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TMI Blog2004 (11) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... y are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List. The primary object of the impugned enactment is to create groups of sub-castes in the List of Scheduled Castes applicable to the State and, in our opinion, apportionment of the reservation is only secondary and consequential. Whatever may be the object of this sub- classification and apportionment of the reservation, we think the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. Therefore, we are of the opinion that in pith and substance the enactment is not a law governing the field of education or the field of State Public Services. Thus the impugned legislation apart from being beyond the legislative competence of the State is also violative of Article 14 of the Constitution and hence is liable to declared as ultra vires the Constitution. Appeal allowed & impugned Act is declared as ultra vires the Constitution.. - Appeal (civil) 6758 of 2000 - - - Dated:- 5-11-2004 - HEGDE, N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stes and Scheduled Tribes Amendment Act, 1976. During the pendency of the said writ petitions, the State Government replaced the Ordinance with the Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000 (A.P. Act 20 of 2000) ('the Act') on 2.5.2000. The impugned Act was on the same lines as the Ordinance No. 9 of 1999. Consequently the Act was also challenged and as stated above the petition being dismissed these appeals are now before us. Mr. P.P. Rao, learned senior counsel led the argument on behalf of the appellants, his arguments were supported and supplemented by Mr. P.S. Mishra, learned senior counsel, Mr. Shiv Pujan Singh and Mr. T. Raja, the other learned counsel appearing for the appellants. The contentions advanced on behalf of the appellants are that the State Legislature has no competence to make any law in regard to bifurcation of the Presidential List of Scheduled Castes prepared under Article 341 (1) of the Constitution, therefore the impugned legislation being one solely meant for sub-dividing or sub-grouping the castes enumerated in the Presidential List, the same suffers from lack of legislative competence. It is further submitted that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument is that the authority to decide to provide reservation or not, and if yes, then the quantum of reservation to be provided is the exclusive privilege of the State. In that process the State will have to keep in mind the extent of backwardness of a group be it other backward class, Scheduled Caste or Scheduled Tribe. Therefore, having found a class of persons within the Scheduled Castes as having been deprived of such benefits the State has the exclusive legislative power to make such grouping for reservation under Articles 15(4) and 16 (4) of the Constitution subject, of course, to Articles 245-246 of the Constitution. Since in the instant case there is no allegation that there has been any violation of Articles 245-246, the argument of lack of legislative competence advanced on behalf of the appellant should fail. He further submitted that there is an obligation on the State under Article 16(4) to identify the group of backward class of citizens which in the opinion of the State is not adequately represented in the service under the State and make reservation in their favour for such appointments and under Article 15(4) of the Constitution there is an obligation on the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled Castes get excluded from the benefit of reservation made by the State that by itself would not take the caste out of the List of Scheduled Castes because they will continue to be entitled to other benefits that are being provided by the State to the Scheduled Castes. In regard to manner in which the constitutional provisions should be interpreted, reliance was placed in the case of Her Majesty the Queen vs. Burah 1878 Vol. III 889 contending that while interpreting the constitutional provisions the court should try to give purposive interpretation rather than restricted meaning. From the pleadings on record and arguments addressed before us three questions arise for our consideration:- (1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India? (2) Whether the impugned enactment is constitutionally invalid for lack of legislation competence? (3) Whether the impugned enactment creates sub-classification or micro classification of Scheduled Castes so as to violate Article 14 of the Constitution of India? We will first consider the effect of Article 341 of the Constitution and examine whether the State could, in the guise of providing res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Article in the following words : - "The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly , he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President." (emphasis supplied) (CAD, Vol. 9, Pg. 1637) A discussion that ensued in regard to the framing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs; and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed". (Emphasis supplied) (CAD, Vol.9, Pg. 1639) After the above discussion it is seen that this amendment came to be defeated and the original draft Article was approved by the Constituent Assembly which was renumbered as Article 341 in the present Constitution. This part of the Constituent Assembly Debate coupled with the fact that Article 341 makes it clear that the State Legislature or its executive has no power of "disturbing" (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. It is also clear from the Articles in part XVI of the Constitution that the power of the State to deal with the Scheduled Castes list is totally absent except to bear in mind the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of castes included in the Presidential List had this to say :- "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". (para 135) (Emphasis supplied) According to Justice Krishna Iyer, though there are no castes, races, groups, tribes, communities or parts thereof in Hinduism, the President on investigation having found some of the communities within amalgam as being lowliest and in need of massive State aid included them in one class called the Scheduled Castes. The sequitor thereof is that Scheduled Castes are one class for the purposes of the Constitution. Justice Fazal Ali in the very same case referring to caste enumerated in the list of Scheduled Caste stated thus in paragraph 169 :- "Thus in view of these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Entry 41 of List II and Entry 25 of List III of the VII Schedule. One of the proven methods of examining the legislative competence of an enactment is by the application of doctrine of pith and substance. This doctrine is applied when the legislative competence of a Legislature with regard to a particular enactment is challenged with reference to the Entries in various lists and if there is a challenge to the legislative competence the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. (See : Kartar Singh vs. State of Punjab 1994 (3) SCC 569). In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the State under the constitutional scheme. Bearing in mind the above principle of the doctrine of pith and substance, if we examine the impugned Act then we notice that the Preamble to the Act says that it is an Act to provide for rationalisation of reservations to the Scheduled Castes in the State of Andhra Pradesh to ensure their unif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to reserve certain seats in educational institutions under Article 15(4) and in public services of the State under Article 16(4). That part of its constitutional obligation, as stated above, has already been fulfilled by the State. Having done so, it is not open to the State to sub-classify a class already recognised by the Constitution and allot a portion of the already reserved quota amongst the State created sub-class within the List of Scheduled Castes. From the discussion herein above, it is clear that the primary object of the impugned enactment is to create groups of sub-castes in the List of Scheduled Castes applicable to the State and, in our opinion, apportionment of the reservation is only secondary and consequential. Whatever may be the object of this sub- classification and apportionment of the reservation, we think the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III. Therefore, we are of the opinion that in pith and substance the enactment is not a law governing the field of education or the field of State Public Services. The la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. 51. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity? 57. Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l achievement of equality as permissible State action, viewed as an amplification of Art. 16 (1) or as an exception to it. The same observation will hold good for the sub-articles of Article 15 We have already held that the members of Scheduled Castes form a class by themselves and any further sub- classification would be impermissible while applying the principle of reservation. On behalf of the respondents, it was pointed out that in Indra Sahani's case(supra), the court had permitted sub- classification of other backward communities, as backward and more backward based on their comparative under development, therefore, the similar classification amongst the class enumerated in the Presidential List of Scheduled Castes is permissible in law. We do not think the principles laid down in Indra Sahani's case for sub-classification of other backward classes can be applied as a precedent law for sub- classification or sub-grouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that sub-division of other backward classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason, i.e. Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalizing the reservation to the Scheduled Castes the constitutional mandate of Articles 14,15 and 16 could be violated. Reservation must be considered from the social objective angle, having regard to the constitutional scheme, and not as a political issue and, thus, adequate representation must be given to the members of the Scheduled Castes as a group and not to two or more groups of persons or members of castes. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India, a further classification by way of micro classification is not permissible. Such classification of the members of different classes of people based on their res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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