Holding

Sub‑classification within Scheduled Castes and Scheduled Tribes for reservation purposes is constitutionally permissible, the Punjab Act's Section 4(5) is valid, and the E.V. Chinnaiah judgment should be reconsidered by a larger Bench.

Summary

The State of Punjab enacted Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, reserving 50% of SC quota for Balmikis and Mazhabi Sikhs. The High Court struck down this provision, relying on E.V. Chinnaiah, and the Supreme Court dismissed a related SLP. In a three‑Judge Bench, the Court examined whether the sub‑classification within Scheduled Castes is constitutionally permissible under Articles 14, 15, 16, 338, 341, 342 and 342A, and whether the State has legislative competence to make such a classification. The Bench held that sub‑classification is allowed to achieve proportional equality and does not violate Article 14, and that the Punjab Act is valid. It also concluded that the decision in E.V. Chinnaiah must be revisited by a larger Bench. Consequently, the matter was referred to a larger Bench for further consideration.

Issues considered

Whether Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 is constitutionally valid.
Whether the State of Punjab has legislative competence to enact the sub‑classification provision under Article 16(4) and related constitutional provisions.
Whether the Supreme Court decision in E.V. Chinnaiah v. State of A.P. should be revisited in light of Articles 14, 15, 16, 338, 341, 342 and 342A.

Legislation cited

Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 245, s. Article 246, s. Article 338, s. Article 341, s. Article 342, s. Article 342A
Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006s. 4(5)

Subjects

reservationsub‑classificationScheduled CastesScheduled TribesArticle 16(4)Article 14Punjab Scheduled Castes and Backward Classes ActE.V. ChinnaiahIndra Sawhneycreamy layeraffirmative actionequalitylarger bench referral

Judgment

[2020] 10 S.C.R. 857 857

THE STATE OF PUNJAB & ORS. A
v.
DAVINDER SINGH & ORS.
(Civil Appeal No. 2317 of 2011)
AUGUST 27, 2020 B
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Constitution of India – Arts. 14, 15, 16, 338, 341, 342 and
342A – Punjab Scheduled Castes and Backward Classes
C
(Reservation in Services) Act, 2006 – s. 4(5) – Sub-classification
within a socially and educationally backward class (caste) – The
State Government by a circular provided that out of seats reserved
for Scheduled Castes, fifty per cent of the vacancies would be offered
to Balmikis and Mazhabi Sikhs – The circular was struck down by
the High Court – The Supreme Court dismissed the S.L.P. against D
the same – The Punjab Act was notified in 2006 – s.4(5) of the
Punjab Act made similar provisions as made in the circular, which
was struck down – The High Court struck down the provisions
contained in s.4(5) of the Punjab Act relying upon the decision in
E.V. Chinnaiah v. State of A.P. and Ors.– In the Supreme Court, a
E
three Judges Bench referred the matter to a larger Bench for
consideration opining that the judgment of a 5-Judge Bench in E.V.
Chinnaiah is required to be revisited in the light of Art. 338 of the
Constitution and not correctly following the exposition of the law
in Indra Sawhney and Ors. v. Union of India – It was noted that the
matter involved interpretation and interplay between Arts. 16(1), F
16(4), 338 and 341 of the Constitution – Held: In Indra Sawhney, it
was held that it is permissible to make sub-classification within
socially and educationally backward classes – Same would be
applicable for Scheduled Castes and Scheduled Tribes as they
admittedly fall u/Art. 16(4) – The sub-classification was made
G
u/s.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 – As far
as its permissibility u/Art.14 is concerned, it would be permissible
on a rationale basis to make such sub-classification to provide
benefit to all to bring equality, and it would not amount to exclusion H
857
858 SUPREME COURT REPORTS [2020] 10 S.C.R.

A from the list as no class (caste) is deprived of reservation in totality
– There are unequals within the list of Scheduled Castes, Scheduled
Tribes and socially and educationally backward classes – Various
reports indicate that Scheduled Castes and Scheduled Tribes do
not constitute a homogenous group – When the reservation creates
inequalities within the reserved castes itself, it is required to be taken
B
care of by the State making sub-classification and adopting a
distribution justice method so that State Largesse does not
concentrate in few hands and equal justice to all is provided – The
State has the competence to grant reservation benefit to all Scheduled
Castes and Scheduled Tribes in terms of Arts. 15(4), 16(4) and also
C Arts. 341(1) and 342(1) – It prescribes the extent/ percentage of
reservation to different classes – 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 – The State
can provide preference on rational criteria to the class within lists
requiring upliftment – There is no vested right to claim that
D
reservation should be at a particular percentage – It has to accord
with ground reality as no one can claim the right to enjoy the whole
reservation, it can be proportionate one as per requirement – The
interpretation of Arts.14, 15, 16, 338, 341, 342 and 342A is a matter
of immense public importance, and correct interpretation of binding
E precedents in Indra Sawhney and other decisions – Therefore, the
opinion of the 3 Judges Bench is endorsed that E.V. Chinnaiah is
required to be revisited by a larger Bench – The Hon’ble Chief
Justice is requested to place the matters before a Bench of 7 Judges
or more as considered appropriate.
F Referring the matter to the larger Bench, the Court
HELD: 1. This Court discussed the concept of socially and
educationally backward classes in Indra Sawhney; however, the
Court observed that Scheduled Castes and Scheduled Tribes are
admittedly included within the backward classes, as such there
G was no need to discuss that. Thus, the discussion was confined
to whether socially and educationally backward classes can be
included in Article 16(4), it was opined that ken of Article 16(4)
is wider than Article 15(4). It was also observed that backward
classes contemplated under Article 16(4) do comprise some
castes. The Scheduled Castes include quite a few castes. Based
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 859

on the aforesaid foundational basis, interpretation was made. In A
opinion of this Court, the decision is relevant for interpreting
Article 16(4) provisions in their application to Scheduled Castes,
Scheduled Tribes, and other backward classes. They stand on
the similar footing, and they cannot be treated as different from
other as also fortified by insertion of Article 342A which is pari
B
materia to Article 341 or 342 and considering the definition in
Article 366(24) and (26C) and classification of backward classes
can be done. The Scheduled Castes and Scheduled Tribes
admittedly are backward, and the same yardstick would apply to
all. In Indra Sawhney, it was held that it is permissible to make
sub-classification within socially and educationally backward C
classes. That discussion would be applicable for Scheduled Castes
and Scheduled Tribes as they admittedly fall under Article 16(4).
[Para 36][917-C-G]
2. There is cry, and caste struggle within the reserved class
as benefit of reservation in services and education is being D
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 E
not remain on paper and to provide benefit to all and give them
equal treatment, whether it is violative of Article 14? In opinion
of this Court, 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 F
(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 G
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
homogenous class. [Para 40][918-G-H; 919-A-B]

H
860 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 3. The State’s obligation is to undertake the emancipation
of the deprived section of the community and eradicate
inequalities. When the reservation creates inequalities within the
reserved castes itself, it is required to be taken care of by the
State making sub-classification and adopting a distributive justice
method so that State largesse does not concentrate in few hands
B
and equal justice to all is provided. It involves redistribution and
reallocation of resources and opportunities and equitable access
to all public and social goods to fulfil the very purpose of the
constitutional mandate of equal justice to all. [Para 42][919-E-F]
4. Providing a percentage of the reservation within
C 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
D of reservation, within constitutional dynamics, needy can always
be given benefit; otherwise, it would mean that inequality being
perpetuated within the class if preferential classification is not
made ensuring benefit to all. [Para 43][919-G-H; 920-A]
5. The sub-classification is to achieve the very purpose, as
E 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 said
dynamics is the question to be considered authoritatively by the
Court. [Para 44][920-B]

F 6. The Scheduled Castes as per Presidential List are not
frozen for all the time, and neither they are a homogenous 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
G 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. [Para 45][920-C]

H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 861

7. The State has the competence to grant reservation A
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-
B
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 temper 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. C
[Para 46][920-D-F]
8. The State Government is conferred with the power to
provide reservation and to distribute it equitably. The State
Government is the best judge as to the disparities in different
areas. In opinion of this Court, it is for the State Government to D
judge the equitable manner in which reservation has to be
distributed. It can work out its methodology and give the
preferential treatment to a particular class more backward out of
Scheduled Castes without depriving others of benefit. [Para
47][920-F-G]
E
9. Apart from that, the other class out of Scheduled Castes/
Scheduled Tribes/socially and educationally backward classes,
who is not denied the benefit of reservation, cannot claim that
whole or a particular percentage of reservation should have been
made available to them. The State can provide such preference
on rational criteria to the class within lists requiring upliftment. F
There is no vested right to claim that reservation should be at a
particular percentage. It has to accord with ground reality as no
one can claim the right to enjoy the whole reservation, it can be
proportionate one as per requirement. The State cannot be
deprived of measures for upliftment of various classes, at the G
same time, which is the very purpose of providing such measure.
The spirit of the reservation is the upliftment of all the classes
essential for the nation’s progress. [Para 48][920-H; 921-A-B]
10. In the federal structure, the State, as well as the
Parliament, have a constitutional directive for the upliftment of H
862 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Scheduled Castes, Scheduled Tribes, and socially and backward
classes. Only inclusion or exclusion in the Presidential notification
is by the Parliament. The State Government has the right to
provide reservation in the fields of employment and education.
There is no constitutional bar to take further affirmative action
as taken by the State Government in the cases to achieve the
B
goal. By allotting a specific percentage out of reserved seats and
to provide preferential treatment to a particular class, cannot be
said to be violative of the list under Articles 341, 342, and 342A
as no enlisted caste is denied the benefit of reservation.
[Para 49][921-C-D]
C 11. The “inadequate representation” is the fulcrum of the
provisions of Article 16(4). In opinion of this Court, it would be
open to the State to provide on a rational basis the preferential
treatment by fixing reasonable quota out of reserved seats to
ensure adequate representation in services. Reservation is a very
D effective tool for emancipation of the oppressed class. The benefit
by and large is not percolating down to the neediest and poorest
of the poor. [Para 50][921-E-F]
12. The interpretation of Articles 14, 15, 16, 338, 341, 342,
and 342A is a matter of immense public importance, and correct
E interpretation of binding precedents in Indra Sawhney and other
decisions. Though this Cout has full respect for the principle of
stare decisis, at the same time, the Court cannot be a silent
spectator and shut eyes to stark realities. The constitutional goal
of social transformation cannot be achieved without taking into
account changing social realities. [Para 51][921-F-G]
F
Indra Sawhney and Ors. v. Union of India & Ors.,
(1992) 3 Suppl. SCC 217 : [1992] 2 Suppl. SCR 454;
Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,
(2018) 10 SCC 396 : [ 2018] 10 SCR 663; K. C.
Vasanth Kumar & Anr. v. State of Karnataka, (1985)
G Suppl. SCC 714 : [1985] Suppl. SCR 352; State of
Kerala & Anr. v. N. M. Thomas & Ors. (1976) 2 SCC
310 : [1976] 1 SCR 906; Jagdish Negi, President,
Uttarakhand Jan Morcha & Anr. v. State of U.P. & Anr.,
(1997) 7 SCC 203 : [ 1997] 3 Suppl. SCR 477; State
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 863

of Maharashtra v. Milind & Ors.,(2001) 1 SCC 4 : A
[2000] 5 Suppl. SCR 65; GVK. Industries Limited& Anr.
v. Income Tax Officer & Anr., (2011) 4 SCC 36 : [2011]
3 SCR 366 – relied on.
E. V. Chinnaiah v. State of A.P. and Ors. (2005) 1 SCC
394 : [1992] 2 Suppl. SCR 454; M. R. Balaji & Ors. v. B
State of Mysore & Ors., [1963] 1 Suppl. SCR 439; Bir
Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312 :
[2018] 10 SCR 513; M. Nagaraj & Ors. v. Union of
India & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl.
SCR 336; I. R. Coelho v. State of T. N., (2007) 2 SCC 1
: [2007] 1 SCR 706; Indra Sawhney and R. K. C
Sabharwal & Ors. v. State of Punjab & Ors., (1995) 2
SCC 745 : [1995] 2 SCR 35; State of Tripura & Ors. v.
Jayanta Chakraborty & Ors., (2018) 1 SCC 146 :
[2017] 11 SCR 247; B. K. Pavitra & Ors. v. Union of
India & Ors., (2019) 16 SCC 129 : [ 2019] 7 SCR 1086; D
Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical
College & Ors., (1990) 3 SCC 130 : [ 1990] 2 SCR
843; Dr. Pradeep Jain & Ors. v. Union of India & Ors.,
(1984) 3 SCC 654 : [1984] 3 SCR 942; Union of India
& Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 :
[2010] 1 SCR 483; Dega Venkata Harsha Vardhan & E
Ors. v. Akula Ventaka Harshavardhan & Ors., (2019)
12 SCC 735; S. R. Chaudhuri v. State of Punjab &
Ors. AIR 2001 SC 2707; T. M. A. Pai Foundation &
Ors. v. State of Karnataka & Ors. (2002) 8 SCC 481 :
[2002] 3 Suppl. SCR 587; Sobha Hymavathi Devi v. F
Setti Gangadhara Swamy & Ors. AIR 2005 SC 800 :
[2005] 1 SCR 848; Ashoka Kumar Thakur v. Union of
India and Ors., (2008) 6 SCC 1 : [2008] 4 SCR 1;
B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR
316; Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877;
Srish Kumar Choudhury v. State of Tripura & Ors., G
(1990) Supp. SCC 220 : [1990] SCR 576; Palghat Jilla
Thandan Samudhaya Samrakshna Samithi & Anr. v.
State of Kerala & Anr., (1994) 1 SCC 359 : [1993] 3
Suppl. SCR 872; Heikham Surchandra Singh & Ors.
v. Representatives of “Lois” Kakching, Manipur (A H
864 SUPREME COURT REPORTS [2020] 10 S.C.R.

