1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.3123 of 2020
DR. JAISHRI LAXMANRAO PATIL ...APPELLANT(S)
VERSUS
THE CHIEF MINISTER & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3124 of 2020
SANJEET SHUKLA ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3133 of 2020
KRISHNAJI DATTATRAYA MORE ...APPELLANT(S)
VERSUS
DR. JAISHRI LAXMANRAO & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3134 of 2020
MADHUSHRI NANDKISHOR
JETHLIYA & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
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WITH
CIVIL APPEAL NO.3131 of 2020
DEVENDRA ROOPCHAND JAIN & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ANR. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3129 of 2020
KAMALAKAR SUKHDEO DARODE @ DARWADE ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.915 of 2020
DESHMUKH ESHA GIRISH ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.504 of 2020
ADITYA BIMAL SHASTRI & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
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WRIT PETITION (C) NO.914 of 2020
DR. AMITA LALIT GUGALE & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3127 of 2020
SAGAR DAMODAR SARDA & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3126 of 2020
MOHAMMAD SAYEED NOORI
SHAFI AHMED & ORS. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3125 of 2020
DR. UDAY GOVINDRAJ DHOPLE & ANR. ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ANR. ...RESPONDENT(S)
WITH
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CIVIL APPEAL NO.3128 of 2020
VISHNUJI P. MISHRA ...APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.3130 of 2020
RUCHITA JITEN KULKARNI & ORS. ...APPELLANT(S)
VERSUS
THE CHIEF MINISTER & ANR. ...RESPONDENT(S)
WITH
WRIT PETITION (C) NO.938 of 2020
SHIV SANGRAM & ANR. ...APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. ...RESPONDENT(S)
J U D G M E N T
Ashok Bhushan,J.(for himself and S. Abdul Nazeer,
J.), L.Nageswara Rao,J. Hemant Gupta,J. and S.
Ravindra Bhat have also concurred on Question Nos.
1, 2 and 3.
This Constitution Bench has been constituted to
consider questions of seminal importance relating to
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contours and extent of special provisions for the
advancement of socially and educationally backward
class (SEBC) of citizens as contemplated under
Article 15(4) and contours and extent of provisions
of reservation in favour of the backward class
citizens under Article 16(4) of the Constitution of
India. The challenge/interpretation of the
Constitution (102nd Amendment) Act, 2018 is also up
for consideration.
2. All the above appeals have been filed
challenging the common judgment of the High Court
dated 27.06.2019 by which judgment several batches
of writ petitions have been decided by the High
Court. Different writ petitions were filed before
the High Court between the years 2014 to 2019, apart
from other challenges following were under
challenge:
The Ordinance No. XIII of 2014 dated
09.07.2014 providing 16% reservation to Maratha.
The Ordinance No.XIV of 2014 dated 09.07.2014
providing for 5% reservation to 52 Muslim
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Communities. The Maharashtra State Reservation
(of seats for appointment in educational
institutions in the State and for appointment or
posts for public services under the State) for
educationally and socially backward category
(ESBC) Act, 2014 and Maharashtra State Socially
and Educationally Backward Class (SEBC)
(Admission in Educational Institutions in the
State and for posts for appointments in public
service and posts) Reservation Act, 2018
(hereinafter referred to as the “Act, 2018”).
3. The High Court by the impugned judgment upheld
Act, 2018, except to the extent of quantum of
reservation provided under Section 4(1)(a), 4(1)(b)
over and above 12% and 13% respectively as
recommended by Maharashtra State Backward Class
Commission. The writ petitions challenging the
Ordinance XIII and XIV of 2014 as well as Act, 2014
were dismissed as having become infructuous. Few
writ petitions were also allowed and few detagged
and other writ petitions have been disposed of.
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4. Writ petition under Article 32 of the
Constitution of India, namely, Writ Petition(C) No.
938 of 2020 (Shiv Sangram & Anr. vs. Union of India
& Anr.) has been filed questioning the Constitution
(102nd Amendment) Act, 2018.
5. While issuing notice on 12.07.2019, a threeJudge Bench of this Court directed that the action
taken pursuant to the impugned judgment of the High
Court shall be subject to the result of the SLP. It
was made clear that the judgment of the High Court
and the reservation in question shall not have any
retrospective effect. The three-Judge Bench after
hearing the parties, on 09.09.2020, while granting
leave passed following order:
“17. In view of the foregoing, we pass the
following orders: -
(A) As the interpretation of the
provisions inserted by the Constitution
(102nd Amendment) Act, 2018 is a
substantial question of law as to the
interpretation of the Constitution of
India, these Appeals are referred to a
larger Bench. These matters shall be
placed before Hon’ble The Chief Justice of
India for suitable orders.
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(B) Admissions to educational institutions
for the academic year 2020-21 shall be
made without reference to the reservations
provided in the Act. We make it clear that
the Admissions made to Post-Graduate
Medical Courses shall not be altered.
(C) Appointments to public services and
posts under the Government shall be made
without implementing the reservation as
provided in the Act.
Liberty to mention for early hearing. “
6. A Three-Judge Bench referring the matter to
Constitution Bench has referred all the appeals and
the order contemplated that the matter shall be
placed before the Chief Justice for the suitable
orders. Referring order although mention that the
interpretation of Constitution (One Hundred and
Second Amendment) Act, 2018 is substantial question
of law as to the interpretation of the Constitution
but the reference was not confined to the above
question. The learned counsel for the parties have
made elaborate submissions in all the appeals as
well as the writ petitions filed under Article 32.
Elaborate submissions were addressed on the impugned
judgment of the High Court. We thus have proceeded
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to hear the parties and decide all the appeals and
writ petitions finally.
7. After appeals being referred to a larger Bench
by order dated 09.09.2020, Hon’ble the Chief Justice
of India has constituted this Constitution Bench
before whom these appeals and writ petitions are
listed. This Constitution Bench after hearing
learned counsel for the parties passed an order on
08.03.2021 issuing notice to all the States. The
Bench by order further directed the States to file
brief notes of their submissions.
8. The hearing commenced on 15.03.2021 and
concluded on 26.03.2021. At this stage, we may
indicate the headings in which we have divided to
comprehensively understand the issues, submissions,
our consideration, our conclusion and operative part
of the judgment. The following are the heads of
subjects under which we have treated the entire
batch of cases:
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(1) Questions Framed.
(2) Background Facts.
(3) Points for consideration before the High
Court.
(4) Submissions of the parties.
(5) The 10 grounds urged for referring Indra
Sawhney judgment to a larger Bench.
(6) The status of Reservation at the time of
Enactment of Act, 2018.
(7) Consideration of 10 grounds urged for
revisiting and referring the judgment of
Indra Sawhney to a larger Bench.
(8) Principle of Stare Decisis.
(9) Whether Gaikwad Commission Report has made
out a case of extra-ordinary situation for
grant of separate reservation to Maratha
community exceeding 50% limit ?
(10) Whether the Act, 2018 as amended in 2019
granting separate reservation for Maratha
community by exceeding the ceiling limit of
50% makes out exceptional circumstances as
per the judgment of Indra Sawhney ?
(11) Gaikwad Commission Report – a scrutiny.
(12) Whether the data of Marathas in public
employment as found out by Gaikwad Commission
makes out cases for grant of reservation
under Article 16(4) of the Constitution of
India to Maratha community ?
(13) Social and Educational Backwardness of
Maratha Community.
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(14) The Constitution (102nd Amendment) Act, 2018.
(15) Conclusions.
(16) Order.
9. On 08.03.2021 the six questions which were
proposed to be considered were enumerated in the
following manner:
(1)Questions Framed.
“1. Whether judgment in case of Indra Sawhney
v. Union of India [1992 Suppl. (3) SCC 217]
needs to be referred to larger bench or
require re-look by the larger bench in the
light of subsequent Constitutional Amendments,
judgments and changed social dynamics of the
society etc.?
2. Whether Maharashtra State Reservation (of
seats for admission in educational
institutions in the State and for appointments
in the public services and posts under the
State) for Socially and Educationally Backward
Classes (SEBC) Act, 2018 as amended in 2019
granting 12% and 13% reservation for Maratha
community in addition to 50% social
reservation is covered by exceptional
circumstances as contemplated by Constitution
Bench in Indra Sawhney’s case?
3. Whether the State Government on the
strength of Maharashtra State Backward
Commission Report chaired by M.C. Gaikwad has
made 12 out a case of existence of
extraordinary situation and exceptional
circumstances in the State to fall within the
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exception carved out in the judgment of Indra
Sawhney?
4. Whether the Constitution One Hundred and
Second Amendment deprives the State
Legislature of its power to enact a
legislation determining the socially and
economically backward classes and conferring
the benefits on the said community under its
enabling power?
5. Whether, States power to legislate in
relation to “any backward class” under
Articles 15(4) and 16(4) is anyway abridged by
Article 342(A) read with Article 366(26c) of
the Constitution of India?
6. Whether, Article 342A of the Constitution
abrogates States power to legislate or
classify in respect of “any backward class of
citizens” and thereby affects the federal
policy / structure of the Constitution of
India?”
(2)Background Facts.
10. We need to first notice certain background facts
relevant for the present case and details of various
writ petitions filed in the High Court. The
“Maratha” is a Hindu community which mainly resides
in the State of Maharashtra. After the enforcement
of the Constitution of India, the President of India
in exercise of power under Article 240 appointed a
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Commission to investigate the conditions of all such
socially and educationally backward classes, known
as Kaka Kalelkar Commission, the first National
Commission for backward classes. The Kaka Kalelkar
Commission submitted its report on 30.03.1955 where
it observed - Vol.I “In Maharashtra, besides the
Brahman it is the Maratha who claimed to be the
ruling community in the villages, and the Prabhu,
that dominated all other communities”. Thus, the
first Backward Classes Commission did not find
Maratha as other backward class community in the
State of Bombay.
11. On 01.11.1956, a bilingual State of Bombay under
the State Re-organisation Act was formed with the
addition of 8 districts of Vidharbha (Madhya Bharat)
and 5 districts of Marathwada (Hyderabad State). On
14.08.1961 through Ministry of Home Affairs while
declining to act on the Kaka Kalelkar Commission
Report informed all the State Governments that they
had discretion to choose their own criteria in
defining backward classes and it would be open for
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State Governments to draw its own list of other
backward classes. On 14.11.1961 acting on the
directives of the Government of India, the
Government of Maharashtra appointed B.D.Deshmukh
Committee for defining OBC and to take steps for
their developments. The B.D. Deshmukh Committee
submitted its report on OBC to the Government of
Maharashtra on 11.01.1964. It did not find Maratha
as backward class. On 13.08.1967, the State of
Maharashtra issued unified list of OBC consisting of
180 castes for the entire State which did not
include Maratha. At serial No.87, Kunbi was shown.
The President of India on 31.12.1979 appointed the
second National Backward Classes Commission within
the meaning of Article 340 of the Constitution
popularly known as Mandal Commission. In the report
of second National Backward Classes Commission with
regard to the State of Maharashtra while
distributing percentage of Indian population by
castes and religious groups, estimated other
backward classes as 43.70 per cent, whereas in the
category of forward Hindu castes and communities the
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Marathas were included with 2.2 per cent. The
population of other backward classes of remaining
Hindu Castes groups was estimated as 43.7% and
backward non-Hindu classes as 8.40 per cent and
total approximate backward class of Hindu including
non-Hindu castes was estimated as 52%. At page 56 of
volume of report under heading percentage of the
castes and religious groups under sub-heading
forward Hindu castes and communities following table
given:
III. Forward Hindu Castes & Communities
S.NO. Group Name Percentage of
total population
C-1 Brahmins (including Bhumihars 5.52
C-2 Rajputs 3.90
C-3 Marathas 2.21
C-4 Jats 1.00
C-5 Vaishyas-Bania, etc. 1.88
C-6 Kayasthas 1.07
C-7 Other forward Hindu
castes/groups
2.00
Total of ‘C’ 17.58
12. The Maratha, thus, was included in forward Hindu
caste, by the second National Backward Classes
Commission.
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13. A request was received by the National
Commission for Backward Classes for inclusion of
“Maratha” in the Central List of Backward Classes
for Maharashtra along with Kunbi as backward class
of Maharashtra. The National Commission for Backward
Classes conducted public hearing at Mumbai and after
hearing Government officials, Chairman of the
Maharashtra State Backward Classes Commission
submitted a detailed report dated 25.02.1980 holding
that Maratha is not a socially and educationally
backward class community but a socially advanced and
prestigious community. It is useful to refer to
paragraph 22 of the report (last paragraph) which is
to the following effect:
“22.In view of the above facts and
position, the Bench finds that Maratha is
not a socially backward community but is a
socially advanced and prestigious
community and therefore the Request for
Inclusion of “Maratha” in the Central List
of Backward Classes for Maharashtra along
with Kunbi should be rejected. In fact,
“Maratha” does not merit inclusion in the
Central List of Backward Classes for
Maharashtra either jointly with “Kunbi” or
under a separate entry of its own.”
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14. On 16.11.1992 a nine-Judge Constitution Bench of
this Court delivered a judgment in Indra Sawhney v.
Union of India [1992 Suppl. (3) SCC 217]
(hereinafter referred to as “Indra Sawhney’s case”),
apart from laying down law pertaining to principle
of reservation under Constitution this Court also
issued directions to the Government of India, each
of the State Governments to constitute a permanent
body for entertaining, examining and recommending
upon on requests for inclusion and complaints of
over inclusion of other backward classes of
citizens.
15. The Maharashtra State OBC Commission headed by
Justice R.M. Bapat submitted a report on 25.07.2008
conclusively recording that Maratha could not be
included in the OBC list because it is a forward
caste. The report in the end concluded:
“It was agreed with majority that the
resolution, stating that it would not be
appropriate from social justice
perspective to include Maratha community
in the 'Other Backward Class' category,
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has been passed with majority in the
commission's meeting convened in Pune on
25/07/2008. And it was agreed with
majority that such a recommendation should
be sent to the government. The opposite
opinion in relation to this has been
separately recorded and it has been
attached herewith.”
16. The Maharashtra State Other Backward Classes
Commission on 03.06.2013 rejected the request of the
State Government to review the findings recorded by
the State OBC Commission in its report dated
25.07.2008 holding the Maratha caste as forward
community. Despite the existence of statutory State
OBC Commission, the Government of Maharashtra
appointed a special Committee headed by a sitting
Minister, Shri Narayan Rane to submit a report on
the Maratha Caste. On 26.02.2014 Rane Committee
submitted its report to the State and recommended
that for the Maratha special reservation under
Article 15(4) and 16(4) of the Constitution of India
be provided. On 09.07.2014 Maharashtra Ordinance
No.XIII of 2014 was promulgated providing for 16%
reservation in favour of the Maratha caste. Writ
Petition No.2053 of 2014 (Shri Sanjeet Shukla vs.
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State of Maharashtra) along with other writ
petitions were filed where two separate Ordinances
promulgated on 09.07.2014 providing for reservation
for seats for admissions in aided and non-aided
institutions of the State and appointment to the
post to public service under the State a separate
16% reservation in which Maratha was included, was
challenged. The Government resolution dated
15.07.2014 specifying the Maratha community as the
community socially and economically backward
entitled for 16% reservation was challenged.
17. The Division Bench of the High Court by an
elaborate order considering the relevant materials
including the reports of National Backward Classes
Commission and State Backward Classes Commission and
other materials on record stayed the operation of
Maharashtra Ordinance No.XIII of 2014 and Resolution
dated 15.07.2014. However, it was directed that in
case any admission has already been granted in
educational institution till that date based on
Ordinance No.XIII of 2014 the same shall not be
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disturbed and the Students shall allow to complete
their respective courses.
18. The SLP(C)Nos.34335 and 34336 were filed in this
Court challenging interim order dated 14.11.2014
which SLPs were not entertained by this Court with
request to decide the writ petitions at an early
date.
19. The Maharashtra Legislature passed the Act, 2014
on 23.12.2014 which received the assent of the
Governor on 09.01.2015, and was deemed to have come
into force with effect from 09.07.2014. In Writ
Petition (C)No. 3151 of 2014 and other connected
matters the Division Bench of the Bombay High Court
passed an order on 07.04.2015 staying the
implementation of the provisions of the Act 1 of
2015 providing 16% reservation to Maratha. The
interim order, however, directed that appointment to
16% reservation for Maratha under Act 1 of 2015 in
the advertisements already issued shall be made from
open merit candidates till final disposal of the
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writ petition and appointment shall be made subject
to the outcome of the writ petition.
20. On 30.06.2017 the State Government made a
reference to State Backward Classes Commission to
submit a report on the facts and the observation
made in the reference to the Government regarding
Maratha. On 02.11.2017 Justice M.G. Gaikwad came to
be appointed as Chairman of State Backward Classes
Commission. On 14.08.2018 the National Commission
for Backward Classes (Repeal) Act was passed
repealing the National Commission for Backward
Classes Act, 1993. On 15.08.2018 the Constitution
(102nd Amendment) Act, 2018 was brought into force
adding Article 338B, 342A and 366(26C). Article 338,
sub-clause (10) was also amended. On 15.11.2018, the
State Backward Classes Commission submitted its
report on social and educational and economic status
of Maratha. The Commission recommended for declaring
Maratha caste of citizens as social and economic
backward class of citizens with inadequate
representation in services. The Commission also
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opined that looking to the exceptional circumstances
and extraordinary situations on declaring Maratha
class as SEBC and their consequential entitlement to
the reservation benefits, the Government may take
decision within the constitutional provisions. The
Government after receipt of the above report enacted
Act, 2018 which was published on 30.11.2018 and came
into force from that day. PIL No.175 of 2018 (Dr.
Jaishri Laxmanrao Patil Vs. The Chief Minister and
Ors.) and other writ petitions and PILs were filed
challenging the Act, 2018. The High Court in the
impugned judgment has noticed the pleadings in three
writ petitions being PIL No.175 of 2018 giving rise
to C.A.No.3123 of 2020, W.P.(LD.) No.4100 of 2018
(Sanjeet Shukla vs. The State of Maharashtra) giving
rise to C.A.No.3124 of 2020 and PIL No.4128 of 2018
(Dr. Uday Govindraj Dhople & Anr. vs. The State of
Maharashtra & Anr.) giving rise to C.A.No.3125 of
2020. Before us in C.A.No.3123 of 2020 and
C.A.No.3124 of 2020 most of the volumes and written
submissions have been filed. It shall be sufficient
to notice these three Civil Appeals, apart from the
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details of few other cases which shall be noted
hereinafter.
C.A.No.3123 of 2020 (Dr. Jaishri Laxmanrao Patil Vs.
The Chief Minister and Ors.)
21. This appeal has been filed against the judgment
of the High Court in PIL NO.175 of 2018 filed by Dr.
Jaishri Laxmanrao Patil questioning the 16% separate
reservation given to Maratha under Act, 2018
published on 30.11.2018. The writ petitioner pleaded
that providing reservation to Maratha community to
the extent of 16% amounts to breach of Article 14,
16 and 21 of the Constitution of India and also
bypassing ceiling of reservation of 50%. Referring
to judgment of this Court in Indra Sawhney’s case
and law laid down in Mr. Nagraj and others vs. Union
of India & Ors. (2006) 8 SCC 212, it was pleaded
that the reservation is not permissible beyond 50%.
Various grounds had been taken in the writ petition
questioning the 16% reservation for Maratha. During
the pendency of the writ petition subsequent events
occurred resulting into enlarging the scope of the
petition, in the writ petition several applications
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for intervention and impleadment have been filed
seeking to justify the Act, 2018. The High Court
allowed the applications for intervention and they
were directed to be added as party respondents.
C.A.No.3124 of 2020 (Sanjeet Shukla vs. The State of
Maharashtra)
22. This appeal arises out of the judgment in Writ
Petition (C) No.4100 of 2018. In the writ petition
an extensive challenge was made to the Backward
Classes Commission report which was basis for Act,
2018. The same writ petitioner i.e. Sanjeet Shukla
has earlier filed Writ Petition (C) No.3151 of 2014
challenging the Ordinance promulgated by the
Government of Maharashtra in the year 2014. The
interim order dated 14.11.2014 was passed in the
Writ Petition No.3151 of 2014. The petitioner has
also pleaded that the Act, 2014 was also stayed by
the High court on 07.04.2015. It was pleaded that
Maratha community is a powerful community in the
State of Maharashtra with proved dominance in
Government Service, Co-operatives, Sugar Cooperatives etc. reference of earlier National
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Backward Class Commission and State Backward Class
Commission was made wherein the claim of Maratha to
be included in OBC was rejected. The comments have
also been made on the aggressive tactics adopted by
the Maratha community by agitation, dharna for the
grant of reservation to them. It was also pleaded
that Act, 2018 is passed without complying with the
requirement of Constitution (102nd Amendment) Act,
2018. In the writ petition following prayers have
been made:
“(a) Issue a writ, order or direction in
the nature of certiorari or any other
appropriate writ, order or direction of
that nature thereby quashing and striking
down Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018, as being invalid and violative
of the provisions of the Constitution of
India;
(b) During pendency of the petition, this
Hon'ble Court be pleased to say to the
operation, implementation and effect of
the Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;
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b1. during pendency of the present
petition, this Hon'ble Court be pleased
to issue an appropriate writ, order or
direction that no appointments should be
made under Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;
b2. during pendency of the present
petition, this Hon'ble Court be pleased
to issue an appropriate writ, order or
direction of that nature that no posts
should be kept vacant by reference to the
Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;
b3. during pendency of the present
petition, this Hon'ble Court be pleased to
issue an appropriate writ, order or
direction of that nature that no
advertisements for vacancies should be
placed reserving any posts under
Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;
b4. during pendency of the present
petition, this Hon'ble Court be pleased to
issue an appropriate writ, order or
direction of that nature that no admission
in educational institutions should be made
27
under reserved category as per
Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;
b5. during pendency Court be pleased to
issue an appropriate writ, order or
direction of that nature that no Caste
Certificates should be issued under
Maharashtra State Socially and
Educationally Backward (SEBC) Class
(Admission in Educational Institutions in
the State and for posts for appointments
in public service and posts) Reservation
Act, 2018;”
C.A.No.3125 of 2020 (Dr. Uday Govindraj Dhople &
Anr. vs. State of Maharashtra & Anr.)
23. This appeal arises out of Writ Petition
(LD.)No.4128 of 2018 filed by Dr. Udai Govindraj
Dhople. The writ petition was filed in
representative capacity on behalf of the similarly
situated medical students/medical aspirants who are
adversely affected by the Act, 2018.
24. The writ petitioners seek quashing of Act, 2018
and in the alternative quashing and setting aside
28
Sections 2(j), 3(2), 3(4), 4,5,9(2),10 and 12 of the
Act, 2018. The petitioner pleads that reservation
system has become a tool of convenience for the
Government and politicians in power for their vote
bank. It is further pleaded that Maratha was never
treated as backward class community and earlier
their claim was rejected. It was further pleaded
that the impugned enactment seriously prejudices the
chances of open candidates in all fields of
education as well as in service. It was further
pleaded that Gaikwad Commission's report is not
based on fiscal data. There was inadequacy of data
base. A community which was found not to be backward
for last 50 years is now declared as backward class
without any change of circumstances. The writ
petitioner, pleads that enactment shall have an
adverse effect which shall divide the society by
caste basis on communal line. The impugned enactment
is claimed to be violative of the basic structure
and fundamental value of the Constitution
capitulated in Article 14, 16 and 19 of the
Constitution.
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C.A.Nos.3133, 3134 and 3131 of 2020
25. These appeals have been filed by the appellants
who were not parties in the PIL No.175 of 2018,
against the High Court judgment praying for
permission to file SLP which has already been
granted.
26. C.A.No.3129 arising out of PIL(ST)No.1949 of
2019 whereby 16% reservation to Maratha under Act,
2018 has been challenged.
27. Writ Petition (C)No.915 of 2020 has been filed
under Article 32 of the Constitution of India
praying for directing the respondents that all the
admission to Post Graduate Medical & Dental Courses
in the State of Maharashtra for the academic year
2020-21 shall be made subject to the outcome of the
SLP(C)No.15735 of 2019 and connected petitions.
28. Writ Petition (C) No.504 of 2020 filed under
Article 32 has been filed seeking mandamus direction
to the respondents that provisions of Act, 2018
30
should not be made applicable to the admission to
Post Graduate Medical & Dental Courses in the State
of Maharashtra for the academic year 2020-21.
29. Writ Petition (C) No.914 of 2020 filed under
Article 32 prays for writ in the nature of
certiorari or any other writ or order or direction
to hold the impugned Socially and Educationally
Backward Classes (SEBC) Act, 2018 as
unconstitutional and violative of Article 14, 16 &
19 of the Constitution of India and further Act,
2018 should not be made available to the medical
admission process for Post-graduate students for the
academic year 2020-21 in the State of Maharashtra.
30. C.A.No.3127 of 2020 arises out of Writ Petition
(C)No.4128 of 2018. The prayer of which writ
petition has already been noticed by C.A.No.3125 of
2020.
31. C.A.No. 3126 of 2020 has been filed against the
impugned judgment of the High Court in Writ Petition
(C)No.3846 of 2019 (Mohammad Sayeed Noori Shafi
Ahmed & Ors. vs. The State of Maharashtra & Ors.).
31
Writ Petitioners were challenging the Act, 2018 as
well as the Maharashtra State Backward Class
Commission Report on the Social, Educational,
Economic Status of the Marathas and Allied Aspects,
2018. The question was also raised about inaction on
the part of the State of Maharashtra in not acting
upon the report of Maharashtra State Minority
Commission (2011) recommending special reservation
to certain Muslim communities and failure to
introduce a Bill on the floor of the State
Legislature providing for 5% reservation to 52
Muslim communities in Maharashtra.
32. C.A.No.3128 of 2020 arising out of Writ Petition
(C) No.4269 of 2018(Vishnuji P. Mishra vs. The State
of Maharashtra)wherein similar reliefs have been
claimed as in PIL No.175 of 2018.
33. Writ Petition (C) No.938 of 2018 has been filed
under Article 32 of the Constitution of India
challenging the validity of Constitution (102nd
Amendment) Act, 2018. Writ Petition notices that
issue regarding Constitution (102nd Amendment) Act,
32
2018 is pending in SLP(C)No.15737 of
2019(C.A.No.3123 of 2020). The writ petitioner also
claimed to have filed an I.A.No.66438 of 2020 for
impleadment in SLP(C) No. 15737 of 2019. The
petitioner's submission is that if the effect of
Constitution (102nd Amendment) Act, 2019 is to take
away power of State Legislature with respect to
identification of OBC/SEBC, it is obvious that
Constitution (102nd Amendment) Act, 2018 has taken
away the legislative powers of State Legislature
with respect to some areas of law making power. The
petitioner, further, submits that the procedure
prescribed by the proviso to clause (2) of Article
368 of the Constitution of India has not been
followed since no ratification by the legislatures
of not less than one-half of the States by
Resolution was obtained. In the writ petition
following prayers have been made:
“a) This Hon'ble Court be pleased to hold
and declare that the 102nd Amendment of the
Constitution of India published in the
Gazette of India dated 11.08.2018 is
unconstitutional being in violation of
proviso to clause (2) of Article 368 and
33
also being violative of the right
guaranteed under Article 14 and 21 of the
Constitution of India.
b) This Hon'ble Court please to issue a
writ of mandamus or a writ in the nature
of mandamus or any other writ, order or
direction directing that the 102nd
Amendment of the Constitution of India
shall not be enforced hereafter as a
result of its being violative of Article
368 as also the basic structure of the
Constitution of India and also being
violative of Article 14 and 21 of the
Constitution of India.”
34. In the writ petitions before the High Court, the
State of Maharashtra has filed affidavit in reply
dated 16.01.2018 in Writ Petition No.4100 of 2018
supporting the Act, 2018, which has been extensively
relied by the High Court in the impugned judgment.
The affidavits were also filed by the intervenors
and affidavits were filed in support of Chamber
Summons. The High Court after perusing the writ
petitions, affidavits, applications filed by the
interveners, Chamber Summons and supporting other
materials and after hearing counsel appearing for
the respective parties has broadly capitulated
following points for consideration:
34
(3) Points for consideration before the High Court.
35. “(III) Whether the impugned Act of 2018 is
constitutionally invalid on account of lack
of legislative competence on the following
sub-heads:-
(a) The subsisting interim order
passed by the Bombay High Court in
Sanjeet Shukla vs. State of
Maharashtra (WP 3151/2014) thereby
granting stay to a similar enactment
and ordinance of the State, which is
pending for adjudication before this
Court.
(b) The 102nd (Constitution)
Amendment, 2018 deprives the State
legislature of its power to enact a
legislation determining the Socially
and Educationally Backward Class and
conferring the benefits on the said
class in exercise of its enabling
power under Article 15(4) and 16(4) of
the Constitution.
(C) The limitation of 50% set out
by the Constitution bench in Indra
Sawhney in form of constitutional
principle do not permit reservation in
excess of 50%.
(IV) Whether the State has been able to
establish the social and educational
backwardness and inadequacy of
representation of the Maratha community in
public employment on the basis of the
report of MSBCC under the Chairmanship of
Justice Gaikwad on the basis of
quantifiable and contemporaneous data ?
35
(V) Scope of Judicial Review for
interference in the findings, conclusions
and recommendation of the MSBCC.
(VI) Whether the reservation carved out
for Maratha community by the State
Government in form of impugned legislation
satisfies the parameters of reasonable
classification under Article 14 of the
Constitution ?
(VII) Whether the ceiling of 50% laid down
by the Hon'ble Apex Court in case of Indra
Sawhney vs. Union of India, is to be taken
as a constitutional principle and
deviation thereof violates the basic tenet
of equality enshrined in the Constitution?
(VIII) Whether the State is able to
justify existence of exceptional
circumstances or extra-ordinary situation
to exceed the permissible limit of 50%
within the scope of guiding principles
laid down in Indra Sawhney ?
(IX) Whether in the backdrop of the
findings, conclusions and recommendations
of the MSBCC report, whether the State
Government has justified exercise of its
enabling power under Article 15(4) and
16(4) of the Constitution ?”
36. The High Court in paragraph 177 of the judgment
has summarised its conclusion to the following
effect:
“177. In the light of the discussion
above, we summarize our conclusions to the
36
points which we have formulated in the
proemial of the judgment and deliberated
in the judgment. We summarize our
conclusions in the same sequence :
[1] We hold and declare that the State
possess the legislative competence to
enact the Maharashtra State Reservation
for Seats for Admission in Educational
Institutions in the State and for
appointments in the public services and
posts under the State (for Socially and
Educationally Backward Classes) SEBC Act,
2018 and State’s legislative competence is
not in any way affected by the
Constitution (102nd Amendment) Act 2018
and the interim order passed by this Court
in Writ Petition No. 3151 of 2014. We
resultantly uphold the impugned enactment
except to the extent of quantum of
reservation as set out in point no. 6.
[2] We conclude that the report of the
MSBCC under the Chairmanship of Justice
Gaikwad is based on quantifiable and
contemporaneous data and it has
conclusively established the social,
economical and educational backwardness of
the Maratha community and it has also
established the inadequacy of
representation of the Maratha community in
public employment / posts under the State.
Accordingly we uphold the MSBCC report.
[3] We hold and declare that the
classification of the Maratha class into
“Socially and Educationally Backward
Class” complies the twin test of
reasonable classification permissible
under Article 14 of the Constitution of
India, namely, (a) intelligible
37
differentia and (b) rational nexus to the
object sought to be achieved.
[4] We hold and declare that the limit of
reservation should not exceed 50%, however
in exceptional circumstances and extraordinary situations, this limit can be
crossed subject to availability of
quantifiable and contemporaneous data
reflecting backwardness, inadequacy of
representation and without affecting the
efficiency in administration.
[5] We hold and declare that the report of
the Gaikwad Commission has set out the
exceptional circumstances and extraordinary situations justifying crossing of
the limit of 50% reservation as set out in
Indra Sawhney's case.
[6] We hold and declare that the State
Government in exercise of its enabling
power under Articles 15(4)(5) and 16(4) of
the Constitution of India is justified, in
the backdrop of report of MSBCC, in making
provision for separate reservation to
Maratha community. We, however, hold that
the quantum of reservation set out by the
Maharashtra State Reservation for Seats
for Admission in Educational Institutions
in the State and for appointments in the
public services and posts under the State
(for Socially and Educationally Backward
Classes) SEBC Act, 2018, in section 4(1)
(a) and 4(1)(b) as 16% is not justifiable
and resultantly we quash and set aside the
quantum of reservation under the said
provisions over and above 12% and 13%
respectively as recommended by the
Commission.”
38
In view of the conclusions, the High Court
passed following order in the batch of writ
petitions:
“: O R D E R :
[A] In the light of summary of conclusions
above, we dispose of the following writ
petitions / PILs by upholding the Impugned
Act of 2018 except to the extent of
quantum of reservation prescribed by
section 4(1)(a) and 4(1)(b) of the said
Act :
1] PIL No. 175 of 2018,
2] WP (stamp No.) 2126 of 2019
3] WP (stamp No.) 2668 of 2019
4] WP (stamp No.) 3846 of 2019
5] PIL No. 140 of 2014
6] WP (Lodg. No.) 4100 of 2018
7] WP (Lodg. No.) 4128 of 2018.
8] WP (Lodg. No.) 4269 of 2018
9] PIL No. 6 of 2019.
10] WP (Lodg No.) 969 of 2019.
[B] The following writ petitions / PILs
seeking implementation of the Impugned Act
of 2018, are also disposed of in view of
the Impugned Act being upheld except to
the extent of quantum of reservation
prescribed by section 4(1)(a) and 4(1)(b).
1] PIL No.19 of 2019 :- The petition
is allowed in terms of prayer clause
(a).
2] PIL No.181 of 2018 :- The petition
is allowed in terms of prayer clause
(a). As far as prayer clause (b) is
39
concerned, we grant liberty to the
petitioner to file a fresh petition in
case cause of action survives.
[C] The following writ petitions are
rendered infructuous on account of the
passing of SEBC Act of 2018 which has
repealed the earlier ESBC Act of 2015.
1] Writ Petition (Stamp No.) 10755 of
2017
2] PIL No. 105 of 2015
3] PIL No. 126 of 2019
4] PIL No. 149 of 2014
5] PIL No. 185 of 2014
6] PIL No. 201 of 2014
7] Writ Petition No. 3151 of 2014.”
[D] The following writ petitions are detagged from the present group of petitions
as they claim reservation for the Muslim
communities.
1] Writ Petition No. 937 of 2017
2] Writ Petition No. 1208 of 2019
3] PIL No.209 of 2014
4] PIL (Stamp No.) 1914 of 2019.
[E] WP No.11368 of 2016:- The Petition is
dismissed as far as prayer clause (A) is
concerned. As far as prayer (B) is
concerned the petitioner is at liberty to
file an appropriate Writ Petition seeking
said relief.
[F] PIL (Stamp No.) 36115 of 2018 :- The
is disposed of since the recommendation of
the commission are implemented in form of
the impugned SEBC Act, 2018.
[G] In the light of disposal of above writ
petitions and PILs, all pending civil
40
applications / notice of motions / Chamber
Summons taken out in these writ petitions
and PILs do not survive and the same are
accordingly disposed of.”
37. Aggrieved with the impugned judgment of the High
Court dated 27.06.2019, the appellants have filed
the Civil Appeals noted above in this Court.
38. We have heard Shri Arvind P. Datar, learned
senior counsel, Shri Shyam Divan, learned senior
counsel, Shri Gopal Sankaranarayanan, learned
senior counsel, Shri Pradeep Sancheti, learned
senior counsel, Dr. Rajiv Dhawan, learned senior
counsel, Shri Sidharth Bhatnagar, learned senior
counsel, Shri B.H. Marlapalle, learned senior
counsel, Shri R.K. Deshpande, learned counsel, Dr.
Gunratan Sadavarte, learned senior counsel, Shri
Amit Anand Tiwari, learned counsel and Shri S.B.
Talekar, learned counsel for the appellants. Shri
Amol B. Karande, learned counsel, has been heard in
support of Writ Petition No.938 of 2020.
39. We have heard Shri K.K. Venugopal, learned
Attorney General for India and Shri Tushar Mehta,
41
learned Solicitor General. Shri Mukul Rohatgi,
learned senior counsel, has appeared for the State
of Maharashtra and Chhattisgarh. Shri Shekhar
Naphade, learned senior counsel, and Shri P.S.
Patwalia, learned senior counsel, have also appeared
for the State of Maharashtra. Shri Kapil Sibal,
learned senior counsel, has appeared for the State
of Jharkhand. Dr. Abhishek Manu Singhvi, learned
senior counsel, has also appeared for the respondent
No.3 in C.A. No.3123 of 2020.
40. We have also heard several learned counsel
appearing for different States. Shri Manish Kumar,
learned counsel has appeared for the State of Bihar,
Shri Karan Bharihok, has appeared for the State of
Punjab, Dr. Manish Singhvi, learned senior counsel,
has appeared for the State of Rajasthan. Shri C.U.
Singh, learned senior counsel, has appeared for the
respondents. Shri Sudhanshu S. Choudhari, learned
counsel has appeared for some of the respondents,
Shri V. Shekhar, learned senior counsel has
appeared for the State of Maharashtra, Shri S.
42
Niranjan Reddy, learned senior counsel, has
appeared for the State of Andhra Pradesh, Shri
Shekhar Nephade, learned senior counsel and Shri
Jayanth Muth Raj, learned senior counsel have
appeared for the State of Tamil Nadu. Shri Jaideep
Gupta, learned senior counsel has appeared for the
State of Karnataka. Shri Vinay Arora, learned
counsel, has appeared for the State of Uttarakhand.
Shri Arun Bhardwaj, learned counsel, has appeared
for the State of Haryana. Shri Amit Kumar, learned
counsel, has appeared for the State of Meghalaya.
Shri Pradeep Misra, learned counsel, has appeared
for the State of U.P. and Shri Tapesh Kumar Singh,
learned counsel, has appeared for the Madhya Pradesh
Public Service Commission. Ms. Diksha Rai, learned
counsel, has appeared for the State of Assam.
