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SUPREME COURT OF INDIA
ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M.R. SHAH, ANIRUDDHA BOSE, JJ.
The State of Punjab & Ors. - Appellants
Versus
Davinder Singh & Ors. - Respondents
Civil Appeal No.2317 of 2011 with Civil Appeal No. 5586 of 2010, Civil Appeal No. 5597 of 2010, Civil Appeal No. 5589 of 2010, Civil Appeal No. 5593 of 2010, Civil Appeal No. 5600 of 2010, Civil Appeal No. 5598 of 2010, Civil Appeal No. 5587 of 2010, Civil Appeal Nos. 5595-5596 of 2010, Civil Appeal No. 2324 of 2011, Civil Appeal No. 6936 of 2015, Special Leave Petition (Civil) No. 30766 of 2010, Civil Appeal No. 2318 of 2011, Special Leave Petition (Civil) Nos. 5454-5459 of 2011, Special Leave Petition (Civil) No. 8701 of 2011, Special Leave Petition (Civil) Nos. 36500-36501 of 2011, Transferred Case (Civil) No. 37 of 2011, Transferred Case (Civil) No. 38 of 2011, Civil Appeal No. 289 of 2014, Transfer Petition (Civil) No. 464 of 2015, Writ Petition (Civil) No. 1477 of 2019
Decided On : 27-08-2020
(A) Constitution of India – Articles 16(1), 16(4), 338, 341, 342 and 342A – Reservation – Classification within a class – Permissibility – What is provided under Articles 341(2), 342(2), and 342A(2) with respect to Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes in Central list, Parliament has power concerning inclusion or exclusion – Once there is exclusion, there is no power to reinclude – Parliament has power to include in or exclude from Central list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes – All castes included in list of Scheduled Caste are given 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 benefit of reservation on account of their being more backward within backward classes of Scheduled Castes – Preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of castes in list of Scheduled Caste under Article 341(2) – Caste is nothing but a class – It is case of classification to provide benefit to all and to those deprived of benefit of reservation, being poorest of poor – Based on report and to give adequate representation to those who continue to remain most backward of downtrodden class, provisions containing a certain percentage of preferential treatment subject to availability without depriving others in list were made. (Paras 28 and 29)
(B) Constitution of India – Articles 16(1), 16(4), 338, 341, 342 and 342A – Reservation – Classification within a class – Permissibility – Once President has issued a notification specifying list included in Scheduled under Article 341(1), Parliament is competent to make variation in notification as provided under Article 341(2) – Caste, occupation, and poverty are interwoven – State cannot be deprived of power to take care of qualitative and quantitative difference between different classes to take ameliorative measures – Reservation was not contemplated for all time by framers of Constitution – On one hand, there is no exclusion of those who have come up, on other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal – There is cry, and caste struggle within reserved class as benefit of reservation in services and education is being enjoyed, who are doing better hereditary occupation – 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 list as no class (caste) is deprived of reservation in totality – In case benefit which is meant for emancipation of all castes, included in list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread – Entire basket of fruits cannot be given to mighty at cost of others under guise of forming a homogenous class – Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye – Social realities cannot be ignored and overlooked while Constitution aims at comprehensive removal of disparities – Very purpose of providing reservation is to take care of disparities – Constitution takes care of inequalities – There are unequals within list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes – State's obligation is to undertake emancipation of deprived section of community and eradicate inequalities – When reservation creates inequalities within reserved castes itself, it is required to be taken care of by 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 redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil very purpose of constitutional mandate of equal justice to all. (Paras 31, 38, 39, 40, 41 and 42)
(C) Reservation – Sub-classification – Permissibility – Providing a percentage of reservation within permissible limit is within powers of State legislatures – It cannot be deprived of its concomitant power to make reasonable classification within particular classes of Scheduled Castes, Scheduled Tribes and socially and educationally backward classes without depriving others in the list – To achieve real purpose 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 – Sub-classification is to achieve very purpose, as envisaged in original classification itself and based thereupon evolved very concept of reservation – State has competence to grant reservation benefit to Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also Articles 341(1) and 342(1) – It prescribes extent/percentage of reservation to different classes – State Government can decide manner and quantum of reservation – As such, State can also make sub-classification when providing reservation to all Scheduled Castes in list based on rationale that would conform with very spirit of Articles 14, 15, and 16 of Constitution providing reservation – State Government cannot temper with list; it can neither include nor exclude any caste in list or make enquiry whether any synonym exists – State Government is conferred with power to provide reservation and to distribute it equitably – State Government is the best judge as to disparities in different areas – It is for State Government to judge equitable manner in which reservation has to be distributed – It can work out its methodology and give preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit – Apart from that, other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward Classes who is not denied benefit of reservation, cannot claim that whole or a particular percentage of reservation should have been made available to them – State can provide such preference on rational criteria to the 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 right to enjoy whole reservation, it can be proportionate one as per requirement – State cannot be deprived of measures for upliftment of various classes, at the same time, which is very purpose of providing such measure – Spirit of reservation is upliftment of all classes essential for nation's progress. (Paras 43, 44, 46, 47 and 48)
(D) Constitution of India – Articles 14, 15, 16, 338, 341, 342 and 342A – Reservation – Sub-classification – Permissibility – Federal structure, State, as well as Parliament, have a constitutional directive for upliftment of Scheduled Castes, Scheduled Tribes, and socially and backward classes--Only inclusion or exclusion in Presidential notification is by Parliament--State Government has right to provide reservation in fields of employment and education--There is no constitutional bar to take further affirmative action as taken by State Government in cases to achieve the 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 list under Articles 341, 342, and 342A as no enlisted caste is denied t benefit of reservation--Inadequate representation is fulcrum of provisions of Article 16(4)--It would be open to State to provide on a rational basis 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 oppressed class--Benefit by and large is not percolating down to neediest and poorest of poor--Constitutional goal of social transformation cannot be achieved without taking into account changing social realities. (Paras 49, 50 and 51)
(E) Constitutional Law – A Constitution is to be given a generous and purposive construction – It would enable citizens to enjoy rights guaranteed by it in the fullest measure – No provision and no word or expression of Constitution exists in isolation – They are necessarily related to transforming and, in turn being transformed by other provisions, words and phrases in Constitution – A Constitutional Court declares law as contained in 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. (Paras 32, 34 and 35)
Facts of the case:
Quota with reservation. Punjab Government by Circular No.1818SW75/ 10451 dated 5.5.1975 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 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. Constitutional validity of Section 4(5) of the Punjab Act depends upon whether any such classification can be made within 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 class.
Findings of Court:
The State Government is conferred with the power to provide reservation and to distribute it equitably. The State Government is 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 preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit.
Result : Reference answered. Matter referred to a Larger Bench.
JUDGMENT :
Arun Mishra, J.
A Bench of three Judges vide order dated 20.8.2014 referred the matter to a larger Bench for consideration opining that the judgment of a 5-Judge Bench in E.V. Chinnaiah vs. 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. vs. Union of India & Ors., 1992 Suppl. (3) SCC 217. It was noted that matter involved interpretation and interplay 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:
(ii) Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of the Act?
(iii) Whether the decision in E.V. Chinnaiah vs. State of 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 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.
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.
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 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 class.
Submissions:
7. Shri Ranjit Kumar, learned senior counsel appearing for the State of Punjab raised the following arguments:
(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
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