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

2. The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities – So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub-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. [Para 84(i)]

3. Sub-classification of Scheduled Castes is permissible in law for the purposes of reservation. [Para 85]

Held (per Satish Chandra Sharma, J.) (Concurring): 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. [Para 1]

Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law was settled by the Constitution Bench in E.V. Chinnaiah after considering all the previous judgments including Indra Sawhney and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in Davinder Singh, and that too without assigning any reason much less cogent reason for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis. [Para 79(i)]

2. The Nine-Judge Bench in Indra Sawhney and the Five-Judge Bench in Jarnail Singh had not dealt with the issue of subclassification 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. [Para 79(viii)]

3. 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. [Para 79(ix)]

4. 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. [Para 79(x)]

5. The law laid down by the Five-Judge Bench in E.V. Chinnaiah is the correct law and deserves to be confirmed. [Para 80] Reservation – Whether sub-classification of Scheduled Castes for reservation was excluded or barred by the Nine Judge Bench decision in Indra Sawhney case – Held, No. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): In Indra Sawhney, this Court did not limit the application of sub-classification only to the Other Backward Class – This Court upheld the application of the principle to beneficiary classes under Articles 15(4) and 16(4). [Para 205(b)] Held (per B.R. Gavai, J.) (Concurring): In Indra Sawhney,

7 Learned Judges affirmed the position as laid down in N.M. Thomas that clause (4) of Article 16 is not by way of an exception to clause (1) of Article 16, but it is an emphatic way of stating a principle implicit in Article 16(1) – It has been held that further classification of backward classes into backward and more backward classes is permissible under the Constitution – It has been held in Indra Sawhney that under Article 16(4) the Scheduled Castes are also included in the term ‘backward class of citizens’. [Paras 247, 248] Held (per Pankaj Mithal, J.) (Concurring): The Chief Justice in his opinion has clearly opined that this Court in Indra Sawhney 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. [Para 79] Held (per Bela M. Trivedi, J.): Though Indra Sawhney had sought to define “backward class” in terms of social backwardness, while considering the ambit of “backward class” for the purpose of Article 16(4), it did not deal with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the light of Article 341/342, rather it categorically kept the Scheduled Castes/ Scheduled Tribes outside the purview of consideration – The Scheduled Castes being the most backward class amongst the backward classes, and having acquired a special status by virtue of Article 341, the question of defining “backward class” qua the “Scheduled Castes” did not arise, and rightly not dealt with in Indra Sawhney for the purposes of Article 16(4) of the Constitution. [Para 70] Reservation – Whether Scheduled Castes under Article 341, constitute a homogeneous class – Held (per majority), No – Constitution of India – Art. 341.

Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): 1. In Chinnaiah, Justice Santosh Hegde observed that the Castes notified by the President in the exercise of power under Article 341 form a class in themselves – For this purpose, the learned Judge relied on certain observations of the Constitution Bench in NM Thomas case – In NM Thomas however, rules providing concessions to the members of the Scheduled Castes for qualifying at the entrance examination were challenged – One of the issues before the Court was whether the concession to the members of the Scheduled Castes violated Article 16(2) since it discriminates solely on the ground of “caste” – To overcome the embargo placed by Article 16(2), the learned Judges observed that provision for affirmative action is made in favour of the Scheduled Castes, which once notified by the President in exercise of the power under Article 341 are not a “caste” but a class – The class that is constituted by the Presidential notification as the Scheduled Castes consists of numerous castes, thereby forming a class – The observations in NM Thomas do not go further to state that it is a homogenous class that cannot be classified further – Additionally, the approach adopted in NM Thomas by this Court that the Scheduled Castes are a class because they comprise of a collection of castes must be read in the context of the nine-Judge Bench decision in Indra Sawhney, where this Court held that caste is itself a class – Therefore, the inference drawn by Justice Hegde in Chinnaiah that the Scheduled Castes are a homogenous class based on the above observations in NM Thomas is erroneous. [Paras 113, 114]

2. Article 341(1) does not create a deeming fiction – The phrase “deemed” is used in the provision to mean that the castes or groups notified by the President shall be “regarded as” the Scheduled Castes – Even if it is accepted that the deeming fiction is used for the creation of a constitutional identity, the only logical consequence that flows from it is that castes included in the list will receive the benefits that the Constitution provides to the Scheduled Castes – The operation of the provision does not create an integrated homogenous class. [Para 205(c)]

3. Sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List – Sub-classification would violate the provision only when either preference or exclusive benefit is provided to certain castes or groups of the Scheduled Castes over all the seats reserved for the class. [Para 205(d)] Held (per B.R. Gavai, J.) (Concurring): The ground realities cannot be denied – Even among the Scheduled Castes, there are some categories who have received more inhuman treatment for centuries and generations as compared to the other categories – The hardships and the backwardness which these categories have suffered historically would differ from category to category – Therefore, merely because they are part of a single or a combined Presidential List, it cannot be said that they form part of a homogeneous group. [Para 261]

Held (per Bela M. Trivedi, J.) (Dissenting): 1. While giving a broad and generous construction to the Constitutional provisions, the rule of “plain meaning”, or “literal” interpretation, which is the “primary rule” has to be kept in mind. [Para 79(ii)]

2. The Presidential List specifying “Scheduled Castes” under Article 341 assumes finality on the publication of the notification, and the castes, races or tribes, or groups within castes, races or tribes specified in the notification are deemed to be the “Scheduled Castes” in relation to that State or Union Territory as the case may be, for the purposes of the Constitution and as such assume special status of “Scheduled Castes”. [Para 79(iii)]

3. 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. [Para 79(iv)]

4. 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. [Para 79(v)] Reservation – Whether State legislature has the power of subclassification of Scheduled Castes under Arts. 15 and 16 – Held (per majority), Yes – Constitution of India – Arts. 15 and 16. Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): Historical and empirical evidence demonstrates that the Scheduled Castes are a socially heterogenous class – Thus, the State in exercise of the power under Articles 15(4) and 16(4) can further classify the Scheduled Castes if (a) there is a rational principle for differentiation; and (b) the rational principle has a nexus with the purpose of sub-classification. [Para 205(e)] Held (per B.R. Gavai, J.) (Concurring):

1. It is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented – If the State while discharging that duty finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for Scheduled Castes and Scheduled Tribes, can the State be denied its right to give more preferential treatment for such categories? The answer would be in the negative, since the same would not amount to tinkering with the Presidential List. [Para 258]

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

3. However, merely because more preferential treatment is provided to the more backward or more inadequately represented among the Scheduled Castes, it would not amount to tinkering with the Presidential List – The same would be permissible in view of the law laid down by the 9-Judge Bench in the case of Indra Sawhney. [Para 260]

Held (per Bela M. Trivedi, J.) (Dissenting): 1. 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. [Para 79(vi)]

2. 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. [Para 79(vii)] Reservation – Criteria and scope for sub-classification of Scheduled Castes – Discussed.

Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.): 1. The purpose of the reservation clause is to remedy the inadequate representation in public services of certain “classes” – The intent of Article 16(4) is to cover those classes which have been inadequately represented because of their backwardness. [Paras 165, 166]

2. However, adequacy of representation when determined purely from a numerical perspective without accounting for factors such as representation vis-à-vis posts would dilute the purpose of the provision – The objective of Article 16(4) is to ensure effective representation of the class in the services of the State across posts and grades – The objective of the provision is not to emulate the existing social hierarchy where the low-grade posts are occupied by the socially backward while supervisory and managerial posts continue to be occupied by the advanced classes – If the objective of Article 16(4) is to be achieved in the truest sense, the inadequacy of representation must not be determined only on the basis of the total number of members of the backward class in the services of the State but by assessing the representation of the class across various posts. [Paras 167, 168]

3. Since the purpose of Articles 15(4) and 16(4) is to ensure equality of opportunity of the socially backward classes, the criterion for sub-classification within a class (be it the Other Backward Classes or the Scheduled Castes or Tribes) must be an indicator of social backwardness – The yardstick for classification must differentiate the class based on inter-se social backwardness – The inter-se backwardness could be identified based on the same or different identity. [Para 174]

4. Since the State can use any yardstick to determine inter-se backwardness, it is not necessary that the criteria for subclassification and the criteria used to distinguish the class from the other classes must be the same – How does the State identify inter-se social backwardness within the Scheduled Castes? The inter-se backwardness can, inter alia, be identified based on inadequacy of effective representation – However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness – The State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. [Paras 175, 177]

