, I am grateful to the Drafting Committee and also to 
the Chairman of that Committee for making the second
portion of it very clear, that in future, after the declaration 
by the President as to who will be the Scheduled Castes, 
and when there is need for including any other class or 
to exclude, anybody or any community from the list of 
Scheduled Castes that must be by the word of Parliament. 
I feel grateful to him for bringing in this clause, because 
I know, as a matter of fact, when Harijans behave 
independently or asserting their right on some matters, the 
Ministers in some Provinces not only take note and action 
against those members, but they bring the community to 
which that particular individual belongs; and thereby not 
only the individual, but also the community that comes 
under that category of Scheduled Castes are harassed. 
By this provision, I think the danger is removed.
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I strongly oppose the amendment moved by Pandit 
Bhargava. The reason is that he wants to have the ten 
years period for observing these amendments. But he has 
entirely forgotten that under another article that we have 
already passed, or will pass the Constitution provides for 
the appointment of a Special officer at the Centre and also 
various officers in all the Provinces to go into the various 
disabilities of these communities and to submit a report 
to the President who will then be able to know whether 
the Scheduled Castes have reached a stage when the 
facilities now given to them could be withdrawn. I do not 
think that the reasons that he has advanced are fair and 
square for the uplift of the Harijans.
With these few words, I support the amendment.”
46.	 It can thus be seen that the Learned Member of the Constituent 
Assembly refers to the background which brought out the special 
name of Scheduled Castes. He refers to untouchability, the social evil 
that has been practiced by the Hindu Community for ages. He states 
that a section of people, though Hindus, were kept at the outskirts of 
the Hindu society and it was in the year 1916 when the Government 
found that something had to be done for the untouchable classes. 
He refers to the efforts made by Mahatma Gandhi. He identified as 
to who were the actual untouchable classes. He refers to the 1935 
Act and the efforts of the Government in thoroughly
examining the 
whole thing and states that as far as the Province of Madras is 
concerned they brought 86 communities into the list or category. 
He states that according to the amendment mover’s suggestions, 
all those communities that come-under the category of untouchables 
and those who profess Hinduism will be the Scheduled Castes. 
However, he opined that those people who have left Hinduism and 
joined other religions should not be entitled to claim the benefits of 
Scheduled Castes. He states that if the Government wants to grant 
any concessions to these converts, they should not be clubbed 
among the Scheduled Castes. 
47.	 He acknowledges the vision of the Drafting Committee and its 
Chairman as to who will be the Scheduled Castes, and when there 
is need for including any other class or to exclude anybody or any 
community from the list of Scheduled Castes that must be by the 
word of Parliament. He states that he is grateful to the Chairman for
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
bringing in this clause and that when Harijans behave independently 
or assert their right on some matters, not only the members of that 
community but their entire community is harassed. 
48.	 Having referred to the history of as to how the concept of Scheduled 
Castes and Scheduled Tribes has emerged, I, now, for the sake 
of convenience, refer to the provisions in the Constitution of India 
dealing with the special treatment provided to the Scheduled Castes, 
Scheduled Tribes and Other Backward Classes. Since we are not 
concerned with political reservations, I do not find it necessary to 
refer to the provisions dealing therewith. Since Articles 341 and 
342 are draft Articles 300A and 300B, which were approved by the 
Constituent Assembly on 17th September 1949, I do not repeat the 
same here.
Article 15, 16, 46, 335, 338, Clauses 24 and 25 of Article 366
“15. Prohibition of discrimination on grounds of 
religion, race, caste, sex or place of birth.—(1) The State 
shall not discriminate against any citizen on grounds only 
of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, 
caste, sex, place of birth or any of them, be subject to any 
disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and 
places of public entertainment; or
(b) the use of wells, tanks, bathing ghats,
roads and 
places of public resort maintained wholly or partly 
out of State funds or dedicated to the use of the 
general public.
(3) Nothing in this article shall prevent the State from 
making any special provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall 
prevent the State from making any special provision for the 
advancement of any socially and educationally backward 
classes of citizens or for the Scheduled Castes and the 
Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) 
of Article 19 shall prevent the State from making any
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special provision, by law, for the advancement of any 
socially and educationally backward classes of citizens 
or for the Scheduled Castes or the Scheduled Tribes 
insofar as such special provisions relate to their admission 
to educational institutions including private educational 
institutions, whether aided or unaided by the State, other 
than the minority educational institutions referred to in 
clause (1) of Article 30.
(6) Nothing in this article or sub-clause (g) of clause (1) 
of Article 19 or clause (2) of Article 29 shall prevent the 
State from making,—
(a) any special provision for the advancement of any 
economically weaker sections of citizens other than 
the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any 
economically weaker sections of citizens other than 
the classes mentioned in clauses (4) and (5) insofar 
as such special provisions relate to their admission to 
educational institutions including private educational 
institutions, whether aided or unaided by the State, 
other than the minority educational institutions 
referred to in clause (1) of Article 30, which in the 
case of reservation would be in addition to the existing 
reservations and subject to a maximum of ten per 
cent of the total seats in each category.
Explanation.—For the purposes of this article and Article 16, 
“economically weaker sections” shall be such as may be 
notified by the
State from time to time on the basis of family 
income and other indicators of economic disadvantage.”
