THE STATE OF PUNJAB & ORS. versus DAVINDER SINGH & ORS. (01/08/2024) — Supreme Court headnote

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Summary

A seven-Judge Constitution Bench, by majority (Bela M. Trivedi J dissenting), overruled E.V. Chinnaiah v. State of Andhra Pradesh and held that a State may sub-classify the Scheduled Castes for reservation and other affirmative action under Articles 15(4) and 16(4). The Scheduled Castes are not a homogeneous class and Article 341 only identifies them, so sub-classification does not vary the Presidential List. It must rest on quantifiable data showing inter-se backwardness and inadequate representation, and cannot give a sub-group preference over, or exclusive claim to, all the seats reserved for Scheduled Castes. Four Judges also held that the creamy layer principle applies to Scheduled Castes and Scheduled Tribes.

Issues

Whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16 of the Constitution.
Whether the Scheduled Castes form a homogeneous or a heterogeneous group.
Whether Article 341 creates, through a deeming fiction, an integrated homogeneous class, and whether sub-classification by a State varies the Presidential List in breach of Article 341(2).
What limits govern sub-classification: the yardstick, the model of reservation, the data required and the scope of judicial review.
Whether the creamy layer principle applies to the Scheduled Castes and Scheduled Tribes (considered in the separate opinions).

Provisions considered

Article 14, Constitution of IndiaRead as guaranteeing factual equality: a class created by law for one purpose may be further classified if it is not homogeneous or similarly situated for the purpose of the law in question, provided there is an intelligible differentia with a rational nexus to that purpose; the principle of differentiation must itself be rational, and micro-classification is barred. (¶¶ 78, 79, 80, 87, 88, 90, 205)
Article 15(4), Constitution of IndiaThe power to make 'any special provision' for the Scheduled Castes was held wide enough to include sub-classification; the argument that the article 'the' before Scheduled Castes makes them an integrated class was rejected. (¶¶ 144, 150, 152, 173, 205)
Article 16(4), Constitution of IndiaHeld to permit sub-classification within the Scheduled Castes for appointments; the backward class under it is predominantly socially backward, its inadequate representation must flow from that backwardness, and adequacy is judged by effective representation across posts and grades in the services of the State, not by numbers or by the cadre as a unit. (¶¶ 143, 146, 157, 166, 172, 173, 177, 196, 199, 203, 204, 205)
Article 16(4-B), Constitution of IndiaConstrued as drawing no distinction between a class and a sub-class, so a State may carry forward unfilled vacancies earmarked for a more backward sub-category to later years for the same sub-category. (¶¶ 185, 186)
Article 341(1), Constitution of IndiaThe word 'deemed' was read as 'regarded as'; even if it creates a fiction, the fiction is confined to identifying the Scheduled Castes and its only logical consequence is that each listed group receives the constitutional benefits, not that the listed castes become one homogeneous class. (¶¶ 103, 107, 108, 110, 111, 112, 113, 114, 205)
Article 341(2), Constitution of IndiaRead with Article 367 and the General Clauses Act, the bar on varying the notification was held to mean only inclusion in or exclusion from the List; sub-classification breaches it only where a sub-group is given preference over, or exclusive claim to, all the seats reserved for Scheduled Castes. (¶¶ 115, 116, 117, 119, 120, 121, 123, 182, 187, 188, 205)
Section 21 (applied through Article 367 of the Constitution), General Clauses Act, 1897The power to issue a notification includes power to add to, amend, vary or rescind it; Article 341(2) takes away the President's power to include or exclude and any residual power to vary, and 'vary' there takes its colour from 'save as aforesaid'. (¶ 121)
Article 366(24), Constitution of IndiaNoted as defining Scheduled Castes only by reference to Article 341, without laying down criteria for inclusion. (¶¶ 4, 103, 125)
Article 335, Constitution of IndiaHeld not to limit the power under Articles 16(1) and 16(4); it restates the need to consider the claims of Scheduled Castes and Scheduled Tribes, and efficiency of administration is to be understood in terms of inclusion and equality, the proviso showing that lower qualifying marks are not inconsistent with efficiency. (¶¶ 63, 65, 66, 67, 69, 205)
Articles 245 and 246 with Entry 41 of List II and Entry 25 of List III, Seventh Schedule, Constitution of IndiaChinnaiah was held to have conflated legislative competence under the Seventh Schedule with the State's power to secure substantive equality under Articles 15 and 16, from which the power to sub-classify flows. (¶¶ 147, 148)
Section 4(5), Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006The provision offering half the Scheduled Caste direct-recruitment quota first to Balmikis and Mazhabi Sikhs, struck down by the High Court on the basis of Chinnaiah, formed the background to the reference; its validity was not finally decided and the matters were sent to an appropriate Bench. (¶¶ 6, 7, 19, 206)