5. While the State may embark on an exercise of sub-classification, it must do so on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State – It cannot merely act on its whims or as a matter of political expediency – The decision of the State is amenable to judicial review – When its action is challenged under Article 226 or before this Court under Article 32, the State must provide justification and the rationale for its determination – No State action can be manifestly arbitrary – It must be based on intelligible differentia which underlie the sub-classification – The basis of the sub-classification must bear a reasonable nexus to the object sought to be achieved. [Para 190]

6. Though sub-categorization based on each caste is permissible, there can never be a situation where seats are allocated for every caste separately – Though each caste is a separate unit, the social backwardness suffered by each of them is not substantially distinguishable to warrant the State to reserve seats for each caste – If the social backwardness of two or more classes is comparable, they must be grouped together for the purposes of reservation. [Para 195]

7. The scope of sub-classification of the Scheduled Castes is summarized as follows: (i) The objective of any form of affirmative action including sub-classification is to provide substantive equality of opportunity for the backward classes – The State can subclassify, inter alia, based on inadequate representation of certain castes – However, the State must establish that the inadequacy of representation of a caste/group is because of its backwardness; (ii) The State must collect data on the inadequacy of representation in the “services of the State” because it is used as an indicator of backwardness; and (iii) Article 335 of the Constitution is not a limitation on the exercise of power under Articles 16(1) and 16(4) – Rather, it is a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services – Efficiency of administration must be viewed in a manner which promotes inclusion and equality as required by Article 16(1). [Para 205(f)]

Held (per B.R. Gavai, J.) (Concurring): 1. For sub-classification amongst the Scheduled Castes, the State will have to justify that the group for which more beneficial treatment is provided is inadequately represented as compared to the other castes in the said List. [Para 296 (iii)]

2. While doing so, the State will have to justify the same on the basis of empirical data that a sub-class in whose favour such more beneficial treatment is provided is not adequately represented. [Para 296 (iv)]

3. However, while providing for sub-classification, the State would not be entitled to reserve 100% seats available for Scheduled Castes in favour of a sub-class to the exclusion of other castes in the List. [Para 296 (v)]

4. Such a sub-classification would be permissible only if there is a reservation for a sub-class as well as the larger class. [Para 296 (vi)] Held (per Vikram Nath, J.) (Concurring): Any exercise involving sub-classification by the State must be supported by empirical data. [Para 1]

Held (per Satish Chandra Sharma, J.) (Concurring): I am fully in agreement with the opinion(s) authored by Hon’ble Dr. Justice D.Y. Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai, respectively 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. [Para 1]

Reservation – Applicability of creamy layer principle to the Scheduled Castes – Discussed.

Held (per B.R. Gavai, J.): 1. Taking into consideration that the Constitution itself recognizes the Scheduled Castes and Scheduled Tribes to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes – If a person from such a category, by bagging the benefit of reservation achieved a position of a peon or maybe a sweeper, he would continue to belong to a socially, economically and educationally backward class – At the same time, the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action – They have already reached a stage where on their own accord they should walk out of the special provisions and give way to the deserving and needy. [Para 294]

2. The State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action – Only this and this alone can achieve the real equality as enshrined under the Constitution. [Para 295]

3. The finding of M. Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law. [Para 296 (vii)]

4. The criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. [Para 296 (viii)]

Held (per Vikram Nath, J.) (Concurring): I am in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. [Para 2]

Held (per Pankaj Mithal, J.) (Concurring): 1. Justice Gavai has rightly concluded that the State must evolve a policy of identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation. [Para 83]

2. In the Constitutional regime, there is no caste system and the country has moved into a casteless society 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). [Para 84(ii)]

3. 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. [Para 84(iii)]

4. 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. [Para 84(iv)] Held (per Satish Chandra Sharma, J.) (Concurring): 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. [Para 2]

Held (per Bela M. Trivedi, J.) (Dissenting): In so far as Article 15(4) and 15(5) are concerned, the use of the word “any” before the words “socially and educationally backward classes” and the use of the word “the” before “Scheduled Castes/Scheduled Tribes” clearly indicate that the said provisions pertain to the “Other Backward Classes” which are socially and educationally backward, and that the said provisions also pertain to the “Scheduled Castes” and “Scheduled Tribes”, however the “Scheduled Castes” do not require any further identification once they are notified under Article 341 – As rightly held in Ashok Kumar Thakur, the “creamy layer” principle is one of the parameters to identify backward classes – The “Scheduled Castes” having already been specified in the Presidential List under Article 341, the said creamy layer principle cannot be applied to the “Scheduled Castes” for their identification as backward class. [Para 71]