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 CIVIL APPEAL NO.2317 OF 2011ETC.ETC.

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.

……….…………J. (VIKRAM NATH) NEW DELHI AUGUST 01, 2024 CIVIL APPEAL NO.2317 OF 2011ETC.ETC.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2317 OF 2011 THE STATE OF PUNJAB AND OTHERS …APPELLANT(S) VERSUS DAVINDER SINGH AND OTHERS …RESPONDENT(S) WITH C.A. No. 5593/2010 SLP (C) No. 8701/2011 W.P. (C) No. 1477/2019 W.P.(C) No. 21/2023 W.P. (C) No. 562/2022 C.A. No. 5586/2010 C.A. No. 5597/2010 C.A. No. 5589/2010 C.A. No. 5600/2010 C.A. No. 5598/2010 C.A. No. 5587/2010 C.A. No. 5595-5596/2010 C.A. No. 2324/2011 C.A. No. 6936/2015 SLP (C) No. 30766/2010 SLP (C) No. 5454-5459/2011 C.A. No. 2318/2011 SLP (C) No. 36500-36501/2011 C.A. No. 289/2014 T.C. (C) No. 37/2011 T.C. (C) No. 38/2011 T.P. (C) No. 464/2015 1 JUDGMENT 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 Court1, a great dissenter who had written as many as 486 dissenting opinions, had stated:

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:

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 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 Others4 , 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. 3 (2020) 8 SCC 65 4 (2005) 1 SCC 394 3 (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?

5 (1992) Suppl. 3 SCC 217 4

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 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 6 (2020) 8 SCC 65 5 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: -

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: -

(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 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 7 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, 8 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 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

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 subgrouping Scheduled Castes in the Presidential List, because that very judgment itself has specifically * (1992) Supp. 3 SCC 217 9 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 * (2005) 1 SCC 394 10 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 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.* * (2005) 1 SCC 394 * (2020) 8 SCC 65 11 “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 :

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 :

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 12 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. * (2020) 8 SCC 1 13

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: -

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 * (2020) 8 SCC 1 14 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 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 15 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 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 16 cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.

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 :

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.

17 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 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:

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] 19 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 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:

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 21 are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;

**** (26A) ……..

(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 * (2005) 1 SCC 394 22 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 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 Others8 , while examining the propriety 8 2002 (1) SCC 1 23 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 & Others9, 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 contextual values giving birth to the earlier view had subsequently altered substantially.

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, Ahmedabad 11 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 9 (1974) 2 SCC 402 10 AIR 1961 SC 532 11 AIR 1965 SC 1636 25 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: -

12 (2020) 4 SCC 1 26 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 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 27 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 28 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?

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 13 Benjamin Cardozo, The Nature of Judicial Process, (New Haven: Yale University Press, 13th Edition 1946) 141 30

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 Another14 , a Five-Judge Bench on the interpretation of Constitution observed as under: -

31. Following GVK Industries Limited, another Five-Judge Bench in Dr. JaiShri LaxmanRao Patil vs. Chief Minister and Others15 observed as under: -

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 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. 34

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: -

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:

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 36 political factors having a play in the matter of the disturbance in the Schedule so published by the President.

Mr. President: 218A.

Shri T. T. Krishnamachari: In reading it he has included that. Mr. President: 224.

Pandit Thakur Das Bhargava: Sir, I move:

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 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.

38 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 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.

39 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 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 40 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, in consultation with the Governor or Ruler of a State should have power to issue a general notification in the Gazette specifying all 41 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. 16 AIR (1965) SC 1269 42 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 Others18 , by holding that:

39. In Bir Singh Vs. Delhi Jal Board and Others19 , 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:

37…………………………………………………….

38. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions 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 46 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 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 47 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 48 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 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:

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 49 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:

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 50 creation of new States and alterations 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 vested with 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 51 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 Other20 which deserve to be reproduced. The issues 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: -

“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 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 54 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 of seats for the Scheduled Castes and Scheduled Tribes in the House of the People 55 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 56 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 and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 57

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 58 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 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 59 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 Others21 “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. ..……………………….”