“16. Equality of opportunity in matters of public 
employment.—(1) There shall be equality of opportunity 
for all citizens in matters relating to employment or 
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, 
sex, descent, place of birth, residence or any of them, be 
ineligible for, or discriminated against in respect of, any 
employment or office under the State.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
(3) Nothing in this article shall prevent Parliament from 
making any law prescribing, in regard to a class or classes 
of employment or appointment to an office  14[under the 
Government of, or any local or other authority within, a 
State or Union territory, any requirement as to residence 
within that State or Union territory] prior to such employment 
or appointment.
(4) Nothing in this article shall prevent the State from 
making any provision for the reservation of appointments 
or posts in favour of any backward class of citizens which, 
in the opinion of the State, is not adequately represented 
in the services under the State.
(4-A) Nothing in this article shall prevent the State 
from making any provision for reservation in matters of 
promotion, with consequential seniority, to any class or 
classes of posts in the services under the State in favour 
of the Scheduled Castes and the Scheduled Tribes which, 
in the opinion of the State, are not adequately represented 
in the services under the State.
(4-B) Nothing in this article shall prevent the State from 
considering any unfilled vacancies of a year which are 
reserved for being filled up in that year in accordance 
with any provision for reservation made under clause (4) 
or clause (4-A) as a separate class of vacancies to be 
filled up in any succeeding year or years and such class 
of vacancies shall not be considered together with
the 
vacancies of the year in which they are being filled up 
for determining the ceiling of fifty per cent reservation on 
total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law 
which provides that the incumbent of an office in connection 
with the affairs of any religious or denominational institution 
or any member of the governing body thereof shall be a 
person professing a particular religion or belonging to a 
particular denomination.
(6) Nothing in this article shall prevent the State from 
making any provision for the reservation of appointments 
or posts in favour of any economically weaker sections of 
citizens other than the classes mentioned in clause (4),
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in addition to the existing reservation and subject to a 
maximum of ten per cent of the posts in each category.”
“46. Promotion of educational and economic interests 
of Scheduled Castes, Scheduled Tribes and other 
weaker sections.—The State shall 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.”
“335. Claims of Scheduled Castes and Scheduled 
Tribes to services and posts.—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:
Provided that nothing in this article shall prevent in making 
of any provision in favour of the members of the Scheduled 
Castes and the Scheduled Tribes for relaxation in qualifying 
marks in any examination or lowering the standards of 
evaluation, for reservation in matters of promotion to any 
class or classes of services or posts in connection with 
the affairs of the Union or of a State.”
“338. National Commission for Scheduled Castes.— 
(1) There shall be a Commission for the Scheduled 
Castes to be known as the National Commission for the 
Scheduled Castes.
(2) Subject to the provisions of any law made in this 
behalf by Parliament, the Commission shall consist of a 
Chairperson, Vice-Chairperson and three other Members 
and the conditions of service and tenure of office of the 
Chairperson, Vice-Chairperson and other Members so 
appointed shall be such as the President may by rule 
determine.
(3) The Chairperson, Vice-Chairperson and other Members 
of the Commission shall be appointed by the President by 
warrant under his hand and seal.
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(4) The Commission shall have the power to regulate its 
own procedure.
(5) It shall be duty of the Commission—
(a) to investigate and monitor all matters relating to the 
safeguards provided for the Scheduled Castes under 
this Constitution or under any other law for the time 
being in force or under any order of the Government 
and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect 
to the deprivation of rights and safeguards of the 
Scheduled Castes ;
(c) to participate and advise on the planning process 
of socio-economic development of the Scheduled 
Castes and to evaluate the progress of their 
development under the Union and any State;
(d) to present to the President, annually and at such 
other times as the Commission may deem fit, reports 
upon the working of those safeguards;
(e) to make in such report recommendations as to 
the measures that should be taken by the Union or 
any State for the effective implementation of those 
safeguards and other measures for the protection, 
welfare and socio-economic development of the 
Scheduled Castes; and
(f) to discharge such other functions in relation 
to the protection, welfare and development and 
advancement of the Scheduled Castes  as the 
President may, subject to the provisions of any law 
made by Parliament, by rule specify.
(6) The President shall cause all such reports to be 
laid before each
House of Parliament along with a 
memorandum explaining the action taken or proposed to 
be taken on the recommendations relating to the Union 
and the reasons for the non-acceptance, if any, of any of 
such recommendations.
(7) Where any such report, or any part thereof, relates 
to any matter with which any State Government is
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concerned, a copy of such report shall be forwarded to the 
Governor of the State who shall cause it to be laid before 
the Legislature of the State along with a memorandum 
explaining the action taken or proposed to be taken 
on the recommendations relating to the State and the 
reasons for the non-acceptance, if any, of any of such 
recommendations.
(8) The Commission shall, while investigating any matter 
referred to in sub-clause (a) or inquiring into any complaint 
referred to in sub-clause (b) of clause (5), have all the 
powers of a civil court trying a suit and in particular in 
respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any 
person from any part of India and examining him 
on oath;
(b) requiring the discovery and production of any 
document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof 
from any court or office;
(e) issuing commissions for the examination of 
witnesses and documents;
(f) any other matter which the President may, by 
rule, determine.
(9) The Union and every State Government shall consult 
the Commission on all major policy matters affecting 
Scheduled Castes.
(10) In this article references to the Scheduled Castes shall 
be construed as including references to the Anglo-Indian 
community.”