41. We have also heard Mrs. Mahalakshmi Pavani,
learned senior counsel, Shri A.P. Singh, learned
counsel, Mr. Shriram Pingle, learned counsel, Shri
V.K. Biju, learned counsel, Shri Hrishikesh s.
Chitaley, learned counsel, Shri Mr. Kaleeswaram Raj,
43
learned counsel, and Shri Ashok Arora for
intervenors. Mr. Akash Avinash Kakade has also
appeared for the interveners.
42. Learned counsel for the parties have made
elaborate submissions on the six questions as noted
above. Learned counsel for the parties have also
made their respective submissions on the points for
consideration as was formulated by the High Court in
the impugned judgment. The elaborate submissions
have also been made by the petitioners challenging
the various provisions of Act, 2018. Learned counsel
appearing for the petitioners have made scratching
attack on the Gaikwad Commission’s report, various
data and details have been referred to by the
petitioners to support their submissions that
Maratha community is not a socially and
educationally backward class.
43. We shall now proceed to notice the submission
advanced by learned counsel including submissions of
Attorney General for India in seriatim.
44
(4)Submissions of the parties.
44. Shri Arvind Datar, learned senior counsel, led
the arguments on behalf of the appellant. Shri Datar
submits that there is no need to refer the judgment
of Constitution Bench of this Court in Indra Sawhney
to an Eleven-Judge Bench. Reference to larger Bench
can be made only for compelling reasons. No judgment
of this Court has doubted the correctness of nineJudge Constitution Bench of this Court in Indra
Sawhney's case. On the other hand 50% limit for
reservation has been reiterated at least by four
Constitution Bench judgments of this Court rendered
after judgment in Indra Sawhney's case. All the
High Courts have uniformly accepted the limit of 50%
reservation. In some States where for political
reasons 50% limit had been breached, it was struck
down repeatedly. The limit of 50% reservation laid
down by the Constitution Bench of this Court in
Indra Sawhney is now an integral part of the trinity
of Article 14, 15 and 16 of the Constitution. Any
45
legislative or executive legislations against it are
void and have to be struck down. Shri Datar has
specifically referred to the Constitution Bench
judgment of this Court in M. Nagaraj vs. Union of
India, (2006) 8 SCC 212 in which case the
Constitution Bench of this Court laid down that the
State cannot obliterate the Constitutional
requirement of ceiling limit of 50%. It was held
that if the ceiling limit of 50% is breached the
structure of quality and equality in Article 16
would collapse.
45. It was further held that even the State has
compelling reason, the State has to see that its
reservation provision does not lead to excessiveness
so as to breach the limit of 50%. The request to
refer the judgment of Nagaraj has been refused by
subsequent Constitution Bench judgment of this Court
in Jarnail Singh and others vs. Lachhmi Narain Gupta
and others, 2018(10) SCC 396. The parameters, when
this Court revisits its judgments have been clearly
laid down in which the present case does not fall.
The judgment delivered by nine-Judge Bench needs to
46
be followed under the principle of stare decisis.
More so for the last more than 28 years no judgment
of this Court had expressed any doubt about the law
laid down by this Court in Indra Sawhney's case. A
very high threshold is to be crossed when reference
is to be made to eleven-Judge Bench. In law,
certainty, consistency and continuity are highly
desirable. The Parliament has not touched 50% limit
laid down under Article 15(4) and 16(4) of the
Constitution for the last several decades.
46. The impugned judgment of the Bombay High Court
is liable to be set aside as it is contrary to the
clear principle laid down in the Indra Sawhney's
case. The High Court has not given any reason as to
how extra-ordinary situations as mentioned in
paragraph 810 in Indra Sawhney case is made out in
the context of reservation for the Maratha
caste/community in Maharashtra. Exception and
certain extra-ordinary situations to the 50%
principle carved out in Indra Sawhney does not cover
the case of Maratha since such “rule is confined to
47
far flung and remote areas, where they are out of
main stream of national life”. Indra Sawhney has
also mandated extreme caution for going beyond 50%.
The reservation limit of 50% has also been applied
in the decisions rendered in the context of Article
243D and 243T of the Constitution of India relating
to Panchayats and Municipalities. The earlier
reports of National Commission for Backward Classes
has rejected claim of Maratha to be included in
backward class. The opinion of National Commission
for Backward Classes cannot be disregarded by the
State and in the event it had any grievance remedy
of review was provided.
47. The Maratha community has been found to be
socially advanced and prestigious caste. It is
submitted that limit of 50% is essential right on
part of equality which is part of basic structure.
Even members of Scheduled Tribes and Other Backward
Classes who qualify on merit can continue to enjoy
the benefit of merit quota. The limit of 50% as laid
down in Indra Sawhney, only a Parliamentary
amendment is contemplated. Whenever Parliament
48
wanted to get over 50% ceiling limit laid down by
Indra Sawhney, the constitutional Amendments were
brought, namely, Constitution 77th Amendment and
Constitution 81st Amendment.
48. Shri Datar has referred to various paragraphs of
judgment of this Court in Indra Sawhney. In support
of his submission that majority has laid down upper
ceiling of 50% for providing reservation under
Article 16(4) and 15(4), Shri Datar submits that the
judgment of Indra Sawhney cannot be confined only to
Article 16(4) but the law was laid down taking into
consideration Article 15(4) and 16(4).
49. Shri Shyam Divan, learned senior counsel for the
appellant/writ petitioner submits that social and
financial status of Maratha community has been
examined by successive Commissions or Committees up
to June 2013 and each of the Commission and
Committee did not recognise members of Maratha
community as deserving for reservation as backward
class. Shri Divan has referred to Kalelkar
Commission Report (1955), Mandal Commission Report
49
(1980) and National Backward Class Commission Report
(2000). He has also referred to the Deshmukh
Committee report which did not include the Maratha
Community in the list of backward communities.
Reference has also been made to the Khatri
Commission (1995) and Bapat Commission (2008).
50. It is submitted that when the Maharashtra State
Commission for backward class declined to reconsider
in the matter of reservation of Maratha, the State
Government appointed Narayan Rane Committee who was
a Minister in the State Government which submitted a
report in 2014 that although Maratha Community may
not be socially backward but it recommended a new
Socially and Economically Backward Class (SEBC).
Shri Divan has submitted that Gaikwad Commission
which submitted its Report on 15.11.2018 concluding
that Maratha Community in Maharashtra are socially,
educationally and economically backward and are
eligible to be included in backward class category
is completely flawed. It was not open for the
Gaikwad Commission to ignore determination by
50
National Commission and State Committees/Commission
until June 2013 holding that Maratha are forward
class in the State of Maharashtra. The report failed
to recognize the consequences of Maratha Community
being politically organised and being the dominant
political class in Maharashtra for several decades.
Politically organised classes that dominate
government are not backward in any Constitutional
sense.
51. Coming to the Constitution (One Hundred and
Second Amendment), 2018, Shri Divan submits that
102nd Constitution Amendment now contemplates
identification by National Commission of Backward
Classes. The Constitutional scheme which is
delineated by Article 341 and 342 has also been
borrowed in Article 342A. The identification of
backward classes is now centralized. Shri Divan has
also highlighted adverse impact of the impugned act
on medical admission in the State of Maharashtra.
52. Law laid down by Constitution Bench in Indra
Sawhney’s case that reservation under Article 15(4)
51
and 16(4) should not exceed the upper limit of 50
percent has been followed and reiterated by several
judgments of this Court including Constitution Bench
judgments. The Gaikwad Commission report and the
reason given by the report does not make out any
case for exception regarding Maratha Community to
fall in extraordinary circumstances as contemplated
in paragraph 810 of the judgment in Indra Sawhney’s
case.
53. Shri Gopal Sankaranarayanan, learned senior
Counsel has made his submission on the Constitution
(One Hundred and Second Amendment), 2018. Shri
Narayanan submits that after the Constitution (One
Hundred and Second Amendment), 2018, the State
legislature could not have passed the 2018 Act.
Article 338B and 342A brought by the Constitution
(One Hundred and Second Amendment), mark see change
in the entire regime regarding identification of
backward classes. The power of the National
Commission of Backward Classes as per Article 338B
sub-clause (5) includes power to make reports and
52
recommendations on measures that should be taken by
the Union or any State. The National Commission for
Backward Class is also required to be now consulted
both by the Union and the State. Article 366(26)
states that the phrase ‘Socially, Educationally and
Backward Classes’ means such Backward Classes as are
so deemed under Article 342A, for the purposes of
this Constitution which provision does not permit
Socially, Educationally and Backward Classes to have
any other meaning. The purposes of this
Constitution, as occurring in Article 366(26C) shall
also apply to Article 16(4). After the Constitution
(One Hundred and Second Amendment), the States have
no power to identify socially, educationally and
backward classes. The State Governments are still
left free to decide the nature or extent of
provision that may be made in favour of socially and
educationally backward classes identified in
accordance with Article 342A. When the power to
determine SCs and STs have always been centralized,
it is absurd to suggest that allowing the same
procedure for identification of socially,
53
educationally and backward classes shall violate
federalism.
54. Shri Gopal Sankaranarayanan further submitted
that the reliance on Select Committee Report of
Rajya Sabha is unwarranted. In the Select Committee
Report which was submitted in July 2018, there were
several dissents, since many members of the Select
Committee understood that the Constitution (One
Hundred and Second Amendment), shall take away the
power of the State to prepare their own list of
socially, educationally and backward classes.
Article 342A has been brought in the Constitution to
achieve uniformity and certainty and not due to any
political reasons. There is no ambiguity in Article
342A which requires any external aid for
interpretation.
55. Shri Sidharth Bhatnagar, learned counsel
appearing for the appellant also adopts the
submissions of Mr. Datar and Mr. Gopal
Sankaranarayanan and submits that the judgment of
this Court in M.R. Balaji versus State of Mysore,
54
AIR 1963 SC 649,had laid down that reservation under
Article 15(4) shall be less than 50 percent which
principle finds its approval in Indra Sawhney’s
Case.In Indra Sawhney’s Case, Eight out of Nine
Judges took the view that reservation cannot exceed
50 percent. He submits that judgment of Indra
Sawhney need not be referred to a larger Bench.
56. Mr. Pradeep Sancheti, learned senior Advocate,
has confined his submissions to the Gaikwad
Commission Report. He submits that due difference to
the opinion of the Commission does not mean that
opinion formed is beyond the judicial scrutiny. He
submits that backwardness has to be based on
objective factors where inadequacy has to factually
exist. The Court while exercising power of Judicial
Review has to consider the substance of the matter
and not its form, the appearance or the cloak, or
the veil of the executive action is to be carefully
scrutinized and if it appears that Constitutional
power has been transgressed, the impugned action has
to be struck down.
55
57. Shri Sancheti submitted that three National
Backward Class Commissions and three State Backward
Class Commissions did not include Maratha Community
as backward community which findings and reasons
could not have been given a goby by Gaikwad
Commission constituted in the year 2017. The Gaikwad
Commission (hereinafter referred to as Commission),
survey, data results, analysis suffers from various
inherent flaws. The sample survey conducted by the
Commission is skewed, unscientific and cannot be
taken as a representative sample. Sample size is
very small. Out of 43,629 persons surveyed, only 950
persons were from the Urban Area. Mumbai was
excluded from the Survey. Sample size of total
population was well below 0.02 percent. The
Commission assumes that the Maratha form 30 percent
of the State’s population. Without there being any
quantifiable data, the Commission picked up and
chose certain parameters whereas conveniently left
out many of the parameters where Maratha Community
is better off. The Commission has not provided a
56
comparable State average for at least 28 of the
parameters used in the study. When the State Average
is not on the record, treating those parameters as
parameters of backwardness is wholly unfounded. The
High Court in the impugned judgment has also not met
the submissions which were brought on record before
the High Court regarding the serious flaws committed
by the Commission.
58. The marking system adopted by the Commission was
not rational; the Constitution of the Commission and
experts was loaded in favour of the Maratha
community since the majority of the members of the
Commission were all Marathas. It is submitted that
Marathas are the most dominant community not only in
politics but also in other fields such as
educational institutions, sugar factories,
agriculture etc. which aspects are relevant criteria
for identifying backwardness of a community. The
sample size was so small that no quantifiable data
could have been found.
57
59. Referring to Chapter 10 of the Commission’s
report, Shri Sancheti submits that no extraordinary
situation as contemplated in paragraph 810 of
judgment of Indra Sawhney’s case could be made out,
even if all the findings given by the Commission are
accepted to be true. The Commission has relied on
outdated data for holding that ‘Marathas’ were
‘Shudras’. When an unscientific survey is done, an
unrealistic result is bound to come. There has been
adequate representation of Maratha Community in the
Public Services. The Commission erred in holding
that the representation is not proportionate and
recommended reservation under Article 16(4). The
Commission has not even adverted to the requirement
regarding efficiency as contemplated under Article
335 of the Constitution of India.
60. Shri Sancheti submits that more than 40 percent
Members of Parliament and 50 percent of Members of
Legislative Assembly are Marathas. Shri Sancheti
submits that the Commission’s report is only
paperwork which could not be accepted by the Court,
58
while the Act, 2018, purports to create reservation
for socially and economically Backward Classes but
in effect the enactment is reservation for only
Maratha which enactment is not sustainable.
61. Shri Sancheti submits that from the various data
regarding representation in jobs of Maratha
community itself make it clear that Maratha
community is adequately represented in Public
Services and there is no Constitutional requirement
for providing reservation under Article 16(4). Shri
Sancheti submits that the Commission has given undue
importance to the suicide by the Maratha farmers. He
submits that from the data given in the report, the
proportion of suicide of Maratha comes to 23.56
percent which is even less from the proportion of 30
percent as claimed by the Commission. The High Court
by wrong appreciation of facts concludes that those
who committed suicide, 80.28 percent were Marathas.
There is no basis to attribute farmer suicide to
Maratha Backwardness. Shri Sancheti submits that
undue weightage has been given to the percentage of
59
Maratha in ‘Dubbeywala class’ which cannot be any
relevant consideration.
62. Dr. Rajeev Dhavan, appearing on behalf of the
appellant, submits that no case has been made out to
review or refer the judgment of this Court in Indra
Sawhney’s case which is based on principles of
equality and reasonableness. Dr. Dhavan submits that
in fact Indra Sawhney should be strengthened to make
50 percent strict subject to dire restrictions and
stronger judicial review. The Indra Sawhney should
be treated as a comprehensive decision on various
aspects of reservation as a whole and the attempt of
the respondents to distinguish Indra Sawhney on the
basis that it was a decision only on Article 16(4)
is spurious.
63. Dr. Dhavan, however, submits that in the
judgment of Indra Sawhney, a weak test for judicial
scrutiny in matters within the subjective
satisfaction of the scrutiny was laid down i.e. test
as laid down by this Court in Barium Chemicals ltd.
and another versus The Company Law Board and others,
60
AIR 1967 SC 295. Dr. Dhavan submits that there ought
to be a strict scrutiny test and this Court may
tweak this aspect of Indra Sawhney so that the
strict scrutiny test applies. The 50 percent test as
has been articulated in the Indra Sawhney is based
on the principle of giving everyone a fair chance.
50 percent ceiling is based on principle of equality
to prevent reverse discrimination which is as much a
principle that the Constitution records to equality
as anything else. The direction of Indra Sawhney
that list of Other Backward Classes be reviewed
periodically is not being followed. Dr. Dhavan,
however, submits that the entire power of
reservation has not been taken away from the State.
64. Elaborating his submissions on the Constitution
(One Hundred and Second Amendment) Act, 2018, Dr.
Dhavan submits that the essence of 102nd Amendment
as exemplified in Article 342A results in the
monopoly of identification even though
implementation is left to the State. His submission
is that this is contrary to the basic structure of
61
federalism of the Constitution. In that it deprived
the States of the crucial power of identification
which was a very important power of the State under
Article 15, 16 and 46. The obligation of the State
in Article 15, 16 and 46 continue to be
comprehensive.
65. Alternate submissions advanced by Dr. Dhavan is
that Article 342A can be read down to describe the
power of the Centre in relation to the Central
Services and leaving the identification and
implementation power of the States intact. Dr.
Dhavan, however, submits that Maharashtra
legislature had the competence to enact the 2018
Act, even though the Constitution (One Hundred and
Second Amendment) had come by that time. He,
however, submits that any legislation which is
enacted will still be subject to Indra Sawhney and
Nagraj principles.
66. Dr. Dhavan submits that various reports of
Maharashtra in fact found that it is not necessary
to include Maratha despite their persistent efforts.
62
He submits that the test to be applied is “what has
happened since the last report negating inclusion of
Maratha that now requires a change to include them”.
He submits that the logic of the principle is that
if the Marathas were not backward for over Seventy
years, how they have suddenly become backward now.
Dr. Dhavan reiterates his submission that there is
no judgment which has questioned Indra Sawhney's
case. He submits that reservation under political
pressure, social pressure need not to be taken. A
political obligation to the electorate is not a
constitutional obligation. He further submits that
object of Article 16(4) is empowerment i.e. sharing
of the State power. He submits that Maratha are not
deprived of sharing power; hence, no case is made
out for granting reservation under Article 16(4).
67. Shri B.H. Marlapalle, learned senior counsel,
has also submitted that doctrine of extraordinary
circumstances cannot be applied to a dominant class
of Society. He submits that the representation of
Maratha in the Legislative Assembly of the State is
63
more than 50 percent and in the Cabinet of the State
they are more than 50 percent. After enforcement of
the Constitution, Marathas were never regarded as an
Other Backward Community. Three Central Commission
and three State Commissions have rejected the claim
of the Marathas to be backward.
68. Shri S.B. Talekar, appearing in Civil Appeal
No.3126 of 2020 has submitted that Writ Petition
No.3846 of 2019 was filed by Mohd. Saeed Noori &
Others, claiming reservation for Muslims. The High
Court although noted the submissions but had made no
consideration. Learned Counsel contended that the
State has no legislative competence to enact the
2018 Act. He submits that power to legislate on the
subject has been taken away by virtue of 102nd
Constitutional Amendment by adding Article 342A in
the Constitution of India. He also questioned the
composition of Gaikwad Commission.
69. Shri R.K. Deshpande, appearing for the appellant
has also contended that by Article 342A, a separate
mechanism has been introduced for the purpose of
64
identification of backward class. He submits that
there cannot be any State list of ‘Socially and
Educationally Backward Class’ after the 102nd
Constitutional Amendment. He submits that
identification of the caste was never the exclusive
domain of the States.
70. Shri Amit Anand Tiwari, appearing in writ
petition i.e. W.P. No.504 of 2020, referring to the
Order dated 09.09.2020 contends that Three-Judge
Bench having refused the prayer to refer the Indra
Sawhney judgment to a larger Bench, the Said prayer
needs no further consideration. Shri Tiwari submits
that present is not a case covered by any
exceptional circumstances as mentioned in the Indra
Sawhney’s judgment. Historically, Marathas have been
treated as a forward class who are socially,
economically and politically well-of. Prior to the
report of Gaikwad Commission, as many as six
Commissions have held Marathas are not entitled to
be treated as a backward class. There has been no
change in the circumstances to include Maratha
65
Community in the list of Backward Classes. With
respect to 102nd Constitutional Amendment, shri
Tiwari submits that now States are not empowered to
notify a class of persons as socially and
educationally backward for the purposes of the
Constitution. However, State’s power to confer
benefits on an already identified class of persons
as SEBC as identified under Article 342A remains
intact. The High Court committed an error in holding
that States still have power to identify class as
SEBC. The High Court erred in not appreciating the
import of Article 366(26C).
71. We may also notice the submission of writ
petitioner in W.P.(civil) No.938 of 2020,
challenging the 102nd Constitutional Amendment Act,
2018.
72. Shri Amol B. Karande, learned counsel for the
petitioner submits that in event Article 342A read
with Article 366(26C) of the Constitution of India
takes away the power of the State to identify a
backward class, the said Constitutional Amendment
66
shall be violative of basic feature of the
Constitution, i.e. Federalism.
73. He further submits that by the Constitutional
Amendment, the power of the State to legislate under
various Entries under List-II and List-III have been
taken away, hence, it was obligatory to follow the
procedure as prescribed in Proviso to Article 368(2)
of the Constitution of India, which having not done,
the Constitutional Amendment is not valid.
74. Learned Counsel submits that Article 366(26C)
requires certain clarification since there is no
clarity regarding Central List and State List. He
submits that States shall have still power to
legislate on the identification of the backward
class.
75. Learned Attorney General, Shri K.K.Venugopal,
has made submissions on the 102nd Constitutional
Amendment. Shri Venugopal submits that he shall
confine his arguments on the 102nd Constitutional
Amendment only. Referring to Article 12 of the
67
Constitution, the learned Attorney General submits
that the definition of the “State includes
Government and Parliament of India and Government
and Legislature of each State.” Under Article 15(4)
and 16(4), the State has power to identify the
‘Socially and Educationally Backward Class/Backward
Class’ and take affirmative action in favour of such
classes which power has been regularly exercised by
the State.
76. Learned Attorney General submits that the
Constitution Bench in Indra Sawhney held that there
ought to be a permanent body, in the nature of a
Commission or a Tribunal to which inclusion and noninclusion of groups, classes and Sections in the
list of Other Backward Classes can be made. The
Constitution Bench directed both the Union
Government and the State Government to constitute
such permanent mechanism in the nature of a
Commission.
77. Learned Attorney General submits that it is
inconceivable that no State shall have power to
68
identify backward class, the direction issued by the
Nine-Judge Bench still continuing. He has referred
to the judgment delivered by Justice Jeevan Reddy
for himself and three other Judges and judgment
delivered by Justice Thommen and submits that the
above directions were the directions of the
majority. Learned Attorney General submits that no
such amendment has been made by which the effect of
Article 15(4) and 16(4) have been impacted. He
submits that National Backward Class Commission Act,
1993 was passed in obedience of direction of this
Court in Indra Sawhney’s case. He submits that
Section 2(C) of 1993 Act refers to a Central list.
Learned Attorney General has also referred to
Maharashtra Act No.34 of 2006, especially Section
2(C), 2(E) and Section 9(1) which refers to State
List. He submits that Article 342A was to cover the
Central list alone, the 1993 Act, having been
repealed on 14.08.2018. The Attorney General has
also referred to Select Committee Report dated
17.07.2017, paragraph 12, 18, 19 and 55 and submits
that Select Committee Report indicate that the
69
intention of Constitutional Amendment was not to
take away the State’s power to identify the Backward
Class, the Select Committee Report clearly indicate
that State’s Commission shall continue to perform
their duties.
78. Learned Attorney General submits that Central
List as contemplated under Article 342A (2) relates
to employment under the Union Government, Public
Sector Corporation, Central institutions in States
where Central list was to be utilized. He submits
that State Government identification of Backward
Class/Socially and Educationally Backward Classes is
not touched by Article 342A.
79. Referring to Scheduled Castes and Scheduled
Tribes learned Attorney General submits that the
power was given to the President under the
Constitutional Scheme and States had no concern at
all with Scheduled Castes/Scheduled Tribes. He
submits that Article 342A deals with the Central
List for its own purpose whereas in every State,
there is a separate State list of Other Backward
70
Class. There was no attempt to modify Articles 15(4)
and 16(4) by the Parliament. Unless Articles 15(4)
and 16(4) are amended, the State’s power cannot be
touched.
80. Learned Attorney General had also referred to an
affidavit filed on behalf of Government of India in
Writ Petition (Civil) No.12 of 2021, Dinesh B.
versus Union of India and others, in which affidavit
Union of India with respect to the Constitution (One
Hundred and Second Amendment) Act, 2018 has pleaded
that power to identify and specify the Socially and
Educationally Backward Class list lies with
Parliament, only with reference to Central List of
Socially and Educationally Backward Class. It is
further pleaded that the State Government may have
their separate State list for Socially and
Educationally Backward Class for the purposes of
providing reservation to the recruitment to State
Government Services or admission to the State
Government Educational Institutions. Learned
Attorney General reiterates the above stand in
71
respect of the Constitution (One Hundred and Second
Amendment) Act, 2018.
81. Referring to the Other Backward Caste list, with
regard to the State of Punjab, the learned Attorney
General submits that in the Central list, there are
68 castes and whereas in the State list, there are
71 castes. Learned Attorney General submits that the
question of validity of the Constitution (One
Hundred and Second Amendment) shall arise only when
the State’s power is taken away. Replying to the
submissions made by the learned counsel for the writ
petitioner in W.P.No.938 of 2020, learned Attorney
General submits that in the Constitution (One
Hundred and Second Amendment), there was no
applicability of proviso to Article 368(2). He
submits that insofar as legislation under List-III
is concerned, since Parliament by legislation can
override the States, hence, by Constitutional
Amendment, the same can very well be taken away.
82. Referring to Entry number 41 of List-II, the
learned Attorney General submits that Entry 41 has
72
no concern with identification of backward class.
The Constitution (One Hundred and Second Amendment)
does not amend the lists under Schedule VII; hence,
there is no requirement of ratification by the
States.
83. Shri Mukul Rohtagi, learned senior counsel,
appearing for the State of Maharashtra has led the
arguments. Shri Rohtagi has articulated his
submissions in a very effective manner. Shri Rohtagi
states that his submission shall be principally
confined to question No.1.
84. Shri Rohtagi submits that there are several
reasons which require that the Constitution Bench
judgment in Indra Sawhney be revisited,
necessitating reference to the larger Bench of
Eleven Judges. Shri Rohtagi during course of
submission has handed over a chart giving history of
judgments on reservation. The chart makes reference
of the relevant paragraphs of judgments of this
Court in M.R.Balaji versus State of Mysore(Supra),T.
Devadasan versus Union of India and another, AIR
73
(1964) SC 179, State of Punjab versus Hiralal and
others, (1970) 3 SCC 567; State of Kerala and others
versus N.M. Thomas and others, (1976) 2 SCC 310;
Akhil Bharatiya Soshit Karamchari Sangh, (Railway)
versus Union of India and others, (1981) 1 SCC 246;
K.C. Vasant Kumar and another versus State of
Karnataka, (1985) supp. (1) SCC 714; T.M.A. Pai
Foundation and others versus State of Karnataka and
others, (2002) 8 SCC 481, M. Nagaraj and others
versus Union of India and others, (2006) 8 SCC 212;
S.V.Joshi versus State of Karnataka, (2012) 7 SCC
41; Union of India and others versus Rakesh Kumar
and others, (2010) 4 SCC 50; K. Krishnamurthy and
others versus Union of India and another ,(2010) 7
SCC 202; Chebrolu Leela Prasad Rao versus State of
Andhra Pradesh, (2020) SCC Online SC 383; Vikas
kishanrao Gawali versus The State of Maharashtra,
(2021) SCC Online SC 170 and Constitution Bench
judgment of this Court in Indra Sawhney. The Chart
also indicates the reasons why Indra Sawhney’s
judgment requires a review. The Chart in a
comprehensive manner discloses the law on
74
reservation prior to Indra Sawhney and subsequent
thereto.
85. We may now notice the Grounds which have been
emphasized by Shri Mukul Rohtagi for referring the
judgment of Indra Sawhney to a larger Bench.
(5)The 10 grounds urged for referring Indra Sawhney
judgment to a larger Bench.
i) In the judgment of Indra Sawhney, there is no
unanimity, in view of different reasoning
adopted in six separate judgments delivered in
the case. He submits that the judgments are in
three groups – one containing the judgment of
Justice Jeevan Reddy, which is for himself and
three other judges, which held that while 50
percent is the rule but in certain extraordinary
situations, it can be breached. Shri Rohtagi
submits that Justice Pandian and Justice Sawant
have held that 50 percent can be breached,
hence, the majority opinion is that 50 percent
can be breached. It is only Justice Thommen,
Justice Kuldip Singh and Justice R.M. Sahai who
75
have held that 50 percent cannot be breached. He
submits that the judgment of majority opinion in
Indra Sawhney is being wrongly read as holding
that 50 percent is the ceiling limit for
reservation.
ii) Different judges from 1963 till date have spoken
in different voice with regard to reservation
under 15(4) and 16(4) which is a good ground to
refer Indra Sawhney judgment to a larger Bench.
iii)The Balaji has held that Article 15(4) is an
exception to Article 15(1) which theory has not
been accepted by this Court in N.M. Thomas as
well as Indra Sawhney, the very basis of fixing
the ceiling of 50 percent has gone. Shri Rohtagi
submits that the Constitution of India is a
living document. The ideas cannot remain frozen,
even the thinking of framers of the Constitution
cannot remain frozen for times immemorial.
iv)Neither Article 16(4) nor Article 15(4) contains
any percentage. The Court cannot read a
76
percentage i.e. 50 percent for effecting
reservation under Article 15(4) and Article
16(4), providing a ceiling by number is cutting
down the Constitutional provisions of Part-III
and Part-IV. Indra Sawhney’s judgment has
restricted the sweep of Article 15 and Article
16 of the Constitution. The Constitutional
provisions cannot be read down which principle
is applicable only with regard to statutes.
v) Judgment of Indra Sawhney is a judgment on
Article 16(4) and not on Article 15(4), hence,
the ratio of judgment cannot be applied with
regard to Article 15(4). He submits that Indra
Sawhney itself states that Article 15(4) and
Article 16(4) are distinct and different
provisions.
vi)The judgment of Indra Sawhney does not consider
the impact of Directive Principles of State
Policy such as Article 39(b)(c) and Article 46,
While interpreting Article 14, 16(1) and 16(4).
77
vii)The 50 percentage ceiling limit was followed by
Constitution Bench of this Court in St.
Stephen’s College versus University of Delhi,
(1992) 1 SCC 558, by upholding the procedure for
admission of students in aided minority
educational institutions which ceiling limit of
50 percent has been set aside by 11-Judge Bench
judgment in T.M.A. Pai Foundation (Supra). 11-
Judge Bench judgment in T.M.A. Pai judgment
indicates that the ceiling of 50 percent is no
longer available to be relied on even for
purposes of Article 15 and Article 16.
viii)The Constitutional 77th and 81st Amendment Act
inserting Article 16(4)(A) and Article 16(4)(B)
have the effect of undoing in part the judgment
of Indra Sawhney and thus mandating a re-look.
ix)The 103rd Constitutional Amendment by which 10
percent reservation have been provided for
Economically Weaker Sections in addition to
reservation given under Article 15(4) and
78
Article 16(4) is a clear pointer of overruling
of 50 percent ceiling for reservation under
15(4) and 16(4).
x) The extraordinary circumstances as indicated in
paragraph 810 of Indra Sawhney’s case is not
exhaustive, far flung and remote areas mentioned
therein are only illustrative. There may be
other exceptions where states are entitled to
exceed the 50 percent ceiling limit.
86. Shri P.S. Patwalia, appearing for the State of
Maharashtra has advanced the submissions on rest of
the questions. Shri Patwalia has advanced
submissions supporting the report of Gaikwad
Commission. He submits that Gaikwad Commission was
appointed under the 2005 Act at the time when the
challenge to 2014 Act was pending in the Bombay High
Court. He submits that there was no challenge to the
constitution of Gaikwad Commission before the High
Court at any stage. He submits that if 30 percent
Maratha are to be fit in 27 percent OBC reservation,
79
we will be giving them a complete mirage. Shri
Patwalia has taken us to the different chapters of
the report and submits that the Commission has
mentioned about procedure, investigations and
evidence collected. He submits that quantifiable
data was collected by the Commission through experts
and three agencies appointed by the Commission.
Experts were also engaged to marshal the data and
submit their opinion. Chapter 10 of the report
dealt with the exceptional circumstances regarding
Marathas justifying exceeding 50 percent ceiling
limit for reservation. He submits that the
Commission has assessed the Maratha population as 30
percent.
87. Shri Patwalia submits that the scope of judicial
review of a Commission’s report is very limited.
This Court shall not enter into assessment of
evidence to come to a different conclusion. He
submits that the Gaikwad Commission report is a
unanimous report. After the receipt of the report,
the Act, 2018 was passed unanimously by the
80
Legislative Assembly. The subjective satisfaction of
the State Government to declare a community as
socially and educationally backward is not to be
easily interfered by the Courts in exercise of
Judicial Review Jurisdiction.
88. On the basis of the Commission's report, the
State Government arrived at the satisfaction that
Maratha are socially and educationally backward
class which satisfaction need not be tested in
Judicial Review Jurisdiction. Formation of the
opinion by the State is purely a subjective process.
This Court has laid down in several judgments that
the Commission’s report needs to be treated with
deference. The High Court in the impugned judgment
has elaborately considered the Gaikwad Commission’s
report and the other material including the
reservation which was granted to Other Backward
Community in the year 1902 by Sahuji Maharaj. He
submits that the High Court had considered the
effect of reports given by the earlier Commissions
in the impugned judgment and gave reasons why
81
earlier reports cannot operate detriment to the
Marathas.
89. It is submitted that method and manner of survey
is to be decided on by the Commission. No contrary
data of any expert or technical body has been placed
before this Court by the appellants to come to the
conclusion that the data considered by the
Commission was not relevant. The choice of
parameters is essentially to be decided by the
expert body appointed to determine the backwardness.
The statistics of population of Maratha community is
credible and rightly been accepted by the
Commission.
90. The Commission had given a common questionnaire
to maintain uniformity for social, economical and
educational backwardness. The Commission has given
relevant parameters. The Commission had considered
the number of representations received and
collected. The Commission also considered the
objection for inclusion of Maratha as backward class
in Other Backward classes category and otherwise.
82
91. Shri Patwalia with respect to 102nd
Constitutional Amendment states that he adopts the
submissions of learned Attorney General completely.
He submits that Article 342A and mechanism which has
been brought in force only relate to the Central
list which is for the purposes of appointment in
posts under the Central Government or Educational
Institutions under the control of the Central
Government. Shri Patwalia further submits that the
Select Committee report relied by the High Court is
fully admissible for deciphering the history of
legislation and the intention of the Parliament. He
further submits that today there is no central list,
hence, there is no question of affecting the State
list. He submits that it is premature to set aside
the said action.
92. Shri Shekhar Naphade, learned senior counsel,
appearing for the State of Maharashtra, has
elaborately dealt with the judgment of this Court in
M. R. Balaji(Supra). He submits that all subsequent
judgments providing a ceiling of 50 percent are
83
based on Balaji’s Case and there being several flaws
in the said judgment, the case needs to be referred
to larger Bench. He submits that 50 percent ceiling
on reservation for Scheduled Caste, Scheduled Tribes
and Other Backward Class is a judicial legislation
which is impermissible. He further submits that
reservation cannot exceed 50 percent is not the
ratio of judgment of Balaji. It is submitted that
Balaji has not considered the effect of the non
obstante clause contained in Article 15(4). Shri
Naphade has also dealt with the judgments of this
Court in T.Devadasan(Supra), N.M. Thomas(Supra) and
Indra Sawhney.
93. Shri Naphade elaborating his submissions on
Article 342A submits that the State has legislative
competence to prescribe reservation to backward
class. He has referred to Entry 25 of List-III and
Entry 41 of List-II. He submits that a careful
perusal of Article 342A indicates that the scheme of
this Article is substantially different from Article
341 and 342. The difference in the language of
84
clause (2) of Article 342A as compared to clause (2)
of Article of 341 and 342 makes all the difference.
The view canvas by petitioners that 102nd
Constitutional Amendment takes away the legislative
competence and legislative power of the States runs
counter to the basic structure of the Constitution
and the scheme of distribution of power between the
State and Centre. It is settled principle of
interpretation that by construing any provision of
Act of Parliament or Constitution, the legislative
history of the relevant subject is necessary to be
seen.
94. Shri Kapil Sibal, senior advocate, appearing for
the State of Jharkhand has advanced the submissions
on all aspects of the matters which are under
consideration in the present batch of cases. He
submits that how balance for Article 14, 15 and 16
shall be maintained is matter within the domain of
the executive/State legislature. No Court should fix
the percentage for Article 15 and 16. In Indra
Sawhney’s case, there was no data for imposing a
85
ceiling of 50 percent. Justice Jeevan Reddy did not
rely on the Mandal Commission’s report. Mr. Sibal
submits that 50 percent was not an issue in the
Indra Sawhney. He submits that parameters for
Article 15(4) and Article 16(4) are entirely
different where Article 15 is eligibility and
Article 16 is ability to get a job. Apart from
Balaji, all other judgments are on Article 16. He
submits that question No.VI framed in Indra
Sawhney’s case could not have been answered without
looking into the statistics. The concept of equality
will differ from State to State. There cannot be a
strait Jacket formula. Why stop reservation to only
50 percent when matter relates to affirmative action
by the State which is felt required by the concerned
State. Limiting access to education to 50 percent
will cause more problems than solved. It is the
State which has to look at the relevant percentage
to be followed in a particular case. In Indra
Sawhney’s case, the Court was dealing with Office
Memorandum issued by Government of India where
reservation was less than 50 percent. The
86
observation regarding 50 percent is only an Obiter.
By the judgment of this Court in N.M. Thomas, the
basis of Balaji Case that Article 15(4) is an
exception to Article 15(1) has gone. The whole
judgment could not be relied on as a precedent
anymore. Whether a particular quota of reservation
is violative of Article 15(1) depends on facts of
each case. The State ought to be given a free hand
to pick the percentage as per need and requirement
of each State. There is no judicial power to pick a
percentage.
95. Shri Sibal giving illustration of Kendriya
Vidyalaya submitted that General students cannot
come and those institutions cater only to the
employees of Government, Army; and the General can
only come when the seats are vacant. He submits that
the balance has to be done by the executive and not
by the Court. These are the issues which need to be
decided by a larger Bench. These issues having never
been addressed before this Court in Indra Sawhney’s
87
case, the matter needs to be referred to a larger
Bench.
96. The Constitution of India is a living,
transformative document. The Court cannot shackle
the legislature. Shri Sibal submits that 50 percent
limit for reservation prescribed in Indra Sawhney is
no longer a good law after 103rd Constitutional
Amendment which inserted Article 15(6) and Article
16(6) into the Constitution. Several States have
already provided for reservation beyond 50 percent
to Scheduled Caste, Scheduled Tribe and Socially and
Educationally Backward class. In the above
circumstances, it is necessary that these matters
may be referred to a larger Bench for fresh
adjudication.