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 21 (1990) 4 SCC 557 60 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 61 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 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 62 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 tribes specified 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 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 64 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 transgresses its 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 * K.C. Gajapati Narayan Deo vs. State of Orissa , (1953) 2 SCC 178 65 “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 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 66 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 67 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 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? ” 68

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: -

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: -

63. While summarising the issues involved in Question no. 3, Justice Jeevan Reddy held in Para 796 and 797 as under: -

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 70 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: -

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: -

67. Justice H.K. Sema, J. concurring with Justice Hegde in E.V. Chinnaiah observed in Paragraph 48 as under: -

68. Justice S.B. Sinha also in his concurring opinion observed in paragraph 76 and 92 as under: -

69. In Ashok Kumar Thakur vs. Union of India and Others22, another Five-Bench judgment, after considering earlier judgments on the issue whether the “creamy layer” principle is applicable to the Scheduled Castes and Scheduled Tribes, held that the said Principle cannot be 22 (2008) 6 SCC 1 73 applied to Scheduled Castes and Scheduled Tribes as they are separate classes by themselves. To be precise, it held as under: -

23 (2006) 5 SCC 167 24 (1976) 8 SCC 521 79 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 Another25 .

“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 25 (1998) 4 SCC 409 80 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 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 81 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 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: -

(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 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. 85

(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.

....…..…..……..………J. [BELA M. TRIVEDI] NEW DELHI;

AUGUST 01ST, 2024.

SPECIAL LEAVE PETITION (Civil) NO.30766 OF 2010 With SPECIAL LEAVE PETITION (Civil) NO.8701 OF 2011 With SPECIAL LEAVE PETITION (Civil) NO.36500-36501 OF 2011 With T.C. (C) NO.38 OF 2011 With T.P. (C) NO.464 OF 2015 1 With WRIT PETITION (Civil) NO.1477 OF 2019 With CIVIL APPEAL NO.5586 OF 2010 With CIVIL APPEAL NO.5598 OF 2010 With CIVIL APPEAL NOs.5595-5596 OF 2010 With CIVIL APPEAL NO.2324 OF 2011 With T.C (C) NO.37 OF 2011 With CIVIL APPEAL NO.5589 OF 2010 With CIVIL APPEAL NO.5600 OF 2010 With CIVIL APPEAL NO.5587 OF 2010 With SPECIAL LEAVE PETITION (Civil) NOs.5454-5459 OF 2011 With CIVIL APPEAL NO.2318 OF 2011 With CIVIL APPEAL NO.289 OF 2014 With WRIT PETITION (Civil) NO.562 OF 2022 2 JUDGMENT PANKAJ MITHAL, J.

1. Introduction 4-10 Amendments to Constitution with reference to

2. 10-23 Case Laws Central Government and State Government

3. 23-33 Commissions on SC/ST and OBC’s

4. The Ramifications of Reservation 33-39 Casteless Society - Caste System vis-à-vis the

5. 39-45 Varna System Reservation is only a medium of facility and its

6. execution revives Casteism 45-48

7. Conclusion 49-54 3 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 4 Pradesh and Ors.1 declared Section 4(5) of 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 1 (2005) 1 SCC 394 5 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 2 (1992) Supp (3) SCC 217 6 clubbed matters as the issue is common as described in the beginning.

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:

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 8 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 9 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 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 10 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 3 AIR (1951) SC 226 4 AIR (1951) SC 229 11 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.

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 12 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.

5 (1996) 6 SCC 580 13

24. In Union of India vs. Virpal Singh Chauhan6 , 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.

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 6 (1995) 6 SCC 684 7 (1996) 2 SCC 715 8 (1999) 7 SCC 209 14 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 15 “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.

29. In Ashoka Kumar Thakur vs. State of Bihar9 , 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 India10 , 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 9 (1995) 5 SCC 403 10 (2000) 1 SCC 168 16 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 India11 , 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 Karnataka12 , 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 Karnataka13 . In P.A. Inamdar vs. 11 (2006) 8 SCC 212 12 (2002) 8 SCC 481 13 (2003) 6 SCC 697 17 State of Maharashtra14, 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 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:

14 (2005) 6 SCC 537 18 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 India15 , 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 India16 , 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 15 (2014) 8 SCC 1 16 (2015) 4 SCC 697 19 classes and empowering the President to specify socially and educationally backward classes.

36. In Jaishri Laxmanrao Patil vs. State of Maharashtra17 , 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 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 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:-

seventh Amendment) Act, Article 16 providing reservation 1995 in promotion.

