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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1579
The State of Punjab & Ors. v. Davinder Singh & Ors. 
Chinnappa Reddy, J. in K.C. Vasanth Kumar regarding applicability 
of creamy layer principle. It is worthwhile to note that the 7-Judge 
Bench in N.M. Thomas was considering the question about 
affirmative action in case of Scheduled Castes and Scheduled 
Tribes.
285.	In N.M. Thomas, Krishna Iyer, J., in more than one place, had 
observed that the State is entitled to take steps for weeding out the 
socially, economically and educationally advanced sections of the 
Scheduled Castes and Scheduled Tribes from the applicability of 
reservation. 
286.	Krishna Iyer, J. has again reiterated this position in paragraphs 
94 and 98 in Akhil Bharatiya Soshit Karamchari Sangh.
287.	When the 9-Judge Bench in Indra Sawhney held that applicability 
of such a test insofar as Other Backward Classes are concerned 
would advance equality as enshrined in the Constitution, then why 
such a test should not also be made applicable to the Scheduled 
Castes and Scheduled Tribes. 
288.	As observed hereinabove, there are stark ground realities, and we 
cannot be ignorant of them. Nearly 75 years have elapsed from 
the day on which the Constitution was brought into effect. Special 
provisions have been made for the advancement of the Scheduled 
Castes and Scheduled Tribes and backward class of citizens. By 
judicial interpretation, the equality enshrined in the trinity of Articles 14 
to 16 of the Constitution has been
considered to be equal treatment 
among equals and unequal treatment among unequals. The question 
that will have to be posed is, whether equal treatment to unequals in 
the category of Scheduled Castes would advance the constitutional 
objective of equality or would thwart it? Can a child of IAS/IPS or Civil 
Service Officers be equated with a child of a disadvantaged member 
belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla 
Parishad school in a village? 
289.	The education facilities and the other facilities that would be available 
to a child of a parent of the first category would be much higher, 
maybe the facilities for additional coaching would also be available; 
the atmosphere in the house will be far superior and conducive for 
educational upliftment.
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290.	Per contra, the child of parent of the second category would be 
having only the bare minimum education; the facilities of coaching, 
etc., would be totally unavailable to him. He will be living in the 
company of his parents who do not have education and have not 
even been in a position to guide such a child. 
291.	As observed by Chinnappa Reddy, J., in K.C. Vasanth Kumar, 
a child studying in the St. Paul’s High School and St. Stephen’s 
College cannot be equated with a child studying in a rural school. He 
observed that if a child of the first category secures 90% marks and 
the child of the second category secures 50% of the marks, would 
treating both by the same standard achieve real justice. 
292.	It is also commonly known that disparities and social discrimination, 
which is highly prevalent in the rural areas, start diminishing when 
one travels to the urban and metropolitan areas. I have no hesitation 
to hold that putting a child studying in St. Paul’s High School and 
St. Stephen’s College and a child studying in a small village in the 
backward and remote area of the country in the same bracket would 
obliviate the equality principle enshrined in the Constitution. 
293.	I may note that some of the officers from the Scheduled Castes 
and Scheduled Tribes categories, who after receiving the benefit of 
reservation under the Constitution have reached high positions, are 
doing their bit to pay back to
society. They are providing coaching 
and other facilities to the less advantaged so that they can compete 
and come up in their life. However, putting the children of the parents 
from the Scheduled Castes and Scheduled Tribes who on account 
of benefit of reservation have reached a high position and ceased 
to be socially, economically and educationally backward and the 
children of parents doing manual work in the villages in the same 
category would defeat the constitutional mandate. 
294.	However, I may observe that taking into consideration that the 
Constitution itself recognizes the Scheduled Castes and Scheduled 
Tribes to be the most backward section of the society, the parameters 
for exclusion from affirmative action of the person belonging to 
this category may not be the same that is applicable to the other 
classes. If a person from such a category, by bagging the benefit of 
reservation achieved a position of a peon or maybe a sweeper, he
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
would continue to belong to a socially, economically and educationally 
backward class. At the same time, the people from this category, who 
after having availed the benefits of reservation have reached the high 
echelons in life cannot be considered to be socially, economically 
and educationally backward so as to continue availing the benefit 
of affirmative action. They have already reached a stage where on 
their own accord they should walk out of the special provisions and 
give way to the deserving and needy. I may gainfully refer to the 
observations of Dr. B.R. Ambedkar as under:
“History shows that where ethics and economics come 
in conflict, victory is always with economics. Vested 
interests have never been known to have willingly divested 
themselves unless there was sufficient force to compel 
them.”28
295.	I am therefore of the view that the State must evolve a policy for 
identifying the creamy layer even from the Scheduled Castes and 
Scheduled Tribes so as exclude them from the benefit of affirmative 
action. In my view, only this and this alone can achieve the real 
equality as enshrined under the Constitution.
VII.	 CONCLUSION
296.	I, therefore, hold:
(i)	
that E.V. Chinnaiah, which held that sub-classification amongst 
the Scheduled Castes for the purpose of giving more beneficial 
treatment to a group in the larger group of the Scheduled Castes 
is not permissible, does not lay
down a good law;
(ii)	
that sub-classification amongst the Scheduled Castes for giving 
more beneficial treatment is permissible in law;
(iii)	 that for doing so, the State will have to justify that the group 
for which more beneficial treatment is provided is inadequately 
represented as compared to the other castes in the said List;
(iv)	 that while doing so, the State will have to justify the same on 
the basis of empirical data that a sub-class in whose favour 
28	
What Gandhi and Congress have done to Untouchables, Chap. VII.
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such more beneficial treatment is provided is not adequately 
represented;
(v)	
that, however, while providing for sub-classification, the State 
would not be entitled to reserve 100% seats available for 
Scheduled Castes in favour of a sub-class to the exclusion of 
other castes in the List;
(vi)	 that such a sub-classification would be permissible only if there 
is a reservation for a sub-class as well as the larger class;
(vii)	 that the finding of M. Nagaraj, Jarnail Singh and Davinder 
Singh to the effect that creamy layer principle is also applicable 
to Scheduled Castes and Scheduled Tribes lays down the 
correct position of law; 
(viii)	 that the criteria for exclusion of the creamy layer from the 
Scheduled Castes and Scheduled Tribes for the purpose of 
affirmative action could be different from the criteria as applicable 
to the Other Backward Classes.
297.	Before I part with the judgment, I place on record my deep appreciation 
for the valuable assistance rendered by learned counsel appearing 
for the parties.
Vikram Nath, J.
1.	
I am generally in agreement with the reasons and conclusions 
arrived at in the opinions of Hon’ble the Chief Justice and Brother 
Justice Gavai in particular that the holding in E.V.Chinnaih, that 
sub-classification within Scheduled Castes was impermissible, 
does not lay down good law and stands over-ruled. Further, any 
exercise involving sub-classification by the State must be
supported 
by empirical data. 
2.	
I am also in agreement with the opinion of Brother Justice Gavai 
that ‘creamy layer’ principle is also applicable to Scheduled Castes 
and Scheduled Tribes, and that the criteria for exclusion of creamy 
layer for the purpose of affirmative action could be different from the 
criteria as applicable to the Other Backward Classes.
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1583
The State of Punjab & Ors. v. Davinder Singh & Ors. 
Bela M. Trivedi, J.
1.	
Though unanimity and consensus in the opinions expressed by the 
larger Benches on the Constitutional matters are desirable for the 
sake of certainty and strength of the law laid down, I for one, believe 
that the “dissent” for well-chosen reasons would be equally important 
for an effective adjudication in a democratic functioning of judiciary, 
which would have a potential to develop the law in future.
2.	
Justice William O. Douglas of the US Supreme Court,1 a great dissenter 
who had written as many as 486 dissenting opinions, had stated:
“The right to dissent is the only thing that makes life 
tolerable for a Judge of an Appellate Court…………. It is 
the right of dissent, not the right or duty to conform, which 
gives dignity, worth, and individuality to man”.
3.	
Justice Oliver Wendell Holmes, another great dissenter, in his first 
dissent in the Supreme Court in Northern Securities Company Vs. 
The United States (1903) 2 had stated:
“I am unable to agree with the judgment of the majority of 
the Court, and although I think it useless and undesirable, 
as a rule, to express dissent, I feel bound to do so in this 
case and to give my reasons for it………”
4.	
With somewhat similar feelings, and with due respect, I beg to differ 
from the erudite expression of opinions expressed by the Learned 
Chief Justice and my esteemed Brothers Justice B.R. Gavai and 
Justice Pankaj
Mithal, and pen down my own opinion with reasons 
for my dissent. 
5.	
For the sake of brevity and avoid repetition, the facts and the 
submissions made by the learned advocates for the parties as 
narrated in the opinion expressed by the learned Chief Justice, are 
not reiterated. At the outset, it may be noted that neither the Referral 
Order made in the State of Punjab and Others vs. Davinder Singh 
and Others,3 contains a formulation of precise questions nor the 
Order dated 12.10.2023 made in the Reference case sets out specific 
1	
Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law P.283
2	
193 U.S. 197 (1903)
3	
(2020) 8 SCC 65
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questions for consideration by this Bench. Hence, having regard to 
the opinions expressed in Davinder Singh and in E.V. Chinnaiah 
vs. State of Andhra Pradesh and Others,4 and having regard to 
the submissions - oral and written - made by the learned advocates 
for the parties, following substantial questions of law are formulated 
for consideration.
(I)	
Whether the law laid down by the Five-Judge Bench in 
E.V. Chinnaiah could have been doubted and referred to the 
larger Bench by the Bench of three judges, without recording 
any cogent reasons for their disagreement with the said decision 
in E.V. Chinnaiah, more particularly when the said decision 
held the field for a long period of fifteen years?
(II)	 Whether the States should be permitted to tinker with or vary 
the Presidential List specifying the “Scheduled Castes” as 
notified under Clause (1) of Article 341, by sub-classifying or 
sub-dividing or re-grouping the castes conglomerated in the said 
list, under the guise of providing reservation for the weaker of 
the weakest, and thereby commit the breach of the mandate 
contained in Clause (2) of Article 341?
(III)	 Whether the decision in E.V. Chinnaiah is required to be revisited 
in view of certain observations made by the Nine-Judge Bench 
in Indra Sawhney Vs. Union of India and Others5 concerning 
the Other Backward Class?
6.	
Before embarking on the issues involved, let us go through the 
trajectory of the
Reference made by the Five-Judge Bench in the 
State of Punjab and Others vs. Davinder Singh and Others6 to 
this Bench. 
TRAJECTORY OF THE REFERENCE TO SEVEN JUDGES
7.	
The State of Andhra Pradesh passed an enactment, namely the Andhra 
Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 
on 02.05.2000 dividing 57 castes enumerated in the Presidential List 
prepared under Article 341(1) of the Constitution, into 4 groups based 
on inter-state backwardness, and fixed separate quotas in reservation 
4	
(2005) 1 SCC 394
5	
(1992) Supp. 3 SCC 217
6	
[2020] 10 SCR 857 : (2020) 8 SCC 65
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
for each of these groups. The validity of the said Act of 2000 came to 
be challenged in the Writ Petitions filed in the High Court of Andhra 
Pradesh at Hyderabad. The said Writ Petitions came to be dismissed 
by a Five-Judge Bench by a majority of 4:1. The High Court having 
certified the case as being fit for appeal to the Supreme Court, the 
Appeals were filed before this Court. The same having been referred 
to the Constitution Bench of Five-Judges. The Constitution Bench 
after considering the various issues allowed the said Appeals being 
Civil Appeal No.6758/2000 and Others (E.V. Chinnaiah vs. State of 
Andhra Pradesh and Others)* declaring the impugned Act as ultra 
vires the Constitution. The Constitution Bench while considering the 
said Reference, had framed following three questions: -
(i)	
Whether the impugned Act is violative of Article 341(2) of the 
Constitution of India?
(ii)	 Whether the impugned enactment is constitutionally invalid for 
lack of legislative competence?
(iii)	 Whether the impugned enactment creates sub-classification 
or micro-classification of Scheduled Castes so as to violate 
Article 14 of the Constitution of India?
8.	
Justice Santosh Hegde (for himself and Justice S.N. Variava and 
Justice B.P. Singh), and Justice S.B. Sinha and Justice H.K. Sema 
concurring but by separate judgments, allowed the said Appeals by 
answering the above questions as under: -
(i)
From the scheme of the Constitution, Article 341 and from the 
opinions in case of State of Kerala & Anr. vs. N.M. Thomas 
& Ors.,7 it was clear that the castes once included in the 
Presidential List, form a class by themselves. If they are one 
class under the Constitution, any division of these classes of 
persons based on any consideration would amount to tinkering 
with the Presidential List. (Paragraph 26)
(ii)	 It is well settled principle in law that reservation to a backward 
class is not a constitutional mandate. It is the prerogative of 
the State concerned if it so desires, with an object of providing 
opportunity of advancement in the society to certain backward 
*	
(2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
7	
[1976] 1 SCR 906 : (1976) 2 SCC 310
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classes which include Scheduled Castes, to reserve certain 
seats in educational institutions under Article 15(4) and in 
public services of the State under Article 16(4). That part of its 
constitutional obligation having been fulfilled by the State, it was 
not open to the State to sub-classify a class already recognized 
by the Constitution and allot a portion of the already reserved 
quota amongst the State created sub-class within the list of 
Scheduled Castes. (Paragraph 31)
(iii)	 The primary object of the impugned enactment was to create 
groups of sub-castes in the list of Scheduled Castes applicable 
to the State and, apportionment of the reservation was only 
secondary and consequential. Whatever may be the object of 
such sub-classification and apportionment of the reservation, 
the State cannot claim legislative power to make a law dividing 
the Scheduled Castes List of the State by pressing its legislative 
competence to Entry 41 of List II or Entry 25 of List III. In pith 
and substance, the enactment was not a law governing the field 
of education or the field of State Public Services. (Paragraph 31)
(iv)	 The conglomeration of castes given in the Presidential Order, 
should be considered as representing a class as a whole. 
The very fact that a legal fiction has been created is itself 
suggestive of the fact that the legislature of a State cannot 
take any action which would be contrary to or inconsistent
therewith. The very idea of placing different castes or tribes or 
group or part thereof in a State as a conglomeration by way of 
a deeming definition clearly suggests that they are not to be 
sub-divided or sub-classified further. If a class within a class of 
members of the Scheduled Caste is created, the same would 
amount to tinkering with the list. Such sub-classification would 
be violative of Article 14 of the Constitution. If the benefits of 
reservation are not percolating to them equitably, measures 
should be taken to see that they are given such adequate 
or additional training so as to enable them to compete with 
the others, but the same could not mean that in the process 
of rationalising the reservation to the Scheduled Castes, the 
constitutional mandate of Articles 14, 15 and 16 could be 
violated. (Paragraph 41)
(v)	 The Court therefore opined that the impugned legislation 
apart from being beyond the legislative competence of the
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
*	
(1992) Supp. 3 SCC 217 [Ed note: This * mark refers to footnote 5]
*	
(2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
State was also violative of Article 14 of the Constitution and 
hence was liable to be declared as ultra-vires the Constitution. 
The impugned Act therefore was declared as ultra-vires the 
Constitution. (Paragraph 44) 
9.	
Justice H.K. Sema in his concurring opinion had observed in 
Paragraph 48 thereof* that in Indra Sawhney vs. Union of India 
and Others,* the discussion of creamy layer was confined to 
Other Backward Classes only, and had no relevance in the case 
of Scheduled Castes and Scheduled Tribes. Justice S.B. Sinha 
also in his concurring opinion referred to certain observations 
made in Indra Sawhney and observed in Paragraph 38 that the 
principle laid down in Indra Sawhney for sub-classification of Other 
Backward Classes cannot be applied as a precedent law for sub-
classification or sub grouping Scheduled Castes in the Presidential 
List, because that very judgment itself has specifically held that sub-
division of Other Backward Classes is not applicable to Scheduled 
Castes and Scheduled Tribes. The Constitution itself has kept the 
Scheduled Castes and Scheduled Tribes List out of interference by 
the State Governments. In Paragraph 93 thereof,* it has been held 
that “Scheduled Castes”, is not a caste in terms of its definition as 
contained in
Article 366 (24) of the Constitution. They are brought 
within the purview of the said category by reason of their abysmal 
backwardness. Scheduled Caste consists of not only the people 
who belong to some backward caste but also race or tribe or part 
of groups within the castes, races, or tribes. They are not merely 
backward but the backward most. A person even does not cease 
to be a Scheduled Caste automatically even on his conversion to 
another religion. It was further observed that the two groups that is 
socially and educationally backward classes and Scheduled Castes 
were differentiated for the purpose of Clause (4) of Article 15 of the 
Constitution as therein Scheduled Castes had been recognized, 
in the nature of things, to be backward but it is also recognized 
that besides them, there may be other groups of persons who are 
backward and deserve preferential treatment.
10.	 Again, after referring to the observations made in Indra Sawhney 
regarding the “means-test and creamy layer test,” it was observed by
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Justice Sinha in Paragraph 96 thereof that whenever such a situation 
arises in respect of Scheduled Castes, it will be Parliament alone to 
take the necessary legislative steps in terms of Clause (2) of Article 
341 of the Constitution, and the States do not have the legislative 
competence therefor.
11.	 The aforesaid judgment in E.V. Chinnaiah* held the field for about 
15 years till the Three-Judge Bench of this Court in State of Punjab 
and Others vs. Davinder Singh and Others* referred the matter to 
a larger Bench for consideration, opining that the judgment of Five-
Judge Bench in E.V. Chinnaiah was required to be revisited in the 
light of Article 338 of the Constitution of India and exposition of law 
in Indra Sawhney. The Three-Judge Bench passed the following 
Order on 20th August, 2014.*
“ORDER
1. The learned counsel for the respondents heavily relies 
upon the Constitution Bench decision of this Court in  
E.V. Chinnaiah v. State of A.P. [E.V. Chinnaiah v. State 
of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] 
On the other hand, the learned Additional Solicitor 
General for the appellants, submits that E.V. Chinnaiah  
[E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 
2 SCC (L&S) 329] has no application on the controversy 
in hand. Moreover, he submits that E.V. Chinnaiah  
[E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 
2 SCC (L&S) 329] is not in accord with the 9-Judge Bench
decision of this Court in Indra Sawhney v. Union of India 
[Indra Sawhney v. Union of India, 1992 Supp (3) SCC 
217 : 1992 SCC (L&S) Supp 1] .
2. Having heard the learned Additional Solicitor General 
and the learned counsel for the parties, we are of the 
view that E.V Chinnaiah [E.V. Chinnaiah v. State of A.P., 
(2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] needs to 
be revisited in the light of Article 338 of the Constitution 
of India and, inter alia, exposition of law in Indra Sawhey 
[Indra Sawhney v. Union of India, 1992 Supp (3) SCC 
217 : 1992 SCC (L&S) Supp 1] . Moreover, the matter 
*	
(2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
*	
[2020] 10 SCR 857 : (2020) 8 SCC 65 [Ed note: This * mark refers to footnote 6]
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1589
The State of Punjab & Ors. v. Davinder Singh & Ors. 
also involves interpretation and interplay between Article 
16(1), Article 16(4), Article 338 and Article 341 of the 
Constitution of India as well.
3. In this view of the matter, we refer the matter for 
consideration of the above aspects by the larger Bench. 
Let the matter be placed before the Chief Justice on 
administrative side for appropriate order.”