97. Shri Sibal on Article 342A submits that under
Articles 15(4) and 16(4) the Union and the States
have co-equal powers to advance the interest of
socially and educationally backward classes. Any
exercise of power by the Union cannot encroach upon
the power of the State to identify and empower the
88
socially and educationally backward classes and
determine the extent of reservation required. The
expression, “for the purposes of this Constitution”
can therefore only be construed within the contours
of power that the Union is entitled to exercise with
respect to entities, institutions, authorities and
Public Sector Enterprises under the aegis and
control of the Union.
98. The expression “Central List” in Article 342A(2)
relates to the notification under Article 342A(1),
wherein the Central List will include identification
of socially and educationally backward classes for
the purposes of entities, institutions, authorities
and public sector enterprises in a State, but under
the aegis or control of the Union. Any other
interpretation would allow an executive act to
whittle down the legislative power of the States to
provide for the advancement of the socially and
educationally backward classes, under Articles
15(4), 15(5) as well as in Article 16(4), which are
89
an integral part of the chapter on fundamental
rights.
99. Article 342A and Article 342A(1) and 342A(2)
must be interpreted in the historical context and
developments both pre and post Indra Sawhney, where
the identification of the socially and educationally
backward classes in the State lists was the basis
for determining the extent of reservations. In this
regard, the use of the word “Central list” is of
significance, as opposed to Articles 341 and 342,
which only use the expression “list” in the context
of identification of Scheduled Castes and Scheduled
Tribes. This is because historically, Scheduled
Castes and Tribes were identified by the Government
of India and accepted by the States.
100.Learned Solicitor General Shri Tushar Mehta,
submits that he adopts the submissions made by
learned Attorney General. He submits that
102ndConstitutional Amendment shall not dilute the
power of the State. Article 342A (1) is only
90
enabling provision. The Act, 2018, does not violate
102ndConstitutional Amendment.
101. Dr. Abhishek Manu Singhvi, appearing for the
respondent submits that State’s power was never
intended to be taken away. He submits that material
including discussion in reports of Parliamentary
Committee are fully admissible and has to be relied
for finding the intent and purpose of a
Constitutional provision. Dr. Singhvi has
elaborately taken us to the proceedings of the
Select Committee and its report. Dr. Singhvi has
cited the Constitution Bench judgment of this Court
in Kalpana Mehta and others versus Union of India
and others, (2018) 7 SCC 1.He has also referred to
the Statements of objects of 123rdBill which notices
that there were State lists prior to Indra Sawhney.
The Central list was confined to Central
Institutions and Central Government posts. Shri
Singhvi has also referred to 1993 Act and submits
that in the said Act Section 2(C) referred to a list
which was only a Central list. Article 342A(2) uses
91
the same Central list and interpretation of Article
342A(2) has to be made taking the same meaning of
Central list as was known and understood under the
regime prior to 102nd Constitutional Amendment Act.
This Court shall not annotate the State’s power
under some interpretive exercise. Dr. Singhvi
further submits that today there is no Central list
under Article 342A, there being no occupied field,
it its premature and academic.
102. Shri C.U. Singh, learned senior Advocate,
appearing for respondents has referred to Gaikwad
Commission’s report in detail. He has referred to
data collected and reflected in the report and
submit that the Commission on the basis of
quantifiable data has determined Maratha as socially
and educationally backward community. He has also
referred to Chapter 10 of the report which carves
out exceptional circumstances for exceeding 50
percent limit. Shri C.U. Singh has taken the Court
to various tables and charts regarding
representation of Maratha Community in the Public
92
services, Universities and Higher Institutions. Shri
C.U. Singh submits that the representation in the
public services is not in accordance with the
proportion of population of Maratha. He submits that
backwardness has to come from living standard, job.
The Commission has found that Marathas to be more in
Agriculture and in Agricultural labour. He submits
that we need to take into consideration the overall
situation.
103. Learned Counsel for the State of Bihar, State
of Punjab, State of Rajasthan, State of Andhra
Pradesh, State of Tamil Nadu, State of Kerala, State
of Assam, State of Uttar Pradesh, State of Haryana
have also advanced the similar submissions as
advanced by the State of Maharashtra that
102ndConstitutional Amendment shall not take away
power of the legislative/executive power of the
State to identify OBC and to take measures for
implementation of reservation. All State’s counsel
submitted that there has always been two lists i.e.
Central List and State List. It is submitted that
93
any other interpretation shall violate the federal
structure as envisaged in the Constitution of India.
104. Shri Amit Kumar, learned Advocate General,
Meghalaya, submits that in State of Meghalaya there
are about 85.9 percent tribal population. He submits
that reservation allowed in State of Meghalaya is in
accord with paragraph 810 of the Indra Sawhney’s
judgment.
105. Shri Vinay Arora, learned counsel appearing for
State of Uttarakhand, submits that State has two
lists one drawn by State and another Central list.
He adopts the arguments of learned Attorney General.
Shri Vinay Arora submits that judgment of Indra
Sawhney need not to be referred to a larger Bench.
He submits that affirmative action under Articles
16(4) and 15(4) are facets of Article 14.
106. We have also heard various counsel appearing
for interveners. Most of the interveners have
adopted the submissions of the State of Maharashtra.
However, learned counsel Shri A.P.Singh and Shri
94
B.B. Biju, appearing for different interveners
submits that judgment of Indra Sawhney need not be
referred to larger Bench. They submitted that after
seventy years, there has been upliftment. The
reservation is affecting the merit as well as the
society.
107. We have heard learned counsel for the parties
and perused the records.
108. All the relevant materials which were before
the High Court have been compiled in different
volumes and filed for convenience. Learned counsel
for the parties during submissions have referred
various materials including necessary relevant
enactments and reports. From various volumes a
master index containing all details of volumes has
also been prepared and submitted. Before we enter
into submissions of the learned counsel for the
parties on six questions framed by us and the
impugned judgment of the High Court including points
for consideration noted in the judgment of the High
Court, we need to first look into the statutory
95
provisions pertaining to reservation in force at the
time when Act, 2018 was enacted.
(6)The status of Reservation at the time of
commencement of Enactment of Act, 2018
109. The State of Maharashtra has issued a
unified list of OBC consisting of 118 castes on
13.08.1967. On 10.09.1993 after the judgment of this
Court in Indra Sawhney case, the Central List of OBC
was issued by the Ministry of Welfare, Government of
India notifying the Central List of OBC consisting
of more than 200 castes. The Central List of OBC as
on date contains about 252 OBC. The Government of
Maharashtra by its Government decision dated
07.12.1994 created special backward category
containing several castes and communities. The
Maharashtra State Public Services Reservation for
Scheduled Castes, Scheduled Tribes, De-notified
Tribes(Vimukta Jatis), Nomadic Tribes, Special
Backward Category and other Backward Classes) Act,
2001 was enacted which was published in the
Maharashtra Government Gazette on 22.01.2004.
96
Section 2(b) defines De-notified Tribes. Section
2(f) defines Nomadic Tribes. Section 2(g) defines
Other Backward Classes and Section 2(k) defines
reservation and Section 2(m) defines Special
Backward Category. Sections 2(b), 2(f), 2(g), 2(k)
and 2(m) are as follows:
“Section 2(b) " De-notified Tribes
(Vimukta Jatis) " means the Tribes
declared as such by the Government from
time to time ;
2(f) "Nomadic Tribes " means the
Tribes wandering from place to place in
search of their livelihood as declared by
Government from time to time ;
2(g) "Other Backward Classes" means
any socially and educationally backward
classes of citizens as declared by the
Government and includes Other Backward
Classes declared by the Government of
India in relation to the State of
Maharashtra ;
2(k) "reservation" means the
reservation of post in the services for
the members of Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes;
2(m) "Special Backward Category" means
socially and educationally backward
classes of citizens declared as a Special
Backward Category by the Government.”
97
110.Section 4 provides for reservation and
percentage. Section 4(2) is as follows:
Section 4(2) Subject to other provisions
of this Act, there shall be posts reserved for
the persons belonging to the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes, at the
stage of direct recruitment in public services
and posts specified under clause (j) of
section 2, as provided below:-
______________________________________________
Description of Caste/Tribe/ Percentage of
Category/Class vacancies reservation
Or seats to be reserved
______________________________________________
(1) Scheduled Castes . . 13 per cent.
(2) Scheduled Tribes . . 7 per cent.
(3) De-notified Tribes (A) . . 3 per cent.
(4) Nomadic Tribes (B) . . 2.5 per cent.
(5) Nomadic Tribes (C) . . 3.5 per cent.
(6) Nomadic Tribes (D) . . 2 per cent.
(7) Special Backward Category . . 2 per cent.
(8) Other Backward Classes . . 19 per cent.
_____________
Total . . 52 per cent.
_____________________________________________”
111. The Maharashtra State Commission for Backward
Classes Act, 2005 was enacted by the State
98
Legislature providing for constitution of State
level Commission for Backward Classes other than the
Scheduled Castes and Scheduled Tribes and to provide
for matters connected therewith or incidental
thereto. Section 2(e) defined the Lists in following
words:
“Section 2(e) “Lists” means the Lists
prepared by the State Government, from
time to time, for the purposes of making
provision for the reservation of
appointments or posts, in favour of the
backward classes of citizens who, in the
opinion of the State Government, are not
adequately represented in the services
under the State Government and any local
or other authority within the State or
under the control of the State
Government;”
112.Section 9 of the Act deals with functions of the
Commission in the following words:
“Section 9.(1) It shall be the function of
the Commission,—
(a) to entertain and examine
requests for inclusion of any class of
citizens as a backward class in the
Lists ;
(b) to entertain, hear, enquire
and examine complaints of overinclusion or under-inclusion of any
99
backward class in such Lists and
tender such advice to the State
Government as it deems appropriate;
(c) to take periodical review and
make recommendations to the State
Government regarding the criteria and
methodology of determining the
backward class of citizens ;
(d) to cause studies to be
conducted on a regular basis through
and in collaboration with reputed
academic and research bodies for
building of data about the changing
socio-economic status of various
classes of citizens;
(e) to regularly review the socioeconomic progress of the backward
class of citizens ; and (f ) to
perform such other functions as may be
prescribed.
(2) The advice given or
recommendations made by the Commission
under this section shall ordinarily be
binding on the State Government and
the State Government shall record
reasons in writing, if, it totally or
partially rejects the advice or
recommendations or modifies it.”
113. Another Enactment, namely, Maharashtra Private
Professional Educational Institutions (Reservation
of seats for admission for Scheduled Castes,
Scheduled Tribes, De-notified Tribes(Vimukta Jatis),
Nomadic Tribes and Other Backward Classes)Act, 2006
100
was enacted which was published in Maharashtra
Gazette on 01.08.2006. Section 2 defines various
expressions including Nomadic Tribes and Other
Backward Classes in other words. Section 4 provided
that in every Aided Private Professional Educational
Institution, seats equal to 50% shall be reserved
for candidates belonging to the Reserved Category.
Section 4 of the Act is as follows:
“Section 4. (1) In every Aided Private
Professional Educational Institution, seats
equal to fifty per cent. of the Sanctioned
Intake of each Professional Course shall be
reserved for candidates belonging to the
Reserved Category.
(2) The seats reserved for candidates
belonging to the Reserved Category under subsection (1) shall be filled in by admitting
candidates belonging to the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes and Other Backward
Classes, respectively, in the proportion
specified in the Table below :–
__________________________________________________
Description of Caste/Tribe/ Percentage of
Category/Class of Reserved reservation
Category
__________________________________________________
(1) Scheduled Castes and Scheduled 13%
Castes converts to Buddhism
(2) Scheduled Tribes 7%
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(3) De-notified Tribes(A) 3%
(4) Nomadic Tribes(B) 2.5%
(5) Nomadic Tribes(C) 3.5%
(6) Nomadic Tribes(D) 2%
(7) Other Backward Classes 19%
________________
Total 50%
_____________________________________________”
114. As noted above, at the time of enactments of
above 2001 and 2006 Acts, list containing Other
Backward Classes had been existing which was issued
by the State Government from time to time. By GR
dated 26.09.2008, the State of Maharashtra extended
the list of OBC to include 346 castes. We have
already noticed that the Maharashtra State
Reservation (of seats for admission in educational
institutions in the State and for appointments or
posts in the public services under the State) for
Educationally and Socially Backward Category (ESBC)
Act, 2014 was enacted by the State Legislature which
received the assent of the Governor on 09.01.2015.
In the said Act Maratha community was declared as
Educationally and Socially Backward Category (ESBC).
102
The implementation of the Act was stayed by the High
Court by its order dated 07.04.2015 passed in Writ
Petition No.3151 of 2014 which continued in
operation till the writ petition was dismissed as
infructuous by the impugned judgment. From the Acts
2001 and 2006 as noted above, it is clear that the
percentage of reservation in the State of
Maharashtra in Public Services was 52% whereas
percentage of reservation of seats for admission for
SC and ST, De-notified Tribes and Nomadic Tribes and
Other Backward Classes in Private Professional
Educational Institutions was 50% at the time of
enactment of Act, 2018. We may also notice certain
relevant provisions of Act LXII of 2018. The
Preamble of the Act reads:
“An Act to provide for reservation of
seats for admission in educational
institutions in the State and for
reservation of posts for appointments in
public services and posts under the State,
to Socially and Educationally Backward
Classes of Citizens (SEBC) in the State of
Maharashtra for their advancement and for
matters connected therewith or incidental
thereto.
103
WHEREAS it is expedient to provide for
reservation of seats for admission in
educational institutions in the State and
for reservation of posts for appointments
in public services and posts under the
State to Socially and Educationally
Backward Classes of Citizens (SEBC) in the
State of Maharashtra for their advancement
and for matters connected therewith or
incidental thereto ; it is hereby enacted
in the Sixty-ninth Year of the Republic of
India, as follows :—“
115. Section 2(1)(j) provides that Socially and
Educationally Backward Classes of Citizens (SEBC)
includes the Maratha community. Section 2(1)(j) is
as follows:
“2(1)(j) “Socially and Educationally
Backward Classes of Citizens (SEBC)”
includes the Maratha Community declared to
be Educationally and Socially Backward
Category (ESBC)in pursuance of the
Maharashtra State Reservation (of seats
for admission in educational institutions
in the State and for appointments or posts
in the public services under the State)
for Educationally and Socially Backward
Category (ESBC) Act, 2014.”
116. Section 3 provides for applicability to all the
direct recruitments, appointments made in public
services and posts in the State which is as follows:
104
“3. (1) This Act shall apply to all the
direct recruitments, appointments made in
public services and posts in the State
except,—
(a) the super specialized posts in
Medical, Technical and Educational
field ;
(b) the posts to be filled by transfer
or deputation ;
(c) the temporary appointments of less
than forty-five days duration ; and
(d) the post which is single
(isolated) in any cadre or grade.
(2) This Act shall also apply, for
admission in educational institutions
including private educational
institutions, whether aided or un-aided by
the State, other than the minority
educational institutions referred to in
clause (1) of article 30 of the
Constitution of India.
(3) The State Government shall, while
entering into or renewing an agreement
with any educational institution or any
establishment for the grant of any aid as
provided in the explanation to clauses (d)
and (e) of section 2, respectively,
incorporate a condition for compliance
with the provisions of this Act, by such
educational institution or establishment.
(4) For the removal of doubts it is hereby
declared that nothing in this Act shall
affect the reservation provided to the
Other Backward Classes under the
Maharashtra State Public Services
(Reservation for Scheduled Castes,
105
Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward
Classes) Act, 2001 and the Maharashtra
Private Professional Educational
Institutions (Reservation of seats for
admission for Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes and Other Backward
Classes) Act, 2006.”
117. Section 4 deals with seats for admission in
educational institutions and appointments in public
services and posts under the State or SEBC. Section
4 is as follows:
“4. (1) Notwithstanding anything
contained in any judgment, decree or order
of any Court or other authority, and
subject to the other provisions of this
Act,—
(a) sixteen per cent. of the total
seats in educational institutions
including private educational
institutions, whether aided or unaided by the State, other than
minority educational institutions
referred to in clause (1) of article
30 of the Constitution of India ; and
(b) sixteen per cent. of the total
appointments in direct recruitment in
public services and posts under the
State, shall be separately reserved
for the Socially and Educationally
Backward Classes (SEBC) including the
Maratha Community :
106
Provided that, the above
reservation shall not be applicable to
the posts reserved in favour of the
Scheduled Tribes candidates in the
Scheduled Areas of the State under the
Fifth Schedule to the Constitution of
India as per the notification issued
on the 9th June 2014 in this behalf.
(2) The principle of Creamy Layer
shall be applicable for the purposes of
reservation to the Socially and
Educationally Backward Classes (SEBC)
under this Act and reservation under this
Act shall be available only to those
persons who are below Creamy Layer.
Explanation.—For the purposes of this
sub-section, the expression “Creamy Layer”
means the person falling in the category
of Creamy Layer as declared by the
Government in the Social Justice and
Special Assistance Department, by general
or special orders issued in this behalf,
from time to time.”
118. We have already noticed that in the writ
petitions filed before the High Court, Act, 2018 was
challenged being invalid and violative of the
provisions of the Constitution of India.
(7)Consideration of 10 Grounds urged for revisiting
and referring the judgment of Indra Sawhney to
a larger Bench.
107
119. Shri Mukul Rohtagi as well as Shri Kapil Sibal,
learned senior counsel have submitted that judgment
of Indra Sawhney needs to be revisited and refer to
a larger Bench of eleven Judges.
120. We shall proceed to consider the grounds given
by Shri Mukul Rohtagi in seriatim which shall also
cover the grounds raised by Shri Sibal.
121. First ground of Shri Rohatgi is that it is only
three Judges, Justice T.K. Thommen, Justice Kuldip
Singh and Justice R.M. Sahai who held that 50%
reservation cannot be breached whereas other six
Judges have held that 50% can be breached, hence,
majority opinion in Indra Sawhney does not hold that
50% is the ceiling limit for reservation. For
considering the above submission we need to notice
the opinion expressed in each of the six judgments
delivered in Indra Sawhney's case.
122. Before we proceed to notice the relevant
paragraphs of the judgment of Indra Sawhney, we need
to first notice method of culling out the majority
108
opinion expressed in a judgment where more than one
judgments have been delivered. The Constitution
Bench of this Court in Rajnarain Singh vs. Chairman,
Patna Administration Committee, Patna and another,
AIR 1954 SC 569, had occasion to find out the
majority opinion of a seven-Judge Bench judgment
delivered by this Court in Re Delhi Laws Act, 1912,
Ajmer-Merwara (Extension of Laws)Act, 1947 vs. Part
'C' States(Laws) Act, 1950, AIR 1951 SC 332. The
Constitution Bench laid down that opinion which
embodies the greatest common measures of the
agreement among the Bench is to be accepted the
decision of the Court. Thus, for culling out the
decision of the Court in a case where there are
several opinions, on which there is greatest common
measure of agreement is the decision of the Court.
123. We now revert back to the judgment of Indra
Sawhney to find out what is the greatest common
measures of the agreement between the Judges with
regard to the reservation to the extent of 50%.
Justice B.P. Jeevan Reddy for himself, M.H. Kania,
109
CJ, M.N.Venkatachaliah, A.M. Ahmadi, JJ., has
elaborately dealt with the extent of the reservation
under Article 16(4). In paragraph 809 conclusion was
recorded by the Court that reservations contemplated
under Article 16(4) should not exceed 50%. In
paragraph 810 it was observed that in certain extraordinary circumstances, some relaxation in this
strict rule of 50% may become imperative. Paragraphs
809 and 810 are to following effect:
“809. From the above discussion, the
irresistible conclusion that follows is
that the reservations contemplated in
clause (4) of Article 16 should not exceed
50%.
810. While 50% shall be the rule, it is
necessary not to put out of consideration
certain extraordinary situations inherent
in the great diversity of this country and
the people. It might happen that in far
flung and remote areas the population
inhabiting those areas might, on account
of their being out of the mainstream of
national life and in view of conditions
peculiar to and characteristical to them,
need to be treated in a different way,
some relaxation in this strict rule may
become imperative. In doing so, extreme
caution is to be exercised and a special
case made out.”
110
124. Justice S. Ratnavel Pandian while delivering a
separate judgment has expressed his disagreement
with the proposition of fixing the reservation for
socially and educationally backward classes at 50%
as a maximum limit. In paragraph 243(9) following
was laid down by Justice Pandian:
"243(9) No maximum ceiling of reservation
can be fixed under Article 16(4) of the
Constitution for reservation of
appointments or posts in favour of any
backward class of citizens “in the
services under the State”. The decisions
fixing the percentage of reservation only
up to the maximum of 50% are
unsustainable.”
125. Justice Thommen, Justice Kuldip Singh and
Justice R.M. Sahai took the view that reservation in
all cases should remain below 50% of total number of
seats. Paragraph 323(8) of Justice Thommen's opinion
is as follows:
"323(8) Reservation in all cases must be
confined to a minority of available posts
or seats so as not to unduly sacrifice
merits. The number of seats or posts
reserved under Article 15 or Article 16
must at all times remain well below 50% of
the total number of seats or posts.”
111
126. Justice Kuldip Singh also in paragraph 384(i)
expressed his opinion in accord with Justice R.M.
Sahai which is as follows:
"384(i) that the reservations under
Article 16(4) must remain below 50% and
under no circumstance be permitted to go
beyond 50%. Any reservation beyond 50% is
constitutionally invalid.”
127. Justice R.M. Sahai in paragraph 619(i) held
that reservation should in no case exceed 50%.
Justice T.K. Thommen, Justice Kuldip Singh and
Justice R.M. Sahai delivered dissenting opinion.
128. Now, we come to the judgment delivered by
Justice P.B. Sawant who delivered concurring
opinion. Two paragraphs of the judgment of Justice
Sawant are relevant to notice. In paragraph 518
justice Sawant observed that there is no legal
infirmity in keeping the reservations under
clause(4) alone or under clause (4) and clause (1)
of Article 16 together, exceeding 50%. However,
validity of the extent of excess of reservations
over 50% would depend upon the facts and
circumstances of each case. In the same paragraph
112
Justice Sawant, however, observed that it would
ordinarily be wise and nothing much would be lost,
if the intentions of the Framers of the Constitution
and the observations of Dr. Ambedkar, on the subject
be kept in mind. Justice Sawant obviously referred
to speech of Dr. Ambedkar dated 30.11.1948 where Dr.
Ambedkar has categorically stated that reservation
under Article 16(4) shall be confined to minority of
seats. However, in paragraph 552 justice Sawant has
recorded his answers and in answer to Question No.4
following was stated:
“552........
Question 4:
Ordinarily, the reservations kept both
under Article 16(1) and 16(4) together
should not exceed 50 per cent of the
appointments in a grade, cadre or service
in any particular year. It is only for
extraordinary reasons that this percentage
may be exceeded. However, every excess
over 50 per cent will have to be justified
on valid grounds which grounds will have
to be specifically made out.”
129. The above opinion of Justice Sawant is
completely in accord with the opinion expressed by
Justice B.P. Jeevan Reddy in paragraphs 809 and 810.
113
The opinion of Justice Sawant expressed in the above
paragraph is that ordinarily, the reservations under
Article 16(1) and 16(4) should not exceed 50% and
it is only in extra-ordinary circumstances that
this percentage may be exceeded which is also the
opinion expressed by Justice B.P. Jeevan Reddy.
Applying the principle of Constitution Bench of this
Court in Rajnarain Singh (supra), the opinion
embodies the greatest common measure of agreement
between the opinions expressed. Thus, the majority
opinion, the ratio of judgment of Indra Sawhney as
expressed by the majority is one which is expressed
in paragraphs 809 and 810 of the judgment of Justice
B.P. Jeevan Reddy. The submission of Shri Mukul
Rohtagi cannot be accepted that majority opinion of
Indra Sawhney is that 50% can be breached. The
majority opinion as noted above is that normally
reservation should not exceed 50% and it is only in
extra-ordinary circumstances it can exceed 50%. What
can be the extra-ordinary circumstances have been
indicated in paragraph 810.
114
130. Alternatively if we again look to the opinion
in all six judgments, we notice :
(a) Justice B.P. Jeevan Reddy (for himself
and three other Judges) held in
paragraph 809 that the reservation
contemplated in clause (4) of Article
16 should not exceed 50%.
(b) Justice Thommen, Justice Kuldip Singh
and Justice Sahai in their separate
opinion held that reservation under
Article 16(4) should not exceed 50%.
131. Thus greatest common measure of agreement in
six separate judgments delivered in Indra Sawhney is
that:
(i) Reservation under Article 16(4)
should not exceed 50%.
(ii) For exceeding reservation beyond 50%
extraordinary circumstance as
indicated in paragraph 810 of the
judgment of Justice Jeevan Reddy
should exist, for which extreme
caution is to be exercised.
132. The above is the ratio of Indra Sawhney
judgment.
115
133. We, thus, do not find any good ground to
revisit Indra Sawhney or to refer the same to a
larger Bench on the above ground urged.
134.Now, we come to the second ground pressed by
Shri Rohtagi is that different Judges from 1993 till
date have spoken in different voices with regard to
reservation under Article 15(4) and 16(4) which is a
good ground to refer Indra Sawhney to a larger
Bench.
135.We may notice the Constitution Bench judgment of
this Court in M.R. Balaji and others vs. State of
Mysore and others, AIR 1963 SC 649, in which this
Court while considering Article 15(4) had laid down
that reservation under Article 15(4) ordinarily,
speaking generally and in a broad manner special
provision should be less than 50%, how much less
than 50% would depend upon the prevailing
circumstances in each case. The Constitution Bench
in the above case was considering the challenge to
order passed by the State of Mysore that 68% of the
seats available for admission to the Engineering and
116
Medical Colleges and to other technical institutions
were reserved and only 32% remain available to the
merit pool. The question about the extent of the
special provision which would be competent to State
to make under Article 15(4) was also examined by the
Constitution Bench. The Constitution Bench speaking
through Justice P.B. Gajendra Gadkar stated
following in paragraph 34:
“34..........A special provision
contemplated by Article 15(4) like
reservation of posts and appointments
contemplated by Article 16(4) must be
within reasonable limits. The interests of
weaker sections of society which are a
first charge on the States and the Centre
have to be adjusted with the interests of
the community as a whole. The adjustment
of these competing claims is undoubtedly a
difficult matter, but if under the guise
of making a special provision, State
reserves practically all the seats
available in all the colleges, that
clearly would be subverting the object of
Article 15(4). In this matter again, we
are reluctant to say definitely what would
be a proper provision to make. Speaking
generally and in a broad way, a special
provision should be less than 50%; how
much less than 50% would depend upon the
present prevailing circumstances in each
case.”
117
136. The Constitution Bench also after noticing the
judgment of this Court in General Manager, Southern
Railway, Personnel Officer(Reservation), Southern
Railway vs. Rangachari, AIR 1962 SC 36, observed
that what is true in regard to Article 15(4) is
equally true in Article 16(4). Following
observations were made in paragraph 37:
“37. ….Therefore, what is true in regard
to Article 15(4) is equally true in regard to
Article 16(4). There can be no doubt that the
Constitution-makers assumed, as they were
entitled to, that while making adequate
reservation under Article 16(4), care would be
taken not to provide for unreasonable,
excessive or extravagant reservation, for that
would, by eliminating general competition in a
large field and by creating wide-spread
dissatisfaction amongst the employees,
materially affect efficiency. Therefore, like
the special provision improperly made under
Article 15(4), reservation made under Article
16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a
fraud on the Constitution. …”
137. The reservation ought to be less than 50% was
spoken in the above Constitution Bench judgment.
138.The next Constitution Bench judgment which noted
the judgment in M.R. Balaji (supra) and applied the
118
percentage of 50% on the carry forward rule is T.
Devadasan. The first judgment in which a discordant
note with regard to 50% limit of reservation was
expressed is the judgment of this Court in State of
Kerala and another vs. N.M. Thomas and others, 1976
(2) SCC 310, In the above case the Constitution
Bench had occasion to examine Rule 13-AA of Kerala
State and Subordinate Services Rules, 1958 which
empower the State to grant exemption for a specific
period to any member or member belonging to
Scheduled Castes and Scheduled Tribes from passing
the test referred to in Rule 13 and Rule 13-A. The
State of Kerala granted exemption to member of SC
and ST from passing of the test, N.M. Thomas,
respondent had filed writ petition in the High Court
asking for declaration that the Rule 13-AA as
unconstitutional. The grievance of the respondent
was that by virtue of exemption granted to members
of the SC they have been promoted earlier than the
respondent, although they had not passed the test.
The High Court allowed the writ petition against
which judgment the State of Kerala had come up in
119
appeal. The appeal was allowed and Rule 13-AA was
held to be valid. The Constitution Bench judgment of
the Court was delivered by Chief Justice, A.N. Ray
with whom Justice K.K. Mathew, Justice M.H. Beg,
Justice V.R. Krishna Iyer and Justice S. Murtaza
Fazal Ali concurred by delivering separate opinions.
Two Judges, namely, Justice H.R. Khanna and Justice
A.C. Gupta delivered dissenting opinion. With regard
to extent of reservation upto 50% only two Judges,
namely, Justice Fazal Ali and Justice Krishna Iyer
has expressed the opinion. Justice Beg noticed the
Constitution Bench judgments of this Court in M.R.
Balaji and T.Devadasan, which had held that more
than 50% reservation for backward class would
violate the principle of reasonableness. No opinion
of his own was expressed by Justice Beg. Justice
Fazal Ali also in his judgment had noted 50% ceiling
of reservation but observed that the above is only
rule of caution and does not exhaust all categories.
In paragraph 191 Justice Fazal Ali considered the
question and following was laid down:
120
“191. This means that the reservation
should be within the permissible limits
and should not be a cloak to fill all the
posts belonging to a particular class of
citizens and thus violate Article 16(1) of
the Constitution indirectly. At the same
time clause (4) of Article 16 does not fix
any limit on the power of the Government
to make reservation. Since clause (4) is a
part of Article 16 of the Constitution it
is manifest that the State cannot be
allowed to indulge in excessive
reservation so as to defeat the policy
contained in Article 16(1). As to what
would be a suitable reservation within
permissible limits will depend upon the
facts and circumstances of each case and
no hard and fast rule can be laid down,
nor can this matter be reduced to a
mathematical formula so as to be adhered
to in all cases. Decided cases of this
Court have no doubt laid down that the
percentage of reservation should not
exceed 50 per cent. As I read the
authorities, this is, however, a rule of
caution and does not exhaust all
categories. Suppose for instance a State
has a large number of backward classes of
citizens which constitute 80 per cent of
the population and the Government, in
order to give them proper representation,
reserves 80 per cent of the jobs for them,
can it be said that the percentage of
reservation is bad and violates the
permissible limits of clause (4) of
Article 16? The answer must necessarily be
in the negative. The dominant object of
this provision is to take steps to make
inadequate representation adequate.”
121
139. Justice Krishna Iyer in paragraph 143 of the
judgment expressed his concurrence with the opinion
of Justice Fazal Ali that arithmetical limit of 50%
in any one year set by some earlier rulings cannot
perhaps be pressed too far. Following observations
were made in paragraph 143:
“143. ... I agree with my learned Brother
Fazal Ali, J., in the view that the
arithmetical limit of 50 per cent in any
one year set by some earlier rulings
cannot perhaps be pressed too far. Overall
representation in a department does not
depend on recruitment in a particular
year, but the total strength of a cadre. I
agree with his construction of Article
16(4) and his view about the “carry
forward” rule.
140. With regard to 50% reservation limit, above
are only observations made by two Hon'ble Judges in
seven-Judge Constitution Bench. It is true that
Justice Fazal Ali expressed his discordant note with
the ceiling of 50% but the observations as noted
above were not the decision of the seven-Judge
Constitution Bench judgment.
122
141. In T. Devadasn vs. Union of India and another,
AIR 1964 SC 179, a Constitution Bench of this Court
had occasion to examine the carry forward rule in a
recruitment under the Union of India. This Court had
noticed M.R. Balaji and held that what was laid down
in M.R. Balaji would apply in the above case.
Referring to M.R. Balaji following was laid down in
paragraph 16 to the following effect:
“16. The startling effect of the carry
forward rule as modified in 1955 would be
apparent if in the illustration which we
have taken there were in the third year 50
total vacancies instead of 100. Out of
these 50 vacancies 9 would be reserved for
the Scheduled Castes and Tribes, adding to
that, the 36 carried forward from the two
previous years, we would have a total of
45 reserved vacancies out of 50, that is,
a percentage of 90. In the case before us
45 vacancies have actually been filled out
of which 29 have gone to members of the
Scheduled Castes and Tribes on the basis
of reservation permitted by the carry
forward rule. This comes to about 64.4% of
reservation. Such being the result of the
operation of the carry forward rule we
must, on the basis of the decision
in Balaji case [AIR 1963 SC 649] hold that
the rule is bad. Indeed, even in General
Manager Southern Railway v.
Rangachari [(1962) 2 SCR 586] which is a
case in which reservation of vacancies to
123
be filled by promotion was upheld by this
Court, Gajendragadkar, J., who delivered
the majority judgment observed:
“It is also true that the
reservation which can be made under
Article 16(4) is intended merely to
give adequate representation to
backward communities. It cannot be
used for creating monopolies or for
unduly or illegitimately disturbing
the legitimate interests of other
employees. In exercising the powers
under Article 16(4) the problem of
adequate representation of the
backward class of citizens must be
fairly and objectively considered and
an attempt must always be made to
strike a reasonable balance between
the claims of backward classes and the
claims of other employees as well as
the important consideration of the
efficiency of administration;….”
It is clear from both these decisions
that the problem of giving adequate
representation to members of backward
classes enjoined by Article 16(4) of the
Constitution is not to be tackled by
framing a general rule without bearing in
mind its repercussions from year to year.
What precise method should be adopted for
this purpose is a matter for the
Government to consider. It is enough for
us to say that while any method can be
evolved by the Government it must strike
“a reasonable balance between the claims
of the backward classes and claims of
other employees” as pointed out in Balaji
case [AIR 1963 SC 649].”
124
142. In the above case Justice Subba Rao has
expressed dissenting opinion. Justice Subba Rao
observed that what was held in M.R. Balaji cannot be
applied in the case of reservation of appointment in
the matter of recruitment. Following observation was
made by Justice Subba Rao in paragraph 30:
“30. In the instant case, the State made
a provision; adopting the principle of
“carry forward”. Instead of fixing a
higher percentage in the second and third
selections based upon the earlier results,
it directed that the vacancies reserved in
one selection for the said Castes and
Tribes but not filled up by them but
filled up by other candidates, should be
added to the quota fixed for the said
Castes and Tribes in the next selection
and likewise in the succeeding selection.
As the posts reserved in the first year
for the said Castes and Tribes were filled
up by non-Scheduled Caste and nonScheduled Tribe applicants, the result was
that in the next selection the posts
available to the latter was
proportionately reduced. This provision
certainly caused hardship to the
individuals who applied for the second or
the third selection, as the case may be,
though the non-Scheduled Castes and nonScheduled Tribes, taken as one unit, were
benefited in the earlier selection or
selections. This injustice to individuals,
which is inherent in any scheme of
125
reservation cannot, in my view, make the
provision for reservation nonetheless a
provision for reservation.”
143. In Akhil Bharatiya Sochit Karamchari Sangh
(Railway) Represented by its Assistant General
Secretary on behalf of the Association vs. Union of
India and others, (1981) 1 SCC 246, Justice O.
Chinnappa Reddy observed that there is no fixed
ceiling to reservation or preferential treatment to
the Scheduled Castes and Scheduled Tribes though
generally reservation may not be far in excess of
50%. Following words were spoken in paragraph 135:
“135. There is no fixed ceiling to
reservation or preferential treatment in
favour of the Scheduled Castes and
Scheduled Tribes though generally
reservation may not be far in excess of
fifty per cent. There is no rigidity about
the fifty per cent rule which is only a
convenient guideline laid down by Judges.
144. In K.C. Vasanth Kumar and another vs. State of
Karnata, 1985 (Supp) SCC 714, O. Chinnappa Reddy, J.
after noticing the Balaji observed that percentage
126
of reservations is not a matter upon which a court
may pronounce with no material at hand. Following
observations were made by Justice O. Chinnappa Reddy
in paragraph 57:
“57. The Balaji [M.R. Balaji v. State of
Mysore, AIR 1963 SC 649,Court then
considered the question of the extent of
the special provision which the State
would be competent to make under Article
15(4). ……
We should think that that is a matter for
experts in management and administration.
There might be posts or technical courses
for which only the best can be admitted
and others might be posts and technical
courses for which a minimum qualification
would also serve. The percentage of
reservations is not a matter upon which a
court may pronounce with no material at
hand. For a court to say that reservations
should not exceed 40 per cent 50 per cent
or 60 per cent, would be arbitrary and the
Constitution does not permit us to be
arbitrary. Though in the Balaji case [M.R.
Balaji v. State of Mysore, AIR 1963 SC 649
: 1963 Supp (1) SCR 439] , the Court
thought that generally and in a broad way
a special provision should be less than 50
per cent, and how much less than 50 per
cent would depend upon the relevant
prevailing circumstances in each case, the
Court confessed: “In this matter again, we
are reluctant to say definitely what would
be a proper provision to make.” All that
the Court would finally say was that in
127
the circumstances of the case before them,
a reservation of 68 per cent was
inconsistent with Article 15(4) of the
Constitution. We are not prepared to
read Balaji [M.R. Balaji v. State of
Mysore, AIR 1963 SC 649 : 1963 Supp (1)
SCR 439] as arbitrarily laying down 50 per
cent as the outer limit of reservation. ……
(emphasis supplied)”
145. In the same judgment of K.C. Vasanth, Justice
E.S. Venkataramiah has expressed a contrary opinion
to one which was expressed by Justice O. Chinnappa
Reddy in paragraph 149. Justice Venkataramiah held
that 50% rule has not been unsettled by the majority
in N.M. Thomas. In paragraph 149 following was laid
down:
"149. After carefully going through all
the seven opinions in the above case, it
is difficult to hold that the settled view
of this Court that the reservation under
Article 15(4) or Article 16(4) could not
be more than 50% has been unsettled by a
majority on the Bench which decided this
case.”