“366. Definitions.—In this Constitution, unless the context 
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is 
to say—
********
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(24) “Scheduled Castes” means such castes, races or 
tribes or parts of or groups within such castes, races or 
tribes as are deemed under Article 341 to be Scheduled 
Castes for the purposes of this Constitution;
(25) “Scheduled Tribes” means such tribes or tribal 
communities or parts of or groups within such tribes or 
tribal communities as are deemed under Article 342 to be 
Scheduled Tribes for the purposes of this Constitution;”
49.	 It will be relevant to note that in the draft definition of ‘the Scheduled 
Castes’, the word used earlier was “specify”. However, in the final clause 
(24) of Article 366, the word “specify” has been changed to “deemed”.
III.	
JUDICIAL PRECEDENTS
50.	 In the last 74 years, the aforesaid constitutional provisions have 
been considered by this Court on a number of occasions. It will be 
relevant to refer to some of these judgments. 
51.	 It will also be relevant to note that by the First Amendment to the 
Constitution in the year 1951 by which clause (4) was added to Article 
15 was necessitated on account of the judgment of this Court in the 
case of State of Madras vs. Smt. Champakam Dorairajan4 wherein 
Government Order specifying reservation for Harijans was set aside. 
A.	
M.R. Balaji vs. State of Mysore
52.	 In the case of M.R. Balaji and others vs. State of Mysore,5 the 
subject matter of challenge before the Constitution Bench of this 
Court was an order
issued by the State of Mysore under Article 15(4) 
of the Constitution of India. Vide the said order, the State reserved 
68% of the seats in the engineering and medical colleges and other 
technical institutions for the educationally and socially backward 
classes and Scheduled Castes and Scheduled Tribes and only 32% 
seats were available for the merit pool. 
53.	 The Constitution Bench of this Court held that the provisions contained 
in Articles 15(4) and 16(4) are similar provisions. It further held that 
Article 15(4) is an enabling provision and that it does not impose an 
obligation, but merely leaves it to the discretion of the appropriate 
government to take suitable action, if necessary. 
4	
[1951] SCR 525
5	
[1963] Supp. 1 SCR 439 : 1962 SCC OnLine 147 : AIR 1963 SC 649
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54.	 It will be relevant to refer to the following observations of this Court:
“20. Article 15(4) authorises the State to make a special 
provision for the advancement of any socially and 
educationally backward classes of citizens, as distinguished 
from the Scheduled Castes and Scheduled Tribes. No 
doubt, special provision can be made for both categories of 
citizens, but in specifying the categories, the first category 
is distinguished from the second. Sub-clauses (24) and (25) 
of Article 366 define Scheduled Castes and Scheduled 
Tribes respectively, but there is no clause defining socially 
and educationally backward classes of citizens, and so, 
in determining the question as to whether a particular 
provision has been validly made under Article 15(4) or not, 
the first question which falls to be determined is whether 
the State has validly determined who should be included 
in these Backward Classes. It seems fairly clear that the 
backward classes of citizens for whom special provision is 
authorised to be made are, by Article 15(4) itself, treated 
as being similar to the Scheduled Castes and Scheduled 
Tribes. Scheduled Castes and Scheduled Tribes which 
have been defined were known to be backward and the 
Constitution-makers felt no doubt that special provision had 
to be made for their advancement. It was realised that in 
the Indian Society there were other classes of citizens who 
were equally, or may be
somewhat less, backward than 
the Scheduled Castes and Tribes and it was thought that 
some special provision ought to be made even for them. 
Article 34(1) provides for the issue of public notification 
specifying the castes, races or tribes which shall, for the 
purposes of this Constitution, be deemed to be Scheduled 
Castes either in the State or the Union territory as the case 
may be. Similarly Article 342 makes a provision for the 
issue of public notification in respect of Scheduled Tribes. 
Under Article 338(3), it is provided that references to the 
Scheduled Castes and Scheduled Tribes shall be construed 
as including references to such other Backward Classes as 
the President may, on receipt of the report of a commission 
appointed under Article 340(1) by order, specify and also 
to the Anglo-Indian community. It would thus be seen that 
this provision contemplates that some Backward Classes
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
may by the Presidential order be included in Scheduled 
Castes and Tribes. That helps to bring out the point that 
the Backward Classes for whose improvement special 
provision is contemplated by Article 15(4) are in the matter 
of their backwardness comparable to Scheduled Castes 
and Scheduled Tribes.”
55.	 This Court observed that the backward classes of citizens 
for whom special provision is authorized to be made are, by 
Article 15(4) itself, treated as being similar to the Scheduled Castes 
and Scheduled Tribes. It has been observed that the Scheduled 
Castes and Scheduled Tribes which have been defined were known 
to be backward and the Constitution-makers felt no doubt that 
special provision had to be made for their advancement. However, 
it was realized that in the Indian Society there were other classes of 
citizens who were equally, or may be somewhat less backward than 
the Scheduled Castes and Scheduled Tribes, and it was thought that 
some special provision ought to be made even for them. The Court 
observed that the Backward Classes for whose improvement special 
provision is contemplated by Article 15(4) are in the matter of their 
backwardness comparable to Scheduled Castes and Scheduled 
Tribes.
56.	 It will also be apposite to refer to the following observations of this 
Court:
“21. ……The backwardness under Article 15(4) must be 
social and educational. It is not either social or
educational, 
but it is both social and educational; and that takes us to the 
question as to how social and educational backwardness 
has to determined.”