12.	 In the said case of Davinder Singh and Others, the Writ Petitions 
were filed in the High Court of Punjab and Haryana at Chandigarh 
for declaring Section 4(5) of the Punjab Scheduled Castes and 
Backward Classes (Reservation in Services) Act 2006, which required 
50% of the vacancies of the quota reserved for Scheduled Castes 
in direct recruitment, to be offered to Valmikis and Mazhbi Sikhs, if 
available as a first preference from amongst the Scheduled Castes, 
as unconstitutional. The Division Bench of the High Court placing 
reliance on the decision in E.V. Chinnaiah, vide the judgment dated 
29.03.2010 in CWP No. 18290 of 2009, declared the said provision 
contained in Section 4(5) of the Act 2006 as unconstitutional. The 
said Judgment came up for consideration before the Three-Judge 
Bench of this Court. On the Reference made by the Three-Judge 
Bench to the larger Bench, the Five-Judge Bench of this Court in 
the State of Punjab and Others vs. Davinder Singh and Others* 
framed the following issues. 
(i)	
Whether the provisions
contained under Section 4(5) of the 
Punjab Scheduled Castes and Backward Classes (Reservation 
in Services Act, 2006) are constitutionally valid?
(ii)	 Whether the State had the legislative competence to enact the 
provisions contained under Section 4(5) of the Act.
(iii)	 Whether the decision in E.V. Chinnaiah vs. State of Andhra 
Pradesh and Others is required to be revisited.
13.	 The Five-Judge Bench however, after extensively referring 
various paragraphs of the decision in Indra Sawhney opined that 
E.V. Chinnaiah is required to be revisited by a larger bench. It was 
observed by the Five-Judge Bench therein* that: -
*	
[2020] 10 SCR 857 : (2020) 8 SCC 1
*	
[2020] 10 SCR 857 : (2020) 8 SCC 1
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“44. The question arises whether sub-classification for 
providing benefit to all castes can be said to be tinkering 
with the list under Articles 341, 342 and 342-A, in view of 
the decisions in Indra Sawhney [Indra Sawhney v. Union of 
India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1], 
permitting sub-classifications of backward classes and 
in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, 
(2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , in which, 
it was opined that “creamy layer concept” for exclusion 
of benefit can be applied to the Scheduled Castes and 
Scheduled Tribes and it does not in any manner tinker 
with the Presidential List under Articles 341 or 342 of the 
Constitution. The caste or group or sub-group continued 
exactly as before in the List. It is only those persons 
within that group or sub-group, who have come out of 
untouchability or backwardness by virtue of belonging to 
the creamy layer, who are excluded from the benefit of 
reservation. The million dollar question is how to trickle 
down the benefit to the bottom rung; reports indicate that 
benefit is being usurped by those castes (class) who have 
come up and adequately represented. It is clear that caste, 
occupation, and poverty are interwoven. The State cannot 
be deprived of the power to take care of the qualitative 
and quantitative difference between different classes to 
take ameliorative measures.
45. Reservation was not
contemplated for all the time by 
the Framers of the Constitution. On the one hand, there 
is no exclusion of those who have come up, on the other 
hand, if sub-classification is denied, it would defeat right 
to equality by treating unequal as equal. In Chebrolu Leela 
Prasad Rao v. State of A.P. [Chebrolu Leela Prasad Rao 
v. State of A.P., (2021) 11 SCC 401 : 2020 SCC OnLine 
SC 383] , the necessity of revising lists was pointed out 
relying on Indra Sawhney [Indra Sawhney v. Union of India, 
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] and 
Union of India v. Rakesh Kumar [Union of India v. Rakesh 
Kumar, (2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961].
46. There is cry, and caste struggle within the reserved 
class as benefit of reservation in services and education is
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
being enjoyed, who are doing better hereditary occupation. 
The scavenger class given the name of Balmikis remains 
more or less where it was, and so on, disparity within 
Scheduled Caste is writ large from various reports. The 
sub-classification was made under Section 4(5) of the 
Punjab Act to ensure that the benefit of the reservation 
percolate down to the deprived section and do not remain 
on paper and to provide benefit to all and give them 
equal treatment, whether it is violative of Article 14? In 
our opinion, it would be permissible on rationale basis to 
make such sub-classification to provide benefit to all to 
bring equality, and it would not amount to exclusion from 
the list as no class (caste) is deprived of reservation in 
totality. In case benefit which is meant for the emancipation 
of all the castes, included in the List of Scheduled Castes, 
is permitted to be usurped by few castes those who are 
adequately represented, have advanced and belonged 
to the creamy layer, then it would tantamount to creating 
inequality whereas in case of hunger every person is 
required to be fed and provided bread. The entire basket 
of fruits cannot be given to mighty at the cost of others 
under the guise of forming a homogeneous class.
47……………………………………
48……………………………………
49. Providing a percentage of the reservation within 
permissible limit is within the powers of the State 
Legislatures. It
cannot be deprived of its concomitant 
power to make reasonable classification within the 
particular classes of Scheduled Castes, Scheduled 
Tribes, and socially and educationally backward classes 
without depriving others in the list. To achieve the real 
purpose of reservation, within constitutional dynamics, 
needy can always be given benefit; otherwise, it would 
mean that inequality is being perpetuated within the 
class if preferential classification is not made ensuring 
benefit to all.
50. The sub-classification is to achieve the very purpose, 
as envisaged in the original classification itself and based
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thereupon evolved the very concept of reservation. Whether 
the sub-classification would be a further extension of 
the principle of the said dynamics is the question to be 
considered authoritatively by the Court.
51. The Scheduled Castes as per Presidential List are not 
frozen for all the time, and neither they are a homogeneous 
group as evident from the vast anthropological and 
statistical data collected by various Commissions. The 
State law of preferential treatment to a limited extent, 
does not amend the List. It adopts the List as it is. The 
State law intends to provide reservation for all Scheduled 
Castes in a pragmatic manner based on statistical data. 
It distributes the benefits of reservations based on the 
needs of each Scheduled Caste.
52. The State has the competence to grant reservation 
benefit to the Scheduled Castes and Scheduled Tribes 
in terms of Articles 15(4) and 16(4) and also Articles 
341(1) and 342(1). It prescribes the extent/percentage of 
reservation to different classes. The State Government 
can decide the manner and quantum of reservation. As 
such, the State can also make sub-classification when 
providing reservation to all Scheduled Castes in the List 
based on the rationale that would conform with the very 
spirit of Articles 14, 15 and 16 of the Constitution providing 
reservation. The State Government cannot tamper with 
the List; it can neither include nor exclude any caste in
the List or make enquiry whether any synonym exists as 
held in Milind [State of Maharashtra v. Milind, (2001) 1 
SCC 4 : 2001 SCC (L&S) 117] .
57. The interpretation of Articles 14, 15, 16, 338, 341, 
342 and 342-A is a matter of immense public importance, 
and correct interpretation of binding precedents in Indra 
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) 
SCC 217 : 1992 SCC (L&S) Supp 1] and other decisions. 
Though we have full respect for the principle of stare 
decisis, at the same time, the Court cannot be a silent 
spectator and shut eyes to stark realities. The constitutional
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
goal of social transformation cannot be achieved without 
taking into account changing social realities.
58. We endorse the opinion of a Bench of 3 Judges that E.V. 
Chinnaiah [E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 
394 : (2008) 2 SCC (L&S) 329] is required to be revisited 
by a larger Bench; more so, in view of further development 
and the amendment of the Constitution, which have taken 
place. We cannot revisit E.V. Chinnaiah [E.V. Chinnaiah 
v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 
329] being Bench of coordinate strength. We request the 
Hon’ble Chief Justice to place the matters before a Bench 
comprising of 7 Judges or more as considered appropriate.”
14.	 In view of the above, the matters have been placed before us for 
consideration whether the E.V. Chinnaiah requires revisitation or not. 
In other words, for consideration as to whether the law laid down by 
E.V. Chinnaiah is the correct law in the light of certain observations 
made in Indra Sawhney. 
RELEVANT CONSTITUTIONAL PROVISIONS 
15.	 In order to appreciate the rival contentions raised in the instant 
Reference, it would be beneficial to reproduce the relevant provisions 
of the Constitution for ready reference.
“Article 14. Equality before law. —The State shall not 
deny to any person equality before the law or the equal 
protection of the laws within the territory of India. 
Article 15. Prohibition of
discrimination on grounds of 
religion, race, caste, sex or place of birth. —
1 to 3….
(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 
special provision, by law, for the advancement of any 
socially and educationally backward classes of citizens
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or for the Scheduled Castes or the Scheduled Tribes in 
so far 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.]
Article 16. Equality of opportunity in matters of public 
employment. —
1 to 3 ….
(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. 
(4A) 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.
Article 162. Extent of executive power of State. —
Subject to the provisions of this Constitution, the executive 
power of a State shall extend to the matters with respect to 
which the Legislature of the State has power to make laws: 
Provided that in any matter with respect to which the 
Legislature of a State and Parliament have power to make 
laws, the executive power of the State
shall be subject to, 
and limited by, the executive power expressly conferred by 
this Constitution or by any law made by Parliament upon 
the Union or authorities thereof.
Article 166. Conduct of business of the Government 
of a State. —
(1) All executive action of the Government of a State shall 
be expressed to be taken in the name of the Governor.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
(2) Orders and other instruments made and executed 
in the name of the Governor shall be authenticated in 
such manner as may be specified in rules to be made by 
the Governor, and the validity of an order or instrument 
which is so authenticated shall not be called in question 
on the ground that it is not an order or instrument made 
or executed by the Governor. Advocate-General for the 
State. Conduct of business of the Government of a State. 
(3) The Governor shall make rules for the more convenient 
transaction of the business of the Government of the State, 
and for the allocation among Ministers of the said business 
in so far as it is not business with respect to which the 
Governor is by or under this Constitution required to act 
in his discretion.
Article 246. Subject-matter of laws made by Parliament 
and by the Legislatures of States. — 
(1) Notwithstanding anything in clauses (2) and (3), 
Parliament has exclusive power to make laws with respect 
to any of the matters enumerated in List I in the Seventh 
Schedule (in this Constitution referred to as the “Union List”). 
(2) Notwithstanding anything in clause (3), Parliament, 
and, subject to clause (1), the Legislature of any State 
1*** also, have power to make laws with respect to any of 
the matters enumerated in List III in the Seventh Schedule 
(in this Constitution referred to as the “Concurrent List”). 
(3) Subject to clauses (1)
and (2), the Legislature of any 
State 1*** has exclusive power to make laws for such 
State or any part thereof with respect to any of the matters 
enumerated in List II in the Seventh Schedule (in this 
Constitution referred to as the “State List”). 
(4) Parliament has power to make laws with respect to any 
matter for any part of the territory of India not included 2 
[in a State] notwithstanding that such matter is a matter 
enumerated in the State List.
Article 335. Claims of Scheduled Castes and Scheduled 
Tribes to services and posts. — The claims of the 
members of the Scheduled Castes and the Scheduled
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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 or promotion to any 
class or classes of services or posts in connection with 
the affairs of the Union or of a State.
Article 341. Scheduled Castes. — 
(1) The President may with respect to any State or Union 
territory, and where it is a State, after consultation with 
the Governor 4 thereof, by public notification, specify 
the castes, races or tribes or parts of or groups within 
castes, races or tribes which shall for the purposes of this 
Constitution be deemed to be Scheduled Castes in relation 
to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the 
list of Scheduled Castes specified in a notification issued 
under clause (1) any caste, race or tribe or part of or group 
within any caste, race or tribe, but save as aforesaid a 
notification issued under the said clause shall not be varied 
by any subsequent notification.
Article 342. Scheduled Tribes. — 
(1) The
President may with respect to any State or Union 
territory, and where it is a State after consultation with 
the Governor thereof, by public notification, specify the 
tribes or tribal communities or parts of or groups within 
tribes or tribal communities which shall for the purposes 
of this Constitution be deemed to be Scheduled Tribes 
in relation to that State or Union territory, as the case 
may be. 
(2) Parliament may by law include in or exclude from the 
list of Scheduled Tribes specified in a notification issued 
under clause (1) any tribe or tribal community or part of
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
or group within any tribe or tribal community, but save as 
aforesaid a notification issued under the said clause shall 
not be varied by any subsequent notification. 
Article 342A. Socially and educationally backward classes. 
(1) The President may with respect to any State or Union 
territory, and where it is a State, after consultation with 
the Governor thereof, by public notification, specify 6 
[the socially and educationally backward classes in the 
Central List which shall for the purposes of the Central 
Government] be deemed to be socially and educationally 
backward classes in relation to that State or Union territory, 
as the case may be. 
(2) Parliament may by law include in or exclude from the 
Central List of socially and educationally backward classes 
specified in a notification issued under clause (1) any 
socially and educationally backward class, but save as 
aforesaid a notification issued under the said clause shall 
not be varied by any subsequent notification.] 
(3) Notwithstanding any contained in clauses (1) and 
(2), every State or Union territory may, by law, prepare 
and maintain, for its own purposes, a list of socially and 
educationally backward classes, entries in which may be 
different from the Central List.
Article 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— 
(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;
(26) .…..
****
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(26A) ……..
(26B) ……..
(26C) “socially and educationally backward classes” means 
such backward classes as are so deemed under article 
342A for the purposes of the Central Government or the 
State or Union territory, as the case may be;”
ANALYSIS
(I)	
WHETHER THE LAW LAID DOWN BY THE FIVE-JUDGE 
BENCH IN E.V. CHINNAIAH VS. STATE OF ANDHRA 
PRADESH AND OTHERS* COULD HAVE BEEN REFERRED 
TO THE LARGER BENCH BY THE BENCH OF THREE 
JUDGES, WITHOUT RECORDING ANY COGENT REASONS 
FOR DISAGREEMENT WITH THE SAID DECISION OF FIVE-
JUDGE BENCH IN E.V. CHINNAIAH MORE PARTICULARLY 
WHEN THE SAID DECISION HELD THE FIELD FOR A LONG 
PERIOD OF FIFTEEN YEARS?
16.	 It may be noted that the Andhra Pradesh Scheduled Castes 
(Rationalization of Reservations) Act, 2000 has already been declared 
unconstitutional by the Five-Judge Bench in E.V. Chinnaiah as back 
as in 2005. Similarly, Section 4(5) of the Punjab Scheduled Caste 
and Backward Classes (Reservation in Services Act, 2006) has also 
been declared unconstitutional by the Division Bench of the High 
Court of Punjab and Haryana vide the judgment dated 29.03.2010 in 
respect of which the present reference is made. Hence, both these 
Acts as on the date have been declared as unconstitutional. It is 
further required to be noted that E.V. Chinnaiah decided in 2005 
was holding the field for about 15 years till the Five-Judge Bench in 
Davinder Singh, on the reference made by the Three-Judge
Bench, 
further referred the matters to the Seven-Judge Bench in 2020.
17.	 It is noteworthy that the Three-Judge Bench had referred the 
matters to the larger Bench without assigning any reason much less 
cogent reason as to why it could not agree with the decision in E.V. 
Chinnaiah delivered by the Constitution Bench. The law which was 
settled by the Constitution Bench and was prevalent since 15 years 
was sought to be doubted and unsettled by a Three-Judge Bench 
*	
(2005) 1 SCC 394 [Ed note: This * mark refers to footnote 4]
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
by passing a very cryptic and perfunctory order not supported by 
any reason, as quoted hereinabove.
18.	 A Five-Judge Bench in Pradip Chandra Parija and Others Vs. 
Pramod Chandra Patnaik and Others,8 while examining the 
propriety of the Bench of two Judges doubting the correctness of a 
decision of a Bench of three Judges and directly referring the matter 
to the Bench of five Judges, had observed that judicial discipline 
and propriety demands that a Bench of two learned judges should 
follow a decision of a Bench of three learned judges, but if a Bench 
of two learned Judges concludes that an earlier judgment of three 
learned Judges is so very incorrect that in no circumstances, can it 
be followed, the proper course for it to adopt would be to refer the 
matter before it to a Bench of three learned Judges setting out, the 
reasons why it could not agree with the earlier judgment. 
19.	 The importance of the doctrine of binding Precedents in the 
administration of our judicial system hardly needs to be reiterated. 
The doctrines of Precedents and Stare decisis are the core values 
of our legal system. In series of cases, the Constitution Benches of 
this Court have time and again emphasized that when a decision is 
rendered by this Court, it acquires a reliance interest and the society 
organizes itself based on such legal order. When substantial judicial 
time and resources are spent on the
References by the Constitution 
Benches, the same should not be further referred to the larger Bench 
by a smaller Bench, in a casual or cavalier manner, and without 
recording the reasons for disagreement.
20.	 As back as in 1974 a Seven-Judge Bench in Maganlal ChhaganLal 
(P) Ltd. vs. Municipal Corporation of Greater Bombay & Others,9 
H.R. Khanna, J. had remarked that certainty in the law, which was an 
essential ingredient of the Rule of Law, would be considerably eroded 
if the highest Court of the land lightly overruled the view expressed 
by it in earlier cases. One instance where such overruling could be 
permissible, according to him, was a situation where contextualvalues 
giving birth to the earlier view had subsequently altered substantially.
8	
[2001] Supp. 5 SCR 460 : (2002) 1 SCC 1
9	
[1975] 1 SCR 1 : (1974) 2 SCC 402
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21.	 In Lt. Col. Khajoor Singh Vs. Union of India & Another10 a Seven-
Judge Bench emphasized that the Court should not depart from 
an interpretation given in an earlier judgment of the Court unless 
there was a fair amount of unanimity that the earlier decision was 
manifestly wrong.
22.	 A more compendious examination of the issue was considered 
by another Seven-Judge Bench in Keshav Mills Co. Ltd. vs. 
Commissioner of Income Tax, Bombay North, Ahmedabad11 
wherein it was observed that frequent exercise by this Court of its 
power to review its earlier decisions on the ground that the view 
placed before it later appeared to the Court to be more reasonable, 
may incidentally tend to make law uncertain and introduce confusion 
which must be consistently avoided. It was further stated that before 
a previous decision is pronounced plainly erroneous, the Court must 
be satisfied with a fair amount of unanimity amongst its members 
that a revision of the said view is fully justified. 
23.	 In a more recent decision in case of Dr. Shah Faesal and Others 
vs. Union of India and Another12 a Five-Judge Bench reiterated the 
doctrines of Precedents and Stare decisis,and observed as under: -
“17. This Court’s jurisprudence has shown that usually 
the courts do not overrule the established precedents 
unless there is a social, constitutional or economic change 
mandating such a development. The numbers themselves 
speak of
restraint and the value this Court attaches to 
the doctrine of precedent. This Court regards the use 
of precedent as indispensable bedrock upon which this 
Court renders justice. The use of such precedents, to 
some extent, creates certainty upon which individuals can 
rely and conduct their affairs. It also creates a basis for 
the development of the rule of law. As the Chief Justice 
of the Supreme Court of the United States, John Roberts 
observed during his Senate confirmation hearing, “It is a 
10	
[1961] 2 SCR 828 : AIR 1961 SC 532
11	
[1965] 2 SCR 908 : AIR 1965 SC 1636
12	
[2020] 3 SCR 1115 : (2020) 4 SCC 1
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
jolt to the legal system when you overrule a precedent. 
Precedent plays an important role in promoting stability 
and even-handedness”. [Congressional Record—Senate, 
Vol. 156, Pt. 7, 10018 (7-6-2010).]
“18. Doctrines of precedents and stare decisis are the 
core values of our legal system. They form the tools which 
further the goal of certainty, stability and continuity in our 
legal system. Arguably, Judges owe a duty to the concept 
of certainty of law, therefore they often justify their holdings 
by relying upon the established tenets of law.”
“19. When a decision is rendered by this Court, it acquires 
a reliance interest and the society organises itself based 
on the present legal order. When substantial judicial time 
and resources are spent on references, the same should 
not be made in a casual or cavalier manner. It is only when 
a proposition is contradicted by a subsequent judgment 
of the same Bench, or it is shown that the proposition 
laid down has become unworkable or contrary to a well-
established principle, that a reference will be made to 
a larger Bench. In this context, a five-Judge Bench of 
this Court in Chandra Prakash v. State of U.P. [(2002)  
4 SCC 234 : 2002 SCC (Cri) 496: 2002 SCC (L&S) 496], 
after considering series of earlier rulings reiterated that:  
(SCC p. 245, para 22) 
“22. … The doctrine of binding precedent is 
of utmost importance in the administration 
of
our judicial system. It promotes certainty 
and consistency in judicial decisions. Judicial 
consistency promotes confidence in the system, 
therefore, there is this need for consistency in the 
enunciation of legal principles in the decisions 
of this Court.” 
