M.S. Liberhan, CJ.
1. Facts and questions of law raised in these petitions can be regarded as common questions of law. The petitions are being disposed of by common order.
2. The basic factual questions argued be noted albeit with brevity.
3. The State of Andhra Pradesh appointed Sri Justice P. Ramachandra Raju, a retired Judge of the Andhra Pradesh High Court as Commission of Inquiry (hereinafter referred to as "Raju Commission") on 10-9-1996 to examine. (A) Whether disproportionately large number of benefits have gone to a particular sub-caste of Scheduled Castes; and (B) If so, to indicate all such steps as are necessary and required to be taken to ensure that the above benefits are equally distributed amongst the various sub-castes of Scheduled Castes. The State made reservation of 15% in appointment in services and admission in educational institutions for Scheduled Castes and Scheduled Tribes. The Raju Commission concluded that a large number of benefits of the reservation were disproportionately garnished by a particular sub-caste of the Scheduled Castes. To ameliorate the benefit of reservation being usurped and provide an opportunity to a larger number of people in the category of Scheduled Castes, Raju Commission recommended steps to distribute the benefits equitably amongst Scheduled Castes, by dividing the 15% reservation proportionately according to the population amongst them. The Raju Commission report was examined by the Cabinet Committee and opined for making ameliorative measures. Keeping in view the population of the Scheduled Castes in each group, out of the casles set out for the A.P., as Scheduled Castes in the Presidential Order, 1950 categorised them broadly into Relli, Madiga, Mala and Adi Andhra group of communities. 15% reservation provided by the State to the Scheduled Castes as a whole in the matter of public employment and admissions in educational institutions was apportioned at 1%, 7%, 6% and 1% among the four categories categorised as A,B, C and D respectively. G.O. Ms. Nos.68 and 69, dated 6-6-1997 and 7-6-1997 were issued accordingly.
4. The appointment of Raju Commission of Inquiry was challenged in Writ Petition No.2102 of 1996 in the High Court. G.O. Ms. Nos.68 and 69 too were challenged.
5. The Full Bench of this Court reported in B. Narayana v. Govt. of A.P., , quashed the G.O. Ms. Nos.68 and 69.
Presidential order recognised the Scheduled Castes as the most backward class, and it is permissible for the State Government to sub-classify for purposes of Article 16(4). The Slate Government could only sub-classify being a major policy decision after consultation with the National Commission for Scheduled Castes and Scheduled Tribes (hereinafter referred to as "National Commission") as envisaged by Article 338(9) of the Constitution and on a recommendation requiring the State to take any action is made to the Governor who was enjoined to place it before Legislature of the State along with memorandum of action taken, proposed to be taken and reasons for non-acceptance of any of such recommendation.
6. The State preferred an appeal against the order of the Full Bench to the Hon'ble Supreme Court. It simultaneously sought consultation with the National Commission for acceptance of categorisation. On being opined by the National Commission that since the subject matter is sub-judice in the Hon'ble Supreme Court the request cannot be considered, the State withdrew the appeal and the same was dismissed as withdrawn.
7. The National Commission held various meetings. It received and asked for various data and information. Though the Government brought to its notice the unanimous resolution of the Andhra Pradesh Legislative Assembly approving the categorisation of Scheduled Castes. National Commission as well as the Government of India were sensitised to the need and urgency for expeditious decision.
8. In view of the directions of this Court dated 2-7-1998 extending the time for taking a decision, the National Commission vide its report dated 25-8-1998 rejected categorisation and opined that categorisation is not an effective way to remove the disparities among the 59 castes. Its opinion was based on the ground that the grouping of Scheduled Castes and communities docs not appear to be scientific and rational as there are wide ranging disparities regarding literacy and employment levels within each group too. Raju Commission was appointed in haste. No proper statistics were either available or furnished. The figures provided based on 1981 census do not depict the glaring disparities. The clearance of backlog may reflect a different trend. The communities had hardly the benefit of education, etc.
9. The Commission, inspite of its observations, made the 'recommendation directing the Union of India to undertake a national level study and to ameliorate the malady of certain communities cornering the reservation provided for the whole lot.
10. The respondent in consultation with the President issued Ordinance No.6 of 1999 on 9-12-1999 providing for the categorisation and dividing the reserved posts amongst them. Andhra Pradesh Scheduled Castes (Rationalistation of Reservation) Rules, 2000 (hereinafter referred to as "the Rules") were promulgated on 31-5-2000. The Ordinance was impugned in writ petitions which were later amended and the Act was impugned inter alia on the following grounds :
The Grounds of Challenge:
(i) The categorisation of scheduled castes is violative of Article 341 of the Constitution. The list of castes for reservation is one issued by the President of India. The list of scheduled castes can only be modified by the Parliament by Law. It is beyond the State's legislative power to modify or vary the Presidential Order constituting the Scheduled Castes.
(ii) The impugned Act is beyond the legislative competence of the State. Neither the constitutional provisions nor the fields specified for Legislation in the Schedule-VII empower the State to legislate earmarking the representation by categorising the Scheduled Castes in the Presidential Order.
(iii) The Presidential order results in a list of Scheduled Castes which is an indivisible whole. The categorisation under the impugned act results in excluding each of the categories to the total percentage of posts and seats reserved for Scheduled Castes. Further it restricts their entitlement to the percentage of the seats reserved or allocated to the category to which they belong. It results in and constitutes "exclusion from the Presidential Order" and hence is beyond the legislative competence of the State in view of Article 341(2) of the Constitution. The State has no legislative power to enact the impugned act in purported exercise of powers under Article 246(3) read with Entry 41 List II and Entry 25 of List III of VII Schedule of the Constitution. Article 341(2) read with Article 366(24) does not permit proportionate representation. It vests power to legislate in Parliament alone.
(iv) The itinerary of all the 59 castes in the Presidential Order constitutes an indivisible unit of Scheduled Castes. Enumerated castes are deemed to be equal inter se for constitutional purposes. Categorisation results in discrimination. It treats recognised equals as unequais which is prohibited by the Constitution. Thus, it is violative of Articles 14, 15 and 16.
(v) The finding recorded by the Full Bench that Parliament could alone legislate, categorise and classify the Scheduled Castes, that too, on the recommendation of the National Commission and the State has no legislative power, has become final. The State could not enact the Act. The judgement operates as res judicata. The State could not enact the Act to do away with the binding judgment. (Plea was taken and not pressed during arguments).
(vi) The Ordinance and the Act were issued for extraneous considerations. It was enacted on the basis of the recommendation made by the Raju Commission, which was based on scanty and inadequate data in view of the observations of the National Commission; therefore, the impugned Act is arbitrary.
(vii) Report was not laid before the Legislature of the State; the same was not considered by them during the process of enactment. Thus the very process of enactment suffers from the vice of violation of Article 338(7); consequently, the enactment is a colourable Legislation and invalid.
11. The respondent demurred the grounds of challenge. It is Groups C and D impugned, while Groups A and B support it. The State in the federal context of fulfilling its constitutional obligation of the upliftment of Scheduled Castes, Scheduled Tribes and Backward Classes in the field of education, State employment, etc., is within its legislative competence to enact the impugned Act. Article 341 does not diminish the State legislative competence for legislating with respect to education and State employment, etc., within its territorial jurisdiction. Article 341 enables the President as a one time measure to specify the Castes, races, tribes or parts of or groups within them which shall be deemed to be Scheduled Castes for the purposes of Constitution. Thereafter Parliament alone is conferred with the jurisdiction to "exclude or include' any caste, race, tribe or parts of or group, from the Presidential order. Powers conferred on respective institution do not diminish or run contrary to other powers inhering in State under other provisions of the Constitution, except that in the matter of 'inclusion and exclusion' in and from the Presidential Order, the area is within the exclusive federal field. The categorisation does not amount to exclusion from or inclusion into the Presidential Order. In view of Articles 15, 16, 38, 39, 41, 46, 246 read with Entry 41 List II and Entries 23, 25 of List III, the State is within its competence to legislate. Articles 15(4) and 16(4) do not confer any special rights and if any are required to be conferred, it is the State which can do it for the purposes of appointment and education. The impugned categorisation does not treat equals as unequais or vice versa. It meets the socio-economic needs of the State especially when some of the castes were unable to cross the threshold of extreme socio-economic backwardness on account of being clubbed together with the Scheduled Castes numerically large in number; thus rendering the reservation illusory for them. All benefits were cornered by only a few communities amongst Scheduled Castes. It is resulting in treating unequais as equals. Reliance was placed on statistics and Raju Commission's report. The Act has harmonised dejure equality with defacto equality. There is no basis to hold that Scheduled Castes in the Presidential Order constitute one single class. There is no homogeneity among the Castes. They are hetrogenic. The Presidential list is an amalgamation of castes, groups, races and tribes. The National Commission too supports this assumption. There is no procedural violation of Article 338 of the Constitution.
12. The State Government with the pious object of uplifting the deprived classes of scheduled classes enumerated in the Presidential Order categorised the scheduled castes into four categories viz., A, B, C and D. In furtherance of the said object the impugned Act was enacted. It divided the benefit of reservation amongst the four categories according to the population, backwardness of the class, coming out of the shell of economic deprivation, providing for an opening for appointment and privilege of education for the ones who remained subdued under the trampling of the larger format of the class.
13. There is neither any violation of compliance of Article 338(7) nor is it of any consequence.
14. Reservation of posts in public service and seats in educational institutions for 59 categories of Scheduled Castes in the specified list of Scheduled Castes in the Presidential Order were found to be substantially usurped by particular castes. Rationalisation of reservation to the Scheduled Castes, to ensure uniformity and unified progress connected with the progress or incidental to it with an objective of eliminating discrimination and achieve the objective of the Directive Principles while discharging its obligation to promote the education and economic interests, in particular, of the Scheduled Castes while protecting them from social injustice in all forms of exploitation with an endeavour to eliminate inequality in status, facilities and opportunities, not only amongst the individuals but also amongst the groups of people irrespective of their residence, vocation, etc., to provide protective discrimination to minimise inequalities in favour of socially and educationally backward classes of citizens including Scheduled Castes, the impugned Act was enacted. The State made an endeavour to make available the reservation for equal and equitable enjoyment of all the Scheduled Castes by apportioning the reservation of 15% amongst the four categories in accordance with the population of each category in the 59 Scheduled Castes notified in the Presidential Order. For public services and educational opportunities under the control of the State, it is the State Legislature that is competent to provide without however resulting in exclusion from or inclusion into the Presidential Order. Scheduled Castes enumerated in Presidential Order are not identical or equal in respect of each other in the socio-economic context or in relation to access available to public employment and educational opportunities provided by the State. In view of Raju Commission's report and observations in National Commission's report, the impugned Act cannot be said to be without basis or suffering from any violation of Articles 14, 15 and 16.
15. At this stage it would be expedient to refer to the constitutional provision repeatedly referred to during the course of arguments, in verbatim. Article 341 runs thus:
Scheduled Castes:-- (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 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 State or Union territory, as the case maybe.
(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 notification issued under the said clause, shall not be varied by any subsequent notification".
16. Under the Constitutional scheme, Part IV of the Constitution envisages the States or the Union of India to attain and promote the objectives provided for the governance of the country. It enjoins a duty on the State to secure a just social order, for promotion of the welfare of the people effectively, in which justice, social, economic and political, shall inform all the institutions of national life; To strive to minimise inequalities in income, in status, facilities and opportunities amongst groups of people residing in different areas or engaged in different vocations; Provide men and women the right to adequate means of livelihood; To control the ownership of the material resources of the community and to distribute to serve the best of the common good; To work the system so as to avoid concentration of wealth and means of production to the detriment of the common man; To provide for equal wages for equal work for men and women; To ensure the health and strength of workers; Provide a protective umbrella from the exploitation or abuse of the children of tender age on account of economic necessities; To provide opportunities, facilities and conditions of freedom, grant protection to the dignity against exploitation. A time of ten years was provided to make an endeavour for providing free and compulsory education for the children up to the age of 14 years. Reference may be made to Articles 38, 39, 46 and 49.
17. Chapter 1 in Part XI of the Constitution provides for the distribution of legislative powers. It empowers the State to make laws for the whole or any part of the State in respect of matters enumerated in List II known as State List and List III of Schedule VII known as concurrent list. Union List and the residuary powers confer power on the Parliament to legislate. Residuary powers have not been defined. Reference may be made to Articles 245, 246, 248. It would be expedient to notice Entry 41 of List II providing the field for State Legislation to make laws relating to State Public Services and State Public Service Commission which are reproduced in verbatim as under:
"41. State Public Services; State Public Service Commission".
18. The State Legislatures as well as the Parliament have been empowered to enact laws with respect to matters in respect of social security; social insurance; employment and unemployment; education including technical education, medical education and universities, subject to the provisions of Entries 63 to 66 of List I; vocational and technical training of labour. Reference may be made to Entry 23 and 25 List III.
19. Part III enumerates fundamental rights which prohibit discrimination on the ground of religion, caste, sex or place of birth against any citizen. Special right has been conferred or if we may hasten to add an exception is carved out enabling protective discrimination in favour of Scheduled Castes, Scheduled Tribes and Backward classes. Power has been conferred on the State enabling it to make special provision with respect to women and children, and for advancement of any socially and educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes. This enabling provision in verbatim provided by Article 15(4) runs thus:
"Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes."
20. Similarly, while injuncting the State from discriminating, a duty is cast on the State in Article 16 to provide equal opportunities for all citizens relating to employment or appointment in any office under the State or matters of public employment. No person can be rendered ineligible or discriminated against. The State is well within its competence to make provisions for the reservation of appointments or posts in favour of backward classes of citizens subject to their inadequate representation in the State service and the same not adversely affecting the efficiency of administration. Article 16(4) runs thus :
"Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State."
21. The principal mode of constitutional governance in a democracy is through Legislation. Legislation is a consequence of majoritarian choice by enactment of laws to govern the society. Legislation can be tenned to be a public policy or political choices by the majority in the interest of public welfare and the society subject, of course, to fundamental rights or other constitutional limitations. All political questions ultimately result as legal questions or constitutional questions. Judiciary in exercise of the power of judicial review to test the Legislation on the anvil of Constitution cannot test the wisdom of legislation or analyse the social effects of such legislation. In substance and realty judicial scrutiny is limited to test the legislation to be in conformity with the Constitution. This is the inherent frame work for the constitutional authorities to operate in the exercise of thinly separated powers of the three wings.