A scheduled caste uplift body) & Ors., (1997) 2 SCC 523
: [1996] 7 Suppl. SCR 371; Shree Surat Valsad Jilla
K.M.G. Parishad v. Union of India & Ors. (2007) 5
SCC 360 : [2007] 6 SCR 257; Punit Rai v. Dinesh
Chaudhary (2003) 8 SCC 204 : [2003] 2 Suppl.
SCR 743; Subhash Chandra v. Delhi Subordinate
B
Services Selection Board, (2009) 15 SCC 458 : [2009]
12 SCR 978; Sambhu Nath Sarkar v. State of West
Bengal & Ors., (1973) 1 SCC 856 : [1974] 1 SCR 1;
Bengal Immunity Company Limited v. State of Bihar &
Ors. [1955] 2 SCR 603; Keshav Mills Co. Ltd. v.
C Commissioner of Income Tax, [1965] 2 SCR; Union of
India & Anr. v. Raghubir Singh (dead) by LRs. etc.,
(1989) 2 SCC 754 : [1989] 3 SCR 316; Goodyear
India Ltd. & Ors. v. State of Haryana & Anr., (1990) 2
SCC 71 : [1989] 1 Suppl. SCR 510; Chebrolu Leela
Prasad Rao & Ors. v. State of A.P. & Ors., (2020) SCC
D
OnLine SC 383; Indra Sawney and Union of India &
Ors. v. Rakesh Kumar & Ors., (2010) 4 SCC 50 : [2010]
1 SCR 483 – referred to.
State of Washington v. Dawson & Co., 264 U.S. 219;
David Burnet v. Colorado Oil & Gas Company 285 U.S.
E 393; Graves v. People of the State of New York 306
U.S. 466; Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)
304; 4 L. Ed. 97, 102 – referred to.
Case Law Reference

F [1992] 2 Suppl. SCR 454 relied on Para 1
[2018] 10 SCR 663 relied on Para (7) (e)
[1985] Suppl. SCR 352 relied on Para (7)(f)
[1963] 1 Suppl. SCR 439 referred to Para (7) (f)
G [1976] 1 SCR 906 relied on Para (7) (f)
[2000] 5 Suppl. SCR 65 relied on Para (7) (g)
[2018] 10 SCR 513 referred to Para (7) (g)
[2006] 7 Suppl. SCR 336 referred to Para (9) (a)
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 865

[2007] 1 SCR 706 referred to Para (9) (b) A
[1997] 3 Suppl. SCR 477 relied on Para (10) (d)
[1995] 2 SCR 35 referred to Para 16
[2017] 11 SCR 247 referred to Para 16
[2019] 7 SCR 1086 referred to Para 16 B
[1990] 2 SCR 843 referred to Para (20) (i)
[1984] 3 SCR 942 referred to Para (20) (ii)
[2010] 1 SCR 483 referred to Para(20) (iii)
C
(2019) 12 SCC 735 referred to Para (20) (iv)
AIR 2001 SC 2707 referred to Para 21
[2002] 3 Suppl. SCR 587 referred to Para 21
[2005] 1 SCR 848 referred to Para 21
D
[2008] 4 SCR 1 referred to Para 24
[1965] 1 SCR 316 referred to Para (31) (i)
[1965] 2 SCR 877 referred to Para 31 (ii)
[1990] SCR 576 referred to Para 31 (iii)
E
[1993] 3 Suppl. SCR 872 referred to Para 31 (iv)
[1996] 7 Suppl. SCR 371 referred to Para 31 (viii)
[2007] 6 SCR 257 referred to Para 31 (viii)
[2003] 2 Suppl. SCR 743 referred to Para 31 (ix) F
[2009] 12 SCR 978 referred to Para 31 (x)
[1974] 1 SCR 1 referred to Para 32 (a)
[1955] 2 SCR 603 referred to Para 32 (f)
[1965] 2 SCR 908 referred to Para 33 (a) G
[1989] 3 SCR 316 referred to Para 33 (b)
[2011] 3 SCR 366 relied on Para 34
[1989] 1 Suppl. SCR 510 referred to Para 35
[2010] 1 SCR 483 referred to Para 39 H
866 SUPREME COURT REPORTS [2020] 10 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2317
of 2011.
From the Judgment and Order dated 29.03.2010 of the High Court
of Punjab and Haryana at Chandigarh in C.W.P. No. 18290 of 2009.
With
B
Civil Appeal Nos. 5586, 5597, 5589, 5593, 5600, 5598, 5587, 5595-
-5596 of 2010, 2324, 2318 of 2011, 289 of 2014, 6936 of 2015,
Special Leave Petition (Civil) Nos. 30766 of 2010, 5454-5459, 8701,
36500-36501 of 2011, Transferred Case (Civil) Nos. 37, 38 of 2011,
Transfer Petition (Civil) No. 464 of 2015 and Writ Petition (Civil)
C No. 1477 of 2019.
Vikramjit Banerjee, ASG, Arun Bhardwaj, AAG, (Haryana), Jayant
Muthraj, AAG, Ranjit Kumar, Rakesh Kumar Khanna, Manoj Swarup,
M.S. Ganesh, Shekhar Naphade, Nidhesh Gupta, Colin Gonsalves,
R. Venkatramani, Sanjay Hegde, Sr. Advs., Ms. Uttara Babbar,
D Ms. Bhavana Duhoon, Manan Bansal, Anshuman Singh, O. P. Bhadani,
Aditya P. Khanna, Ramya Khanna, Ankit Swarup, Neelmani Pant,
Ms. Vidisha Swarup, Rohit Kumar Singh, K. Seshachari, Anant Kumar
Vatsya, Vinay Kumar Misra, Devendra Singh, Dr. Monika Gusain, Sanjay
Kumar Visen, Abhishek Sharma, Anandh Kannan N., Kamal Mohan
E Gupta, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, R.K. Singh,
Mrs. Neeraj Singh, Kumar Gaurav, Ritu Reniwal, P.S. Baghath Singh,
V. Subramanian Maduri, Robin Khokhar, Kuldip Singh, R.K. Kapoor,
Gurbhajan Singh, Shoaib Ahmad Khan, Anis Ahmed Khan, Rohit Sharma,
Rounak Nayak, Atul Agrawal, Kumar Dushyant Singh, Anmol Chandan,
Saurabh Mishra, Ms. Shruti Agarwal, Prashant Rawat, Raj Bahadur
F Yadav, Gurmeet Singh Makker, Balaji Srinivasan, M. Yogesh Kanna,
Ms. Japneet Kaur, Ms. S. Janani, Siddharth Seem, P. Venkatesan,
Ms. Jyoti Mendiratta, G. Balaji, Bankey Bihari Sharma, Parmanand
Pandey, Kuldip Singh, R. V. Kameshwaran, Vipin Kumar Jai, Tushar
Bakshi, Pranjal Kishore, Shovit Singh, Shiva Pujan Singh, Shekhar Kumar,
G Dr. K.S. Chauhan, Ravi Prakash, Ajit Kumar, Sandeep Malik, Mrs. Rekha
Pandey, P. Soma Sundaram, Ajit Kumar Ekka, R.S.M. Kalky, Sunil
Kumar, Rahul Gupta, Naresh Bakshi, Kamal Mohan Gupta, Sanjay
Kumar Visen, Satyendra Kumar, S.C. Paul, Ms. Roopa Paul, Aabhas
Kshetarpal, Siddhartha Jha, Rakesh Dahiya, S. Gowthaman, Anand
Sanjay M. Nuli, Suraj Kaushik, Dharam Singh (for M/s. Nuli & Nuli),
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 867

K. Paari Vendhan, A. Subba Rao, Mrs. Niranjana Singh, Deepak Anand, A
Sanjay Jain, Brij Bhushan,Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. A Bench of three Judges vide order dated 20.8.2014 referred B
the matter to a larger Bench for consideration opining that the judgment
of a 5-Judge Bench in E.V. Chinnaiah v. State of A.P. and Ors., (2005)
1 SCC 394,is required to be revisited in the light of Article 338 of the
Constitution of India, and not correctly following the exposition of the
law in Indra Sawhney and Ors. v. Union of India & Ors., 1992 Suppl.
(3) SCC 217. It was noted that matter involved interpretation and interplay C
between Articles 16(1), 16(4), 338 and 341 of the Constitution of India.
2. We, in order to consider the constitutional validity of Section
4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation
in Services) Act, 2006 (for short, ‘the Punjab Act’) in the matter referred,
framed the following issues on 4.2.2020: D
“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
E
provisions contained under Section 4(5) of the Act?
iii) Whether the decision in E.V. Chinnaiah Vs. State of A. P. &
Ors. reported in (2005) 1 SCC 394 is required to be revisited?”
3. The background facts are that the Punjab Government by
Circular No.1818-SW-75/10451 dated 5.5.1975 provided that out of seats F
reserved for Scheduled Castes, fifty per cent of the vacancies would be
offered to Balmikis and Mazhabi Sikhs. The Circular was struck down
by a Division Bench of the Punjab and Haryana High Court vide judgment
dated 25.7.2006.This Court dismissed the S.L.P. against the same on
10.3.2008.
G
4. The Punjab Act was notified on 5.10.2006. Section 4(5) of the
Punjab Act made similar provisions as were made in the Circular, which
was struck down. It stipulated that fifty per cent of the vacancies of the
quota reserved for Scheduled Castes in direct recruitment shall be offered
to Balmikis and Mazhabi Sikhs, subject to their availability, by providing
first preference from amongst the Scheduled Castes candidates. H
868 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 5. A Division Bench of the Punjab and Haryana High Court struck
down the provisions contained in Section 4(5) of the Punjab Act vide
judgment dated 29.3.2010, relying upon the decision in E.V. Chinnaiah.
6. The constitutional validity of Section 4(5) of the Punjab Act
depends upon whether any such classification can be made within the
B class of Scheduled Castes or Scheduled Tribes or are to be treated as a
homogenous class.Whether it is not permissible to provide any further
reservation to the weakest out the weak, particularly when it has not
been possible to trickle down the benefit of reservation to the weakest
and the same is utilised by the upper class within the group, who enjoy
the benefit of reservation to the maximum creating disparities within its
C class.
Submissions:
7. Shri Ranjit Kumar, learned senior counsel appearing for the
State of Punjab raised the following arguments:
D (a) The decision in E.V. Chinnaiah erroneously proceeded on
the premise that affirmative action taken by the States by giving preference
to certain Scheduled Castes under Article 16(4) tinkers with the
Presidential List under Article 341. Merely giving of preference does
not tinker, rearrange, sub-classify, disturb or interfere with the list in any
E manner whatsoever since there is no inclusion or exclusion of any caste
in the list as notified under the meaning of Article 341. The Punjab Act
has been enacted under Article 16(1) and 16(4) read with Articles 245
and 246. The provisions of Section 4(5) of the Punjab Act are within the
legislative competence of the State.

F (b) The Court in E.V. Chinnaiah erred in correctly interpreting
the majority ratio in Indra Sawney on the question of sub-classification
within a class.At least five out of nine Judges in Indra Sawney held that
amongst the backward, there may be some more backward, and when
State chooses to make such classification, it would be permissible in
law.Unequivocally in the majority, it was held that backward classes
G can be classified into more backward and less backward classes.The
Scheduled Castes and Scheduled Tribes fall within backward classes.
There is no warrant for the submission that there cannot be a classification
within the Scheduled Castes.
(c) Article 16(4) covers all backward classes, including Scheduled
H Castes and Scheduled Tribes. The expression used in Article 16(4) is
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 869
[ARUN MISHRA, J.]

“any backward class of citizens”. The expression “not adequately A
represented” covers all socially and educationally backward classes,
who, on account of their backwardness, are inadequately represented in
the State’s services. The scope of Article 16(4) is wider in its ambit than
Article 15(4). The expression “backward class of citizens”used in Article
16(4) covers in its ambit the Scheduled Castes and Scheduled Tribes
B
and other backward classes, including the socially and educationally
backward class.
(d) The preferential treatment is a facet of equality under Article
14. Any enactment by the State giving preference to more backward
amongst the backward fulfils the object of Article 16(4). Six out of nine
Judges in Indra Sawney held that Article 16(4) is not an exception to C
Article 16(1). The preferential treatment given to certain Scheduled
Castes/Scheduled Tribes does not violate Article 14. It intends to provide
proportional equality. The classification is based on intelligible differentia.
The differentia bears a reasonable nexus with the object, which is sought
to be achieved, of equitable representation of all Scheduled Castes in D
the Government service. The specific reservations are required to bring
about real equality of opportunity between unequals and must be ensured
by the State.
(e) A new concept has been applied by this Court to Scheduled
Castes also. While considering Indra Sawney inrecent judgment by this E
Court in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.,
(2018) 10 SCC 396, it was held that the object of Article 16(4) is to
ensure that all backward classes march forward hand in hand and that
will not be possible if only selective few get selected in all the coveted
services of the Government.It was opined that the application of the
‘creamy layer concept’ to Articles 341 and 342 does not tinker with the F
Presidential List.
(f) The decision in E.V. Chinnaiah is contrary to other binding
judgments, such as K. C. Vasanth Kumar & Anr. v. State of Karnataka,
1985 Supp. SCC 714, which was approved in Indra Sawney. In
M. R. Balaji & Ors. v. State of Mysore & Ors., 1963 Supp. (1) SCR G
439, it was held that sub-classification between backward and more
backward classes is necessary to help more backward classes. In
E.V. Chinnaiah, the decision in State of Kerala & Anr. v. N.M. Thomas
& Ors., (1976) 2 SCC 310, was not properly appreciated. It was laid
down in N. M. Thomas that there could be no objection to further H
870 SUPREME COURT REPORTS [2020] 10 S.C.R.

A classification within a class. Men are born different, and some sort of
differential treatment is required to achieve proportional equality.
(g) In case it is assumed that all castes are homogeneous by virtue
of being in the List within Article 341, it is only addition, or deletion of
any caste in the list would be impermissible as held by the Constitution
B Bench in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4 and
Bir Singh v. Delhi Jal Board & Ors., (2018) 10 SCC 312. It is
permissible for the State to give preferential treatment within the list
based on the comparative backwardness of any class, there is nothing in
Article 341, which prohibits the same. Article 341 does not take away
the power of the State under Article 16(4) to make provisions for giving
C preference. Such preferential treatment is not only permissible but
necessary to bring equality.Thus, the decision in E.V. Chinnaiah, having
been rendered by a Coordinate Bench of five Judges, deserves to be
referred to a larger Bench for reconsideration as the question of
interpretation of various provisions of the Constitution involves the larger
D public interest and the decision is contrary to earlier decisions, it is
appropriate to refer to a larger Bench to settle the law.
8. Shri R. Venkataramani, learned senior counsel appearing for
the State of Tamil Nadu argued that:
(a) The decision in E.V. Chinnaiah has and will continue to have
E an empirically demonstrable baneful effect on the general interests of
the public and is inconsistent with the legal philosophy of the Constitution
regarding equality and equal opportunity. The decision in E.V.
Chinnaiah,which holds that Scheduled Castes and Scheduled Tribes
once classified are a homogenous class, is removed from social and
F economic reality. If the decision continues to operate, a large section of
Scheduled Castes and Scheduled Tribes would be deprived of the
guarantees under Articles 14 to 16. The decision in E.V. Chinnaiah
deserves to be revisited by a larger Bench.
(b) Articles 14 to 16 constitute a triumvirate of citizens’ rights and
G obligations and conceived as equality and social justice charters. The
State is under corresponding obligations to devise measures and methods,
fashion, policies to promote and protect these rights. There is an interplay
between these rights as held in Indra Sawney. The equality rights under
Article 14 and equal opportunity rights under Articles 15 and 16 have
been mutually reinforcing facets. The State must undertake the
H emancipation of the deprived and weaker sections of the community.
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 871
[ARUN MISHRA, J.]