57.	 It is thus clear that the Constitution Bench of this Court observed that 
the backwardness under Article 15(4) must be social and educational. 
It is neither social nor educational, but it has to be both social and 
educational.
58.	 The Court then considered the question as to whether caste can be 
made the sole basis for determining the social backwardness was 
permissible or not. The Court observed that the group of citizens to 
whom Article 15(4) applies are described as “classes of citizens”, not 
as castes of citizens. The Court observed that therefore in dealing 
with the question as to whether any class of citizens is socially
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backward or not, it may not be irrelevant to consider the caste of the 
said group of citizens. It has been observed that though the caste of 
the group of citizens may be relevant, its importance should not be 
exaggerated. The Court further observed that social backwardness 
is, on the ultimate analysis, the result of poverty to a very large 
extent. It observed that the classes of citizens who are deplorably 
poor automatically become socially backward. It observed that they 
do not enjoy a status in society and have, therefore, to be content to 
take a backward seat. The Court therefore held that both caste and 
poverty are relevant in determining the backwardness of citizens.
59.	 The Court further observed that the occupations of citizens may also 
contribute to making classes of citizens socially backward. It has been 
observed that there are some occupations which are treated as inferior 
according to conventional beliefs and classes of citizens who follow 
these occupations are apt to become socially backward. It has been 
observed that the place of habitation also plays a role in determining 
the backwardness of a community of persons. It therefore held that 
the problem of determining who are socially backward classes is very 
complex. It has been held that sociological, social, and economic 
considerations come into play in solving the problem, and evolving 
proper criteria for determining which classes are
socially backward. 
However, it observed, that is the function of the State which purports 
to act under Article 15(4) of the Constitution of India. 
60.	 In the facts of the said case, the Court found that the State had 
applied the sole criteria of caste without regard to the other factors. 
It was therefore held that the criteria of social backwardness of the 
communities to whom the order impugned therein was applied was 
not permissible under Article 15(4) of the Constitution of India.
61.	 Insofar as the educational backwardness of the classes of citizens is 
concerned, the State had applied the formula that all castes whose 
average student population in the last three High School classes 
of all High Schools in the State was less than the State average of 
6.9 per thousand should be regarded as backward communities. 
Insofar as more backward communities are concerned, the criteria 
applied was that if the average of any community was less than 
50% of the State average, it should be regarded as constituting the 
more backward classes. 
62.	 The Court held that the State was not justified in including in the 
list of Backward Classes, castes, or communities whose average of
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
student population per thousand was slightly above, or very near, or 
just below the State average.
B.	
State of Kerala vs. N.M. Thomas
63.	 Coming next to one of the most important judgments dealing with the 
affirmative action which is the 7-Judge Bench judgment of this Court 
in the case of State of Kerala and another vs. N.M. Thomas and 
others.6 In the said case, out of the 7 Learned Judges, 5 Learned 
Judges upheld the provisions made by the Kerala Government for 
providing affirmative action to ameliorate the situation of Scheduled 
Castes and Scheduled Tribes. 
64.	 It will be apposite to refer to the following observation made by 
A.N. Ray, C.J.: 
“21. Articles 14, 15 and 16 form 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 
the objects to be achieved. Under Article 16 there can be 
a reasonable classification of the employees in matters 
relating to employment or appointment.
22. This Court in State of Gujarat v. Shri Ambica Mills Ltd., 
Ahmedabad [(1974) 4 SCC 656 : 1974 SCC (L&S) 381] 
said: [SCC p. 675: SCC (L&S) p. 400, para 53]
“The equal protection of the
laws is a pledge of the 
protection of equal laws. But laws may classify. And 
the very idea of classification is that of inequality. 
In tackling this paradox the Court has neither 
abandoned the demand for equality nor denied the 
legislative right to classify. It has taken a middle 
course. It has resolved the contradictory demands 
of legislative specialization and constitutional 
generality by a doctrine of reasonable classification.  
(See Joseph Tussman and Jacobusten Brook, The 
Equal Protection of the Laws, 37 California Rev. 341.)”
6	
[1976] 1 SCR 906 : (1976) 2 SCC 310
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23. In Ambica Mills case [(1974) 4 SCC 656 : 1974 SCC 
(L&S) 381] this Court explained reasonable classification 
to be one which includes all who are similarly situated and 
none who are not. The question as to who are similarly 
situated has been answered by stating that one must look 
beyond the classification to the purpose of law.
“The purpose of a law may be either the elimination 
of a public mischief or the achievement of some 
positive public good.” [SCC p. 675: SCC (L&S)  
p. 400, para 54]
24. Discrimination is the essence of classification. Equality 
is violated if it rests on unreasonable basis. The concept 
of equality has an inherent limitation arising from the very 
nature of the constitutional guarantee. Those who are 
similarly circumstanced are entitled to an equal treatment. 
Equality is amongst equals. 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.
xxx            xxx             xxx
27. 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 : (1968) 2 LLJ 120]).
28. This equality of opportunity need not be confused 
with absolute equality. Article 16(1) does not prohibit 
the prescription of reasonable rules for selection to any 
employment or appointment to any office. In regard to 
employment, like other terms and conditions associated 
with and incidental to it, the promotion to a selection post 
is also included in the matters relating to employment and 
even in regard to such a promotion to a selection post all 
that Article 16(1) guarantees is equality of opportunity to 
all citizens. Articles 16(1) and (2) give effect to equality
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
before law guaranteed by Article 14 and to the prohibition 
of discrimination guaranteed by Article 15(1). Promotion to 
selection post is covered by Article 16(1) and (2).