24.	 The above exposition of law makes it clear that the doctrines of 
binding Precedents and Stare decisis, as also the judicial discipline 
and propriety, developed over the years, warrant that the decision 
of larger Bench should be followed by the smaller Bench. If the 
smaller bench had any doubt or disagreement with a decision
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of the larger bench, it could refer the same for reconsideration 
to the larger bench, however,after setting out the reasons and 
justification as to why it could not agree or follow the decision of 
earlier larger Bench. Such disagreement also has to be based on 
some justifiable reasons, like where the earlier decision of larger 
Bench is found to be manifestly wrong or where the contextual 
values giving birth to the earlier view had altered substantially 
etc. A casual exercise of power to refer the matter to the larger 
Bench without recording any reason or on the ground that the 
view placed before it later seems to be more reasonable, may 
incidentally tend to make law uncertain and introduce confusion, 
which must be avoided.
25.	 In the instant case, the reference was made by Three-Judge Bench to 
the larger Bench for revisitation of the earlier decision of Constitution 
Bench in E.V. Chinnaiah, without assigning any reason and in a 
very casual and cavalier manner, and that too after fifteen years 
of its attaining finality. Such reference could not and should not 
have been countenanced by the subsequent Five-Judge Bench for 
reference to the Seven-Judge Bench. When a law was settled by 
the previous Constitution Bench in E.V. Chinnaiah after considering 
all the previous judgments including Indra Sawhney, and after 
investing substantial judicial time and resources, and when the same 
had held the field for a
substantially long period of fifteen years, in 
my opinion, the very reference by the Three-Judge Bench to the 
larger bench for reconsideration of the decision in E.V. Chinnaiah, 
that too without assigning any reason was inappropriate and not in 
consonance with the well settled doctrines of Precedents and Stare 
decisis. Having said that, let us proceed further with the other issues 
involved in the Reference. 
(II)	 WHETHER THE STATES SHOULD BE PERMITTED TO 
TINKER WITH OR VARY THE PRESIDENTIAL LIST 
SPECIFYING THE “SCHEDULED CASTES,” AS NOTIFIED 
UNDER CLAUSE (1) OF ARTICLE 341 BY SUB-CLASSIFYING 
OR SUB-DIVIDING OR RE-GROUPING THE CASTES 
CONGLOMERATED IN THE SAID LIST UNDER THE GUISE 
OF PROVIDING RESERVATION FOR THE WEAKER OF THE 
WEAKEST, AND THEREBY TO COMMIT BREACH OF THE 
MANDATE CONTAINED IN CLAUSE (2) OF ARTICLE 341?
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
26.	 The collateral issues which stem from the above question may be 
delineated as under: - 
(a)	 Law on Constitution Interpretation.
(b)	 Object, Purpose and limits of Article 341.
(c)	 Etymology and Special Status of “Scheduled Castes” notified 
in the Presidential List. 
(d)	 State’s competence to sub-classify or sub-divide or re-group 
the Castes specified as “Scheduled Castes” in the Presidential 
List for providing reservation under Article 15 and 16.
(a)	 Constitutional Interpretation
27.	 Before examining the correctness of the law laid down by Five 
Judge Bench in E.V. Chinnaiah in the context of exposition of law 
in Indra Sawhney and in the light of the constitutional provisions 
more particularly Article 14, 15, 16 and 341 of the Constitution of 
India, let us have glance over the cardinal principles of interpretation 
of the Constitution laid down by this Court over the years in catena 
of decisions.
28.	 It cannot be gainsaid that the Constitution is construed to be a living 
and organic document, as it is intended to endure for ages to come, 
and consequently to be adapted to the various crises of human 
affairs. It is required to be construed broadly and liberally however, 
in the words of Benjamin Cardozo, “a Judge is not a Knight errant 
roaming at will in pursuit of his own ideal of beauty and goodness. 
Judge is not to innovate at pleasure.”13
29.	 As consistently held by this
Court, it may be desirable to give a broad 
and generous construction to the Constitutional Provisions, but while 
doing so, the rule of “plain meaning” or “literal” interpretation, which 
remains “the primary rule”, has also to be kept in mind. 
30.	 In GVK Industries Limited and Another vs. Income Tax Officer and 
Another,14 a Five-Judge Bench on the interpretation of Constitution 
observed as under: -
13	
Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University Press, 13th Edition 
1946) 141
14	
(2011) 4 SCC 36
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“37. In interpreting any law, including the Constitution, 
the text of the provision under consideration would be the 
primary source for discerning the meanings that inhere 
in the enactment. However, in light of the serious issues 
it would always be prudent, as a matter of constitutional 
necessity, to widen the search for the true meaning, 
purport and ambit of the provision under consideration. 
No provision, and indeed no word or expression, of the 
Constitution exists in isolation—they are necessarily related 
to, transforming and in turn being transformed by, other 
provisions, words and phrases in the Constitution.
38. Our Constitution is both long and also an intricate 
matrix of meanings, purposes and structures. It is only 
by locating a particular constitutional provision under 
consideration within that constitutional matrix could one 
hope to be able to discern its true meaning, purport and 
ambit. As Prof. Laurence Tribe points out:
“To understand the Constitution as a legal text, 
it is essential to recognize the … sort of text 
it is: a constitutive text that purports, in the 
name of the people…, to bring into being a 
number of distinct but inter-related institutions 
and practices, at once legal and political, and 
to define the rules governing those institutions 
and practices.” (See Reflections on Free-Form 
Method in Constitutional Interpretation. [108 
Harv L Rev 1221, 1235 (1995)])”
39. It has been
repeatedly appreciated by this Court 
that our Constitution is one of the most carefully drafted 
ones, where every situation conceivable, within the vast 
experience, expertise and knowledge of our framers, 
was considered, deliberated upon, and appropriate 
features and text chosen to enable the organs of the 
State in discharging their roles. While indeed dynamic 
interpretation is necessary, if the meaning necessary to 
fit the changed circumstances could be found in the text 
itself, we would always be better served by treading a 
path as close as possible to the text, by gathering the
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
plain ordinary meaning, and by sweeping our vision 
and comprehension across the entire document to see 
whether that meaning is validated by the constitutional 
values and scheme.”
31.	 Following GVK Industries Limited, another Five-Judge Bench in 
Dr. JaiShri LaxmanRao Patil vs. Chief Minister and Others15 
observed as under: -
“113. In examining provisions of the Constitution, courts 
should adopt the primary rule, and give effect to the plain 
meaning of the expressions; this rule can be departed, 
only when there are ambiguities. In Kuldip Nayar v. 
Union of India [(2006) 7 SCC 1] after quoting from  
G. Narayanaswami v. G. Pannerselvam [(1972) 3 SCC 
717] this Court held that: (Kuldip Nayar case SCC p. 88, 
para 201)
“201. … We endorse and reiterate the view 
taken in the above quoted paragraph of the 
judgment. It may be desirable to give a broad 
and generous construction to the Constitutional 
provisions, but while doing so the rule of “plain 
meaning” or “literal” interpretation, which 
remains “the primary rule”, has also to be kept 
in mind. In fact the rule of “literal construction” 
is the safe rule unless the language used is 
contradictory, ambiguous, or leads really to 
absurd results.””
32.	 Thus, it is quite well settled that in interpreting any law, including the 
Constitution, the text of the provision under consideration would be 
the primary source for discerning the meanings
that inhere in the 
enactment. Sometimes as a matter of constitutional necessity, it may 
be prudent to widen the search for the true meaning, purport, and 
ambit of the provision under consideration, however, one has to bear 
in mind that no provision, no word or expression in the Constitution 
exists in isolation. They are necessarily related to, transforming and 
15	
(2021) 8 SCC 1
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in turn being transformed by, other provisions, words and phrases in 
the Constitution. Even if a dynamic interpretation is necessary and 
the meaning necessary to fit the changed circumstances is found 
in the text itself, it would be always better to tread a path as close 
as possible to the text, by gathering the plain ordinary meaning, to 
see whether that meaning is validated by the constitutional values 
and the scheme. While giving a broad and generous construction 
to the constitutional provisions, the rule of “plain meaning,” or 
“literal” interpretation, which remains “the primary rule” has to be 
kept in mind.
(b)	 The Object, Purpose and Limits of Article 341 :-
33.	 Since the whole matter hinges on the interpretation of Article 341 
of the Constitution of India, let us see the Object and Purpose of its 
insertion in the Constitution.
34.	 Article 341 states that the President may with respect to any State 
or Union territory, and where it is a State after consultation with the 
Governor thereof, by public notification, specify the castes, races 
and tribes or parts of or groups within castes, races or tribes which 
shall for the purposes of the Constitution be deemed to be Scheduled 
Castes in relation to that State or Union territory, as the case may 
be. Clause (2) of the said Article 341 states that Parliament may by 
law include in or exclude from the list of Scheduled Castes specified 
in the notification
issued under Clause (1) any caste, race or tribe 
or part of or group within any caste, race or tribe, but save as 
aforesaid a notification issued under the said clause which shall not 
be varied by any subsequent notification. Similar provision is made 
for Scheduled Tribes in Article 342. Article 342 (A) pertaining to the 
socially and educationally backward classes is slightly differently 
worded, which was inserted by the Constitution (102nd Amendment) 
Act, 2018 w.e.f 14.08.2018.
35.	 As transpiring from the extracts of the Constituent Assembly Debates 
placed on record, there was no Article similar to Article 341 as found 
in the present Constitution. Noticing the need for creating a list of 
Scheduled Castes and Scheduled Tribes, some amendments in 
the draft Constitution were moved by Dr. Ambedkar, Chairman of 
the Drafting Committee of the Constitution. The relevant part of the 
proceedings of the Constituent Assembly debate on September 17, 
1949 is reproduced hereunder: -
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
“The Honourable Dr. B. R. Ambedkar: Sir, I move: 
“That with reference to amendment No. 147 of List 
IV (Eighth Week), for sub-clause (w) of clause (1) of  
article 303, the following sub-clause be substituted: —
(w) Schedule Castes’ means such castes, races or tribes 
or parts or groups within such castes, races or tribes as 
are deemed under article 300A of this Constitution to be 
Scheduled Castes for the purposes of this Constitution.
The only change is, the word ‘specified’ has been changed 
to ‘deemed’. Sir, I move: “That with reference to amendment 
No. 148 of List IV (Eighth Week), for sub-clause (x) of 
clause (1) of article 303, the following sub-clause be 
substituted: —
(x) scheduled tribes’ means such tribes or tribal 
communities or parts of or groups within such tribes or 
tribal communities as are deemed under article 300B of 
this Constitution to be scheduled tribes for the purposes 
of this Constitution;’ 
I am incorporating the other amendment which has also 
been tabled. Shall we take up, the two other articles also 
at the same time? 
Mr. President: Yes.
New articles 300A and 300B. [COI Articles 341 and 342] 
The Honourable Dr. B. R. Ambedkar: Sir, I move: 
“That after article 300, the following articles be inserted: — 
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 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,
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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. Schedule 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 any Tribe 
or Tribal community but save as aforesaid a notification 
issued under the said clause shall not be varied by any 
subsequent notification.” 
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.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Mr. President: 218A. 
Shri T. T. Krishnamachari: In reading it he has included that. 
Mr. President: 224.
Pandit Thakur Das Bhargava: Sir, I move: 
“That in amendment No. 201 of List V (Eighth Week) in 
clause (2) of the proposed new article 300A the following 
be added at the end: — ‘for a period of ten years from 
the commencement of this Constitution.’”
I also move: 
“That in amendment No. 201 of List V (Eighth Week) in 
clause (2) of the proposed new article 300B the following 
be added at the end: —
‘for a period of ten years from the commencement of this 
Constitution.’” I agree with the principle that for ten years 
to come no variation of the notification originally made 
by the President should be possible. Because now that 
special privileges of reservation, etc., have been given 
to the Scheduled Castes, I do not like the idea that the 
Executive, President or Governor or any other person may 
be able to tamper with that right, but after a period of ten 
years, when this privilege will no longer be available to the 
Scheduled Castes, there will be no difference between the 
Scheduled Castes and other backward classes which will 
be declared under article 301 of the Constitution. At that 
time there will be no meaning in taking away this power from 
the President in consultation with the Governor. Therefore, 
my humble submission is that the proposed amendment 
be accepted to make the point
absolutely clear and free 
from ambiguity. Unless we add these words for a period 
of ten years from the commencement of this Constitution, 
you will be taking away the power of the President to 
include or exclude proper classes from the purview of 
the notification which will be issued under 300A and B. 
After the first ten years the privileges which will be open 
to these classes are probably under article 10 and under 
articles 296 and 299. I do not know of any other privileges
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which have been specifically given to these Scheduled 
Castes. Whereas I am, very insistent and conscious that 
these provisions should not be tampered with, I do like 
that these castes may not become stereotyped and may 
not lose the capacity of travelling out of the schedule when 
the right occasion demands it. I, therefore, submit that if 
you put these words you will be making the whole thing 
elastic and the President will have the power of including 
or excluding after the lapse of ten years such tribes or 
castes within the notification. 
Mr. President: Mr. Chaliha—you have two amendments. 
Once is 205 and the other is 225. I do not know if 205 
arises now. 
Shri Kuladhar Chaliha (Assam: General): Mr. President, 
I move; “That in amendment No. 201 of List V (Eighth 
Week) in clause (2) of the proposed new article 300B after 
the words ‘Parliament may’ the words ‘and subject to its 
decision the State Legislature’ be inserted.”
I have always been fighting that the Governor should 
have power to safeguard the rights of the Tribes. I am 
glad in some measure this has been conceded. Yet I find 
certain amount of suspicion in that the State Legislature 
is neglected. The Drafting Committee has not allowed the 
State Legislature to have a voice. In order to fill up that 
lacuna I have said that Parliament may and subject to its 
decision the State Legislature.
Shri. T. T. Krishnamachari: Then what is left to the State
Legislature?
Shri Kuladhar Chaliha: Somehow or other I feel you have 
neglected it. In these you have covered a good deal which 
you had objected to in the past. The Governor has been 
given power I am glad to say. The only thing is provincial 
assemblies have no voice in this. Whatever Parliament 
says they are bound by it; but if there is anything which 
consistently with the orders of the Parliament they can 
do anything, they should be allowed to have the power. 
That is why I have moved this. However I am thankful
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
this time that the Drafting Committee has assimilated 
good ideas and only provincial assemblies have been 
neglected. However, the Governor is there—that is an 
improvement—Parliament, is there and the President is 
there. Therefore, I thank the Drafting Committee for this.
Mr. President: Mr. Sidhva.
The Honourable Dr. B. R. Ambedkar: It is already covered. 
Shri Brajeshwar Prasad (Bihar: General). There are some 
amendments seeking to add some more clauses. 
Mr. President: ‘That is a separate matter. These were all 
the amendments. 
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 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
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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. 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
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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. 
Mr. President: Does anyone else wish to speak? Do you 
wish to say anything Dr. Ambedkar? 
The Honourable Dr. B. R. Ambedkar: I do not accept the 
amendment of Pandit Thakur Das Bhargava. 
Mr. President: Then I put the amendments. The first is the 
one with reference to amendment 147. 
The question is: “That with reference to amendment No. 
147 of List IV (Eighth Week), for sub-clause (w) of clause 
(1) of article 303, the following sub-clause be substituted: —
‘(w) ‘Scheduled Castes’ means such castes, races or tribes 
or parts of or groups within such castes, races or tribes as 
are deemed under article 300A of this Constitution to be 
Scheduled Castes for the purposes of this Constitution; 
The amendment was adopted”.
36.	 It is seen from the above Debate that ultimately the original draft 
Article-300A was approved by the Constituent Assembly,and was 
re-numbered as Article 341 in the present Constitution. From the 
bare reading of the Article 341 it is clearly discernible that power 
of the President is limited to specify the castes or the tribes which 
shall, for the purposes of the Constitution, be deemed to be 
Scheduled Castes or Scheduled
Tribes in relation to a State or a 
Union Territory as the case may be. Once the notification is issued 
under Clause (1) of Article 341, it is only the Parliament which can 
by law, include in or exclude from the list of Scheduled Castes 
specified in the notification, any caste, race or tribe or part of or 
group within any caste, race or tribe, and the notification issued 
under Clause (1) could not be varied by any subsequent notification. 
As transpiring from the Constituent Assembly Debates quoted 
hereinabove, the object of inserting Article 341 was to eliminate the 
necessity of burdening the Constitution with long list of Scheduled 
Castes and Scheduled Tribes. It was proposed that the President,
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in consultation with the Governor or Ruler of a State should have 
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 put was that once a notification has been issued by the 
President, any elimination from or any addition in the list must be 
made by the Parliament and not by the President. In the words of 
Dr. Ambedkar, “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.”
37.	 A Five-Judge Bench in B. Basavalingappa vs. D. Munichinnappa 
& others16 had held that the object of the provision contained in 
Article 341 was to avoid all disputes as to whether a particular caste 
is a Scheduled Caste or not, and only those castes can be Scheduled 
Castes which are notified in the Order made by the President under 
Article 341 after consultation with the Governor where it relates to 
such caste in a State. It further held that Clause (2) provides that 
the Parliament may by law include in or exclude from the list of 
the Scheduled Castes specified in the notification issued under 
Clause (1), any caste, race or tribe or part of or group within any 
caste, race or tribe. The power was thus given to Parliament to
modify 
the notification made by the President under Clause (1). A notification 
issued under Clause (1) could not be varied by any subsequent 
notification, thus making the notification by the President final for 
all times except for modification by law as provided by Clause (2). 
38.	 The said law has also been reiterated by the Five-Judge Bench 
in case of Bhaiya Lal Vs. Harikishan Singh17 A similar view has 
been also taken by another Five-Judge Bench in case of State of 
Maharashtra vs. Milind and Others,18 by holding that:
“11. By virtue of powers vested under Articles 341 and 342 
of the Constitution of India, the President is empowered 
to issue public notification for the first time specifying 
the castes, races or tribes or part of or groups within 
16	
[1965] 1 SCR 316 : AIR (1965) SC 1269
17	
[1965] 2 SCR 877 : AIR (1965) SC 1557
18	
[2000] Supp. 5 SCR 65 : (2001) 1 SCC 4
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
castes, races, or tribes which shall, for the purposes 
of the Constitution be deemed to be Scheduled Castes 
or Scheduled Tribes in relation to a State or Union 
Territory, as the case may be. The language and terms of  
Articles 341 and 342 are identical. What is said in relation 
to Article 341 mutatis mutandis applies to Article 342. 
The laudable object of the said articles is to provide 
additional protection to the members of the Scheduled 
Castes and Scheduled Tribes having regard to social and 
educational backwardness from which they have been 
suffering since a considerable length of time. The words 
“castes” or “tribes” in the expression “Scheduled Castes” 
and “Scheduled Tribes” are not used in the ordinary sense 
of the terms but are used in the sense of the definitions 
contained in Articles 366(24) and 366(25). In this view, 
a caste is a Scheduled Caste or a tribe is a Scheduled 
Tribe only if they are included in the President’s Orders 
issued under Articles 341 and 342 for the purpose of the 
Constitution. Exercising the powers vested in him, the 
President has issued the Constitution (Scheduled Castes) 
Order, 1950 and the Constitution (Scheduled Tribes) 
Order, 1950. Subsequently, some orders were issued 
under the said articles in relation to Union Territories and 
other States and there have been certain amendments 
in relation to Orders issued, by amendment Acts passed 
by
Parliament.