22. The pristine questions raised before us are : (1) Whether the State legislative power is curtailed or eclipsed by any provision of the Constitution; (2) Whether the impugned Act is beyond the legislative competence of the State and is violative of Article 341(2); (3) Whether the impugned Act violative of Articles 14, 15 and 16 of the Constitution; (4) Whether the impugned Legislation is a colourable piece of Legislation; (5) Whether the law declared by the Full Bench operates as res judicata and the State is debarred from enacting the impugned Act; and (6) Whether the Act is invalid for non-compliance with the provisions of Article 338 of the Constitution.
Legislative competence :
23. The learned Counsel for the petitioners submitted: The President of India has issued a Presidential Order under Article 341(1) for the State of Andhra Pradesh enumerating the castes, races and groups of castes deemed to be Scheduled Castes for the purposes of Constitution. It is in the format of a list of Scheduled Castes. It is an indivisible unto or one whole for the purpose of the Constitution. Article 366(24) defines "Scheduled Castes' as 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. Article 341 empowers the President as a one time exercise to notify specifying castes, races or tribes, etc., which shall be deemed to be Scheduled Castes for the purposes of the Constitution. The purpose of the Presidential specification of Scheduled Castes includes the purpose of reservation that may be made available by the State in exercise of its powers under Articles 15 and 16 of the Constitution. The Presidential Order shall constitute the Scheduled Castes for the purpose of the Constitution including in the field of activity of the Slate for the Scheduled Castes. By virtue of Article 341(2) it is the Parliament alone which could include or exclude any of the named castes from the list. Categorisation of the specified Scheduled Castes as categories of A, B, C and D by the impugned Act results in the exclusion. Dividing the percentage of reservation among the categories would amount to exclusion of other categories to the extent of the reservation for a particular category. Exclusion and inclusion of a caste or providing any amendment, variation or sub-classification, etc., is the sole prerogative of the Parliament. Categorisation by the impugned Act amounts to sub-classification. The State while working out its obligation for upliftment of the Scheduled Castes, Scheduled Tribes and Backward Classes cannot under the veil of securing due representation for various Scheduled Castes in the matter of appointment to posts or reservation in educational institutions, enact a law earmarking the proportionate representation by categorising the Scheduled Castes in the Presidential Order or by providing percentage of reservation for specified categories. Articles 15 and 16 do not envisage proportionate representation in the services and educational institutions. The Presidential Order defining the Scheduled Castes is conclusive for all the purposes of Constitution. While reservations envisaged by the Constitution could be provided by the State, the Parliament alone can vary, include or exclude or provide by law for categorisation of Scheduled Castes - be it in any manner - in exercise of powers conferred by Article 341(2) read with Article 248 and Entry 97 in List I of Schedule VII. The State's powers extend only to those conferred by Articles 15(4) and 16(4). There is no power to the State, of categorisation of Scheduled Castes in the Presidential Order. In pith and substance the impugned Act results in creating different sub-sections in the unified single list of Scheduled Castes. It provides an impermissible classification on the basis of caste. With an object to obliterate the disputes relating to castes being the Scheduled Caste or not that the Presidential Order was promulgated for the purposes of Constitution. It has given a deemed meaning to the Scheduled Castes listed to be Scheduled Castes in it for all the purposes of Constitution. The Presidential Order is conclusive with respect to castes deemed to be Scheduled Castes as defined by Article 366(24). Once a particular caste is included in the list of Presidential Order it will be squarely covered by the definition of Scheduled Caste. Impugned Act amounts to exclusion of castes in the Presidential Order List. Reference was made to Basavalingappa v. Munichinnappa, , Bhaiya lal v. Harikishan Singh,
24. To be in the definition of Scheduled Caste as defined by Article 366(24) one must be one amongst the castes notified in the Presidential Order. In exercise of the power of judicial review, Courts cannot give a declaration with respect to status, synonymous with names, castes claimed by a person be conformed to the names in the list or a particular caste being synonymous with the name of the caste listed. The State's power for providing reservation with respect to Scheduled Castes as enabled by Articles 15(4) and 16(4) is circumscribed with respect to the Scheduled Castes shown in the list as a unit. The Presidential Order is not subject to variation, modification, alteration or amendment in any form except as permitted by Article 341(2) of the Constitution. Construing the provisions of Article 341(2) to be to effectuate its constitutional object, the categorisation by the impugned Act amounts to trenching upon the powers of the Parliament; resultantly is beyond the legislative competence of the State. Reservation made for Scheduled Castes is subject to judicial review. o It can be examined on the touch stone of fundamental rights read with Article 335. The State having provided 15% reservation in exercise of its powers under Articles 15 and 16 it is only to the extent of percentage of reservation not exceeding 50% that the State can regulate and vary.
25. Reliance was placed on MR. Balaji v. The Stare of Mysore, , C.A. Rajendran v. Union of India, ,
Chandra Mohan v. State of UP., AIR 1966 SC 1987, Para 12, Ajit Singh (II) v. State of Punjab, , Ajit Singh (III) v. State of Punjab, , Indra Sawhney's case, (1992) 2 Supp SCC 210, Para 804 at 231, Para 808 and 809 at 235, Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala, , Nityanand Sharma v. State of Bihar, , Valsamma Paul v. Cochin University, , Srish Kumar Choudhury v. State of Trlpura, , M.S. Malathi v. Commr., Nagpur Division, , Indra Sawhney v. Union of India, .
26. The learned Counsel for the petitioners put it that categorisation into four groups and providing reservation on the basis of their respective population to each group with a view to ensure that the entire benefit of reservation is not cornered by one particular group of castes amounts to exclusion from the Presidential Order, which is not within the State competence to legislate.
27. The learned Counsel for the State refuted the arguments ,put forth. It was stated that in view of the enabling provisions of Articles 15(4), 16(4), 309, 235 of the Constitution read with Articles 246 and 341, List II Entry 41 and Entries 23, 24 of List III, to attain the constitutional objectives the State is enjoined to achieve by virtue of Articles 38, 39, 41 and 46, the State is competent to make the categorisation and provide for reservations accordingly. The Act does not suffer from the vice of violation of any of the constitutional provisions including Articles 341, 14,15(4), 16(4). It is for the State to evolve the method of providing the extent and nature of reservations keeping in view the facts and circumstances of each case. There is no mandatory duty imposed on the State to provide for reservation. Articles 15 and 16 are mere enabling provisions conferring a discretionary power on the State to make reservations in favour of backward classes of citizens which in the opinion of the State are not adequately represented. In pith and substance the State within its legislative competence enacted the impugned Act. The Constitution does not provide the extent of reservation required to be provided for the Scheduled Castes. The act does not contrary to the Presidential Order as amended from time to time. The Act does not modify, alter or vary the List of Scheduled Castes in the Presidential Order. A similar measure of categorisation made by the State of Punjab and Haryana dividing the Presidential list into two categories for providing reservation was upheld and affirmed by the Supreme Court.
28. The learned Counsel for the respondent submitted that the law laid down in Palghat Jilla Samithi's case, , Nityananda Sharma 's case, , Valsamma Paul's case,
, Srish Kumar's case, ),
M.S.Malathi's case, , Iridra Sawhney v. Union of
India, , relied upon by the learned Counsel for the petitioners is distinguishable on facts and in the context of questions raised in this petition.
29. We have a written Constitution. Rule of law is inherent in any civilised society. The elected representatives of the people represent the aspirations of the people from time to time. State polices and enactments are required to be framed in public interest which is incapable of any definite definition, It can be termed as a totality of competing interests. In Bentham's pharse "public good means the greatest happiness of the greatest number - which is the object of society". It is the judgment of the people, assessment pf their feelings, and their needs that are met by the competent authority through law enacted to give effect to it, subject to fundamental rights guaranteed by the Constitution.
30. Constitution is neither a fixed mode nor provides ready made answers by any general formula. It is expected to meet the situation created by the crafty nature of human being from time to time. It provides justice as a lodestar. Solomon said "all rights tend to declare themselves absolute to their logical extreme yet all facts are limited by the principles of policy which are other than those on which the particular right is founded and which becomes strong enough to hold their own when a certain point is raised. The point at which conflicting interests can be balanced cannot be determined by any general formula in advance but points in the line or helping to establish it or fix by decision that this or that concerte cause nearer or farther aside". Justice envisaged by the Constitution as an executive said can be attained through the process of evolution of law to meet the changing needs of the people keeping pace with the various developments be it scientific, cultural, etc. Laws are required to be enacted to meet the society's dynamic requirements.
31. Historically and even on ground realities, the caste system is imbibed in our society, for centuries. Inspite of 50 years of independence and preachings of saints and sages for centuries to establish a secular casteless society bereft of discrimination be it on any ground, we have been unable to make significant strides to eschew casteism. The nation recognised the endemic fact that Scheduled Castes and Scheduled Tribes in this poisonous self-destructing caste system who were treated as untouchables, were subject to innumerable brutalities and intolerable inequalities. Constitution in order to put the nation on the road of progress and give effect to the ground realities cast a duty on the State or the Union for uplimnent of Scheduled Castes, Scheduled Tribes and backward classes. In the process, power has been conferred on the Legislatures to provide and confer privileges on the underprivileged persons who can loosely be termed as a caste for proper nomenclature. Privileges could be conferred through various mechanisms, concessions, and enactment of laws for their benefit. Hamming said "social necessities and social notions are always more or less in advance of law. We may come in definite near or closing gap between them but they have a perpetual tendency to reopen. Law is stable. Societies we are speaking of are progressing. The greater or lesser happiness of the people depends upon the degree of promptitude with which the gulf is narrowed". In the same context Justice Brandies said "Nothing rankers more in the human heart than the brooding sense of injustice. Illness one can put up with. But injustice makes one to pull things down".
32. A written constitution has been given by the people to govern themselves through the agency of elected representatives in democracy. The final sovereignty rests with the people. It is the people's requirements in whose judgment, assessment, feelings, or of their pulse, needs, demands and their requirements, law is enacted by a competent authority, subject to fundamental rights and other constitutional provisions. Constitution is an organic document not providing for specific cases. It sets objectives to be attained through the process of evolution of law to meet the changing needs of the people keeping pace with the various developments - scientific, cultural taking place. Laws are required to be enacted to meet the developing socielies' requirements.
33. It provides parameters for each wing of the Constitution and each pillar of the Constitution is required to remain within bounds of their respective jurisdiction, demarcated by the Constitution. Each of the pillars of the Constitution be it legislative, executive or judiciary is required to remain in line within their respective jurisdiction. Anatomy of system of law has been provided by the Constitution which is supreme. Residuary powers inhere in the Parliament. Our Constitution is not a book of mathematical or arithmetical formulae. There are provisions which allocate the legislative powers on the respective Legislatures be it the State or Union of other entities through various Articles apart from the fields specified in the Lists.
34. Constitution is not couched in words meant for one meaning alone. Open textured phraseology has been used. Meanings are to be gathered from the text and structure of the language used in order to interpret the law in the social and economic setting. In view of vast disparities and the rich diversity in races, castes, languages, religions and the ethos of the people, it is Constitution which provides and effectuates governance in a chosen unique Federal System of governance. Powers are apportioned at all the three wings.
Interpretation Principles to be kept in view :
35. The well accepted principles of interpretation as culled out from the law laid down by the various precedents, text books, etc., for interpretation of the constitutional provisions are: (1) Justice as understood by the Constitution cannot be termed as a word of art, articulation, philosophy or theory. It has to be judged on the principles of arm chair rule which envisages what in legal jurisprudence person of ordinary prudence understands especially the down trodden or handicaps of mental development or the ones who were subject to brutalities for centuries. It must respond to the sense of justice which can be termed to be fair in specific facts and circumstances and in consonance with public interest. Fundamental rights which can be termed to be human rights have been protected by the Constitution. They can be enforced by an individual howsoever small he may be and against howsoever mightier the State might be. Public interest has to be balanced with fundamental rights. Public interest subject to fundamental rights is the lodestar for any legislative system or democracy or rule of law or administration. All rights are subject to reasonable restrictions in public interest. In the anatomy of the Constitution there are innumerable claimants trying to get or reserve the privilege or resources of the nation or the State, which are limited. Plain meaning has to be given to the provisions. However mal adroit and clumsy be the approach, the economic, social justice of the poorer sections of the society continues.
36. Restricted meaning may lead to absurd and illogical results not fitting into Legislation's history. The provisions of the Constitution have to be read by contextual and purposive interpretation. It has to be read with common sense point of view bearing in mind how they are understood by the ordinary people who were required to follow or who have given a Constitution to themselves. Courts are required not to confine to its grammatical or ordinary parlance but provisions should be construed in the light of the context. Care should be taken that the intent or contextual scheme with regard to the object and purpose for which it has been enacted is not lost in the maze of interpretative law. Interpretation should be avoided which may lead to an illogical end. At the same time one has to bear in mind the literal common parlance meaning by those who deal with it.
37. Interpretation has to be made keeping in view (i) statutory context, (ii) the intention of the Legislation. Both are required to be harmonised though primacy is to be given to the context but the best and the most rational method of interpreting is by exploring the intention of the law maker at the time it was made, the context of subject matter, the effect and the consequences and the reason for the law. Interpretation should not be accepted as purely technical tool to undo a policy which achieves substantial justice. Legislature is presumed to be reasonable and within its competence unless shown to be otherwise. No one can be permitted to seek a wind fall from the legislative errors.
38. A privilege once granted cannot be taken for granted and forgotten. Reservation or privilege once having been granted in the interests of justice, common fairness has dictated such a course of society's historical existence of the caste system required and needed for the welfare of the State cannot fetter the power of the granter to modify, change, deny, rationalise according to the experience gained during the course of operation with the executive necessities in the view of the needs, effecting Government and upliftment of the down trodden.
39. As Cardozo warned literal reading is a sure way of misreading. The intention of the statute must be deduced from the words used. Courts should construe it by making provisions palpable. As Winston Churchill said "It is not wrong to lay the lessons of past before the future for all said words, it might have been".
40. The principle of interpretation as culled out above from various judgments of the Hon'ble Supreme Court finds support from the general principles of interpretation. This was said by Prof. Lawrence H. Tribe "The Constitution is an intentionally incomplete often deliberately indeterminate structure for the participatory evolution of political ideals and Governmental practices" (American Constitutional Law, I Edn. 1978 "Preface" - Lawrence H. Tribe).