29. The power to make reservation, which is conferred 
on the State, under Article 16(4) can be exercised by 
the State in a proper case not only by providing for 
reservation of appointments but also by providing for 
reservation of selection posts. In providing for reservation 
of appointments or posts under Article 16(4) the State 
has to take into consideration the claims of the Backward 
Classes consistently with the maintenance of the efficiency 
of administration. It must not be forgotten that the efficiency 
of administration is of such paramount importance that 
it would be unwise and impermissible to make any 
reservation at the cost of efficiency of administration. 
(General Manager, S. Rly. v. Rangachari [AIR 1962  
SC 36 : (1962) 2 SCR 586] .) The present case is not one 
of reservation of posts by promotion.
30. 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 Roadside Station Masters and 
Guards are recruited separately, trained separately and 
have separate avenues of promotion. The Station Masters 
claimed equality of opportunity for promotion vis-à-vis the 
guards on
the ground that they were entitled to equality of 
opportunity. It was said the concept of equality can have 
no existence except with reference to matters which are 
common as between individuals, between whom equality 
is predicated. The Roadside Station Masters and Guards 
were recruited separately. Therefore, the two form distinct 
and separate classes and there is no scope for predicating 
equality or inequality of opportunity in matters of promotion.
(See All India Station Masters and Assistant Station 
Masters’ Association v. General Manager, Central Railway 
[AIR 1960 SC 384 : (1960) 2 SCR 311].) The present 
case is not to create separate avenues of promotion for 
these persons.”
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65.	 It could thus be seen that in the opinion of Ray, C.J., Articles 14, 
15 and 16 form part of a string of constitutional rights guaranteed 
by it, which supplement each other. His Lordship observed that 
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. In turn, Article 16(1) gives effect to Article 14. 
Both Articles 14 and 16(1) permit reasonable classification having a 
nexus with the objects to be achieved. 
66.	 Referring to the judgment of this Court in the case of State of 
Gujarat  v.  Shri Ambica Mills Ltd.,  Ahmedabad,7 His Lordship 
explained the reasonable classification to be one which includes 
all who are similarly situated and none who are not. He further 
observed that discrimination is the essence of classification, and that 
equality is violated if it rests on an unreasonable basis. He observed 
that those who are similarly circumstanced are entitled to an equal 
treatment and that equality is amongst equals. He observed that the 
classification is, therefore, to be founded on substantial differences 
which distinguish persons grouped together from those left out of 
the groups. He further observed that such differential attributes 
must bear a just and rational relation to the object sought to be 
achieved. He further observed that 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. He observed that Article 16(1) does not bar a 
reasonable classification of employees or reasonable tests for their 
selection. He observed that this equality of opportunity need not be 
confused with absolute equality. It is observed that power to make 
reservation, which is conferred on the State, under Article 16(4) can 
be exercised by the State in a proper case not only by providing for 
reservation of appointments but also by providing for reservation of 
selection posts. His Lordship observed that in providing for reservation 
of appointments or posts under Article 16(4) the State has to take 
into consideration the claims of the Backward Classes consistently 
with the maintenance of the efficiency of administration. 
67.	 His Lordship further observed thus:
“38. The principle of equality is applicable to employment 
at all stages and in all respects, namely, initial recruitment, 
7	
[1974] 3 SCR 760 : (1974) 4 SCC 656.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
promotion, retirement, payment of pension and gratuity. 
With regard to promotion the normal principles are either 
merit-cum-seniority or seniority-cum-merit. Seniority-cum-
merit means that given the minimum necessary merit 
requisite for efficiency of administration, the senior though 
the less meritorious shall have priority. This will not violate 
Articles 14, 16(1) and 16(2). A rule which provides that given 
the necessary requisite merit, a member of the backward 
class shall get priority to ensure adequate representation 
will not similarly violate Article 14 or Article 16(1) and (2). 
The relevant touchstone of validity is to find out whether 
the rule of preference secures adequate representation for 
the unrepresented backward community or goes beyond it.”
68.	 It is observed that the rule which provides that given the necessary 
requisite merit, a member of the backward class shall get priority 
so as to ensure adequate representation and the said rule will not 
violate Article 14 or Article 16(1) and (2). The relevant consideration 
would be to find out whether the rule of preference secures adequate 
representation for the unrepresented backward community or goes 
beyond it. 
69.	 His Lordship further observed thus:
“43. Scheduled Castes and scheduled tribes are not a 
caste within the ordinary meaning of caste. In Bhaiyalal v. 
Harikishan Singh [AIR 1965 SC 1557 : (1965) 2 SCR 877]
this Court held that an enquiry whether the appellant there 
belonged to the Dohar caste which was not recognised as 
a scheduled caste and his declaration that he belonged 
to the Chamar caste which was a scheduled caste could 
not be premitted because of the provisions contained 
in Article 341. No court can come to a finding that any 
caste or any tribe is a scheduled caste or scheduled 
tribe. Scheduled caste is a caste as notified under  
Article 366(25). A notification is issued by the President  
under Article 341 as a result of an elaborate enquiry. The 
object of Article 341 is to provide protection to the members 
of Scheduled Castes having regard to the economic and 
educational backwardness from which they suffer.