12. Plain language and clear terms of these articles  
show (1) the President under clause (1) of the said articles 
may with respect to any State or Union Territory and 
where it is a State, after consultation with the Governor, 
by public notification specify the castes, races or tribes 
or parts of or groups within the castes, races or tribes 
which shall for the purposes of the Constitution be deemed 
to be Scheduled Castes/Scheduled Tribes in relation 
to that State or Union Territory as the case may be;  
(2) under clause (2) of the said articles, a notification issued 
under clause (1) cannot be varied by any subsequent 
notification except by law made by Parliament. In other 
words, Parliament alone is competent by law to include
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in or exclude a caste/tribe from the list of Scheduled 
Castes and Scheduled Tribes specified in notifications 
issued under clause (1) of the said articles. In including 
castes and tribes in Presidential Orders, the President 
is authorised to limit the notification to parts or groups 
within the caste or tribe depending on the educational 
and social backwardness. It is permissible that only 
parts or groups within them be specified and further to 
specify castes or tribes thereof in relation to parts of the 
State and not to the entire State on being satisfied that 
it was necessary to do so having regard to social and 
educational backwardness. The States had opportunity 
to present their views through Governors when consulted 
by the President in relation to castes or tribes, parts or 
groups within them either in relation to the entire State or 
parts of State. It appears that the object of clause (1) of 
Articles 341 and 342 was to keep away disputes touching 
whether a caste/tribe is a Scheduled Caste/Scheduled 
Tribe or not for the purpose of the Constitution. Whether a 
particular caste or a tribe is Scheduled Caste or Scheduled 
Tribe as the case may be, within the meaning of the 
entries contained in the Presidential Orders issued under 
clause (1) of Articles 341 and 342, is to be determined 
looking to them as they are. Clause (2) of the said articles 
does not permit any one to seek modification of the said
orders by leading evidence that the caste/Tribe (A) alone 
is mentioned in the Order but caste/Tribe (B) is also a 
part of caste/Tribe (A) and as such caste/Tribe (B) should 
be deemed to be a Scheduled Caste/Scheduled Tribe as 
the case may be. It is only Parliament that is competent 
to amend the Orders issued under Articles 341 and 
342. As can be seen from the entries in the schedules 
pertaining to each State whenever one caste/tribe has 
another name it is so mentioned in the brackets after 
it in the schedules. In this view it serves no purpose to 
look at gazetteers or glossaries for establishing that a 
particular caste/tribe is a Scheduled Caste/Scheduled 
Tribe for the purpose of Constitution, even though it is not 
specifically mentioned as such in the Presidential Orders.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Orders once issued under clause (1) of the said articles, 
cannot be varied by subsequent order or notification even 
by the President except by law made by Parliament. 
Hence it is not possible to say that State Governments 
or any other authority or courts or Tribunals are vested 
with any power to modify or vary the said Orders. If that 
be so, no inquiry is permissible and no evidence can 
be let in for establishing that a particular caste or part 
or group within tribes or tribe is included in Presidential 
Order if they are not expressly included in the Orders. 
Since any exercise or attempt to amend the Presidential 
Order except as provided in clause (2) of Articles 341 and 
342 would be futile, holding any inquiry or letting in any 
evidence in that regard is neither permissible nor useful”.
39.	 In Bir Singh Vs. Delhi Jal Board and Others,19 a Five-Judge Bench 
after referring to the relevant clauses of the Constitution (Scheduled 
Castes) Order 1950, and the Constitution (Scheduled Tribes) Order 
1950,observed as under:
“36. The upshot of the aforesaid discussion would lead 
us to the conclusion that the Presidential Orders issued 
under Article 341 in regard to Scheduled Castes and 
under Article 342 in regard to Scheduled Tribes cannot be 
varied or altered by any authority including the Court. It is 
Parliament alone which has been vested with the power 
to so act, that too, by laws
made. Scheduled Castes and 
Scheduled Tribes thus specified in relation to a State or a 
Union Territory does not carry the same status in another 
State or Union Territory. Any expansion/deletion of the list 
of Scheduled Castes/Scheduled Tribes by any authority 
except Parliament would be against the constitutional 
mandate under Articles 341 and 342 of the Constitution 
of India.
37…………………………………………………….
38. It is an unquestionable principle of interpretation that 
interrelated statutory as well as constitutional provisions 
19	
[2018] 10 SCR 513 : (2018) 10 SCC 312
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have to be harmoniously construed and understood so as 
to avoid making any provision nugatory and redundant. 
If the list of Scheduled Castes/Scheduled Tribes in the 
Presidential Orders under Articles 341/342 is subject to 
alteration only by laws made by Parliament, operation 
of the lists of Scheduled Castes and Scheduled Tribes 
beyond the classes or categories enumerated under the 
Presidential Order for a particular State/Union Territory 
by exercise of the enabling power vested by Article 16(4)
would have the obvious effect of circumventing the specific 
constitutional provisions in Articles 341/342. In this regard, 
it must also be noted that the power under Article 16(4) 
is not only capable of being exercised by a legislative 
provision/enactment but also by an Executive Order issued 
under Article 166 of the Constitution. It will, therefore, be in 
consonance with the constitutional scheme to understand 
the enabling provision under Article 16(4) to be available 
to provide reservation only to the classes or categories 
of Scheduled Castes/Scheduled Tribes enumerated in the 
Presidential Orders for a particular State/Union Territory 
within the geographical area of that State and not beyond. 
If in the opinion of a State it is necessary to extend the 
benefit of reservation to a class/category of Scheduled 
Castes/Scheduled Tribes beyond those specified in the 
Lists for that particular State, constitutional
discipline would 
require the State to make its views in the matter prevail 
with the central authority so as to enable an appropriate 
parliamentary exercise to be made by an amendment 
of the Lists of Scheduled Castes/Scheduled Tribes for 
that particular State. Unilateral action by States on the 
touchstone of Article 16(4) of the Constitution could be a 
possible trigger point of constitutional anarchy and therefore 
must be held to be impermissible under the Constitution.”
40.	 From the afore stated legal position, there is no room for doubt that 
the Presidential List as notified under Article 341 assumes finality 
on the publication of the notification, and that the castes, races or 
tribes or parts of or groups within castes, races or tribes specified in 
the notification are, for the purposes of the Constitution, deemed to 
be the“Scheduled Castes” in relation to that State or Union Territory
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
as the case may be. It is only the Parliament by law which can 
include in or exclude from the list of Scheduled Castes specified in 
the notification notified under Clause (1), any caste, race or tribe 
or part of or group within any caste, race or tribe. Such notification 
notified under Clause(1) cannot be varied even by the President by 
issuing any subsequent notification.
(c)	 Etymology and Special Status of “Scheduled Castes”
41.	 Since the arguments have been advanced before us, on the issue 
whether the Scheduled Castes specified in the Presidential List 
under Clause (1) of Article 341 should be treated as a homogenous 
group or heterogenous group, let us peep into the etymology of the 
nomenclatures “Scheduled Castes” and “Scheduled Tribes”. Briefly 
stated, the practice of untouchability or caste-based discrimination 
was rampant particularly amongst Hindus in India during British 
era. Shri V.I. Muniswamy Pillai, in his speech (quoted hereinbefore) 
had informed the members of the Constituent Assembly about the 
background which brought out the special name of “Scheduled 
Castes”, and stated that it was untouchability, the social evil that 
was being 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. Such class of
people were 
being discriminated on the basis of their castes and occupations 
they were engaged in, like Sweepers, Scavengers, Chamars, 
Mochis, etc. They were known as “depressed classes.” The term 
“depressed classes” however was not synonymous with “backward 
classes”. From the study material placed before us, it appears that 
the Census Commissioner J.H. Hutton who conducted Census in 
1931 had explained that the “depressed castes” were those castes, 
‘the contact with whom entailed purification on the part of high 
caste Hindus’. These were the communities which suffered social 
disabilities such as being denied access to temples, use separate 
wells, and not being allowed to sit inside a school house etc. The 
term ‘depressed classes’ was being used only for low caste Hindus 
who suffered from the stigma of untouchability. The word “class” in 
“depressed class” was in fact referred to for “caste”. Eventually, the 
Government of India Act 1935 referred to the “depressed classes” 
as “Scheduled Castes”. The 1935 Act made it clear that “Scheduled
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castes” were none other than those who were previously known as 
“depressed classes”. Clause 26 of Schedule I appended to the said 
Act 1935 mentioned as under:
“26(I) …………….the ‘scheduled castes’ means such castes, 
races or tribes or parts of or groups within castes, races or 
tribes, being castes, races, tribes or parts or groups which 
appear to be His Majesty in Council to correspondence 
to the classes of persons formerly known as ‘depressed 
classes’, as His Majesty in Council may specify”. 
42.	 The identification of the different castes for inclusion as Scheduled 
Castes in the said Schedule was based on an elaborate exercise 
conducted for each of the provinces as could be seen from the 
Schedule consisting of nine parts, to the 1935 Act. Thereafter, a 
gazette notification was published on 06.06.1936 promulgating the 
Government of India (Scheduled Castes) Order 1936 notifying the 
list of castes that were to be considered as “the Scheduled Castes” 
across the territory of India. The post constitutional exercise by 
the Constitution (Scheduled Castes) Order 1950 and Constitution 
(Scheduled Tribes), Order 1950, as originally enacted under Articles 
341 and 342 of the Constitution was basically an exercise in recasting 
the Schedule to the 1935 Act. The relevant clauses of the said two 
Presidential Orders were in the following terms:
“Clause 2 of the Constitution (Scheduled Castes) Order, 
1950
2. Subject to the
provisions of this Order, the castes, 
races or tribes or parts of, or groups within, castes or 
tribes specified in Parts I to XXV of the Schedule to this 
Order shall, in relation to the States to which those Parts 
respectively relate, be deemed to be Scheduled Castes 
so far as regards member thereof resident in the localities 
specified in relation to them in those Parts of that Schedule.
Clause 2 of the Constitution (Scheduled Tribes) Order, 1950
2. The Tribes or tribal communities, or parts of, or groups 
within, tribes or tribal communities, specified in Parts I to 
XXII of the Schedule to this Order shall, in relation to the 
States to which those Parts respectively relate, be deemed 
to be Scheduled Tribes so far as regards members thereof
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
residents in the localities specified in relation to them 
respectively in those Parts of that Schedule”.
43.	 The subsequent amendments to the aforesaid two Orders, from time 
to time were made to bring the position in tune with the amendments 
to the First Schedule to the Constitution made at different points 
of time by creation of new States andalterations in the area and 
boundaries of existing States.
44.	 As discussed earlier, the Presidential Orders made under 
Article  341(1) or Article 342(1) enumerating the lists of castes/
races, tribes recognized as “Scheduled Castes/Scheduled Tribes” 
cannot be altered or varied by any State or any authority including 
the Court. It is Parliament alone which has been vestedwith the 
powers to so act, that too, by law made, as well settled by catena 
of decisions discussed hereinabove.
45.	 The very language employed in Article 341 that “the castes, races 
or tribes or parts of or groups within castes, races or tribes, shall 
for the purposes of the Constitution be deemed to be Scheduled 
Castes in relation to that State or Union Territory, as the case may 
be”, mandates that each caste, each race, each tribe or each part 
of or group within the castes, races or tribes shall by the deeming 
fiction be the“Scheduled Castes” for the purposes of the Constitution, 
irrespective of the parameters by which such caste/ race or tribe is 
recognised as “Scheduled
Caste” in relation to that State. Though 
the members of “Scheduled Castes” are drawn from different castes, 
races and tribes, they attain special status by virtue of Presidential 
Notification under Article 341. Thus, the etymological and evolutionary 
history and background of the nomenclature “Scheduled Castes,” 
coupled with the Presidential Orders published under Article 341 
of the Constitution, make the “Scheduled Castes”, a homogenous 
class. The necessary corollary would be that all the members of all 
the castes, races and tribes enumerated in the Presidential List are 
deemed to be “Scheduled Castes” for the purposes of the Constitution 
and they all would be entitled to all the benefits granted or reserved 
for the “Scheduled Castes”.
46.	 A very pertinent observations in this regard have been made by 
a Seven-Judge Bench in State of Kerala and Another vs. N.M. 
Thomas and Other 20 which deserve to be reproduced. The issues 
20	
[1976] 1 SCR 906 : (1976) 2 SCC 310
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involved in the said case inter alia were whether Article  16(1) 
permits preferences to Scheduled Castes, Scheduled Tribes and 
weaker sections on the basis of reasonable classification, or 
whether Article 16(4) is an exception to Articles 16(1) and 16(2). 
The majority of five Judges in their separate but concurring opinions 
opined as under: -
Per A.N. Ray, J.
“40. The Constitution makes a classification of Scheduled 
Castes and scheduled tribes in numerous provisions and 
gives a mandate to the State to accord special or favoured 
treatment to them. Article 46 contains a directive principle 
of State policy — fundamental in the governance of the 
country enjoining the State to promote with special care 
educational and economic interests of the Scheduled 
Castes and scheduled tribes and to protect them from any 
social injustice and exploitation. Article 335 enjoins that 
the claims of the members of the Scheduled Castes and 
scheduled tribes to the services and posts in the Union 
and the States shall be taken into consideration. Article 
338 provides for appointment by the President of a Special 
Officer for the Scheduled Castes and scheduled tribes to 
investigate all matters relating to the safeguards provided 
for them under the Constitution. Article 341 enables the 
President by public notification to specify castes, races or 
tribes which shall be deemed to be Scheduled Castes in 
the States and the Union
Territories. Article 342 contains 
provision for similar notification in respect of scheduled 
tribes. Article 366(24) and (25) defines Scheduled Castes 
and scheduled tribes. The classification by the impugned 
rule and the orders is with a view to securing adequate 
representation to Scheduled Castes and scheduled tribes in 
the services of the State as otherwise they would stagnate 
in the lowest rung of the State services.
41. to 42……………………………….
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]
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
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.
Per Methew, J.
82. The word “caste” in Article 16(2) does not include 
“scheduled caste”. The definition of “Scheduled Castes” 
in Article 366(24) 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.”
This shows that it is by virtue of the notification of the 
President that the Scheduled Castes come into being. 
Though the members of the Scheduled Castes are drawn 
from castes, races or tribes, they attain a new status by 
virtue of the Presidential notification. Moreover, though the 
members of tribe might be included in Scheduled Castes,
tribe as such is not mentioned in Article 16(2).”
Per Krishna Iyer, J.
“135. We may clear the clog of Article 16(2) as it 
stems from a confusion about caste in the terminology 
of scheduled castes and scheduled tribes. This latter 
expression has been defined in Articles 341 and 342. A 
bare reading brings out the quintessential concept that 
they (sic there) are no castes in the Hindu fold but an 
amalgam of castes, races, groups, tribes, communities
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or parts thereof found on investigation to be the lowliest 
and in need of massive State aid and notified as such 
by the President. To confuse this backwardmost social 
composition with castes is to commit a constitutional 
error, misled by a compendious appellation. So that, 
to protect harijans is not to prejudice any caste but to 
promote citizen solidarity. Article 16(2) is out of the way 
and to extend protective discrimination to this mixed bag 
of tribes, races, groups, communities and non-castes 
outside the four-fold Hindu division is not to compromise 
with the acceleration of castelessness enshrined in the 
sub-article. The discerning sense of the Indian Corpus 
Juris has generally regarded scheduled castes and 
scheduled tribes, not as caste but as a large backward 
group deserving of societal compassion.”
47.	 The above observations made in N.M. Thomas leaves no room of 
doubt that “Scheduled Castes” are not a caste within the ordinary 
meaning of caste. It is by virtue of the notification of the President 
under Article 341 that the “Scheduled Castes” come into being. 
Though, the members of the Scheduled Castes are drawn from 
different castes, races or tribes, they attain a new Special Status by 
virtue of the Presidential notification. A bare reading of Article 341 
brings out the quintessential concept that “Scheduled Castes” is 
an amalgam of castes, races, groups, tribes, communities or parts 
thereof,
and is a homogenous group, and that once notified by 
Presidential List, they acquire Special Status of “Scheduled Castes” 
which cannot be varied except by the Parliament by law.
(d)	 State’s Competence to sub-classify or sub-divide or re-
group the Castes specified as “Scheduled Castes” in the 
Presidential List for providing the reservation under Article 
15 and 16: - 
48.	 It may be noted that the terminology “Backward Class” has not been 
defined or described anywhere in the Constitution, however the said 
terminology finds place in the various provisions in the Constitution. 
Part XVI of the Constitution deals with special provisions relating 
to certain classes, i.e. for Scheduled Castes, Scheduled Tribes, 
Anglo-Indian Community, Backward Class, Socially and Educationally 
Backward Class etc. Articles 330 and 332 provide for the reservation
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
of seats for the Scheduled Castes and Scheduled Tribes in the 
House of the People and in the Legislative Assemblies of the States. 
Article 335 states that the claims of the member 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 and of a State. Article 338, 338(A) and 
338(B) provides for the constitution of the National Commissions for 
the Scheduled Castes, Scheduled Tribes and for Backward Classes 
respectively. As per the definition of “Scheduled Castes” contained 
in Article 366(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 the Constitution. Similar definitions are contained in Article 366(25) 
for the “Scheduled Tribes” and in Article 366(26C) for the “socially 
and educationally backward classes”.
49.	 Article 15(4) enables the State to make special provision for the 
advancement of any socially and educationally backward classes of 
citizens or for the Scheduled Castes and Scheduled Tribes. The newly 
added Clause (5) in Article 15 (w.e.f. 20.01.2006) enables the State, 
by law to make special provisions for the advancement of any socially 
and
educationally backward classes of citizens or for the Scheduled 
Castes or Scheduled Tribes, so far as such provisions relate to their 
admission to educational institutions. Article 16(4) enables the State 
to make 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. 
Subsequently inserted Clause (4A) in Article 16 (w.e.f. 17.6.1995) 
enables the State to make provision for reservation in the matters 
of promotions in the posts in the services under the State in favour 
of Scheduled Castes and Scheduled Tribes which in the opinion of 
the State are not adequately represented in the services under the 
State. Article 16(6) inserted by the Constitution (One Hundred and 
Third Amendment) Act, 2019 enables the State to make provision 
for the reservation in favour of any economically weaker sections of 
citizens other than the classes mentioned in Clause 4 i.e. backward 
class of citizens. Article 46 states that 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
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and the Scheduled Tribes, and shall protect them from social injustice 
and all forms of exploitation.
50.	 Thus, the terms “Scheduled Castes” and “Scheduled Tribes” are 
used in Article 15(4) along with the “socially and educationally 
backward classes of citizens”, used in Article 16(4A) exclusively and 
used in Article 46 along with “weaker sections of people”. However, 
the term “backward class” is used in Article 16(4) only. Further, 
Article 340 empowers the President to appoint a Commission to 
investigate the conditions of Socially and Educationally Backward 
Classes within the territory of India and to make recommendations 
as to the steps that should be taken by the Union or any State to 
remove the difficulties of the members of such class. As discussed 
in detail earlier, Article 341 empowers the President to issue 
notification specifying the Scheduled Castes in relation to the 
States and Union Territory. Similar provision is found in Article 342 
for the Scheduled Tribes. Article 342A inserted by the Constitution 
(One Hundred and Second Amendment Act, 2018) with effect from 
14th August, 2018, empowers the President to specify the Socially 
and Educationally Backward Classes in the Central List which are 
deemed to be Socially and Educationally Backward Classes in 
relation to that State or Union Territory as the case may be. By 
virtue of the Constitution (One Hundred and Fifth) Amendment Act, 
2021, an
explanation to Clause (2) and new Clause (3) have been 
added to Article 342(A). The difference between the Article 341, 342 
and 342A is that, whereas the notifications issued under Article 341 
and 342 cannot be varied except by the Parliament by law, the 
newly added Clause (3) of Article 342A permits the State or Union 
Territory by law, to prepare and maintain for its own purposes a list 
of Socially and Educationally Backward Classes entries which may 
be different from the Central List.