41. While considering and interpreting provisions of a Federal (Canadian) Constitution Higgins, J., observed "although we are to interpret the words of Constitution on the same principle of interpretation as may apply to ordinary law these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be" (A.G. for N.S.W, v. Brewery Employees Union, 1908 (6) CLR 469 at 661, 612). Similarly it was propounded by Maurice Gwyer, CJ., "a broad and liberal spirit should inspire those whose duty it is to interpret (the Constitution); but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors. The federal Court will not strengthen, but only derogate from, its position; if it seeks to do anything but declare the law; but it may rightly reflect that Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed ul res magis valeat quam pereat (that it may survive and not perish) (C.P. and Berar Act, 1938, 1939 Federal Court 1).
42. While construing the words in the Constitution conferring legislative power, liberal construction is required to be placed in order to effectuate the widest amplitude, subject to the exception that a federal constitutional structure requires a restricted meaning which may be given to words in order to prevent a conflict between two exclusive jurisdictions or to harmonise the sphere of Legislation of distinct legislative entities.
43. The State Legislature has exclusive power to make laws for the State with respect to the fields or matters shown in List II of Schedule VII and concurrently with Union of India with respect to List III of Schedule VII. Residuary power vests in Parliament in view of Article 248 read with Entry 97.
44. While adjudicating the legislative competence of the State to enact a law, one of the foremost tests emphasized is to enquire, whether the law relates to the matters enumerated in List II or is referable to any specific constitutional provisions or the subject is referable to the Concurrent List where power has been conferred simultaneously on the State as well as the Centre to legislate with respect to the fields provided by List III of Scheduled VII. If it is covered by any of the Entries ordinarily no further enquiry is required to determine whether the Act is within the legislative competence inasmuch as the residuary power by virtue of Article 248 read with Entry 97 is imbibed only with the Parliament's power. We find support for the principle through the law laid down in Union of India v. H.S, Dhillon, , wherein it was observed "If there had been no List I many items in List II would perhaps be given much wider interpretation that can be given under the present scheme. Be that as it may, we have the three Lists and a residuary power. Therefore, it seems to us (hat in this context if a central Act is challenged as being beyond the legislative competence of the Parliament it is enough if it is a law with respect to matters or taxes enumerated in List II. If it is not, no further question arises". Similarly, in Attorney Genera! for India v Amratlal Prajivandas, , it was observed "Be that as it may, it is not necessary to pursue this line of reasoning since we are in total agreement with the approach in Union of India v. H.S. Dhillon, , a decision by a Constitution Bench of Seven Judges. The test evolved in the said decision in short is thus: "Where the legislative competence of the Parliament is questioned, one must look at the several entries in List II to find out (applying the well known principle in this behalf) whether the said judgment is relatable to any of those Entries. If the Statute does not relate to any of the Entries in List II no further enquiry is necessary. It must be held that Parliament is competent to enact that Statute whether by virtue of Entries in List I or List III by virtue of Article 248 read with Entry 97 of the List I".
45. The pith and substance analysis is the well accepted principle when examining the constitutionality of an Act with respect to the legislative competence qua the subject matter. On this principle mere incidental encroachment on the Parliament's legislative field cannot invalidate the Legislation as long as the State law dealing with the matters are enumerated in List II and List III. Reference may be made to D.C. & G.M.O. Ltd. v. Union of India, . Another principle while interpreting the entries which has been widely acted upon and has assumed to be well settled is that the widest amplitude should be given to the language of the Entries. Reference may be made to Synthetics & Chemicals Ltd. v. State of U.P., .
46. While considering the pith and substance analysis Chief Justice Gwyer propounded that "it must happen from time to time that Legislation though purporting to deal with the subject in one List touches also on the subject in another List and the different provisions of enactment are so closely intervened that blind observance to a strictly verbal interpretation would result in large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial committee whereby the impugned statute is examined to ascertain its "pith and substance" or its " true nature and character" for the purpose of determining whether it is Legislation with respect to the matters in this List or that" Subrahmanyan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47. While examining "the pith and substance" of a legislation the imperfection of the human expression and fallibility of legal draftsmanship cannot be lost sight of In Re C.P. & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, AIR 1939 FC 1.
47. At this stage the scheme of the act and its effect in its pith and substance be examined.
48. Reading of the preamble of the impugned Act emerges that it was enacted to provide rationalisation of reservation to Scheduled Castes in the State of Andhra Pradesh. The object was to ensure their unified and uniform progress in the society and for matters connected therewith and incidental thereto. The Preamble recorded that State provided reservation of 15% of posts in public services and seats in educational institutions for 59 Scheduled Castes specified in the list in the Presidential Order. The Act is intended to promote with special care the educational and economic interests of the Scheduled Castes and to protect them from social injustice and all forms of exploitation. State endeavour to eliminate inequalities in status, facilities and opportunities not only amongst the individuals but also amongst the groups of people residing in different areas and engaged in different vocations. It is an Act to meet the constitutional mandate and guarantees of social justice, equality of opportunity, right to equality, protective discrimination to minimise the inequalities in favour of educational and social backward class citizens. It was stated in the Preamble that State shall ensure that the Scheduled Castes which form the most backward classes in the society achieve unified and uniform progress collectively and combinedly; thus transforming the constitutional goal into reality in the State by making its stride to make available the benefits of reservation for equal and equitable enjoyment by all the Scheduled Castes; thus rationalising the reservation to Scheduled Castes without interfering with the Presidential Order notifying the Scheduled Castes.
49. Before examining the legislative competence or scheme of the Act and other questions raised in these petitions it would be expedient to notice the scheme of the Act 20 of 2000. In substance the Preamble of the Act has been seen in the earlier part of the judgment. Section 2 sets out the definitions. Section 3 is the operative section which enjoins reservation to the extent of 1%, 6%, 7% and 1% to be provided for categories A, B, C and D respectively and the communities comprised in each of the four categories from out of the Presidential Order. Section 4 provides primacy to the provisions of the Act in respect of appointment to public services and admission into educational institutions while Section 5 excludes from its purview the services and educational institutions under the Centre. Section 7 confers rule making power. Section 8 specifically declares that nothing in the Act shall be construed as including or excluding from or further classification of the list of Scheduled Castes with respect to the State. It is not disputed that at the time of enactment the Presidential Order catalogued 59 castes as Scheduled Castes for the purpose of the Constitution. In view of the Rules framed read with the Act, the roster points for eligible candidates for public appointments or posts and admission to educational institutions have been recast. It is further provided that in the roster points if the specified candidate belonging to a particular group is not available it can be filled by the people belonging to the group latter in order.
50. The Presidential Order specifies the castes, races, tribes or parts of groups within such castes, races or tribes specified in the order in relation to the State, as being Scheduled Castes for the purpose of Constitution.
51. It was not disputed and cannot be disputed that the Presidential Order was issued keeping in view the totality of the circumstances and social conditions prevailing and the nation having undertaken the duty of upliftment of the under-privileged keeping in view the inherent incapacity or limitation of human being to perceive all eventualities taking the crafty nature of human being, it provided Constitution as a broad spectrum. It is a larger format which has been provided for the State or Union to work with. The Constitutional provisions are declaratory in nature stating what the Legislature can do. It does not debar or limit the jurisdiction to work within the frame work of the Constitution as an independent legislative wing. It would be reasonable to infer that intention of Constitution framers as collected from the various speeches made, various provisions enacted, object of social justice, secularism, welfare and ameliorate society, promising justice, social or economic or political, giving one's due to one is for providing for a casteless society while carving out a special privilege for the purpose of upliftment of down trodden members of the society, infusing confidence in them is that they be treated equally or giving a preference at least till they rub shoulder with the other members of the society.
52. Reading of Articles 15, 16, 38, 39, 41, 46, 335, 338 and powers conferred in Lists I, II, III warrants no inference or technical meaning required to be given to a caste as such. The conglomeration of castes given in the Presidential Order cannot be considered as representing a caste as a whole. It is a deeming definition. On reading of the Presidential Order and taking judicial notice of the ground realities of the castes referred to in the Presidential Order some of them are inherently Scheduled Castes and at the same time, others have been conferred the status of Scheduled Caste by providing a deeming definition under the Presidential Order for the purpose of Constitution.
53. Under the veil of upliftment and for providing casteless society no one can be permitted to strengthen the roots of caste system for all times to come and to deny even an attempt to uproot the evil of caste system having got struck in the society. Testing the impugned Legislation on the principle i.e., the name of the Legislation which matters, its real nature, pith and substance which has to be looked into and the entries in the Constitution not demarcating the powers but only demarcates the fields of respective Legislatures, avoiding the literal construction of them, whether the enactment substantially falls within the powers expressly conferred by the Constitution upon which Legislature, the Act cannot be said to suffer from the vice of legislative incompetence merely because it may incidentally encroach upon matters assigned to other Legislatures. Reference may be made to K.S.E. Board v. Indian Aluminium Co., . While dealing with the competence of the Legislature one of the tests is to find out whether particular topic is in List II or III to enact laws. Federalism in India is historically based. Distribution of legislative powers is coextensive with the legislative authority. States though not separate sovereigns neither Union nor States possess untrammelled sovereignly because the legislative, executive and judicial powers in India are divided between the Union and the States. The principle is culled out from State of Rajasthan v. Union of India, , Karnataka State v. Union of India, , State of West Bengal v. Union of India, .
54. The scheme of the Constitution may briefly be noticed to the extent it is required to answer the questions raised in these petitions. Expression "State" used in Part III of the Constitution was used in the generic sense. In all its extensive functions of parameters i.e., Legislature, judicial and the executive it takes in its fold and comprehends the federal diversity, the Union and State actions. The State legislative field provided by Entry 41 of the State List II refers to the field of Legislation with respect to State Public Service or State Public Service Commission. Similarly, Entries 25 and 26 of the concurrent List enumerate the legislative field for legislation either by the State or by Union of India of course in case of conflict or field being covered by the Central Legislation the Central Legislation to prevail. The field provided by Legislation is education, etc., legal, medical and other professions. We may specifically note that there is no expressed field of Legislation providing for regulating reservations. State is empowered to provide for reservation in the public services and educational institutions within State sphere. As referred in the earlier part of judgment and at the cost of repetition we may observe in view of the Directive Principles of Constitution contained in Part IV enjoined the duty on the State to strive to reduce and eliminate social, cultural, economic disparities, protect just social order, education and medical interests of the Scheduled Castes and Scheduled Tribes, to protect them from social injustice and all forms of exploitation. Right of providing reservation in public services and educational institutions by the State has not been either disputed and has been conceded on the assumption of which the case was argued. It is recognised that in order to effectuate the constitutional purposes in posts and educational institutions for the Scheduled Castes and Scheduled Tribes the State within its territorial jurisdiction can provide reservation. This power of the State further finds support from enabling provisions of Articles 15(4) and 16(4). Under the scheme of the Constitution there is no fundamental right of reservation enforceable as such. Reference may be made to Ajit Singh (III) 's case , Ajit Singh (II) v. State of Punjab,
. The State is well within its power to identify
backward classes as such. They may be backward on account of social or economic backwardness but they are distinct as a class than the general body of the civil society. Amongst the identified backward classes in fact there exists inter-segment difference in social, cultural and economic levels of advancement, achievement and ability to access and explore the national product. The power of the State to classify and categorise the broad classes of backward classes providing for the reservation as an affirmative action was found permissible. The Hon'ble Supreme Court categorically pronounced on the subject reported in State of A.P. v. U.S.V. Balaram, .
55. On examining and perusing the Act in pith and substance, we are of the considered view that the impugned Act was enacted in view of the recorded experience that out of 59 castes specified in the Scheduled Castes with respect to the State of Andhra Pradesh in the Presidential Order which were initially provided with reservation of 15% of posts in public service and seats in educational institutions, the State in discharge of its function or duty and bound for upliftment of the educational and social interests of the Scheduled Castes, who are most backward classes amongst Scheduled Castes perceived that the benefits of reservation are not percolating to them equitably, to give effect to rationalise the reservation to the Scheduled Castes without trenching upon or interfering with the Presidential Order, 1950 as amended from time to time, provided reservation by grouping the castes in categories A, B, C, D according to their population and further apportioning the reservation as 1%, 6%, 7% and 1% for each group respectively. The Act ensured that it would not apply to appointment of posts or services of Central Government, Corporation or undertaking under the control of the Central Government or similarly situated educational institutions belonging to the Central Government. The Government has been empowered to make rules to carry out the purposes of the Act and fixation of roster points, etc. It was categorically declared mat the Act would not be construed as inclusion or exclusion or further classification of the list of Scheduled Castes with respect to the State of Andhra Pradesh.
56. Article 15(4) culls out an explanation prohibiting caste Legislation enabling the Slate to make special Legislation with regard to the admissions into educational institutions for advancement of Scheduled Castes, the parameter of the provision of Article 16(4) though differently couched is to the same effect. Thus, in our considered view, it can be concluded that Articles 15(4) and 16(4) are exceptions over the injunction to the State or other authority from legislating or discriminating on the basis of caste, The conclusion is in consonance with the principle that all the provisions of the Constitution have to be given effective meaning to a logical end and ensuring that working of any one of the Articles does not get bogged down or inoperative or redundant by the other.
57. The State is empowered to make laws for whole or any part of the State. Reference be made to Article 245. List II provides the field of Legislation for the State. List III provides a concurrent field for the State as well as the Central Legislature. It is only the residuary powers which are vested in the Parliament. It would be reasonable and categorical to infer that exclusive power to make laws with respect to subjects enumerated in List II vests in the State.
58. On the touch stone of the various tests enumerated above, one may examine whether the subject matter of providing reservation in posts or educational institutions with respect to which the impugned Act is a Legislation is enumerated in List II. Substantially, the impugned Act has only divided 15% reservation made for the S.Cs and S.Ts., amongst them, and the legislative competency i.e., providing reservation with variation of percentage, is not disputed.