146. The reference of Judges, who spoke in different
voices are the judgments as noted above. It is
relevant to notice that neither in N.M. Thomas nor
128
in K C Basant case the decision of the Court was to
disapprove 50% ceiling as fixed by M.R. Balaji. It
is although true that Justice Fazal Ali, Justice
O.Chinnappa Reddy and Justice Krishna Iyer have
expressed their doubt about the advisability of 50%
rule. Another judgment which has been referred to is
the judgment of this Court in State of Punjab and
Hira Lal and others, 1970(3) SCC 567, where
K.S.Hegde, J. speaking for a three-Judge Bench had
observed that the question of reservation to be made
is primarily matter for the State to decide.
However, no observation was made by Justice Hegde in
the above case regarding M.R. Balaji case.
147. The judgment of this Court in N.M. Thomas,
Akhil Bharatiya Karamchari Sangh and State of Punjab
and even dissenting judgment of Justice Krishna Iyer
in Devadasan and Akhil Bharatiya Kaamchari Sangh
have been referred to and considered by nine-Judge
Constitution Bench of this Court in Indra Sawhney.
In Indra Sawhney, Justice B.P. Jeevan Reddy while
considering the question No.6 noted M.R. Balaji,
129
Devadasan, N.M. Thomas and concluded that
reservation contemplated in clause (4) of Article 16
should not exceed 50%. After considering all the
above cases which according to Shri Rohtagi are
discordant notes, a larger nine-Judge Constitution
Bench having held that the reservation contemplated
in clause (4) of Article 16 should not exceed 50% of
earlier doubt raised by the Judges as noted above
cannot be relied any further. The larger Bench in
Indra Sawhney has settled the law after considering
all earlier decisions of this Court as well as
reliance of opinion of few Judges as noted and as
relied by Shri Rohtagi is of no avail and cannot
furnish any ground to refer judgment of Indra
Sawhney to a larger Bench.
148. One more judgment delivered after Indra
Sawhney has been relied by Shri Rohtagi that is S.V.
Joshi and others vs. State of Karnataka and others,
(2012) 7 SCC 41. Shri Rohtagi submits that this
Court in S.V. Joshi in paragraph 4 referring to
M.Nagaraj vs. Union of India, (2006) 8 SCC 212, held
130
if a State wants to exceed 50% reservation, then it
is required to base its decision on the quantifiable
data. In paragraph 4 following was laid down:
“4. Subsequent to the filing of the
above writ petitions, Articles 15 and 16
of the Constitution have been amended vide
the Constitution (Ninety-third Amendment)
Act, 2005, and the Constitution (Eightyfirst Amendment) Act, 2000, respectively,
which Amendment Acts have been the
subject-matter of subsequent decisions of
this Court in M. Nagaraj v. Union of
India (2006) 8 SCC 212, and Ashoka Kumar
Thakur v. Union of India [(2008) 6 SCC 1]
in which, inter alia, it has been laid
down that if a State wants to exceed fifty
per cent reservation, then it is required
to base its decision on the quantifiable
data. In the present case, this exercise
has not been done.”
149. The observation was made in paragraph 4, as
noted above, that the Constitution Bench in M.
Nagaraj has laid down that if a State wants to
exceed 50% reservation, then it is required to base
its decision on a quantifiable data, which is clear
misreading of judgment of the Constitution Bench in
M. Nagaraj. In M. Nagaraj, the Constitution Bench
has not laid down any proposition to the effect that
131
if a State wants to exceed 50% reservation, then it
is required to base its decision on the quantifiable
data. To the contrary the Constitution Bench of this
Court in M. Nagaraj has reiterated the numerical
bench mark like 50% rule in Indra Sawhney's case.
Following observation was made by the Constitution
Bench in paragraphs 120 and 122:
“120......In addition to the above
requirements this Court in Indra
Sawhney [1992 Supp (3) SCC 217] has
evolved numerical benchmarks like ceiling
limit of 50% based on post-specific roster
coupled with the concept of replacement to
provide immunity against the charge of
discrimination.
122. We reiterate that the ceiling limit
of 50%, the concept of creamy layer and
the compelling reasons, namely,
backwardness, inadequacy of representation
and overall administrative efficiency are
all constitutional requirements without
which the structure of equality of
opportunity in Article 16 would collapse.”
150. The Constitution Bench judgment of this Court
in Ashok Kumar Thakur has also not laid down any
proposition which has been referred in paragraph 4
132
of S.V. Joshi. This Court's judgment of three-Judge
Bench in S.V. Joshi case does not support the
contention of Shri Rohtagi.
151.In view of the foregoing discussion, we do not
find any substance in the second ground of Shri
Rohtagi that this Court's judgment of Indra Sawhney
to be referred to a larger Bench.
152. The judgment of Indra Sawhney has been
followed by this Court in a number of cases
including at least in the following four
Constitution Bench judgments:
(1) Post Graduate Institute of Medical Education &
Research, Chandigarh and others vs. Faculty
Association and others;
(2) M. Nagaraj and others vs. Union of India and
others, 2006(8) SCC 212;
(3) Krishna Murthy (Dr.) and others vs. Union of
India and anoter 2010 (7) SCC 202
Which judgment though was considering
reservation under Article 243D and 243T has
applied 50% ceiling as laid down in Balaji.
133
(4) The Constitution Bench judgment of this Court
in Chebrolu Leela Prasad Rao & Ors. vs. State of
A.P. & Ors., 2020(7) Scale 162, reiterated the
principle as referred and reiterated that outer
limit is 50% as specified in Indra Sawhney's case.
153. We move to ground Nos.3 and 4 as formulated by
Shri Mukul Rohtagi to make a reference to the larger
Bench.
154.The Constitution, the paramount law of the
country has given to the Indian citizens the basic
freedom and equality which are meant to be lasting
and permanent. The Constitution of India is the
vehicle by which the goals set out in it are to be
achieved. The right from primitive society upto the
organised nations the most cherished right which all
human beings sought was the right to equality. The
Preamble of our Constitution reflects a deep
deliberations and precision in choosing ideal and
aspirations of people which shall guide all those
who have to govern. Equality of status and
opportunity is one of the noble objectives of the
framers of the Constitution. The doctrine of
equality before law is part of rule of law which
134
pervades the Indian Constitution. Justice Y.V.
Chandrachud in Smt. Indira Nehru Gandhi vs. Raj
Narain, (1975) Supp.SCC 1 has referred to equality
of status and opportunity as forming part of the
basic structure of the Constitution. In paragraph
664 following was observed:
“664.I consider it beyond the pale of
reasonable controversy that if there be
any unamendable features of the
Constitution on the score that they form a
part of the basic structure of the
Constitution, they are that: (i) Indian
sovereign democratic republic; (ii)
Equality of status and opportunity shall
be secured to all its citizens; (iii) The
State shall have no religion of its own
and all persons shall be equally entitled
to freedom of conscience and the right
freely to profess, practise and propagate
religion and that (iv) the nation oil all
be governed by a Government of laws, not
of men. These, in my opinion, are the
pillars of our constitutional philosophy,
the pillars, therefore, of the basic
structure of the Constitution.”
155. Articles 15 and 16 of the Constitution which
are facets of right of equality were incorporated as
fundamental rights to translate the ideals and
objectives of the Constitution and to give
135
opportunities to the backward class of the society
so as to enable them to catch up those who are ahead
of them. Article 15(1) and Article 16(1) of the
Constitution are the provisions engrafted to realise
substantive equality where Articles 15(4) and 16(4)
are to realise the protective equality. Articles
15(1) and 16(1) are the fundamental rights of the
citizens whereas Articles 15(4) and 16(4) are the
obligations of the States. Justice B.P. Jeevan Reddy
in Indra Sawhney in paragraph 641 has said that the
equality has been single greatest craving of all
human beings at all points of time. For finding out
the objectives and the intention of the framers of
the Constitution we need to refer to Constituent
Assembly debates on draft Article 10 (Article 16 of
the Constitution) held on 30.11.1948 (Book 2 Volume
No,VII), Dr. Ambedkar's reply on draft Article 10
has been referred to and quoted in all six judgments
delivered in Indra Sahwney case. What was the
objective of Article 10, 10(1) and 10(3) has been
explained by Dr. Ambedkar which speech has been time
136
and again referred to remind us the objective of the
above fundamental right.
156. Dr. Ambedkar referred to Article 10(1) as a
generic principle. Dr. Ambedkar observed that if the
reservation is to be consistent on the sub-clause
(1) of Article 10 it must confine to the reservation
of minority of seats. Following are the part of
speech of Dr. B.R. Ambedkar in the Constituent
Assembly:
“ If honourable Members will bear
these facts in mind--the three principles,
we had to reconcile,--they will see that
no better formula could be produced than
the one that is embodied in sub-clause (3)
of article 10 of the Constitution; they
will find that the view of those who
believe and hold that there shall be
equality of opportunity, has been embodied
in sub-clause (1) of Article 10. It is a
generic principle. At the same time, as I
said, we had to reconcile this formula
with the demand made by certain
communities that the administration which
has now--for historical reasons--been
controlled by one community or a few
communities, that situation should
disappear and that the others also must
have an opportunity of getting into the
public services. Supposing, for instance,
we were to concede in full the demand of
those communities who have not been so far
employed in the public services to the
fullest extent, what would really happen
137
is, we shall be completely destroying the
first proposition upon which we are all
agreed, namely, that there shall be an
equality of opportunity. Let me give an
illustration. Supposing, for instance,
reservations were made for a community or
a collection of communities, the total of
which came to something like 70 per cent.
of the total posts under the State and
only 30 per cent. are retained as the
unreserved. Could anybody say that the
reservation of 30 per cent. as open to
general competition would be satisfactory
from the point of view of giving effect to
the first principle, namely, that there
shall be equality of opportunity? It
cannot be in my judgment. Therefore the
seats to be reserved, if the reservation
is to be consistent with sub-clause (1) of
Article 10, must be confined to a minority
of seats. It is then only that the first
principle could find its place in the
Constitution and effective in operation.”
157. The above views of Dr. Ambedkar expressed in
the Constituent Assembly for balancing the draft
Articles 10(1) and 10(3) equivalent to Articles 16
and 16(4) have been referred to and relied by this
Court in Indra Sawhney as well as in other cases.
158. Shri Rohtagi submits that this Court in Balaji
has held sub-clause (4) of Article 16 as exception
to Article 16(1) which was the premise for fixing
50%. In N.M. Thomas and Indra Sawhney now it is held
138
that Article 16 sub-clause (4) is not exception to
Article 16(1), the submission is that in view of the
above holding in N.M. Thomas and Indra Sawhney the
ceiling of 50% has to go. It is true that sevenJudge Constitution Bench in N.M. Thomas held that
Article 16(4) is not an exception to Article 16(1)
which was noticed in paragraph 713 of the judgment
of Indra Sawhney. Justice B.P. Jeevan Reddy in
paragraph 733 said “At this stage, we see to clarify
one particular aspect. Article 16(1) is a facet of
Article 14, just as Article 14 permits reasonable
classification, so does Article 16(1)”. In paragraph
741 following was laid down:
“741. ....In our respectful opinion, the
view taken by the majority
in Thomas [(1976) 2 SCC 310, 380] is the
correct one. We too believe that Article
16(1) does permit reasonable
classification for ensuring attainment of
the equality of opportunity assured by it.
For assuring equality of opportunity, it
may well be necessary in certain
situations to treat unequally situated
persons unequally. Not doing so, would
perpetuate and accentuate inequality.
Article 16(4) is an instance of such
classification, put in to place the matter
beyond controversy. The “backward class of
citizens” are classified as a separate
category deserving a special treatment in
139
the nature of reservation of
appointments/posts in the services of the
State. Accordingly, we hold that clause
(4) of Article 16 is not exception to
clause (1) of Article 16. It is an
instance of classification implicit in and
permitted by clause (1)......”
159. As laid down by the Constitution Bench in Indra
Sawhney, we proceed on the premise that Article
16(4) is not an exception to Article 16(1). It is
also held that Article 16(4) is a facet to Article
16(1) and permits reasonable classification as is
permitted by Article 14.
160. In Balaji, the Constitution Bench did not base
its decision only on the observation that Article
15(4) is exception and proviso to Article 15(1).
Article 15(4) was referred to as a special
provision. In paragraph 34 of Balaji it is also laid
down that special provision contemplated by Article
15(4) like reservation of posts by Article 16(4)
must be within the reasonable limitation. We again
quote the relevant observation from paragraph 34:
“34. ...That is not to say that
reservation should not be adopted;
140
reservation should and must be adopted to
advance the prospects of the weaker
sections of society, but in providing for
special measures in that behalf care
should be taken not to exclude admission
to higher educational centres to deserving
and qualified candidates of other
communities. A special provision
contemplated by Article 15(4) like
reservation of posts and appointments
contemplated by Article 16(4) must be
within reasonable limits. The interests of
weaker sections of society which are a
first charge on the States and the Centre
have to be adjusted with the interests of
the community as a whole. The adjustment
of these competing claims is undoubtedly a
difficult matter, but if under the guise
of making a special provision, a State
reserves practically all the seats
available in all the colleges, that
clearly would be subverting the object of
Article 15(4). In this matter again, we
are reluctant to say definitely what would
be a proper provision to make. Speaking
generally and in a broad way, a special
provision should be less than 50%; how
much less than 50% would depend upon the
present prevailing circumstances in each
case...”
161. Both Shri Mukul Rohtagi and Shri Kapil Sibal
submits that constitutional provisions contained in
Articles 15 and 16 do not permit laying down any
percentage in measures to be taken under Articles
15(4) and 16(4). It is submitted that fixation of
141
percentage of 50% cannot be said to be
constitutional. We need to answer the question from
where does 50% rule come from?
162. The 50% rule spoken in Balaji and affirmed in
Indra Sawhney is to fulfill the objective of
equality as engrafted in Article 14 of which
Articles 15 and 16 are facets. The Indra Sawhney
itself gives answer of the question. In paragraph
807 of Indra Sawhney held that what is more
reasonable than to say that reservation under clause
(4) shall not exceed 50% of the appointment. 50% has
been said to be reasonable and it is to attain the
objective of equality. In paragraph 807 Justice
Jeevan Reddy states:
“807. We must, however, point out that
clause (4) speaks of adequate
representation and not proportionate
representation. Adequate representation
cannot be read as proportionate
representation. Principle of proportionate
representation is accepted only in
Articles 330 and 332 of the Constitution
and that too for a limited period. These
articles speak of reservation of seats in
Lok Sabha and the State legislatures in
favour of Scheduled Tribes and Scheduled
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Castes proportionate to their population,
but they are only temporary and special
provisions. It is therefore not possible
to accept the theory of proportionate
representation though the proportion of
population of backward classes to the
total population would certainly be
relevant. Just as every power must be
exercised reasonably and fairly, the power
conferred by clause (4) of Article 16
should also be exercised in a fair manner
and within reasonable limits — and what is
more reasonable than to say that
reservation under clause (4) shall not
exceed 50% of the appointments or posts,
barring certain extraordinary situations
as explained hereinafter. From this point of
view, the 27% reservation provided by the
impugned Memorandums in favour of backward
classes is well within the reasonable
limits. Together with reservation in favour
of Scheduled Castes
and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference
may be had to the Full Bench decision of the
Andhra Pradesh High Court in V. Narayana
Rao v. State of A.P. [AIR 1987 AP 53 : 1987
Lab IC 152 : (1986) 2 Andh LT 258] ,
striking down the enhancement of reservation
from 25% to 44% for OBCs. The said
enhancement had the effect of taking the
total reservation under Article 16(4) to
65%.”
163. In paragraph 808, Justice Jeevan Reddy referred
to speech of Dr. Ambedkar where he said that the
reservation should be confined (to a minority of
seats). The expression minority of seats”. When
143
translated into figure the expression less than 50%
comes into operation.
164. To change the 50% limit is to have a society
which is not founded on equality but based on caste
rule. The democracy is an essential feature of our
Constitution and part of our basic structure. If the
reservation goes above 50% limit which is a
reasonable, it will be slippery slope, the political
pressure, make it hardly to reduce the same. Thus,
answer to the question posed is that the percentage
of 50% has been arrived at on the principle of
reasonability and achieves equality as enshrined by
Article 14 of which Articles 15 and 16 are facets.
165. We may notice one more submission of Shri
Rohtagi in the above context. Shri Rohtagi submits
that the Constitution of India is a living document,
ideas cannot remain frozen, even the thinking of the
framers of the Constitution cannot remain frozen for
time immemorial. Shri Rohtagi submits that due to
change in need of the society the law should change.
144
166. Justice J.M. Shalet and Justice K.N.
Grover,JJ. Speaking in His Holiness Kesavananda
Bharati Sripadagalvaru vs. State of Kerala and
another, (1973) 4 SCC 225, laid down following in
paragraph 482 and 634:
“482. These petitions which have been
argued for a very long time raise momentus
issues of great constitutional importance.
Our Constitution is unique, apart from
being the longest in the world. It is
meant for the second largest population
with diverse people speaking different
languages and professing varying
religions. It was chiselled and shaped by
great political leaders and legal
luminaries, most of whom had taken an
active part in the struggle for freedom
from the British yoke and who knew what
domination of a foreign rule meant in the
way of deprivation of basic freedoms and
from the point of view of exploitation of
the millions of Indians. The Constitution
is an organic document which must grow and
it must take stock of the vast socioeconomic problems, particularly, of
improving the lot of the common man
consistent with his dignity and the unity
of the nation.
634. Every Constitution is expected to
endure for a long time. Therefore, it must
necessarily be elastic. It is not possible
to place the society in a straightjacket.
The society grows, its requirements
change. The Constitution and the laws may
have to be changed to suit those needs. No
single generation can bind the course of
145
the generation to come. Hence every
Constitution, wisely drawn up, provides
for its own amendment.”
167. Shri Rohtagi has placed reliance on the
judgment of this Court in K.S. Puttaswamy and
another vs. Union of India and others, 2017(10)SCC
1, wherein in paragraph 476 following was laid down:
“476. However, the learned Attorney
General has argued in support of the
eight-Judge Bench and the six-Judge Bench,
stating that the Framers of the
Constitution expressly rejected the right
to privacy being made part of the
fundamental rights chapter of the
Constitution. While he may be right,
Constituent Assembly Debates make
interesting reading only to show us what
exactly the Framers had in mind when they
framed the Constitution of India. As will
be pointed out later in this judgment, our
judgments expressly recognise that the
Constitution governs the lives of 125
crore citizens of this country and must be
interpreted to respond to the changing
needs of society at different points in
time.”
168. Another judgment relied by Shri Rohtagi is in
Supreme Court Advocates-on-Record Association and
others vs. Union of India, 1993(4) SCC 441, wherein
in paragraph 16 following has been laid down:
146
“16. The proposition that the provisions
of the Constitution must be confined only
to the interpretation which the Framers,
with the conditions and outlook of their
time would have placed upon them is not
acceptable and is liable to be rejected
for more than one reason — firstly, some
of the current issues could not have been
foreseen; secondly, others would not have
been discussed and thirdly, still others
may be left over as controversial issues,
i.e. termed as deferred issues with
conflicting intentions. Beyond these
reasons, it is not easy or possible to
decipher as to what were the factors that
influenced the mind of the Framers at the
time of framing the Constitution when it
is juxtaposed to the present time. The
inevitable truth is that law is not static
and immutable but ever increasingly
dynamic and grows with the ongoing passage
of time.”
169. The time fleets, generations grow, society
changes, values and needs also change by time.
There can be no denial that law should change with
the changing time and changing needs of the society.
However, the proposition of law as noted above does
not render any help to the submission of Shri
Rohtagi that in view of needs of the society which
are changing 50% rule should be given up.
147
170. The constitutional measures of providing
reservation, giving concessions and other benefits
to backward classes including socially and
educationally backward class are all affirmative
measures. We have completed more than 73 years of
independence, the Maharashtra is one of the
developed States in the country which has highest
share in the country's GST i.e. 16%, higher share in
Direct Taxes-38% and higher contribution to
country's GDP, 38.88%. The goal of the Constitution
framers was to bring a caste-less society. The
directive principles of the State Policy cast
onerous obligation on the States to promote welfare
of the people by securing and protecting as
effectively as it may social order in which social
justice, economic and political shall inform all the
institutions of the national life. Providing
reservation for advancement of any socially and
educationally backward class in public services is
not the only means and method for improving the
welfare of backward class. The State ought to bring
other measures including providing educational
148
facilities to the members of backward class free of
cost, giving concession in fee, providing
opportunities for skill development to enable the
candidates from the backward class to be selfreliant.
171. We recall the observation made by Justice R.V.
Raveendran in Ashoka Kumar Thakur vs. Union of India
and others, 2008(6) SCC 1, where His Lordship held
that any provision for reservation is a temporary
crutch, such crutch by unnecessary prolonged use,
should not become a permanent liability. In words of
Justice Raveendran paragraph 666 is as follows:
“666. Caste has divided this country for
ages. It has hampered its growth. To
have a casteless society will be
realisation of a noble dream. To start
with, the effect of reservation may
appear to perpetuate caste. The
immediate effect of caste-based
reservation has been rather unfortunate.
In the pre-reservation era people wanted
to get rid of the backward tag—either
social or economical. But post
reservation, there is a tendency even
among those who are considered as
“forward”, to seek the “backward” tag,
in the hope of enjoying the benefits of
reservations. When more and more people
149
aspire for “backwardness” instead of
“forwardness” the country itself
stagnates. Be that as it may.
Reservation as an affirmative action is
required only for a limited period to
bring forward the socially and
educationally backward classes by giving
them a gentle supportive push. But if
there is no review after a reasonable
period and if reservation is continued,
the country will become a caste divided
society permanently. Instead of
developing a united society with
diversity, we will end up as a fractured
society forever suspicious of each
other. While affirmative discrimination
is a road to equality, care should be
taken that the road does not become a
rut in which the vehicle of progress
gets entrenched and stuck. Any provision
for reservation is a temporary crutch.
Such crutch by unnecessary prolonged
use, should not become a permanent
liability. It is significant that the
Constitution does not specifically
prescribe a casteless society nor tries
to abolish caste. But by barring
discrimination in the name of caste and
by providing for affirmative action
Constitution seeks to remove the
difference in status on the basis of
caste. When the differences in status
among castes are removed, all castes
will become equal. That will be a
beginning for a casteless egalitarian
society.”
172. We have no doubt that all Governments take
measures to improve the welfare of weaker sections
of the society but looking to the increased
150
requirement of providing education including higher
education to more and more sections of society other
means and measures have to be forged. In view of the
privatisation and liberalisation of the economy
public employment is not sufficient to cater the
needs of all. More avenues for providing
opportunities to members of the weaker sections of
the society and backward class to develop skills for
employment not necessary the public service. The
objectives engrafted in our Constituted and ideals
set by the Constitution for the society and the
Governments are still not achieved and have to be
pursued. There can be no quarrel that society
changes, law changes, people changes but that does
not mean that something which is good and proven to
be beneficial in maintaining equality in the society
should also be changed in the name of change alone.
173. In Ashoka Kumar Thakur vs. Union of India,
(supra), Justice Dalveer Bhandari has also laid
down that the balance should be struck to ensure
that reservation would remain reasonable. We are of
151
the considered opinion that the cap on percentage of
reservation as has been laid down by Constitution
Bench in Indra Sawhney is with the object of
striking a balance between the rights under Article
15(1) and 15(4) as well as Articles 16(1) and
16(4). The cap on percentage is to achieve principle
of equality and with the object to strike a balance
which cannot be said to be arbitrary or
unreasonable.
174. The judgment of Indra Sawhney is being followed
for more than a quarter century without there being
any doubt raised in any of the judgments about the
50%, the 50% rule has been repeatedly followed.
175. We may notice one more aspect in the above
respect. Granville Austin in “The Indian
Constitution: Cornerstone of a Nation” while
discussing the topic “The judiciary and the social
revolution” states:
"The members of the Constituent Assembly
brought to the framing of the Judicial
provisions of the Constitution an idealism
equalled only by that shown towards the
Fundamental Rights. Indeed, the Judiciary
152
was seen as an extension of the Rights,
for it was the courts that would give the
Rights force. The Judiciary was to be an
arm of the social revolution, upholding
the equality that Indians and longed for
during colonial days, but had not gainednot simply because the regime was
colonial, and perforce repressive, but
largely because the British had feared
that social change would endanger their
rule.”
176. The Constitution enjoins a constitutional duty
to interpret and protect the Constitution. This
Court is guardian of the Constitution.
177. We may also quote Justice Mathew, in
Keshavananda Bharati(Supra), where he reiterated
that judicial function is both creation and
application of law. The principle of Indra Sawhney
is both creation application of law. In paragraph,
1705, Justice Mathew says: -
“1705. The judicial function is, like
legislation, both creation and application of
law. The judicial function is ordinarily
determined by the general norms both as to
procedure and as to the contents of the norm
to be created, whereas legislation is usually
determined by the Constitution only in the
former respect. But that is a difference in
degree only. From a dynamic point of view, the
individual norm created by the judicial
153
decision is a stage in a process beginning
with the establishment of the first
Constitution, continued by legislation and
customs, and leading to the judicial
decisions. The Court not merely formulates
already existing law although it is
generally asserted to be so. It does not only
‘seek’ and ‘find’ the law existing
previous to its decision, it does not merely
pronounce the law which exists ready and
finished prior to its pronouncement. Both in
establishing the presence of the conditions
and in stipulating the sanction, the judicial
decision has a constitutive character. The
law-creating function of the courts is
especially manifest when the judicial decision
has the character of a precedent, and that
means when the judicial decision creates a
general norm. Where the courts are entitled
not only to apply pre-existing substantive law
in their decisions, but also to create new law
for concrete cases, there is a comprehensible
inclination to give these judicial decisions
the character of precedents. Within such a
legal system, courts are legislative organs in
exactly the same sense as the organ which is
called the legislator in the narrower and
ordinary sense of the term…””
178. In All India Reporter Karamchari Sangh and
others vs. All India Reporter Limited and others,
1988 Supp SCC 472, a three-Judge Bench speaking
through Justice Venkataramiah held that the
decisions of the Supreme Court which is a Court of
record, constitute a source of law apart from being
a binding precedent under Article 141. Following was
laid down in paragraph 11:
154
“11. .... Article 141 of the
Constitution provides that the law
declared by Supreme Court shall be binding
on all courts within the territory of
India. Even apart from Article 141 of the
Constitution the decisions of the Supreme
Court, which is a court of record,
constitute a source of law as they are the
judicial precedents of the highest court
of the land. ….”
179. This Court again in Nand Kishore vs. State of
Punjab, 1995(6) SCC 614, laid down that under
Article 141 law declared by this Court is of a
binding character and as commandful as the law made
by legislative body or authorized delegate of such
body. In paragraph 17 following was laid down:
“17. …Their Lordships' decisions declare the
existing law but do not enact any fresh
law”, is not in keeping with the plenary
function of the Supreme Court under Article
141 of the Constitution, for the Court is
not merely the interpreter of the law as
existing but much beyond that. The Court as
a wing of the State is by itself a source of
law. The law is what the Court says it is.
Patently the High Court fell into an error
in its appreciation of the role of this
Court.”
180. When the Constitution Bench in Indra Sawhney
held that 50% is upper limit of reservation under
155
Article 16(4), it is the law which is binding under
Article 141 and to be implemented.
181. The submission of Shri Kapil Sibal that the
judgment of Indra Sawhney is shackle to the
legislature in enacting the law does not commend us.
When the law is laid down by this Court that
reservation ought not to exceed 50% except in extraordinary circumstances all authorities including
legislature and executive are bound by the said law.
There is no question of putting any shackle. It is
the law which is binding on all.
182. This Court has laid down in a large number of
cases that reservation in super-specialties and
higher technical and in disciplines like atomic
research etc. are not to be given which is law
developed in the national interest. In paragraph
838, Indra Sawhney has noticed certain posts where
reservations are not conducive in public interest
and the national interest. Following has been held
in paragraph 838:
156
“838. While on Article 335, we are of
the opinion that there are certain
services and positions where either on
account of the nature of duties attached
to them or the level (in the hierarchy) at
which they obtain, merit as explained
hereinabove, alone counts. In such
situations, it may not be advisable to
provide for reservations. For example,
technical posts in research and
development organisations/departments/
institutions, in specialities and superspecialities in medicine, engineering and
other such courses in physical sciences
and mathematics, in defence services and
in the establishments connected therewith.
Similarly, in the case of posts at the
higher echelons e.g., Professors (in
Education), Pilots in Indian Airlines and
Air India, Scientists and Technicians in
nuclear and space application, provision
for reservation would not be advisable.”
182(a). If we accept the submission of the learned
counsel for the respondent to the logical extent
that since there is no indication in Articles 15 and
16 certain posts cannot be reserved, no such
exclusion could have been made. The law as existing
today is one which has been laid down in Indra
Sawhney in paragraph 838 which is a law spelt out
from the constitutional provisions including Article
15 and 16.
157
183. What has been laid down by the Constitution
Bench in Indra Sawhney in paragraphs 839, 840 and
859(8) is law declared by this Court and is to be
implemented also by all concerned. The Parliament
has passed the Central Educational Institutions
Reservation and Appointment Act, 2006 providing for
reservation- 15% for SC, 7-1/2%, 15%, 27% for other
classes in Central Educational Institutions
(Reservation in Admission) Act, 2006. Section 4
provides that Act not to apply in certain cases
which is to the following effect:
“Section 4 of the Act specifically says
that the provisions of Section 3 shall
(sic/not) apply to certain institutions.
Section 4 reads as under:
“4. Act not to apply in certain cases.—
The provisions of Section 3 of this Act
shall not apply to—
(a) a Central Educational Institution
established in the tribal areas referred
to in the Sixth Schedule to the
Constitution;
(b) the institutions of excellence,
research institutions, institutions of
158
national and strategic importance
specified in the Schedule to this Act:
Provided that the Central Government
may, as and when considered necessary, by
notification in the Official Gazette,
amend the Schedule;
(c) a Minority Educational Institution
as defined in this Act;
(d) a course or programme at high
levels of specialisation, including at
the post-doctoral level, within any
branch or study or faculty, which the
Central Government may, in consultation
with the appropriate authority, specify.”
184. Exclusion of reservation in above
Parliamentary enactment clearly indicates that law
declared by Indra Sawhney in paragraphs 839, 840 and
859 as noted above is being understood as a law and
being implemented, this reinforces our view that
ceiling limit of 50% for reservation as approved by
Indra Sawhney's case is a law within the meaning of
Article 141 and is to be implemented by all
concerned.
185. In view of the above discussion, ground Nos. 3
and 4 as urged by Shri Mukul Rohtagi do not furnish
159
any ground to review Indra Sawhney or to refer the
said judgment to the larger Constitution Bench.
REASON NO.5
186. Shri Rohtagi submits that Indra Sawhney
judgment being judgment on Article 16(4), its ratio
cannot be applied with regard to Article 15(4).
Justice Jeevan Reddy before proceeding to answer the
questions framed clearly observed that the debates
of the Constituent Assembly on Article 16 and the
decision of this Court on Articles 15 and 16 and few
decisions of US Supreme Court are helpful. The
observations of the Court that decision of this
Court on Article 16 and Article 15 are helpful
clearly indicate that principles which have been
discerned for interpreting Article 16 may also be
relevant for interpretation of Article 15. Justice
Jeevan Reddy has noted two early cases on Article 15
namely The State of Madras versus Champakam
Dorairajan, AIR 1951 SC 226 and B.Venkataramana
versus State of Tamil Nadu and Another, AIR 1951 SC
229. Justice Jeevan Reddy in paragraph 757 has
160
observed that although Balaji was not a case arising
under Article 16(4) but what is said about Article
15(4) came to be accepted as equally good and valid
for the purposes of Article 16(4). Justice Jeevan
Reddy said in paragraph 757:-
“757. Though Balaji was not a case arising
under Article 16(4), what it said about
Article 15(4)came to be accepted as
equally good and valid for the purpose of
Article 16(4). The formulations enunciated
with respect to Article 15(4) were,
without question, applied and adopted in
cases arising under Article 16(4). It is,
therefore, necessary to notice precisely
the formulations in Balaji relevant in
this behalf. ...
(underlined by us)”
187. It was further held in paragraph 808 that
clause (4) of Article 16 is a means of achieving the
objective of equality and it is nothing but
reinstatement of principle of equality enshrined in
Article 14. The relevant observation by Justice
Jeevan Reddy in paragraph 808 is as follows:
“808. It needs no emphasis to say that the
principle aim of Article 14 and 16 is
equality and equality of opportunity and
that Clause (4) of Article 16 is but a means
161
of achieving the very same objective. Clause
(4) is a special provision - though not an
exception to Clause (1). Both the provisions
have to be harmonised keeping in mind the
fact that both are but the restatements of
the principle of equality enshrined in
Article 14. The provision under Article
16(4) -conceived in the interest of certain
sections of society - should be balanced
against the guarantee of equality enshrined
in Clause (1) of Article 16which is a
guarantee held out to every citizen and to
the entire society. It is relevant to point
out that Dr. Ambedkar himself contemplated
reservation being "confined to a minority of
seats" (See his speech in Constituent
Assembly, set out in para 28). No other
member of the Constituent Assembly suggested
otherwise. It is, thus clear that
reservation of a majority of seats was never
envisaged by the founding fathers. Nor are
we satisfied that the present context
requires us to depart from that concept.
(underlined by us)”
188. Clause (4) of Article 15 is also a special
provision which is nothing but reinstatement of the
principles of equality enshrined in Article 14. The
principles which have been laid down in paragraph
808 with respect to Article 16(4) are clearly
applicable with regard to Article 15(4) also. In the
majority judgment of this Court in Indra Sawhney,
the Balaji principle i.e. the 50 percent rule has
162
been approved and not departed with. The 50 percent
principle which was initially spoken of in Balaji
having been approved in Indra Sawhney. We failed to
see as to how prepositions laid down by this Court
in Indra Sawhney shall not be applicable for Article
15. It has been laid down in Indra Sawhney that
expression “Backward Class” used in Article 16(4) is
wider that the expression “Socially and
Educationally Backward Class” used in Article 15(5).
189. We thus do not find any substance in
submissions of Mukul Rohtagi that the judgment of
this Court in Indra Sawhney need not be applied in
reference to Article 15.
REASON -6
190. Shri Rohtagi submits that in Indra Sawhney
judgment, the impact of Directive Principles of
State Policy such as Article 39(b)(c) and Article 46
have not been considered while interpreting Article
14, 16(1) and 16(4). The Directive Principles of
State Policy enshrined in Part-IV of the
163
Constitution are fundamental in governance of the
country. The State while framing its policy,
legislation, had to take measures to give effect to
the Constitutional Objective as contained in Part-IV
of the Constitution. The Fundamental Rights are
rights which the Constitution guarantees to the
Citizen whereas Part-IV of the Constitution is the
obligation of the State which it has to discharge
for securing Constitutional objective. In the most
celebrated judgment of this Court i.e. Keshavananda
Bharati Sripadagalvaru and others versus State of
Kerala and another, (1973) 4 SCC 225, in several of
the opinions, the Part-III and Part-IV of the
Constitution has been dealt with. Chief Justice S.M.
Sikri,in paragraph 147 of the judgment, stated that:
-
“147. It is impossible to equate the
directive principles with fundamental
rights though it cannot be denied that
they are very important. But to say that
the directive principles give a directive
to take away fundamental rights in order
to achieve what is directed by the
directive principles seems to me a
contradiction in terms.”
164
191. In the same judgment, Justice Hegde and
Mukherjea J.J, held that Fundamental Rights and the
Directive Principles of State Policy constitute the
conscience of our Constitution. Following was stated
in paragraph 712: -
“712. No one can deny the importance of
the Directive Principles. The Fundamental
Rights and the Directive Principles
constitute the 'conscience' of our
Constitution. The purpose of the
Fundamental Rights is to create an
egalitarian society, to free all citizens
from coercion or restriction by society
and to make liberty available for all. The
purpose of the Directive Principles is to
fix certain social and economic goals for
immediate attainment by bringing about a
non-violent social revolution. Through
such a social revolution the Constitution
seeks to fulfil the basic needs of the
common man and to change the structure of
bur society. It aims at making the Indian
masses free in the positive sense.”
192. The Constitution Bench of this Court in
Minerva Mills limited and others versus Union of
India and others, (1980) 3 SCC 625, has also
elaborately dealt both Fundamental Rights and
Directive Principles of State Policy. The question
which arose before the Constitution bench in context
165
of Fundamental Rights and Directive Principles of
State Policy was noticed by Justice Chandrachud,
C.J., in paragraph 40 as:-
“40. The main controversy in these
petitions centres round the question
whether the directive principles of State
policy contained in Part IV can have
primacy over the fundamental rights
conferred by Part III of the Constitution.
That is the heart of the matter. Every
other consideration and all other
contentions are in the nature of byproducts of that central theme of the
case. The competing claims of parts III
and IV constitute the pivotal point of the
case because, Article 31C as amended by
section 4 of the 42nd Amendment provides
in terms that a law giving effect to any
directive principle cannot be challenged
as void on the ground that it violates the
rights conferred by Article 14 or The 42nd
Amendment by its section 4 thus
subordinates the fundamental rights
conferred by Articles 14 and 19 to the
directive principles.”
193. It was held that both Part-III and Part-IV
of the Constitution are two kinds of State’s
obligation i.e. negative and positive. The harmony
and balance between Fundamental Rights and Directive
Principles of State Policy is an essential feature
of the Basic Structure of the Constitution. Justice
166
Chandrachud elaborating the relation between PartIII and Part-IV stated in paragraph 57: -
“57. This is not mere semantics. The
edifice of our Constitution is built upon
the concepts crystallised in the Preamble.
We resolved to constitute ourselves into a
Socialist State which carried with it the
obligation to secure to our people
justice-social, economic and political.
We, therefore, put part IV into our
Constitution containing directive
principles of State policy which specify
the socialistic goal to be achieved. We
promised to our people a democratic polity
which carries with it the obligation of
securing to the people liberty of thought,
expression, belief, faith and worship;
equality of status and of opportunity and
the assurance that the dignity of the
individual will at all costs be preserved.