51.	 The mandate contained in Clause (2) of Article 341 specifically 
prohibits any variation in the notification issued under Clause(1) 
thereof, except by Parliament by law. There is no provision in the 
Constitution which would empower the States to make any variation 
in such notification issued under Clause (1) of Article 341,for 
the purpose of reservations under Article 15 or 16. It cannot be 
gainsaid that as per Article 162, the executive power of a State 
would extend to the matters with respect to which the Legislature of
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
the State has power to make laws. The Proviso to the said Article 
states that in any matter with respect to which the Legislature of 
a State and Parliament have power to make laws, the executive 
power of the State shall be subject to, and limited by, the executive 
power expressly conferred by the Constitution or by any law made 
by Parliament upon the Union or authorities thereof. The source 
of legislative power of the State is found in Article 246, by virtue 
of which the Legislature of any State has power to make laws 
with respect to any matters enumerated in List III of the Seventh 
Schedule along with the Parliament, and has exclusive power to 
make laws with respect to any of the matters enumerated in List II 
of the said Schedule.
52.	 As held in Bharat Coking Coal Ltd. vs. State of Bihar and Others 21
“19……………….. …. Article 162 prescribes the extent 
of executive power of the State, it lays down that the 
executive power of a State shall extend to the matters with 
respect to which the legislature of the State has power 
to make laws. Thus, the executive power of the State 
Government is co-extensive with the legislative power of 
the State legislature. If the State legislature has power 
to enact laws on a matter enumerated in the State List 
or in the Concurrent List the State has executive power 
to deal with those matters subject to other provisions of 
the Constitution…………………….
Moreover, the proviso 
to Article 162 itself contains limitation on the exercise of 
the executive power of the State. It lays down that in any 
matter with respect to which the legislature of a State and 
Parliament have power to make laws, the executive power 
of State shall be subject to limitation of the executive power 
expressly conferred by the Constitution or by any law made 
by Parliament upon the Union or authority thereof. The 
limitation as contained in the proviso to Article 162 was 
necessary to avoid conflict in the exercise of executive 
power of State and the Union Government in respect of 
matters enumerated in List III of the Seventh Schedule. 
..……………………….”
21	
[1990] 3 SCR 744 : (1990) 4 SCC 557
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53.	 Though the executive power of the State Government is co-extensive 
with the legislative power of the State Legislature, none of the 
entries, either in List II or List III of the Seventh Schedule confers 
any legislative power upon the State to rationalize the reservations, 
by sub-classifying or sub-dividing the castes enumerated in the 
Presidential List prepared under Article 341(1), as was sought to be 
done by the State of Andhra Pradesh by passing Andhra Pradesh 
Scheduled Castes (Rationalization of Reservations), Act 2000, nor 
does it confer any power to provide or reserve the quota for a particular 
caste or castes from amongst the “Scheduled Castes” enumerated in 
the Presidential List prepared under Article 341(1) of the Constitution, 
as was sought to be done by the State of Punjab and Haryana 
by passing the Punjab Scheduled Castes and Backward Classes 
(Reservation in Services) Act, 2006. In absence of any executive or 
legislative powers, the States are not competent to divide/sub-divide/ 
sub-classify/regroup the castes, races or tribes from amongst the 
“Scheduled Castes”nor could they give any preferential treatment by 
reserving a quota for a particular caste, race, tribe out of the quota 
reserved for the entire “Scheduled Castes”.
54.	 Though sub-classification or sub division of castes from amongst the 
Scheduled Castes by the State for the purpose of reservation per 
se may not amount to
inclusion or exclusion of any caste from the 
Presidential List of Scheduled Castes, it would certainly amount to 
tinkering with or varying the notification notified under Clause (1),which 
is clearly prohibited under Clause (2).When all castes, races or tribes 
enumerated in the Presidential List are deemed to be the “Scheduled 
Castes” for the purposes of the Constitution, any preference given 
to or any quota reserved for a particular caste or race or tribe out 
of the quota reserved for the entire class of the Scheduled Castes 
for the government jobs by the State, would certainly deprive the 
other members of the “Scheduled Castes” from having the benefit 
of reservation to the extent the quota is reserved for such particular 
caste or castes. Any such action on the part of the State would 
not only tantamount to discrimination in reverse and violation of 
Article 14 but would also tantamount to tinkering with Article 341 of 
the Constitution.
55.	 As per the settled legal position, every word or expression used in the 
Constitution has a purpose, and all the provisions of the Constitution
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
have to be read in harmony so that the meaning of such word or 
expression is validated by the Constitutional values and the scheme. 
A person belonging to any of the castes, races or tribes enumerated 
in the Presidential List acquiring special status as the member of the 
“Scheduled Caste” in relation to a particular State, would be entitled 
to all the rights including the fundamental rights enshrined under 
the Constitution,and therefore would also be entitled to be treated 
equally from amongst the other members of the “Scheduled Castes” 
enumerated in such Presidential List, in that particular State. If any 
State makes special provision of reservation by fixing quota for the 
entire “Scheduled Castes” for admission to educational institutions 
or for the appointments on the posts in the public services as 
permitted under Article 15 and 16, such quota of reservation should 
be made available to all the members of the “Scheduled Castes” 
specified in the Presidential List, as all the members of the castes, 
races and tribesspecified in such List are deemed to be “Scheduled 
Castes” for the purposes of the Constitution, and the State has no 
power to further sub-classify or sub-divide the “Scheduled Castes” 
for giving preferential treatment to a particular caste from the said 
list of “Scheduled Castes”. As stated earlier, the very object of 
Article 341 is to give new special status to the
“Scheduled Castes” for 
the purposes of the Constitution and to keep the political interference 
of the States outside the purview of the said provisions. Therefore, 
under the guise of providing reservation for the weaker of the weakest 
castes, the State could not be permitted to make any variation in 
the notification nor could it be permitted to indirectly tinker with such 
notification published under Article 341(1). 
56.	 Article 15(4) is an enabling provision which enables the State to 
make special provision for the advancement of any socially and 
educationally backward classes of citizens or for the Scheduled 
Castes and Scheduled Tribes, and Clause (5) thereof enables the 
State to make special provisions for them in respect of the admission 
to educational institutions. Similarly, Article 16(4) enables the State 
to make 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. These provisions under Article 15 and 16 are merely enabling 
provisions, and could not be treated as the source of power to legislate
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the law for sub-dividing or reclassifying/sub-classifying or regrouping 
the castes, races or tribes enumerated as the “Scheduled Castes”, 
which have acquired special status by virtue of Article 341 of the 
Constitution.
57.	 Under the guise of providing reservation or under the pretext of 
taking affirmative action for the weaker of the weakest sections of 
the society, the State cannot vary the Presidential List and tinker 
with Article 341. Such power if exercised by the State in absence of 
any executive or legislative power would be colourable exercise of 
powers. It hardly needs to be reiterated that the idea conveyed by 
the ‘doctrine of colourable legislation’ is that although apparently a 
legislature in passing a statute, purports to act within the limits of its 
powers, yet in substance and in reality, it transgressesits powers, the 
transgression being veiled by what appears, on proper examination, 
to be a mere pretence or disguise. As well-settled, the whole doctrine 
of “colourable exercise” is based on the maxim - “you cannot do 
indirectly what you cannot do directly.”* Any action of the State in 
the name of affirmative action, if not permitted by the Constitution, 
could not be validated or vindicated by the Courts by moulding or 
tinkering with the specific provisions of the Constitution. 
(III)	 WHETHER E.V. CHINNAIAH IS REQUIRED TO BE REVISITED 
IN VIEW OF CERTAIN OBSERVATIONS MADE IN INDRA 
SAWHNEY
CONCERNING “OTHER BACKWARD CLASSES”?
58.	 Much reliance has been placed by the Five-Judge Bench in Davinder 
Singh for making reference to this Bench, on the decision of Indra 
Sawhney for opining that the view taken in E.V. Chinnaiah was 
not in consonance with Indra Sawhney however, in my opinion, 
Indra Sawhney had not dealt with the issue of sub-classification of 
the “Scheduled Castes” much less had dealt with the State’s power 
to sub-classify or sub-divide or re-group the Castes specified as 
“Scheduled Castes” under Article 341 of the Constitution. 
59.	 So far as Indra Sawhney is concerned, the factual matrix was 
that the Government of India under Article 340 of the Constitution 
had constituted the “Second Backward Classes Commission” on 
January 1, 1979 under the Chairmanship of Shri B. P. Mandal 
(known as the Mandal Commission). The terms of the reference 
*	
K.C. Gajapati Narayan Deo vs. State of Orissa (1953) 2 SCC 178
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
of the said Commission were inter alia to determine the criteria 
for defining the socially and educationally backward classes, to 
recommend steps to be taken for the advancement of the socially 
and educationally backward classes of citizens so identified, and 
to examine the desirability or otherwise of making provision for 
reservation of appointments or posts in favour of such backward 
classes of citizens which were not adequately represented in 
the public services and posts in connection with the affairs of 
the Union or of any State. The Government of India itself on the 
recommendations of the Mandal Commission issued an office 
memorandum on August 13, 1990 purporting to extend reservations 
for socially and educationally backward classes in its services w.e.f. 
August 7, 1990. The said O.M reserved 27% of the seats for SEBC 
in addition to those already reserved for the Scheduled Castes and 
Scheduled Tribes. The issuance of the said O.M led to widespread 
protest and filing of writ petitions in the Supreme Court questioning 
the said Memorandum. The Five-Judge Bench of this Court by its 
order dated October 1, 1990 stayed the operation of the said O.M. 
dated 13th August, 1990, however, the process of identification of 
castes for locating the SEBCs was permitted to continue. Thereafter, 
as a consequence of the change in the Government at the Centre, 
another O.M on September 25th, 1991
modifying the earlier O.M. of 
August 13, 1990 was issued, by introducing the economic criteria 
in the grant of reservation by giving preference to the poorer 
sections of the SEBC’s in the 27% quota and reserving another 
10% of the vacancies in the civil services for other economically 
backward sections not covered by any of the existing schemes of 
reservation, which was explained to extend to the poorest amongst 
the higher caste and other religions also. The constitutionality of 
the said O.M dated September 25, 1991 was challenged before 
this Court and the Nine-Judge Bench was constituted to hear the 
matters. The matter was heard by the Nine-Judge Bench and by a 
6:3 decision, the constitutionality, validity and enforceability of the 
impugned O.M dated 13.08.1990 subject to certain conditionalities 
and prerequisites was upheld, whereas paragraph 2(ii) of the second 
O.M. dated September 25, 1991 providing 10% additional reservation 
for the economically backward was held unconstitutional and 
struck down. Six separate judgments were delivered. The leading 
judgment was by B. P. Jeevan Reddy, J, (for M.H. Kania, C.J., and
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M.N. Venkatchaliah, A.M. Ahmadi and himself) with S.Ratnavel 
Pandian and P.B Sawant, J.J concurring by their separate judgments.
60.	 Several questions were posed before the Nine-Judge Bench in Indra 
Sawhney which have been broadly indicated and discussed in the 
leading judgment of Jeevan Reddy, J along with the miscellaneous 
questions discussed therein. The questions particularly germane to 
the Scheduled Castes/Scheduled Tribes were the Question-3(a), 
Question-3(e) and Question-10. The Question-3(a) was, “what 
does the expression “backward class of citizens” in Article 16(4) 
mean?”The Question-3(e) was, “whether the class, to be designated 
as a backward class, should be situated similarly to the Scheduled 
Castes/Scheduled Tribes?” The Question-10 was, “whether the 
distinction made in the second memorandum between poorer 
sections of the backward classes and others was permissible under 
Article 16?”
61.	 Justice Jeevan Reddy in his leading judgment while answering 
question 3(b) with regard to identification of “backward class of 
citizens” observed in Paragraph 781 as under: -
“781. At the outset, we may state that for the purpose of 
this discussion, we keep aside the Scheduled Tribes and 
Scheduled Castes (since they are admittedly included within 
the backward classes), except to remark that backward 
classes contemplated by Article 16(4) do comprise some 
castes — for it cannot be denied that Scheduled
Castes 
include quite a few castes.”
62.	 Justice Jeevan Reddy further discussed the issue with regard to 
the “means test” and “creamy layer test” qua question no. 3 (d) and 
made a special note in paragraph 792 at page 725 that: -
“This discussion is confined to Other Backward Classes 
only and has no relevance in the case of Scheduled Tribes 
and Scheduled Castes.”
63.	 While summarising the issues involved in Question no. 3, Justice 
Jeevan Reddy held in Para 796 and 797 as under: - 
“796.-797. We may now summarise our discussion under 
Question No. 3. (a) A caste can be and quite often is a 
social class in India. If it is backward socially, it would
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
be a backward class for the purposes of Article 16(4). 
Among non-Hindus, there are several occupational 
groups, sects and denominations, which for historical 
reasons are socially backward. They too represent 
backward social collectivities for the purposes of  
Article 16(4). (b) Neither the constitution nor the law 
prescribe the procedure or method of identification of 
backward classes. Nor is it possible or advisable for 
the court to lay down any such procedure or method. It 
must be left to the authority appointed to identify. It can 
adopt such method/procedure as it thinks convenient 
and so long as its survey covers the entire populace, 
no objection can be taken to it. Identification of the 
backward classes can certainly be done with reference 
to castes among, and along with, other groups, classes 
and sections of people. One can start the process 
with the castes, wherever they are found, apply the 
criteria (evolved for determining backwardness) and 
find out whether it satisfies the criteria. If it does — 
what emerges is a “backward class of citizens” within 
the meaning of and for the purposes of Article 16(4). 
Similar process can be adopted in the case of other 
occupational groups, communities and classes, so as to 
cover the entire populace. The central idea and overall 
objective should be to consider all available groups, 
sections and classes in society. Since caste
represents 
an existing, identifiable social group/class encompassing 
an overwhelming majority of the country’s population, 
one can well begin with it and then go to other groups, 
sections and classes. (c) It is not necessary for a class 
to be designated as a backward class that it is situated 
similarly to the Scheduled Castes/Scheduled Tribes. 
(d)  ‘Creamy layer’ can be, and must be, excluded.  
(e) It is not correct to say that the backward class 
contemplated by Article 16(4) is limited to the socially and 
educationally backward classes referred to in Article 15(4) 
and Article 340. It is much wider. The test or requirement 
of social and educational backwardness cannot be 
applied to Scheduled Castes and Scheduled Tribes, who
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indubitably fall within the expression “backward class of 
citizens”. The accent in Article 16(4) appears to be on 
social backwardness. Of course, social, educational and 
economic backwardness are closely intertwined in the 
Indian context. The classes contemplated by Article 16(4) 
may be wider than those contemplated by Article 15(4).”
64.	 Pandian, J. in his concurring opinion observed in Paragraph 39 that 
the words “backward class of citizens”, occurring in Article 16(4) are 
neither defined nor explained in the Constitution though the same 
words occurring in Article 15(4) are followed by a qualifying phrase, 
“socially and educationally”. In paragraph-126, he observed that it 
is not necessary for a class to be designated as backward class 
that it should be situated similarly to the Scheduled Castes and 
Scheduled Tribes. 
65.	 Justice P.B. Sawant in his concurring judgment observed as under 
in paragraph 417: -
“417. Under Article 16(4), the reservation in the State 
employment is to be provided for a “class of people” 
which must be “backward” and “in the opinion of the 
State” is “not adequately represented” in the services 
of the State. Under Article 46, the State is required to 
“promote with special care” the “educational and economic 
interests” of the “weaker sections” of the people and 
“in particular”, of the Scheduled Castes and Scheduled 
Tribes, and “to protect” them from “social injustice” and 
“all
forms of exploitation”. Since in the present case, 
we are not concerned with the reservations in favour of 
the SCs/STs, it is not necessary to refer to Article 335 
except to point out that, it is in terms provided there that 
the claims of SCs/STs in the services are to be taken 
into consideration, consistently with the maintenance of 
efficiency of administration. It must, therefore, mean that 
the claims of other backward class of citizens and weaker 
sections must also be considered consistently with the 
maintenance of the efficiency. For, whomsoever, therefore, 
reservation is made, the efficiency of administration is not 
to be sacrificed, whatever the efficiency may mean. That 
is the mandate of the Constitution itself.”
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
66.	 After taking into consideration, the principles laid down in Indra 
Sawhney, Justice Hegde in E.V. Chinnaiah rightly observed in 
paragraph 38 as under: -
“38. On behalf of the respondents, it was pointed out 
that in Indra Sawhney case [1992 Supp (3) SCC 217: 
1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] the Court 
had permitted subclassification of Other Backward 
Communities, as backward and more backward based 
on their comparative underdevelopment, therefore, the 
similar classification amongst the class enumerated in 
the Presidential List of Scheduled Castes is permissible 
in law. We do not think the principles laid down in Indra 
Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) 
Supp 1 : (1992) 22 ATC 385] for subclassification of Other 
Backward Classes can be applied as a precedent law 
for subclassification or sub grouping Scheduled Castes 
in the Presidential List because that very judgment itself 
has specifically held that subdivision of Other Backward 
Classes is not applicable to Scheduled Castes and 
Scheduled Tribes. This we think is for the obvious reason 
i.e. the Constitution itself has kept the Scheduled Castes 
and Scheduled Tribes List out of interference by the State 
Governments.”
67.	 Justice H.K. Sema, J. concurring with Justice Hegde in 
E.V. Chinnaiah observed in Paragraph 48 as under: -
“48. In Indra Sawhney v. Union of India [1992 Supp (3) 
SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] 
this Court observed at SCC p. 725 that the discussion of 
creamy layer is confined to Other Backward Classes only 
and has no relevance in the case of Scheduled Castes 
and Scheduled Tribes.”
68.	 Justice S.B. Sinha also in his concurring opinion observed in 
paragraph 76 and 92 as under: -
“76. Having regard to the decision of this Court in Indra 
Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 
SCC (L&S) Supp 1 : (1992) 22 ATC 385] backward class 
citizens can be classified in four different categories —
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(i) more backward, (ii) backward, (iii) Scheduled Caste, and 
(iv) Scheduled Tribe. A contention has been raised that 
in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC 
(L&S) Supp 1 : (1992) 22 ATC 385] the Court permitted 
a classification amongst Other Backward Classes and 
as such there is no reason as to why the said principle 
shall not be applied to the members of the Scheduled 
Castes. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 
SCC (L&S) Supp 1 : (1992) 22 ATC 385] itself this Court 
categorically stated that it was not concerned with the 
question as regards members of Scheduled Castes and 
Scheduled Tribes. (SCC para 792 at p. 725) It is relevant 
to note that Question 5 formulated by Jeevan Reddy, J. 
was only in relation to the further division in the backward 
classes into backward and more backward categories. 
Advisedly, no question was framed as regards division 
of Scheduled Castes into more backward and backward 
Scheduled Castes.
92. The impugned Act as also the judgment of the High 
Court are premised on the observations in Indra Sawhney 
[1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : 
(1992) 22 ATC 385] that there is no constitutional or legal 
bar for a State in categorising the backward classes as 
backward and more backward class. This Court, however, 
while referring to Article 16(4) of the Constitution stated 
that it recognised only one class viz. backward class of 
citizens in the
following terms: (SCC p. 716, para 781)
“781. At the outset, we may state that for the purpose of 
this discussion, we keep aside the Scheduled Tribes and 
Scheduled Castes (since they are admittedly included within 
the backward classes), except to remark that backward 
classes contemplated by Article 16(4) do comprise some 
castes — for it cannot be denied that Scheduled Castes 
include quite a few castes.”