59. The above view finds support from the law laid down in Ajit Singh II case to the following effect: "Unfortunately, all these rulings of larger Benches were not brought to the notice of the Bench which decided Ashok Kumar Gupta and Jagdish Lal v. State of U.P., and to the Benches which followed these two cases. In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4-A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta, Jagdish Lal's case and the cases which followed these cases do not lay down the law correctly". In view of the law laid down in M.R. Baljai's case, , Indra Sawheny v. Union of India,
, Ajay Kumar Singh v. State of Bihar,
and on the principle of interpretation of statutes as referred in the earlier part of the judgment we are of the considered view that it is for the State to decide to provide reservation and other affirmative action depending upon the policies of the State Government or the Union Government for providing reservation for the Scheduled Castes and Scheduled Tribes. The State can devise its own policy and implement the pious objects set apart by the Directive Principles of the Constitution in exercise of legislative or executive powers. Permissive reasonable classification enables the State to legislate by the methodology of classification. The Presidential Order enumerates various castes to be Scheduled Castes and has given a deeming meaning to some of the castes which are not Scheduled Castes as Scheduled Castes. The itinerary of castes does not lose identity as being a Scheduled Caste in its capacity as a caste. It would not be reasonable to infer that a named caste in the Presidential Order would be a Scheduled Caste only if it is read with the other. The named caste in the Presidential Order would jointly and severally be a Scheduled Caste. It would continue to be a Scheduled Caste in any eventuality. Issuance of the Presidential Order and conferring the power on the Parliament to modify the said order or to include and exclude caste in the said Order does not denude the State from its legislative competence to make laws and the policy decisions to confer the benefit of reservation with regard to admissions to educational institutions and services under the State, of course subject to Article 335 and other provisions of the Constitution.
60. On the ground realities and castes in the historical background that the caste system surviving even after 50 years of Independence cannot be denied. The right to provide for the upliftment of the Scheduled Castes or Backward Classes suffering from social and economic handicaps cannot be refuled. There are innumerable ways depending on the ingenuity of administrative experience, legislative experience, geographical conditions, social conditions, differing from State to State, resources of the States again differing from State to Slate are some of the factors which State Legislatures keep in mind while providing a policy targeting the Scheduled Castes for upliftment. The natural resources for upliftment, the reservation required to be provided under the State policy be it in doling out the State largesse, providing a facility in the Government employment, providing seals in educational institutions, are some of the fields in which the discretion has been left to the State policy makers or Legislatures. The State Act can be considered to be a positive step for upliftment.
61. The Constitution itself provided for the reservation in Legislature enabling them to participate in governance of the country as well as participate in the march of the country ahead. It provides a platform to them to point out their needs and pass laws. The State in the process of upliftment injuncted prohibiting exploitation of the Scheduled Castes.
62. In order to ensure that the underprivileged class require platform to point out their needs and participate in the march of the country ahead and provide them an opportunity to rub shoulders equally with the privileged classes, reservation in Legislature which can be termed to be Legislature-cum-executive wing of governance is made mandatory constitutionally.
63. Scheduled Castes identified, catalogued, rationally perceived by the State in the Presidential Order, what is required to determine is whether are heterogeneous, social, cultural and economic units and is classification amongst them permitted. As a principle, it has been held in umpteen number of judgments that there is no distinction between Backward Classes and Scheduled Castes in the matter of classification or categorisation by the State. It is one of the ways and means of effectuation of equality. Merely cataloguing the Presidential order of the Scheduled Castes, some of whom may be bearing the imprint of untouchability, docs not lead to an inference that all of them are equal to each other. Once the contention of the Counsel for the petitioner is accepled that the State is within its jurisdiction to provide classification and categorisation amongst backward classes, we are of the considered view that though there is no precedent brought to our notice that the classification can be carried out in the Scheduled Castes in the Presidential Order too, but on the principle accepted conferring the State with the power to make classification amongst backward classes, we find no reason to oust the jurisdiction of the State not to do so amongst Scheduled Castes on any rational consideration.
64. As discussed in the earlier part of the judgment one of the tests laid down consistently by the various precedents to find out the legislative competence to legislate is to look into the entries in the VII Schedule. If the subject of Legislation is provided in one of the entries in State list the enquiry should come to an end so far the competence of the Legislature to legislate is concerned especially the entries providing a field for Legislation as supported by the other provisions of the Constitution i.e., Articles 15(4), 16(4), 38,39,41,309, and 335. We are of the considered view that Entry 41 of the State List dealing with the public service, Article 309 enabling the State to legislate with regard to recruitment and conditions of service of persons appointed and providing for all incidental and connected matters with the State service, shall be well within the State power to legislate. Interpreting the entry broadly presuming legal perception of constitutionality of the Act of the State it was enacted within State legislative competence. It is categorically discernible by reading of Articles 15(4), 16(4), 309, Entry 4 of List II, Entries 23 and 25 of the Concurrent List the State legislation is well known within its prerogative to legislate with respect to recruitment in service, recruitment and reservations and other incidental matters in the service and educational institutions.
65. We find further support to the above view in the law laid down by B.S. Yadav v. State of Haryana, , while interpreting Articles 235, 309, Entry 41 of the State List while examining the question whether the power of the State to legislate with respect to conditions of service is circumscribed by the Constitution like it adversely affect the control of the High Court over the judicial services. The Supreme Court has categorically observed that the power to pass a law does not impinge upon the control of the High Court over District Courts and Courts subordinate thereto by virtue of Article
235. It was observed, '"State public services' which must include judicial service of the State ..... Such law or rules as the case may be can provide for general or abstract rules of seniority leaving it to the High Court to apply to each individual case as and when the occasion arises". The Hon'ble Supreme Court has categorically laid down that the law governing the services under the State is an absolute power of the State subject to the other provisions of the Constitution. The law laid down in State of Bihar v. Bal Mukund Sah, , supports the observations made above. It was
observed "the State Legislatures undoubtedly can make law for regulating the conditions of service of the officers belonging to judicial wing but cannot make law dealing with the recruitment to the judicial service since the field of the recruitment to the services is covered in the Constitution itself in Chapter VI under Articles 233 to 236 of the Constitution.
66. On reading the Constitution and referring to the specific provisions of the Constitution relied upon by the learned Counsel for the petitioners i.e., Articles 15(4), 16(4), 309, 341 do not put any embargo or debar the State Legislature to make a law providing for reservations for Scheduled Castes. It is not, it was not and it cannot be contended that providing reservation or the percentage of reservation or the distribution of State largesse or providing for other means for the upliftment of the Scheduled Castes and backward classes is the prerogative of the State to the extent of the State subjects. We are unable to comprehend, how once the power to make reservations is conceded to the State, the manner in which reservations are to be worked out, the mechansim to be worked out, to whom to be given and to whom to be denied, in what priority Scheduled Castes are to be uplifted, to what extent or working out the details, could be denied to the State; Reservation or claiming a privilege with respect to reservation in services or educational institutions has not been made either a fundamental right or any other right. The right to post and reservation of post on the basis of backwardness is an exception carved out on the equality clause of the fundamental rights. The petitioner cannot be permitted to claim that reservation should be provided as a whole or not at all or it should be at a particular percentage.
67. It was accepted in principle that the Scheduled Castes identified as such and catalogued as a group in the Presidential notification and so perceived by the State comprise heterogeneous social, cultural and economic units. The mere fact that the Presidential Order catalogued Scheduled Castes with characteristics of extreme social and economic backwardness some of them having and carrying with it the stigma of untouchability docs not conclusively determine that all of them are equal to each other. It was contended by the petitioners that the precedents laying the law upholding the classification among reserved categories are only in respect of other backward classes and not the Scheduled Castes. Factually it may be true. There can be no gain saying that on the principle of classification for the backward classes would not as a principle as such apply to Scheduled Castes. The definition of the 'Scheduled Castes' itself provided by Article 366(24) perceives such a classification. Permissible classification as such amongst the Scheduled Castes has been dealt in the latter part of the judgment.
68. We are constrained to say that it is for the State to distribute the reservation according to the needs and requirements of the upliftment of the particular caste in the catalogue of castes be it a Scheduled Caste or Scheduled Tribe by a deeming meaning given by the Presidential Order it would be highly anomalous to say that State is deprived of adopting the operational mechanism on the ground realities for the upliftment of the weaker sections of the society rendering the specific provision nugatory in the federal structure and conferring no specific power on the centre to take particular step for reservation so far the State services and admission to educational institutions are concerned specially when specific powers have been conferred on the State, recourse to residuary powers cannot be taken. The interpretation suggested by the learned Counsel for the petitioner leads to an anomalous result with uncertain boundaries and obscures equitable application. It is for the political power to decide as the issue is not legal but political. To protect the society from further disaster it is for the political representatives to swing into action.
Violation of Article 341:
69. One of the questions raised and argued by the learned Counsel for the petitioners is whether the act of classification by the categorisation by the impugned act amounts to exclusion from the Presidential Order of the Scheduled Castes within the meaning of Article 341(2). Subsidiary questions are whether the presidential notification is a constitutional determination of absolute identity amongst persons catalogued inter se, whether the impugned Act has further classified a homogenous class, whether the categorisation amounts to varying the Presidential Older and is exclusively within the purview of the Parliament.
70. The learned Counsel for the petitioners broadly contended that all the castes enumerated in the Presidential Order are one indivisible unit. Unit has to be read as a Scheduled Caste and not any caste from the itinerary of the castes given in it. Categorisation of the castes amounts to exclusion of the caste from the Presidential Order. The categorisation in the Presidential Order by the State is a classification. The power is specifically allocated by virtue of Article 341(2) to the Parliament. The State has no power to legislate. The words 'include' and 'exclude' must be broadly interpreted and includes classification. The expression should be given liberal and purposive construction in a wider sense. By providing a percentage to a particular category it amounts to exclusion of other three categories to that extent. Operatively, the categorisation by the Act, one group excludes the other group in the total percentage of posts reserved in the Scheduled Castes. In substance, the operation of the impugned Act amounts to exclusion.
71. The learned Counsel for the petitioner relied on Delhi Judicial Service Assciation, Tiz Hazari Court v. State of Gujarat, , wherein the Hon'ble Supreme Court while interpreting Article 129 of the Constitution and expression 'include' used in the Article observed that the use of the word is not restricted and it is extensive in nature. Similarly in Pioneer Rubber Plantation, Nilamber v. State of Kerala, , while interpreting the Kerala Forest Act while interpreting the word 'exclude' observed that liberal and purposive construction should be put on the section and the word 'exclusion' be given wider meaning.
72. It was urged that a reading of Article 366(24) defining Scheduled Castes for the purpose of Constitution, includes Articles 341 and 342 and all other provisions of the Constitution including Articles 15 and 16 also. It was put that the castes or sub castes or Scheduled Tribes or sub-tribes are eligible for all the concessions, and benefits conferred on the Scheduled Castes in the Constitution as one homogenous unit within the State. The Presidential Order constitutes as one unit for the purpose of availing concessions and benefits conferred on the scheduled castes to the extent of 15%, by the State. Thus the impugned Act is violative of Article 341(2). The Constitutional framers granted this power to the Union alone as at the time of framing of the Constitution, the matter of scheduled castes and scheduled tribes was considered to be a national issue. It gets support from the later constitution of the National Commission, a permanent body to work the safeguards for the scheduled castes in view of the provisions of Article 338.
73. The Presidential Order has been issued declaring the Scheduled Caste as one homogenous unit within the State, the State has no power for categorisation. None of the Lists cover the field of reservations for Scheduled Castes or Scheduled Tribes. It is only under the express provisions of Article 341(2), that the Parliament has been conferred with the power to modify the said List. In view of the law laid down in Marri Chandra v. Dean, S.G.S. Medical College, ,
confirming the judgment of the Bombay High Court in M.S. Malathi's case, , defining for the purpose of Constitution the list of Scheduled Castes given be considered as a homogenous unit. Categorisation would violate the very object of identifying Scheduled Castes for the purpose of Constitution. The power has been vested in the Parliament by the Constitution framers treating it to be a national issue. State cannot encroach upon the field of Parliament by categorising the Scheduled Castes. Articles 15(4) and 16(4) are only enabling provisions to confer the benefits on the Scheduled Castes and Scheduled Tribes who are declared as backward classes. The Slate under the guise of providing percentage of reservation cannot be permitted to encroach upon the field of Parliamentary Legislation. Scheduled Castes order has to be complied with as it stands. Reliance was placed on Srish Kumar's case, , Palghat Jilla Samithi's case, , 1997 (5) ALT 295, Nityananda Sharma's case,
Stale of Tamil Nadu v. A. Gurusamy, , Bhaiya Lal's case, . Alternatively it was argued assuming that
there is no specific power providing for a field of Legislation with respect to Scheduled Castes and Scheduled Tribes the residuary powers will confer jurisdiction on the Parliament alone.
74. The learned Counsel in order to support the submissions made, placed reliance on Delhi Judicial Service Assciation's case, , Pioneer Rubber Plantation's case, ,
State of Bombay v. Hospital Mazdoor Sabha, , C.I.T., Andhra Pradesh v. Taj Mahal Hotel, Secunderabad, , B. Narayana's case , Srish Kumar's case,
, Palghat Jilla Samithi's case .
75. In order to support the submission, support was sought from the law laid down in , Nityanand Sharma's case,
, A. Chinnapa's case , A. Gurusamy's
case, , Bhaiya Lal's, , B. Narayana's
case, , whereby the principle called out by the
learned Counsel for the petitioner is that as has been found by the Hon'ble Supreme Court and laid down that scheduled castes order has to be complied with as it stands and no enquiry can be held or evidence be let in to determine whether or not some particular community falls within or outside and no action to modify the plain effect of the scheduled castes order except contemplated by Article 341(2) is valid.
76. The learned Counsel for the respondent demurred the submissions made by the Counsel for the petitioner. It was argued that the object of Article 341 is to avoid disputes as to whether a caste is a scheduled caste or not for the purpose of the Constitution. It is the Presidential Order issued by virtue of Article 341 which would determine who would be a member of the Scheduled caste for the purpose of the Constitution. The power of the President is limited to specify the caste which shall be deemed to be scheduled caste in relation to a State or for the purpose of the Constitution. The law laid down by the Supreme Court as referred to by the petitioner is to the effect that it is not open to a person lo lead evidence to enable him to show that though in the Presidential Order 'a' caste or sub caste is shown to be a scheduled caste, but that particular caste includes or deemed to include caste 'b' too. It is in this context that the declaration with respect to a caste made in the Presidential Order under Article 341 and defined by Article 366(24) that a particular caste is a scheduled caste shall be conclusive. The Presidential Order only determines who is a member of a scheduled caste. Once it is notified, the caste comes within the definition of a scheduled casle as defined by Article 366(24). The Courts cannot give any declaration with respect to status that synonymous names of a caste are referable to the Presidential Order. Reliance was placed on Basavalingappa's case, , Action Committee on issue of caste certificate to SCs & STs in the State of Maharashtra v. Union of India, , Bhaiya Lal's case, , State of Tamil Nadu v. A. Gurusamy,
, Prabhu Dev v. Ramachandra, .