44. Our Constitution aims at equality of status and 
opportunity for all citizens including those who are socially,
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economically and educationally backward. The claims 
of members of Backward Classes require adequate 
representation in legislative and executive bodies. If 
members of Scheduled Castes and tribes, who are said by 
this Court to be Backward Classes, can maintain minimum 
necessary requirement of administrative efficiency, not only 
representation but also preference may be given to them to 
enforce equality and to eliminate inequality. Article 15(4) and 
16(4) bring out the position of Backward Classes to merit 
equality. Special provisions are made for the advancement 
of Backward Classes and reservations of appointments 
and posts for them to secure adequate representation. 
These provisions will bring out the content of equality 
guaranteed by Articles 14, 15(1) and 16(1). The basic 
concept equality is equality of opportunity for appointment. 
Preferential treatment for members of Backward Classes 
with due regard to administrative efficiency alone can 
mean equality of opportunity for all citizens. Equality under 
Article 16 could not have a different content from equality 
under Article 14. Equality of opportunity for unequals 
can only mean aggravation of inequality. Equality of 
opportunity admits discrimination with reason and prohibits 
discrimination without reason. Discrimination with reasons 
means rational classification for differential treatment having 
nexus to the constitutionally permissible object.
Preferential 
representation for the Backward Classes in services with due 
regard to administrative efficiency is permissible object and 
Backward Classes are a rational classification recognised 
by our Constitution. Therefore, differential treatment in 
standards of selection are within the concept of equality.”
70.	 His Lordship clearly observed that Scheduled Castes and Scheduled 
Tribes are not a caste within the ordinary meaning of caste. He 
observed that no court can come to a finding that any caste or any 
tribe is a scheduled caste or scheduled tribe. It is observed that 
the object of Article 341 is to provide protection to the members of 
Scheduled Castes having regard to the economic and educational 
backwardness from which they suffer.
71.	 His Lordship (Ray, C.J.) further observed that our Constitution 
aims at equality of status and opportunity for all citizens including
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those who are socially, economically and educationally backward. 
It has been held that if members of Scheduled Castes and tribes, 
who are said by this Court to be Backward Classes, can maintain 
minimum necessary requirement of administrative efficiency, not 
only representation but also preference may be given to them to 
enforce equality and to eliminate inequality. It has been observed 
that special provisions have been made for the advancement of 
Backward Classes and reservations of appointments and posts for 
them to secure adequate representation. It has been emphasized 
that only such special provisions will bring out the content of equality 
guaranteed by Articles 14, 15(1) and 16(1). His Lordship goes on to 
say that preferential treatment for members of Backward Classes 
with due regard to administrative efficiency alone can mean equality 
of opportunity for all citizens. It has been observed that equality of 
opportunity for unequals can only mean aggravation of inequality 
and that equality of opportunity admits discrimination with reason 
and prohibits discrimination without reason. His Lordship held 
that discrimination with reasons means rational classification for 
differential treatment having nexus to the constitutionally permissible 
object. It has been held that Preferential representation for the 
Backward Classes in services with due regard to administrative 
efficiency is
permissible object and Backward Classes are a rational 
classification recognized by the Constitution. It has been held that 
the differential treatment in standards of selection is within the 
concept of equality.
72.	 I now refer to the following observations of K.K. Mathew, J.:
“53. Formal equality is achieved by treating all persons 
equally: “Each man to count for one and no one to count 
for more than one.” But men are not equal in all respects. 
The claim for equality is in fact a protest against unjust, 
undeserved and unjustified inequalities. It is a symbol of 
man’s revolt against chance, fortuitous disparity, unjust 
power and crystallised privileges. Although the decision 
to grant equality is motivated prima facie by the alleged 
reason that all men are equal yet, as soon as we clear 
up the confusion between equality in the moral sense and 
equality in the physical sense, we realise that the opposite 
is the truth; for, we think that it is just to promote certain 
equalities precisely to compensate for the fact that men
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are actually born different. We, therefore, have to resort 
to some sort of proportionate equality in many spheres 
to achieve justice.
54. The principle of proportional equality is attained only 
when equals are treated equally and unequals unequally. 
This would raise the baffling question: Equals and unequals 
in what? The principle of proportional equality therefore 
involves an appeal to some criterion in terms of which 
differential treatment is justified. If there is no significant 
respect in which persons concerned are distinguishable, 
differential treatment would be unjustified. But what is to 
be allowed as a significant difference such as would justify 
differential treatment?
55. In distributing the office of a State, not any sort of 
personal equality is relevant; for, unless we employ criteria 
appropriate to the sphere in question, it would turn out that 
a man’s height or complexion could determine his eligibility 
or suitability for a post. As Aristotle said, claims to political 
office cannot be based on prowess in athletic contests. 
Candidates for office should possess those qualities that go 
to make up an effective use of the office. But this principle 
also does not give any satisfactory answer to the question 
when differential treatment can be meted out. As I said, 
the principle that if two persons are being treated or are 
to be treated differently there should be some relevant 
difference
between them is, no doubt, unexceptionable. 
Otherwise, in the absence of some differentiating feature 
what is sauce for the goose is sauce for the gander. 
The real difficulty arises in finding out what constitutes a 
relevant difference.