The obligation to eradicate inequalities in status and wealth is complex A
obligations involving redistribution and reallocation of resources,
opportunities, and equitable access to all public and social goods.
Education, health, and public employment are all public goods of immense
value. Therefore, the State/States will always need the freedom to carry
out informed experiments without being fettered by undue or
B
disproportionate claims. The court has to keep social dynamics in mind
and be careful not to chain the State or clamp its hand while interpreting
constitutional provisions. The rule of law demands that the State is able
to harmonise and balance several competing claims and interests.
(c) In Indra Sawney, the word “backward classes” have been
declared to include Scheduled Castes and Scheduled Tribes and what all C
consideration involved in dealing with backward classes would also be
attracted to the Scheduled Castes and Scheduled Tribes, i.e., grouping,
classification or sub-classification of castes and tribes for effectuating
the rights under Article 16(1) and 16(4) is permissible. There are inter-
se distinctions and inequalities within Scheduled Castes/Scheduled Tribes D
in their ability to access education and employment, afford healthcare,
and enjoy the same social status. They are undeniably classes within a
class. The data documented by the State shows that inter-se inequality
persists. It is open to the State/States to deal with backward classes
based on each group’s needs or sub-class and handle the pervading
imbalances. E

(d) The decision in E.V. Chinnaiah has frozen all State authorities
under Articles 14 to 16 of the Constitution. E.V. Chinnaiah does not
answer many questions raised. It is based on the premise that all
Scheduled Castes can and must collectively enjoy the benefits of
reservation regardless of inter-se inequality. The broad statement in E.V. F
Chinnaiah has no demonstrable truth in empirical terms and is not
supported under the judgment itself. The decision in E.V. Chinnaiah
cannot be said to be absolute to a standard so high based on stare decisis
as to freeze our constitutional understanding permanently and place of
the judicial pronouncement.Shri R. Venkataramani has attracted the G
Court’s attention to various decisions concerning stare decisis in matters
of its constitutional importance.
9. Shri M.S. Ganesh, learned senior counsel appearing on behalf
of Haryana Dhanak Sewa Samiti, while supporting the aforesaid
submissions, additionally argued that: H
872 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (a) the decision in E.V. Chinnaiah suffers from tunnel vision and
lacks acuity, and he has referred to M. Nagaraj & Ors. v. Union of
India & Ors., (2006) 8 SCC 212. The impact test must also be applied
to Article 341 read with the tautologous definition clause of Article 366(24)
of the Constitution. The specification in Article 341 of the castes, races,
and tribes is rendered qua legal fiction. The purpose of legal fiction must
B
be ascertained, and then it is to be given full effect without letting the
imagination boggle. It cannot be stretched beyond the purposes for which
the legislature has created it. The legal fiction under Article 341 is limited
to the specification. The specification is not disturbed by sub-classification
of the Scheduled Castes mentioned in the List.
C (b) The caste given further reservation are not represented in the
services of the State. The decision in E.V. Chinnaiah cannot be said to
be laying down good law in view of the decision in I.R. Coelho v. State
of T.N., (2007) 2 SCC 1. The approach and reasoning in E.V. Chinnaiah
were that for Scheduled Castes, Article 341 was the bedrock of the
D rights guaranteed by Articles 15(4) and 16(4) and was dominant tenement
to which Articles 14 to 16 were subservient.
(c) That E.V. Chinnaiahis subject to Occam’s Razor entia non
sunt multiplicanda praeter necessitate (entities ought not to be
multiplied except from the necessity), which means that all unnecessary
E or constituents in the subject being analysed are to be eliminated. The
inclusion in the list cannot dictate to the enforcement and effectuation
by the State of the rights guaranteed by Articles 15(4) and 16(4) between
those specified castes, races, or group inter-se.The assignment of
important role to ethicalprinciples in behavioural relation of the society
ranges from Aristotle, Aquinas, Ockham, and Arthasastra are referred
F to in ‘The Idea of Justice’ by Amartya Sen.
(d) That Articles 15(4) and 16(4) by themselves are substantive
and enabling provisions. The power conferred is not limited in any way
by the main provision, but falls outside it. It has not carved out an
exception but has preserved the power untrammelled by the other
G provisions of the Article. The hands of the State cannot be restrained
under Article 46 as done by E.V. Chinnaiah. In E.V. Chinnaiahhas lost
sight of the nature of Part-XVI of the role of the provisions of that Part.
(e) If E.V. Chinnaiah is a good law, its problematics give rise to
prospects of challenge to the constitutional validity of Article 342A as
H inserted by the Constitution (One Hundred and Second Amendment)
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 873
[ARUN MISHRA, J.]

Act, 2018 necessitates revisiting the interpretation of Articles 341 and A
342 of the Constitution.
10. Shri Nidesh Gupta, learned senior counsel argued that:
(a) there is no bar to grant a State’s preference under Articles
341(2) and 342(2) of the Constitution. The Constitution does not forbid
mere preference. The State Government cannot exercise power B
concerning inclusion and exclusion. This Court in Indra Sawneyupheld
a classification of the backward and more backward class under Article
16(4).
(b) In M. Nagaraj and Jarnail Singh,the exclusion of the
Scheduled Castes’ creamy layer under Article 16(4) was permitted. The C
creamy layer includes economic, social, educational, and other factors;
therefore, the preference given to Balmikis and Mazhabi Sikhs, i.e.,
the most backward amongst the Scheduled Castes, is in substance an
application of the principle of creamy layer.
(c) A reading of Articles 16(4), 16(4A), 335, 341, and 342 makes D
it clear that the State(s)has a role to play at every stage of the reservation
process. Therefore, it would be contrary to the constitutional scheme to
deny them a role in merely granting a preference to the most backward
among the Scheduled Castes.
(d) A class of citizens cannot be treated to be socially and E
educationally backward till perpetuity. The class is always required to
be judged in the light of the existing fact situation at a given point of time,
as observed in Jagdish Negi, President, Uttarakhand Jan Morcha &
Anr. v. State of U.P.& Anr., (1997) 7 SCC 203.
11. Shri Shekhar Naphade, learned senior counsel, attracted the F
attention of the Court to the findings recorded by the Committee based
on which reservation has been provided to more backward of the
Scheduled Castes in the State of Tamil Nadu.He argued that:
(a) the Arunthathiyars communityis the lowest caste. He
attracted the attention of the Court to the representation of the group in G
the State Government Departments and educational courses and the
reservation formula recommended by the Committee. The Tamil Nadu
Arunthathiyars (Special Reservation of seats in Educational Institutions
including Private Educational Institutions and appointments or posts in
the services under the State within the Reservation for Scheduled Castes)
H
874 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Act, 2009 does not tinker with the Presidential List of Scheduled Castes
in any manner.
(b) Special reservation is a fundamental aspect of Article 14 of
the Constitution. E.V. Chinnaiah requires reconsideration in the light of
the decision of the Constitution Bench in Jarnail Singh. Besides, it
B failed to take note of ground realities and is not based upon the statistical
data collected by the State showing disparities amongst the Scheduled
Castes and Scheduled Tribes.
(c) The State’s legislative competence in various fieldsfor making
reservation flows from Article 246(2) and 246(3) read with Entry 41 in
C List II and Entry 25 in List III. Article 341 does not abrogate the legislative
power of the State to enact a law providing for reservation in the
employment in the State Public Services or State Public Service
Commission. It is open to the State to make law providing reservation in
the admissions to educational institutions.
D (d) The restriction under Article 341 is limited, relating to inclusion
and exclusion of castes. The decision in E.V. Chinnaiah treats unequals
as equals. The object of the legislation is to improve the lot of Scheduled
Castes and eliminate their social and educational backwardness and
equally distribute the fruits among them. The special reservation is to
render more meaningful social justice. The unequals cannot be treated
E equally. Differential treatment cannot be termed to be discriminatory.
12. Ms. Jyoti Mendiratta, learned counsel, attracted the attention
of the Court to the various reports and argued that in E.V. Chinnaiah
Scheduled Castes were taken to be a homogeneous group, they are, in
fact, not homogeneous.
F
(a) Learned counsel attracted our attention to the report of Justice
M.S. Janarthanam Committee of Inquiry for Special Reservation for the
Arunthathiyars. They were not able to reap the fruits of reservation as
there was upper crust within Scheduled Castes, and most of the posts
were reserved for Scheduled Castes and Scheduled Tribes, though
G Arunthathiyars were 16 per cent of the Scheduled Caste population,
they managed to obtain reservation to a much lower extent. The figures
of representation of Arunthathiyars community in State services and
educational institutions have been furnished.
(b) Our attention was attracted to the report of Justice
H Ramachandra Raju Committee, wherein it was observed that the Reli
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 875
[ARUN MISHRA, J.]

group of communities was the most backward amongst the Scheduled A
Caste communities.
(c) Learned counsel also invited our attention to Justice Usha
Mehra Committee report (2008), indicating that Scheduled Castes do
not constitute a homogenous class in relation to their social, educational,
and economic backwardness in the country. Individual social groups B
inherit most traditional occupations by the incident of birth in the list of
Scheduled Caste.
(d) Learned counsel further drew our attention to Justice Lokur
Committee Report (1965). It was pointed out that the smaller and more
backward communities have tended to get lost in the democratic process, C
though most deserving of special aid. It was suggested in the report that
in the matters of planning and development, the distribution of benefits
needs to be focused on the more backward and smaller groups on a
selective basis. In E.V. Chinnaiah, the scope of Article 341 was not
correctly appreciated about the power of the State concerning the
allocation of percentage of reservation amongst the caste based upon D
rational differentia was ignored.
13. Shri Sanjay R. Hegde, learned senior counsel, while supporting
E.V. Chinnaiah, argued that:
(a) The Parliament alone has the power to exclude castes listed E
in the Schedule. He has attracted our attention to Dr. Ambedkar’s speech
in the Constituent Assembly regarding the purpose of Articles 341 and
342. 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. Considering the binding precedent doctrine, the decision in
E.V. Chinnaiah is not required to be revisited wherein a possible view F
has been taken. The judgment concerning the construction of statutes
ought not to be overruled except in exceptional cases. The unforeseeable
consequences would follow if the judgment is overruled. It requires to
be revisited if it causesgreat uncertainty, or it relates to some broad
issue or principle, or the same is unjust or outmoded, not otherwise. G
(b) In Indra Sawhney, the sub-classification was limited to socially
and educationally backward classes. It was observed that none of its
observations would apply to Scheduled Castes and Scheduled Tribes.
The Scheduled Castes and Scheduled Tribes are backward for the
provisions of Article 16(4). The test or requirement of social and
H
876 SUPREME COURT REPORTS [2020] 10 S.C.R.

A educational backwardness cannot be applied to Scheduled Castes and
Scheduled Tribes. The decision in Indra Sawhney was understood in
the correct perspective in E.V. Chinnaiah.
(c) In N.M. Thomas, it was held that Scheduled Castes and
Scheduled Tribes are backward classes. No sub-classification can be
B made. The exclusion from the list is prerogative of the Parliament. The
object of Article 341(1) is to provide additional protection to the members
of the Scheduled Castes having regard to the economic and educational
backwardness from which they suffer. In the Presidential Order, even
the court cannot make any alteration. No enquiry is permissible to
determine whether or not some particular community falls within the list
C or outside it as laid down in State of Maharashtra v. Milind & Ors.,
(2001) 1 SCC 4.
(d) The legal fiction created under Article 341 is to be given full
effect. The provisions of Section 4(5) of the Punjab Act cannot be said
to be constitutionally valid. The Governoris empoweredonly to make
D recommendations under Article 341 for alteration in the list. No further
classification can be made once Scheduled Castes, and Scheduled Tribes
are covered under Article 16(4).
(e) There is a difference between Scheduled Castes and Other
Backward Classes. The Scheduled Castes are untouchables as held in
E Jarnail Singh. The Hindus are divided into two classes – the touchables
and the untouchables. The term “depressed classes” was replaced by
“Scheduled Castes” under the Government of India Act, 1935. The special
treatment is given to the Scheduled Castes due to untouchability with
which they suffer. It is not open to the Parliamentor Legislature of States
F to make classification inter se Scheduled Castes/Scheduled Tribes once
they are included in the Schedule. The Parliament is empowered to include
or exclude any caste from the Presidential List. Article 341(1) provides
additional protection to the members of the Scheduled Castes. The powers
under Article 16(4) cannot be exercised de-hors Article 341.

G 14. Shri Tushar Bakshi, learned counsel argued that sub-
classification is not permissible in the caste grouped in one entry of the
list. It is not permissible to leave one caste grouped within the list. The
power has been exercised maliciously.
15. Shri A. Subba Rao, learned counsel, appearing on behalf of
the respondents argued that the Constitution (One Hundred and Second
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 877
[ARUN MISHRA, J.]

Amendment) Act, 2018 came into effect on 11.8.2018. Article 338B A
was inserted constituting National Commission for Backward Classes.
The real question for consideration is the interpretation of Articles 14,
15, 16, 338, 338A, 338B, 341, 342, 342A, 366(24) and 366(26C). The
Parliament alone has the power to deal with Scheduled Castes once the
President notifies the Scheduled Castes list. He relied upon Bir Singh to
B
submit that E.V. Chinnaiah has been correctly decided. The basic
question for determination is of federalism. The powers conferred on
the Parliament to amend the list cannot be whittled down and diluted by
interpretation of the constitutional provisions. The reference to a larger
Bench is not at all warranted.
16. Dr. K.S. Chauhan, learned counsel argued that law has been C
settled in E.V. Chinnaiah. The State Government has no power to include
or exclude the castes in the List. The Constitution does not empower the
Union or the State to categorise or sub-categorise the castes enumerated
in the List. Any sub-classification may tantamount to varying the List
under Article 341(1). The view taken in Indra Sawhney is that castes D
enumerated are not castes, these are classes. Learned counsel has pointed
out the distinction between class and caste.
In N.M. Thomas, it was laid down that Scheduled Castes are not
castes, they are class. Hence, he argued that they should not be further
classified. The principle settled in the decision of N.M. Thomas has E
been disregarded in the decision of M. Nagaraj. The majority in Indra
Sawhney held that the provisions of Article 16(4) are classification of
Article 16(1) of the Constitution, and the classification is permissible.
The minority opinion in Indra Sawhney has been applied in M. Nagaraj,
and the same is contrary to the law settled by the majority in Indra
Sawhney and R.K. Sabharwal & Ors. v. State of Punjab & Ors., F
(1995) 2 SCC 745. A reference was made regarding the correctness of
M. Nagaraj. The Constitution Bench in Jarnail Singh settled the
principle based on Indra Sawhney. Still, a new principle of social
backwardness and creamy layer has been developed, and the
constitutional principles have been clarified and settled by modifying the G
legal interpretation of M. Nagaraj. The correctness of the decision in
M. Nagaraj was also doubted in State of Tripura & Ors. v. Jayanta
Chakraborty & Ors., (2018) 1 SCC 146. The clarification by the
Constitution Bench in Jarnail Singh, remained very short-lived only
upto in B.K. Pavitra & Ors. v. Union of India & Ors., (2019) 16 SCC
129. M. Nagaraj ought to have been referred to a larger Bench. H
878 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 17. Shri Robin Khokhar, learned counsel argued that based on the
Tamil Nadu Act No.4 of 2009, the Government of Tamil Nadu included
7 castes out of 76 castesin the list of Scheduled Caste Aruthathiyar, the
power of classification could not have been exercised. The same is violative
to the basic feature of the Constitution and Article 341. Legislating sub-
classification is constitutionally impermissible.
B
Discussion:
18. In E.V. Chinnaiah,it was held that Scheduled Castes form
homogenous classes and there cannot be any sub-division and with respect
to Indra Sawhney, following discussion was made:
C “38. On behalf of the respondents, it was pointed out that in Indra
Sawhney case, 1992 Suppl. (3) SCC 217, the Court had permitted
subclassification of Other Backward Communities, as backward
and more backward based on their comparative underdevelopment,
therefore, the similar classification amongst the class enumerated
D in the Presidential List of Scheduled Castes is permissible in law.
We do not think the principles laid down in Indra Sawhney case,
1992 Suppl. (3) SCC 217, for subclassification of Other Backward
Classes can be applied as a precedent law for subclassification or
subgrouping Scheduled Castes in the Presidential List because
that very judgment itself has specifically held that subdivision of
E Other Backward Classes is not applicable to Scheduled Castes
and Scheduled Tribes. This we think is for the obvious reason i.e.
the Constitution itself has kept the Scheduled Castes and Scheduled
Tribes List out of interference by the State Governments.
41. The conglomeration of castes given in the Presidential Order,
F in our opinion, should be considered as representing a class as a
whole. The contrary approach of the High Court, in our opinion,
was not correct. The very fact that a legal fiction has been created
is itself suggestive of the fact that the legislature of a State cannot
take any action which would be contrary to or inconsistent
G 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
subdivided or subclassified further. If a class within a class of
members of the Scheduled Castes is created, the same would
amount to tinkering with the list. Such subclassification would be
H violative of Article 14 of the Constitution. It may be true, as has
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 879
[ARUN MISHRA, J.]