77. The learned Counsel for the State countenanced the submission made by the learned Counsel for the petitioner and argued that the Article 341 of the Constitution enables the President to issue a Presidential Order specifying the castes, races or tribes or groups which shall for the purpose of the Constitution be deemed to be Scheduled Castes in relation to that State, Thereafter the power is vested in the Parliament to include in or exclude from the said list any caste, etc. The object of Article 341 is to avoid all disputes as to whether a caste is a Scheduled Caste or not for the purposes of Constitution. It is the Presidential Order which will determine the nature of the caste i.e., whether a Scheduled Caste or not for the purpose of Constitution irrespective of the fact whether in fact it is a Scheduled Caste or not. The power of the President is limited. It can only specify castes which shall be deemed to be Scheduled Castes for the purpose of the Constitution. All authorities have been debarred from declaring any caste to be a Scheduled Caste in relation to a Scheduled Caste after the issuance of the Presidential Order. It was contended that the object and purpose of Article 341 is only to determine who is the member of the Scheduled Caste as defined by Article 366(24) for the purpose of the Constitution. The Courts cannot give a declaration that the status, synonymous names of the castes is conformable to the names specified in the Presidential Order. Presidential Order merely enumerates the list of Scheduled Castes. To claim the benefits of a Scheduled Caste the caste of the person must be amongst the itinerary of the castes given in the Presidential Order. Enumeration of castes is distinct and different from providing for the reservation or for benefit for them. Powers to enumerate are conferred. Extent of reservation is for the State to decide by virtue of Article 15(4) and Article 16(4). There is neither any prescribed method for providing uniform reservation nor there is a constitutional duty imposed to do so. Articles 15(4) and 16(4) provide an enabling mechanism to make reservation in favour of backward class citizens. Resultantly and as a necessary corollary, the nature and extent of reservation is a matter for the State. There is no constitutional requirement for treating the Scheduled Castes as one unit for reservation. There is no bar for the State to categorise the backward classes. Reservation can be made subject to the provisions of Article 335 of the Constitution. None of the judgments cited has any application either to the facts in hand or the question required to be determined. In order to support his submission the learned Counsel for the respondent relied on Basavalingappa's case, , Action Committee v. Union of India, , Bhaiya Lal's case, , A.
Gurusamy's case, , Prabhu Dev's case,
, M.R. Balaji's case, , C.A.
Rajendran's case, , Chandra Mohan's case, AIR 1966 SC 1987, Ajit Singh (II)'s case, , Ajit Singh (III)'s case, (, K.C. Vasant Kumar v. State of Karnataka,
, U.S.V. Balram;s case, .
78. The learned Counsel for the respondent further relied on Kanwaljit Singh v. Slate of Punjab, 1980 (3) SLR 34, whereby Punjab Government order setting apart 50% vacancies out of the quota reserved for the Scheduled Castes to the Vatmiki and Mazbi Sikhs was upheld and was confirmed by the Supreme Court in SLP (Civil) 14193 of 1981 decided on 22-11-1983.
79. In our considered view, while interpreting the constitutional provisions, context and the scheme of the Constitution, the intention of the Parliament are required to be harmonised. The effect and consequences of such interpretation with farsightedness and foresightedness cannot be lost sight of. Interpretation leading to illogical ends or unworkability of the Constitution using it as a technical weapon to undo the State policy or causing substantial injustice, would be denuding the laws of effective operation to meet the local needs, in spite of the Courts handicapped with limited familiarity and information. Cardozo while dealing with the interpretation of Constitution observed that the interpretation has to progress with the progress of the society. He further observed that literal reading is sure way of misreading.
80. Dichotomy of Articles 15, 16, 341, read with Lists I, II and III providing the guiding factors to the meaning of the words "include" and "exclude" used in the text and context of Article 341(2) to give effect to the requirement of the Constitution of the duty cast on the State for the upliftment of the Scheduled Castes keeping in view the conditions and requirements of the Scheduled Castes in a particular State and to permit the Articles 14 and 15 to operate liberally and not rendering any power conferred by them or enabling provision provided by them as redundant or restrictive in its operation, no wider meaning can be given to the words "inclusion" and "exclusion". A contextual meaning has to be given to the words "inclusion" and "exclusion" in Article 341, especially in view of the power given in Article 341, the preceding part of the Article conferring one time power on the President to identify the Scheduled Castes. Later identification of Scheduled Castes for the purpose of pulling in the list or taking out of the list alone can be made by the Parliament in the context of broader spectrum of the federal structure envisaging the role required to be played by the State for upliftment of Scheduled Castes and Scheduled Tribes. The Constitution has recognised the right of identification of Scheduled Castes and Scheduled Tribes for the State by the Parliament or the Central Legislation in conformity with the other provisions of the Constitution. Providing the methodology, ways and means and process of upliftment, availability, utilising the State resources for me upliftment was left to the discretion of the State, particularly when they are recognised by the Presidential Order for that particular State. It is only in this context that all the provisions of the Constitution can be kept operative in the federal structure. The above referred intention is categorically discernible with respect to the duty of the State and the Centre for the upliftment of the Scheduled Castes from the following factors:
(1) Articles 15 and 16 enable the State as well as the Union to provide for reservation in the posts in the educational institutions, etc.;
(2) The limit of reservation has to be taken care of keeping in view the provisions of Article 335 which envisages that the claims of the Scheduled Castes shall be considered consistently with the maintenance of efficiency of administration in making the appointments to services and posts in connection with the affairs of the Union or of the State. Necessarily, therefore, in case of appointments to the posts in connection with the affairs of the State it is the State's right to make appointments;
(3) Empowering the State providing for reservation in appointments relating to backward classes of citizens not being adequately represented in the services under the State it is reasonable to infer that if a particular caste is represented in posts no reservation can be made. On pari materia reasoning or a logical corollary since backward class includes Scheduled Castes and if any caste of the Scheduled Caste is properly represented all the remaining Scheduled Castes as notified in the Presidential Order cannot be denied reservation in its totality. Putting any other interpretation would be counterproductive and denude the very object of providing reservation in the posts or education for upliftment as illusory for the Scheduled Castes would be wholly trampled under the feet of their own caste fellows.
(4) The general conspectus of the Constitution, its object and machinery to achieve its ideals and aspirations, necessary for human development over the denominator's poverty, low monetary capacity, high edifice of socialist society, conscious of the Constitution and other objectives like political existence granted to the Scheduled Castes conducive to public benefits, laws of governance would not only be rendered redundant but be only illusory. Life of democracy without education is a hypocrisy without limitation.
81. The interpretation put by the learned Counsel for the petitioner would be an impediment to the upliftment of the Scheduled Castes. The contention if accepted would result in treating the conglomeration of castes itself as a caste. It would render the totally deprived caste under the tramples of feet of people who are less deprived especially the ones who are exposed to more professional and intellectual opportunities. It would encourage grabbing of the State largesse by some while depriving the others of the opportunity. The acceptance of the contention of the petitioner is productive of dangerous consequences. It may if we may hasten to add sabotage the very object of the Constitution.
82. We are of the considered view that the word 'include' does not mean an extension alone. We find support for interpretation of the word 'include' not always meaning a word of extension without reference to the context. Sometimes the word 'include' be used in the sense of the means which gives the natural sense one can come across. Reference may be made to S.C.R. Tiles Manufacturers v. State of Gujarat, . One of the accepted tests laid down whether it is an exclusive jurisdiction: of the Parliament was to find out whether particular topic is in the List II or List III. If it is not so, one need not go to List I or search for the field whether the Parliament has exclusive power to legislate. Herein inspite of the residuary power vested in the Parliament no specific field has been carved out either for the Parliament or for the State to legislate with respect to Scheduled Castes.
83. A specific mechanism or procedural process for the exercise of power to recognise a Scheduled Caste has been provided i.e., the Parliament in consultation with National Commission which has been constituted to take care of the interest of the Scheduled Castes the power to declare a particular caste to be Scheduled Caste has been provided in Article 341. Restriction on power cannot be broadly construed. It has to be construed in the context and to the extent it is put i.e., the empowerment of the State as well as the Parliament having been enjoined with a duty of upliftment of Scheduled Castes to be recognised or identified as a Scheduled Caste by the Presidential Order which can be varied only to the extent of inclusion or exclusion of part of Scheduled Caste in the Presidential Order by the Parliament alone. It cannot be given a wider meaning, thereby restricting the right of the State in the federal structure of the Constitution barring the State, for providing reservation to the Scheduled Castes in the field of education or employment.
84. The impugned Act does not either exclude or include a caste in the Presidential Order in letter or spirit. The number of castes in the itinerary of the castes continues to be the same. We are of the considered view that the impugned Act does not violate Article 341(2) of the Constitution.
85. The contention of the learned Counsel for the petitioner Sri P.P. Rao that whenever the State provides either by way of constitutional compulsion or choice, reservation to Scheduled Castes the entire determined group of 59 castes should be made eligible for all concessions, benefits and reservation by treating them as one homogeneous unit. The caste amongst the Scheduled Castes is not recognised. Different categories or persons have been put in the list of Scheduled Castes. The Hon'ble Supreme Court in State of Kerala v. N.M. Thomas, per Justice V.R. Krishna Iyer held that Scheduled Castes are an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest in need of massive State aid and notified as such by the President. The notification as "Scheduled Caste" must not be construed by the compendious appellation that it enumerates castes. The notification denotes a mixed bag of tribes, races, groups, communities and non-castes outside the fold of Hindu division. Similarly Justice B.P. Jeevan Reddy in Indira Sewhney's case, , speaking for the majority observed, as a matter of fact neither the several castes, groups or tribes within the Scheduled Castes and Scheduled Tribes are similarly situated nor the Scheduled Castes and Scheduled Tribes similarly situated.
86. It was argued that the Presidential Order enumerates the scheduled castes. It is the Slate alone which provides and can provide reservation for scheduled castes by virtue of Articles 15(4) and 16(4) of the Constitution. The extent of reservation or mode of reservation are of course subject to judicial review. There is no confirmed or uniform methodology for prescribing the reservation and the extent and nature of reservation. It has to be determined and decided by the State in the facts and circumstances of each State or each case. There is no mandatory duty imposed for providing reservation or restricting the discretion conferred on the State. It is open for the Slate to vary the percentage of reservation or put other conditions for providing the enjoyment of the concession of reservation. Reliance was placed on M.R Balaji's case, , C.A. Rajendran's case,
, P.K. Ghosh v. J.G. Rajput, , S.B.I.
SC/ST Employees Welfare Association v. State Bank of India, , Ajit Singh (II)'s case, ,
, 1992 Suppl. (3) SCC 210 (Paras 804, 731, 808, 809). The learned senior Counsel for the State Sri K.K. Venugopal submits that Article 341 being the machinery for identification of scheduled castes, the determination by Ihe President and the Parliament for inclusion in and exclusion from Article 341(2) does not cover the cases of sub-classifying such castes which is permissible under Articles 14, 15 and 16 of the Constitution for the purpose of ensuring that the benefits are conferred in accordance with the requirement of equality of opportunity. Therefore, when the State Government makes the constitutional choice to give effect to Articles 15(4), 16(4), read with Article 335 and Article 46 being the provider of the concessions, privileges or preferences and reservations, the State alone has legislative competence and in case it is for the post of public service under the Union, Parliament can exercise the powers under Entry 70 of the Union List read with Article 16(4) or issue executive order under Article 73 of me Constitution. If the State does so, it may do so by way of an executive order under Article 162 and by way of Legislation under Entry 41 of List II of the Constitution read with Article 16(4). Same is the case with regard to admission to educational institutions. There is no basis that the scheduled castes constitute one single class since they form a heterogeneous group.
87. The State is well within its legislative competence in categorising the backward classes as backward and more backward. Said power of the State has been recognised in Ihe law laid down in K.C. Vasant Kumar's case, , State of A.P. v. U.S. Balaram,
. It is well within the Constitutional and legislative competence of the State to apportion the reservation amongst the various groups of scheduled castes in conformity with Articles 15(4), 16(4), 309, 335 of the Constitution read with Articles 38, 39, 41, 49 read with Article 246, Entry 41 of List II and Entries 23 and 25 of List III. It does not violate Article 341. It is for the State to provide reservations for a class which in its opinion was not adequately represented in the services of the State. The learned Counsel submitted that the judgments cited and the law laid down is not relevant or help in deciding the constitutional proposition.
88. One of the principles of construction of Legislation is to avoid ambiguity and redundancy. One has to look to the words used in the context and find out the connotation and sense in which it is used. Holmes said that a word is not crystal, transparent and unchanged. It is the skin of living thought and may vary in context, circumstances and times in which it is used.
89. Constitutional provisions, especially dealing with powers in a federal polity, should be understood in broad and common sense point of view as understood by common people for whom they are made. One is required to approach such sensitive issue with judicial mind and temperament, with compassion, open mindedness, sensitivity to the rights of a class.
90. We are of the considered view that the contention in the premises propounded during the course of arguments as noticed in our judgment, of the learned Counsel for the petitioner, Sri P.P. Rao, cannot be accepted and the impugned Act cannot be held to be unconstitutional.
Violation of Articles 15 and 16:
91. The contention of the petitioner that categorisation is solely based on caste; thus, violates Articles 15(1)and 16(1) which prohibit discrimination on the ground of caste has no force. While providing and distributing the category representing the reservation in a particular group of Scheduled Castes if it is identified incidentally by the name of caste it cannot be termed to be classification based on the caste. Providing reservation for Scheduled Castes merely naming out the Scheduled Castes by their caste cannot be invalidated solely on the ground that it is a caste Legislation. In Indra Sawhney's case after reference to K.C. Vasanth Kumar v. State of Karnataka, , Justice B.P. Jeevan Reddy observed "the above
material makes it amply clear that caste is nothing but a social class or a socially homogeneous class. It is also an occupational grouping with the difference that its membership is hereditary when one is born into it. Its membership is involuntary. If one ceases to follow that occupation still he remains and continues to be a member of that group. To repeat it is socially and occupationally homogeneous class. Endogamy is its main characteristic. its social status and standing depends upon the nature of occupation followed by it. Lowlier the occupation lowlier the social standing of class in the graded hierarchy. In rural India occupation-castes nexus is prevalent even today.