69.	 In Ashok Kumar Thakur vs. Union of India and Others,22 another 
Five-Bench judgment, after considering earlier judgments on the issue 
22	
[2007] 7 SCR 63 : (2008) 6 SCC 1
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
whether the “creamy layer” principle is applicable to the Scheduled 
Castes and Scheduled Tribes, held that the said Principle cannot 
be applied to Scheduled Castes and Scheduled Tribes as they are 
separate classes by themselves. To be precise, it held as under: -
“184. So far, this Court has not applied the “creamy layer” 
principle to the general principle of equality for the purpose 
of reservation. The “creamy layer” so far has been applied 
only to identify the backward class, as it required certain 
parameters to determine the backward classes. “Creamy 
layer” principle is one of the parameters to identify backward 
classes. Therefore, principally, the “creamy layer” principle 
cannot be applied to STs and SCs, as SCs and STs are 
separate classes by themselves. Ray, C.J., in an earlier 
decision, stated that “Scheduled Castes and Scheduled 
Tribes are not a caste within the ordinary meaning of caste”. 
And they are so identified by virtue of the notification issued 
by the President of India under Articles 341 and 342 of the 
Constitution. The President may, after consultation with 
the Governor, by public notification, specify the castes, 
races or tribes or parts of or groups within castes, races 
or tribes which for the purpose of the Constitution shall 
be deemed to be Scheduled Castes or Scheduled Tribes. 
Once the notification is issued, they are deemed to be 
the members of Scheduled
Castes or Scheduled Tribes, 
whichever is applicable. In E.V. Chinnaiah [(2005) 1 SCC 
394] concurring with the majority judgment, S.B. Sinha, J. 
said : (SCC p. 403)
“The Scheduled Castes and Scheduled Tribes occupy a 
special place in our Constitution. The President of India 
is the sole repository of the power to specify the castes, 
races or tribes or parts of or groups within castes, races 
or tribes which shall for the purposes of the Constitution 
be deemed to be Scheduled Castes. The Constitution 
(Scheduled Castes) Order, 1950 made in terms of  
Article 341(1) is exhaustive. The object of Articles 341 and 
342 is to provide for grant of protection to the backward 
class of citizens who are specified in the Scheduled 
Castes Order and Scheduled Tribes Order having regard
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to the economic and education backwardness wherefrom 
they suffer. Any legislation which would bring them out 
of the purview thereof or tinker with the order issued 
by the President of India would be unconstitutional.  
(Paras 52, 111 and 84)
(emphasis supplied)
186. Moreover, right from the beginning, the Scheduled 
Castes and Scheduled Tribes were treated as a separate 
category and nobody ever disputed identification of such 
classes. So long as “creamy layer” is not applied as 
one of the principles of equality, it cannot be applied to 
the Scheduled Castes and Scheduled Tribes. So far, it 
is applied only to identify the socially and educationally 
backward classes. We make it clear that for the purpose 
of reservation, the principles of “creamy layer” are not 
applicable for Scheduled Castes and Scheduled Tribes.”
70.	 In view of the above, I am of the opinion that though Indra 
Sawhney had sought to define “backward class” in terms of social 
backwardness, while considering the ambit of “backward class” for 
the purpose of Article 16(4), it did not deal with the issue qua the 
Scheduled Castes/ Scheduled Tribes particularly in the light of Article 
341/342, rather it categorically kept the Scheduled Castes/ Scheduled 
Tribes outside the purview of consideration. The Scheduled Castes 
being the most backward class amongst the backward classes, and 
having acquired a special status by virtue of Article 341, the
question 
of defining “backward class” qua the “Scheduled Castes” did not 
arise, and rightly not dealt with in Indra Sawhney for the purposes 
of Article 16(4) of the Constitution. 
71.	 In so far as Article 15(4) and 15(5) are concerned, the use of the 
word “any” before the words “socially and educationally backward 
classes” and the use of the word “the” before “Scheduled Castes/ 
Scheduled Tribes” clearly indicate that the said provisions pertain to 
the “Other Backward Classes” which are socially and educationally 
backward, and that the said provisions also pertain to the “Scheduled 
Castes” and “Scheduled Tribes”, however the“Scheduled Castes” 
do not require any further identification once they are notified under 
Article 341. As rightly held in Ashok Kumar Thakur,* the “creamy 
*	
[2007] 7 SCR 63 : (2008) 6 SCC 1
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
*	
[2007] 7 SCR 63 : (2008) 6 SCC 1
*	
[2006] Supp. 7 SCR 336 : (2006) 8 SCC 212
layer” principle is one of the parameters to identify backward classes. 
The “Scheduled Castes” having already been specified in the 
Presidential List under Article 341, the said creamy layer principle 
cannot be applied to the “Scheduled Castes” for their identification 
as backward class.In my opinion, the Five-Judge Bench has 
thoroughly misread and misinterpreted Indra Sawhney, to opine that 
Indra Sawhney permitted sub-classification of backward classes 
including the Scheduled Castes/Scheduled Tribes, rather they were 
categorically kept outside the purview of consideration by the Nine-
Judge Bench in Indra Sawhney.
72.	 The reliance placed on Jarnail Singh is also thoroughly erroneous. 
In Jarnail Singh, the Five-Judge Bench was called upon to examine 
the correctness of the law laid down in Nagaraj. In para-17 of Jarnail 
Singh, the Bench observed that: -
“The judgment in Chinnaiah has been referred by the 
three Judge Bench to a larger bench by an Order dated 
20th August, 2014. This is because, according to the 
three Judge Bench,Chinnaiah is contrary to Article 338 
of the Constitution of India and Indra Sawhney. Since 
the correctness of Chinnaiah does not arise before us, 
we need not say more about this reference which will be 
decided on its own merits.”
73.	 After noting above, the Five-Judge Bench in
Jarnail Singh did 
not agree with the view taken by the Five-Judge Bench in Ashok 
Kumar * that the creamy layer principle is merely a principle of 
identification and not a principle of equality. The Bench in Jarnail 
Singh agreed with that part of decision in M. Nagaraj and Others 
vs. Union of India and Others* which held that the creamy layer 
test is applicable to the Scheduled Castes and Scheduled Tribes in 
exercise of application of the basic structure test,however, it did not 
agree with Nagaraj, when Nagaraj required the States to collect 
quantifiable data on backwardness, in so far as Scheduled Castes 
and Scheduled Tribes are concerned. The Bench in Jarnail Singh 
held that “it would clearly be contrary to Indra Sawhney, which had 
held that the requirement of social and educational backwardness 
cannot be applied to Scheduled Castes and Scheduled Tribes, who 
inevitably fall within the expression “Backward Class of Citizens” and
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therefore the decision the judgment in Nagaraj would have to be 
declared to be bad on this ground.” In my opinion, such observations 
in Jarnail Singh are self-contradictory. In any case, the Bench 
had no occasion to deal with nor had dealt with the issue whether 
sub-classification of “Scheduled Castes” notified in the Presidential 
List under Article 341 was permissible to be made by the States.
74.	 It is very common that the Constitutional Benches in their judgments 
deal with many complex facts and legal issues. Not all that has been 
said in the body of judgment would become a precedent or binding 
for other Courts. The judgments of the Constitution Benches have 
to be read in the context of questions which arose for consideration 
before them. Certain observations made in the judgment may be 
necessary for deciding the issues involved, but every observation 
made on law in the course of delivering the judgment may not have 
a binding effect as a precedent. Any observation or remark made or 
opinion expressed incidentally or collaterally, and not directly upon 
the question posed before the Court would be an ‘obiter dicta’ and 
not a ‘precedent’. A decision is an authority for what it decides and 
not what can logically be deduced therefrom, as held in State of 
Haryana vs. Ranbir alias Rana.23 It was also observed in ADM 
Jabalpur vs. Shivakant Shukla 24 that the statements which are not 
part of ratio decidendi
constitute obiter dicta and are not authoritative.
75.	 In none of the cases – Indra Sawhney or Jarnail Singh, the issue of 
sub-classification of “Scheduled Castes” in the context of Article 341 
was raised or argued, nor was decided by the concerned Benches, 
as was raised and decided in E.V. Chinnaiah. Hence, it would be 
a fallacy to hold that the law laid down in E.V. Chinnaiah was not 
in consonance with Indra Sawhney or Jarnail Singh.
76.	 Since I have held that the State has neither executive nor legislative 
power to sub-classify or sub-divide or re-group the castes, races 
or tribes specified as the “Scheduled Castes” in the Presidential 
List notified under Article 341, the other questions pertaining to the 
criteria or yardstick for sub-classification, or requirement for collecting 
quantifiable data etc. by the State for sub-classification,are not 
required to be addressed.
23	
[2006] 3 SCR 864 : (2006) 5 SCC 167
24	
(1976) 8 SCC 521
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
AFFIRMATIVE ACTION AND CONSTITUTIONAL FRAMEWORK
77.	 The affirmative actions of the States have to be within the 
Constitutional framework, and if they are not, the Courts cannot ratify 
the same by bending or moulding the specific mandates contained 
in the Constitution. Article 142 even with the width of its amplitude 
cannot be used to build a new edifice where none existed earlier, 
by ignoring Constitutional provisions dealing with the subject and 
thereby achieve something indirectly which cannot be achieved 
directly.* As held by the Constitution Bench in the landmark judgment 
in case of Supreme Court Bar Association vs. Union of India 
and Another.25
“47. The plenary powers of this Court under Article 142 
of the Constitution are inherent in the Court and are 
complementary to those powers which are specifically 
conferred on the Court by various statutes though are 
not limited by those statutes. These powers also exist 
independent of the statutes with a view to do complete 
justice between the parties. These powers are of very 
wide amplitude and are in the nature of supplementary 
powers. This power exists as a separate and independent 
basis of jurisdiction apart from the statutes. It stands upon 
the foundation and the basis for its exercise may be put 
on a different and perhaps even wider footing, to prevent 
injustice in the process of litigation and to do complete 
justice between
the parties. This plenary jurisdiction is, 
thus, the residual source of power which this Court may 
draw upon as necessary whenever it is just and equitable 
to do so and in particular to ensure the observance of 
the due process of law, to do complete justice between 
the parties, while administering justice according to law. 
There is no doubt that it is an indispensable adjunct to all 
other powers and is free from the restraint of jurisdiction 
and operates as a valuable weapon in the hands of the 
Court to prevent “clogging or obstruction of the stream 
of justice”. It, however, needs to be remembered that 
the powers conferred on the Court by Article 142 being 
25	
[1998] 2 SCR 795 : (1998) 4 SCC 409
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curative in nature cannot be construed as powers which 
authorise the Court to ignore the substantive rights of 
a litigant while dealing with a cause pending before it. 
This power cannot be used to “supplant” substantive law 
applicable to the case or cause under consideration of the 
Court. Article 142, even with the width of its amplitude, 
cannot be used to build a new edifice where none existed 
earlier, by ignoring express statutory provisions dealing 
with a subject and thereby to achieve something indirectly 
which cannot be achieved directly. Punishing a contemner 
advocate, while dealing with a contempt of court case by 
suspending his licence to practice, a power otherwise 
statutorily available only to the Bar Council of India, on 
the ground that the contemner is also an advocate, is, 
therefore, not permissible in exercise of the jurisdiction 
under Article 142. The construction of Article 142 must 
be functionally informed by the salutary purposes of the 
article, viz., to do complete justice between the parties. 
It cannot be otherwise. As already noticed in a case of 
contempt of court, the contemner and the court cannot be 
said to be litigating parties.”
78.	 The action of the State though well-intentioned and affirmative in 
nature, if violates the specific provision of the Constitution, cannot 
be validated by the Supreme Court in exercise of its jurisdiction 
under Article 142. The removal of
inequalities or remedy to remove 
inequalities cannot be permitted at the cost of violation of the specific 
provision of the Constitution. When the wordings of the provision 
of the statutes, in the instant case of Article 341 of the Constitution 
are clear, as also the intention of the draftsmen of the Constitution, 
the Court cannot add or subtract words from such provision to give 
it a meaning which the Court feels would achieve the goal of social 
transformation. Sometimes the affirmative action and the Constitution 
intersect with each other in complex ways, as the affirmative action 
policies are framed by the States to promote diversity and to address 
historical inequalities, while the legal frameworks have to ensure that 
these policies are implemented within the bounds of the Constitution. 
The implementation of the affirmative action policies must align with 
the Constitutional and legal principles, particularly those related to
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
equality and non-discrimination. In short, the affirmative action and 
the legal frameworks, though both do aim at more equitable society, 
they must navigate complex legal principles to ensure fairness and 
Constitutionality.
79.	 The upshot of the above discussion may be summarised as under: -
(i)	
When the law was settled by the Constitution Bench in 
E.V. Chinnaiah after considering all the previous judgments 
including Indra Sawhney and after investing substantial judicial 
time and resources, the same should not have been doubted 
and referred to the larger bench by the Three-Judge Bench in 
Davinder Singh, and that too without assigning any reason 
much less cogent reason for their disagreement disregarding 
the well settled doctrines of Precedents and Stare decisis.
(ii)	 While giving a broad and generous construction to the 
Constitutional provisions, the rule of “plain meaning”, or “literal” 
interpretation, which is the “primary rule” has to be kept in mind.
(iii)	 The Presidential List specifying “Scheduled Castes” under 
Article 341 assumes finality on the publication of the notification, 
and the castes, races or tribes, or groups within castes, races 
or tribes specified in the notification are deemed to be the 
“Scheduled Castes” in relation to that State or Union Territory 
as the case may be, for the purposes of the Constitution and 
as such assume special status of “Scheduled
Castes”.
(iv)	 It is only the Parliament by law which can include in or exclude 
from the list of the “Scheduled Castes” specified in the notification 
notified under Clause (1), any caste, race or tribe or part of or 
group within any caste, race or tribe. Such notification notified 
under Clause (1) cannot be varied even by the President by 
issuing any subsequent notification.
(v)	 It is by virtue of the notification of the President under Article 341 
that the “Scheduled Castes” come into being. Though the 
members of Scheduled Castes are drawn from different castes, 
races or tribes, they attain special status of “Scheduled Castes” 
by virtue of Presidential Notification. The etymological and 
evolutionary history and the background of the nomenclature 
“Scheduled Castes”, coupled with the Presidential orders
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published under Article 341 of the Constitution, make the 
“Scheduled Castes”, a homogenous class, which cannot be 
tinkered with by the States.
(vi)	 The States have no legislative competence to enact the law 
for providing reservation or giving preferential treatment to a 
particular caste/castes by dividing/sub-dividing/sub-classifying 
or regrouping the castes, races or tribes enumerated as the 
“Scheduled Castes” in the notification under Article 341.
(vii)	 Under the guise of providing reservation or under the pretext of 
taking affirmative action for the weaker of the weakest sections 
of the society, the State cannot vary the Presidential List,nor 
can tinker with Article 341 of the Constitution.
(viii)	The Nine-Judge Bench in Indra Sawhney and the Five-
Judge Bench in Jarnail Singh had not dealt with the issue of 
sub-classification of the “Scheduled Castes” in the context of 
Article 341, much less had dealt with the State’s powers to 
sub-classify or sub-divide or regroup the castes specified 
as “Scheduled Castes” under Article 341 of the Constitution, 
and therefore, it could not be held that the law laid down in 
E.V. Chinnaiah was not in consonance with Indra Sawhney 
or Jarnail Singh.
(ix)	 The power conferred upon the Supreme Court under Article 
142 cannot be used to supplant the substantive law applicable 
to the case under consideration. Even with the width of its 
amplitude, Article 142 cannot be used
to build a new edifice 
where none existed earlier, by ignoring express statutory 
provisions dealing with the subject, and thereby to achieve 
something indirectly which cannot be achieved directly. The 
action of the State, though well intentioned and affirmative in 
nature, if violates the specific provision of the Constitution, 
cannot be validated by the Supreme Court in exercise of its 
jurisdiction under Article 142.
(x)	 The affirmative action and legal frameworks, though both do 
aim at more equitable society, they must navigate complex legal 
principles to ensure fairness and constitutionality.
80.	 In that view of the matter, I am of the opinion that the law laid down 
by the Five-Judge Bench in E.V. Chinnaiah is the correct law and 
deserves to be confirmed.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Pankaj Mithal, J.
Index*
1.
Introduction
4-10 
2.
Amendments to Constitution with reference to 
Case Laws
10-23
3.
Central Government and State Government 
Commissions on SC/ST and OBC’s
23-33
4
The Ramifications of Reservation
33-39
5.
Casteless Society - Caste System vis-à-vis the 
Varna System
39-45
6.
Reservation is only a medium of facility and its 
execution revives Casteism
45-48
7.
Conclusion
49-54
INTRODUCTION
1.	
The issue under reference to this Constitution Bench as 
succinctly described by the Chief Justice in his opinion is whether 
sub-classification of the scheduled castes is constitutionally 
permissible for the purposes of reservation.
2.	
The issue arose as the Punjab legislature enacted the Punjab 
Scheduled Castes and Backward Classes (Reservation in Services) 
Act, 2006, inter alia providing for reservation of 25% in favour of 
scheduled castes and that 50% of the aforesaid percentage shall be 
offered to particular scheduled castes such as Balmikis and Mazhbi 
Sikhs in direct recruitment. 
3.	
The validity of providing 50% reservation in favour of the above two 
categories of scheduled castes, out of the various mentioned in the 
Presidential list of scheduled castes, was challenged before the 
High Court by invoking the writ jurisdiction under Article 226 of the 
Constitution of India. The High Court of Punjab and Haryana relying 
upon the Constitution Bench decision of this
Court in E.V. Chinnaiah 
vs. State of Andhra Pradesh and Ors.1 declared Section 4(5) of 
* Ed. Note: Pagination as per the original Judgment.
1	
(2005) 1 SCC 394
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the aforesaid Act which sub-classified the scheduled castes and 
provided for 50% reservation of the 25% admissible to the scheduled 
castes in favour of the above two categories of scheduled castes 
only to be invalid.
4.	
The Chinnaiah case (supra) arose from the decision of the Andhra 
Pradesh High Court whereby it rejected the challenge to the 
provision of Andhra Pradesh Scheduled Castes (Rationalization 
of Reservations) Act, 2000, which provided for apportionment of 
reservation among scheduled castes by classifying them into four 
groups: 1% for Group A, 7% for Group B, 6% for Group C and 1% 
again for Group D.
5.	
The Constitution Bench in Chinnaiah’s case was of the unanimous 
opinion that the provision of the above Act of sub-classifying the 
scheduled castes into four groups and apportioning the reservation 
criteria group wise was unconstitutional. It was held that the 
sub- classification permitted by Indra Sawhney and Ors. vs. Union 
of India and Ors.2 was limited only to backward and other backward 
classes and is not applicable to scheduled castes.
6.	
It is in the above background that the Constitution Bench dealing with 
one of the cases at hand i.e. State of Punjab and Ors. vs. Davinder 
Singh and Ors. held that the matter requires to be revisited by a 
larger Bench. 
7.	
In somewhat similar fashion, a matter came to be referred from 
the State of Haryana and another from the State of Tamil Nadu 
wherein
by notification in the State of Haryana scheduled castes 
were classified into two categories i.e. A and B for the purposes of 
applying reservation and in the State of Tamil Nadu by an Act of 2009, 
reservation of seats was provided to Arunthathiyar’s in educational 
institution and for appointment in services.
8.	
All the three categories of matters i.e. from the State of Punjab, State 
of Haryana and the State of Tamil Nadu are before the Bench in the 
form of Civil Appeals, Writ Petitions, TP (C) & TC (C) and Special 
Leave Petition (Civil) and have been taken up as clubbed matters 
as the issue is common as described in the beginning.
2	
(1992) Supp. 3 SCC 217
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
9.	