been observed by the High Court, that the caste system has got A
stuck up in the society but with a view to do away with the evil
effect thereof, a legislation which does not answer the
constitutional scheme cannot be upheld. It is also difficult to agree
with the High Court that for the purpose of identifying
backwardness, a further inquiry can be made by appointing a
B
commission as to who amongst the members of the Scheduled
Castes is more backward. If benefits of reservation are not
percolating to them equitably, measures should be taken to see
that they are given such adequate or additional training so as to
enable them to compete with the others but the same would not
mean that in the process of rationalising the reservation to the C
Scheduled Castes the constitutional mandate of Articles 14, 15
and 16 could be violated.”
The following opinion expressed by S.B. Sinha, J. in E.V.
Chinnaiah has been referred to:
“113. The power of the State Legislature to decide as regards D
grant of benefit of reservation in jobs or in educational institutions
to the backward classes is not in dispute. It is furthermore not in
dispute that if such a decision is made the State can also lay down
a legislative policy as regards extent of reservation to be made
for different members of the backward classes including Scheduled E
Castes. But it cannot take away the said benefit on the premise
that one or the other group amongst the members of the Scheduled
Castes has advanced and, thus, is not entitled to the entire benefit
of reservation. The impugned legislation, thus, must be held to be
unconstitutional.”
F
19. One of the questions is whether E.V. Chinnaiah correctly
appreciated the majority decision in Indra Sawhney. It was argued
that in Indra Sawhney, the majority of the Judges held that amongst the
backward, there may be some more backward, and if the State chooses
to make such classification, it would be permissible in law.
G
(a) Following is the opinion of B.P. Jeevan Reddy, J. (for himself
and other three Judges) in Indra Sawhney:
“Question No. 5:
Whether Backward Classes can be further divided into
backward and more backward categories? H
880 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 801. In Balaji, 1963 Supp 1 SCR 439, it was held:
“that the sub-classification made by the order between
Backward Classes and More Backward Classes does not
appear to be justified under Article 15(4). Article 15(4)
authorises special provision being made for the really backward
B classes. In introducing two categories of Backward Classes,
what the impugned order, in substance, purports to do is to
devise measures for the benefit of all the classes of citizens
who are less advanced, compared to the most advanced classes
in the State, and that, in our opinion, is not the scope of Article
15(4). The result of the method adopted by the impugned order
C is that nearly 90% of the population of the State is treated as
backward, and that illustrates how the order in fact divides the
population of the State into most advanced and the rest, and
puts the latter into two categories of Backward and More
Backward. The classification of the two categories, therefore,
D is not warranted by Article 15(4).” (SCR p. 465-66)
The correctness of this holding is questioned before us by the
counsel for the respondents. It is submitted that in principle there
is no justification for the said holding. It is submitted that even
among backward classes there are some who are more backward
E than the others and that the backwardness is not and cannot be
uniform throughout the country nor even within a State. In support
of this contention, the respondents rely upon the observations of
Chinnappa Reddy, J in Vasanth Kumar, 1985 Supp SCC 714,
where the learned Judge said: (SCC p. 750, para 55)

F “[W]e do not see why on principle there cannot be a
classification into Backward Classes and More Backward Classes,
if both classes are not merely a little behind, but far behind the
most advanced classes. In fact such a classification would be
necessary to help the More Backward Classes; otherwise those
of the Backward Classes who might be a little more advanced
G than the More Backward Classes might walk away with all the
seats.”
802. We are of the opinion that there is no constitutional or legal
bar to a State categorising the backward classes as backward
and more backward. We are not saying that it ought to be done.
H We are concerned with the question if a State makes such a
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 881
[ARUN MISHRA, J.]

categorisation, whether it would be invalid? We think not. Let us A
take the criteria evolved by Mandal Commission. Any caste, group
or class which scored eleven or more points was treated as a
backward class. Now, it is not as if all the several thousands of
castes/groups/classes scored identical points. There may be some
castes/groups/classes which have scored points between 20 to
B
22 and there may be some who have scored points between eleven
and thirteen. It cannot reasonably be denied that there is no
difference between these two sets of castes/groups/classes. To
give an illustration, take two occupational groups viz., goldsmiths
and vaddes (traditional stone-cutters in Andhra Pradesh) both
included within Other Backward Classes. None can deny that C
goldsmiths are far less backward than vaddes. If both of them
are grouped together and reservation provided, the inevitable result
would be that goldsmiths would take away all the reserved posts
leaving none for vaddes. In such a situation, a State may think it
advisable to make a categorisation even among other backward
D
classes so as to ensure that the more backward among the
backward classes obtain the benefits intended for them. Where
to draw the line and how to effect the sub-classification is,
however, a matter for the Commission and the State — and so
long as it is reasonably done, the Court may not intervene. In this
connection, reference may be made to the categorisation obtaining E
in Andhra Pradesh. The Backward Classes have been divided
into four categories. Group A comprises “Aboriginal tribes,
Vimukta jatis, nomadic and semi-nomadic tribes etc.” Group B
comprises professional group like tappers, weavers, carpenters,
ironsmiths, goldsmiths, kamsalins etc. Group C pertains to
F
“Scheduled Castes converts to Christianity and their progeny”,
while Group D comprises all other classes/communities/groups,
which are not included in Groups A, B and C. The 25% vacancies
reserved for backward classes are sub-divided between them in
proportion to their respective population. This categorisation was
justified in Balram, (1972) 1 SCC 660. This is merely to show G
that even among backward classes, there can be a sub-
classification on a reasonable basis.
803. There is another way of looking at this issue. Article16(4)
recognises only one class viz., “backward class of citizens”. It
does not speak separately of Scheduled Castes and Scheduled H
882 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Tribes, as does Article 15(4). Even so, it is beyond controversy
that Scheduled Castes and Scheduled Tribes are also included in
the expression “backward class of citizens” and that separate
reservations can be provided in their favour. It is a well-accepted
phenomenon throughout the country. What is the logic behind it?
It is that if Scheduled Tribes, Scheduled Castes and Other
B
Backward Classes are lumped together, OBCs will take away all
the vacancies leaving Scheduled Castes and Scheduled Tribes
high and dry. The same logic also warrants categorisation as
between more backward and backward. We do not mean to say
— we may reiterate — that this should be done. We are only
C saying that if a State chooses to do it, it is not impermissible in
law.
PART VII
859. We may summarise our answers to the various questions
dealt with and answered hereinabove:
D
(1) **
(2) **
(3) (a) A caste can be and quite often is a social class in India. If
it is backward socially, it would be a backward class for the
E purposes of Article 16(4). Among non-Hindus, there are several
occupational groups, sects and denominations, which for historical
reasons, are socially backward. They too represent backward
social collectivities for the purposes of Article 16(4). (Paras 746
to 779)
F *** *** ***
(d) ‘Creamy layer’ can be, and must be excluded. (Paras 790-
793)
(5) There is no constitutional bar to classify the backward classes
of citizens into backward and more backward categories. (Paras
G 801 to 803)”
(emphasis supplied)
(b) The opinion expressed by P.B. Sawant, J. (for himself)is
extracted hereunder:
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 883
[ARUN MISHRA, J.]

“523. As regards the second part of the question, in Balaji, 1963 A
Supp 1 SCR 439, it was observed that the backward classes cannot
be further classified in backward and more backward classes.
These observations, although made in the context of Article 15(4)
which fell for consideration there, will no doubt be equally applicable
to Article 16(4). The observations were made while dealing with
B
the recommendations of the Nagan Gowda Committee appointed
by the State of Karnataka which had recommended the
classification of the backward communities into two divisions, the
Backward and the More Backward. While making those
recommendations the Committee had applied one test, viz., “Was
the standard of education in the community in question less than C
50% of the State average? If it was, the community was regarded
as more backward; if it was not, the community was regarded as
backward.” The Court opined that the sub-classification made by
the Report and the order based thereupon was not justified under
Article 15(4) which authorises special provision being made for
D
‘really backward classes’. The Court further observed that in
introducing two categories of backward classes, what the
impugned order in substance purported to do was to devise
measures “for the benefit of all the classes of citizens who are
less advanced compared to the most advanced classes in the
State”. That, according to the Court, was not the scope of Article E
15(4). The result of the method adopted by the impugned order
was that nearly 90% of the population of the State was treated as
Backward and that, observed the Court, illustrated how the order
in fact divided the population of the State into most advanced and
the rest, putting the latter into two categories of the Backward
F
and the More Backward. Thus, the view taken there against the
sub-classification was on the facts of that case which showed
that almost 90% of the population of the State was classified as
backward, the backwardness of the Backward (as against that of
the More Backward) being measured in comparison to the most
advanced classes in the State. Those who were less advanced G
than the most advanced, were all classified as Backward. The
Court held that it is the More Backward or who were really
backward who alone would be entitled to the benefit of the
provisions of Article 15(4). In other words, while the More
Backward were classified there rightly as backward, the Backward
were not classified rightly as backward. H
884 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 524. It may be pointed out that in Vasanth Kumar, 1985 Supp
SCC 714, Chinnappa Reddy, J after referring to the aforesaid
view in Balaji, 1963 Supp 1 SCR 439observed that the propriety
of such test may be open to question on the facts of each case but
there was no reason why on principle there cannot be a
classification into Backwards and More Backwards if both classes
B
are not merely a little behind, but far far behind the most advanced
classes. He further observed that in fact, such a classification
would be necessary to help the more backward classes; otherwise
those of the backward classes who might be a little more advanced
than the more backward classes, would walk away with all the
C seats just as if reservation was confined to the more backward
classes and no reservation was made to the slightly more advanced
of the backward classes, the backward classes would gain no
seats since the advanced classes would walk away with all the
seats available for the general category. With respect, this is the
correct view of the matter. Whether the backward classes can
D
be classified into Backward and More Backward, would depend
upon the facts of each case. So long as both backward and more
backward classes are not only comparatively but substantially
backward than the advanced classes, and further, between
themselves, there is a substantial difference in backwardness, not
E only it is advisable but also imperative to make the sub-classification
if all the backward classes are to gain equitable benefit of the
special provisions under the Constitution. To give an instance, the
Mandal Commission has, on the basis of social, educational and
economic indicators evolved 22 points by giving different values
to each of the three factors, viz., social, educational and economic.
F
Those social groups which secured 22 points or above have been
listed there as “socially and educationally backward” and the rest
as “advanced”. Now, between 11 and 22 points some may secure,
say, 11 to 15 points while others may secure all 22 points. The
difference in their backwardness is, therefore, substantial. Yet
G another illustration which may be given is from Karnataka State
Government order dated October 13, 1986 on reservations issued
after the decision in Vasanth Kumar, 1985 Supp SCC 714 where
the backward classes are grouped into five categories, viz., A, B,
C, D and E. In category A, fall such castes or communities as
that of Bairagi, Banjari and Lambadi which are nomadic tribes,
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 885
[ARUN MISHRA, J.]

and Bedaru, Ramoshi which were formerly stigmatised as criminal A
tribes whereas in category D fall such castes as Kshatriya and
Rajput. To lump both together would be to deny totally the benefit
of special provisions to the former, the latter taking away the entire
benefits. On the other hand, to deny the status of backwardness
to the latter and ask them to compete with the advanced classes,
B
would leave the latter without any seat or post. In such
circumstances, the sub-classification of the backward classes into
backward and more or most backward is not only desirable but
essential. However, for each of them a special quota has to be
prescribed as is done in the Karnataka Government order. If it is
not done, as in the present case, and the reserved posts are first C
offered to the more backward and only the remaining to the
backward or less backward, the more backward may take away
all the posts leaving the backward with no posts. The backward
will neither get his post in the reserved quota nor in the general
category for want of capacity to compete with the forward.
D
525. Hence, it will have to be held that depending upon the facts
of each case, sub-classification of the backward classes into the
backward and more or most backward would be justifiable
provided separate quotas are prescribed for each of them.
552. The answers to the questions may now be summarised as E
follows:
Question 1:***
Question 2:***
Question 3:*** F
Question 4:***
Question 5:
Article 16(4) permits classification of backward classes into
backward and more or most backward classes. However, this
classification is permitted only on the basis of the degrees of social G
backwardness and not on the basis of the economic consideration
alone.
If backward classes are classified into backward and more
or most backward classes, separate quotas of reservations will
H
886 SUPREME COURT REPORTS [2020] 10 S.C.R.

A have to be kept for each of such classes. In the absence of such
separate quotas, the reservations will be illegal.
It is not permissible to classify backward classes or a
backward class social group into an advanced section and a
backward section either on economic or any other consideration.
B The test of advancement lies in the capacity to compete with the
forward classes. If the advanced section in a backward class is
so advanced as to be able to compete with the forward classes,
the advanced section from the backward class no longer belongs
to the backward class and should cease to be considered so and
denied the benefit of reservations under Article 16(4).”
C
(emphasis supplied)
(c) In Indra Sawhney, the question involved was of Mandal
Commission regarding other backward classes. The expression used in
Article 16(4) is ‘any backward class of citizens’. Article 16(4) is wider
D in its ambit than Article 15(4). The expression ‘class’ is wider than ‘caste’,
and the expression ‘backward class’ stipulated under Article 16(4) takes
into its ambit Scheduled Castes and Scheduled Tribes and all other
backward classes including the socially and educationally backward class.
Following discussion was made in the opinion expressed by B.P. Jeevan
Reddy, J. (for himself and other three Judges):
E
“774.In our opinion too, the words “class of citizens — not
adequately represented in the services under the State” would
have been a vague and uncertain description. By adding the word
“backward” and by the speeches of Dr Ambedkar and Shri K.M.
Munshi, it was made clear that the “class of citizens … not
F adequately represented in the services under the State” meant
only those classes of citizens who were not so represented on
account of their social backwardness.
777. ….The word “community” is clearly wider than “caste” —
and “backward communities” meant not only the castes —
G wherever they may be found —but also other groups, classes
and sections among the populace.
778. Indeed, there are very good reasons why the Constitution
could not have used the expression “castes” or “caste” in Article
16(4) and why the word “class” was the natural choice in the
H context. The Constitution was meant for the entire country and
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 887
[ARUN MISHRA, J.]

for all time to come. Non-Hindu religions like Islam, Christianity A
and Sikh did not recognise caste as such though, as pointed out
hereinabove, castes did exist even among these religions to a
varying degree. Further, a Constitution is supposed to be a
permanent document expected to last several centuries. It must
surely have been envisaged that in future many classes may spring
B
up answering the test of backwardness, requiring the protection
of Article 16(4). It, therefore, follows that from the use of the
word “class” in Article 16(4), it cannot be concluded either that
“class” is antithetical to “caste” or that a caste cannot be a class
or that a caste as such can never be taken as a backward class of
citizens. The word “class” in Article 16(4), in our opinion, is used C
in the sense of social class — and not in the sense it is understood
in Marxist jargon.
778-A. In Rajendran, (1968) 2 SCR 786, 790, Triloki
Nath(II),(1969) 1 SCR 103, 105, Balram, (1972) 1 SCC 660 and
Peeriakaruppan, (1971) 1 SCC 38, 48, this reality was recognised D
and given effect to, notwithstanding the fact that they had to respect
and operate within the rather qualified formulation of Balaji, 1963
Supp 1 SCR 439.
778-B. For the sake of completeness, we may refer to a few
passages, from Vasanth Kumar, 1985 Supp SCC 714, to show E
what does the concept of ‘caste’ signify? D.A. Desai, J defines
and describes “caste” in the following terms: (SCC pp. 730-31,
para 22)
“What then is a caste? Though caste has been discussed
by scholars and jurists, no precise definition of the expression F
has emerged. A caste is a horizontal segmental division of
society spread over a district or a region or the whole State
and also sometimes outside it. Homo Hierarchicus is expected
to be the central and substantive element of the caste-system
which differentiates it from other social systems. The concept
of purity and impurity conceptualises the caste system …. G
There are four essential features of the caste-system which
maintained its homo hierarchicus character: (1) hierarchy; (2)
commensality; (3) restrictions on marriage; and (4) hereditary
occupation. Most of the castes are endogamous groups. Inter-
marriage between two groups is impermissible. But ‘Pratilom’ H
marriages are not wholly known.”
888 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Venkataramiah, J also defined “caste” in practically the same
terms. He said: (SCC p. 786, para 110)
“A caste is an association of families which practices
the custom of endogamy i.e. which permits marriages amongst
the members belonging to such families only. Caste rules prohibit
B its members from marrying outside their caste …. A caste is
based on various factors, sometimes it may be a class, a race
or a racial unit. A caste has nothing to do with wealth. The
caste of a person is governed by his birth in a family. Certain
ideas of ceremonial purity are peculiar to each caste …. Even
the choice of occupation of members of caste was
C predetermined in many cases, and the members of a particular
castes were prohibited from engaging themselves in other types
of callings, professions or occupations. Certain occupations
were considered to be degrading or impure.”
779. The above material makes it amply clear that a caste is
D nothing but a social class — a socially homogeneous class. It is
also an occupational grouping, with this difference that its
membership is hereditary. One is born into it. Its membership is
involuntary. Even if one ceases to follow that occupation, still he
remains and continues a member of that group. ….. But we are
E concerned here with a limited aspect of equality emphasised in
Article 16(4) — equality of opportunity in public employment and
a special provision in favour of backward class of citizens to enable
them to achieve it.
(b) Identification of “backward class of citizens”
F 780. Now, we may turn to the identification of “backward class
of citizens”. How do you go about it? Where do you begin? Is the
method to vary from State to State, region to region and from
rural to urban? What do you do in the case of religions where
caste-system is not prevailing? What about other classes, groups
G and communities which do not wear the label of caste? Are the
people living adjacent to cease-fire line (in Jammu and Kashmir)
or hilly or inaccessible regions to be surveyed and identified as
backward classes for the purpose of Article 16(4)? And so on
and so forth are the many questions asked of us. We shall answer
them. But our answers will necessarily deal with generalities of
H the situation and not with problems or issues of a peripheral nature
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 889
[ARUN MISHRA, J.]