Caste-occupation-poverty cycle thus an ever present reality. In rural India it is strikingly apparent. In urban sectors there may be some dilution for since rural India and rural population is overwhelmingly predominant factor of life in India the realily remains. All the decisions since Balaji's case speak of "caste-occupation-poverty" nexus. Language and emphasis may vary but theme remains the same. This is the stark reality notwithstanding our protestations and of attempts at weeding out this phenomenon. We are not saying it ought to the encouraged. It should not be. It must be eradicated. That is the ideal, goal. But any programme towards betterment of these sections, classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our hands in the sand like ostrich would not help. One cannot fight his eneour without recognising him". It was further observed "at the outset we may state that for the purpose of this discussion we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes) except to remark that backward classes contemplated by Article 16(4) do comprise some caste for it cannot be denied that Scheduled Castes include quite a few castes. Castes operate a homogeneous class and being recognised by its name and included in the list. The Legislation with respect to the same by categorising cannot be said to suffer from the vice of violation of Articles 15 and 16 as being the Legislation based on caste".
92. As observed earlier, Scheduled Castes and Scheduled Tribes notified in (he Presidential Order as the Scheduled Caste or deemed to be Scheduled Caste named by or referred to by caste or jointly and severally as a caste are Scheduled Castes. Grouping made in the impugned Legislation need not be reproduced as concedingly each community or group are known to be professionally engaged in different trades and having come and settled in Andhra Pradesh from different regions. There is no gain saying that basically grouping has been done with reference to the occupation of each group and place of migration as found by the Raju Commission. We are of the view that categorisation having been made on intelligible and discernible differentia as referred to earlier and the Act having been passed for rationalisation of reservation for Scheduled Castes, is valid.
93. The learned Counsel for the petitioner submitted that by categorisation of the castes by the impugned Act in the Presidential Order it violates the very inherent principle of equality before law and equal opportunity ensured by the Constitution. Reliance was placed on V. Venkataramana v. State of Madras, AIR 1951 SC 229. It was contended by some of the Counsel that categorisation amounts to a denial of equal treatment. The impugned Act classifying the Scheduled Castes being backward of the backwards amounts to treating equals as unequals, it threatens the integrity of India which the Court is required to protect. Reliance was placed on G.M.S.C. Rly. v. A.V.R. Siddhantti and Ors., and on the contention of
protection of integrity of India on AIR 1982 SC 1 para 41, 42, Sri Sachmdanand Pandey v. State of West Bengal, AIR 1987 SC 1109, Rural Litigation & Entitlement Kendra v. State of UP., .
94. The contention of discrimination made is inherently based on the premises that the Presidential Order comprises of a caste named as Scheduled Caste for the purpose of Articles 15 and 16 of the Constitution and that the categorisation by the impugned Act is on the basis of caste alone.
95. In our considered view, the very premise of the contention cannot be sustained. As observed in the earlier part of the judgment and at the cost of repetition. We are of the considered view that the President in exercise of powers under Article 341 has identified the extremely socially and educationally backward classes and specified them as Scheduled Castes. As would be inherently discernible by including of certain Scheduled Tribes amongst the category of Scheduled Castes, caste was not the sole consideration for such identification and specification. Itinerary of castes named in the Presidential Order in the list of Scheduled Castes represents a social class which suffers untouchability and warranted that particular communities be treated as Scheduled Castes for the purposes of the Constitution. The impugned Act in effect and as a fact has categorised all the Scheduled Castes in the Presidential Order into categories, A, B, C and D for the purpose of conferring the benefit of providing the percentage of reservation in proportion to the population of each group of Scheduled Caste. In our considered view the impugned Act has not classified any caste on the basis of caste. By mere naming the caste in category would not and cannot be raised to the pedestal of classification on the basis of caste. Thus, there is no violation of Articles 15(1) and 16(1) of the Constitution.
96. The well established principle is that a Legislation can be said to be colourable Legislation when the particular Legislation has transgressed its legislative limits overtly, covertly, directly, indirectly - be it expressly or in substance or in reality i.e., when on examination of the Legislation the Courts come to a conclusion that it is a mere disguise.
97. In order to determine whether the Legislation is a colourable Legislation one is required to examine the true scope and effect of the provisions. There is no dispute, if we hasten to add, the fixation of percentage of reservation for Scheduled Castes and Scheduled Tribes was accepted as within the purview of the State Legislation. Mere mode or mechanism of distribution of said percentage of reservation for Scheduled Castes or allocation of the said percentage, to carry out the object of reservation cannot be termed to be a colourable exercise of jurisdiction. The classification, the validity of which has to be tested on the touch stone of the principles of Article 14 of the Constitution, would not render the Legislation to be a colourable Legislation. Justice Krishna Iyer observed, "Colourable exercise of public power especially legislative power is not tainted with bad faith or evil motive. It is not pejorative or crooked. Conceptually colourable Legislation is bound up with incompetence". Its exercise fraught with fraud on legislative power or more frightfully fraud on the Constitution i.e., legislative incompetence to enact the particular law although the label of competence is struck on it. Motives to pass the Legislation which impel them are irrelevant. To test it one has to assess the pith and substance of the Act, does it fall within any entry assigned to that Legislature - in pith and substance or covered by ancillary power implied in that entry, can the Legislation be read down reasonably to bring within the legislative power. Malice or motive is beside the point. Determining the colourable Legislation is not permissible to suggest Parliament's incompetence on the scope of mala fides". We have held that it was within the legislative competence. Reference may be made for culling out the above principle to KCG Narayana Deo v. State of Orissa, , State of Rajasthan v. Union of India, AIR 1977 SC 1031, WR Moron Proprietary Ltd. v. Dy. Commr. of Taxation for New South Wales, 1940 AC 838, Attorney -General for Alberta v. Attorney-General for Canada, 1939 AC 117, (to the effect that what you cannot do directly you cannot do indirectly), Moron PTY., Ltd. v. NSW Tax Commr., 1940 (3) All ER 269. As we have observed that the impugned Legislation is within the competence of the State Legislation the contention that the Legislation having been passed on account of political motivation by itself cannot be termed as a colourable Legislation. In our considered view in exercise of power of judicial review the requirement of judicial restraint demands not to enter the political thicket. Not only no findings can be given on political motives leading to mala fide Legislation even the Courts would not record a finding of fact required to be based on substantial, reliable, believable material to hold mala fides. There is no material much less with particulars to hold that there is any political mala fides. Mere agitations, counter-agitations, demands and counter-demands, needs of the social society, need of development, perception of development, etc., are the fields of the Legislatures to legislate. In exercise of judicial power circumscribed by the Constitution it will be trampling into the field of another wing of the Constitution in exercise of its powers. We are of the considered view under the very scheme of the Constitution which envisages a duty from the judiciary to be the protector of the fundamental rights and protector of any other legal right conferred by Legislation cannot assume the jurisdiction to declare whether conferment of any right is the requirement of the society or not in view of the fact that it was not contended that right of reservation is a fundamental right. Frankfurter has said "Legislation is a form of liberal composition but construction is not an abstract process. Equally valid for every composition not even for every composition whose meaning must be judicially ascertained, the nature of composition demands awareness of certain pre-suppositions and also significance of an enactment, history, relation to other enactments, construction of words for one starting points for history, moral currency with intrinsic meaning. Legislation has an aim which seeks to obviate some mischief to supply inadequacy, to effect change of policy but formally a plan of government with aims and policies, is not drawn like nitrogen out of air. It is emanated in the language of a statute as read in the light of other external manifestation for the purpose".
98. In view of the principle of Legislation and a finding written that it is a policy and is a means of governance it is a formal plan of Government, by any stretch or any test laid down it cannot be said to be a colourable Legislation or Legislation suffering from any mala fides. Nothing has been pointed out except bare contention raised that Legislation is a colourable Legislation though a bald attempt was made to term it as a colourable Legislation on the ground that it lacks legislative competence which has been answered earlier. It is fully in consonance with the well established limits put by the Courts on themselves in exercise of judicial discretion that the Courts cannot sit as a Court of appeal on the reasons for a particular enactment. The enactments are required to be judged according to the prevailing situations and not deciding the questions philosophically, theoretically. One's sensitivity, one's approach to the problem in Court room removed away from the people's suffering. It is Legislature's satisfaction which is material and is not subject to judicial review unless it violates any of the fundamental rights or any other right conferred by the Constitution. Public interest and national welfare are the paramount consideration. Public good is synonymous with the protection of the interest of a citizen as a territorial unit. The principle of democracy is based on equality of citizen's rights, transparency of political decision making process, public body subject to constitutional provisions. In our considered view the impugned provisions having been enacted in conformity with the need to uplift the Scheduled Castes and Scheduled Tribes with complete transparency it cannot be said that it is not a public welfare Legislation for public good of the citizens of the State's territorial jurisdiction. Accepting the contention of the petitioners would be fraught with dangerous consequences which may sabotage the scheme deflating the declared public purpose. There is no gain saying it is a public policy assumed by the State on the choice of priorities and urgencies felt by the Government. In our considered view we find no force in the contention of the learned Counsel for the petitioner that the impugned Legislation suffers from mala fides.
99. The learned Counsel for the petitioners contended that in view of non-compliance of Article 338(9), which envisages that the State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes have no force on a factual matrix. The State referred the matter to the National Commission in compliance with the orders of this Court simultaneously during the pendency of the appeal in the Supreme Court. The appeal was withdrawn only to enable the National Commission to opine. The National Commission though found particular castes of Scheduled Caste cornering the major share of reservation, made no recommendation for the State to deal with the factual situation. Though a freak observation was made that categorisation is in no way to ameliorate the sufferings of the Caste under the trampling of the numerically larger number of Scheduled Castes. In our considered view, consultation cannot be raised to the pedestal of a binding opinion. The legislative power cannot be curtailed by the requirement of consent, nor, has it been curtailed as no consequences have been provided for non-consultation" Otherwise too, no recommendation having been made by the National Commission to the State Government, consultation having been carried out, the impugned Legislation cannot be faulted for violation of Article 338(9).
100. The learned Counsel for the petitioner lastly but not leastly contended that since the Legislation has been enacted without National Commission's report being placed before the House is in violation of Article 338(7), the same envisages where a National Commission report or any part thereof relates to any matter with which any State Government is concerned, the report shall be forwarded to the Governor of the State. The duty has been cast on Ihe Governor to cause it to be placed before the Legislative House of the State along with the memorandum explaining the action taken or proposed to be taken on the recommendation relating to the State and the reason for non-acceptance of, any such, recommendation. On our repeated asking, nothing has been pointed out as to what the National Commission recommended. Finding fault with the proposed action of the State by itself cannot be termed to be a recommendation. In pith and substance, reading of the report bereft of a sentence or word freakily here and there, in our considered view, it emerges that the Commission has made no recommendation with respect to any action required lo be taken by the State. It is only a pious wish which has been shown by the National Commission that since the vice of usurping the reservation by particular castes is a National malady, desired the centre to take appropriate steps to undo the malady. In our considered view, the National Commission has nowhere held or recommended that progressive States or the active States in order to meet their duty of upliftment or ameliorating the maladies are debarred from taking any action in exercise of their legislative jurisdiction within their competence till it is taken at National level. We may hasten to add that the Centre as and when takes action in view of the pervading jurisdiction of the Centre subject to which the State actions would prevail, though it may not be taken an expression of opinion as the question is purely academic at this stage.
101. Lastly the learned Counsel for the petitioner contended that the impugned Act suffers from violation of Article 14. The inherent contention raised on the premise laid down was not on arbitrariness as such, but on the premise of the lack of State Legislative competency. In view of the finding that the Act is within the State Legislative competency, we are of the considered view that the Act does not suffer from any arbitrariness in view of the undisputed factual matrix noted in the earlier part of the judgment. The object of the Act is for upliftment of the Scheduled Castes and Scheduled Tribes and to ameliorate their sufferings from the trampling of reservation by caste numerically more than the others. The object cannot be said to be not laudable. Upliftment has to be equitable. The privilege of the State has to be distributed equally among the underprivileged proportionately to their number. There being no dispute that reservation has been made out of the total reservation according to the population, which is one of the recognised methodologies of classification. Thus, the classification made has nexus to the object to be obtained. Neither the object nor the Act can be termed to be arbitrary, unreasonable or unconscionable. Thus, we are of the considered view that the impugned Act does not suffer from vice of Article 14.
102. We would like to put on record our observation on the scope of judicial scrutiny upon the State affirmative action. Identification of disparities amongst sections and communities in general in society is a matter essentially for the State in its legislative and executive spheres. The State is further duty bound for removal of inequalities and administration of protective discrimination are also areas which are left to other two coordinate branches of the State. Professor James Bradley Thayer in "The origin and scope of the American doctrine of constitutional law" propounded the basis and limits of judicial review. He was of the view that judicial review is strictly judicial and this is different from the policy making function's of the Executive and Legislative branches, and the Judges must avoid intruding upon the domain of the other branches of the Government. He propounded that full and free flow must be permitted to "that wide margin of considerations which address themselves only to the practical judgment of a legislative body". Justice Brandies observed in New State Ice Company v. Liebmann, 285 US 262 :
"The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.... To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let out minds be bold."
103. These principles have been considered to be one of the principles on which constitutional interpretation should be based.
104. In our considered view, it must be held that to what extent reservation ought to be provided and what classifications meet the requirement of the contemporary society are all matters of not mere verbalism or dry constitutional analysis. The issues involve incisive sociological analysis inherent in the system of governance belonging to the Legislative and Executive branches. Courts on account of innumerable reasons and lack of information are not the for a for analysis on these aspects either on hypothetical or speculative basis. The State power for social experimentation by trial and error, if need to be, to achieve the purpose of the Constitution, it has been designed to fulfil, cannot be hedged or trampled at the very inception. It cannot be aborted on assumed grounds. Even if it were possible to presume that the State Legislative measure may not assuage the disparities suffered by the utmost backward classes and in full measure, that cannot be a ground for invalidating a Legislation. Inadequacy of a Legislation is not a ground for invalidation. It has been observed by T. Smith:
"Legislation is a process slow and cumbersome. It turns out a product -laws - that rarely are liked by everybody and frequently little liked by anybody... When seen from the shining cliffs of perfection, the legislative process of compromise appears shoddy indeed. But when seen from concentration camp of the only alternative way of life, the compromise of Legislation appear but another name for what we calf civilisation...."
105. The wisdom of the Legislation has never been considered-as a matter for judicial scrutiny, which is indeed concerned with ensuring conformity of the Legislation to specific and clear constitutional limits upon its exercise.