The issue of sub-classification of scheduled castes has been 
appropriately answered by the Chief Justice and my esteemed brother 
Justice Gavai by their separate opinions with which I respectfully 
agree but at the same time since the matter in issue is basically 
concerning “reservation”, I consider it to be of utmost importance and, 
therefore, deem it appropriate to pen down my own views separately.
10.	 Man/human as rightly understood is a social animal and has to live 
in a society. An ideal form of society is one which progresses on 
merit or where merit alone prevails. This is evident from Articles 14 
and 15 of the Constitution which provides for equality before law 
and that State shall not discriminate on grounds of religion, race, 
caste, sex or place of birth. Articles 14 and 15 (as it originally stood) 
are quoted below:
“Article14- Equality before law 
The State shall not deny to any person equality before the 
law or the equal protection of the laws within the territory 
of India.
Article 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.”
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11.	 However, no society can exist in its ideal form as all citizens are 
not alike. The basic needs of everyone are different and have to be 
taken into account to carry the society forward. Therefore, there is 
pressing need to consider the social, economic and political need 
of all persons or classes of persons. In the context of India, the 
trinity of social, economic and political justice has to be balanced 
and to promote social justice, provisions have to be made for the 
upliftment of the so-called marginalized citizens or the depressed 
classes of persons who later came to be known as backward class 
of persons and scheduled castes as well as scheduled tribes etc. It 
is to achieve the above social objective of bringing every citizen or 
a class of citizen on equal level and at par in law that provision for 
reservation came to be made in the Constitution.
12.	 The provision for reservation for any class of persons at first sight 
may appear to be anti-merit but if weighed on the scales of social 
justice, it is imperative.
13.	 The poor and the downtrodden sections of the Indian society were 
earlier described by the ruling class as the “depressed classes” which 
included a wide range of persons such as untouchables, persons of 
various backward communities and those living in tribes in hills and 
forests or in remote areas of the country. Slowly, these depressed 
classes of persons came to be classified into
various groups according 
to their vocation such as scavengers, leather workers, ironsmiths, 
carpenters, watchman and other menial workers and were referred 
to as scheduled castes; and those living in tribes in hills, forests 
or remote areas came to be recognized as scheduled tribes. The 
remaining depressed classes of persons or marginalized classes 
were later classified as other backward classes. 
14.	 The Government of India Act, 1935, for the first time, recognized the 
above referred depressed classes of persons as scheduled castes 
and the primitive tribes as backward tribes and inter alia provided 
reservation of seats for the scheduled castes and backward tribes in 
the federal legislature. The objective was of bringing about political 
equality only.
15.	 The Constitution of India as enacted and adopted on 26th November, 
1949 and enforced w.e.f. 26th January, 1950, originally provided for
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
two categories of reservation, one for the political purposes and 
the other for social purposes vide Articles 330 & 332 and Articles 
15(3) & 16(4).
16.	 Articles 330 and 332 of the Constitution aimed to achieve political 
justice by providing reservation of seats for scheduled castes and 
scheduled tribes in Lok Sabha and State Legislatures whereas 
Article 15(3) and 16(4) were aimed at social justice and provided 
for special provision for women & children and for reservation in 
the services in favour of backward classes of persons respectively.
AMENDMENTS TO CONSTITUTION WITH REFERENCE TO CASE 
LAWS
17.	 On the legislative front, in the wake of various verdicts of the apex 
court concerning reservation, a constitutional amendment regime 
commenced bringing about amendments after amendments in the 
Constitution to overcome the difficulties in the implementation of 
the reservation policy in the light of the decisions of the courts in 
context with reservation.
18.	 The Constitution (First Amendment) Act, 1951 w.e.f. 18th June, 
1951, was brought about in order to solve the problems posed by 
the decision of 5 Judges Constitution Bench of this Court in State 
of Madras vs. Champakam Dorairajan3 which struck down caste-
based reservation for admission in medical colleges being violative of 
Article 29(2) of the Constitution and by an other 5 Judges Constitution 
Bench decision in B. Venkataramana
vs. State of Madras and Ors.4 
which held that the appointment of judicial officers as unconstitutional 
as Article 16(4) permitted reservation for backward classes of citizens 
only. Thus, Sub-Article (4) to Article 15 of the Constitution of India was 
introduced so as to empower the State for making special provision 
for the advancement of any socially and educationally backward 
classes of citizens or for scheduled castes and scheduled tribes. 
19.	 In this manner, Articles 16(4), 15(3) and 15(4) as introduced, 
envisaged to bring about social justice amongst the citizens of the 
country. 
3	
AIR (1951) SC 226
4	
AIR (1951) SC 229
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20.	 After the Constitution Bench decision in Indra Sawhney (supra), 
there was a spate of amendments in the Constitution to overcome 
the difficulties caused by various observations of the court.
21.	 The Constitution (Seventy-seventh Amendment) Act, 1995 added 
Article 16(4)(A) to the Constitution so as to provide reservation in 
promotion in favour of scheduled castes and scheduled tribes which 
are not adequately represented in the services of the State.
22.	 It was followed by the Constitution (Eighty-first Amendment) 
Act, 2000 which inserted Article 16(4)(B) so as to make provisions 
for carry forward of unfilled vacancies of the reserved category. The 
new Article 16(4)(B) provided that the State is not denuded of power 
to consider any unfilled vacancies of a year reserved for being filled 
up in that year in accordance with the provisions for reservation made 
under Clause 4 or Clause 4(A) of Article 16 to be carried forward to 
be filled up in any succeeding year or years and that such carried 
forward vacancies shall not be counted for determining the sealing 
of 50% reservation in total number of vacancies of that year. 
23.	 In immediate succession came the Constitution (Eighty-second 
Amendment) Act, 2000 which was necessitated to overcome one 
of the decisions of this Court in case of S. Vinod Kumar and Anr. 
vs. Union of India and Ors.5 which held that even if reservation in 
promotion is permissible, no
lower qualifying marks or lesser level 
of evaluation for promotion is legally permissible for the reserved 
categories. The said amendment permitted provision for relaxation 
in qualifying marks in any examination or for lowering the standards 
of evaluation for reservation in the matters of promotion to any class 
or classes of services for posts in connection with the affairs of the 
Union or the State.
24.	 In Union of India vs. Virpal Singh Chauhan,6 this Court held that 
the accelerated promotion to the persons of the reserved categories 
would not give them consequential seniority and that their seniority 
in promoted category shall be governed by their seniority in the 
feeder cadre. 
5	
[1996] Supp. 7 SCR 142 : (1996) 6 SCC 580
6	
[1995] Supp. 4 SCR 158 : (1995) 6 SCC 684
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1651
The State of Punjab & Ors. v. Davinder Singh & Ors. 
25.	 The above view was reaffirmed in Ajit Singh Januja vs. State of 
Punjab7 and it was held that reserved category persons are entitled 
only for accelerated promotion and not consequential seniority. 
26.	 The above two decisions were followed by Ajit Singh (II) vs. State 
of Punjab8 wherein upholding the principles of accelerated promotion 
and consequential seniority as laid down in the above two cases 
it was clarified that the general candidates on promotion will get 
seniority over reserved candidates who were already promoted by 
way of accelerated promotion, if both were in the same cadre.
27.	 The Constitution (Eighty-Fifth Amendment) Act, 2002, was enacted 
to undo the principles laid down by the above decisions especially in 
Ajit Singh (II) case (supra) and the expression “with consequential 
seniority” was inserted in Article 16 (4)(A) of the Constitution. This 
amendment was given retrospective effect w.e.f. 07.06.1995, the 
date on which Article 14(4)(A) was inserted into Article 16 of the 
Constitution by the Constitution (Seventy-Seventh Amendment) 
Act, 1995.
28.	 In the meantime, following the directions of the Supreme Court in Indra 
Sawhney’s case (supra), an office memorandum was issued by the 
Government of India on 08.09.1993 designating certain categories 
of people as “creamy layer”. The State of Bihar and Uttar Pradesh 
vide The Bihar Reservation of Vacancies in Post and
Services 
(For Scheduled Castes, Scheduled Tribes and Other Backward 
Classes) (Amendment) Ordinance, 1995, and Uttar Pradesh Public 
Services Reservation for Scheduled Castes and Scheduled Tribes 
and Other Backward Classes Act, 1994, provided that IAS and IPS 
Officers would be within “creamy layer” if they have a (i) salary of 
Rs.10,000/- per month; (ii) either of the spouse is a graduate; and 
(iii) one of them owns a house in an urban area. Similarly, professionals 
with income of Rs.10 lakhs per annum were also categorized under 
the “creamy layer” with additional criteria that either of the spouse 
should be a graduate and the family owns an immovable property 
of at least Rs.20 lakhs. 
7	
[1996] 3 SCR 125 : (1996) 2 SCC 715
8	
(1999) 7 SCC 209
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29.	 In Ashoka Kumar Thakur vs. State of Bihar,9 this Court struck down 
the additional conditions of education and property prescribed in the 
Bihar and by U.P. enactment to be unconstitutional for identifying the 
“creamy layer” as violative of Articles 16(4) and 14 of the Constitution.
30.	 In Indra Sawhney (II) vs. Union of India,10 the Kerala State Backward 
Classes Act, 1995, which provided that there are no socially advanced 
sections in any backward classes of the State and that the backward 
classes in the State are not adequately represented in the services 
under the State and as such backward classes would continue to avail 
the benefit of reservation, thus, declaring that there was no ‘creamy 
layer’ amongst the OBC in the State, was struck down holding that 
‘creamy layer’ in the backward classes is to be treated at par with 
the forward classes and are not entitled to benefit of reservation. It 
was also observed that “creamy layer” is to be excluded otherwise it 
will be discriminatory and violative of Articles 14 and 16 as “forwards” 
and “creamy layer of backward classes” cannot be treated unequally.
31.	 In M. Nagaraj vs. Union of India,11 the validity of the constitutional 
amendments namely Constitution (Seventy-Seventh Amendment) 
Act, 1995, Constitution (Eighty-first Amendment) Act, 2000, 
Constitution (Eighty-second Amendment) Act, 2000 and Constitution 
(Eighty-fifth Amendment) Act, 2002, were
upheld.
32.	 In TMA Pai Foundation vs. State of Karnataka,12 the 11 Judges 
Constitution Bench of this Court laid down various principles regarding 
right to establish educational institutions, the procedure for grant of 
admission, the right of minorities and the extent of State regulatory 
mechanism. The said judgment came to be interpreted and clarified 
by Islamic Academia Education vs. State of Karnataka.13 In 
P.A. Inamdar vs. State of Maharashtra,14 the 7 Judges Constitution 
Bench held that the 5 Judges Constitution Bench in Islamic Academia 
Education case did not interpret the TMA Pai Foundation case 
correctly. In such a situation, Constitution (Ninety-Third Amendment) 
Act, 2006, was brought about to overcome the confusion alleged 
9	
[1995] Supp. 3 SCR 269 : (1995) 5 SCC 403
10	
[1999] Supp. 5 SCR 229 : (2000) 1 SCC 168
11	
(2006) 8 SCC 212
12	
[2002] Supp. 3 SCR 587 : (2002) 8 SCC 481
13	
[2003] Supp. 2 SCR 474 : (2003) 6 SCC 697
14	
(2005) 6 SCC 537
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1653
The State of Punjab & Ors. v. Davinder Singh & Ors. 
to have been created in the interpretation of TMA Pai Foundation 
case and Sub-Article (5) was inserted in Article 15 of the Constitution 
which reads as under:
“Article 15 (5)- Nothing in this article or in sub-clause (g) of 
clause (1) of article 19 shall prevent the State from making 
any 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 in so 
far 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.”
33.	 The validity of the Constitution (Ninety-Third Amendment) Act, 2006, 
was upheld by the 5 Judges Constitution Bench in Ashok Kumar 
Thakur case (supra) which provided reservation for socially and 
educationally backward classes of citizens or for scheduled castes 
and scheduled tribes in educational institutions insofar as it relates 
to State maintained institutions and Government aided educational 
institutions.
34.	 A similar view was expressed in Pramati Educational & Cultural 
Trust vs. Union of India,15 wherein also the constitutional validity 
of the Constitution (Ninety-Third Amendment) Act, 2006, was upheld 
and reservation for socially and educationally backward classes of
citizens or for scheduled castes and scheduled tribes in unaided 
private institutions as well was upheld.
35.	 In Ram Singh vs. Union of India,16 reservation for Jats in various 
States was struck down as no such reservation in their favour was 
recommended by the National Commission for Backward Classes 
and there was no quantifiable data for justifying reservation in 
their favour. Accordingly, Constitution (One Hundred and Second 
Amendment) Act, 2018, was brought about and Articles 338B & 
342A were inserted constituting a separate commission for socially 
and educationally backward classes and empowering the President 
to specify socially and educationally backward classes.
15	
(2014) 8 SCC 1
16	
[2015] 5 SCR 670 : (2015) 4 SCC 697
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36.	 In Jaishri Laxmanrao Patil vs. State of Maharashtra,17 5 Judges 
Constitution Bench struck down the reservation for Marathas in the 
State of Maharashtra on the ground that the State does not have 
power to declare any class of people as socially and educationally 
backward classes.
37.	 In order to overcome the difficulty created by the above decision, 
Constitution (One Hundred and Fifth Amendment) Act, 2021 was 
brought about amending Article 342A so as to provide that the list 
of socially and educationally backward classes of citizens prepared 
by the President is only for the Central Government but the State 
can also prepare its own list.
38.	 In between, Constitution (One Hundred and Third Amendment) 
Act, 2019, was enacted whereby Sub-Article (6) was inserted in 
Articles 15 and 16 in the following terms:
“Article 15 (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) 
in so far 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.
Article 16 (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 
17	
(2021) 8 SCC 1
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1655
The State of Punjab & Ors. v. Davinder Singh & Ors. 
sections of citizens other than the classes mentioned 
in clause (4), in addition to the existing reservation and 
subject to a maximum of ten per cent. of the posts in 
each category.”
39.	 The validity of the aforesaid amendment was upheld in Janhit 
Abhiyan vs. Union of India (EWS Reservation).18
40.	 The various amendments carried out in the Constitution since its 
adoption in relation to making provision for reservation can be 
summarised as under:-
1.
Constitution  
(First Amendment)  
Act, 1951
Inserting Sub-Article (4) to Article 15 
providing reservation for socially and 
educationally backward classes.
2.
Constitution  
(Seventy-seventh 
Amendment) Act, 1995
Inserting Sub-Article (4)(A) to Article 16 
providing reservation in promotion.
3.
Constitution (Eighty-first 
Amendment) Act, 2000
Inserting Sub-Article (4)(B) to Article 16 
providing for carry forward of vacancies.
4.
Constitution  
(Eighty-second 
Amendment) Act, 2000
Inserting proviso to Article 335 providing 
relaxation of qualifying marks for the 
reserved category of persons.
5.
Constitution (Eighty-Fifth 
Amendment) Act, 2002
Inserting the phrase “with consequential 
seniority” in Article 16(4)(A) providing 
not only accelerated promotion but 
consequential seniority as well to the 
reserved category.
6.
Constitution (Ninety-Third 
Amendment) Act, 2006
Inserting Sub-Article (5) to Article 15 
providing for mechanism of
admission 
in Education Institution to the reserved 
category.
7.
Constitution (One Hundred 
and Second Amendment)  
Act, 2018, and Constitution 
(One Hundred and Fifth 
Amendment) Act, 2021
Providing for identification of backward 
classes by the Centre and the States by 
inserting Article 342A.
8.
Constitution (One Hundred 
and Third Amendment)  
Act, 2019
Providing for reservation of equally 
weaker section EWS by inserting  
Sub-Article (6) of Article 16.
18	
[2022] 14 SCR 1 : (2023) 5 SCC 1
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41.	 The above summary of the constitutional amendments carried out for 
the purposes of extending the benefit of reservation to the reserved 
categories would reveal that the Constitution has been amended as 
many as 9 times in order to implement the reservation policy in a fair 
and impartial manner so that the so-called depressed classes may 
be elevated at par with the forward classes. Most of the times the 
amendments to the Constitution were carried out either to undo the 
decisions of this Court or to carry out the directions or the observations 
made by this Court in implementation of the reservation policy in a 
more fair and reasonable manner so that the benefit of reservation 
trickles down to the most backward of the other backward classes/
scheduled castes/scheduled tribes.
CENTRAL GOVERNMENT AND STATE GOVERNMENT 
COMMISSIONS ON SC/ST AND OBCs
42.	 Apart from the above legislative exercise, the Union Government 
after independence, set up a Backward Class Commission in the 
year 1953 under the chairpersonship of Kaka Saheb Kalelkar. The 
Commission in its Report recommended inter alia that all women as 
a ‘class’ be treated as ‘backward’; all qualified students of backward 
classes be granted benefit of 70% seats reservation in all technical 
and professional Institutions; in all Government services and local 
bodies backward classes should be provided minimum reservation 
that is 25% in Class-I, 33-½% in
Class-II, 40% in Class-III and 40% 
in Class-IV. The said Commission in its Report observed :
“if entire communities, with some exceptions, are treated 
to be backward, actual needy would lose in the mob 
and they seldom attract attention towards them and get 
sufficient help.”
43.	 The Commission also observed that in certain States such as 
Rajasthan vagabond/restless movers/wanderers who groom and 
breed animals should be given special protection. The report was 
placed in the Parliament with an action plan but it went undebated. 
The Central Government at that time had spent a sum of Rs. 4.5 lakh 
which is equivalent to about Rs. 5 crore as of today.
44.	 In 1965, the Central Government appointed a Committee to advise 
on the revision of the existing list of scheduled castes and scheduled 
tribes. This Committee popularly known as B.N. Lokur Committee,
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
reported and concluded that the question of de-scheduling (or 
excluding) of relatively advanced communities should receive serious 
and urgent consideration. It recommended for the intensive periodical 
survey of the socio-economic progress made by each of the scheduled 
castes and scheduled tribes, probably to exclude certain communities 
that have progressed and to include those that have been left behind. 
It further recommended that in framing of development schemes for 
scheduled castes and scheduled tribes, priority ought to be given to 
the welfare of the most backward amongst them. It also prepared a 
list of communities (castes/tribes) that were relatively forward and 
recommended to de-schedule or exclude 14 scheduled tribes and 
28 scheduled castes from the list.
45.	 The Constitution though aimed at a casteless society, it defined certain 
depressed/disadvantageous classes as Scheduled Castes and certain 
tribes living in forest, hilly areas and other remote areas as Scheduled 
Tribes. However, a significant segment of the population that was 
otherwise socially, economically and politically backward were not 
given any privileges or benefits of upliftment. They were marginalised 
and were left behind in education as well as employment. In order to 
address this anomaly, the most talked about second backward class 
Commission was constituted on 1st January, 1979 by the Government 
of
India which is popularly known as B. P. Mandal Commission. This 
Commission was entrusted with the job to investigate the conditions 
of socially and educationally backward classes, to recommend the 
criteria for defining such classes of citizens, steps to be taken for 
their advancement and upliftment and the manner in which they can 
be extending the benefit of the reservation. 
46.	 The Commission submitted its report on 31st December, 1980. The 
Commission on the basis of 1961 census compiled a national list 
of 3743 classes of persons under the heading ‘Other Backward 
Classes’ out of which 2108 were classified as ‘depressed backward 
classes’. The Commission recorded that 52 per cent (including 44 
per cent hindus and 8 per cent non-hindus) of the citizens are Other 
Backward Classes whereas 22.5 per cent are Scheduled Castes and 
Scheduled Tribes in India. 
47.	 The Government while implementing the recommendations of the 
Mandal Commission took a historic decision on 6th August, 1990 
to introduce 27 per cent reservation for Other Backward Classes
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which were socially and educationally backward classes. This was 
in addition to 22.5 per cent reservation for Scheduled Castes and 
Scheduled Tribes. The 27 per cent reservation in favour of other 
backward classes was confined as this Court in M.R Balaji vs. State 
of Mysore19 has put a cap of 50 per cent mark for the purposes of 
reservation. 