which are peculiar to a particular State, district or region. Each A
and every situation cannot be visualised and answered. That must
be left to the appropriate authorities appointed to identify. We can
lay down only general guidelines.
781. At the outset, we may state that for the purpose of this
discussion, we keep aside the Scheduled Tribes and Scheduled B
Castes (since they are admittedly included within the backward
classes), except to remark that backward classes contemplated
by Article 16(4) do comprise some castes — for it cannot be
denied that Scheduled Castes include quite a few castes.
c) Whether the backwardness in Article 16(4) should be both C
social and educational?
786. The other aspect to be considered is whether the
backwardness contemplated in Article 16(4) is social
backwardness or educational backwardness or whether it is both
social and educational backwardness. Since the decision in Balaji, D
1963 Supp 1 SCR 439, it has been assumed that the backward
class of citizens contemplated by Article 16(4) is the same as the
socially and educationally backward classes, Scheduled Castes
and Scheduled Tribes mentioned in Article 15(4). Though Article
15(4) came into existence later in 1951 and Article 16(4) does not
contain the qualifying words “socially and educationally” preceding E
the words “backward class of citizens” the same meaning came
to be attached to them. Indeed, it was stated in Janki Prasad
Parimoo, (1973) 1 SCC 420 (Palekar, J speaking for the
Constitution Bench) that:
“Article 15(4) speaks about ‘socially and educationally F
backward classes of citizens’ while Article 16(4) speaks only
of ‘any backward class citizens’. However, it is now settled
that the expression ‘backward class of citizens’ in Article 16(4)
means the same thing as the expression ‘any socially and
educationally backward class of citizens’ in Article 15(4). In G
order to qualify for being called a ‘backward class citizen’ he
must be a member of a socially and educationally backward
class. It is social and educational backwardness of a class
which is material for the purposes of both Articles 15(4) and
16(4).”
H
890 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 787. It is true that no decision earlier to it specifically said so, yet
such an impression gained currency and it is that impression which
finds expression in the above observation. In our respectful opinion,
however, the said assumption has no basis. Clause (4) of Article
16 does not contain the qualifying words “socially and
educationally” as does clause (4) of Article 15. It may be
B
remembered that Article 340 (which has remained unamended)
does employ the expression ‘socially and educationally backward
classes’ and yet that expression does not find place in Article
16(4). The reason is obvious: “backward class of citizens” in Article
16(4) takes in Scheduled Tribes, Scheduled Castes and all other
C backward classes of citizens including the socially and educationally
backward classes. Thus, certain classes which may not qualify
for Article 15(4) may qualify for Article 16(4). They may not
qualify for Article 15(4) but they may qualify as backward class
of citizens for the purposes of Article 16(4). It is equally relevant
to notice that Article 340 does not expressly refer to services or
D
to reservations in services under the State, though it may be that
the Commission appointed thereunder may recommend reservation
in appointments/posts in the services of the State as one of the
steps for removing the difficulties under which SEBCs are
labouring and for improving their conditions. Thus, SEBCs referred
E to in Article 340 is only of the categories for whom Article 16(4)
was enacted: Article 16(4) applies to a much larger class than the
one contemplated by Article 340. It would, thus, be not correct to
say that ‘backward class of citizens’ in Article 16(4) are the same
as the socially and educationally backward classes in Article 15(4).
Saying so would mean and imply reading a limitation into a beneficial
F
provision like Article 16(4). Moreover, when speaking of
reservation in appointments/posts in the State services — which
may mean, at any level whatsoever — insisting upon educational
backwardness may not be quite appropriate.
788. Further, if one keeps in mind the context in which Article
G 16(4) was enacted it would be clear that the accent was upon
social backwardness. It goes without saying that in the Indian
context, social backwardness leads to educational backwardness
and both of them together lead to poverty — which in turn breeds
and perpetuates the social and educational backwardness. They
H feed upon each other constituting a vicious circle. It is a well-
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 891
[ARUN MISHRA, J.]

known fact that till independence the administrative apparatus A
was manned almost exclusively by members of the ‘upper’ castes.
The Shudras, the Scheduled Castes and the Scheduled Tribes and
other similar backward social groups among Muslims and
Christians had practically no entry into the administrative apparatus.
It was this imbalance which was sought to be redressed by
B
providing for reservations in favour of such backward classes. In
this sense Dr Rajeev Dhavan may be right when he says that the
object of Article 16(4) was “empowerment” of the backward
classes. The idea was to enable them to share the state power.
We are, accordingly, of the opinion that the backwardness
contemplated by Article 16(4) is mainly social backwardness. It C
would not be correct to say that the backwardness under Article
16(4) should be both social and educational. The Scheduled Tribes
and the Scheduled Castes are without a doubt backward for the
purposes of the clause; no one has suggested that they should
satisfy the test of social and educational backwardness …..”
D
(emphasis supplied)
(d)(i) The question of preferential treatment given by the State
was held to be facet of equality under Article 14 as giving preference to
more backward amongst the backwards furthers the aim and object of
Article 16(4). Six out of nine Judges in Indra Sawhney held that Article E
16(4) is not an exception to Article 16(1). The opinion expressed by B.P.
Jeevan Reddy, J. (for himself and other three Judges) is extracted
hereunder:
“733.At this stage, we wish to clarify one particular aspect. Article
16(1) is a facet of Article 14. Just as Article 14 permits reasonable F
classification, so does Article 16(1). A classification may involve
reservation of seats or vacancies, as the case may be. In other
words, under clause (1) of Article 16, appointments and/or posts
can be reserved in favour of a class. But an argument is now
being advanced — evidently inspired by the opinion of Powell, J
in Bakke, 57 L Ed 2d 750, that Article 16(1) permits only G
preferences but not reservations. The reasoning in support of the
said argument is the same as was put forward by Powell, J. This
argument, in our opinion, disregards the fact that that is not the
unanimous view of the court in Bakke, 57 L Ed 2d 750. Four
Judges including Brennan, J took the view that such a reservation H
892 SUPREME COURT REPORTS [2020] 10 S.C.R.

A was not barred by the Fourteenth Amendment while the other
four (including Warren Burger, CJ) took the view that the
Fourteenth Amendment and Title VI of the Civil Rights Act, 1964
bars all race-conscious programmes. At the same time, there are
a series of decisions relating to school desegregation — from
Brown, 347 US 483 to North Carolina Board of Education v.
B
Swann, 28 L Ed 2d 586 — where the court has been consistently
taking the view that if race be the basis of discrimination, race
can equally form the basis of remedial action. The shift in approach
indicated by Metro Broadcasting Inc., 58 IW 5053is equally
significant. The ‘lingering effects’ (of past discrimination) theory
C as well as the standard of strictest scrutiny of race-conscious
programmes have both been abandoned. Suffice it to note that no
single uniform pattern of thought can be discerned from these
decisions. Ideas appear to be still in the process of evolution.
Question 2(a):
D Whether clause (4) of Article 16 is an exception to clause
(1)?
741. In Balaji, 1963 Supp 1 SCR 439 it was held — “there is no
doubt that Article 15(4) has to be read as a proviso or an exception
to Articles 15(1) and 29(2)”. It was observed that Article 15(4)
E was inserted by the First Amendment in the light of the decision in
Champakam, 1951 SCR 525 with a view to remove the defect
pointed out by this court namely, the absence of a provision in
Article 15 corresponding to clause (4) of Article 16. Following
Balaji, 1963 Supp 1 SCR 439, it was held by another Constitution
F Bench (by majority) in Devadasan, (1964) 4 SCR 680 — “further
this Court has already held that clause (4) of Article 16 is by way
of a proviso or an exception to clause (1)”. Subba Rao, J, however,
opined in his dissenting opinion that Article 16(4) is not an exception
to Article 16(1) but that it is only an emphatic way of stating the
principle inherent in the main provision itself. Be that as it may,
G since the decision in Devadasan, (1964) 4 SCR 680, it was
assumed by this Court that Article 16(4) is an exception to Article
16(1). This view, however, received a severe setback from the
majority decision in State of Kerala v. N.M. Thomas, (1976) 2
SCC 310. Though the minority (H.R. Khanna and A.C. Gupta,
H JJ) stuck to the view that Article 16(4) is an exception, the majority
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 893
[ARUN MISHRA, J.]

(Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article A
16(4) is not an exception to Article 16(1) but that it was merely an
emphatic way of stating a principle implicit in Article 16(1). (Beg,
J took a slightly different view which it is not necessary to mention
here.) The said four learned Judges — whose views have been
referred to in para 713 — held that Article 16(1) being a facet of
B
the doctrine of equality enshrined in Article 14 permits reasonable
classification just as Article 14 does. In our respectful opinion, the
view taken by the majority in Thomas, (1976) 2 SCC 310, is the
correct one. We too believe that Article 16(1) does permit
reasonable classification for ensuring attainment of the equality
of opportunity assured by it. For assuring equality of opportunity, C
it may well be necessary in certain situations to treat unequally
situated persons unequally. Not doing so, would perpetuate and
accentuate inequality. Article 16(4) is an instance of such
classification, put in to place the matter beyond controversy. The
“backward class of citizens” are classified as a separate category
D
deserving a special treatment in the nature of reservation of
appointments/posts in the services of the State. Accordingly, we
hold that clause (4) of Article 16 is not exception to clause (1) of
Article 16. It is an instance of classification implicit in and permitted
by clause (1). The speech of Dr Ambedkar during the debate on
draft Article 10(3) [corresponding to Article 16(4)] in the E
Constituent Assembly — referred to in para 693 — shows that a
substantial number of members of the Constituent Assembly
insisted upon a “provision (being) made for the entry of certain
communities which have so far been outside the administration”,
and that draft clause (3) was put in in recognition and acceptance
F
of the said demand. It is a provision which must be read along
with and in harmony with clause (1). Indeed, even without clause
(4), it would have been permissible for the State to have evolved
such a classification and made a provision for reservation of
appointments/posts in their favour. Clause (4) merely puts the
matter beyond any doubt in specific terms. G
742. Regarding the view expressed in Balaji, 1963 Supp 1 SCR
439 and Devadasan, (1964) 4 SCR 680, it must be remembered
that at that time it was not yet recognised by this Court that Article
16(1) being a facet of Article 14 does implicitly permit classification.
Once this feature was recognised the theory of clause (4) being H
894 SUPREME COURT REPORTS [2020] 10 S.C.R.

A an exception to clause (1) became untenable. It had to be accepted
that clause (4) is an instance of classification inherent in clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the
principle underlying Article 14, clause (2) of Article 16 is also an
elaboration of a facet of clause (1). If clause (4) is an exception
to clause (1) then it is equally an exception to clause (2). Question
B
then arises, in what respect if clause (4) an exception to clause
(2), if ‘class’ does not means ‘caste’. Neither clause (1) nor clause
(2) speak of class. Does the contention mean that clause (1) does
not permit classification and therefore clause (4) is an exception
to it. Thus, from any point of view, the contention of the petitioners
C has no merit.
Question 2(c):
Whether Article 16(4) is exhaustive of the very concept of
reservations?
D 744. The aspect next to be considered is whether clause (4) is
exhaustive of the very concept of reservations? In other words,
the question is whether any reservations can be provided outside
clause (4) i.e., under clause (1) of Article 16. There are two views
on this aspect. On a fuller consideration of the matter, we are of
the opinion that clause (4) is not, and cannot be held to be,
E exhaustive of the concept of reservations; it is exhaustive of
reservations in favour of backward classes alone. Merely because,
one form of classification is stated as a specific clause, it does not
follow that the very concept and power of classification implicit in
clause (1) is exhausted thereby. To say so would not be correct in
F principle. But, at the same time, one thing is clear. It is in very
exceptional situations, — and not for all and sundry reasons —
that any further reservations, of whatever kind, should be provided
under clause (1). In such cases, the State has to satisfy, if called
upon, that making such a provision was necessary (in public
interest) to redress a specific situation. The very presence of
G clause (4) should act as a damper upon the propensity to create
further classes deserving special treatment. The reason for saying
so is very simple. If reservations are made both under clause (4)
as well as under clause (1), the vacancies available for free
competition as well as reserved categories would be a
H correspondingly whittled down and that is not a reasonable thing
to do.
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 895
[ARUN MISHRA, J.]

Whether clause (1) of Article 16 does not permit any A
reservations?
745. For the reasons given in the preceding paragraphs, we must
reject the argument that clause (1) of Article 16 permits only
extending of preference, concessions and exemptions, but does
not permit reservation of appointments/posts. As pointed out in B
para 733 the argument that no reservations can be made under
Article 16(1) is really inspired by the opinion of Powell, J in Bakke,
57 L Ed 2d 750. But in the very same paragraph we had pointed
out that it is not the unanimous opinion of the Court. In principle,
we see no basis for acceding to the said contention. What kind of
special provision should be made in favour of a particular class is C
a matter for the State to decide, having regard to the facts and
circumstances of a given situation — subject, of course, to the
observations in the preceding paragraph.”
(emphasis supplied)
D
(ii) The opinion expressed by P.B. Sawant, J. (for himself) is
extracted hereunder:
“428. With the majority decision of this Court in State of Kerala
v. N.M. Thomas, (1976) 2 SCC 310, having confirmed the minority
opinion of Subba Rao, J in T. Devadasan v. Union of India, E
(1964) 4 SCR 680, the settled judicial view is that clause (4) of
Article 16 is not an exception to clause (1) thereof, but is merely
an emphatic way of stating what is implicit in clause (1).
429. Equality postulates not merely legal equality but also real
equality. The equality of opportunity has to be distinguished from F
the equality of results. The various provisions of our Constitution
and particularly those of Articles 38, 46, 335, 338 and 340 together
with the Preamble, show that the right to equality enshrined in our
Constitution is not merely a formal right or a vacuous declaration.
It is a positive right, and the State is under an obligation to undertake
measures to make it real and effectual. ….. G
430.If, however, clause (4) is treated as an exception to clause
(1), an important but unintended consequence may follow. There
would be no other classification permissible under clause (1), and
clause (4) would be deemed to exhaust all the exceptions that can
be made to clause (1). It would then not be open to make provision H
896 SUPREME COURT REPORTS [2020] 10 S.C.R.