106. Constitutional Jurist, Judge learned Hand has said :
"They believed that democracy was a political contrivance by which the group conflicts inevitable in all society should find a relatively harmless outlet in the give and take of legislative compromise after the contending groups had a chance to measure their relative strength; and through which the bitterest animosities might atleast be assuaged..... They had no illusion that the outcome would necessarily be the best obtainable.... but the political stability of such a system, and the possible enlightenment which the battle itself might bring, were worth the price."
107. Before parting, we may refer to the contention raised by the learned Counsel for the petitioners that the judgment reported in B. Narayana's case, , operates as res judicata. During the course of the arguments, nothing remotely has been argued on the premise or the reasoning that the judgment can be said to be operating as res judicata and estopped the Legislature to legislate. It is well known principle that the basis for a judgment can be undone by any Legislation. Any finding recorded or observation made contrary to law laid down or the observation made herein by us, in the Full Bench is set aside and would not be binding; nor can a judicial pronouncement operate as estoppel for all times to come debarring the Legislature, as the principle of res judicata is inherently the principle of estoppel and public policy. It is well within the legislative competence to vary its policy and legislate. A declaration of public policy in view of the law prevailing at a particular point of time cannot denude the State from changing its public policy. On no principle the Full Bench judgment can be termed to operate as res judicata to invalidate the impugned Act.
108. In view of the above analysis, the impugned Act suffers from no violation of constitutional provisions. The writ petitions are accordingly dismissed. No costs.
On the oral request of Sri Subrahmanya Reddy, learned senior Counsel, leave to appeal is granted.
Shri Kola Bhaskara Rao prays that operation of the impugned judgment be stayed.
The impugned judgment is a declaratory judgment and no stay order can be passed in respect of the same at this stage. Appropriate relief the petitioner may seek in appeal if so advised.
Per BILAL NAZKI, J
I had the privilege of going through the draft judgment prepared by My Lord the Chief Justice. I could not persuade myself to agree on certain questions of law. I could not agree with certain conclusions on certain questions of law and regretfully, therefore, I venture to write a separate judgment.
110. The facts, the issues, the contentions involved and the arguments advanced at the Bar for number of days have all been taken care of by My Lord the- Chief Justice. It may not be necessary for me to set out the facts in detail. But, certain facts would be mentioned which would be necessary in order to consider the issues involved. I will also not deal with all the contentions which were raised at the Bar. By this judgment I would only be dealing with those issues over which I am not able to agree with the conclusions of My Lord the Chief Justice.
111. The State of Andhra Pradesh appointed a Commission of Inquiry (hereinafter referred to as "Raju Commission"). Certain references were made to the Commission. The Raju Commission's recommendations were that large benefits of reservations were disproportionately received by a particular caste belonging to the scheduled castes and certain groups of scheduled castes were deprived of the benefits by certain groups which were also scheduled castes. In order to bring parity between various groups of scheduled castes the Raju Commission recommended distribution of benefits equitably. In the State of Andhra Pradesh, for recruitment to the services under the State and for admission to various educational institutions there is a 15% reservation and Raju Commission's recommendation was that this 15% quota should be distributed amongst different castes who arc scheduled castes on the basis of population. This Commission's report was accepted by the Government of Andhra Pradesh keeping in view the ratio of population of scheduled castes in each group four groups were created for the purpose of public employment and admissions to educational institutions. The quota was distributed in the proportion of 1:7:6:1. These groups were categorised as 'A', 'B', 'C' and 'D' respectively. Two administrative orders being G.O. Ms. No.68, dated 6-6-1997 and G.O. Ms. No.69, dated 7-6-1997 were issued by the Government. These orders came to be challenged in Writ Petition No. 12213 of 1997 and Batch and the Full Bench of this Court in B. Narayana v. Government of A.P., (FB), quashed the two Government orders. The Full
Bench was of the view that, any sub-classification could be made only after consultation with the National Commission for Scheduled Castes and Scheduled Tribes created under Article 338 of the Constitution. Appeal was filed against the judgment of the Full Bench before the Hon'ble Supreme Court. Pending appeal National Commission was approached and the Commission was consulted. The National Commission, however, was of the view that since the matter was pending before the Supreme Court therefore they would not like to comment on the controversy. Some correspondence was exchanged between the Commission and the Government and finally the Government decided to withdraw the appeal and the appeal was withdrawn from the Supreme Court. Thereafter the National Commission considered the matter. They sought information and statistics from the Government of Andhra Pradesh. The National Commission gave its report rejecting the categorisation. The Commission also made a recommendation to the Union of India to take up a national level study and consider the whole issue in a national perspective. Thereafter the State Government in consultation with the President of India issued Ordinance No.6 of 1999 on 9-12-1999 which provided for categorisation as had been provided by the G.Os., issued in the year 1997. This Ordinance was challenged by way of writ petitions. In the meantime the Ordinance was repealed by Act 20 of 2000. The petitions were accordingly amended and the Act known as "Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000" was challenged. The challenge is to the constitutional validity of this Act.
112. It is in the background of the foregoing facts that the Act has been challenged. My Lord the Chief Justice in his draft judgment has pointed out the grounds of challenge to the Act. Various grounds were taken. But, I would confine myself only to those grounds on which I am of the view that if those grounds are accepted then the normal consequence would be that the Act would have to be declared ultra vires. The grounds are:
(1) That the impugned Legislation is beyond the legislative competence of the State Legislature in view of Article 341 of the Constitution of India;
(2) That the matters pertaining to Scheduled Castes and Scheduled Tribes particularly with regard to their classification are matters which are within the exclusive domain of Parliament;
(3) That the categorisation made is violative of Articles 15 and 16 of the Constitution of India.
Points 1 and 2 arc taken together for consideration. Article 341 of the Constitution of India lays down:
"341 (1) The President may, with respect to any State of 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 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 notification.
On first principles one can safely say that placing various castes, races or tribes or parts of or groups within castes within one group by President of India under Article 341(1) is a one time exercise. This exercise has been done and the Presidential notification under Article 341(1) pertaining to the Andhra Pradesh has included certain castes in the notification. The order in this case which is relevant is the "Constitution (Scheduled Castes) Order, 1950" issued in 1956 and is known as "C.O. 19". Now, the question would be, after issuance of the notification by the President, whether this list can be tampered with, or not? If one goes by Article 341(1) there is no scope for tampering of this notification but Clause (2) of Article 341 lays down the extent to which this notification can be tampered with and also the method by which it can be done. It also lays down the Forum which can do so. Clause (2) of Article 341 lays down that Parliament can include or exclude from the list of Scheduled Castes specified in the notification issued under Clause (1) of Article
341. In the light of this Article, it is contended by the learned Counsel for the petitioners that, the present legislation amounts to inclusion and exclusion and as such this is a transgression into the powers of the Parliament and therefore it cannot sustain. In order to understand the meaning of 'exclusion and inclusion' the learned Counsel for the petitioners submits that, before the impugned Legislation all those groups which are Scheduled Castes in terms of Article 341 were entitled to 15% reservation for the purposes of recruitment in public services and for admission to the Educational institutions and the persons belonging to these groups would contest with each other on the basis of their merit, but, after the Legislation a group will be entitled to contest for 7 out of 3 5, another 6 out of 15, and the two remaining groups would contest for 1 seat each. Therefore, in each case where there is competition, amongst the Scheduled Castes for admission to the educational institutions or for appointment to public office, there will be mutual inclusion as well as exclusion. The learned Counsel wants that the words 'include and exclude' have to be given wider meaning. He relies on various judgments. He refers to Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat, . The Supreme Court in this case was interpreting
Article 129 which gives power to the Supreme Court to punish for contempt and the expression used is, "including the power to punish for contempt of itself. An argument was made before the Supreme Court that this Article was giving the power to the Supreme Court to punish for contempt of itself only, but the Supreme Court found :
"If the framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt itself.
The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". The expression "including" has been interpreted by Courts to extend and widen the scope of power. "
The Counsel also refers to State of Bombay v. Hospital Mazdoor Sabha, . In this judgment, Section 2(j) of the Industrial Disputes Act was being interpreted and the Supreme Court found "It is obvious that the works used in an inclusive definition denote extension and cannot be treated as restricted in any sense." The Supreme Court in this case found favour with the definition of the word given in Stround's "Judicial Dictionary". It also found, "Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation."
113. With the same purport the learned Counsel for the petitioner has relied on ; , ; 1993
SCC 130 and . Relying on these judgments the learned Counsel for the petitioners further submits that, as has been held by various judgments of Supreme Court the Scheduled Castes in terms of Article 341 form a group amongst themselves and the list framed under Article 341 is indivisible and once it is divided into various categories it will amount to exclusion or inclusion, therefore, the exercise made under the impugned Act is ultra vires of the Constitution. The learned Counsel further submitted that, in fact the intention and object of the Constitution was to pursue a policy where less privileged in the society are brought on par with those who arc privileged. The object and dream of the Constitution was to get rid of the age old caste system. The Constitution does not permit a system based on caste. As a matter of fact discrimination on the basis of caste particularly for admission to the educational institutions and employment is prohibited under Articles 15 and 16, but at the same time the Constitution permitted framing of a list which popularly came to be known as "Scheduled Castes List". The castes which are included in the list prepared under Article 341 are not the castes in the traditional sense of the word in the Indian context but they are groups of people who have been grouped together for the purposes of constitution and the Constitutional purpose would be the upliftment of that group. He further states that, classification of Scheduled Casles in terms of Article 341 creates one class by itself and its further categorisation into ABCD is bad. The Counsel further states that, if any of the groups who is mentioned in the notification issued under Article 341 achieves the social, educational and economical excellence, it can be excluded from the list by Parliament. But, in the present case an effort is being made to exclude certain castes from full benefits which would accrue to them by being members of Scheduled Castes by the State Legislature, therefore, it cannot sustain. He further submits that this classification is a mini-classification which cannot even otherwise be permitted. He places reliance on Supreme Court decision in General Manager, S.C. Railway v. A.V.R. Siddhanti, . Before the law laid down by the Supreme Court in this judgment is appreciated it may be pointed out that classification is permissible but class Legislation is not permissible which is well settled law in this country. But, once classification is made by President of India under a constitutional power and it is not tampered with by the Parliament which is authorised to do so under Article 341(2) whether further classification can be made. In my view this cannot be permitted. It would certainly be ultra vires to the powers of the Parliament. In Para 25 of the above judgment the Supreme Court held :
"25. Fundamental right of equality means that persons in like situation, under like circumstances are entitled to be treated alike. "The Constitutional Code of Equality and Equal Opportunity", observed this Court in State of Jammu and Kashmir v. Triloki Nath Khosla, Civil Appeal No.2134 of 1972 D/- 26-9-1973 (), "is a charter for equals". So long as employees similarly circumstanced in the same class of service are treated alike the question of hostile discrimination does not arise. The equality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall substantially, within the same class or unit of service. The guarantee of equality is not applicable as between members of distinct and different classes of the service. The Constitution does not command that in all matters of employment absolute symmetry be maintained. A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is not intended, nor it is practicable if the administration is to run. Indeed, the maintenance of such a 'classless' and undiscerning 'equality' where, in reality glaring inequality and intelligible differentia exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible. That is to say, reasonable classification according to some principle, to recognise intelligible inequalities or to avoid or correct inequalities is allowed, but not miniclassification which creates inequality among the similarly circumstanced members of the same class or group."
In the light of this judgment one sees an anomalous position. The President by a constitutional power keeps 59 casles into one basket but the State Legislature breaks the basket and creates four new baskets and keeps various groups in those four baskets which is manifestly outside the scope of State Legislature.
114. The learned Counsel for the petitioners further submits that there is no power under the legislative powers in the State lists which could authorise the State Legislature to enact laws with respect to Scheduled Castes and Scheduled Tribes. Therefore, without disclosing the power to legislate the State's action cannot be upheld. The learned senior Counsel appearing for the respondent-State on the other hand submits that this is neither a case of inclusion nor exclusion. He further admits that the State Government has no power to legislate with respect to Scheduled Castes and Scheduled Tribes but he submits that the present Legislation is not with respect to Scheduled Castes and Scheduled Tribes, it is with regard to employment in the State and with regard to the Education. Therefore, source of power for the present Legislation is the power to legislate on the relevant entries in the State list with respect to education and employment. Dilating on this argument Mr. Venugopal submitted that the goals of equality in terms of Articles 16(1) and 14 would be fully achieved if a large number of persons belonging to reserved group of section have got the benefits proportionate to the population of that group. He submits that, it is not only open to the State Government but it is their duty to achieve such an object. He further stated that, so far as Scheduled Castes and Scheduled Tribes are concerned the maximum reservation which could be given to them is 22.5% reservation earmarked for Scheduled Castes is 15% and reservation for S.Ts., is 7.5%, but, if the reservations to all Backward Classes including S.Cs and S.Ts., are given on the basis of their population it may go beyond 80%. He submitted that in Tamil Nadu it is already 68% but if this reservation is made directly on the basis of population it may well go beyond 80% which could result in inequality as the other non-backward classes would suffer total exclusion and frustration. Therefore, even though the idea would be to allow the Backward Classes and S.Cs and S.Ts., to achieve the equality in the matter of public employment and education in proportion to their population yet that was not possible. But, in order to achieve this efforts are being made and such efforts are permissible under Articles 16(4) and 15(4). He further states that, in terms of Article 16(4) if Backward Classes are not adequately represented in the services of the State the State has the power to make Legislation in that regard to bridge the inadequacy. In order to bridge the inadequacy and in order to bridge the gap to achieve the proportion the State may have to give higher concessions. He further states that as far as Andhra Pradesh is concerned the statistics showed that by and large the total number of Scheduled Castes notified by the President represent 15% of the total population of the State, therefore 15% seats in educational institutions and 15% jobs were reserved for them. According to Sri Venugopal the constitutional purpose of extending the benefits to all the deprived classes would be achieved by taking each one of the castes and finding what was the proportion of that caste to the total population of the State and what proportion the particular caste had to the over all population of Scheduled Castes. In 1971 census the total population of Scheduled Castes was 14.1%, in 1981 census it was 14.86% now it is about 16%, therefore an adequate representation of Scheduled Castes was though to be achieved by reserving 15% of seals in educational institutions and 15% of jobs in the public employment. On the same spirit it was though that certain groups within the Scheduled Castes were taking more than the normal cake in accordance with their population whereas others were being deprived of it. What was the purpose for granting 15% reservation to the Scheduled Castes was also the purpose for creating categories ABCD, therefore, this could not be an unconstitutional purpose. The classification made is with the objective that each group within the Scheduled Castes gets the share in the benefits based on the proportion of their population which is otherwise permissible as far as Scheduled Castes are concerned. In order to see that the benefits by reservation of 15% of jobs and seats in educational institutions reach all groups equitably it is always open to the State to make classification. Coming to the question of inclusion or exclusion Mr. Venugopal submitted that the classification made by the State Legislature will operate only in two areas with regard to public employment and with regard to educational institutions. There are other benefits which are available to Scheduled Castes and the impugned Act will not apply in those areas. Various judgments were cited by both sides on this question which have been referred to by the learned Chief Justice in his judgment. I may not be dealing with all the judgments cited. The judgments referred do not throw much light on the controversy as this controversy is almost first of its nature. There is only one judgment directly on this issue which is from a Full Bench of Punjab and Haryana High Court in Kahwaljit Singh v. State of Punjab, 1980 (3) SLR 34 and it appears that the Government of Punjab had fixed a percentage reserving seats for Scheduled Castes. 50% of this percentage fixed for Scheduled Castes was reserved for one group known as Mazbi Sikhs. It was stated at the Bar that this judgment was challenged in Supreme Court but the Supreme Court did not pass any detailed judgment but dismissed the Special Leave Petition. In this case, however, the Punjab and Haryana High Court did not consider the import of Article 341. Therefore, this judgment is also not of any help to decide the controversy before us.