We, therefore, put Part, III in our
Constitution conferring those rights on
the people. Those rights are not an end in
themselves but are the means to an end.
The end is specified in Part IV.
Therefore, the rights conferred by Art III
are subject to reasonable restrictions and
the Constitution provides that enforcement
of some of them may, in stated uncommon
circumstances, be suspended. But just as
the rights conferred by Part III would be
without a radar and a compass if they were
not geared to an ideal, in the same manner
the attainment of the ideals set out in
Part IV would become a pretence for
tyranny if the price to be paid for
achieving that ideal is human freedoms.
One of the faiths of our founding fathers
was the purity of means. Indeed, under our
law, even a dacoit who has committed a
murder cannot be put to death in the
167
exercise of right of self-defence after he
has made good his escape. So great is the
insistence of civilised laws on the purity
of means. The goals set out in Part IV
have, therefore, to be achieved without
the abrogation of the means provided for
by Part III. It is in this sense that
Parts III and IV together constitute the
core of our Constitution and combine to
form its conscience. Anything that
destroys the balance between the two parts
will ipso facto destroy an essential
element of the basic structure of our
Constitution.”
194. Article 38 of Directive Principles of State
Policy oblige the State to strive to promote the
welfare of the people by securing and protecting as
effectively as it may a social order in which
justice social, economic and political shall inform
all the institutions of national life. Article 15(4)
and Article 16(4) of the Constitution are nothing
but steps in promoting and giving effect to policy
under Article 38 of the Constitution. Justice Jeevan
Reddy in his judgment of Indra Sawhney has noted
Article 38 and Article 46 of Part-IV of the
Constitution. In paragraph 647, Article 38 and 46
has been notice in following words: -
168
“647. The other provisions of the
Constitution having a bearing on Article
16 are Articles 38, 46 and the set of
articles in Part XVI. Clause (1) of
Article 38 obligates the State to "strive
to promote the welfare of the people by
securing and protecting as effectively as
it may a social order in which justice,
social, economic and political, shall
inform all the institutions of the
national life."
195. The criticism mounted by Mr. Rohtagi that
Indra Sawhney judgment does not consider the impact
of Directive Principles of State Policy while
interpreting Article 16 is thus not correct. Further
in paragraph 841, it has been held that there is no
particular relevance of Article 38 in context of
Article 16(4). In paragraph 841, following has been
observed: -
“841. We may add that we see no particular
relevance of Article 38(2) in this
context. Article 16(4) is also a measure a
measure to ensure equality of status
besides equality of opportunity.”
196. Mr. Rohtagi has referred to Article 39(b)
and Article 39(c) of the Constitution and has
submitted that there is no consideration in Indra
169
Sawhney judgment. Article 39 of the Constitution
enumerates certain principles of policy to be
followed by the State. Article 39 (b) and 39(c)
which are relevant for the present case are as
follows: -
“39. Certain principles of policy to be
followed by the State: -
(b) that the ownership and control of the
material resources of the community are so
distributed as best to subserve the common
good; and
(c) that the operation of the economic
system does not result in the
concentration of wealth and means of
production to the common detriment;”
197. We fail to see that how the measures taken
under Article 15(4) and 16(4) shall in any manner
can be read to breach Directive Principles of State
Policy. Article 16(4) and 15(4) are also measures to
ensure equality of status besides the equality of
opportunity.
198. We thus do not find any substance in the
above submission of Mr. Mukul Rohtagi.
170
Ground NO.7
199. Shri Rohtagi submits that an Eleven-Judge
Bench of this Court in T.M.A. Pai foundation and
others versus State of Karnataka and others, (2002)
8 SCC 481, has struck down the law laid down by this
Court in St. Stephen’s College case, (1992) 1 SCC
558 which had held that aided minority educational
institutions although entitled to preferably admit
their community candidate but intake should not be
more than 50 percent. Shri Rohtagi submits that St.
Stephen's College case has put a cap of 50 percent
which was nothing but recognition of Indra Sawhney
Principle. Shri Rohtagi submits that the ElevenJudge Bench in T.M.A. Pai Foundation case has set
aside the aforesaid cap of 50 percent. Mr. Rohtagi
relies on paragraph 151 of Kirpal,C.J. and paragraph
338 by Rumapal, J. of the judgment, which is to the
following effect: -
“151. The right of the aided minority
institution to preferably admit students of
its community, when Article 29(2) was
applicable, has been clarified by this Court
171
over a decade ago in the St. Stephen's
College case. While upholding the procedure
for admitting students, this Court also held
that aided minority educational institutions
were entitled to preferably admit their
community candidates so as to maintain the
minority character of the institution, and
that the state may regulate the intake in
this category with due regard to the area
that the institution was intended to serve,
but that this intake should not be more than
50% in any case. Thus, St. Stephen's
endeavoured to strike a balance between the
two Articles. Though we accept the ratio of
St. Stephen's, which has held the field for
over a decade, we have compelling
reservations in accepting the rigid
percentage stipulated therein. As Article 29
and Article 30 apply not only to
institutions of higher education but also to
schools, a ceiling of 50% would not be
proper. It will be more appropriate that
depending upon the level of the institution,
whether it be a primary or secondary or high
school or a college, professional or
otherwise, and on the population and
educational needs of the area in which the
institution is to be located the state
properly balances the interests of all by
providing for such a percentage of students
of the minority community to be admitted, so
as to adequately serve the interest of the
community for which the institution was
established.
388. I agree with the view as expressed by
the Learned Chief Justice that there is no
question of fixing a percentage when the
need may be variable. I would only add that
in fixing a percentage, the Court in St.
Stephens in fact "reserved" 50% of available
seats in a minority institution for the
172
general category ostensibly under Article
29(2). pertains to the right of an
individual and is not a class right. It
would therefore apply when an individual is
denied admission into any educational
institution maintained by the State or
receiving aid from the State funds, solely
on the basis of the ground of religion,
race, caste, language or any of them. It
does not operate to create a class interest
or right in the sense that any educational
institution has to set apart for nonminorities as a class and without reference
to any individual applicant, a fixed
percentage of available seats. Unless
Articles 30(1) and 29(2) are allowed to
operate in their separate fields then what
started with the voluntary 'sprinkling' of
outsiders, would become a major inundation
and a large chunk of the right of an aided
minority institution to operate for the
benefit of the community it was set up to
serve, would be washed away.”
200. T.M.A. Pai foundation case was a judgment of
this Court interpreting Article 29 and 30 of the
Constitution. Article 30 of the Constitution gives a
Fundamental Right to the minorities to establish and
administer educational institutions. The Right of
minority is different and distinct right as
recognized in the Constitution. The
93rdConstitutional Amendment Act, 2005, by which
173
sub-clause (5) has been added in Article 15 excludes
the minority educational institutions referred to in
clause (1) of Article 30. Sub-clause (5) of Article
15 is clear constitutional indication that with
regard to rights of minority regarding admission to
educational institutions, the minority educational
institutions referred to in clause (1) of Article 30
are completely excluded. What was laid down by this
Court in T.M.A. Pai foundation case, finds clear
epoch in the 93rd Constitutional Amendment.
201. We may refer to a Three-Judge Bench judgment
of this Court in Society for Un-aided Private
Schools of Rajasthan versus Union of India and
another,(2012) 6 SCC 1, where this Court had
occasion to consider Article 14, 15 & 16 as well as
21A of the Constitution. Shri Kapadia, C.J.,
speaking for majority, held that reservation of 25
percent in unaided minority schools result in
changing character of schools holding that Section
12(1)(c) of Right to Education Act, 2009 violates
right conferred under minority school under Article
174
31. Paragraphs 61 and 62 of the judgment are as
follows: -
“61. Article 15(5)is an enabling provision
and it is for the respective States either
to enact a legislation or issue an executive
instruction providing for reservation except
in the case of minority educational
institutions referred to in Article 30(1).
The intention of the Parliament is that the
minority educational institution referred to
in Article 30(1) is a separate category of
institutions which needs protection of
Article 30(1) and viewed in that light we
are of the view that unaided minority
school(s) needs special protection under
Article 30(1). Article 30(1)is not
conditional as Article 19(1)(g).In a sense,
it is absolute as the Constitution framers
thought that it was the duty of the
Government of the day to protect the
minorities in the matter of preservation of
culture, language and script via
establishment of educational institutions
for religious and charitable purposes [See:
Article 26].
62. Reservations of 25% in such unaided
minority schools result in changing the
character of the schools if right to
establish and administer such schools flows
from the right to conserve the language,
script or culture, which right is conferred
on such unaided minority schools. Thus, the
2009 Act including Section 12(1)(c) violates
the right conferred on such unaided minority
schools under Article 30(1). ”
175
202. From the law as laid down in T.M.A. Pai
foundation Case (supra)as well as Society for Unaided Private Schools of Rajasthan(supra), it is
clear that there can be no reservation in unaided
minority schools referred in Article 30(1).
203. The 50 percent ceiling as put by this Court in
St. Stephen’s College case was struck off by T.M.A.
Pai Foundation case to give effect to content and
meaning of Article 30. The striking of the cap of
50 percent with regard to minority institutions is
an entirely different context and can have no
bearing with regard to 50 percent cap which has been
approved in the reservation under Article 16(4) in
the Indra Sawhey’s case.
204. We thus are of the view that judgment of this
Court in T.M.A. Pai Foundation case has no bearing
on the ratio of Indra Sawhney’s case.
Ground – 8
205. Shri Rohtagi relying on Constitutional 77th
and 81st Amendment Acts submits that these amendments
have the effect of undoing in part the judgment of
176
Indra Sawhney which necessitates revisiting of the
judgment. By the 77thConstitutional Amendment Act,
1995, sub-clause (4A) was inserted in Article 16 of
the Constitution. The above Constitutional Amendment
was brought to do away the law laid down by this
Court in Indra Sawhney that no reservation in
promotion can be granted. By virtue of sub-clause 4A
of Article 16 now, the reservation in promotion is
permissible in favour of Scheduled Caste, Scheduled
Tribe. The ratio of Indra Sawhney to the above
effect no longer survives and the Constitutional
provisions have to be give effect to. There can be
no case for revisiting the Indra Sawhney judgment on
this ground. Now coming to 81stConstitutional
Amendment Act, 2000, by which sub-clause (4B) was
inserted in Article 16. The above provision was also
to undo the ratio laid down by the Indra Sawhney
judgment regarding carry forward vacancies. The
Constitutional Amendment laid down that in unfilled
vacancies of year which was reserved shall be
treated as separate class of vacancies to be filled
up in any succeeding year or years and such class of
177
vacancies shall not be considered together with the
vacancies of the year in which they are being filled
up for determine the ceiling of 50 percent. Article
(4B) is for any reference is quoted as below: -
“16(4B). Nothing in this article shall
prevent the State from considering any
unfilled vacancies of a year which are
reserved for being filled up in that year
in accordance with any provision for
reservation made under clause (4) or
clause (4A) as a separate class of
vacancies to be filled up in any
succeeding year or years and such class of
vacancies shall not be considered together
with the vacancies of the year in which
they are being filled up for determining
the ceiling of fifty per cent reservation
on total number of vacancies of that
year.”
206. The above Constitutional Amendment makes it
very clear that ceiling of 50 percent “has now
received Constitutional recognition.” Ceiling of 50
percent is ceiling which was approved by this Court
in Indra Sawhney’s case, thus, the Constitutional
Amendment in fact recognize the 50 percent ceiling
which was approved in Indra Sawhney’s case and on
178
the basis of above Constitutional Amendment, no case
has been made out to revisit Indra Sawhney.
Ground-9
207. Shri Rohtagi submits that judgment of Indra
held that the States cannot identify the backward
classes solely on the basis of economic criteria as
Indra Sawhney has set aside the O.M. dated
13.08.1990 which provided 10 percent reservation to
economically weaker section. The submission of Shri
Rohtagi is that by 103rdConstitutional Amendment,
Parliament has inserted Article 15(6) and 16(6)
whereby 10 percent reservation is granted to
economically weaker section.
208. It is submitted that in view of the 10 percent
reservation as mandated by 103rdConstitutional
amendment, 50 percent reservation as laid down by
Indra Sawhney is breached. Shri Rohtagi has further
submitted that the issue pertaining to
103rdConstitutional Amendment has been referred to a
larger Bench in W.P. (Civil) No.55 of 2019, Janhit
Abhiyan versus Union of India. In view of above, We
179
refrain ourselves from making any observation
regarding effect and consequence of 103rd
Constitutional Amendment.
Ground– 10
209. Shri Rohtagi submits that in paragraph 810 of
judgment of Indra Sawhney, certain extraordinary
circumstances have been referred to which cannot be
said to be cast in stone. The extra-ordinary
circumstances provided in paragraph 810 i.e. of farflung and remote area cannot be cast in stone and
forever unchanging. He submits that the same was
given only by way of example and cannot be
considered exhaustive. Morever, it is geographical
test which may not apply in every State. In
paragraph 810 of Indra Sawhney, Justice Jeevan Reddy
provided: -
“810. While 50% shall be the rule, it is
necessary not to put out of consideration
certain extraordinary situations inherent
in the great diversity of this country and
the people. It might happen that in farflung and remote areas the population
inhabiting those areas might, on account
of their being put of the mainstream of
180
national life and in view of conditions
peculiar to and characteristical to them,
need to be treated in a different way,
some relaxation in this strict rule may
become imperative. In doing so, extreme
caution is to be exercised and a special
case made out."
210. We fully endorse the submission of Shri
Rohtagi that extraordinary situations indicated in
paragraph 810 were only illustrative and cannot be
said to be exhaustive. We however do not agree with
Mr. Rohtagi that paragraph 810 provided only a
geographical test. The use of expression “on being
out of the main stream of national life”, is a
social test, which also needs to be fulfilled for a
case to be covered by exception.
211. We may refer to a Three-Judge Bench judgment
of this Court in Union of India and others versus
Rakesh Kumar and others,(2010) 4 SCC 50, this Court
had occasion to consider the provisions of Fifth
Schedule of the Constitution. Article 243B and
provisions of Part-IX of the Constitution inserted
by 73rdConstitutional Amendment Act, 1992.
181
Reservation of seats was contemplated in the
statutory provisions. The judgment of Indra Sawhney
especially paragraph 809 and 810 were also noted and
extracted by this Court. This Court noted that even
the judgment of Indra Sawhney did recognize the need
for exception treatment in such circumstances. In
paragraph 44, this Court held that the case of
Panchayats in Scheduled Areas is a fit case that
warrant exceptional treatment with regard to
reservation and the rationale of upper ceiling of 50
percent for reservation in higher education and
public employment can be readily extended to the
domain of vertical representation at the Panchayat
level in the Scheduled Area. Paragraphs 43 and 44
are extracted below: -
“43. For the sake of argument, even if an
analogy between Article 243-Dand Article
16(4)was viable, a close reading of the
Indra Sawhney decision will reveal that
even though an upper limit of 50% was
prescribed for reservations in public
employment, the said decision did
recognise the need for exceptional
treatment in some circumstances. This is
evident from the following words (at
Paras. 809, 810):
182
"809. From the above discussion, the
irresistible conclusion that follows
is that the reservations contemplated
in Clause (4) of Article 16 should not
exceed 50%.
810. While 50% shall be the rule, it
is necessary not to put out of
consideration certain extraordinary
situations inherent in the great
diversity of this country and the
people. It might happen that in farflung and remote areas the population
inhabiting those areas might, on
account of their being put of the
mainstream of national life and in
view of conditions peculiar to and
characteristical to them, need to be
treated in a different way, some
relaxation in this strict rule may
become imperative. In doing so,
extreme caution is to be exercised
and a special case made out."
44. We believe that the case of Panchayats
in Scheduled Areas is a fit case that
warrants exceptional treatment with regard
to reservations. The rationale behind
imposing an upper ceiling of 50% in
reservations for higher education and
public employment cannot be readily
extended to the domain of political
representation at the Panchayat-level in
Scheduled Areas. With respect to education
and employment, parity is maintained
between the total number of reserved and
unreserved seats in order to maintain a
pragmatic balance between the affirmative
action measures and considerations of
merit.”
183
212. This Court carved out one more exceptional
circumstance which may fit in extraordinary
situations as contemplated by paragraph 810 in the
Indra Sawhney’s case. We may also notice that the
Constitution Bench of this Court in K. Krishna
Murthy and others versus Union of India and another,
(2010) 7 SCC 202. In paragraph 82(iv) applied 50
percent ceiling in vertical reservation in favour of
Scheduled Caste/Scheduled Tribe/ Other Backward
Class in context of local self government. However,
it was held that exception can be made in order to
safeguard the interest of Scheduled Tribes located
in Scheduled Area. Paragraph 82(iv) is as follows: -
“82.(iv) The upper ceiling of 50% vertical
reservations in favour of SCs/STs/OBCs
should not be breached in the context of
local self-government. Exceptions can only
be made in order to safeguard the
interests of the Scheduled Tribes in the
matter of their representation in
panchayats located in the Scheduled
Areas.”
213. The judgment of the Constitution Bench in the
above case had approved the Three-Judge Bench
184
judgment of this Court in Union of India and others
Rakesh Kumar(supra) in paragraph 67, which is to the
following effect: -
“67. In the recent decision reported as
Union of India v. Rakesh Kumar, (2010) 4
SCC 50, this Court has explained why it
may be necessary to provide reservations
in favour of Scheduled Tribes that exceed
50% of the seats in panchayats located in
Scheduled Areas. However, such exceptional
considerations cannot be invoked when we
are examining the quantum of reservations
in favour of backward classes for the
purpose of local bodies located in general
areas. In such circumstances, the vertical
reservations in favour of SC/ST/OBCs
cannot exceed the upper limit of 50% when
taken together. It is obvious that in
order to adhere to this upper ceiling,
some of the States may have to modify
their legislations so as to reduce the
quantum of the existing quotas in favour
of OBCs.”
214. We thus are of the view that extraordinary
situations indicated in paragraph 810 are only
illustrative and not exhaustive but paragraph 810
gives an indication as to which may fit in extra
ordinary situation.
185
215. In view of foregoing discussions, we do not
find any substance in grounds raised by Shri Rohtagi
for re-visiting the judgment of Indra Sawhney and
referring the judgment of Indra Sawhney to a larger
Bench.
The judgment of Indra Sawhney has been
repeatedly followed by this Court and has received
approval by at least four Constitution Benches of
this Court as noted above. We also follow and
reiterate the prepositions as laid down by this
Court in Indra Sawhney in paragraphs 809 and 810. We
further observe that ratio of judgment of Indra
Sawhney is fully applicable in context of Article 15
of the Constitution.
(8)Principle of Stare Decisis
216. The seven-Judge Constitution Bench judgment in
Keshav Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965
SC 1636 has unanimously held that before reviewing
and revising its earlier decision the Court must
itself satisfy whether it is necessary to do so in
186
the interest of public good or for any other
compelling reason and the Court must endeavour to
maintain a certainty and continuity in the
interpretation of the law in the country.
217.In Jarnail Singh and others vs. Lachhmi Narain
Gupta and others, 2018(10) SCC 396, the prayer to
refer the Constitution Bench judgment in M.Nagaraj
(supra) was rejected by the Constitution Bench
relying on the law as laid down in Keshav Mills'
case. In paragraph 9 following has been laid down:
“9. Since we are asked to revisit a
unanimous Constitution Bench judgment, it is
important to bear in mind the admonition of
the Constitution Bench judgment in Keshav
Mills [Keshav Mills Co. Ltd. v. CIT, (1965)
2 SCR 908 : AIR 1965 SC 1636] . This Court
said: (SCR pp. 921-22 : AIR p. 1644, para
23)
“23. … [I]n reviewing and revising
its earlier decision [Ed.: The
reference is to New Jehangir Vakil
Mills Ltd. v. CIT, AIR 1959 SC 1177
and Petlad Turkey Red Dye Works Co.
Ltd. v. CIT, 1963 Supp (1) SCR 871,
this Court should ask itself whether in
the interests of the public good or for
any other valid and compulsive reasons,
it is necessary that the earlier
187
decision should be revised. When this
Court decides questions of law, its
decisions are, under Article 141,
binding on all courts within the
territory of India, and so, it must be
the constant endeavour and concern of
this Court to introduce and maintain an
element of certainty and continuity in
the interpretation of law in the
country. Frequent exercise by this
Court of its power to review its
earlier decisions on the ground that
the view pressed before it later
appears to the Court to be more
reasonable, may incidentally tend to
make law uncertain and introduce
confusion which must be consistently
avoided. That is not to say that if on
a subsequent occasion, the Court is
satisfied that its earlier decision was
clearly erroneous, it should hesitate
to correct the error; but before a
previous decision is pronounced to be
plainly erroneous, the Court must be
satisfied with a fair amount of
unanimity amongst its members that a
revision of the said view is fully
justified. It is not possible or
desirable, and in any case it would be
inexpedient to lay down any principles
which should govern the approach of the
Court in dealing with the question of
reviewing and revising its earlier
decisions. It would always depend upon
several relevant considerations: — What
is the nature of the infirmity or error
on which a plea for a review and
revision of the earlier view is based?
On the earlier occasion, did some
patent aspects of the question remain
unnoticed, or was the attention of the
Court not drawn to any relevant and
material statutory provision, or was
188
any previous decision of this Court
bearing on the point not noticed? Is
the Court hearing such plea fairly
unanimous that there is such an error
in the earlier view? What would be the
impact of the error on the general
administration of law or on public
good? Has the earlier decision been
followed on subsequent occasions either
by this Court or by the High Courts?
And, would the reversal of the earlier
decision lead to public inconvenience,
hardship or mischief? These and other
relevant considerations must be
carefully borne in mind whenever this
Court is called upon to exercise its
jurisdiction to review and revise its
earlier decisions. These considerations
become still more significant when the
earlier decision happens to be a
unanimous decision of a Bench of five
learned Judges of this Court.”
218. The principle of stare decisis also commends
us not to accept the submissions of Shri Rohtagi.
The Constitution Bench of this Court in State of
Gujarat versus Mirzapur, Moti Kureshi Kassab Jamat
and others, (2005) 8 SCC 534, explaining the
principle of Stare decisis laid down following in
paragraphs 111 and 118:-
“111. Stare decisis is a Latin phrase
which means “stand by decided cases; to
uphold precedents; to maintain former
adjudication”. This principle is expressed
189
in the maxim “stare decisis et non quieta
movere” which means to stand by decisions
and not to disturb what is settled. This
was aptly put by Lord Coke in his classic
English version as “Those things which
have been so often adjudged ought to rest
in peace”. However, according to Justice
Frankfurter, the doctrine of stare decisis
is not “an imprisonment of reason”
(Advanced Law Lexicon, P. Ramanatha Aiyer,
3
rd Edn. 2005, Vol.4, P.4456). The
underlying logic of the doctrine is to
maintain consistency and avoid
uncertainty. The guiding philosophy is
that a view which has held the field for a
long time should not be disturbed only
because another view is possible.
118. The doctrine of stare decisis is
generally to be adhered to, because wellsettled principles of law founded on a
series of authoritative pronouncements
ought to be followed. Yet, the demands of
the changed facts and circumstances,
dictated by forceful factors supported by
logic, amply justify the need for a fresh
look.”
219. The Constitution Bench in Indra Sawhney
speaking through Justice Jeevan Reddy has held that
the relevance and significance of the principle of
stare decisis have to be kept in mind. It was
reiterated that in law certainty, consistency and
190
continuity are highly desirable features. Following
are the exact words in paragraph 683:-
“683... Though, we are sitting in a
larger Bench, we have kept in mind the
relevance and significance of the
principle of Stare decisis. We are
conscious of the fact that in law
certainty, consistency and continuity are
highly desirable features. Where a
decision has stood the test of time and
has never been doubted, we have respected
it unless, of course, there are
compelling and strong reasons to depart
from it. Where, however, such uniformity
is not found, we have tried to answer the
question on principle keeping in mind the
scheme and goal of our Constitution and
the material placed before us.”
220. What was said by Constitution Bench in Indra
Sawhney clearly binds us. Judgment of Indra Sawhney
has stood the test of time and has never been
doubted. On the clear principle of stare decisis,
judgment of Indra Sawhney neither need to be
revisited nor referred to larger bench of this
Court.
221. The principle laid down in Keshav Mills when
applied in the facts of the present case, it is
191
crystal clear that no case is made out to refer the
case of Indra Sawhney to a larger Bench.
(9)Whether Gaikwad Commission Report has made out a
case of extra-ordinary situation for grant of
separate reservation to Maratha community
exceeding 50% limit ?
222. We have noticed above that majority judgment
in Indra Sawhney has laid down that reservation
shall not exceed 50% as a rule. In the majority
opinion, however, it was held that looking to the
diversity of the country there may be some extraordinary situations where reservation in exceptional
cases is made exceeding 50% limit. In this respect,
We may again refer to paragraphs 809 and 810 of the
judgment of Indra Sawhney by which the above
proposition of law was laid down. Paragraphs 809 and
810 are to the following effect:
“809. From the above discussion, the
irresistible conclusion that follows is that
the reservations contemplated in clause (4)
of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is
necessary not to put out of consideration
certain extraordinary situations inherent
192
in the great diversity of this country and
the people. It might happen that in far
flung and remote areas the population
inhabiting those areas might, on account of
their being out of the mainstream of
national life and in view of conditions
peculiar to and characteristical to them,
need to be treated in a different way, some
relaxation in this strict rule may become
imperative. In doing so, extreme caution is
to be exercised and a special case made
out.”
223. The second term of reference to the State
Backward Classes Commission included a specific
reference, i.e., “to define exceptional
circumstances and/or extra-ordinary situations to be
applied for the benefit of reservation in the
present context”. The Gaikwad Commission has
separately and elaborately considered the above term
of reference. A separate Chapter, Chapter-X has been
devoted in the Commission's Report. The heading of
the Chapter-X is “EXCEPTIONAL CIRCUMSTANCES AND/OR
EXTRA ORDINARY SITUATIONS”.
224. We have already noticed the submission of
Shri Mukul Rohtagi with reference to exceptional
circumstances while considering the Ground No.10 as
193
emphasized by him for referring the case to a larger
Bench. We have observed that the exceptional
circumstances as indicated in paragraph 810 of Indra
Sawhney were not exhaustive but illustrative. The
Constitution Bench, however, has given indication of
what could be the extra-ordinary circumstances for
exceeding the limit of 50%. The Commission has
noticed the majority opinion in Indra Sawhney. We
may notice paragraph 234-Chapter X of the Report
which is to the following effect:
“234. The Constitutional provisions
relating to the reservations, either under
Article 15 or Article 16 of the Constitution
do not prescribe percentage of reservation
to be provided to each of the backward
classes i.e. Scheduled Castes, Scheduled
Tribes and Backward Classes. However,
reservations to be provided to the Scheduled
Castes and Scheduled Tribes has already been
provided by the Government of India, i.e.
15% Scheduled Castes and 7.5% for Scheduled
Tribes. Excluding that 22.5% reservations,
the existing Bus provisions for reservation
for Backward Classes is 27%. Though
originally Article 15 and Article 16 of the
997 Constitution did not specify the
percentage of the reservation for different
classes, the amended provisions of Article
16(4A) and (4B) specify that the State
Government is not prevented from considering
any unfilled vacancies of a year which are
194
reserved for being filled up in that year in
accordance with any provision for
reservation made under Article 16(4) or (4A)
as a separate class of vacancies to be
filled up in any succeeding year or years
and such class of vacancies shall not be
considered together with the vacancies of
the year in which they are being filled up
for determining the ceiling of 50%
reservation on total number of vacancies of
that year. In Indra Sawhney 's case (supra),
the Honourable the Supreme Court for the
first time, by majority, specified a ceiling
for total reservation of 50%. The
Honourable the Supreme Court considered this
issue while answering question Nos. 6(a),
6(b) and 6(c) formulated by it in the
Judgment. The questoins are produced herein
under:-
“6(A)Whether the 50% rule enunciated in
Balaji a binding rule or only a rule of
caution or rule of prudence?
6(b)Whether the 50% rule, if any, is
confined to reservations made under
Clause (4) of Article 16 or whether it
takes in all types of reservations that
can be provided under Article 16?
6(c)Further while applying 50% rule, if
any, whether an year should be taken as
a unit or whether the total strength of
the cadre should be looked to?"
The Honourable the Supreme Court in para 94A
in answered the questions Indra Sawhney 's
case formulated by it stating that
reservation contemplated in clause (4) of
Article 16 of the Constitution shall not
exceed 50%. In the same para the Honourable
the Supreme Court has ruled that some
195
relaxation in this TIRNITURE DIVIST strict
rule may become imperative with a caution.
"In doing so extreme caution is to be
exercised and a special case is to be made
out”. The relevant passage from para 94A (of
AIR) the judgment of the Honourable the
Supreme Court in Indra Sawhney 's case
majority view is reproduced and that runs as
under:
“While 50% shall be the rule, it is
necessary not to put out of consideration
certain extraordinary situations inherent in
the great diversity of this country and the
people. It might happen that in far flung
and remote areas the population inhabiting
those areas might, on account of their being
out of the main stream of national life and
in view of conditions peculiar to and
characteristical to them, need to be treated
in a different way, some relaxation in this
strict rule may become imperative. In doing
so, extreme caution is to be exercised and a
special case made out.”
225. After noticing the above proposition of law
the Commission proceeded to deal with the subject.
In paragraph 234 the Commission has noted the
Constitution Bench judgment in M. Nagaraj & Ors. vs.
Union of India & Ors. (supra) observing that this
Court has again considered the aspect of ceiling of
50% reservation. The Commission, however, proceeded
with an assumption that in Nagaraj this Court has
196
ruled that for relaxation, i.e., 50%, there should
be quantifiable and contemporary data. We may notice
the exact words of the Commission in paragraph 234
which is to the following effect:
"The Honourable the Supreme Court has again
considered this aspect of ceiling of 50%
reservation in its next decision in M.
Nagaraj & Ors. v. Union of India & Ors.
Reported in (2006) 8 SCC 212, wherein the
Honourable the Supreme Court considered the
validity of inserted clauses (4A) and (4B)
by way of amendment to Article 16 of the
Constitution. However, in Nagaraj, the
Honourable the Supreme Court has ruled that
for the relaxation i.e. a ceiling of 50%
there should be quantifiable and
contemporary data (Emphasis supplied).”
226. The above view has again been reiterated by
the Commission n paragraph 235 to the following
effect:
“235.......However, it is seen from
Nagaraj that ceiling of 50% reservation may
be exceeded by showing quantifiable
contemporary data relating to backwardness
as required by Clause (4) of Article 15 and
Clause (4) of Article 16 of the
Constitution.”
227. From the above, it is clear that the Commission
read the Constitution Bench judgment of this Court
197
in Nagaraj laying down that ceiling of 50%
reservation may be exceeded by showing quantifiable
contemporary data relating to the backwardness. The
above reading of Constitution Bench judgment by the
Commission was wholly incorrect. We may again notice
the judgment of M. Nagaraj in the above respect. M.
Nagaraj was a case where Constitution (Eighty-fifth
Amendment) Act, 2001 inserting Article 16(4A) was
challenged on the ground that the said provision is
unconstitutional and violative of basic structure.
Article 16(4A) which was inserted by the above
Amendment provides:
“Article 16(4A). Nothing in this Article
shall prevent the State from making any
provision for reservation in matters of
promotion, with consequential seniority, to
any class or classes of posts in the
services under the State in favour of the
Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not
adequately represented in the services under
the State.”
228. The Constitution Bench proceeded to consider
the submission raised by the petitioner challenging
the constitutional validity of the constitutional
provision. The Constitution Bench in Nagaraj has
198
noticed the maximum limit of reservation in
paragraphs 55 to 59. The Constitution Bench held
that majority opinion in Indra Sawhney has held that
rule of 50% was a binding rule and not a mere rule
of prudence. Paragraph 58 of the Constitution Bench
judgment in Nagaraj is as follows:
“58. However, in Indra Sawhney
[1992 Supp (3) SCC 217 the majority
held that the rule of 50% laid down
in Balaji [AIR 1963 SC 649] was a
binding rule and not a mere rule of
prudence.”
229. In paragraph 107, the Constitution Bench
observed:
“107....If the State has
quantifiable data to show
backwardness and inadequacy then the
State can make reservations in
promotions keeping in mind
maintenance of efficiency which is
held to be a constitutional
limitation on the discretion of the
State in making reservation as
indicated by Article 335.....”
199
230. The Constitution Bench noted its conclusion
in paragraphs 121, 122 and 123. In paragraph 123
following has been laid down:
“123. However, in this case, as stated
above, the main issue concerns the “extent
of reservation”. In this regard the State
concerned will have to show in each case
the existence of the compelling reasons,
namely, backwardness, inadequacy of
representation and overall administrative
efficiency before making provision for
reservation. As stated above, the impugned
provision is an enabling provision. The
State is not bound to make reservation for
SCs/STs in matters of promotions. However,
if they wish to exercise their discretion
and make such provision, the State has to
collect quantifiable data showing
backwardness of the class and inadequacy
of representation of that class in public
employment in addition to compliance with
Article 335. It is made clear that even if
the State has compelling reasons, as
stated above, the State will have to see
that its reservation provision does not
lead to excessiveness so as to breach the
ceiling limit of 50% or obliterate the
creamy layer or extend the reservation
indefinitely.”
231. The Constitution Bench in paragraph 123 held
that provision of Article 16(4A) is an enabling
provision and State is not bound to make reservation
for Scheduled Castes and Scheduled Tribes in the
200
matters of promotion and however, if they wish to
exercise their discretion and make such provision,
the State has to collect quantifiable data showing
backwardness of the class and inadequacy of
representation.
232. The above observation regarding quantifiable
data was in relation to enabling power of the State
to grant reservation in promotion to the Scheduled
Caste and Scheduled Tribes. It is further relevant
to notice that in the last sentence of paragraph 123
it is stated: "It is made clear that even if the
State has compelling reasons, as stated above, the
State will have to see that its reservation
provision does not lead to excessiveness so as to
breach the ceiling limit of 50% or obliterate the
creamy layer or extend the reservation
indefinitely”.
233. The Constitution Bench, thus, in the above
case clearly laid down that even reservation for
promotion, ceiling of 50% limit cannot be breached.
The Commission has completely erred in understanding
201
the ratio of the judgment, when the Commission took
the view that on the quantifiable data ceiling of
50% can be breached. There is no such ratio laid
down by this Court in M. Nagaraj. Hence, the very
basis of the Commission to proceed to examine
quantifiable data for exceeding the limit of 50% is
unfounded.
234. Paragraph 236 of the Report of the Commission
contains a heading “QUANTIFIABLE DATA”. It is useful
to extract the entire paragraph 236 which is to the
following effect:
“QUANTIFIABLE DATA:
236. As per the Census of the year
2011 population of Scheduled Castes and
Scheduled Tribes in the State of
Maharashtra is 11,81% and 9.35%
respectively. The percentage of Backward
Classes, Maratha and Kunbi, have not been
found to have been specified in the
Census of the year 2011. On the
instructions of the Government of
Maharashtra, the Gokhale Institute of
Politics and Economics, Pune, conducted
Socio- Economic Caste Census. It was the
survey of rural population in the State
of Maharashtra. On the detailed survey
the Gokhale Institute of Politics and
Economics recorded the findings on
specific percentage of the Maratha
202
community with Kunbi community as 35.7%.
Percentage of all the reserved Backward
Classes to be 48.6%. The percentage of
other Classes or the population, who have
not disclosed their castes, is shown to
be 15.7%, From this survey report though
it relates to the rural area, total
percentage of the exiting Backward
Classes, Maratha and Kunbi, who claim to
be backward, comes to 48.6% plus 35.7%
equivalent to 84.3% of the total
population. There is no dispute that
large population of the Maratha and Kunbi
castes as well as existing Backward
Classes are inhabitants of the rural
areas. 48.6% population of the existing
reserved category including Scheduled
Castes, Scheduled Tribes and all Backward
Classes have been already identified as
socially and educationally backward. The
Maratha caste has been identified
socially, educationally and economically
backward by this Commission. So as total
84.3% population can be said to be of
backward classes.”
235. Regarding the above noted quantifiable data,
the Commission has recorded its reasons for
reservation under Article 15(4) and 16(4) in
paragraph 259. We extract here paragraph 259 to the
following effect:
“259. To sum up this Commission already
found above on appreciation of evidence
collected/produced before it that 80% to
85% of the population in the State of
Maharashtra is backward. According to
this Commission to accommodate the 80% to
203
85% backward Population within a ceiling
of 50% will be injustice to them and as
such it would frustrate the very purpose
of the reservation policy arising out of
Article 15 and Article 16 of the
Constitution. In the considered opinion
of this Commission, this is the extra
ordinary situation, which has been
mentioned in the 2nd Term of Reference
and as required by Indra Sawhney . 80% to
85% backward population adverted to above
speaks about quantifiable contemporary
data, vide Nagaraj. If, accordingly,
ceiling of 50% increased efficiency in
administration could not be affected
because all of them would compete. This
Commission record facts findings that as
required by the 2nd Term of Reference
there are not only exceptional
circumstances but also extra ordinary
situations, which need to be applied for
the grant of the reservation in the
present context in view of Clause (4) of
Article 15 and Clause (4) of Article 16
of the Constitution.) This will enable
the Government of Maharashtra to make
special provision for the advancement of
the Maratha community, which is certainly
socially and educationally backward class
and ultimately that will enable the
Government of Maharashtra to make
provision for reservation of appointment
or posts in favour of the Maratha
community in the services under the
State.”
236. It is clear that the entire basis of the
Commission to exceed 50% limit is that since the
population of backward class is between 80% to 85%,
204
reservation to them within the ceiling 50% will be
injustice to them.
237. We may revert back to paragraph 810 where
Indra Sawhney has given illustration which
illustration is regarding certain extra-ordinary
situations. The exact words used in paragraph 810
are:
“It might happen that in far flung and
remote areas the population inhabiting
those areas might, on account of their
being out of the main stream of national
life and in view of conditions peculiar to
and characteristical to them, need to be
treated in a different way, some
relaxation in this strict rule may become
imperative. In doing so, extreme caution
is to be exercised and a special case made
out.”