A for reservation in services in favour of say, physically handicapped,
army personnel and freedom fighters and their dependents, project
affected persons, etc. The classification made in favour of persons
belonging to these categories is not hit by clause (2). Apart from
the fact that they cut across all classes, the reservations in their
favour are made on considerations other than that of backwardness
B
within the meaning of clause (4). Some of them may belong to the
backward classes while some may belong to forward classes or
classes which have an adequate representation in the services.
They are, however, more disadvantaged in their own class whether
backward or forward. Hence, even on this ground it will have to
C be held that Article 16(4) carves out from various classes for
whom reservation can be made, a specific class, viz., the backward
class of citizens, for emphasis and to put things beyond doubt.
431. For these very reasons, it will also have to be held that so far
as “backward classes” are concerned, the reservations for them
D can only be made under clause (4) since they have been taken
out from the classes for which reservation can be made under
Article 16(1). Hence, Article 16(4) is exhaustive of all the
reservations that can be made for the backward classes as such,
but is not exhaustive of reservations that can be made for classes
other than backward classes under Article 16(1). So also, no
E reservation can be made under Article 16(4) for classes other
than “backward classes” implicit in that article. They have to look
for their reservations, to Article 16(1).
432. It may be added here that reservations can take various
forms whether they are made for backward or other classes.
F They may consist of preferences, concessions, exemptions, extra
facilities etc. or of an exclusive quota in appointments as in the
present case. When measures other than an exclusive quota for
appointments are adopted, they form part of the reservation
measures or are ancillary to or necessary for availing of the
G reservations. Whatever the form of reservation, the backward
classes have to look for them to Article 16(4) and the other classes
to Article 16(1).”
(emphasis supplied)
(iii) The opinion of S. Ratnavel Pandian, J. (for himself) is extracted
H hereunder:
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 897
[ARUN MISHRA, J.]

“168. In my view, clause (4) of Article 16 is not an exception to A
Article 16(1) and (2) but it is an enabling provision and permissive
in character overriding Article 16(1) and (2); that it is a source of
reservation for appointments or posts in the Services so far as the
backward class of citizens is concerned and that under clause (1)
of Article 16 reservation for appointments or posts can be made
B
to other sections of the society such as physically handicapped
etc.
169. There is complete unanimity of judicial opinion of this Court
that under Article 16(4) the State can make adequate provisions
for reservations of appointments or posts in favour of any backward
class of citizens, if in the opinion of the State such ‘backward C
class’ is not adequately represented in the State. In fact in B.
Venkataramana v. State of Madras, AIR 1951 SC 229, a seven-
Judge Bench of this Court held that “[r]eservation of posts in
favour of any backward class of citizens cannot, therefore, be
regarded as unconstitutional”. Not a single decision of this Court D
has cast slightest shadow of doubt on the constitutional validity of
reservation. Therefore, in view of the above position of law, I am
not inclined to embark upon an elaborate discussion on this question
any further.”
20. On behalf of the State of Punjab, it was argued that preferential E
treatment given by the State to certain Scheduled Castes and Scheduled
Tribes does not violate Article 14 but brings about proportional equality.
The classification made based on intelligible differentia is inter-se
backwardness and share in population vis-à-vis proportion of
representation in Government services. The differentia bears a reasonable
nexus with the object sought to be achieved. Those who are unequal F
class of Scheduled Caste and Scheduled Tribe can be given the benefit
of reservation to ensure that benefit reaches to them as guaranteed
under Article 14. For this purpose, reliance has been placed on the
following decisions:
(i) In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical G
College & Ors., (1990) 3 SCC 130, the Court held:
“8. Article 15 of the Constitution prohibits discrimination on grounds
of religion, race, caste, sex or place of birth. Article 15(4), however,
enjoins that nothing in that article or in clause (2) of Article 29 of
the Constitution shall prevent the State from making any special H
898 SUPREME COURT REPORTS [2020] 10 S.C.R.

A provision of the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes. Therefore, reservation in favour of Scheduled
Tribes or Scheduled Castes for the purpose of advancement of
socially or educationally backward citizens to make them equal
with other segments of community in educational or job facilities
B
is the mandate of the Constitution. Equality is the dictate of our
Constitution. Article 14 ensures equality in its fullness to all our
citizens. State is enjoined not to deny to any persons equality before
law and equal protection of the law within the territory of India.
Where it is necessary, however, for the purpose of bringing about
C real equality of opportunity between those who are unequals,
certain reservations are necessary and these should be ensured.
Equality under the Constitution is a dynamic concept which must
cover every process of equalisation. Equality must become a living
reality for the large masses of the people. Those who are unequal,
in fact, cannot be treated by identical standards; that may be
D
equality in law but it would certainly not be real equality. Existence
of equality of opportunity depends not merely on the absence of
disabilities but on presence of abilities. It is not simply a matter of
legal equality. De jure equality must ultimately find its raison d’etre
in de facto equality. The State must, therefore, resort to
E compensatory State action for the purpose of making people who
are factually unequal in their wealth, education or social
environment, equal in specified areas. It is necessary to take into
account de facto inequalities which exist in the society and to
take affirmative action by way of giving preference and reservation
to the socially and economically disadvantaged persons or inflicting
F
handicaps on those more advantageously placed, in order to bring
about real equality. Such affirmative action though apparently
discriminatory is calculated to produce equality on a broader basis
by eliminating de facto inequalities and placing the weaker sections
of the community on a footing of equality with the stronger and
G more powerful sections so that each member of the community,
whatever is his birth, occupation or social position may enjoy equal
opportunity of using to the full his natural endowments of physique,
of character and of intelligence. In this connection, reference may
be made to the observations of this Court in Pradeep Jain v.
Union of India, (1984) 3 SCC 654.”
H
(emphasis supplied)
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 899
[ARUN MISHRA, J.]

(ii) In Dr. Pradeep Jain & Ors. v. Union of India & Ors., A
(1984) 3 SCC 654, the following observations were made:
“13. ….. What the famous poet William Blake said graphically is
very true, namely, “One law for the Lion and the Ox is oppression”.
Those who are unequal, in fact, cannot be treated by identical
standards; that may be equality in law but it would certainly not B
be real equality. It is, therefore, necessary to take into account de
facto inequalities which exist in the society and to take affirmative
action by way of giving preference to the socially and economically
disadvantaged persons or, inflicting handicaps on those more
advantageously placed, in order to bring about real equality. ….”
C
(emphasis supplied)
(iii) In Union of India & Ors. v. Rakesh Kumar & Ors., (2010)
4 SCC 50, it was opined:
“37. It is a well-accepted premise in our legal system that ideas
such as “substantive equality” and “distributive justice” are at the D
heart of our understanding of the guarantee of “equal protection
before the law”. The State can treat unequals differently with the
objective of creating a level-playing field in the social, economic
and political spheres. The question is whether “reasonable
classification” has been made on the basis of intelligible differentia E
and whether the same criteria bears a direct nexus with a legitimate
governmental objective. When examining the validity of affirmative
action measures, the enquiry should be governed by the standard
of proportionality rather than the standard of “strict scrutiny”. Of
course, these affirmative action measures should be periodically
reviewed and various measures modified or adapted from time to F
time in keeping with the changing social and economic conditions.
Reservation of seats in panchayats is one such affirmative action
measure enabled by Part IX of the Constitution.”
(emphasis supplied)
G
(iv) In Dega Venkata Harsha Vardhan & Ors. v. Akula Ventaka
Harshavardhan & Ors., (2019) 12 SCC 735, similar observations were
made.
21. The object-oriented approach has to be adopted as observed
in S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001 SC 2707,
H
900 SUPREME COURT REPORTS [2020] 10 S.C.R.

A T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002)
8 SCC 481, Sobha Hymavathi Devi v. Setti Gangadhara Swamy &
Ors., AIR 2005 SC 800. In M. Nagaraj, the following observations
were made:
“122. We reiterate that the ceiling limit of 50%, the concept of
B creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency
are all constitutional requirements without which the structure of
equality of opportunity in Article 16 would collapse.”
In Re. Application of Creamy Layer Concept to the
C Scheduled Castes:
22. (a) In Indra Sawhney, within those identified as backward
classes, exclusion had been permitted to those who are socially and
educationally advanced. B.P. Jeevan Reddy, J. (for himself and other
three Judges) observed thus:
D “792. …..While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially advanced
members will make the ‘class’ a truly backward class and would
more appropriately serve the purpose and object of clause (4).
(This discussion is confined to Other Backward Classes only and
E has no relevance in the case of Scheduled Tribes and Scheduled
Castes).
795. We see no reason to qualify or restrict the meaning of the
expression “backward class of citizens” by saying that it means
those other backward classes who are situated similarly to
F Scheduled Castes and/or Scheduled Tribes. As pointed out in para
786, the relevant language employed in both the clauses is different.
Article 16(4) does not expressly refer to Scheduled Castes or
Scheduled Tribes; if so, there is no reason why we should treat
their backwardness as the standard backwardness for all those
claiming its protection. As a matter of fact, neither the several
G castes/groups/tribes within the Scheduled Castes and Scheduled
Tribes are similarly situated nor are the Scheduled Castes and
Scheduled Tribes similarly situated. If any group or class is situated
similarly to the Scheduled Castes, they may have a case for
inclusion in that class but there seems to be no basis either in fact
or in principle for holding that other classes/groups must be situated
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 901
[ARUN MISHRA, J.]

similarly to them for qualifying as backward classes. There is no A
warrant to import any such a priori notions into the concept of
Other Backward Classes. At the same time, we think it appropriate
to clarify that backwardness, being a relative term, must in the
context be judged by the general level of advancement of the
entire population of the country or the State, as the case may be.
B
More than this, it is difficult to say. How difficult is the process of
ascertainment of backwardness would be known if one peruses
Chapters III and XI of Volume I of the Mandal Commission Report
along with Appendixes XII and XXI in Volume II. It must be left
to the Commission/Authority appointed to identify the backward
classes to evolve a proper and relevant criteria and test the several C
groups, castes, classes and sections of people against that criteria.
If, in any case, a particular caste or class is wrongly designated or
not designated as a backward class, it can always be questioned
before a court of law as well. We may add that relevancy of the
criteria evolved by Mandal Commission (Chapter XI) has not been
D
questioned by any of the counsel before us. Actual identification
is a different matter, which we shall deal with elsewhere.
796.-797. We may now summarise our discussion under Question
No. 3. (a) A caste can be and quite often is a social class in India.
If it is backward socially, it would be a backward class for the
purposes of Article 16(4). Among non-Hindus, there are several E
occupational groups, sects and denominations, which for historical
reasons are socially backward. They too represent backward social
collectivities for the purposes of Article 16(4). (b) Neither the
constitution nor the law prescribe the procedure or method of
identification of backward classes. Nor is it possible or advisable F
for the court to lay down any such procedure or method. It must
be left to the authority appointed to identify. It can adopt such
method/procedure as it thinks convenient and so long as its survey
covers the entire populace, no objection can be taken to it.
Identification of the backward classes can certainly be done with
reference to castes among, and along with, other groups, classes G
and sections of people. One can start the process with the castes,
wherever they are found, apply the criteria (evolved for determining
backwardness) and find out whether it satisfies the criteria. If it
does — what emerges is a “backward class of citizens” within
the meaning of and for the purposes of Article 16(4). Similar process H
902 SUPREME COURT REPORTS [2020] 10 S.C.R.

A can be adopted in the case of other occupational groups,
communities and classes, so as to cover the entire populace. The
central idea and overall objective should be to consider all available
groups, sections and classes in society. Since caste represents an
existing, identifiable social group/class encompassing an
overwhelming majority of the country’s population, one can well
B
begin with it and then go to other groups, sections and classes. (c)
It is not necessary for a class to be designated as a backward
class that it is situated similarly to the Scheduled Castes/Scheduled
Tribes. (d) ‘Creamy layer’ can be, and must be, excluded. (e) It is
not correct to say that the backward class contemplated by Article
C 16(4) is limited to the socially and educationally backward classes
referred to in Article 15(4) and Article 340. It is much wider. The
test or requirement of social and educational backwardness cannot
be applied to Scheduled Castes and Scheduled Tribes, who
indubitably fall within the expression “backward class of citizens”.
The accent in Article 16(4) appears to be on social backwardness.
D
Of course, social, educational and economic backwardness are
closely intertwined in the Indian context. The classes contemplated
by Article 16(4) may be wider than those contemplated by Article
15(4).”
(emphasis supplied)
E
23. In Jarnail Singh, it was held that the application of the creamy
layer concept to Articles 341 and 342 does not in any way tinker with
the Presidential List. Following discussion was made:
“26. The whole object of reservation is to see that Backward
F Classes of citizens move forward so that they may march hand in
hand with other citizens of India on an equal basis. This will not
be possible if only the creamy layer within that class bag all the
coveted jobs in the public sector and perpetuate themselves, leaving
the rest of the class as backward as they always were. This being
the case, it is clear that when a court applies the creamy layer
G principle to Scheduled Castes and Scheduled Tribes, it does not in
any manner tinker with the Presidential List under Articles 341 or
342 of the Constitution of India. The caste or group or sub-group
named in the said List continues exactly as before. It is only those
persons within that group or sub-group, who have come out of
H untouchability or backwardness by virtue of belonging to the
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 903
[ARUN MISHRA, J.]

creamy layer, who are excluded from the benefit of reservation. A
Even these persons who are contained within the group or sub-
group in the Presidential Lists continue to be within those Lists. It
is only when it comes to the application of the reservation principle
under Articles 14 and 16 that the creamy layer within that sub-
group is not given the benefit of such reservation.
B
27. We do not think it necessary to go into whether Parliament
may or may not exclude the creamy layer from the Presidential
Lists contained under Articles 341 and 342. Even on the assumption
that Articles 341 and 342 empower Parliament to exclude the
creamy layer from the groups or sub-groups contained within these
Lists, it is clear that constitutional courts, applying Articles 14 and C
16 of the Constitution to exclude the creamy layer cannot be said
to be thwarted in this exercise by the fact that persons stated to
be within a particular group or sub-group in the Presidential List
may be kept out by Parliament on application of the creamy layer
principle. One of the most important principles that has been D
frequently applied in constitutional law is the doctrine of harmonious
interpretation. When Articles 14 and 16 are harmoniously
interpreted along with other Articles 341 and 342, it is clear that
Parliament will have complete freedom to include or exclude
persons from the Presidential Lists based on relevant factors.
Similarly, constitutional courts, when applying the principle of E
reservation, will be well within their jurisdiction to exclude the
creamy layer from such groups or sub-groups when applying the
principles of equality under Articles 14 and 16 of the Constitution
of India. We do not agree with Balakrishnan, C.J.’s statement in
Ashoka Kumar Thakur, (2008) 6 SCC 1 that the creamy layer F
principle is merely a principle of identification and not a principle
of equality.
28. Therefore, when Nagaraj, (2006) 8 SCC 212, applied the
creamy layer test to Scheduled Castes and Scheduled Tribes in
exercise of application of the basic structure test to uphold the G
constitutional amendments leading to Articles 16(4-A) and 16(4-
B), it did not in any manner interfere with Parliament’s power
under Article 341 or Article 342. We are, therefore, clearly of the
opinion that this part of the judgment does not need to be revisited,
and consequently, there is no need to refer Nagaraj, (2006) 8
H
904 SUPREME COURT REPORTS [2020] 10 S.C.R.