115. Considering the rival arguments of the learned Counsel for the parties things that emerge are, while the State Government has the power to make Legislation with respect to public services and education, of Scheduled Castes as well but it has no power to categorise Scheduled Castes. Whether the impugned Act only regularises the matters relating to providing of jobs and admissions to the educational institutions to the Scheduled Castes but disturbs the list prepared under Article 341, in my view it disturbs the list prepared by the President of India under Article 341 of the Constitution. This can be illustrated by simple example. If it is supposed that there are 100 seats in an educational institution which are to be filled up, 15 seats would go to the Scheduled Castes and the candidates within the Scheduled castes would be competing each other for 15 seats but by operation of the impugned Act the candidates belonging to the groups now created i.e., ABCD would be competing only within the seats allotted to their group. So, the castes in groups A and D would be competing only for one seat respectively out of 100 seats, groups B and C would be competing for 6 and 7 seats respectively within their groups. Therefore, the candidate belonging to groups A and D are excluded from competing for 14 seats and candidate belonging to groups B and C is excluded from competing for 9 and 8 seats respectively. For the purposes of Constitution and Article 341(2) particularly, this would be a clear case of exclusion. Therefore, it cannot be said that by legislating the impugned Act the State Government has not legislated on the character of certain castes but has only categorised people for the purpose of education and employment. Reference may also be made to the definition of Scheduled Castes as it appears under sub-clause (24) of Article 366 of the Constitution. It defines Scheduled Castes as :
"366. (24) 'Scheduled Castes' means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution."
Under sub-section (25) similar definition has been given to the 'Scheduled Tribes'. While defining certain terms used in the Constitution, Article 366 lays down, Unless the context otherwise requires, the fallowing expressions have the meanings hereby respectively assigned to them." Following this definition, it can be safely said that, when one refers to the Scheduled Castes for the purpose of the Constitution one is not referring to the castes or case system prevalent in the country. Whether a person belongs to a so called low caste or high caste would not be a determining factor for giving benefits to such castes. The benefits could only be given to those castes which are mentioned in the list prepared under Article 341(1) whether those castes arc so called low castes or not. But, this purpose is defeated by the impugned Act itself because the castes have been grouped in four groups purely on the basis of their traditional castes.
116. There is another facet to this controversy. When a list is prepared and a notification is issued under Article 341(1) by the President of India, it must be presumed that all those castes or races which figure in such a list are equals and they have to be treated equally for the purposes of employment and for the purposes of education and this is permissible as Constitution has permitted it. Therefore, within this class the equality has to be ensured but with categorisation into four groups the concept of equality within this group of Scheduled Casles is altogether disturbed and a new classification comes into being which defeats the purpose of Article
341. The problem can be looked at from a different angle also. The State was conscious that in terms of Article 341(2) it could not exclude certain castes from the list of Scheduled Castes mentioned in the notification under Article 341(1). What it could not do directly is sought to be done indirectly and clearly this is not permissible.
117. For these reasons, I am not inclined to accept that there has not been an infringement of Article 341. Accordingly I hold that the impugned Legislation is ultra vires to Article 341 and also there is no power with the State legislature to enact laws identifying grouping or re-grouping of Scheduled Castes.
118. Coming to the next question whether the categorisation made is violative of Articles 15 and 16 of the Constitution of India, it will be profitable to reproduce Articles 15 and 16 of the Constitution.
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth :--(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintain wholly or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this Article shall prevent the Slate from making any special provision for women and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment :--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, and requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4-A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion of any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious of denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
The argument made is that, neither for the purpose of Article 15 nor for the purpose of Article 16 there can be any classification on the basis of caste. Since the impugned Act is purely made on the basis of caste, therefore it is hit by mischief of Articles 15 and 16. On the other hand the learned Counsel for respondents submitted that there is exception to both Articles 15 and 16 vouched in almost similar terms. Sub-clause (4) was added to Article 15 by first amendment of 1951 and sub-clause (4) was part of the Article 16 from the beginning and (4-A) was added by 77th amendment, therefore, the impugned Legislation is not hit by mischief. Sub-clause (4) of Article 15 states that nothing in Article 15 shall prevent State from making any special provision for advancement of any socially and educationally Backward Class of citizens or of Scheduled Castes and Scheduled Tribes. The point for consideration is whether the impugned Legislation has been made as a special provision for advancement of Scheduled Castes. Similar provision exists under clause (4-A) of Article 16. Sub-clause (4) of Article 16 also lays down that State can make provisions for reservation of appointment or posts for any Backward Class of citizens which according to the State are not adequately represented in the services under the State. As has been seen hereinabove the definition of 'Scheduled Caste' is already given. Scheduled Castes are those castes which are mentioned in notification issued by the President of India. Clearly and unambiguously the impugned Act does not address that group of people. Section 3 of the impugned Act lays down :
"3. Rationalisation of Reservation :--In order to secure social justice and equality of opportunity and to ensure fair just, reasonable, rational and equitable enjoyment of the benefits of the rule of reservation by all the Scheduled Castes with respect to the State of Andhra Pradesh, subject to availability of eligible candidates-
(a) One per cent of appointments or posts or seats so reserved under the rule of reservation for the Scheduled Castes shall be reserved to the persons belonging to the following Scheduled Castes, which shall be referred to as Scheduled Castes-A, namely :
Dome, Dombara, Paidi, Pano
Ghasi, Haddi, Relli, Chachandi
Paky, Moti, Thoti
(b) Seven per cent of appointments or posts or seats so reserved under the rule of reservation for the Scheduled Castes shall be reserved to the persons belonging to the following Scheduled Castes, which shall be referred to as Scheduled Castes-B, namely :
Beda Jangam, Budaga Jangam
Chamar, Mochi, Muchi
Madiga Dasu, Mashteen
(c) Six per cent of appointments or posts or seats so reserved under the rule of reservation for the Scheduled Castes shall be reserved to the persons belonging to the following Scheduled Castes, which shall be referred to as Scheduled Castes-C, namely-
Ellamalawar, Yellammala Wandlu Gosangi
Madasi Kuruva, Madari Kuruva
Mala Sale, Netkani
(d) One per cent of appointments or posts or seats so reserved under the rule of reservation for the Scheduled Castes shall be reserved to the persons belonging to the following Scheduled Castes, which shall be referred to as Scheduled Castes-D, namely-
Thus, four groups are created being ABCD purely on the basis of caste in the traditional sense of the word. Therefore, it is not a Legislation addressed to Scheduled Castes as envisaged under Constitution. It is purely a Legislation which creates groups on the basis of castes. The one thing which could connect this exercise to the Presidential notification is that, all castes in these four groups are also mentioned in that notification but that would not mean that these groups which have been grouped together are Scheduled Castes. Therefore, this classification is a classification based on castes which is prohibited by Articles 15 and 16 of the Constitution of India and any classification based on caste alone is ultra vires. Once a group is included in the notification issued by President of India under Article 341 that group attains the status of Scheduled Caste whether traditionally it belongs to a low caste or a high class. In this connection the status of the Scheduled Castes and Scheduled Tribes in terms of Article 341 was elaborately discussed by seven Judges of the Supreme Court in State of Kerala v. N.M. Thomas, . Majority judgment was drafted by
Chief Justice A.N. Ray as His Lordship then was. In Para 40 of the majority judgment the Supreme Court held:
"40. The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them. Article 46 contains a Directive Principle of State policy - fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any social injustice and exploitation. Article 335 enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes to the services and posts in the Union and the States shall be taken into consideration. Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution, Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories. Article 342 contains provision for similar notification in respect of Scheduled Tribes. Article 366(24) and (25), defines Scheduled Castes and Scheduled Tribes. The classification by the impugned rule and the orders is with a view to securing adequate representation to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services."
The paragraph reproduced hereinabove also clearly mentions that the classification under Article 341 is creating a group of people known as Scheduled Castes. In Para 43 of the judgment the Supreme Court while relying on Bhaiyalal v. Harikishan Singh, () held : .
"43. Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh, , this Court held that an enquiry whether the
appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer."
Justice V.R. Krishna Iyer in a separate judgment being part of the majority judgment held:
"760. We may clear the clog of Article 16(2) as it stems from a confusion about caste in the terminology of Scheduled Castes and Scheduled Tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backward-most social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-article. The discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion. The following provisions of the Income Tax Act, 1961 are illustrative of this principle;
"13. Section 11 not to apply in certain cases (1)( b) :--Nothing contained in Section 11 or Section 12 shall operate so as to exclude from the total income of the previous year of the person in receipt thereof.
(b) in the case of a trust for charitable purposes or a charitable institution created or established after the commencement of this Act, any income thereof if the trust or institution is created or established for the benefit of any particular religious community or caste;
X X X X
Explanation 2 .---A trust or institution created or established for the benefit of Scheduled Castes, Backward Classes, Scheduled Tribes or women and children shall not be deemed to be a trust or institution created or established for the benefit of a religious community or caste within the meaning of clause (b) of sub-section (1)."
Justice K.K. Mathew whose judgment was also a majority view stated;
"107. The word 'caste' in Article 16(2) does not include 'Scheduled Caste'. The definition of 'Scheduled Castes' in Article 366(24) 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 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).
Going by the judgment of the seven Judges, the Supreme Court was almost unanimous on the interpretation of Articles 341 and 342 that the Scheduled Castes and Scheduled Tribes are no castes in the Hindu fold but an amalgam of castes, faces, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. Therefore, it follows that, castes which find a mention in the notification prepared under Article 341 are mixed bag of different groups of people and those are the people for whom exceptions arc created under Articles 15 and 16 and under other Articles of the Constitution. Once these groups or castes are brought out of that list for any purpose whatsoever, they remain simply castes in the traditional sense of the word and Legislation on the basis of caste is prohibited under Articles 15 and 16 of the Constitution of India. There are catena of authorities and even the bare language of Articles 15 and 16 is such that no authority is needed to be pressed into service to come to a conclusion that if there is a classification purely based on caste that would not be permissible. Even then, I would refer to a Constitutional Bench Judgment of Supreme Court reported in Triloki Nath v. State of J and K, AIR 1969 SC 1. Para 4 of the judgment is reproduced:
"Article 16 in the first instance by clause (2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth, residence and permits an exception to be made in the matter of reservation in favour of Backward Classes of citizens. The expression "Backward Class" is not used as synonymous with "Backward Caste" or "Backward Community". The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a Backward Class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression "class" means a homogenous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race religion and the like. But for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution."
119. For these reasons, I hold that, while categorising four groups of Scheduled Castes into ABCD the State has in fact brought these Scheduled Castes out of the Presidential notification and made a fresh classification which is solely based on the caste and is not permissible. Therefore, the impugned Act is violative of Articles 15 and 16 of the Constitution of India.
120. Besides the questions I had framed, there is another point which I want to discuss before parting with the case. When the Legislation would be put into operation at the ground the reservation would create illusory rights with regard to certain groups. Before going to show that it is creating illusory rights it would be pertinent to refer to sub-clauses (a)(b)(c) and (d) of Section 3 of the impugned Act. Sub-clauses (a)(b)(c) and (d) laid down that certain percentage of seats reserved for Scheduled Castes would be reserved for ABCD. For 'A' it is 1% of the total reservation for Scheduled Castes, for 'B' it is 7% of total reservation in favour of Scheduled Castes, for 'C' it is 6% and for 'D' it is 1%. The total percentage being 15% which is reserved in favour of Scheduled Castes. The reservation is notified for public employment and admission to educational institutions. When there are 100 posts available then group 'A' and 'D' will get one job each, when there are 100 seats in an educational institution then the group 'A' and 'D' will get one seat each. In specialities and super specialities in education it is common knowledge that the seats are not even in dozens. I do not know if there are 10 seats how are they going to be distributed and what benefits can be extended to group 'A' and 'D' particularly. One of the Counsels appearing had drawn our attention to the Rules also framed under the Act. Rule 4 has been pointed out which lays down :
"4. Reservation for women :--The reservation for women to an extent of 33-1/3% provided in public services in each roster cycle of 100 points fixed shall be adjusted by allotting two seats for Scheduled Castes-B and two seats to Scheduled Castes-C and one seat alternately for Scheduled Castes-A and one seat to Scheduled Castes-D as specified in Section 3 of the Act."
Out of 100 seats one seat alternatively shall go to the Scheduled Castes-C and Scheduled Castes-A women because there is a reservation of 33-1/3% in favour of women. This completely excludes men. The roaster point fixed for Scheduled Castes 'A' and !D' will alternately be given to women belonging to Scheduled Castes 'A' and 'D', therefore men get excluded. So, it becomes exclusion of a particular Scheduled Caste or group.
121. For the reasons given hereinabove, 1 am of the view that Section 3 of the impugned Act is ultra vires. The Act cannot survive without Section 3 therefore, the whole Act cannot survive. Accordingly, the writ petitions are allowed. The impugned Act is quashed.
In view of the majority judgment, the writ petitions are liable to be dismissed, and they are accordingly dismissed with no order as to costs.