56. If we are all to be treated in the same manner, this 
must carry with it the important requirement that none of 
us should be better or worse in upbriging, education, than 
anyone else which is an unattainable ideal for human 
beings of anything like the sort we now see. Some people 
maintain that the concept of equality of opportunity is an 
unsatisfactory concept. For, a complete formulation of it 
renders it incompatible with any form of human society. 
Take for instance, the case of equality of opportunity for
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education. This equality cannot start in schools and hence 
requires uniform treatment in families which is an evident 
impossibility. To remedy this, all children might be brought 
up in State nurseries, but, to achieve the purpose, the 
nurseries would have to be run on vigorously uniform 
lines. Could we guarantee equality of opportunity to the 
young even in those circumstances? The idea is well 
expressed by Laski:
“Equality means, in the second place, that adequate 
opportunities are laid open to all. By adequate 
opportunities we cannot imply equal opportunities in 
a sense that implies identity of original chance. The 
native endowments of men are by no means equal. 
Children who are brought up in an atmosphere where 
things of the mind are accounted highly are bound to 
start the race of life with advantages no legislation 
can secure. Parental character will inevitably affect 
profoundly the equality of the children whom it 
touches. So long, therefore, as the family endures — 
and there seems little reason to anticipate or to desire 
its disappearance — the varying environments it 
will create make the notion of equal opportunities 
a fantastic one. [“Liberty and Equality” in Special 
Problems and Public Policy : Inequality and Justice, 
Ed. Lee Rainwater, pp. 26 to 31]
57. Though complete identity of equality of opportunity 
is impossible in the world, measures compensatory in 
character
and which are calculated to mitigate surmountable 
obstacles to ensure equality of opportunity can never incur 
the wrath of Article 16(1).”
73.	 Mathew, J. observed that formal equality is achieved by treating all 
persons equally. Formally, it requires that all men have to be treated 
as the same. He observed that men are not equal in all respects. 
The claim for equality is in fact a protest against unjust, undeserved 
and unjustified inequalities. It is a symbol of man’s revolt against 
chance, fortuitous disparity, unjust power and crystallized privileges. 
He observed that as soon as we clear up the confusion between 
equality in the moral sense and equality in the physical sense, it is 
just to promote certain equalities precisely to compensate for the
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fact that men are actually born different. He explains the theory of 
proportional equality and observed that the principle of proportional 
equality can be attained only when equals are treated equally and 
unequals unequally. He observed that if there is no significant 
respect in which persons concerned are distinguishable, differential 
treatment would be unjustified. But if there is significant respect in 
which persons concerned are distinguishable, the same would justify 
differential treatment. His Lordship observed that if two people are 
being treated or are to be treated differently there should be some 
relevant difference between them. Otherwise, in the absence of 
some differentiating feature what is sauce for the goose is sauce 
for the gander. He observed that the real difficulty arises in finding 
out what constitutes a relevant difference.
74.	 His Lordship observed that if we all were to be treated in the same 
manner, the same would carry with it the requirement that none of us 
should be better or worse in upbringing and education than anyone else. 
He observed that the equality of opportunity for education cannot start 
in schools and hence requires uniform treatment in families which is an 
evident impossibility. His Lordship referred to Laski, who opined that 
parental character will inevitably affect the equality of the children whom 
it touches. His Lordship then observed that though complete
identity 
of equality of opportunity is impossible in the world, compensatory 
measures in character calculated to mitigate surmountable obstacles 
to ensure equality of opportunity would not violate Article 16(1). 
75.	 It will also be apposite to refer to the following observations of 
Mathew, J. in N.M. Thomas (supra):
“64.  It would follow that if we want to give equality of 
opportunity for employment to the members of the 
Scheduled Castes and scheduled tribes, we will have 
to take note of their social, educational and economic 
environment. Not only is the directive principle embodied 
in Article 46 binding on the law-maker as ordinarily 
understood but it should equally inform and illuminate the 
approach of the court when it makes a decision as the 
court also is ‘state’ within the meaning of Article 12 and 
makes law even though “interstitially from the molar to the 
molecular”. I have explained at some length the reason 
why court is “State” under Article 12 in my judgment in His 
Holiness Kesavananda Bharati Sripadagalavaru v. State 
of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] .
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65.  Equality of opportunity is not simply a matter of 
legal equality. Its existence depends, not merely on the 
absence of disabilities, but on the presence of abilities. 
It obtains insofar as, and only insofar as, each member 
of a community, whatever his birth or occupation or 
social position, possesses in fact, and not merely in 
form, equal chances of using to the full his natural 
endowments of physique, of character, and of intelligence.  
[See R.H. Tawney, “Equality”, (1965) pp. 103-04]
66. The guarantee of equality before the law or the equal 
opportunity in matters of employment is a guarantee of 
something more than what is required by formal equality. It 
implies differential treatment of persons who are unequal. 