A SCC 212 to a seven-Judge Bench. We may also add at this juncture
that Nagaraj, (2006) 8 SCC 212 is a unanimous judgment of five
learned Judges of this Court which has held sway since the year
2006. This judgment has been repeatedly followed and applied by
a number of judgments of this Court, namely:
B 28.1.Anil Chandra v. Radha Krishna Gaur, (2009) 9 SCC
454(two-Judge Bench) (see paras 17 and 18).
28.2.Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC
467(two-Judge Bench) (see paras 10, 50, and 67).
28.3.U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC
C 1, (two-Judge Bench) [see paras 61, 81(ix), and 86].
28.4.S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292,
(two-Judge Bench) (see paras 18, 19, and 36).
28.5.Central Bank of India v. SC/ST Employees Welfare Assn.,
D (2015) 12 SCC 308 (two-Judge Bench) (see paras 9 and 26).
28.6.Suresh Chand Gautam v. State of U.P., (2016) 11 SCC
113 (two-Judge Bench) (see paras 2 and 45).
28.7.B.K. Pavitra v. Union of India, (2017) 4 SCC 620 (two-
Judge Bench) (see paras 17 to 22).”
E (emphasis supplied)
24. Reliance has been placed upon Ashoka Kumar Thakur v.
Union of India and Ors., (2008) 6 SCC 1, to hammer home the point
that the decision in Indra Sawhney (supra) was limited to other backward
classes and not to Scheduled Castes. It was observed:
F
“395.In Sawhney (I), 1992 Supp (3) SCC 217, the entire
discussion was confined only to Other Backward Classes. Similarly,
in the instant case, the entire discussion was confined only to
Other Backward Classes. Therefore, I express no opinion with
regard to the applicability of exclusion of creamy layer to the
G Scheduled Castes and Scheduled Tribes.
633. In Indra Sawhney (1), 1992 Supp (3) SCC 217, creamy
layer exclusion was only in regard to OBC. Reddy, J. speaking
for the majority at SCC p. 725, para 792, stated that “[t]his
discussion is confined to Other Backward Classes only and has
H no relevance in the case of Scheduled Tribes and Scheduled
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 905
[ARUN MISHRA, J.]

Castes”. Similarly, in the instant case, the entire discussion was A
confined only to Other Backward Classes. Therefore, I express
no opinion with regard to the applicability of exclusion of creamy
layer to the Scheduled Castes and Scheduled Tribes.”
(emphasis supplied)
In Ashoka Kumar (supra), no opinion was expressed concerning B
the creamy layer concept to Scheduled Castes and Scheduled Tribes.
However, now Jarnail Singh (supra) is crystal clear in that regard and
lays down that it can be applied to Scheduled Castes and Scheduled
Tribes, and that would not amount to tinkering with lists under Articles
341 and 342. The question involved in the present matter is of C
classification and thereby preferential treatment without depriving any
caste benefit of reservation.
25. It was argued that E.V. Chinnaiah is contrary to other binding
decisions in K.C. Vasanth Kumar and N.M. Thomas.
(a) In K.C. Vasanth Kumar decision in M. R. Balaji was D
distinguished. It was held that classification between backward and more
backward is necessary to help more backward classes. The sub-
classification was held to be permissible to help those classes who are
definitely far behind the advanced classes, but ahead of the very backward
classes. Following opinion was expressed: E
“55. It was also observed in Balaji, AIR 1963 SC 649, that the
sub-classification made by the reservation order between backward
classes and more backward classes did not appear to be justified
under Article 15(4) as it appeared to be a measure devised to
benefit all the classes of citizens who were less advanced when F
compared with the most advanced classes in the State, and that
was not the scope of Article 15(4). A result of the sub-classification
was that nearly 90 per cent of the population of the State was
treated as backward. The propriety of such a course may be
open to question on the facts of each case, but we do not see why
on principle there cannot be a classification into backward classes G
and more backward classes, if both classes are not merely a little
behind, but far far behind the most advanced classes. In fact such
a classification would be necessary to help the more backward
classes; otherwise those of the backward classes who might be a
little more advanced than the more backward classes might walk
H
906 SUPREME COURT REPORTS [2020] 10 S.C.R.

A away with all the seats, just as, if reservation was confined to the
more backward classes and no reservation was made to the slightly
more advanced backward classes, the most advanced classes
would walk away with all the seats available for the general
category leaving none for the backward classes. All that we can
say is that sub-classification may be permissible if there are classes
B
of people who are definitely far behind the advanced classes but
ahead of the very backward classes.”
(emphasis supplied)
(b) In N.M. Thomas, it was observed that there could be no
C objection to further classification within a class. It was held that men
are born different, and some sort of differential treatment is required to
achieve proportional equality. The Court opined thus:
“82.The word “caste” in Article 16(2) does not include “scheduled
caste”. The definition of “Scheduled Castes” in Article 366(24)
D means
such castes, races or tribes or parts of or groups within such
castes, races, or tribes as are deemed under Article 341 to be
Scheduled Castes for the purposes of this Constitution.
This shows that it is by virtue of the notification of the President
E that the Scheduled Castes come into being. Though the members
of the Scheduled Castes are drawn from castes, races or tribes,
they attain a new status by virtue of the Presidential notification.
Moreover, though the members of tribe might be included in
Scheduled Castes, tribe as such is not mentioned in Article 16(2).
F 83.A classification is reasonable if it includes all persons who are
similarly situated with respect to the purpose of the law. In other
words, the classification must be founded on some reasonable
ground which distinguishes persons who are grouped together and
the ground of distinction must have rational relation to the object
sought to be achieved by the rule or even the rules in question. It
G
is a mistake to assume a priori that there can be no classification
within a class, say, the lower division clerks. If there are intelligible
differentia which separates a group within that class from the
rest and that differentia have nexus with the object of classification,
I see no objection to a further classification within the class. It is
H no doubt a paradox that though in one sense classification brings
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 907
[ARUN MISHRA, J.]

about inequality, it is promotive of equality if its object is to bring A
those who share a common characteristic under a class for
differential treatment for sufficient and justifiable reasons. In this
view, I have no doubt that the principle laid down in All India
Station Masters and Assistant Station Masters Association v.
General Manager, Central Railway, (1960) 2 SCR 311; S.G.
B
Jaisinghani v. Union of India and State of J&K. v. Triloki
Nath Khosa, (1974) 1 SCR 771, has no application here.
*** *** ***
167. A combined reading of Article 46 and clauses (24) and (25)
of Article 366 clearly shows that the members of the scheduled C
castes and the scheduled tribes must be presumed to be backward
classes of citizens, particularly when the Constitution gives the
example of the scheduled castes and the scheduled tribes as being
the weaker sections of the society.
169. Thus in view of these provisions the members of the D
scheduled castes and the scheduled tribes have been given a
special status in the Constitution and they constitute a class by
themselves. That being the position it follows that they do not fall
within the purview of Article 16(2) of the Constitution which
prohibits discrimination between the members of the same caste.
If, therefore, the members of the scheduled castes and the E
scheduled tribes are not castes, then it is open to the State to
make reasonable classification in order to advance or lift these
classes so that they may be able to be properly represented in the
services under the State. This can undoubtedly be done under
Article 16(1) of the Constitution.” F
(emphasis supplied)
26. It was argued that the class of citizens cannot be treated to be
socially and educationally backward till perpetuity those who have come
up must be excluded like the creamy layer. The question arises for
exclusion by courts of such class. The power of the court was upheld in G
Jarnail Singh. To take home the submission, reliance has been placed
on Jagdish Negi, President, Uttarakhand Jan Morcha, in which it
was held as under:
“9. It is, therefore, obvious that residents of hills and Uttarakhand
areas were treated as socially and educationally backward classes H
908 SUPREME COURT REPORTS [2020] 10 S.C.R.

A of citizens entitled to benefit under Articles 15(1), 15(4) and 29(2)
of the Constitution in the year 1974 when this Court decided that
case. But simply on this basis it cannot be urged that this class of
citizens could be condemned as socially and educationally
backward class of citizens till eternity, however much they may
like to be stigmatized as educationally and socially backward class
B
of citizens. This class is always required to be judged in the light
of the existing fact situation at a given point of time. There cannot
be a class of citizens which can be treated perpetually to be a
socially and educationally backward class of citizens. Every citizen
has the right to develop socially and educationally. …….
C 14. It is, however, not possible to agree with the contention of
learned Senior Counsel for the petitioners that such reservation
should continue without any limitation or there cannot be periodical
review about the said reservation policy. ….. Consequently the
question whether a given category of citizens continues to be
D socially and educationally backward class of citizens at a given
point of time or not has to be left to the State concerned for its
objective decision from time to time. The State cannot be bound
in perpetuity to treat such classes of citizens for all times as socially
and educationally backward classes of citizens. The principle of
“once a mortgage always a mortgage” cannot be pressed into
E service for submitting that once a backward class of citizens,
always such a backward class. In other words, it is open to the
State to review the situation from time to time and to decide
whether a given class of citizens that has earned the benefit of 27
per cent reservation as socially and educationally backward class
F of citizens has continued to form a part of that category or has
ceased to fall in that category. Thereby it cannot be said that the
first respondent is adopting a policy which is contrary to the
constitutional scheme of reservation. Within the four corners of
Article 15(4) or Article 16(4) such an exercise cannot be said to
be unauthorised. Such an exercise has been upheld by the
G Constitution Bench of this Court in Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217.”
(emphasis supplied)
In Re. Effect of insertion of Article 342A:
H 27. Article 341 is extracted hereunder:
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 909
[ARUN MISHRA, J.]

“341. Scheduled Castes.—(1) The President may with respect A
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 or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to that
B
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification issued under
clause (1) any caste, race or tribe or part of or group within any
caste, race or tribe, but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent C
notification.”
Articles 342 and 342A deal with Scheduled Tribes and socially
and educationally backward classes respectively. They are extracted
hereunder:
D
“342. Scheduled Tribes.—(1) The President may with respect
to any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that E
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause
(1) any tribe or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a notification issued F
under the said clause shall not be varied by any subsequent
notification.
342A. Socially and educationally backward classes.— (1)
The President may with respect to any State or Union territory,
and where it is a State, after consultation with the Governor thereof, G
by public notification, specify the socially and educationally
backward classes which shall for the purposes of this Constitution
be deemed to be socially and educationally backward classes in
relation to that State or Union territory, as the case may be.
H
910 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (2) Parliament may by law include in or exclude from the Central
List of socially and educationally backward classes specified in a
notification issued under clause (1) any socially and educationally
backward class, but save as aforesaid a notification issued under
the said clause shall not be varied by any subsequent notification.”
B It is provided in Article 341(1) that the President may specify the
castes, races or tribes or parts of or groups within castes, races or tribes
in relation to a State or Union territory. As per Article 341(2), the
Parliament has the power to include or exclude from the list of Scheduled
Castes. Article 366 defines ‘Scheduled Castes’, ‘Scheduled Tribes’ and
‘Socially and Educationally Backward Classes’, thus:
C
“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—
D (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
E communities or parts of or groups within such tribes or
tribal communities as are deemed under Article 342 to be
Scheduled Tribes for the purposes of this Constitution;
(26C) “socially and educationally backward classes” means
such backward classes as are so deemed under article 342A
F for the purposes of this Constitution;”
Article 342A has been inserted by the Constitution (One Hundred
and Second Amendment) Act, 2018, w.e.f. 14.8.2018. In Indra Sawhney,
the question of reservation of socially and educationally backward classes
was involved. Article 342A’s provisions are pari materia to Articles
341and 342 dealing with Scheduled Castes and Scheduled Tribes. Under
G
Article 342A the President is empowered to issue public notification
with respect to socially, and educationally backward classes which shall
for the Constitution be deemed to be socially and educationally backward
classes in relation to that State or Union territory and the Parliament
may by law has the power to include in or exclude from the Central list
H of socially and educationally backward class. The power of variation
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 911
[ARUN MISHRA, J.]

can be exercised only once. When we consider the definition of ‘socially A
and educationally backward classes’ as defined in Article 366(26C), it
means such backward classes as are so deemed under Article 342A for
the purposes of the Constitution. In order to be recognised, it is necessary
that socially and educationally class to find a place in the notification
issued under Article 342A(1). The provisions of Articles 341, 342, and
B
342A are pari materia, and the reservation for socially and educationally
backward classes was the subject matter under consideration in Indra
Sawhney. Thus, the question arises how different opinions can be
expressed with respect to Scheduled Castes, Scheduled Tribes, and
socially and educationally backward classes for the purposes of the
classification. The provisions of Article 16(4) and Article 342A indicate C
that it would not be permissible to adopt different criteria for Scheduled
Castes, Scheduled Tribes, and socially and educationally backward
classes. The authoritative pronouncement is required with respect to the
effect of aforesaid provisions of the Constitution and whether sub-
classification is permissible only with respect to the socially and
D
educationally backward classes covered under Article 342A read with
Article 366(26C) and not with respect to Scheduled Castes and
Scheduled Tribes covered under similar provisions, i.e., under Articles
341 and 342 read with Article 366(24) and 366(25) respectively. The
question of immense public importance arises in view of the insertion of
Article 342A. When we consider Indra Sawhney, permitting such E
classification of socially and educationally backward class, and provisions
of Articles 341, 342, and 342A are pari materia, the Court is required to
have a fresh look on the decision rendered in E.V. Chinnaiah. In the
spirit of constitutional provisions, the question is required to be re-
examined authoritatively by this Court being of immense public
F
importance. Thus, the case is required to be heard by a larger Bench
than the one which decided E.V. Chinnaiah.
Whether sub-classification amounts to exclusion under
Article 341(2)?
28. Whether sub-classification amounts to exclusion? What is G
provided under Articles 341(2), 342(2), and 342A(2) with respect to
Scheduled Castes, Scheduled Tribes, and socially and educationally
backward classes in the Central list, the Parliament has the power
concerning inclusion or exclusion. Once there is exclusion, there is no
power to re-include. The Parliament has the power to include in or exclude
H
912 SUPREME COURT REPORTS [2020] 10 S.C.R.

A from the Central list of Scheduled Castes, Scheduled Tribes, and socially
and educationally backward classes.
29. The question arising for consideration is whether sub-
classification made or preferential treatment within the class of Scheduled
Castes, Scheduled Tribes and socially and educationally backward classes
B can be said to be an exercise of inclusion or exclusion particularly when
the other castes in the list of Scheduled Caste persons are not deprived
of the benefit of reservation in totality. All the castes included in the list
of Scheduled Caste are given the benefit of reservation as per
representation in service, but only specific percentage fixed for
preferential treatment to a caste/class which was not able to enjoy the
C benefit of reservation on account of their being more backward within
the backward classes of Scheduled Castes. The preferential treatment
would not tantamount to excluding other classes as total deprivation caused
to any of the castes in the list of Scheduled Caste under Article 341(2).
Caste is nothing but a class. It is the case of classification to provide
D benefit to all and to those deprived of the benefit of reservation, being
the poorest of the poor. Whether the action based on intelligible differentia
to trickle down the benefit can be said to be violative of Articles 14 and
16 of the Constitution and whether sub-classification can be said to be
an act of inclusion or exclusion particularly when various reports indicating
that there is inequality inter se various castes included within the list of
E Scheduled Castes. They do not constitute homogenous class have been
relied upon. Based on the report and to give adequate representation to
those who continue to remain the most backward of the downtrodden
class, the provisions containing a certain percentage of preferential
treatment subject to availability without depriving others in the list were
F made.
30. In the Speech made by Dr. Ambedkar in the Constituent
Assembly regarding the enactment of Articles 341 and 342, he stated
that the object is to eliminate any kind of political factor in the matter of
the disturbance in the schedule so published by the President. The same
G has been referred to in Milind thus:
“14. In the debates of Constituent Assembly (Official Report,
Vol. 9) while moving to add new Articles 300-A and 300-B after
Article 300 (corresponding to Articles 341 and 342 of the
Constitution), Dr B.R. Ambedkar explained as follows:
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 913
[ARUN MISHRA, J.]