Constitution (Eighty-first Inserting Sub-Article (4)(B) to

3. Amendment) Act, 2000 Article 16 providing for carry forward of vacancies.

18 (2023) 5 SCC 1 21 Constitution (Eighty-second Inserting proviso to Article 335

4. Amendment) Act, 2000 providing relaxation of qualifying marks for the reserved category of persons.

Constitution (Eighty-Fifth Inserting the phrase “with

5. Amendment) Act, 2002 consequential seniority” in Article 16(4)(A) providing not only accelerated promotion but consequential seniority as well to the reserved category.

Constitution (Ninety-Third Inserting Sub-Article (5) to

6. Amendment) Act, 2006 Article 15 providing for mechanism of admission in Education Institution to the reserved category.

Constitution (One Hundred Providing for identification of

7. and Second Amendment) backward classes by the Centre Act, 2018, and the States by inserting and Constitution (One Article 342A.

Constitution (One Hundred Providing for reservation of

8. and Third Amendment) Act , equally weaker section EWS by 2019 inserting Sub-Article (6) of Article 16.

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 22 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 :

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, 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 24 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 25 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 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 26 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 19 AIR 1963 SC 649 27 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:

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 30 that has availed most of the benefits in Block ‘B’.

13. 1997 Justice P. This Commission was set up on Ramchandra Raju the demand of the extremely Commission, backward castes within the Andhra Pradesh 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 The Committee upon study Committee, found that the benefits of reservation was not percolating Uttar Pradesh down to the most depressed classes of persons rather the Yadav’s alone had a maximum share of jobs. Thus, it recommended sub-

Chopra Committee, Gurjar’s live in remote, isolated and uninhabited areas and are Rajasthan 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. The Committee recommended Janarthanam that the Arunthathiyar’s Committee, deserve differential treatment in reservation.

20. 2017 K. Ratna Prabha Based upon the Committee, recommendation of this Committee, The Karnataka 32 Extension of Consequential Karnataka 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.

21. 2018 Justice Raghvendra According to the Report there Kumar Committee, are 79 castes under the OBC category in the State out of Uttar Pradesh which 9 are backward, 37 are more backward and 33 are most backward classes.

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 33 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 34 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.

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 36 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 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- 37 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 38 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 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. चातुर्वर्ण्व मया सृष्टं गुणकमववर्भागशः । (Chapter 4, Verse 13, Bhagwat Gita) ब्राह्मणक्षवियवर्शां शूद्राणां च परन्तप।

कमाववण प्रवर्भक्तावि स्वभार्प्रभर्ैगुवणैः ॥ (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: -

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 40 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’.

62. The Skanda Purana also contains a shloka:

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 20 Skanda Purana Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34. 41 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 42 (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.

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 43 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 44 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 reserved category of persons under the constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also.

RESERVATION IS ONLY A MEDIUM OF FACILITY BUT ITS EXECUTION REVIVES CASTEISM

72. ‘Reservation’ is one of the modes of helping or uplifting the status of the OBCs/SCs/STs. Anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as ‘Anti Dalit’. At the cost of being 45 called ‘Anti Dalit’, I quote Nani A Palkiwala from his book ‘We, The Nation, The Lost Decades)21 “The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism, the judgment fractures the nation and disregards the basic structure of the Constitution. The decision would revitalise casteism, cleave the nation into two – forward and backward - and open new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgments will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would not become the privileged.”

73. In fact, Scheduled Castes, Scheduled Tribes and other backward classes simply deserve equality with the other forward classes of people. Justice O. Chinnappa Reddy in K C Vasantha Kumar & Anr. vs. State of Karnataka22 said “they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of rights and not of philanthrophy. They ask for parity and not charity.” 21 NANI PALKIWALA, WE, THE NATION: THE LOST DECADES 179 (Mehta Publishing House 1995) 22 1985 SCC Suppl. 714 46

74. In State of Kerala vs. N M Thomas23, Justice V R Krishna Ayer said “you can’t throw to the winds considerations of administrative capability and grind the wheels of Government to a hault in the name of ‘harijan welfare’.”