Held

Sub-classification is a facet of equality under Article 14. The Court must first ask whether the class is homogeneous or similarly situated for the purpose of the particular law; if it is not, it may be sub-classified where there is a yardstick that distinguishes the sub-groups and that yardstick bears a rational nexus to the object. The limit is micro-classification, tested by the purpose and the rationality of the principle of differentiation. (¶¶ 80, 81, 87, 88, 90, 205)
Indra Sawhney did not confine sub-classification to the Other Backward Classes. Its observations excluding Scheduled Castes and Scheduled Tribes were made in the context of identifying backward classes and of the creamy layer, and the principle of sub-classification it approved extends to the beneficiary classes under Articles 15(4) and 16(4), including the Scheduled Castes where the social positions of their constituent groups are not comparable. (¶¶ 97, 98, 99, 100, 101, 102, 205)
Article 341 does not create an integrated homogeneous class. Its purpose is identification of the Scheduled Castes and their demarcation from other castes; inferring internal homogeneity extends the fiction beyond its legitimate field. Chinnaiah's reading of N.M. Thomas as declaring the Scheduled Castes a homogeneous class was erroneous. (¶¶ 107, 108, 112, 113, 114, 205)
Article 341(2) only forbids anyone other than Parliament from including in or excluding from the List. Sub-classification for affirmative action neither adds nor removes any caste, so it does not offend Article 341(2), except where a sub-group is given a preference or exclusive benefit over all the seats reserved for Scheduled Castes, which in effect excludes the others. The holding in Chinnaiah that sub-classification of the Scheduled Castes is impermissible was overruled. (¶¶ 117, 119, 121, 123, 188, 205)
Historical material on the identification of the depressed classes, the localised entries in the Presidential Orders and empirical studies of hierarchy and practices of untouchability among Dalit castes show that the Scheduled Castes are a socially heterogeneous class, so the first condition for sub-classification is met. (¶¶ 131, 134, 137, 138, 142, 145, 205)
The yardstick for sub-classification must be inter-se social backwardness; it need not be the same criterion (untouchability) used to identify the Scheduled Castes. Inadequacy of effective representation may be used as an indicator, but the State must show that it results from backwardness and must collect data on representation in the services of the State. Indra Sawhney exempts the State from proving the backwardness of the Scheduled Castes as a whole, not from proving inter-se backwardness when it sub-classifies. Nagaraj's statement that the cadre is the unit for measuring adequacy of representation was held misplaced. The lead opinion records Gavai J's agreement that the State must prove the carved-out group is more disadvantaged and inadequately represented. (¶¶ 174, 175, 177, 199, 200, 203, 204, 205)
On the model of sub-classification, giving a sub-group preference over, or exclusive claim to, all the reserved seats is unconstitutional, while earmarking or preferring a percentage of the reserved seats for the more backward is valid, and unfilled earmarked seats may be carried forward under Article 16(4-B). Every caste is a class, but seats can never be allocated to every caste separately; castes of comparable backwardness must be grouped. The State's choice must rest on quantifiable, demonstrable data, not political expediency, and is open to judicial review for arbitrariness, intelligible differentia and nexus. (¶¶ 182, 183, 186, 187, 189, 190, 194, 195)
Article 335 does not limit the State's power under Articles 16(1) and 16(4); it restates the need to consider the claims of the Scheduled Castes and Scheduled Tribes in public services, and efficiency of administration must be viewed in a manner that promotes inclusion and equality, not through examination scores that exclude some classes in advance. (¶¶ 66, 67, 69, 75, 205)
B.R. Gavai J, concurring (paras 172 to 296 of his opinion), held that Articles 341 and 342 deal only with identification and not with reservation, that sub-classification is permissible if a group shown by empirical data to be more disadvantaged and inadequately represented is given more beneficial treatment, and that the State may not reserve 100% of the Scheduled Caste seats for a sub-class. He further held that the creamy layer principle applies to Scheduled Castes and Scheduled Tribes, that the State must evolve a policy to identify and exclude it, and that its criteria may differ from those for Other Backward Classes. Vikram Nath, Pankaj Mithal and Satish Chandra Sharma JJ agreed on the creamy layer; Mithal J also expressed the view that reservation should be limited to one generation of a family.
Bela M. Trivedi J, dissenting, held that the three-Judge Bench should not have referred the settled law in Chinnaiah without reasons; that the Presidential List makes the Scheduled Castes a homogeneous class; that States have no legislative or executive competence to sub-classify or give preference to particular castes within it, which would vary the List contrary to Article 341(2); that Indra Sawhney and Jarnail Singh did not decide the point; and that Chinnaiah lays down the correct law.

Result

Reference answered by majority (Bela M. Trivedi J dissenting): E.V. Chinnaiah, insofar as it held sub-classification of the Scheduled Castes impermissible, overruled; the Registry was directed to obtain the Chief Justice's administrative instructions for placing the matters before an appropriate Bench.