“The object of these two articles, as I stated, was to A
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
B
deemed to be Scheduled Castes and Scheduled Tribes for the
purpose of these 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 C
elimination was to be made from the list so notified or any addition
was to be made that must be made by Parliament and not by the
President. The object is to eliminate any kind of political factors
having a play in the matter of the disturbance in the schedule
so published by the President.”
D
(emphasis supplied)
31. The law is settled that once the President has issued a
notification specifying the list included in the Scheduled under Article
341(1), the Parliament is competent to make the variation in the
notification as provided under Article 341(2) from the following decisions: E
(i) B. Basavalingappa v. D. Munichinnappa, (1965) 1 SCR
316, it was held that the power was given to the Parliament to modify
the notification and any subsequent notification shall not vary same; hence,
the making of notification by the President is final for all times except
for modification by law as provided by clause (2). F
(ii) In Bhaiya Lal v. Harikishan Singh (1965) 2 SCR 877, it was
observed that before issuing a public notification under Article 341(1),
an elaborate enquiry is required to be made. As a result, thereof social
justice is sought to be done to the castes, races, or tribes. There can be
specifications by reference to different areas in the State. Educational G
and social backwardness may not be uniform or of the same intensity in
the whole of the State.
(iii) In Srish Kumar Choudhury v. State of Tripura & Ors.,
(1990) Supp. SCC 220, it was opined that the State Government may
initiate appropriate proposals for modification in case the claim is genuine
H
and tenable.
914 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (iv) In Palghat Jilla Thandan Samudhaya Samrakshna Samithi
& Anr. v. State of Kerala & Anr., (1994) 1 SCC 359, it was held that no
enquiry could be held or evidence let in to determine whether or not
some particular caste falls within it or outside it.
(v) In Milind, law to a similar effect was laid down whether a
B particular Scheduled Caste or Scheduled Tribe in the list is to be
determined looking to them as they are. The Article does not permit
anyone to seek modification by leading evidence that other caste or tribe
is part of the castes or tribes mentioned in the list. No purpose would be
served to look at gazetteers or glossaries for establishing the same. It is
not open to the court to modify or vary the order.
C
(vi) In Bir Singh, it was held that any expansion/deletion of the
list of Scheduled Castes/Scheduled Tribes by any authority except
Parliament would be against the constitutional mandate under Articles
341 and 342. If in the opinion of a State it is necessary to extend the
benefit of reservation to a class/category of Scheduled Castes/Scheduled
D Tribes beyond those specified in the lists, the State to make its views in
the matter prevail with the central authority to enable an appropriate
parliamentary exercise to be made by an amendment of the lists of
Scheduled Castes/Scheduled Tribes.
(vii) In Heikham Surchandra Singh & Ors. v. Representatives
E of “Lois” Kakching, Manipur (A scheduled caste uplift body) &
Ors., (1997) 2 SCC 523, it was observed that for the purpose of the
Constitution, “Scheduled Tribes” defined under Article 366(25) as
substituted under the Act, and the Second Schedule are conclusive.
(viii) In Shree Surat Valsad Jilla K.M.G. Parishad v. Union of
F India & Ors., (2007) 5 SCC 360, law to a similar effect was laid down.
(ix) Article 341(1) protects the Scheduled Caste’s members, having
regard to their economic and educational backwardness. In that context,
the President is empowered to limit the notification to parts or groups
within the castes. The notification issued in terms of the said provision is
G exhaustive. The legal fiction is required to be given its full effect as laid
down in Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204. In Punit
Rai, it was observed that the President has been authorised to limit the
notification to parts or groups within the castes. The notification issued
is exhaustive. The object of Article 341(1) is to provide preferential
right by way of protection to the members of the Scheduled Castes
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 915
[ARUN MISHRA, J.]

having regard to the economic and educational backwardness from which A
they suffer.
(x) In Subhash Chandra v. Delhi Subordinate Services
Selection Board, (2009) 15 SCC 458, the question arose concerning
migrants not listed in the Presidential notification. Whether they could
claim the benefit of reservation? It was held that the subject of reservation, B
vis-à-vis inclusion of castes/tribes. The presence of Articles 338, 338-A,
341, 342 in the Constitution precludes that. The Central Government
and the State Government may lay down a policy decision regarding
reservation having regard to Articles 15 and 16, but such a policy cannot
violate other constitutional provisions.
C
32. For revisiting the decision of E.V. Chinnaiah and doctrine of
stare decisis, several decisions have been cited at the Bar. They are as
follows:
(a) In Sambhu Nath Sarkar v. State of West Bengal & Ors.,
(1973) 1 SCC 856, it was held that the Court would review its earlier D
decisions if it is satisfied with its error or of the baneful effect such a
decision would have on the general interest of the public or if it is
inconsistent with the legal philosophy of Constitution, as such perpetuation
would be harmful to public interests.
(b) In State of Washington v. Dawson & Co., 264 U.S. 219, E
observed that a judgment seriously affects the lives of men, women, and
children, and the general welfare, the stare decisis is not a universal,
inexorable command.
(c) In David Burnet v. Colorado Oil & Gas Company, 285
U.S. 393, it was observed that in cases involving the Federal Constitution, F
where correction through legislative action is practically impossible, this
court has often overruled its earlier decisions. The court bows to the
lessons of experience and the force of better reasoning, recognising that
the process of trial and error, fruitful in the physical sciences, is also
appropriate in the judicial function.
G
(d) In Graves v. People of the State of New York, 306 U.S. 466,
it was observed that the ultimate touchstone of constitutionality is the
Constitution itself and not what we have said about it.
(e) In Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304; 4 L.
Ed. 97, 102, it was held that it could not be foreseen what new changes
H
916 SUPREME COURT REPORTS [2020] 10 S.C.R.

A and modifications of power might be indispensable to effectuate the
general objects of the charter; and restrictions and specifications, which,
at the present, might seem salutary, might, in the end, prove the overthrow
of the system itself.
(f) In Bengal Immunity Company Limited v. State of Bihar &
B Ors., (1955) 2 SCR 603, this Court observed that if the Court is convinced
of the baneful effect on the general interests of the public, the decision
has to be revisited, if its effect is far-reaching as it affects the rights of
all consuming public.
(g) In M. Nagaraj, it was laid down that a right becomes a
C fundamental right because it has foundational value. A Constitution is to
be given a generous and purposive construction. It would enable the
citizens to enjoy the rights guaranteed by it in the fullest measure.
(h) In I.R. Coelho, it was held that the Court can also examine
additional grounds in the constitutional matters of public interest.
D 33. With respect to the value of binding precedent, Shri Sanjay
Hegde, learned senior counsel, has relied upon the following decisions:
(a) Keshav Mills Co. Ltd. v. Commissioner of Income Tax,
(1965) 2 SCR 908, to lay down that unless there are compelling and
substantial reasons, the court would be reluctant to entertain pleas for
E the reconsideration and revision of its earlier decision.
(b) In Union of India & Anr. v. Raghubir Singh (dead) by LRs.
etc., (1989) 2 SCC 754, while laying down that the doctrine of binding
precedent has the merit of promoting certainty and consistency in judicial
decisions.
F
34. It was rightly pointed out by Shri R. Venkataramani that no
provision and indeed no word or expression of the Constitution exists in
isolation; they are necessarily related to transforming and, in turn being
transformed by other provisions, words and phrases in the Constitution
as held in GVK. Industries Limited& Anr. v. Income Tax Officer &
G Anr., (2011) 4 SCC 36. The observations made are extracted hereunder:
“37. In interpreting any law, including the Constitution, the text of
the provision under consideration would be the primary source
for discerning the meanings that inhere in the enactment. However,
in light of the serious issues it would always be prudent, as a
H matter of constitutional necessity, to widen the search for the true
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 917
[ARUN MISHRA, J.]

meaning, purport and ambit of the provision under consideration. A
No provision, and indeed no word or expression, of the Constitution
exists in isolation—they are necessarily related to, transforming
and in turn being transformed by, other provisions, words and
phrases in the Constitution.”
35. A Constitutional Court declares law as contained in the B
Constitution, but in doing so, it rightly reflects that a Constitution is a
living and organic thing, which of all instruments has the greatest claim
to be construed broadly and liberally as observed in Goodyear India
Ltd. & Ors. v. State of Haryana & Anr., (1990) 2 SCC 71.
36. This Court discussed the concept of socially and educationally C
backward classes in Indra Sawhney; however, the Court observed in
paragraph 781 extracted above that Scheduled Castes and Scheduled
Tribes are admittedly included within the backward classes, as such
there was no need to discuss that. Thus, the discussion was confined to
whether socially and educationally backward classes can be included in
Article 16(4), it was opined that ken of Article 16(4) is wider than Article D
15(4). It was also observed that backward classes contemplated under
Article 16(4) do comprise some castes. The Scheduled Castes include
quite a few castes. Based on the aforesaid foundational basis,
interpretation was made. In our opinion, the decision is relevant for
interpreting Article 16(4) provisions in their application to Scheduled E
Castes, Scheduled Tribes, and other backward classes. They stand on
the similar footing, and they cannot be treated as different from other as
also fortified by insertion of Article 342A which is pari materia to Article
341 or 342 and considering the definition in Article 366(24) and (26C)
and classification of backward classes can be done. The Scheduled Castes
and Scheduled Tribes admittedly are backward, and the same yardstick F
would apply to all. In Indra Sawhney, it was held that it is permissible to
make sub-classification within socially and educationally backward
classes. That discussion would be applicable for Scheduled Castes and
Scheduled Tribes as they admittedly fall under Article 16(4).
37. In Indra Sawhney, B.P. Jeevan Reddy, J. observed that several G
castes or tribes within the Scheduled Castes and Scheduled Tribes are
not similarly situated. In N.M. Thomas, it was held that Scheduled Castes
are group of castes, races, tribes, communities, or parts thereof found
suitable by the commission and notified by the President. Caste is nothing
H
918 SUPREME COURT REPORTS [2020] 10 S.C.R.

A but a social class or socially homogenous class. It is based on occupational
grouping. Its membership is by birth, and they inherit the same occupation.
38. The question arises whether sub-classification for providing
benefit to all castes can be said to be tinkering with the list under Articles
341, 342 and 342A, in view of the decisions in Indra Sawhney, permitting
B sub-classifications of backward classes and in Jarnail Singh, in which,
it was opined that ‘creamy layer concept’ for exclusion of benefit can
be applied to the Scheduled Castes and Scheduled Tribes and it does not
in any manner tinker with the Presidential list under Article 341 or 342 of
the Constitution. The caste or group or sub-group continued exactly as
before in the list. It is only those persons within that group or sub-group,
C who have come out of untouchability or backwardness by virtue of
belonging to the creamy layer, who are excluded from the benefit of
reservation. The million dollar question is how to trickle down the benefit
to the bottom rung; reports indicate that benefit is being usurped by
those castes (class) who have come up and adequately represented. It
D is clear that caste, occupation, and poverty are interwoven. The State
cannot be deprived of the power to take care of the qualitative and
quantitative difference between different classes to take ameliorative
measures.
39. Reservation was not contemplated for all the time by the framers
E of the Constitution. On the one hand, there is no exclusion of those who
have come up, on the other hand, if sub-classification is denied, it would
defeat right to equality by treating unequal as equal. In Chebrolu Leela
Prasad Rao & Ors. v. State of A.P. & Ors., 2020 SCC OnLine SC
383, the necessity of revising lists was pointed out relying on Indra
Sawney and Union of India & Ors. v. Rakesh Kumar & Ors., (2010)
F 4 SCC 50.
40. 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
G 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
H would be permissible on rationale basis to make such sub-classification
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 919
[ARUN MISHRA, J.]

to provide benefit to all to bring equality, and it would not amount to A
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
B
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 homogenous class.
41. The Constitution is an effective tool of social transformation;
removal of inequalities intends to wipe off tears from every eye. The
social realities cannot be ignored and overlooked while the Constitution C
aims at the comprehensive removal of the disparities. The very purpose
of providing reservation is to take care of disparities. The Constitution
takes care of inequalities. There are unequals within the list of Scheduled
Castes, Scheduled Tribes, and socially and educationally backward
classes. Various reports indicate that Scheduled Castes and Scheduled D
Tribes do not constitute a homogenous group. The aspiration of equal
treatment of the lowest strata, to whom the fruits of the reservation
have not effectively reached, remains a dream.At the same time, various
castes by and large remain where they were, and they remain unequals,
are they destined to carry their backwardness till eternity?
E
42. The State’s obligation is to undertake the emancipation of the
deprived section of the community and eradicate inequalities. When the
reservation creates inequalities within the reserved castes itself, it is
required to be taken care of by the State making sub-classification and
adopting a distributive justice method so that State largesse does not
concentrate in few hands and equal justice to all is provided. It involves F
redistribution and reallocation of resources and opportunities and equitable
access to all public and social goods to fulfil the very purpose of the
constitutional mandate of equal justice to all.
43. Providing a percentage of the reservation within permissible
limit is within the powers of the State legislatures. It cannot be deprived G
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 H
920 SUPREME COURT REPORTS [2020] 10 S.C.R.

A inequality being perpetuated within the class if preferential classification
is not made ensuring benefit to all.
44. The sub-classification is to achieve the very purpose, as
envisaged in the original classification itself and based thereupon
evolvedthe very concept of reservation. Whether the sub-classification
B would be a further extension of the principle of said dynamics is the
question to be considered authoritatively by the Court.
45. The Scheduled Castes as per Presidential List are not frozen
for all the time, and neither they are a homogenous group as evident
from the vast anthropological and statistical data collected by various
C 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.
D 46. 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
E 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.
F 47. The State Government is conferred with the power to provide
reservation and to distribute it equitably. The State Government is the
best judge as to the disparities in different areas. In our opinion, it is for
the State Government to judge the equitable manner in which reservation
has to be distributed. It can work out its methodology and give the
G preferential treatment to a particular class more backward out of
Scheduled Castes without depriving others of benefit.
48. Apart from that, the other class out of Scheduled Castes/
Scheduled Tribes/socially and educationally backward classes, who is
not denied the benefit of reservation, cannot claim that whole or a
particular percentage of reservation should have been made available to
H
THE STATE OF PUNJAB & ORS. v. DAVINDER SINGH & ORS. 921
[ARUN MISHRA, J.]

them. The State can provide such preference on rational criteria to the A
class within lists requiring upliftment. There is no vested right to claim
that reservation should be at a particular percentage. It has to accord
with ground reality as no one can claim the right to enjoy the whole
reservation, it can be proportionate one as per requirement. The State
cannot be deprived of measures for upliftment of various classes, at the
B
same time, which is the very purpose of providing such measure. The
spirit of the reservation is the upliftment of all the classes essential for
the nation’s progress.
49. In the federal structure, the State, as well as the Parliament,
have a constitutional directive for the upliftment of Scheduled Castes,
Scheduled Tribes, and socially and backward classes. Only inclusion or C
exclusion in the Presidential notification is by the Parliament. The State
Government has the right to provide reservation in the fields of
employment and education. There is no constitutional bar to take further
affirmative action as taken by the State Government in the cases to
achieve the goal. By allotting a specific percentage out of reserved seats D
and to provide preferential treatment to a particular class, cannot be said
to be violative of the list under Articles 341, 342, and 342A as no enlisted
caste is denied the benefit of reservation.
50. The “inadequate representation” is the fulcrum of the provisions
of Article 16(4). In our opinion, it would be open to the State to provide E
on a rational basis the preferential treatment by fixing reasonable quota
out of reserved seats to ensure adequate representation in services.
Reservation is a very effective tool for emancipation of the oppressed
class. The benefit by and large is not percolating down to the neediest
and poorest of the poor.
F
51. The interpretation of Articles 14, 15, 16, 338, 341, 342, and
342A is a matter of immense public importance, and correct interpretation
of binding precedents in Indra Sawhney and other decisions. Though
we have full respect for the principle of stare decisis, at the same time,
the Court cannot be a silent spectator and shut eyes to stark realities.
The constitutional goal of social transformation cannot be achieved without G
taking into account changing social realities.
52. We endorse the opinion of a Bench of 3 Judges that E.V.
Chinnaiah is required to be revisited by a larger Bench; more so, in
view of further development and the amendment of the Constitution,
which have taken place. H
922 SUPREME COURT REPORTS [2020] 10 S.C.R.

A We cannot revisit E.V. Chinnaiahbeing Bench of coordinate
strength. We request the Hon’ble Chief Justice to place the matters
before a Bench comprising of 7 Judges or more as considered appropriate.

Ankit Gyan Matter referred to Larger Bench
B

C

D

E

F

G

H