75. This Court in A. Periakaruppan Chettiar vs. State of Tamil Nadu & Ors.24 observed that reservations should not be allowed to become a vested interest. In Akhil Bharatiya Soshit Karamchari Sangh vs. Union of India & Ors. 25 it was observed that efficacy of the reservation policy will depend upon how soon reservations can be done away with. The then Chief Justice of India Y.V. Chandrachud counselled in Vasanth Kumar (supra), “the policy of reservation in employment, education and legislative institutions should be reviewed every five years or so.”

76. Pandit Jawahar Lal Nehru in his letter dated 27th June 1961 addressed to all the Chief Ministers of all the States laments upon the habit of giving reservations and privileges to any caste or group and expresses that such practice ought to be given up 23 (1976) 2 SCC 310 24 (1971) 1 SCC 38 25 (1981) 1 SCC 246 47 and emphasis to help the citizens on economic considerations and not on caste basis and that the Scheduled Castes and Scheduled Tribes do deserve help but not in the shape of any kind of reservation more particularly in services. He wrote:

Despite the views so expressed, the Constitutional amendments envisaged to promote the depressed and the backward classes of persons to bring them to the level of the privileged class enjoying the status of an urban elite. Thus, the reservation policy was rightly applied and since its implementation faced difficulties as some in the backward classes have marched ahead, it has become imperative to uplift the backward of the backwards, for which purpose sub-classification has become the order of the day.

78. I had the privilege of going through the erudite judgments of the Chief Justice and my esteemed brother Justice Gavai.

79. The Chief Justice in his opinion has dwelled upon the legal aspects to answer the core issue whether sub-classification of the scheduled castes is constitutionally permissible for the 49 purposes of reservation. He has clearly opined that this Court in Indra Sawhney (Supra) never intended to limit the application of sub-classification to the other backward classes only. If any class is not integrated it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution, so long persons in a class are not similarly situated. There is no violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste as by such sub-classification no caste is being included or excluded from the list of scheduled castes.

80. His Lordship Justice Gavai in his opinion quoted an example where a member of a backward class becomes an IAS or an IPS or any other officer of the All India Service and improves upon his status in the society but even then his children get full benefits of reservation. No doubt, “one swallow does not make a summer” meaning thereby that if few members of a particular caste/class advances in the society the entire caste or class would not cease to be backward. Nonetheless if any member of designated backward class acquires a higher status and attains equality with the forward class, it is difficult to comprehend how 50 his children would be treated as depressed, downtrodden or backward in any manner be it socially, economically or educationally. Therefore, the caste to which this person belongs may not be excluded as a whole from the benefit of reservation but certainly the family which has obtained the benefit once shall not be allowed to take advantage of reservation in the next generation. The reservation to such families has to be confined to one generation only.

81. It has rightly been stated by my brother Justice Gavai in his opinion that Justice Krishna Iyer in N. M. Thomas (supra) has repeatedly observed that State is entitled to take steps for weeding out socially, economically and educationally advanced sections of scheduled castes and scheduled tribes from the ambit of reservation.

82. It has rightly been observed that a child studying in St. Stephen’s College or any good urban college cannot be equated with a child studying in a rural school/college and that he cannot be grouped into a same bracket.

83. In these circumstances my brother Justice Gavai has rightly concluded that the State must evolve a policy of identifying the 51 creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation.

84. Agreeing with the scholarly separate opinions authored by the Chief Justice and Brother Gavai, J., I summarise my views as under:

classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful;

(ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society 52 except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);

(iii) The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and

(iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category. 53

85. The reference is accordingly answered and it is held that sub-

classification of scheduled castes is permissible in law for the purposes of reservation.

……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

AUGUST 1, 2024.

54 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE / ORIGINAL JURISDICTION CIVIL APPEAL NO. 2317 of 2011 ETC. ETC.

1. I have had the privilege of reading the lucid and detailed opinion(s) authored by Hon’ble Dr. Justice D.Y.Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively. I am fully in agreement with both opinions to the extent that the validity of sub-classification within Scheduled Castes has been held to be constitutionally permissible. Moreover, I am fully in agreement with the opinion(s) to the extent that any exercise involving sub-classification by the State, must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole. Civil Appeal No. 2317/2011 etc. etc. Page 1 of 2

2. However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.

…………………………………………J. [ SATISH CHANDRA SHARMA ] New Delhi August 01, 2024.

Civil Appeal No. 2317/2011 etc. etc. Page 2 of 2