48.	 The Mandal Commission thus recommended for 27 per cent 
reservation for OBCs in public sector and Government jobs and 
in promotion at all levels. It is also recommended that in the event 
the above quota remains unfilled in a particular year, the remaining 
vacancies be carried forward for a period of 3 years whereupon 
the unfilled vacancies if any would stand de-reserved. It further 
recommended for age relaxation to the OBCs at par with the 
Scheduled Castes & Scheduled Tribes. The validity of the aforesaid 
27 per cent reservation in favour of OBCs was upheld by this Court 
in the year 1992 in Indra Sawhney (supra).
49.	 In addition to the above exercise of the Government on the executive/
administrative side, on the direction of this Court in the case of 
E.V. Chinnaiah’s (supra), the Government of India appointed a 
single Member Justice Usha Mehra Commission of a National level 
to examine the issue of sub-categorization of scheduled castes in 
Andhra Pradesh. This Commission appointed in the year 2006 was 
followed by another Commission set up by the Central
Government 
in 2007 under the chairpersonship of Justice G. Rohini. It was also 
entrusted with the task of studying the entries in the Centre list of the 
OBCs and to examine the extent of equitable distribution of benefits 
of reservation amongst the OBCs. One important aspect which was 
also entrusted to this Commission was to work out a mechanism for 
sub-categorization of OBCs. 
50.	 This apart, different States on different occasions had set up various 
State Level Committees and Commissions to study and report 
about the improvements to be made in reservation policy and the 
smooth implementation of the provisions of reservations vis-a-vis the 
concerned State. In this context, it may be beneficial to refer to some 
of the such Committees and Commissions set up by different States:
19	
[1963] Supp. 1 SCR 439 : AIR 1963 SC 649
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
1.
1961
Dr R. Naganna 
Gowda 
Committee, 
Karnataka
It suggested 50% reservation in technical 
and professional institutions and 45% in 
Government services.
2.
1963
V.K. 
Vishwanathan 
Commission, 
Kerala 
It recommended reserving 40% seats in 
technical and professional colleges for OBC 
students and 10% for SC/ST students.
3.
1964
B.D. 
Deshmukh 
Committee, 
Maharashtra
It recommended grouping of backward 
classes into four categories and reservation 
in Government services and educational 
institutions related in the ratio of their 
percentage in the State.
4.
1969
A.N. 
Sattanathan 
Commission, 
Tamil Nadu
It submitted its Report in 1970 and recommended 
33% reservation in State Government jobs and 
in educational institutions. 
5.
1970
Manohar 
Pershad 
Commission, 
Andhra 
Pradesh
It identified four different categories of OBCs 
and recommended reservations in their 
favour, in both professional colleges and in 
Government services.
6.
1970
J.N. Wazir 
Committee, 
Jammu and 
Kashmir
On the basis of the recommendations of 
this Committee “The Jammu and Kashmir 
Scheduled Castes and Backward Classes 
(Reservation) Rules, 1970” were framed by 
the State Government.
7.
1973
Dhebar 
Commission 
Ministry of 
Tribal Affairs
This Commission was set up to study the 
vulnerable tribal groups. It suggested creation 
of separate category for the less developed 
among the tribal groups. In 1975 Government
of India carried out an exercise to identify the 
most vulnerable tribal groups as a separate 
category and declared 52 of them to be in 
such a group wherein 23 new groups were 
added in 1993 making it a total of 75 out of 
705 scheduled tribes.
8.
1975
L.G. Havanur 
Commission, 
Karnataka 
It recommended 16% reservation for backward 
communities, 10% for backward castes and 6% 
for backward tribes in Government vacancies 
and educational institutions.
9.
1976
Mungeri Lal 
Commission, 
Bihar
It identified 128 communities as backward and 
94 of them as most backward. It recommended 
20% reservation in Government services and 
24% in professional institutions.
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10.
1976
A.R. Bakshi 
Commission, 
Gujarat
It listed 82 castes and communities as socially 
and educationally backward and recommended 
10% reservation in Government services and 
in professional institutions.
11.
1977
Chhedi 
Lal Sathi 
Commission, 
Uttar Pradesh
It is one of the most talked about Commission 
on most backward classes. It recommended 
classification of backward classes into 
3 categories and suggested reservation 
in Government services and educational 
institutions under a separate quota.
12
1990
Justice 
Gurnam Singh 
Commission, 
Haryana
The Commission found that reservation 
benefits have been primarily availed by one 
particular scheduled caste and the overall 
benefits have not percolated down to rest 
of the 36 scheduled castes. Consequently, 
the scheduled castes’ list for the purposes of 
reservation in Haryana was divided into Block 
‘A’ and Block ‘B’ putting the 36 scheduled 
castes in Block ‘A’ and the one that has availed 
most of the benefits in Block ‘B’.
13.
1997
Justice P. 
Ramchandra 
Raju 
Commission, 
Andhra 
Pradesh
This Commission was set up on the demand 
of the extremely backward castes within the 
scheduled castes of the State of Andhra 
Pradesh. The Report opined that largely the 
benefits of reservation had gone to a particular 
caste among the scheduled castes and 
therefore recommended for categorizing of the 
scheduled castes into Group A, B, C and D. It 
is on the basis of the
recommendation of this 
Commission that scheduled castes in Andhra 
Pradesh were categorized in Group A, B, C 
and D which enactment led to E.V. Chinnaiah 
where this Court declared such classification 
as unconstitutional opining that scheduled 
castes/scheduled tribes are one homogenous 
class and cannot be sub-categorised for the 
purposes of reservation.
14.
2001
Hukam Singh 
Committee, 
Uttar Pradesh
The Committee upon study found that the 
benefits of reservation was not percolating 
down to the most depressed classes of persons 
rather the Yadav’s alone had a maximum 
share of jobs. Thus, it recommended sub-
categorisation of list of scheduled castes/OBC.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
15.
2003
Lahuji Salve 
Commission, 
Maharashtra
This Commission was appointed to study the 
socio-economic condition of Mangs caste 
which was within the list of scheduled castes. 
The Commission recommended the sub-
classification of the scheduled castes as Mangs 
being the lowest in the hierarchy of caste 
system were not being adequately benefited. 
16.
2005
Justice A.J. 
Sadashiva 
Commission,
Karnataka
This Commission was appointed to identify the 
castes, races and tribes of scheduled castes 
in the State to whom the benefit of reservation 
was not being adequately extended. 
The Commission recommended the division 
of 101 castes specified in the Presidential 
List into four categories with 15% of the total 
reservation of scheduled castes to each of 
the categories.
17.
2007
Mahadalit 
Commission, 
Bihar
The Commission was to identify the castes 
within the scheduled castes that lagged behind. 
The Commission recommended inclusion of 
18 castes as extremely weaker castes from 
amongst the list of scheduled castes.
18.
2007
Justice Jasraj 
Chopra 
Committee, 
Rajasthan
The Committee reported that Gurjar’s live 
in remote, isolated and uninhabited areas 
and are extremely backward and therefore 
recommended that they may be provided with 
better facilities than those available to the other 
backward classes.
19.
2008
Justice 
Thiru M.S. 
Janarthanam 
Committee, 
Tamil Nadu
The Committee
recommended that the 
Arunthathiyar’s deserve differential treatment 
in reservation.
20.
2017
K. Ratna 
Prabha 
Committee, 
Karnataka
Based upon the recommendation of this 
Committee, The Karnataka Extension of 
Consequential Seniority to Govt. Servants 
Promoted on the Basis of Reservation (to 
the posts in the Civil Services of the State) 
Act, 2018 was enacted and the matter came 
up to the Supreme Court wherein the validity 
of the Act was upheld and it was opined that 
the reserved category candidates are not 
only entitled to accelerated promotion but to 
consequential seniority.
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21.
2018
Justice 
Raghvendra 
Kumar 
Committee, 
Uttar Pradesh
According to the Report there are 79 castes 
under the OBC category in the State out of 
which 9 are backward, 37 are more backward 
and 33 are most backward classes. Therefore, 
it recommended splitting of 27% quota of OBC 
in the State: 7% for backward classes, 11% 
for more backward classes and 9% for most 
backward classes.
THE RAMIFICATIONS OF RESERVATION
51.	 The above history of “Reservation” in the country would amply 
indicate that tremendous amount of effort has been put in by all the 
three organs of the State i.e. the Legislature, the Executive and the 
Judiciary to bring about social justice by promoting the reservation 
policy and its implementation in such a manner that not only the 
backwards but the most backwards of the backwards are brought 
into the forefront with the mainstream. So the question arises that 
how far has the reservation policy succeeded in someone’s wild 
guess? Notwithstanding, the success or failure of the reservation 
policy, one thing is for sure that it has burdened the Judiciary at 
all levels specially the High Courts and the Supreme Courts with 
enormous litigation which could have been avoided if a robust 
reservation policy with a vision would have been envisaged under 
the constitutional provisions in the very beginning instead of making 
piecemeal changes. 
52.	 It is a matter of experience that every kind of
process of selection 
and appointment in the government services and admission at 
higher level has come to be challenged before the courts inter-alia 
on the grounds of misapplication of the rule of reservation. Most of 
the times, the appointments and admissions get stuck up for years 
on account of litigation. This has caused enormous delay in the 
recruitment process and the vacancies remaining unfilled for long, 
giving rise to stop-gap/ad-hoc appointments resulting in further 
litigation. It is also noticeable that enough time and energy has been 
spent by all the three wings of the State in streamlining the process 
of reservation and to evolve a flawless mechanism for implementing 
the reservation policy but still the non-visionary approach to handle 
the upliftment of the backward castes has created more difficulties 
rather than ironing them out.
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53.	 It is a matter of record that in pro-reservation agitations and anti-
reservation agitations, the peace and tranquillity of the entire country, at 
times, stood disturbed. Specially, during the anti-Mandal Commission 
agitation somewhere in 1990, most of the States witnessed large 
scale disturbances. The turmoil so created by such agitations and 
demonstrations particularly in the months of August-November of 
1990 is the ample indication of the wide spread violence. 
54.	 It may not be out of context to point out that apart from the anti-
Mandal Commission violence, the country witnessed similar violence 
in the year 2006 when the students of IITs and AIIMS came out 
on the streets opposing reservation. Also, there was violence in 
Maharashtra against the Maratha reservation, to talk about the few.
55.	 After independence, a special provision was made in the Directive 
Principles of State Policy to provide compulsory primary education 
to all children within a period of 10 years but the target could not 
be achieved even after 77 years of independence. The Central 
Government, few years back, in order to provide free education to 
children enacted Right to Education Act, 2009. The aforesaid Act 
proved to be a very weak legislation and have not been able to 
provide primary education to one and all irrespective of the caste, 
creed, race, religion and sex as most of the children of the
so-called 
depressed class either fail to attend schools or drop out after one and 
two years of education. There is no compulsion to give education to 
such children. The policy of reservation is applicable at the higher 
level only and for the purposes of employment. Thus, depriving 
such children or the drop outs, at the primary level of the benefit of 
reservation or upliftment in any other manner, as a result of which 
these children ultimately remain the most backward of the backwards. 
56.	 The statistics proves that the deprived and the marginalized persons 
have not been able to achieve the benefit of reservation which is 
permissible at higher level as about 50% of the students from the 
most backward classes drop out of school before Class-V and 75% 
drop out before Class-VIII. The figure goes to even 95 per cent 
when it comes to the level of high school. Thus, only the children of 
some of the castes, who are already affluent or urbanized, are able 
to obtain higher education and the benefits of reservation.
57.	 By referring to the above agitations, disturbances, violence, litigation 
and shortcomings, I do not to intend to suggest that the task of
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upliftment of the downtrodden be brought to an end or that the 
government should give up the reservation policy. But the issue is 
how to carry out the process to bring about equality and development 
of all, the manner of identification of the so-called depressed classes 
or the downtrodden and the form/nature of steps to be taken for their 
upliftment. The Government has used caste as the basis for the 
upliftment rather than identifying the class of people on the basis of 
vocation or their social and economic conditions who actually requires 
help to be promoted to the level of the forward class. It is for this 
reason, today we are grappling with a situation of sub-classification 
of the castes notified for the purpose of reservation. The experience 
shows that the better of the class amongst the backwards eats up 
most of the vacancies/seats reserved leaving the most backward 
with nothing in their hands.
58.	 This may be illustrated and better explained by taking three students 
namely ‘A’, ‘B’ and ‘C’. Both ‘A’ & ‘B’ are equals in every manner as 
they come from well-to-do family having same kind of status, family 
background, education and financial capacity. ‘A’ being a general 
category candidate, qualifies for admission in higher education on 
merits whereas ‘B’ who belongs to a backward class competes and 
qualifies for admission in the reserved category. The student ‘C’ who 
is also of the backward class but
has no advantage as that which 
is available to both ‘A’ and ‘B’, despite competing in the backward 
category remains unsuccessful. He continues to remain unsuccessful 
in the following years as well, as again and again backward category 
candidates having the status equivalent to that of a forward class 
or that which is available to ‘A’ and ‘B’ keeps on qualifying leaving 
the most backward of the backwards far behind. In this manner, the 
most backward of the backward category loses the battle even with 
the backward classes who are practically enjoying the status of the 
forward class people.
CASTELESS SOCIETY-CASTE SYSTEM VIS-À-VIS THE VARNA 
SYSTEM
59.	 The Constitution virtually visualises a casteless society and a 
unified society but in the name of ‘equality’ to accord facility and 
privileges to the depressed class/downtrodden, it is said that we 
have continued with the so-called Manuwadi System of caste. I am 
not an expert of religious scriptures nor do I claim that I have any 
knowledge of any one of them though I may have gone through
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
Bhagwad Gita and Ramcharit Manas some times. According to my 
limited understanding of the scriptures specially the Gita, I am of the 
firm view that in primitive India there was no existence of any caste 
system rather there was categorisation of the people according to 
their profession, talent, qualities and nature. This can very well be 
reflected by verse 13 of chapter 4 and verse 41 of chapter 18 of the 
Bhagwat Gita which I quote below. 
60.	  चाातुुर्ववर्ण्यय मयाा सृृष्टंं गुुणकर्ममवि�भाागशःः। (Chapter 4, Verse 13, Bhagwat Gita)
ब्रााह्मणक्षत्रियवि�शांं� शूद्रााणांं� च परन्तप। 
कर्मा�णि� प्रवि�भक्ताानिि स्वभााववप्रभवैैगुु�णैःः�॥ (Chapter 18, Verse 41, Bhagwat Gita)
Lord Krishna says that I have categorised humans in 4 varnas 
according to their nature and characteristics. 
Gita thus only promotes varna system which is different from 
present day caste system. It lays emphasis on abilities, qualities 
and consciousness of a person to have a balanced structure of 
society and to bring out the best in every person. The four varnas 
(occupational categories) are: -
1.
Bharama
Teachers, Priests and Intellectuals  
(Priestly class)
2.
Kshatriyas
Warriors, Police and Administrators 
(Administrative class)
3.
Vaishayas
Farmers, Merchants, Traders and 
Businessman (Mercantile and Farmer class)
4.
Shudras
Artisans, Workers and Labour class  
(Worker class)
61.	 The Bhagvad Gita in subsequent verses
describes the intrinsic 
qualities of each of the varnas. The varna system depicting 
occupational categories can also be explained with the physical body 
of a person wherein the head of a person which does intellectual work 
is called ‘Bharaman’. The hands which protect him and his family 
does the job of a ‘Kshatriya’. The abdomen which requires food to 
convert it into energy refers to ‘Vaishayas’, who are predominantly 
the farmers and the merchants invested to earn livelihood. The 
lower limbs (legs) do all kind of labour work and are referred to as 
‘Shudras’.
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62.	 The Skanda Purana also contains a shloka:
 जन्मना जायत शूद्रः संंस्काारात् द्विज उच्यते | 20
which means that everyone is born as Shudra i.e. to work and slowly 
each one of them elevates himself to a higher status of Vaishya, 
Kshatriya and Brahmin on the strength of his talent, quality, character 
and nature.
63.	 It means the duties of Brahmins, Kshatriyas, Vaishyas and Shudras 
were distributed according to their qualities (guns) and nature (and 
not by birth). All people have different nature and characteristics. 
Their personality is shaped according to their qualities (gunas). 
Thus, different professionals duties are suited to persons of different 
nature and character. Since the center of society is God (Parmatma), 
everyone (atma) works according to their intrinsic qualities to sustain 
themselves and the society. 
64.	 According to the varna system no one is to be considered as lower 
or higher, rather it is preached that everyone is equal fragment and a 
part and parcel of Him, the Almighty. Gita nowhere preaches that the 
aforesaid varnas are on the basis of birth and are not interchangeable. 
However, with the passage of time, the varna system deteriorated 
and the people started labelling these varnas on the basis of birth, 
ignoring the nature and characteristics of a person which is exactly 
the opposite to what is preached in Gita. The varnas were given the 
nomenclature of castes in a very loose
manner. 
65.	 Later, children of Brahmins started calling themselves as Brahmins, 
irrespective of whether they possessed the corresponding qualities 
or not. Similarly, the children of other varnas also adopted the varna 
of their father ignoring their own nature, talent and qualities. When 
this system grew rigid & birth based, it became dysfunctional. 
66.	 In short, what is intended to be conveyed is that according to Gita there 
is no caste system and the varna system (categorization) referred 
to therein is quite distinct, based upon persons nature & qualities. 
Thus, there was no caste system in ancient India i.e., Bharat. The 
misconstruction of the varna system as a caste system was a social 
defect that crept in with time and was not considered to be good as 
it divided the society and brought about discrimination & inequality. 
20	
Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34.
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The State of Punjab & Ors. v. Davinder Singh & Ors. 
67.	 The social problems created by the so-called caste system or the 
problem of untouchability etc. were widely considered to be bad 
practices prevailing in the Indian society. Thus, social reformers 
always propagated giving up of such malpractices.
68.	 Mahatma Gandhi, the Father of the Nation, during the entire 
freedom struggle strenuously worked for the upliftment of the so-
called depressed classes including ‘untouchables’. He described the 
untouchables as ‘persons of God’ - ‘Harijans’. After independence 
with the adoption of the constitution, we decided to move towards 
the unified casteless society and vide Article 17 envisaged to 
abolish the practice of untouchability in any form and contemplated 
to make untouchability ‘a punishable offence’. Notwithstanding, the 
objective of casteless society and the principle of equality; the original 
Constitution made provision by Article 15 (3) enabling the State to 
make special provision for women and children despite prohibition 
of discrimination on grounds religion, race, caste, sex or place of 
birth. Similarly, Article 16 (4) enabled the State for making special 
provision for reservation of appointments or post in favour of any 
backward class of citizens. This was done with the object to bring 
about social equity and justice.
69.	 The Constitution at the same time vide Article 341 conferred power 
upon the President to notify certain
castes, races or tribes or part of 
such caste, races and tribes to be deemed to be Scheduled Castes. 
In fact, the constitution otherwise does not recognise any caste except 
for the above deeming provision. The country as such had moved 
into a casteless society except for the above legal fiction only for 
the purposes of the constitution and not otherwise. 
70.	 In other words, to put it summarily there was no caste system in 
primitive India. Slowly the varna system prevalent was misconstrued 
to be a caste system which practice was found to be socially non-
acceptable and as such after independence with the adoption of 
the Constitution we again tried to move into a casteless society 
but in the name of social welfare to uplift the depressed and the 
backward classes, we again fell into the trap of caste system. We 
gave privilege of reservation to the depressed or the backward class 
or the Scheduled Caste to bring about equality. 
71.	 It is common understanding that what is conceded once to appease 
any class cannot be taken back. So are the benefits extended to the