238. Shri Rohtagi had submitted that the test laid
down in paragraph 810 is only geographical test
which was an illustration. It is true that in Indra
Sawhney the expression used was “far flung and
remote areas” but the social test which was a part
of the same sentence stated “the population
inhabiting those areas might, on account of their
205
being out of the main stream of national life and in
view of conditions peculiar to and characteristical
to them”. Thus, one of the social conditions in
paragraph 810 is that being within the main stream
of National Life, the case of Maratha does not
satisfy the extra-ordinary situations as indicated
in paragraph 810 of Indra Sawhney . The Marathas
are in the main stream of the National Life. It is
not even disputed that Marathas are politically
dominant caste.
239. This Court in several judgments has noticed
that what can be the extra-ordinary situations as
contemplated in paragraph 810 in few other cases. We
have referred above the three-Judge Bench judgment
in Union of India and others vs. Rakesh Kumar and
others, (2010) 4 SCC 50, where three-Judge Bench
held that exceptional case of 50% ceiling can be in
regard to Panchayats in scheduled areas. The above
three-Judge Bench has also been approved and
reiterated by the Constitution Bench of this Court
in K.K. Krishnamurthi (supra). In the above cases
206
this Court was examining the reservation in
Panchayats. In the context of Part IX of the
Constitution, 50% ceiling principle was applied but
exception was noticed.
240. In the above context, we may also notice the
paragraph 163 of the impugned judgment of the High
Court where the High Court has also come to the
conclusion that the Maratha has made out a case of
extra-ordinary situation within the meaning of
paragraph 610 of Indra Sawhney's case. The High
Court in paragraph 163 of judgment made following
observation:
“163...We would curiously refer to the
reports, which would disclose that it is
for the first time in form of Gaikwad
Commission the quantifiable data has been
collected and in terms of Nagaraj, the
quantifiable data, inadequacy of
representation are two key factors which
would permit exceeding of reservation of
50% by the State. ….”
241. The High Court has endorsed the opinion of the
Commission that when the population of backward
class is 85% if they would get only 50%, it would
207
not be valid. In paragraph 165 of the impugned
judgment following is the opinion of the High Court:
“165....The percentage of other
classes of population who have not
disclosed their caste have been shown to
be 15.7%. The Commission therefore
concludes that though the survey report
relates to rural area, the total
percentage of existing backward classes,
Maratha and kunbi, who claim to be
backward comes to 48.6% + 35.7%,
equivalent to 84.3% of the total
population. The Commission has also made
a reference to the census of the year
1872 which calculates the population of
Shudras and the census report of 1872
from which the position emerge that more
than 80% population was found backward in
the census of 1872. The commission
categorizes this as an extra-ordinary
situation since the majority of the
unequals are living with the minority of
the equals. The figures available on
record on the basis of 2011 census
disclose that the State population is
about 11.24 crores out of which
3,68,83,000 is the population of OBC
(VJNT, OBC SBC) The statistics of
Ministry of Social Justice and
Empowerment, Government of India has
given the State wise percentage of OBCs
in India and for Maharashtra it is 33.8%
whereas SC-ST is 22%. The Gaikwad
commission has patil-sachin. ::: Uploaded
on - 27/06/2019 ::: Downloaded on -
05/04/2021 16:43:36 ::: 433 Marata(J)
final.doc therefore deduced that the
population of Marathas is 30%. Therefore,
in terms of the population, if we look at
the figures then the situation which
emerges is that almost 85% of the
208
population is of the backward classes and
to suggest that if 85% of people are
backward and they get only a reservation
of 50%, it would be traversity of
justice. When we speak of equality –
equality of status and opportunity, then
whether this disparity would be referred
to as achieving equality is the moot
question. The situation of extra-ordinary
circumstances as set out though by way of
illustration in Indra Sawhney would thus
get attracted and the theme of the Indian
Constitution to achieve equality can be
attained. Once we have accepted that the
Maratha community is a backward class,
then it is imperative on the part of the
State to uplift the said community and if
the State does so, and in extra ordinary
circumstances, exceed the limit of 50%,
we feel that this is an extra ordinary
situation to cross the limit of 50%.”
242. Again at page 453 of the judgment, the High
Court reiterated that extra-ordinary situations have
been culled out by the report since backward class
is 85%, Maratha being 30%. Treating above to be
extra-ordinary situation following observations have
been made in paragraph 170:
“170...The extra-ordinary situations
have been culled out as the report has
declared that Maratha community comprise
30% of the population of the State and
this figure is derived on the basis of
quantifiable data. The extra-ordinary
situation is therefore carved out for
awarding an adequate representation to the
209
Maratha community who is now declared
socially, educationally and economically
backward. Based on the population of 30%,
Commission has arrived at a conclusion
that the total percentage of State
population which is entitled for the
constitutional benefits and advantages as
listed under Article 15(4) and Article
16(4) would be around 85% and this is a
compelling extra-ordinary situation
demanding extra-ordinary solution within
the constitutional framework. ...”
243. From the above, it is clear that both the
Commission and the High Court treated the extraordinary situations with regard to exceeding 50% for
granting separate reservation to Maratha, the fact
that population of backward class is 85% and
reservation limit is only 50%. The above extraordinary circumstances as opined by the Commission
and approved by the High Court is not extra-ordinary
situation as referred to in paragraph 810 of Indra
Sawhney judgment. The Marathas are dominant forward
class and are in the main stream of National life.
The above situation is not an extra-ordinary
situation contemplated by Indra Sawhney judgment and
both Commission and the High Court fell in error in
210
accepting the above circumstances as extra-ordinary
circumstance for exceeding the 50 % limit. At this
stage, we may notice that what was said by Dr.
Ambedkar in the Constituent Assembly debates dated
30.11.1948 while debating draft Article 10/3
(Article 16(4) of the Constitution). Dr. Ambedkar by
giving an illustration said :
“Supposing, for instance, we were to
concede in full the demand of those
communities who have not been so far
employed in the public services to the
fullest extent,what would really happen
is, we shall be completely destroying the
first proposition upon which we are all
agreed, namely, that there shall be an
equality of opportunity. Let me give an
illustration. Supposing, for instance,
reservations were made for a community or
a collection of communities, the total of
which came to something like 70 per cent.
of the total posts under the State and
only 30 per cent. are retained as the
unreserved. Could anybody say that the
reservation of 30 per cent. As open to
general competition would be satisfactory
from the point of view of giving effect to
the first principle, namely, that there
shall be equality of opportunity? It
cannot be in my judgment. Therefore the
seats to be reserved, if the reservation
is to be consistent with sub-clause (1) of
Article 10, must be confined to a minority
of seats. It is then only that the first
principle could find its place in the
Constitution and effective in operation.”
211
244. The illustration given by Dr. Ambedkar that
supposing 70% posts are reserved and 30% may retain
as unreserved, can anybody say that 30% as open to
general competition would be satisfactory from point
of view of giving effect to the first principle of
equality, the answer given by Dr. Ambedkar was in
negative. Thus, Constituent Assembly by giving
illustration has already disapproved principle which
is now propounded by the High Court. We cannot
approve the view of the High court based on the same
view taken by the Commission.
245. In view of the foregoing discussion, we are of
the considered opinion that neither the Gaikwad
Commission's report nor the judgment of the High
Court has made out an extra-ordinary situation in
the case of Maratha where ceiling of 50% can be
exceeded. We have already noticed the relevant
discussion and conclusion of the Commission in the
above regard and we have found that the conclusions
212
of the Commission are unsustainable. We, thus, hold
that there is no case of extra-ordinary situation
for exceeding the ceiling limit of 50% for grant of
reservation to Maratha over and above 50% ceiling of
reservation.
(10)Whether the Act, 2018, as amended in 2019
granting separate reservation for Maratha
Community by exceeding ceiling of 50 percent
makes out exceptional circumstances as per the
judgment of Indra Sawhney case?
246. We have noticed above the provisions of the
2018 Act. In Section 2(j), the Maratha Community has
been declared and included in the educationally and
socially backward category and under Section 4(1),
16 percent (12 percent as per 2019 Amendment Act) of
the total seats in educational institutions
including private educational institutions, other
than minority educational institutions are reserved
and 16 percent (13 percent as amended by 2019 Act)
of total appointment in direct recruitment in public
services and posts. Section 3(4) has further made it
clear that nothing in the Act shall effect the
213
reservation provided to other backward classes under
2001 Act and 2006 Act. The legislative history of
2018 enactment is necessary to be noticed to find
out the objects and reasons for the enactment.
247. We have noted in detail various reports of
National Backward commissions as well as State
Backward Commissions which have repeatedly rejected
the claim of Maratha to be included in Other
Backward Communities. After receipt of Bapat
Commission Report which rejected the claim of
Maratha to be Other Backward Classes, the State
Government appointed a Committee under the
chairmanship of a sitting Minister i.e. Narayan Rane
Committee. On the basis of said Rane Committee
report, the State enacted 2014, Act, constitutional
validity of which Act was challenged in the High
Court and was stayed by the High Court vide its
order dated 07.04.2015. During pendency of the writ
petition, the State Government made a reference to
the Maharashtra Backward Class Commission in June,
214
2017 and one of the term of the Reference was to the
following effect: -
“ii) defines the exceptional
circumstances and extraordinary situations
applied for the benefits of the
reservation in the contemporary scenario.”
248. The Maharashtra Backward Class Commission
submitted its report in 15.11.2018, which report
became the basis for 2018 enactment.
249. The Statements of objects and reasons for 2018
enactment have been published in the Maharashtra
Government Gazette dated 29.11.2018 publishing the
bill No. 78(LXXVIII) of 2018. Paragraph 6 of the
Statement of object and reasons notices the earlier
2014 Act and the stay by the High Court and further
reference to the Commission. Paragraph 6 of the
Statement of objects and reasons is as follows:-
“6. Thereafter, the Maharashtra State
Reservation (of seats for admission in
educational institutions in the State and
for appointments or posts in the public
services under the State) for
Educationally and Socially Backward
Category (ESBC) Act, 2014 (Mah.I of 2015),
for converting the said Ordinance into an
Act of the State Legislature, was enacted
on 9th January 2015. However, the
215
Constitutional validity of the said Act
has been challenged before the Hon’ble
High Court. The Hon’ble High Court has
stayed the implementation of the said Act
on 7th April, 2015.
Thereafter, the State Government has
requested the Maharashtra Backward Classes
Commission in june 2017, to,-
(i) Determine Contemporary Criteria
and parameters to be adopted in
ascertaining the social, educational and economic backwardness of Marathas for extending benefit of reservation
under the constitutional provision keeping in focus the
various judgments of the
courts, reservation laws and
constitutional mandate;
(ii) Define the exceptional circumstances and extra ordinary situation applied for the benefits
of reservation in the contemporary scenario;
(iii) Scrutinize and inspect the
quantifiable data and other
information which the State has
submitted to Hon. Court to
investigate the backwardness of
Maratha Community;
(iv) Determine the representation of
Marathas in the State Public
Employment;
(v) Ascertain the proportion of the
population of the Maratha Community in the State by collect-
216
ing the information available under various sources.”
250. Paragraph 8 of the Statement of objects and
reasons further states that the Commission has
submitted its report to the State Government on
15.11.2018. Paragraph 8 refers to the conclusion and
the findings of the Commission. The conclusions and
findings of the Commission have been noticed in
paragraph 8 of the Statement of Objects and reasons.
251. The report of the Maharashtra State Backward
Class Commission dated 15.11.2018 became the basis
for granting separate reservation to the Maratha
community by exceeding the 50 percent ceiling limit.
We have already in detail has dealt the report of
the Commission especially Chapter 10 where
Commission dealt with extraordinary situation.
252. The Government after considering the report,
its conclusion and findings and recommendations
formed the opinion for giving separate reservation
to the Maratha community as socially and
educationally backward classes (SEBC). Paragraph 9
217
of the statement of objects and reasons is as
follows: -
“9. The Government of Maharashtra has
considered the report, conclusions,
findings and recommendations of the said
Commission. On the basis of the exhaustive
study of the said Commission on various
aspects regarding the Marathas, like
public employment, education, social
status, economical status, ratio of
population, living conditions, small size
of land holdings by families, percentage
of suicide of farmers in the State, type
of works done for living, migration of
families, etc., analysed by data, the
Government is of opinion that,-
(a) The Maratha Community is socially
and educationally backward and a
backward class for the purposes of
Article 15(4) and (5) and Article
16(4), on the basis of quantifiable data showing backwardness, inadequacy in representation by the said Commission;
(b) Having regard to the exceptional
circumstances and extraordinary
situation generated on declaring
Maratha as socially and educationally backward and their consequential entitlement to the
reservations benefits and
also having regard to the backward class communities already
included in the OBC list, if
abruptly asked to share their
well established entitlement of
reservation with a 30% of Maratha
218
citizenry, it would be a catastrophic scenario creating an
extraordinary situation and
exceptional circumstances, which
if not swiftly and judiciously
addressed, may lead to unwarranted repercussions in the well
harmonious co-existence in the
State, it is expedient to relax
for the percentage of reservation
by exceeding the limit of 50%,
for advancement of them,
without disturbing the existing fifty-two percent reservation currently applicable
in the State, only for those who
are not in creamy layer;
(c) It is expedient to provide for 16
percent of reservation to such
category;
(d) It is expedient to make special
provision, by law, or the advancement of any Socially and Educationally Backward Classes of
Citizens, in so far as admission
to educational institutions,
other than the minority educational institutions, is concerned
but such special provisions shall
not include the reservation of
seats for election to the Village Panchayat Samitis, Zilla
Parishads, Municipal Councils,
Municipal Corporations, etc;
(e) It is expedient to provide for
reservation to such classes in
admissions to educational institutions including private educational institutions
whether aided or unaided by the
219
State, other than minority educational institutions referred to
in clause (1) of Article 30 of
the Constitution; and in appointments in public services and
posts under the State, excluding
reservations in favour of
Scheduled Tribes candidates in
the Scheduled Areas of the State
under the Fifth Schedule to the
Constitution of India, as per the
notification issued on the 9th
June 2014 in this behalf;
(f) By providing reservation to the
Maratha Community, the efficiency
in administration will not be affected, since the Government is
not diluting the standard of educational qualification
for direct recruitment for this
classes and there will definitely be competition amongst
them for such recruitment; and
(g) To enact a suitable law for the
above purposes.
In view of the above, the
State Government is of the
opinion that the persons
belonging to such category below
the Creamy layer need special
help to advance further, in the
contemporary period, so that they
can move to a stage of equality
with the advanced sections of the
society, wherefrom they can
proceed on their own.”
220
253. The statement and object of the bill clearly
indicates that the State has formed the opinion on
the basis of the report of the Commissions and had
accepted the reasons given by the Commission holding
that extraordinary circumstances for exceeding the
ceiling limit is made out. We have already in detail
analyze and noticed the report of the Commission and
have held that no extraordinary circumstances have
been made out on the basis of reasoning given in the
report. While the foundation itself is
unsustainable, the formation of opinion by the State
Government to grant separate reservation to the
Marathas exceeding 50 percent limit is
unsustainable.
254. It is well settled that all legislative Act and
executive acts of the Government have to comply with
the Fundamental Rights. The State’s legislative or
any executive action passed in violation of
Fundamental Rights is ultra vires to the
Constitution. The 50 percent ceiling limit for
reservation laid down by Indra Sawhney case is on
221
the basis of principle of equality as enshrined in
Article 16 of the Constitution. In paragraph 808,
Indra Sawhney laid down: -
“808. It needs no emphasis to say
that the principle aim of Article
14 and 16 is equality and equality of
opportunity and that Clause (4) of Article
16 is but a means of achieving the very
same objective. Clause (4) is a special
provision - though not an exception to
Clause (1). Both the provisions have to be
harmonised keeping in mind the fact that
both are but the restatements of the
principle of equality enshrined in Article
14. The provision under Article 16(4)
- conceived in the interest of certain
sections of society - should be balanced
against the guarantee of equality
enshrined in Clause (1) of Article
16 which is a guarantee held out to every
citizen and to the entire society. It is
relevant to point out that Dr. Ambedkar
himself contemplated reservation being
"confined to a minority of seats" (See his
speech in Constituent Assembly, set out in
para 28). No other member of the
Constituent Assembly suggested otherwise.
It is, thus clear that reservation of a
majority of seats was never envisaged by
the founding fathers. Nor are we satisfied
that the present context requires us to
depart from that concept.”
255. The Constitution Bench of this Court in M.
Nagaraj(Supra) has reiterated that ceiling limit on
222
reservation fixed at 50 percent is to preserve
equality. In paragraphs 111 and 114, following was
laid down: -
“111. The petitioners submitted that
equality has been recognized to be a basic
feature of our Constitution. To preserve
equality, a balance was struck in Indra
Sawhney so as to ensure that the basic
structure of Articles 14, 15 and 16
remains intact and at the same time social
upliftment, as envisaged by the
Constitution, stood achieved. In order to
balance and structure the equality, a
ceiling limit on reservation was fixed at
50% of the cadre strength; reservation was
confined to initial recruitment and was
not extended to promotion...
114. In Indra Sawhney, the equality
which was protected by the rule of 50%,
was by balancing the rights of the general
category vis-à-vis the rights of BCs en
bloc consisting of OBCs, SCs and STs...”
256. We have found that no extraordinary
circumstances were made out in granting separate
reservation of Maratha Community by exceeding the 50
percent ceiling limit of reservation. The Act, 2018
violates the principle of equality as enshrined in
Article 16. The exceeding of ceiling limit without
there being any exceptional circumstances clearly
223
violates Article 14 and 16 of the Constitution which
makes the enactment ultra vires.
257. We thus conclude that the Act, 2018 as amended
in 2019, granting separate reservation for Maratha
community has not made out any exceptional
circumstances to exceed the ceiling of 50 percent
reservation.
(11)Gaikwad Commission Report – a scrutiny
258. Shri Pradeep Sancheti, learned senior
counsel, appearing for the appellant elaborating his
submissions has questioned the Gaikwad Commission's
Report on numerous grounds. Shri Patwalia, learned
senior counsel, appearing for the State of
Maharashtra has refuted the challenge.
259. Shri Sancheti submits that judicial scrutiny
of a quantifiable data claimed by the State is an
essential constitutional safeguard. He submits that
though the Court has to look into the report with
judicial deference but judicial review is
permissible on several counts. A report which
224
violates the constitutional principle and rule of
law can very well be interfered with in exercise of
judicial review. Shri Sancheti submits that three
National Backward Classes Commissions as well as
three State Backward Classes Commissions for the
last 60 years have considered the claim of Marathas
to be included in Other Backward Community which
claim was repeatedly negatived. He submits that the
report of National Backward Classes Commissions and
State Backward Classes Commissions could not have
been ignored by Gaikward Commission in the manner it
has dealt with the earlier reports. Shri Sancheti
submits that the National Backward Classes
Commission as well as the State Backward Classes
Commission considered the contemporaneous data and
came to a conclusion at a particular time. Gaikward
Commission which was appointed in 2017 had no
jurisdiction to pronounce that Maratha was backward
community from the beginning and all earlier reports
are faulty. Shri Sancheti submits that Maratha
community is a most dominant community in the State
of Maharashtra weilding substantial political power.
225
The majority of Legislature belongs to Maratha
community, out of 19 Chief Ministers of the
Maharashtra State, 13 Chief Ministers were from
Maratha community. Out of 25 Medical Colleges in
Maharashtra 17 Medical Colleges are founded/owned by
the people belonging to Maratha community. In 24 of
the 31 District Central Cooperative Banks are
occupied by the persons from Martha community. Out
of the functioning 161 Cooperative Sugar Factories
in Maharashtra, in 86 Sugar Factories persons from
Maratha community are the Chairman. The Class which
is politically so dominant, cannot be said to be
suffering from social backwardness.
260. Shri Sancheti further submits that survey by
the Commission, data result, analysis therein
suffers from various inherent flaws. The sample
survey conducted by the Commission is unscientific
and cannot be taken as respective sample. The sample
size is very small. Only 950 persons were surveyed
from Urban areas. He submits that Commission was
loaded with members belonging to the Maratha
226
community. The Agency for survey (Data collections)
was selected without tendering process. Out of five
organisations that conducted the survey two were
headed by persons from Maratha community. The
Maratha community has adequate representation in
public service which fact is apparent from data
collected by the Commission itself. On the basis of
data collection by the Commission no conclusion
could have been arrived that Maratha community is
not adequately represented in services in the State.
261. Shri Patwalia refuting the submissions of
the learned counsel for the appellant submits that
Gaikwad Commission has considered conclusions
arrived by all earlier Commissions and thereafter it
had recorded its conclusion. The Commission before
proceeding further has laid down procedure for
investigation. The Commission decided to conduct
survey as to collect information in respect of the
social and educational backwardness. The Commission
has surveyed to collect information of all families
in two villages in each District and the Commission
decided to collect information by selecting one
227
Municipal Corporation and one Municipal Council from
each of six regions of the State of Maharashtra. For
the purpose of sample survey five different Agencies
have been nominated. The Commission also conducted
public hearing, collected representations from
persons, numbering 195174. Out of representations,
193651 persons are in favour of reservation to
Maratha whereas 1523 were in favour of reservation
of Maratha community by creating separate
percentage. The Commission also recorded evidence,
obtained information from the Government departments
and other organisations, Universities and after
fixing parameters allocated 10 marks for socially
backward class, 8 marks out of 25 marks has been
allocated for educational backwardness, 7 marks to
the economically backward class and after following
the marking system held that Maratha community has
obtained more that 12.5 marks and has satisfied that
it is socially, educationally and economically
backward class. 784 resolutions of Gram Panchayats
were in favour of granting reservation of OBC. It
is submitted that the representation of Maratha
228
community in the public services is not equivalent
to their population which is 30%. Hence, they were
entitled to separate reservation to make their
representation as per their population.
262. Shri Patwalia further submits that scope of
judicial review of a report of the Commission is too
limited. This Court shall not substitute its opinion
in place of the opinion arrived by the Commission.
He submits that parameters of judicial review have
been laid down in Indra Sawhney's case. The Court
shall not sit in appeal over the opinion of experts.
The report of Gaikwad Commission is based on sample
study of Maratha community. It is on the basis of
the report of the Gaikwad Commission that State
Government formed opinion that Maratha community is
a socially and educationally backward class and
deserves a separate reservation in recognition of
their legitimate claim. Inclusion of Maratha
community in already existing OBC community for whom
19% reservation is allowed shall have adverse effect
on the OBC who are already enjoying the reservation,
229
hence decision was taken to grant separate
reservation.
263. We have considered the submissions of the
parties and perused the records. Before
proceeding further, we need to notice the parameters
of judicial review in such cases.
264. We may first notice the Constitution Bench
judgment of this Court in M.R. Balaji vs. The State
of Mysore and others, AIR (1963) SC 649. In the
above case, this Court had occasion to consider
Nagan Gowda Committee which has submitted a report
in 1961 and made a recommendation for reservation.
In pursuance of the report, the State of Mysore had
issued an order dated 31.07.1961 deciding to reserve
15% seats for Scheduled Castes and 3% for Scheduled
Tribes and 50% for backward class totaling to 68% of
seats available for admission to the Engineering and
Medical Colleges and to other technical institutions
in the State. The Constitution Bench elaborated the
extent of judicial review to an executive action. In
230
paragraph 35 of the judgment, the Constitution Bench
laid down following:
“35. The petitioners contend that having
regard to the infirmities in the impugned
order, action of the State in issuing the
said order amounts to a fraud on the
Constitutional power conferred on the
State by Article 15(4). This argument is
well-founded, and must be upheld. When it
is said about an executive action that it
is a fraud on the Constitution, it does
not necessarily mean that the action is
actuated by mala fides. An executive
action which is patently and plainly
outside the limits of the constitutional
authority conferred on the State in that
behalf is struck down as being ultra vires
the State's authority. If, on the other
hand, the executive action does not
patently or overtly transgress the
authority conferred on it by the
Constitution, but the transgression is
covert or latent, the said action is
struck down as being a fraud on the
relevant constitutional power. It is in
this connection that courts often consider
the substance of the matter and not its
form and in ascertaining the substance of
the matter, the appearance or the cloak,
or the veil of the executive action is
carefully scrutinized and if it appears
that notwithstanding the appearance, the
cloak or the veil of the executive action,
in substance and in truth the
constitutional power has been
transgressed, the impugned action is
struck down as a fraud on the
Constitution. ….”
231
264(a). From the above, it is clear that what was
emphasised by the Court is that it is the substance
of the matter which has to be examined and not its
form, appearance, or the cloak, or the veil of the
executive action has to be carefully scrutinised.
265. The next judgment which we need to notice is
the judgment of this Court in The State of Andhra
Pradesh and others vs. U.S.V. Balram, etc., (1972) 1
SCC 660. The above case is also on basis of the
Commission's report. The Commission for the backward
classes in the State of Andhra Pradesh appointed by
the State Government submitted a report. The High
Court held the enumeration of the backward classes
as well as reservation invalid. The State of Andhra
Pradesh filed the appeal. The grounds of challenge
were noticed in Paragraph 77 of the judgment. In
paragraph 83-A of the judgment this Court observed:
that the question to be answered is whether the
materials relied in the report are not adequate or
sufficient to support its conclusion. Following have
been laid down in paragraph 83-A:
232
"83-A. … But, in our opinion, the question
is whether on the materials collected by
the Commission and referred to in its
report, can it be stated that those
materials are not adequate or sufficient
to support its conclusion that the persons
mentioned in the list as Backward Classes
are socially and educationally
backward? ....
...Therefore, the proper approach, in our
opinion, should be to see whether the
relevant data and materials referred to in
the report of the Commission justify its
conclusions. ….”
266. Thus, one of the parameters of scrutiny of a
Commission's report is that whether on the basis of
data and materials referred to in the report whether
conclusions arrived by the Commission are justified.
267. In Indra Sawhney, one of the questions
framed by the Constitution Bench to answer was
question No.9, which is to the following fact:
"9. Whether the extent of judicial
review is restricted with regard to the
identification of Backward Classes and the
percentage of reservations made for such
classes to a demonstrably perverse
identification or a demonstrably
unreasonable percentage?”
233
268. In paragraph 842 of Indra Sawhney following
was laid down:
“842. It is enough to say on this
question that there is no particular or
special standard of judicial scrutiny in
matters arising under Article 16(4) or for
that matter, under Article 15(4). The
extent and scope of judicial scrutiny
depends upon the nature of the subjectmatter, the nature of the right affected,
the character of the legal and
constitutional provisions applicable and
so on. The acts and orders of the State
made under Article 16(4) do not enjoy any
particular kind of immunity. At the same
time, we must say that court would
normally extend due deference to the
judgment and discretion of the executive —
a co-equal wing — in these matters. .....”
269. In paragraph 798, it was held by the
Constitution Bench in Indra Sawhney that opinion
formed with respect to grant of reservation is not
beyond judicial scrutiny altogether. The
Constitution Bench referred to an earlier judgment
of this Court in Barium Chemicals v. Company Law
Board, AIR 1967 SC 295. In the above regard
paragraph 798 is extracted for ready reference:
“798. …It does not, however, mean that
the opinion formed is beyond judicial
scrutiny altogether. The scope and reach
of judicial scrutiny in matters within
234
subjective satisfaction of the executive
are well and extensively stated in Barium
Chemicals v. Company Law Board [1966 Supp
SCR 311 : AIR 1967 SC 295] which need not
be repeated here. Suffice it to mention
that the said principles apply equally in
the case of a constitutional provision
like Article 16(4) which expressly places
the particular fact (inadequate
representation) within the subjective
judgment of the State/executive.”
270. Indra Sawhney having referred to the
judgment of this Court in Barium Chemicals (supra)
for the scope and reach of judicial scrutiny. We
need to refer the test enunciated in Barium
Chemicals. The Constitution Bench in Barium
Chemicals had occasion to consider the expression
“if in the opinion of the Central Government
occurring in Section 237 of Companies Act, 1956”.
Justice Hidayatullah laid down that no doubt the
formation of opinion is subjective but the existence
of the circumstances relevant to the inference as
the sine quo non for action must be demonstrable.
Following observations were made in paragraph 27:
“27. …No doubt the formation of opinion is
subjective but the existence of
circumstances relevant to the inference as
the sine qua non for action must be
235
demonstrable. If the action is questioned
on the ground that no circumstances
leading to an inference of the kind
contemplated by the section exists, the
action might be exposed to interference
unless the existence of the circumstances
is made out. As my brother Shelat has put
it trenchantly:
“It is not reasonable to say that the
clause permitted the Government to say
that it has formed the opinion on
circumstances which it thinks exist….”
Since the existence of “circumstances”
is a condition fundamental to the making
of an opinion, the existence of the
circumstances, if questioned, has to be
proved at least prima facie.”
271. Justice Shelat with whom Justice Hidayatullah
has agreed in paragraph 63 laid down following:
“63. .....Therefore, the words, "reason to
believe" or "in the opinion of" do not
always lead to the construction that the
process of entertaining "reason to
believe" or "the opinion" is an altogether
subjective process not lending itself even
to a limited scrutiny by the court that
such "a reason to believe" or "opinion"
was not formed on relevant facts or within
the limits or as Lord Redcliff and Lord
Reid called the restraints of the statute
as an alternative safeguard to rules of
natural justice where the function is
administrative.”
236
272. Dr. Rajiv Dhavan, learned senior counsel,
during his submission has contended that Indra
Sawhney in its judgment has relied on a very weak
test. He contended that the constitutional
reservations are required to be subjected to strict
scrutiny tests.
273. We may also notice two-Judge Bench judgment
of this Court in B.K. Pavitra and others vs. Union
of India and others, (2019) 16 SCC 129, where this
Court had after referring to earlier judgment laid
down that Committee/commission has carried out an
exercise for collecting data, the Court must be
circumspect in exercising the power of judicial
review to re-evaluate the factual material on
record.
274. We may also notice a recent judgment of this
Court in Mukesh Kumar and another vs. State of
Uttarakhand and others, (2020) 3 SCC 1, in which one
of us Justice L. Nageswara Rao speaking for the
Bench laid down following in paragraph 13:
237
“13. .....The Court should show due
deference to the opinion of the State
which does not, however, mean that the
opinion formed is beyond judicial scrutiny
altogether. The scope and reach of
judicial scrutiny in matters within the
subjective satisfaction of the executive
are extensively stated in Barium Chemicals
Ltd. v. Company Law Board [Barium
Chemicals Ltd. v. Company Law Board, AIR
1967 SC 295] , which need not be
reiterated.”
275. The grant of reservation under Article 15(4)
or 16(4) either by an executive order of a State or
legislative measures are Constitutional measures
which are contemplated to fulfill the principle of
equality. The measures taken under Article 15(4) and
16(4) thus, can be examined as to whether they
violate any constitutional principle, are in
conformity with the rights under Article 14, 15 and
16 of the Constitution. The scrutiny of measures
taken by the State either executive or legislative,
thus, has to pass test of the constitutional
scrutiny. It is true that the Court has to look into
the report of the Commission or Committee with
deference but scrutiny to the extent as to whether
any constitutional principle has been violated or
238
any constitutional requirement has not been taken
into consideration is fully permissible. As laid
down in V. Balram case (supra) the judicial scrutiny
is also permissible as to whether from the material
collected by the Commission or committee the
conclusion on which the Commission has arrived is
permissible and reasonable. We are conscious of the
limitation on the Court's scrutiny regarding factual
data and materials collected by the Court. We
without doubting the manner and procedure of
collecting the data shall proceed to examine the
report on the strength of facts, materials, and data
collected by the Commission.
(12)Whether the data of Marathas in public
employment as found out by Gaikwad Commission
makes out cases for grant of reservation under
Article 16(4) of the Constitution of India to
Maratha community?
276. The reservation under Article 16(4) of the
Constitution is enabling power of the State to make
any provision for reservation of appointment or
posts in favour of other backward class of citizens
239
who in the opinion of the State is not adequately
represented in the services under the State. The
conditions precedent for exercise of power under
Article 16(4) is that the backward class is not
adequately represented in the services under the
State.
277. The Constitution Bench of this Court in Indra
Sawhney while elaborating on Article 16(4) has held
that clause (4) of Article 16 speaks of adequate
representation and not proportionate representation
in paragraph 807: -
“807. We must, however, point out
that clause (4) speaks of adequate
representation and not proportionate
representation. Adequate representation
cannot be read as proportionate
representation. Principle of proportionate
representation is accepted only in Article
330 and 332 of the Constitution and that
too for a limited period. These articles
speak of reservation of seats in Lok Sabha
and the State legislatures in favour of
Scheduled Tribes and Scheduled Castes
proportionate to their population, but
they are only temporary and special
provisions. It is therefore not possible
to accept the theory of proportionate
representation though the proportion of
population of backward classes to the
240
total population would certainly be
relevant...”
278. The objective behind clause (4) of Article 16
is sharing the power by those backward classes of
the society who had no opportunities in the past to
be part of the State services or to share the power
of the State. Indra Sawhney has noted the above
objective in paragraph 694 of the judgment (by
Justice Jeevan Reddy), which is to the following
effect: -
“694. The above material makes it
amply clear that the objective behind
clause (4) of Article 16 was the sharing
of State power. The State power which was
almost exclusively monopolized by the
upper castes i.e., a few communities, was
now sought to be made broad-based. The
backward communities who were till then
kept out of apparatus of power, were
sought to be inducted there into and since
that was not practicable in the normal
course, a special provision was made to
effectuate the said objective. In short,
the objective behind Article 16(4) is
empowerment of the deprived backward
communities – to give them a share in the
administrative apparatus and in the
governance of the community.”
279. The State, when provides reservation under
Article 16(4) by executive action or by legislation,
241
condition precedent, that the backward class is not
adequately represented in the service has to be
fulfilled. The Constitution Bench in M.Nagaraj
(Supra) has laid down following in paragraph 102:-
“102...If the appropriate Government
enacts a law providing for reservation
without keeping in mind the parameters in
Article 16(4) and Article 335 then this
Court will certainly set aside and strike
down such legislation...”
280. Further in paragraph 107, M.Nagaraj laid down
following:-
“107...As long as the boundaries
mentioned in Article 16(4), namely,
backwardness, inadequacy and efficiency of
administration are retained in Articles
16(4-A) and 16(4-B) as controlling
factors, we cannot attribute
constitutional invalidity to these
enabling provisions. However, when the
State fails to identify and implement the
controlling factors then excessiveness
comes in, which is to be decided on the
facts of each case. In a given case, where
excessiveness results in reverse
discrimination, this Court has to examine
individual cases and decide the matter in
accordance with law. This is the theory of
“guided power”. We may once again repeat
that equality is not violated by mere
conferment of power but it is breached by
arbitrary exercise of the power
conferred.”
242
281. The word ‘adequate’ is a relative term used in
relation to representation of different caste and
communities in public employment. The objective of
Article 16(4) is that backward class should also be
put in main stream and they are to be enabled to
share power of the State by affirmative action. To
be part of public service, as accepted by the
Society of today, is to attain social status and
play a role in governance. The governance of the
State is through service personnel who play a key
role in implementing government policies, its
obligation and duties. The State for exercising its
enabling power to grant reservation under Article
16(4) has to identify inadequacy in representation
of backward class who is not adequately represented.
For finding out adequate representation, the
representation of backward class has to be
contrasted with representation of other classes
including forward classes. It is a relative term
made in reference to representation of backward
class, other caste and communities in public
243
services. The Maratha community is only one
community among the numerous castes and communities
in the State of Maharashtra. The principal caste and
communities in the State of Maharashtra consists of
Scheduled Castes/Scheduled Tribes, de-notified
tribes, nomadic tribes (B, C and D), special
backward category and other backward classes,
general categories and the minorities.
282. A large number of castes and communities are
included in the above class of castes. We may refer
to number of caste and communities included in
different groups. Few details are on the record:
SC(59), ST(47) and OBC(348).
283. The above details indicate that in a rough
estimate in the State of Maharashtra, there are more
than 500 castes and communities which are living in
the State and earning their livelihood.
244
which include Scheduled Caste, Scheduled Tribe to
have representation in the public services. The
State cannot take any measure which violates the
balance. The expression ‘inadequacy’ has to be
understood in above manner.
285. Now we proceed to look into the report of
Gaikwad Commission which has separately in detail in
Chapter IX dealt with the subject “inadequacy of
Marathas in the services under the State.”
286. The Commission in paragraph 214(b) of the
report states: -
“214(b). The information regarding
recruitment status of all the Reserved
Classes and Open Categories in the
services under the State has been sought
from the State Government and other state
agencies...”
287. The Commission was well aware of the
Constitutional conditions stipulated to be complied
by the State for reserving the posts in favour of
backward class of citizens which is clear from what
has been stated in paragraph 215 which for ready
reference is extracted as below: -
245
“215. The three Constitutional
conditions stipulated to be compiled by
State for reserving the posts in favour of
any Backward Class of Citizens in the
Public Services under or controlled by the
State as also confirmed to be nonnegotiable by the judicial pronouncement
from time to time are as under: -
i) If such Backward Class is not
adequately represented in the
services under the State.
ii) The total reservation should not
exceed 50% unless there are extra
ordinary and compelling circumstances which should be demonstrated and justified by a
quantifiable data.
iii) Such reservation should be consistent with the maintenance of
efficiency in the administration.”
246
in Central services namely IAS, IPS, IFS and Table C
deals with position of employees and officers in
Mantralaya Cadre. The tables A and C enumerated the
details grade wise from Grade-A to Grade-D. We
proceed to examine the issue on the basis of facts
and figures compiled by the Commission obtained from
State and other sources. The figures compiled
relates as on 01.08.2018. Figures having obtained
from the State, there is no question of doubting the
facts and figures compiled by the Commission.
289. Table A is part of paragraph 219 of the report.
We need to extract entire table A for appreciating
the question.
Table A: Strength of Marathas in
Government/Public Services/PRIs/ULBs in the
State
S.