Egalitarian principle has therefore enhanced the growing 
belief that Government has an affirmative duty to eliminate 
inequalities and to provide opportunities for the exercise of 
human rights and claims Fundamental rights as enacted 
in Part III of the Constitution are, by and large, essentially 
negative in character. They mark off a world in which the 
Government should have no jurisdiction. In this realm, it 
was assumed that a citizen has no claim upon Government 
except to be left alone. But the language of Article 16(1) 
is in marked contrast with that of Article 14. Whereas 
the accent in Article 14 is on the injunction that the State 
shall not deny to any person
equality before the law or 
the equal protection of the laws that is, on the negative 
character of the duty of the State, the emphasis in Article 
16(1) is on the mandatory aspect, namely, that there 
shall be equality of opportunity for all citizens in matters 
relating to employment or appointment to any office under 
the State implying thereby that affirmative action by the 
Government would be consistent with the article if it is 
calculated to achieve it. If we are to achieve equality, we 
can never afford to relax:
“While inequality is easy since it demands no more 
than to float with the current, equality is difficult for it 
involves swimming against it. [R.H. Tawney, “Equality”, 
(1952), p. 47] ”
67. Today, the political theory which acknowledges the 
obligation of Government under Part IV of the Constitution
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to provide jobs, medical care, old age pension, etc., extends 
to human rights and imposes an affirmative obligation to 
promote equality and liberty. The force of the idea of a State 
with obligation to help the weaker sections of its members 
seems to have increasing influence in constitutional law. 
The idea finds expression in a number of cases in America 
involving social discrimination and also in the decisions 
requiring the State to offset the effects of poverty by 
providing counsel, transcript of appeal, expert witnesses, 
etc. Today, the sense that Government has affirmative 
responsibility for elimination of inequalities, social, economic 
or otherwise, is one of the dominant forces in constitutional 
law. While special concessions for the underprivileged have 
been easily permitted, they have not traditionally been 
required. Decisions in the areas of criminal procedure, 
voting rights and education in America suggest that the 
traditional approach may not be completely adequate. In 
these areas, the inquiry whether equality has been achieved 
no longer ends with numerical equality; rather the equality 
clause has been held to require resort to a standard of 
proportional equality which requires the State, in framing 
legislation, to take into account the private inequalities 
of wealth, of education and other circumstances. [See 
“Developments — Equal Protection”, 82 Harv LR 1165]
68. The idea of compensatory
State action to make people 
who are really unequal in their wealth, education or social 
environment, equal, in specified areas, was developed 
by the Supreme Court of the United States. Rousseau 
has said:
“It is precisely because the force of circumstances 
tends to destroy equality that force of legislation must 
always tend to maintain it. [Contract Social ii, 11]””
76.	 His Lordship observed that if we want to give equality of opportunity for 
employment to the members of the Scheduled Castes and Scheduled 
Tribes, we will have to take note of their social, educational, and 
economic environment. His Lordship observed that the directive 
principle embodied in Article 46 is not only binding on the lawmaker, 
but it should equally inform and illuminate the approach of the court 
when it makes a decision. Referring to the exposition in the case of 
His Holiness Kesavananda Bharati Sripadagalavaru vs. State of
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Kerala,8 His Lordship states that the Court is also a ‘state’ when it 
makes a decision within the meaning of Article 12.
77.	 His Lordship observed that ‘equality of opportunity’ is not simply a 
matter of legal equality and that its existence depends, not merely 
on the absence of disabilities, but on the presence of abilities. It has 
been observed that the guarantee of equality is something more than 
what is required by ‘formal equality’. It implies differential treatment 
of persons who are unequal. It has been observed that egalitarian 
principle requires that the Government has an affirmative duty to 
eliminate inequalities and to provide opportunities for the exercise of 
human rights and claim Fundamental rights as enacted in Part III of 
the Constitution are, by and large, essentially negative in character. 
His Lordship observed that the emphasis in Article 16(1) is on the 
mandatory aspect that there shall be equality of opportunity for all 
citizens in matters relating to employment or appointment to any 
office under the State. It therefore implies that affirmative action by 
the Government would be consistent with the article if it is calculated 
to achieve it. 
78.	 Referring to Article 14 of the Constitution, His Lordship observed 
that the State is under obligation to help the members of the weaker 
sections. His Lordship observed that under the constitutional law, 
the Government
has affirmative responsibility for elimination of 
inequalities, social, economic or otherwise. Referring to the concept 
of proportional equality, His Lordship states that the State is required 
to frame legislation, to consider the private inequalities of wealth, of 
education and other circumstances.
79.	 Referring to the judgments of the Supreme Court of the United States, 
His Lordship opined that the idea of compensatory State action was 
to bring about the equality for the people who are really unequal in 
their wealth, education or social environment.
80.	 After referring to certain judgments of the United States Supreme 
Court, Mathew, J. observed thus:
“73. There is no reason why this Court should not also 
require the State to adopt a standard of proportional 
equality which takes account of the differing conditions 
and circumstances of a class of citizens whenever those 
8	
[1973] Supp. SCR 1 : (1973) 4 SCC 225
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conditions and circumstances stand in the way of their 
equal access to the enjoyment of basic rights or claims.
74. The concept of equality of opportunity in matters of 
employment is wide enough to include within it compensatory 
measures to put the members of the Scheduled Castes 
and scheduled tribes on par with the members of other 
communities which would enable them to get their share of 
representation in public service. How can any member of the 
so-called forward communities complain of a compensatory 
measure made by the Government to ensure the members 
of Scheduled Castes and scheduled tribes their due share 
of representation in public services?
75. It is said that Article 16(4) specifically provides for 
reservation of posts in favour of Backward Classes which 
according to the decision of this Court would include the 
power of the State to make reservation at the stage of 
promotion also and therefore Article 16(1) cannot include 
within its compass the power to give any adventitious 
aids by legislation or otherwise to the Backward Classes 
which would derogate from strict numerical equality. 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 in the matter of employment, I see no reason 
why that is not permissible under Article 16(1) as that alone 
might put them