No
Gr
ad
e
o
f
se
rv
ic
es
Sa
nc
ti
on
ed
po
st
s
Po
st
s
fi
ll
ed
in
as
on
01
/0
Vac
ant
po
sts
Po
st
sa
nc
ti
on
ed
fo
r
op
en
Po
st
fi
ll
ed
fo
r
op
en
ca
te
Pos
ts
fil
led
fro
m
Mar
ath
a
cla
ss
Po
st
s
fi
ll
ed
fr
om
SC
s
Po
st
s
fi
ll
ed
fr
om
ST
s
Po
st
s
fi
ll
ed
fr
om
Vi
mu
kt
Po
st
s
fi
ll
ed
fr
om
No
ma
di
Po
st
s
fi
ll
ed
fr
om
No
ma
di
Po
st
s
fi
ll
ed
fr
om
No
ma
di
Po
st
s
fi
ll
ed
fr
om
ot
he
r
Po
st
s
fi
ll
ed
fr
om
Sp
ec
ia
247
8/
18
ca
te
go
ry
go
ry
fro m
out
of
ope n
cat
ego
ry
pos
ts
a
Ja
ti
(VJ
A)
c
Tr
ibe
(NT
B)
c
Tr
ibe
(NT
C)
c
Tr
ibe
(NT
D)
ba
ck
wa
rd
cl
ass
(O
BC)
l
ba
ck
wa
rd
cl
ass
(S
BC)
1
2
3
4
5
6
7
8
9 10 11 12 13 14 15 16
1 Gr
adeA
83
532
49
190
343
42
42
669
28
048
9321
(11.1
6%)
676 5
(8.1
6%)
282 2
(3.
38%)
142 2
((1.
7%)
111 6
(1.
34%)
138
3(1
.66
%)
911
(1.
09% )
440
0(5
.27
%)
232
4(2.
78%)
2 Gr
adeB
83
425
59
504
239
21
44
527
31
193
905 7
(10
.86
%)
90
38
(1
0.
83
%)
39
80
(4
.7
7%)
19
76
(2
.3
7%)
16
93
(2
.0
3%)
22
35
(2
.6
8%)
151
3(1
.81
%)
637
6(7
.64
%)
1500
( 1. 8
0%)
3 Gr
adeC
95
24
10
78
34
07
169
003
44
85
75
41
33
81
153
224
(16
.09
%)
97
215
(1
0.
21
%)
66
155
(6
.9
5%)
23
145
(2
.4
3%)
20
136
(2
.1
1%)
25
967
(2
.7
3%)
174
77
(1.
84% )
100
196
(10
.52
%)
197
35
(2.0
7%)
4 Gr
adeD
30
13
85
19
95
70
101
815
13
72
99
99
592
363
87
(12
.07
%)
30
369
(1
0.
08
%)
17
282
(5
.7
3%)
56
71
(1
.8
8%)
55
88
(1
.8
5%)
62
48
(2.
07
%)
34
79
(1.
15% )
249
99
(8.
29% )
6342
(2.
10%)
To
tal
14
20
752
10
91
671
329
081
67
30
70
57
22
14
207
989
14
33
87
90
239
32
214
28
533
35
833
23
380
135
971
29
901
Ave%
14.
64
10
.09
6.
35
2.
27
2.
01
2.
52
1.
65
9.5 7
2.10
248
290. The relevant figures pertaining to posts filled
as on 01.08.2018, includes posts filled from open
category, posts filled from Maratha classes from out
of open category posts, posts filled from SCs, posts
filled from STs, posts filled from Vimukt Jati(VJA),
posts filled from Nomadic Tribes NT-B, posts filled
from Nomadic Tribes NT-C,NT-D and posts filled from
the backward classes (OBC) and posts filled from
special backward classes(SBC). The above figures
correctly represent the representation of different
classes in public services.
291. Now, we take the representation of Marathas
grade wise as reflected by Table A.
GRADE-A
292. Posts filled are 49,190 out of which open
category posts are 28,048 and posts filled from
Maratha classes are 9,321. The Maratha Community
obviously has been competing in the open category
and has obtained the post as open category
candidates. The Chart also mentioned below each
249
class the percentage against the column of posts
filled from Maratha class, percentage 11.16% has
been mentioned. Similarly, different percentage has
been mentioned against all other classes. When we
take the total number of posts, posts filled for
open category, it is mentioned as 28,048 out of
which Marathas are 9,321. When we calculate the
percentage of Maratha representation out of the open
category filled post, percentage comes out to 33.23
percent. Thus, the correct percentage of Maratha out
of the open category post is 33.23 percent which
indicates that more than 33 percent of the open
category post has been bagged by Maratha. In
Maharashtra while considering the status of
reservation, we have noticed that 52 percent posts
are reserved for different categories and only 48
percent posts are available for open category. Out
of 48 percent posts available for open category,
Marathas have obtained 33.23 percent. The percentage
given by the Commission in below Maratha class i.e.
11.86% is obviously wrong and erroneous. The Maratha
who have been competing in open category cannot
250
claim any post in the reserved category of 52
percent. Thus, the representation has to be computed
taking into the seats of open category. Similarly,
while computing the percentage of Marathas in Grade
B, C and D, similar mistakes have been committed by
the Commission. In Grade-B, total posts filled from
open category were 31193 out of which Marathas were
9057, percentage of which comes out to 29.03
percent. In Grade-C, total posts filled from open
category were 4,13,381 out of which Marathas were
1,53,224, percentage of which comes out to 37.06
percent and for Grade-D, total posts filled form
open category were 99592 out of which Marathas were
36387, percentage of which comes out to 36.53
percent.
293. A comparative chart of open category seats
which are filled, number of posts of Maratha
community and percentage in the posts is as follows:
-
Grade No. of open
category
No. of
filled from
Percentage of
Maratha in open
251
posts filled Maratha
Class
category post.
Grade A 28048 9321 33.23%
Grade B 31193 9057 29.03%
Grade C 413381 153224 37.06%
Grade D 99592 36387 36.53%
294. The above representation of Marathas in public
services in Grade-A, B, C and D are adequate and
satisfactory. One community bagging such number of
posts in public services is a matter of pride for
the community and its representation in no manner
can be said to not adequate in public services. The
Constitutional pre-condition that backward class is
not adequately represented is not fulfilled. The
State Government has formed opinion on the basis of
the above figures submitted by the Gaikwad
Commission. The opinion of the State Government
being based on the report, not fulfilling the
Constitutional requirement for granting reservation
to Maratha community becomes unsustainable.
295. Now we also look into Table B and C given in
paragraphs 220 and 224 are as follows:-
Table B
252
Sr.
No
S
e
r
v
I
c
e
s
Tot
al
san
ctio
ned
Pos
ts
Pos
ts
fille
d
V
a
c
a
n
t
p
o
s
t
s
Sanc
tione
d
Post
s
Fro
m
Ope
n
cate
g
ory
Pos
ts
Fill
ed
Fro
m
Op
en
cate
gor
y
Mar
atha
offi
cers
occu
pyin
g
post
s
Post
s
Fille
d
Fro
m
SCs
Pos
ts
Fill
ed
Fro
m
STs
Pos
ts
Fill
ed
Fro
m
vim
ukt
a
Jati
(V.J
A)
Pos
ts
Fill
ed
Fro
m
Noa
mdi
c
Tri
be
(N.
T
B)
Pos
ts
Fill
ed
Fro
m
No
Ma
dic
Tri
be
(N.
TC
)
Pos
t
Fill
ed
Fro
m
Tri
be
(N.
T.
D)
Pos
t
fille
d
fro
m
oth
er
bac
kw
ard
clas
s(O
.B.
C)
Pos
ts
fille
d
fro
m
spe
cial
bac
kw
ard
clas
s
(SB
Cs)
T
O
T
A
L
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
1 I
A
S
361 309 52 186 161 25
(6.93
%)
36
(9.97
%)
15
(4.1
6%)
6
(1.6
6)
0 3
(0.8
3%)
7
(1.9
4%)
54
(14.
96
%)
2
(0.5
5%)
148
2 I
P
S
256 145 11 179 140 39
(15.
23%
)
34
(13.2
8%)
12
(4.6
9%)
2
(0.7
8%)
1
(0.3
9%)
0 2
(0.7
8%)
54
(21.
09
%)
0 144
3 I
F
S
203 156 47 97 89 16
(7.88
%)
20
(9.
85%
)
6
(2.9
6%)
2
(0.9
9%)
0 1
(0.4
9%)
0 38
(18.
72
%
0 83
Table C: Mantralaya Cadres
S
r
.
N
o
.
G
ra
de
of
Se
rv
ice
s
San
ctio
ned
Pos
ts
Pos
ts
fille
d
in
as
on
1/8/
201
Va
ca
nt
Po
sts
Pos
t
Vac
ant
for
Op
en
Cat
ego
Pos
ts
Fill
ed
Fro
m
Op
en
Cat
Posts
filled
from
Mara
tha
Class
From
out of
Pos
ts
Fill
ed
Fro
m
SCs
Pos
ts
Fill
ed
Fro
m
STs
Pos
ts
fill
ed
fro
m
Vi
Post
s
fille
d
fro
m
No
Post
s
Fill
ed
fro
m
No
Post
s
fille
d
fro
m
No
ma
dic
Pos
ts
Fill
ed
Fro
m
Oth
er
Bac
Pos
ts
fill
ed
fro
m
spe
cial
bac
253
8 ry ego
ry
Open
Categ
ory
Posts
m
ukt
a
Jat
i
(V.
J.
A)
ma
dic
Trib
e
(N.
T
.B)
ma
dic
Trib
e
(N.
T
.C)
Trib
e
(N.
T
.D)
kw
ard
Cla
ss
(O
BC)
kw
ard
cla
ss
(SB
C)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
1 Gr
ad
e
A
585 465 12
0
170 248 93
(15.
90
%)
62
(10.
60
%)
27
(4.
62
%)
15
(2.
56
%)
10
1.71
%
13
2.22
%
10
1.71
%
62
(10
.60
%)
2 Gr
ad
e
B
241
0
179
3
61
7
390 793 415
(17.
22
%)
279
(11.
58
%)
96
(3.
98
%)
43
(1.
78
%)
48
(1.
99
%)
69
(2.
86
%)
54
(2.
24
%)
326
(13.
53
%)
3 Gr
ad
e
C
275
5
167
9
10
76
739 808 421
(15.
28
%)
273
(9.
9%)
104
(3.
77
%)
38
(1.
38
%)
38
(1.
38
%)
52
(1.
89
%)
41
(1.
49
%)
266
(9.
66
%)
4 Gr
ad
e
D
113
6
845 291 359 333 185
(16.
29%)
229
(20.
16
%)
66
(5.
81
%)
25
(2.
20
%)
26
(2.
29
%)
21
(1.
85
%)
9
(0.
79
%)
100
(8.
80
%)
To
tal
688
6
478
2
210
4
165
8
218
2
1114 843 293 121 122 155 114 754
Total
%
16.18 12.
24
1.2
6
1.7
6
1.77 2.25 1.66 10.
95
296. Table B contains all details including posts
filled from open category, posts filled from Maratha
officers. Taking the post of IAS in the open
category filled are 161. Maratha IAS officers are
25, percentage of which comes to 15.52 percent.
Similarly, in IPS out of 140 filled up posts,
Marathas are 39, percentage of which comes to 27.85
254
percent and similarly, in IFS, out of 89, 16 were
Marathas, percentage of which comes to 17.97
percent.
297. With regard to percentage mentioned in each
column, error has been committed by the Commission
in reflecting less percentage which is incorrect and
erroneous. Following is a tabular chart of posts
filled in open category, posts filled by Maratha and
percentage is as follows: -
Services No. of open
category
posts filled
No. of
filled from
Maratha
Class
Percentage of
Maratha in open
category post.
IAS 161 25 15.52%
IPS 140 39 27.85%
IFS 89 16 17.97%
298. Now, we come to Table C i.e. Mantralaya Cadres.
Table C also contains the details of posts filled
from open category and posts filled from Maratha
category in Grade-A, B, C and D. For example, GradeA posts filled from open category are 248 out of
which Marathas are 93, percentage of which comes out
to 37.5 percent.
255
299. Similarly, in Grade-B, posts filled from open
category are 793 out of which Marathas are 415,
percentage of which comes to 52.33 percent.
300. For Grade-C, posts filled from open category
are 808 out of which Marathas are 421, percentage of
which comes to 52.10 percent.
301. For Grade-D, posts filled from open category
are 333, out of which 185 are Marathas, percentage
of which comes to 55.55 percent.
302. The tabular chart for posts filled in open
category, posts filled by Marathas and percentage is
as follows: -
Grade No. of open
category
posts filled
No. of posts
filled from
Maratha
Class
Percentage of
Maratha in open
category post.
A 248 93 37.5%
B 793 415 52.33%
C 808 421 52.1%
D 333 185 55.55%
303. All the three tables A, B and C and percentage
of Marathas who have competed from open category
256
make it abundantly clear that they are adequately
represented in the services. The Commission although
noted all the figures correctly in all the columns
but committed error in computing the percentage
adding posts available for open category as well as
posts available for reserved categories. Maratha
cannot claim to compete for the reserved category
posts; hence, there is no question of computing
their representation including the reserved category
posts. The representation of Marathas has to be
against open category posts, hence, their percentage
has to be determined as compared to total open
category filled posts, and the representation of
Marathas in most of the Grades is above 30 percent.
This is the basic error committed by the Commission
in computing the percentage due to which it fell in
error in finding their representation in services
inadequate.
304. There is one more fundamental error which has
been committed by the Commission. The Constitution
pre-condition for providing reservation as mandated
by Article 16(4) is that the backward class is not
257
adequately represented in the public services. The
Commission labored under misconception that unless
Maratha community is not represented equivalent to
its proportion, it is not adequately represented. We
may notice what has been said by the Commission in
paragraph 219 while recording its conclusion
emerging from the analysis of information contained
in Table A,B,C and D. In paragraph 219(c), the
Commission states: -
“219(C)...The obvious conclusion that
emerges from the above information is that
in none of the four grades the strength of
Maratha Class employees is touching the
proportion to their population in the
State which is based on various sources is
estimated at an average 30%. So also,
their presence in administration is more
at the lower grades of “C” and “D” and
have a comparatively lesser existence and
role in decision making levels of State
administration in “A” and “B” grades...”
305. Indra Sawhney has categorically held that what
is required by the State for providing reservation
under Article 16(4) is not proportionate
representation but adequate representation. The
Commission thus proceeds to examine the entitlement
under Article 16(4) on the concept of proportionate
258
representation in the State services which is a
fundamental error committed by the Commission.
306. The Government committed an error in accepting
the recommendation without scrutinizing the report
with regard to correct percentage of representation
of Marathas in services. The constitutional
precondition as mandated by Article 16(4) being not
fulfilled with regard to Maratha class, both the
Gaikwad Commission’s report and consequential
legislation are unsustainable. We thus hold that
Maratha class was not entitled for any reservation
under Article 16(4) and grant of reservation under
Article 16(4) is unconstitutional and cannot be
sustained.
(13)Social and Educational Backwardness of Maratha
Community
307. We have noted above that three National
Backward Classes Commissions and three State
Backward Classes Commissions considered the claim of
Maratha community to be included in the other
backward community but all Commissions rejected such
259
claim rather they were held to be belonging to
forward community. The first National Backward
Classes Commission on 30.03.1955, i.e., Kaka
Kalelkar Commission did not include Maratha
commission in the list of backward communities. The
Commission observed:
"In Maharashtra, besides the Brahman it is
the Maratha who claimed to be the ruling
community in the villages and the Prabhu
that dominated all other communities.
308. The second National Backward Classes
Commission, i.e., Mandal Commission in its report
included Maratha community as forward Hindu
community. The National Commission on Backward
Classes in the year 2000 elaborately examined the
claim of Maratha community to be included in other
backward class. The entire Commission heard the
claim of Maratha, including the members of State
Backward Classes Commission representing the claim
of Maratha community. The National Backward Classes
commission held that Maratha community is an
advanced community of the society and it cannot be
260
included with Kunbi under separate entity of its
own. We may extract paragraphs 18, 19 and 22 of the
Commission's report which are to the following
effect:
“18. A community with a history of such
origin and close association with the
ruling classes, a community, many of whose
members, from its inception enjoyed
important economic and political rights
and positions of power and influence and
eventually became rulers and members of
ruling classes at different levels cannot
in any way be thought to have suffered any
social disadvantages. The Bench is aware
that in what is identified as a ruling
class/caste, every member of it does not
rule, but the fact that those who rule
come from a distinct caste community
imparts a certain amount of prestige and
self-confidence even to those from the
same caste/community who personally belong
to the ruling functionaries and to the
totality of that caste/community. It is
significant to note that Marathas have
sought and received recognition of as of
Kshatriya Varna category and therefore
does not secure them status or caste
upgradation Examples are Vanniakula
Kshatriya in Tamil Nadu, the adoption of
the umbrella name "Kshatriya" by all BCs
in Gujarat, Paundra- Kshatriya (an SC) in
West Bengal and so on. But no community
which is recognized generally, i.e. by the
rest of the society as of "Kshatriya"
category and correctly finds place in a BC
list.
261
19. The modern history of Maharashtra is
witness to the continued dominance of
Marathas in its society and polity as
evident from the fact, for example, that
in the post-Independence period, the
community provided the largest number of
Chief Ministers. During the full Bench
hearing on 14.12.99, the Bench had put the
question to the representatives of the
Maratha Community as to why despite there
being so many Chief Ministers and
important Ministers in the State, some of
whom also became important Ministers in
the Centre, none of them got or moved to
get Marathas included in the list of BCs
is eloquent testimony not only of the fact
that Marathas are not a backward class but
also of the wisdom and objectivity of
these Chief Ministers. The only ground
raised by the representatives of the
community in support of their claim for
inclusion in the list of BCs what the fact
of the origin of Marathas from Kunbis and
the alleged use of the name Maratha by
some members of Kunbi caste in some areas
of the State. The Bench is of the view
that since there, undoubtedly, is a
distinct class/community Called "Maratha"
and since it is obviously an advanced
community in society and polity as already
noted, it cannot be included in the list
of Backward Classes. The Bench cannot
accept the claim of the representatives of
the community that many known Maratha
leaders including one whose name they
mentioned have got caste certificates as
"Kunbi" as a valid ground for inclusion of
Marathas in the list of BCs with Kunbis.
The Bench has no ground to believe that
any known Maratha leaders would have
sought such certificates, nor have those
who have made this allegations presented
any evidence in support of this claim. But
262
even if, for argument's sake, claim or
argument is it does not prove that Maratha
is the same as Kunbi or synonym of Kunbi.
Leaving aside the allegations made by some
of the representatives of the community,
the Bench is aware that some shortsighted
individuals belonging to different nonbackward castes unfortunately resort to
seeking and securing fake caste
certificates and in the context of the
well-known qualities of India's
administrative system, elements are not
rare which entertain such requests and
deliberately issue false caste
certificates. This menace, like different
forms of corruption, has become more and
more threatening. In certain Advices, the
Commission has advised the Central and
State Governments how this menace could be
extirpated. But false caste-certificates
and false caste-identities based on them
cannot change the reality of casteidentities as they occur in society."
22. In view of the above facts and
position, the Bench finds that Maratha is
not a socially backward community but is a
socially advanced and prestigious
community and therefore the Request for
Inclusion of "Maratha" in the Central List
of Backward Classes for Maharashtra along
with Kunbhi should be rejected. In fact
"Maratha" does not merit inclusion in the
Central list of Backward Classes for
Maharashtra either jointly with "Kunbhi"
or under a separate entity of it's own.”
309. We may also refer now to the three State
Backward Classes Commissions appointed by the State.
263
In the year 1961, Deshmukh Committee appointed by
the State of Maharashtra did not include the Maratha
community in the list of backward communities. In
the year 2001, Khatri Commission rejected the demand
of Maratha to be included in backward class
communities. On 25.07.2008, Bapat Commission in its
report rejected the demand to include Maratha
community in the other backward class communities by
majority.
310. After the Bapat Commission's report, the State
Government had appointed Rane Committee to be headed
by a Cabinet Minister who collected data and
observed that Maratha may not be socially and
educationally backward but recommended grant of
reservation as educationally and financially
backward class. The National Commission or the State
Commission, when it is appointed to examine the
claim of a particular community to be included or
excluded from a list of other backward classes, it
is to look into the contemporaneous data and fact.
The State to inform itself of the status of a
264
particular community appoints Commissions or
Committees to take affirmative measures as ordained
by the constitutional provisions of Articles 15 and
16. The relevant is the data status of the community
as existing at the time of investigation and report.
311. This Court in Ram Singh and others vs. Union of
India, (2015) 4 SCC 697, has categorically laid down
in paragraph 49 that a decision which impacts the
rights of many under Articles 14 and 16 of the
Constitution must be taken on contemporaneous
inputs. Following observations were made by twoJudge Bench of this Court in paragraph 49:
“49. ......A decision as grave and
important as involved in the present case
which impacts the rights of many under
Articles 14 and 16 of the Constitution must
be taken on the basis of contemporaneous
inputs and not outdated and antiquated data.
In fact, under Section 11 of the Act revision
of the Central Lists is contemplated every
ten years. The said provision further
illuminates on the necessity and the
relevance of contemporaneous data to the
decision-making process.”
312. We fully endorse the above view of this Court.
Any study of Committee or Commission is with regard
265
to present status since object is to take
affirmative actions in present or in future to help
the particular community. Three National Backward
Classes Commissions reports as noted above in the
year 1955, 1980 and 2000, were the reports regarding
the status of the community as was found at the
relevant time. Similarly, three State
Committee/Commissions in the year 1961, 2001 and
2008 also were reporting the status of Marathas at
the relevant time when the report was submitted. The
term of the reference of the Gaikwad Commission was
not to examine as to whether earlier reports of the
National Commissions for Backward Classes or
Committee/Commissions of the State earlier in not
recommending Maratha to be included in OBC were
correct or not. Terms of reference which is a part
of the report clause (1) and clause (3) clearly
indicate that the Commission was to collect
contemporaneous data. Quantifiable data collected by
the State which have been referred in the report
were of the data collected period after 2014. The
Commission’s observations made in the report that it
266
does not agree with the earlier reports cannot be
approved.
313. We, however, hasten to add that it is always
open to the State to collect relevant data to find
out as to whether a particular caste or community is
to be included in the list of other backward classes
or excluded from the same despite any decision to
the contrary taken earlier. The Constitution Bench
in Indra Sawhney has also laid down for periodical
review which is for the purpose and object that
those communities who were earlier backward and
advanced should be excluded and those communities
who were earlier advanced and might have degraded
into backward class should be included. Thus, the
State was fully entitled to appoint backward classes
commission to collect relevant data and submit the
report.
314. When in earlier period of about 60 years,
right from 1955 to 2008, repeatedly it was held that
Maratha community is not backward class, Gaikwad
Commission ought to have applied the test that “what
267
happened thereafter that now the Maratha community
is to be included in OBC”. The Commission has not
adverted to this aspect of the matter. The
Commission ought to have also focused on comparative
analysis as to what happened in the recent years
that Marathas have become backward from forward
class. In this context, we may also refer to the
judgment of this Court in Ram Singh (supra) where
National Backward Classes Commission has rejected
the claim of Jat to be included in other backward
communities with regard to several States. The
National Commission recommended that Jat is
politically dominant class and need not to be
included in OBC. The Union disregarding the said
report had issued a notification including Jat as
OBC in the different States in the Central List. It
was challenged in this Court by way of writ
petition. This Court held that the report of
National Backward Classes Commission could not have
been disregarded and ought to have been given due
weight. This Court held that Jat community is
politically organised class which was rightly not
268
included in the category of other backward classes.
In paragraph 55 following was laid down:
“55. The perception of a self-proclaimed
socially backward class of citizens or
even the perception of the “advanced
classes” as to the social status of the
“less fortunates” cannot continue to be a
constitutionally permissible yardstick for
determination of backwardness, both in the
context of Articles 15(4) and 16(4) of the
Constitution. Neither can backwardness any
longer be a matter of determination on the
basis of mathematical formulae evolved by
taking into account social, economic and
educational indicators. Determination of
backwardness must also cease to be
relative: possible wrong inclusions cannot
be the basis for further inclusions but
the gates would be opened only to permit
entry of the most distressed. Any other
inclusion would be a serious abdication of
the constitutional duty of the State.
Judged by the aforesaid standards we must
hold that inclusion of the politically
organised classes (such as Jats) in the
List of Backward Classes mainly, if not
solely, on the basis that on same
parameters other groups who have fared
better have been so included cannot be
affirmed.”
315. We have already noted that after the 2014
enactment, writ petition was filed in the High Court
challenging 2014, enactment by which Maratha
community was declared as socially and educationally
269
backward class and separate reservation was provided
for. The Ordinance XIII of 2014 was issued to that
effect; writ petition was filed in the High Court
challenging the Ordinance and inclusion of Maratha
as other backward category. The High Court
elaborately heard all parties and passed a detailed
interim order in Writ Petition No.2053 of 2014 on
14.11.2014 where it set out various facts which were
placed before the Court for staying the Ordinance
and staying the grant of separate reservation to
Maratha community. We may refer to paragraph 40(e)
of the order dated 14.11.2014 of the High Court
which is to the following effect:
"40.In the context of 16% reservation for
Marathas upon their classifications as
Educationally and Socially Backward
Classes, he following position emerges:
...... ...... ......
(e) The petitioner in Public Interest
Litigation No.140 of 2014 placed on record
some statistics by reference to data
compiled by Dr. Suhas Palshikar in the
book on “Politics of Maharashtra: Local
Context of the Political Process:”,
Editors: Suhas Palshikar and Nitin Birmal,
Pratima Prakashan, 2007 which suggest
that-
270
(I) From 1962 to 2004, from out of 2430
MLAs, 1336 MLAs corresponding to 55% were
Marathas;
(ii)Nearly 54% of the educational
institutions in the State are controlled
by Marathas.
(iii) Members of the Maratha community
dominate the universities in the State
with 60 to 75% persons in the management.
(iv)Out of 105 sugar factories, almost 86
are controlled by Marathas. About 23
district cooperative banks have Marathas
as their Chairpersons.
(v) About 71.4% of the cooperative
institutions in the State are under
control of Maratha community.
(vi)About 75 to 90% of the land in the
State is owned by Maratha community.
None of the aforesaid was disputed
by or on behalf of the respondents in
any of the affidavits or at the hearing.
It was also stated by the petitioner at
the hearing that ever since the
establishment of the State of
Maharashtra on 1 November 1956, out of
17 Chief Ministers, 12 have been
Marathas. The last non-Maratha Chief
Minister was during the period January
2003 to October 2004. This statement was
also not disputed.”
316. The above stated facts were not disputed before
the High Court, and before this Court also in the
271
submissions of the parties above facts have been
repeated and it has been submitted that those facts
clearly prove that Maratha are not socially
backward. The Commission in its report does not
dispute that Maratha is politically dominant class.
In this context, following is extracted from the
report:
“Political dominance cannot be ground
to determine social and educational
backwardness of any community.”
317. We have already found that Maratha community
has adequate and sufficient representation in the
public services. We have also noted that
representation of Maratha in public services is
present in all categories i.e. Group A, Group B,
Group C and Group D posts, and the Marathas have
occupied the posts by competing with open
categories. The representation of Marathas as
noticed above has in many grades about 30% against
all filled posts of open category. When a community
is able to compete with open category candidates and
obtain substantial number of seats (about 30%), this
272
was relevant fact to be noticed while considering
the social and educational backwardness of the
community. Even if grant and non-grant of
reservation to backward under Article 16(4) may not
be considered as decisive for socially and
educationally backward class for grant under Article
15(4) but grant or non-grant under Article 16(4)
certainly is relevant for consideration which
reflects on backward class or classes both in favour
and against such backward class. We have noticed
that the Commission has taken erroneous view that
the representation of Maratha community in public
services is not proportionate to their population
and has recommended for grant of reservation under
Article 16(4). We having disapproved the grant of
reservation under Article 16(4) to Maratha
community, the said decision becomes relevant and
shall have certainly effect on the decision of the
Commission holding Maratha to be socially and
educationally backward. Sufficient and adequate
representation of Maratha community in public
273
services is indicator that they are not socially and
educationally backward.
318. The Commission in its report while discussing,
in Chapter VIII has analysed the various data
including data of students belonging to Maratha
community who are pursuing Engineering, Medical and
other disciplines. In paragraph 178 the Commission
has recorded that it obtained the information as
regards Marathas engaged in and pursuing academic
career, which would also throw light on the depth of
their involvement in higher education. In Paragraph
178, 1(b) the Commission has extracted a table for
the last three academic years (2014-15, 2015-16,
2016-17) in the Engineering Courses as received from
the Directorate of Technical Education of the State
Government. Out of open category seats in Diploma of
167168 Maratha achieved admission in 34,248 seats
and in Graduate out of 221127, they could receive
32045 admissions, under Post Graduate out of 63795
they could secure admission in 12666 . Similarly
details have been given about the Graduation and
274
Post-Gaduation Medical Courses for three years. In
MBBS out of 4720 in the year 2015-16 Maratha
received 428 seats, in other streams out of 14360
they secured 2620 seats, in the above regards table
is produced hereunder:
Academic Year Total Intake Marathas Percentage Remarks
2015-16
Total
MBBS-4720 MBBS-428 9.1%
The other
courses
include
Dental AYUSH
(Aurveda
Unani Sidhh
Homeopathy &
Nursing)
Other-14360
19080
Other-2620
3048
18.2%
16%
2016-17
Total
MBBS-5170
other-14098
MBBS-270
other-1059
5.2%
7.5%
19268 1329 6.9%
2017-18
Total
MBBS-5170
Other-15303
MBBS-293
other-1019
5.7%
6.7%
20473 1312 6.4%
319. Similarly, the Commission has given details
of Medical Post Graduation Courses in para-178-1(c)
(c-ii) which indicates following with regard to
other under-Graduate and Post-Graduate posts,
details of which given in paragraph 178-1(d) which
indicates:
275
Academic
Year
Total
Admissi
ons
Open Marathas SC ST OBCs
DT/VJ/S
B Cs
14-15 681967 467994 29371 49088 15728 102221 17565
15-16 730180 504184 28725 54272 15435 108608 18953
16-17 790674 557394 27597 57348 16002 112573 19760
Total 2202821
1529572
(69.5%)
85693
(3.89%)
160708
(7.30%)
47165
(2.14%)
323402
(14.68%)
56281
(2.55%)
320. The above facts and figures which were
obtained by the Commission itself indicate that
students of Maratha community have succeeded in open
competition and got admissions in all the streams
including Engineering, Medical Graduation and PostGraduation Courses and their percentage is not
negligible. The computation of percentage by the
Commission against Maratha is since out of open
category seats, since 50% seats are for reserved
category and only 50% are open, the percentage of
the Maratha, thus, shall substantially increase as
per table given by the Commission itself.
321. The Commission has also made studies with
regard to representation of Maratha in prestigious
Central services, namely, IAS, IPS and IFS with
276
regard to State of Maharashtra. In the State of
Maharashtra out of 161 posts filled from open
category candidates, there are 25 IAS belonging from
Maratha. Similarly out of 140 posts filled from open
category, 39 of IPS belong to Maratha and in IFS out
of 97, 89 posts filled from open category, there are
16 IAS belong to Maratha community. When we
compute the percentage of IAS, IPS and IFS,
percentage of Maratha out of the posts filled from
open category candidates comes to 15.52, 27.85 and
17.97 percentage respectively, which is substantial
representation of Marathas in prestigious Central
services.
322. We may further notice that the above numbers
of Maratha officers are only in the State of
Maharashtra on the posts of the IPS, IAS and IFS
being Central services. Similarly, the members of
Maratha community must have occupied the above posts
in the other States of the Country of which details
are not there.
277
323. The Commission has also collected data
regarding engagement of Maratha in Higher Academic
and Educational Fields of University Assignments in
the State in paragraph 226. The Table D has been
compiled by the Commission. In the said paragraph
where Marathas occupied all categories of posts,
including Head of Department, Professor, Associate
Professor and Assistant Professor, the Commission
has in the Chart also noted the number of Marathas
occupying different posts in several Universities.
It is true that in some of the Universities there
may not be Maratha community in one or two posts but
Chart indicates that there are sufficient number of
Maratha in different Universities occupying posts of
HOD, Professor, Associate Professor and Assistant
Professor.
324. There cannot be any concept of Marathas
occupying all higher posts including the posts in
the Universities according to their proportion of
population. The Commission has commented in the
report that their percentage in the above posts is
278
less, whereas Table indicates that in HOD post in
Savitribai Phule University Pune, out of open
category filled post of 29 of HOD, only 3 are from
Maratha community, out of 14 Professors only 2 are
from Maratha community and out of 33 Associate
Professors only 3 are from Maratha community and out
of 79 Assistant Professors only 3 are from Maratha
community. The Commission concludes that only 4.3%
are from Maratha community in the above posts.
325. In the Higher Academic posts and posts like
IAS, IPS and IFS, there cannot be any basis to
contend that since Maratha community is not
occupying posts according to their proportion of
population, they are socially and educationally
backward classes. The above are the data and figures
on the basis of which the Commission concluded that
the Marathas are socially and educationally backward
class. When we look into the aforesaid details
regarding Maratha students occupying Engineering,
Medical and other streams, Maratha officers
occupying Central posts of IAS, IPS and IFS and are
279
occupying posts of Higher Academic in Universities,
mere fact that their occupation of posts is not
equivalent to the proportion of their population
cannot lead to the conclusion that they are socially
and educationally backward. We are conscious that
the Commission has conducted sample survey collected
representations and other information, data and has
allotted marks on social and educational and
economic backward class and in the marking Marathas
were found to be backward. However, data and facts
which have been collected by the Commission noted
above clearly indicate that Marathas are neither
socially nor educationally backward and the
conclusion recorded by the Gaikwad Commission on the
basis of its marking system, indicator and marking
is not sufficient to conclude that Marathas are
socially and educationally backward.
326. The facts and figures as noted above indicate
otherwise and on the basis of the above data
collected by the Commission, we are of the view that
the conclusion drawn by the Commission is not
280
supportable from the data collected. The data
collected and tabled by the Commission as noted
above clearly proves that Marathas are not socially
and educationally backward.
327. We have completed more than 70 years of
independence, all governments have been making
efforts and taking measures for overall developments
of all classes and communities. There is a
presumption unless rebutted that all communities and
castes have marched towards advancement. This Court
in Ram Singh versus Union of India and others
(Supra) has made such observations in paragraph 52:-
“52...This is because one may legitimately
presume progressive advancement of all
citizens on every front i.e. social,
economic and educational. Any other view
would amount to retrograde governance.
Yet, surprisingly the facts that stare at
us indicate a governmental affirmation of
such negative governance inasmuch as
decade old decisions not to treat the Jats
as backward, arrived at on due
consideration of the existing ground
realities, have been reopened, in spite of
perceptible all-round development of the
nation. This is the basic fallacy inherent
in the impugned governmental decision that
has been challenged in the present
proceedings...”
281
327(a). We also endorse the opinion of Brother
Justice S. Ravindra Bhat on affirmative actions and
giving of more and more incentives to realise the
constitutional objectives which undoubtedly is the
obligation and duty of the State.
328. We are constrained to observe that when more
people aspire for backwardness instead of
forwardness, the country itself stagnates which
situation is not in accord with constitutional
objectives.
(14)The Constitution (One Hundred and Second
Amendment) Act, 2018[The Constitution(102nd
Amendment)Act, 2018].
329. I have advantage of going through erudite draft
judgment circulated by my esteemed Brother, Ravindra
Bhat. Although, we both are aditem on the question
of Constitutional validity of Constitution 102nd
Amendment Act, 2018, I regret my inability to agree
with the interpretation of the Constitution 102nd
Amendment Act, 2018 as put by my esteemed Brother.
282
330. The case of the appellant is that after 102nd
Amendment to the Constitution which came into force
with effect from 15.08.2018, the Maharashtra
Legislature had no competence to enact Act, 2018.
After the Constitution 102nd Amendment, the States
have no power to identify socially and educationally
backward classes. The Constitution 102nd Amendment
had brought change in the regime already in
existence for backward class to fall it in line with
Articles 341 and 342 of the Constitution. Article
366(26C) says that the phrase SEBCs “means” those
backward classes which are so deemed under Article
342A, for the purposes of this Constitution. The
expression “for the purposes of this Constitution”
is used in Articles 15(4) and 16(4), 338B, 342A and
in other Articles of the Constitution of India. In
view of Article 342A the SEBCs are those who are
specified by the President by public notification
for the purposes of a State or Union Territory under
sub-clause(1) of Article 342A. Article 342A being
analogous to Articles 341 and 342 must be
283
interpreted exactly in the same manner. The
Parliament inserted phrase “Central List” in clause
(2) of Article 342A only to emphasize the fact that
after Constitution 102nd Amendment, the only list
that shall be drawn for the purposes of SEBCs is the
Central List drawn by the President.
331. Learned counsel for the appellant contends that
Maharashtra Legislature had no competence to enact
2018 Legislation after Constitution 102nd Amendment.
Learned senior counsel, Shri Gopal Sankaranarayanan,
submitted that for interpreting Article 342A
reliance on Select Committee report of Rajya Sabha
is unwarranted.
332. The above submissions of the appellant have
been stoutly refuted by the learned counsel for the
State of Maharashtra as well as other States. Under
Articles 15(4) and 16(4), the Union and the States
have co-equal powers to advance the interest of the
socially and educationally backward classes;
therefore, any exercise of power by the Union cannot
encroach upon the power of the State to identify
284
socially and educationally backward classes. The
expression “for the purpose of the Constitution”
can, therefore, only to be construed with the
contours of the power that Union is entitled to
exercise with respect to entities, institutions,
authorities and public sector enterprises under the
control of the Union. The power to identify and
empower socially and educationally backward classes
and determining the extent of reservation required
is vested in the State by our Constitution and
recognised by judicial pronouncements including
Indra Sawhney. The expression “Central List”
occurring in Article 342A(2) relates to the
identification under Article 342A(1) wherein the
Central List will include the socially and
educationally backward classes for the purposes of
the Central Government. Any other interpretation
would allow to whittle down the legislative power of
the State. Article 342A must be interpreted in the
historical context. It is submitted that the
Constitution 102nd Amendment has brought changes with
regard to Central List. The expression Central List
285
is well understood concept in service jurisprudence
for reservation purposes of OBC, there are two
lists, Central List and State List.
333. It is submitted that the Parliamentary
Committee report and other materials throw
considerable light on the intention of Parliament
for inserting Article 342A in the Constitution. The
Constitutional amendment has to be interpreted in
the light of the Parliamentary intention. The power
of the State Government to legislate cannot be taken
away without amendment of Articles 15 and 16. The
Parliament has not even exercised its power to
occupy the field of a State by clearly using the
expression 'Central List' in sub-clause (2). If the
Constitution 102nd Amendment is interpreted in the
manner as appellants are interpreting, the
Constitutional Amendment shall be violative of the
federal structure and shall be unconstitutional.
334. We have in this batch of cases issued notice
to learned Attorney General, the interpretation of
the 102nd Amendment to the Constitution of India
286
being in question. Shri K.K. Venugopal, learned
Attorney general submits that the Constitution Bench
in Indra Sawhney in paragraph 847 had taken the view
that there ought to be a permanent body, in the
nature of a Commission or Tribunal, to which
complaints of wrong inclusion or non-inclusion of
groups, classes and sections in the lists of Other
Backward Classes can be made. He submitted that the
Constitution Bench in Indra Sawhney directed the
Government of India, each of the State Governments
and the Administrations of Union Territories to
constitute a permanent body for entertaining,
examining and recommending upon requests for
inclusion and complaints of over-inclusion and
under-inclusion in the lists of other backward
classes of citizens.
335. Learned Attorney General submits that in view
of the above nine-Judge Bench judgment of this Court
it is inconceivable that any such amendment can be
brought in the Constitution that no State shall have
competency to identify the backward classes, Article
287
15(4) necessarily includes the power of
identification. Under Article 12 of the
Constitution, the State includes the Government and
Parliament, and Government and Legislature of each
State. In event the States have to deprive their
rights under Articles 15(4) and 16(4) of the
Constitution, a proviso had to be added. Article
15(4) and 16(4) are the source of power to identify
SEBC. The Constitution 102nd amendment has not made
any such amendment by which the effect of Articles
15(4) and 16(4) has been impacted. He submits that
the National Commission for Backward Classes Act,
1993 was passed by the Parliament in obedience of
direction of Indra Sawhney. Section 2(c) of the Act
defines “lists” which is clearly limited to the
Central Government; Learned Attorney General submits
that Article 342A covers the Central Government list
alone. Learned Attorney General has referred to
Select Committee report dated 17.07.2017 and submits
that Select Committee report after considering the
response and clarification by the concerned Ministry
had opined that 102nd Amendment was not to take the
288
rights of the State to identify other backward
classes in their States. He submits that rights of
the State to identify OBC for their States in
respect of the States are untouched. Referring to
State of Punjab, learned Attorney General submits
that there are two lists, Central List which
contains 68 OBC, the State List which contains 71,
he submits that with regard to the Scheduled Castes
and Scheduled Tribes the President was given power
in the Constitution with which State had no
concern. There was no attempt on behalf of the
Parliament to modify Articles 15(4) and 16(4).
336. Learned Attorney submits that Article 342A has
to be read harmoniously with the other provisions of
the Constitution. Learned Attorney General has also
referred to a short affidavit filed by the Union of
India in Writ Petition (C) No.12 of 2021-Dinesh B.
vs. Union of India & Ors., wherein Union has taken
the stand that the power to identify and specify the
SEBCs lies with Parliament, only with reference to
the Central List of SEBCs. The State Governments may
289
have their separate State Lists of SEBCs in
recruitment. Learned Attorney General adopts the
same stand taken by the Union of India in the
aforesaid affidavit. He reiterated that the
Parliament by passing Constitution Amendment has not
taken away the power of the State to identify
backward classes (SEBCs) in their States.
337. He further submits that there is no violation
of basic structure of the Constitution. Replying to
the argument of learned counsel for the writ
petitioner under clause (2) of Article 368 learned
Attorney General submits that power to identify
backward classes being under Articles 15 and 16,
there is no occasion to examine the list of 7th
Schedule to find the source of power. He submits
that no amendments have been made in any of the
Lists of 7th Schedule so as to attract the proviso to
Article 368(2). He submits that the Constitution
102nd Amendment did not require ratification by the
State Legislature.
290
338. Before coming to the Articles in the
Constitution inserted by the Constitution 102nd
Amendment, we need to notice the Statement of
Objects and Reasons contained in the Constitution
(One Hundred and Twenty-Third Amendment) Bill, 2017
which was introduced in the Lok Sabha on 4th April,
2017 and some details regarding legislative process
which culminated into passing of the Constitution
(One Hundred and Second Amendment) Act, 2018. When
Bill came for discussion to amend the Constitution
of India, it was passed by Lok Sabha on 10.04.2017.
Rajya Sabha on motion adopted by the House on
11.4.2017 referred the Bill to the Select Committee
for examination of the Bill and report thereon to
the Rajya Sabha. The Select Committee of Rajya Sabha
examined the Bill by holding 7 meetings. The Select
Committee asked clarification on various issues from
the Ministry and after receipt of clarifications
submitted the report on 17.07.2017. The Constitution
(One Hundred and Twenty-Third Amendment) Bill, 2017
with the Select Committee report came for
consideration before the Rajya Sabha. The Bill was
291
passed with certain amendments on 31.07.2017 by the
Rajya Sabha. After passing of the Bill, it was again
taken by the Lok Sabha and it was passed by the Lok
Sabha on 2nd August, 2018. Rajya Sabha agreed to the
Bill on 6th August, 2018.
339. The Statement of Objects and Reasons of
Constitution 102nd Amendment are contained in the
Constitution (One Hundred and Twenty-Third
Amendment) Bill, 2017. It is useful to extract the
entire Statement of Objects and Reasons as contained
in the Bill:
“STATEMENT OF OBJECTS AND REASONS
The National Commission for the Scheduled
Castes and Scheduled Tribes came into being
consequent upon passing of the Constitution
(Sixty-fifth Amendment) Act, 1990. The said
Commission was constituted on 12th March, 1992
replacing the Commission for the Scheduled Castes
and Scheduled Tribes set up under the Resolution
of 1987. Under article 338 of the Constitution,
the National Commission for the Scheduled Castes
and Scheduled Tribes was constituted with the
objective of monitoring all the safeguards
provided for the Scheduled Castes and the
Scheduled Tribes under the Constitution or other
laws.
2. Vide the Constitution (Eighty-ninth Amendment)
Act, 2003, a separate National Commission for
292
Scheduled Tribes was created by inserting a new
article 338A in the Constitution. Consequently,
under article 338 of the Constitution, the
reference was restricted to the National
Commission for the Scheduled Castes. Under clause
(10) of article 338 of the Constitution, the
National Commission for Scheduled Castes is
presently empowered to look into the grievances
and complaints of discrimination of Other Backward
Classes also.
3. In the year 1992, the Supreme Court of India in
the matter of Indra Sawhney and others Vs. Union
of India and others (AIR 1993, SC 477) had
directed the Government of India to constitute a
permanent body for entertaining, examining and
recommending requests for inclusion and complaints
of over-inclusion and under-inclusion in the
Central List of Other Backward Classes. Pursuant
to the said Judgment, the National Commission for
Backward Classes Act was enacted in April, 1993
and the National Commission for Backward Classes
was constituted on 14th August, 1993 under the
said Act. At present the functions of the National
Commission for Backward Classes is limited to
examining the requests for inclusion of any class
of citizens as a backward class in the Lists and
hear complaints of over-inclusion or underinclusion of any backward class in such lists and
tender such advice to the Central Government as it
deems appropriate. Now, in order to safeguard the
interests of the socially and educationally
backward classes more effectively, it is proposed
to create a National Commission for Backward
Classes with constitutional status at par with the
National Commission for Scheduled Castes and the
National Commission for Scheduled Tribes.
(Underlined by us)
4. The National Commission for the Scheduled
Castes has recommended in its Report for 2014-15
that the handling of the grievances of the
socially and educationally backward classes under
293
clause (10) of article 338 should be given to the
National Commission for Backward Classes.
5. In view of the above, it is proposed to amend
the Constitution of India, inter alia, to provide
the following, namely:—
(a) to insert a new article 338 so as to
constitute the National Commission for
Backward Classes which shall consist of a
Chairperson, Vice-Chairperson and three other
Members. The said Commission will hear the
grievances of socially and educationally
backward classes, a function which has been
discharged so far by the National Commission
for Scheduled Castes under clause (10) of
article 338; and
(b) to insert a new article 342A so as to
provide that the President may, by public
notification, specify the socially and
educationally backward classes which shall
for the purposes of the Constitution be
deemed to be socially and educationally
backward classes.
6. The Bill seeks to achieve the above
objectives.
NEW DELHI; THAAWARCHAND
GEHLOT. The 30th March, 2017.”
340. By the Constitution 102nd Amendment, Articles
338 sub-clause (10), new Article 338B, Article 342A
and 366(26C) were inserted.
294
341. In the writ petition before the High Court, the
question was raised “whether the Constitution (One
Hundred and Second Amendment) Act, 2018 affects the
competence of the Legislature to enact the impugned
Legislation.” The High Court noticed the
parliamentary process including the report of Select
Committee. The High Court held that use of Central
List in sub-clause (2) of Article 342A is not in
vacuum but it must take its due meaning in reference
to the context. The High Court held that Parliament
being conscious of the facts that there are two
lists operating in various States, firstly, for
providing reservation prescribed by the Central
Government in Central services and the other list
for providing reservation by the respective State
Governments, the Parliament intended that it would
retain the power to include or exclude from the
Central List. The High Court, further, held that had
the Parliament intended to deprive the State of its
power, it would have specifically mentioned so. The
High Court rejected the submission of the learned
counsel for the appellants that the Constitution
295
102nd Amendment denuded the power of the State to
legislate with regard to other backward categories
in respect to State.
342. We have also noticed that Writ Petition (C)
No.938 of 2020-Shiv Sangram and another vs. Union of
India and others, had been filed questioning the
constitutional validity of the Constitution 102nd
Amendment.
PRINCIPLES TO INTERPRET CONSTITUTIONAL PROVISIONS
343. We in the present case are concerned with
Constitutional Amendment brought by the Constitution
(One Hundred and Second Amendment) Act, 2018. The
Constitutional Amendment is not a normal legislative
exercise and it is always carried out with an object
and the purpose. The Constitution of India is a
grand norm given to us by the Framers of the
Constitution with great deliberations and debates.
The Constitution contained the objectives and goals
of the nation and contains ideals For the
governance by the State. Justice G.P. Singh in
296
'Principles of Statutory Interpretation', 14th
Edition under the heading 'Intention of the
Legislature' explains the statutory interpretation
in following words:
“A statute is an edict of the
Legislature" and the conventional way of
interpreting or construing a statute is to
seek the 'intention' of its maker. A
statute is to be construed according 'to
the intent of those that make it' and 'the
duty of judicature is to act upon the true
intention of the Legislature-the mens or
sententia legis'." The expression
'intention of the Legislature' is a
shorthand reference to the meaning of the
words used by the Legislature objectively
determined with the guidance furnished by
the accepted principles of interpretation.
"If a statutory provision is open to more
than one interpretation the court has to
choose that interpretation which
represents the true intention of the
Legislature, in other words the legal
meaning' or 'true meaning' of the
statutory provision.”
344. Chief Justice, Sir, Maurice Gwyer speaking in
Federal Court, in The Central Province and Berar
Sales of Motor Spirit and Lubricants Taxations Act,
1938, AIR 1939 Federal Court 1, held that rules
which apply to the interpretation of other statute
297
applies equally to the interpretation of the
constitutional enactment. But their application is
of necessity condition by the subject matter of the
enactment itself.
345. On the interpretation of the Constitution of
India, a Constitution Bench of this Court in ITC
Ltd. vs. Agricultural Produce Market Committee and
others, (2002) 9 SCC 232, laid down following
proposition in paragraph 59:
"59. The Constitution of India deserves
to be interpreted, language permitting, in a
manner that it does not whittle down the
powers of the State Legislature and preserves
the federalism while also upholding the
Central supremacy as contemplated by some of
its articles.”
346. It is said that the statute is an edict of
the Legislature. The elementary principle of
interpreting the Constitution or statute is to
look into the words used in the statute, when the
language is clear, the intention of the Legislature
is to be gathered from the language used. The aid to
interpretation is resorted to only when there is
some ambiguity in words or expression used in the
298
statute. The rule of harmonious construction, the
rule of reading of the provisions together as also
rule of giving effect to the purpose of the statute,
and few other principles of interpretation are
called in question when aids to construction are
necessary in particular context. We have already
noticed the Statement of Objects and Reasons of the
statute in the earlier paragraph. Paragraph 5 of the
Statement of Objects and Reasons mentions amendment
of Constitution by (a) inserting a new Article 338B
so as to constitute the National Commission for
Backward Classes and (b) to insert a new Article
342A so as to provide that the President may, by
public notification, specify the socially and
educationally backward classes. The Bill was moved
by Thawarchand Gehlot, Minister of Social Justice
and Empowerment.
347. Learned counsel for both the parties have
advanced the respective submissions on the
interpretation of words “Central List” as used in
clause (2) of Article 342A. Both the parties having
299
advanced divergent submissions on the true and
correct interpretation of “Central List”, it becomes
necessary to take aid of interpretation. What was
the purpose and object of uses of expression
'Central List', sub-clause (2) of Article 342A has
to be looked into to find a correct meaning of the
constitutional provisions.
348. We have noticed above that learned Attorney
General as well as learned counsel for the State of
Maharashtra and other States have relied on Select
Committee report, debates in Parliament and the
Statement of Minister to find out the intention of
the Parliament in inserting Article 342A of the
Constitution.
349. Shri Gopal Sankaranarayanan, learned senior
counsel for the petitioner has questioned the
admissibility of Parliamentary Committee report. He
submits that Parliamentary Committee report is not
admissible and cannot be used as aid to
interpretation which submission has been refuted by
Shri P.S. Patwalia, learned senior counsel as well
300
Dr. A.M. Singhvi, learned Senior Counsel, who state
that Parliamentary Committee report as well the
Statement made by the Minister in the Parliament are
admissible aids to the interpretation and are
necessary to find out the intention of the
Parliament in bringing the 102nd Amendment to the
Constitution. We, thus, proceed to look into the law
as to admissibility of report of Parliamentary
Committee and Statement of Minister in the
Parliament as aids to interpret a constitutional
provision.
350. Shri Gopal Sankaranarayanan, relying on the
judgment of this Court in State of Travancore,
Cochin and others vs. Bombay Company Ltd., AIR 1952
SC 366, submits that this Court observed that the
“speeches made by the members of the Constituent
Assembly as external aid to the constitutional
interpretation is not admissible. Mr. Gopal
Sankaranarayanan relies on paragraph 16 of the
judgment which is to the following effect:
301
“16. It remains only to point out that
the use made by the learned Judges below
of the speeches made by the members of the
Constituent Assembly in the course of the
debates on the draft Constitution is
unwarranted. That this form of extrinsic
aid to the interpretation of statutes is
not admissible has been generally accepted
in England, and the same rule has been
observed in the construction of Indian
statutes — see Administrator-General of
Bengal v. Prem Nath Mallick [22 IA 107,
118] . The reason behind the rule was
explained by one of us in Gopalan
case [1950 SCR 88] thus:
“A speech made in the course of the
debate on a bill could at best be
indicative of the subjective intent of the
speaker, but it could not reflect the
inarticulate mental process lying behind
the majority vote which carried the bill.
Nor is it reasonable to assume that the
minds of all those legislators were in
accord,”
or, as it is more tersely put in an
American case—
“Those who did not speak may not have
agreed with those who did; and those who
spoke might differ from each other
— United States v. Trans-Missouri Freight
Association [169 US 290, 318] .”
This rule of exclusion has not always
been adhered to in America, and sometimes
distinction is made between using such
material to ascertain the purpose of a
statute and using it for ascertaining its
302
meaning. It would seem that the rule is
adopted in Canada and Australia —
see Craies on Statute Law, 5th Ed., p.
122.”
351. It is relevant to notice that in paragraph 16
it was also observed that rule of exclusion has not
always been upheld to in America and sometime
distinction is made between using such material to
ascertaining purpose of a statute and using it for
ascertaining its meaning. The judgment itself
indicated that the said material is sometime used to
ascertain the purpose of a statute. The law has been
explained and elaborated in subsequent judgments of
this Court which we shall notice hereinafter. One
more judgment on which reliance has been placed by
Shri Gopal Sankaranarayanan is the judgment of this
Court in Aswini Kumar Ghose and another v. Arabinda
Bose and another, AIR 1952 SC 369, in which this
Court referring to earlier judgment of this Court in
State of Travancore, Cochin and others vs. Bombay
Company Ltd.(supra) laid down in paragraph 31:
“31. As regards the speeches made by the
Members of the House in the course of the
303
debate, this Court has recently held that
they are not admissible as extrinsic aids
to the interpretation of statutory
provisions: (State of TravancoreCochin v. Bombay Co. Ltd. etc. [ CA Nos.
25, 28 and 29 of 1952]”
352. With regard to speeches in the Constituent
Assembly, the Constitution Bench of this Court,
in His Holiness Kesvananda Bharati vs. State of
Kerala and another, (1973) 4 SCC 225, several
Hon'ble Judges in their separate judgments have
relied and referred to Constituent Assembly debates
for the interpretation of provisions of Part III and
Part IV. Justice S.M. Sikri, CJ in paragraph 116
observed:
“186. The speeches can, in my view, be
relied on only in order to see if the
course of the progress of a particular
provision or provisions throws any light
on the historical background or shows that
a common understanding or agreement was
arrived at between certain sections of the
people..”
353. Justice Jaganmohan Reddy stoutly said that
Constituent Assembly debates be looked into for
ascertaining intention of our framers of the
304
Constitution. Justice Jaganmohan Reddy also held
that in a constitutional matter this Court should
look into the proceedings of relevant date
including any speech which may throw light in
ascertaining it. Justice Jaganmohan Reddy in
paragraph 1088 laid down:
“1088. ...Speaking for myself, why
should we not look into them boldly for
ascertaining what was the intention of our
framers and how they translated that
intention? What is the rationale for
treating them as forbidden or forbidding
material. The Court in a constitutional
matter, where the intent of the framers of
the Constitution as embodied in the
written document is to be ascertained,
should look into the proceedings, the
relevant data including any speech which
may throw light on ascertaining it. It can
reject them as unhelpful, if they throw no
light or throw only dim light in which
nothing can be discerned. Unlike a
statute, a Constitution is a working
instrument of Government, it is drafted by
people who wanted it to be a national
instrument to subserve successive
generations. The Assembly constituted
Committees of able men of high calibre,
learning and wide experience, and it had
an able adviser, Shri B.N. Rau to assist
it. ..... “
354. Justice H.R. Khanna in paragraph 1358 also in
his judgment had elaborately referred to and relied
305
on the speeches made in the Constituent Assembly. In
paragraph 1367 His Lordship laid down:
“1367. So far as the question is
concerned as to whether the speeches made
in the Constituent Assembly can be taken
into consideration, this court has in
three cases, namely, I.C. Golak
Nath v. State of Punjab, H.H.
Maharajadhiraja Madhav Rao Jiwaji Rao
Scindia Bahadur v. Union of India [(1971)
1 SCC 85 : (1971) 3 SCR 9] and Union of
India v. H.S. Dhillon [(1971) 2 SCC 779 :
(1972) 2 SCR 33] taken the view that such
speeches can be taken into account.
In Golak Nath case Subba Rao, C.J., who
spoke for the majority referred to the
speeches of Pt. Jawaharlal Nehru and Dr
Ambedkar on p. 791. Reference was also
made to the speech of Dr Ambedkar by
Bachawat, J. in that case on p. 924. In
the case of Madhav Rao, Shah, J. who gave
the leading majority judgment relied upon
the speech of Sardar Patel, who was
Minister for Home Affairs, in the
Constituent Assembly (see P. 83).
Reference was also made to the speeches in
the Constituent Assembly by Mitter, J. on
pages 121 and 122. More recently in H.S.
Dhilion case relating to the validity of
amendment in Wealth Tax Act, both the
majority judgment as well as the minority
judgment referred to the speeches made in
the Constituent Assembly in support of the
conclusion arrived at. It can, therefore,
be said that this Court has now accepted
the view in its decisions since Golak Nath
case that speeches made in the Constituent
Assembly can be referred to while dealing
with the provision of the Constitution.”
306
355. Justice K.K. Mathew in paragraph 1598 had held
that the debates in the Constituent Assembly can be
looked into to understand the legislative history of
a provision of the Constitution including its
derivation, that is, the various steps leading up to
and attending its enactment, to ascertain the
intention of the makers of the Constitution.
Following was laid down in paragraph 1598:
“1598. If the debates in the
Constituent Assembly can be looked into to
understand the legislative history of a
provision of the Constitution including
its derivation, that is, the various steps
leading up to and attending its enactment,
to ascertain the intention of the makers
of the Constitution, it is difficult to
see why the debates are inadmissible to
throw light on the purpose and general
intent of the provision. After all,
legislative history only tends to reveal
the legislative purpose in enacting the
provision and thereby sheds light upon
legislative intent. It would be drawing an
invisible distinction if resort to debates
is permitted simply to show the
legislative history and the same is not
allowed to show the legislative intent in
case of latent ambiguity in the provision.
....”
356. In the Constitution Bench in R.S. Nayak vs.
A.R. Antulay, 1984(2) SCC 183, The argument was
307
again advanced that debates in Parliament or the
report of the Commission or Committee which proceed
the enactment is not permissible aid to
construction. Submission was noted in paragraph 32
of the judgment to the following effect:
“32. Mr. Singhvi contended that even
where the words in a statute are ambiguous
and may be open to more than one meaning
or sense, a reference to the debates in
Parliament or the report of a commission
or a committee which preceded the
enactment of the statute under
consideration is not a permissible aid to
construction. ...”
357. In paragraph 33 it was held that in order to
ascertain true meaning of literal words in the
statute reference to the report are held legitimate
external aid. In paragraph 33 following was laid
down:
“33. The trend certainly seems to be
in the reverse gear in that in order to
ascertain the true meaning of ambiguous
words in a statute, reference to the
reports and recommendations of the
commission or committee which preceded the
enactment of the statute are held
legitimate external aids to construction.
The modern approach has to a considerable
extent eroded the exclusionary rule even
in England. ……”
308
358. Ultimately, this Court rejected the submission
raised and held that the reports of the Committee
were admissible. Following was laid down in
paragraph 34:
“34. ….Further even in the land of its
birth, the exclusionary rule has received
a serious jolt in Black-Clawson
International Ltd. v. Papierwerke WaldhofAschaffenburg AG:[(1975) 1 All ER 810,
843] Lord Simon of Claisdale in his speech
while examining the question of
admissibility of Greer Report observed as
under:
“At the very least, ascertainment of
the statutory objective can immediately
eliminate many of the possible meanings
that the language of the Act might
bear; and, if an ambiguity still
remains, consideration of the statutory
objective is one of the means of
resolving it.
The statutory objective is primarily to
be collected from the provisions of the
statute itself. In these days, when the
long title can be amended in both Houses,
I can see no reason for having recourse to
it only in case of an ambiguity — it is
the plainest of all the guides to the
general objectives of a statute. But it
will not always help as to particular
provisions. As to the statutory objective
of these, a report leading to the Act is
likely to be the most potent aid; and, in
my judgment, it would be mere obscurantism
not to avail oneself of it. There is,
309
indeed clear and high authority that it is
available for this purpose. ……”
359. It is noted that although the above
Constitution Bench was subsequently overruled by
seven-Judge Bench but the above proposition was not
touched.
We may also notice the Constitution Bench
judgment of this Court in Minerva Mills Ltd. and
others vs. Union of India and others, (1980) 3 SCC
625. CJ, Y.V. Chandrachud speaking for the
Constitution Bench referred to speech of Law
Minister made in the Parliament and held that the
constitutional provisions cannot be read contrary to
its proclaimed purpose as was stated by the Law
Minister in the floor of the House. In paragraph 65
following was laid down:
“65. Mr. Palkhivala read out to us an
extract from the speech of the then Law
Minister who, while speaking on the
amendment to Article 31-C, said that the
amendment was being introduced because the
government did not want the “let and
hindrance” of the fundamental rights. If
the Parliament has manifested a clear
intention to exercise an unlimited power,
310
it is impermissible to read down the
amplitude of that power so as to make it
limited. The principle of reading down
cannot be invoked or applied in opposition
to the clear intention of the legislature.
We suppose that in the history of the
constitutional law, no constitutional
amendment has ever been read down to mean
the exact opposite of what it says and
intends. In fact, to accept the argument
that we should read down Article 31-C, so
as to make it conform to the ratio of the
majority decision in Kesavananda
Bharati [Kesavananda Bharati v. State of
Kerala, 1973 Supp SCR 1 : (1973) 4 SCC 225
: AIR 1973 SC 1461] , is to destroy the
avowed purpose of Article 31-C as
indicated by the very heading “Saving of
Certain Laws” under which Articles 31-A,
31-B and 31-C are grouped. Since the
amendment to Article 31-C was
unquestionably made with a view to
empowering the legislatures to pass laws
of a particular description even if those
laws violate the discipline of Articles 14
and 19, it seems to us impossible to hold
that we should still save Article 31-C
from the challenge of unconstitutionality
by reading into that Article words which
destroy the rationale of that Article and
an intendment which is plainly contrary to
its proclaimed purpose.”
360. We may conclude the discussion on the topic by
referring to a subsequent Constitution judgment of
this Court in Kalpana Mehta and others vs. Union of
India and others, (2018) 7 SCC 1, in which one of us
Justice Ashok Bhushan was also a member. In the
311
above case, the Constitution Bench elaborately dealt
with the role of Parliamentary Committee. One of the
questions which was referred to before the
Constitution Bench to answer was “whether in a
litigation filed before this Court under Article 32
and our Court can refer to and place reliance upon
the report of the Parliamentary Standing Committee.
The Constitution Bench referring to earlier judgment
of this Court in R.S. Nayak v. A.R. Antulay (supra)
laid down following in paragraphs 123 and 134:
“123. A Constitution Bench in R.S.
Nayak v. A.R. Antulay [R.S. Nayak v. A.R.
Antulay, (1984) 2 SCC 183, after referring
to various decisions of this Court and
development in the law, opined that the
exclusionary rule is flickering in its
dying embers in its native land of birth
and has been given a decent burial by this
Court. The Constitution Bench further
observed that the basic purpose of all
canons of the Constitution is to ascertain
with reasonable certainty the intention of
Parliament and for the said purpose,
external aids such as reports of Special
Committee preceding the enactment, the
existing state of law, the environment
necessitating enactment of a legislation
and the object sought to be achieved, etc.
which Parliament held the luxury of
availing should not be denied to the court
whose primary function is to give effect
312
to the real intention of the legislature
in enacting a statute. The Court was of
the view that such a denial would deprive
the Court of a substantial and
illuminating aid to construction and,
therefore, the Court decided to depart
from the earlier decisions and held that
reports of committees which preceded the
enactment of a law, reports of Joint
Parliamentary Committees and a report of a
commission set up for collecting
information can be referred to as external
aids of construction.
134. From the aforesaid, it clear as day
that the Court can take aid of the report
of the Parliamentary Committee for the
purpose of appreciating the historical
background of the statutory provisions and
it can also refer to committee report or
the speech of the Minister on the floor of
the House of Parliament if there is any
kind of ambiguity or incongruity in a
provision of an enactment.”
361. Justice Dipak Misra, CJ speaking for himself
and Justice A.M. Khanwilkar recorded his conclusion
in paragraph 159.1 and 159.2 to the following
effect:
"159.1. Parliamentary Standing Committee
report can be taken aid of for the purpose
of interpretation of a statutory provision
wherever it is so necessary and also it
can be taken note of as existence of a
historical fact.
313
159.2. Judicial notice can be taken of
the Parliamentary Standing Committee
report under Section 57(4) of the Evidence
Act and it is admissible under Section 74
of the said Act.”
362. Dr. Justice D.Y. Chandrachud laid down
following in paragraph 260:
“260. The use of parliamentary history
as an aid to statutory construction is an
area which poses the fewest problems. In
understanding the true meaning of the
words used by the legislature, the court
may have regard to the reasons which have
led to the enactment of the law, the
problems which were sought to be remedied
and the object and purpose of the law. For
understanding this, the court may seek
recourse to background parliamentary
material associated with the framing of
the law.”
363. Justice Ashok Bhushan, one of us, in his
concurring judgment has observed that Committees of
both Rajya Sabha and Lok Sabha are entrusted with
enormous duties and responsibilities in reference to
the functions of Parliament. Following was observed
in paragraph 335:
314
“335. Various committees of both Rajya
Sabha and Lok Sabha are entrusted with
enormous duties and responsibilities in
reference to the functions of Parliament.
Maitland in Constitutional History of
England while referring to the committees
of the Houses of British Parliament
noticed the functions of the committees in
the following words:
“… Then again by means of committees
the Houses now exercise what we may call
an inquisitorial power. If anything is
going wrong in public affairs a
committee may be appointed to
investigate the matter; witnesses can be
summoned to give evidence on oath, and
if they will not testify they can be
committed for contempt. All manner of
subjects concerning the public have of
late been investigated by parliamentary
commissions; thus information is
obtained which may be used as a basis
for legislation or for the
recommendation of administrative
reforms.”
364. After noticing the relevant Rules, it was held
that parliamentary materials including reports and
other documents are permissible to be given as
evidence in the Court of law. In paragraph 351
following was laid down:
“351. From the above discussion it is
clear that as a matter of fact the
parliamentary materials including reports
and other documents have been sent from
315
time to time by the permission of
Parliament itself to be given as evidence
in courts of law.”
365. Noticing the observation of House of Lords in
Pepper (Inspector of Taxes) v. Hart, that
parliamentary materials for the purpose of
construing legislation can be used, following
observation in paragraph 380 was made:
“380. In the end Lord Wilkinson held
that reference to parliamentary materials
for the purpose of construing legislation
does not breach Article 9 of the Bill of
Rights (1688). The following was held:
(Hart case [Pepper (Inspector of
Taxes) v. Hart, 1993 AC 593 : (1992) 3 WLR
1032 : 1992 UKHL 3 (HL)] , AC p. 644)
“… For the reasons I have given, as a
matter of pure law this House should
look at Hansard and give effect to the
parliamentary intention it discloses in
deciding the appeal. The problem is the
indication given by the Attorney General
that, if this House does so, your
Lordships may be infringing the
privileges of the House of Commons.
For the reasons I have given, in my
judgment reference to parliamentary
materials for the purpose of construing
legislation does not breach Article 9 of
the Bill of Rights. …””
316
366. In paragraph 395, it was also noted by this
Court that parliamentary proceeding including
reports of the Standing committee of Parliament were
relied in large number of cases of this Court. In
paragraph 395 following was laid down:
“395. This Court in a number of cases has
also referred to and relied on
parliamentary proceedings including
reports of the Standing Committee of
Parliament. The learned counsel for the
petitioners have given reference to
several cases in this regard,
namely, Catering Cleaners of Southern
Railway v. Union of India [Catering
Cleaners of Southern Railway v. Union of
India, (1987) 1 SCC 700 : 1987 SCC (L&S)
77] where the Court has taken into
consideration report of a Standing
Committee of petitions. Another case
relied on is Gujarat Electricity
Board v. Hind Mazdoor Sabha [Gujarat
Electricity Board v. Hind Mazdoor Sabha,
(1995) 5 SCC 27 : 1995 SCC (L&S) 1166].
In State of Maharashtra v. Milind [State
of Maharashtrav. Milind, (2001) 1 SCC 4 :
2001 SCC (L&S) 117], the Court has
referred to and relied on a Joint
Parliamentary Committee report.
In Federation of Railway Officers
Assn. v. Union of India [Federation of
Railway Officers Assn. v. Union of India,
(2003) 4 SCC 289 : AIR 2003 SC 1344], the
Court has referred to a report of the
Standing Committee of Parliament on
Railways. In Aruna Roy v. Union of
India [Aruna Royv. Union of India, (2002)
7 SCC 368 : 5 SCEC 310] , report of a
317
Committee, namely, S.B. Chavan Committee,
which was appointed by Parliament was
relied and referred. M.C. Mehta v. Union
of India [M.C. Mehta v. Union of India,
(2017) 7 SCC 243] was again a case where
report of a Standing Committee of
Parliament on Petroleum and Natural Gas
has been referred to and relied. Other
judgments where Parliamentary Committee
reports have been relied are Kishan Lal
Gera v. State of Haryana [Krishan Lal
Gera v. State of Haryana, (2011) 10 SCC
529] , Modern Dental College and Research
Centre v. State of M.P. [Modern Dental
College & Research Centre v. State of
M.P., (2016) 7 SCC 353 : 7 SCEC 1] and Lal
Babu Priyadarshi v. Amritpal Singh [Lal
Babu Priyadarshi v. Amritpal Singh, (2015)
16 SCC 795 : (2016) 3 SCC (Civ) 649].”
367. The above discussion makes it clear that the
law is well settled in this county that
Parliamentary Committee reports including speech
given by the Minister in the Parliament and the
debates are relevant materials to ascertain the
intention of Parliament while constituting
constitutional provisions. We, thus, reject the
objection of Shri Gopal Sankaranarayanan that
Parliamentary Committee report and the speech of
the Minister cannot be looked into for ascertaining
318
the intention of Parliament in bringing the
Constitution 102nd Amendment.
368. The intention of the Parliament for bringing
the constitutional amendment is necessary to be
found out to interpret the constitutional
amendments. The words used in constitutional
amendment have to be interpreted in the context for
which they were used. We may refer to the celebrated
words of Justice Holmes in Towne v. Eisner, 245 US
418, where he observed: “a word is not crystal,
transparent and unchanged; it is a skin of living
thought and may very greatly in colour and content
according to the circumstances and the time in which
it is used.” In what context the words “Central
List” has been used in Article 342A(1) has to find
out and what was the intent of Parliament in using
the words “Central List” in sub-clause (2) and what
was the intent of the Parliament in inserting
Article 342A in the Constitution are relevant for
purposes of constitutional interpretation.
319
369. We need to look into the parliamentary process
which culminated into parliament passing the
Constitution (102nd Amendment) Act, 2018. The
Constitution (123rd Amendment) Bill, 2017 was
introduced in the Lok Sabha on 02.04.2017 and was
passed in Lok Sabha on 10.04.2017. When the Bill
came to the Rajya Sabha, by a Motion adopted by the
House on 11.04.2017, the Bill was referred to the
Select Committee comprising of 25 members of Rajya
Sabha. The Select Committee held seven meetings
before submitting its report. Several members gave
their response to the Committee. In the first
meeting of the Committee held on 17.04.2017,
Ministry of Social Justice and Empowerment placed
certain clarification of the Minister which was
noticed and incorporated in paragraph 6 of the
Minutes which is to the following effect:
“6. Secretary, Ministry of Social Justice
and Empowerment further clarified that
under the Backward Classes, unlike the SCs
& STs, there are two lists i.c. the
Central List and the State List. The
Central List provides for education and
employment opportunities in Central
Government Institutions. In the State
320
List, the States are free to include or
exclude, whoever they wish to, in their
Backward Classes List. As a result, if
there is a certain category which is not
in the Central List, it may still be found
in the State List. That is the freedom and
prerogative of the State Backward Classes
Commission and that would continue to be
there.
370. The Committee in its meeting held on 22.05.2017
asked several clarifications. One of the
clarifications asked was “To what extent the rights
of the States would be affected after coming into by
the Bill under the Constitution of the Select
Committee.”
371. The Committee held sixth meeting on 03.07.2017.
One of the proposed amendments have been noted in
paragraph 21 of the Minutes, clarification on which
was also noted in paragraph and the amendment was
not accepted. The amendment proposed was
“notwithstanding in any … in clause (9), the State
Government shall continue to have power … socially
and educationally backward classes.” The above
proposed amendment in Article 338B was not accepted
321
since Ministry clarified that the power of the State
is not affected. Paragraphs 21, 22 and 23 are as
follows:
“21. The Committee discussed the
amendment wherein in article 338B a new
sub-clause (10) was proposed to be
inserted. This sub-clause (10) would state
that ‘notwithstanding anything provided in
clause 9, the State Government shall
continue to have powers to identify
Socially and Educationally Backward
Classes’.
22. It was clarified by the Ministry
to the Committee that the proposed
amendment does not interfere with the
powers of the State Governments to
identify the Socially and Educationally
Backward Classes. The existing powers of
the State Backward Classes Commission
would continue to be there even after the
passage of the Constitution (One Hundred
and Twenty-third Amendment) Bill, 2017.
(underlined by us)
23. The Committee held discussions on
the amendments proposed and in view of the
explanation given by the Ministry, the
Committee adopted clause 3 without any
amendments.”
372. Article 342A was also discussed by the
Committee various set of Amendments were noted in
reference to Article 342A. The Committee noticed
322
amendments proposed in Article 342A in paragraph 24
t the following effect:
“24. The Committee then took up Clause
4 of the Bill for consideration. The
Committee considered the following
amendment proposed by certain Members:
(h) Sub-clause (1) of article 342A be
modified as follows:
"The President with respect to any State
or Union Territory, and where it is a
State, on the request made by the
governor thereof, by public notification
specify the socially and educationally
backward classes for the purposes of
making provisions for reservation of
appointment to an office or posts under
Government of India or under any
authority of Government of India or
under the control of the Government of
India or seats in Central Government
educational institutions"
(ii) Sub-clause (2) of article 342A be
modified as follows:
"The President may, on the advise of
the National Commission for Backward
Classes include or exclude from the
Central list of socially and
educationally backward classes specified
in a notification issued under clause
(1).";
(iii) In article 342A insert clause (3) as
follows:
"The Governor of a State, by public
notification specify the socially and
educational backward classes for the
purposes of making provisions for
reservation of posts under that State or
323
under any other authority of the State
or under the central of the State, or
seats in the educational institutions.
within that State" and
(iv)In article 342A insert clause (4) as
follows:
"The Governor may, on the advice of the
State Commission of Backward Classes
include or exclude from the State list
of socially and educationally backward
classes specified in a notification
issued under clause (3)”
373. The Committee, however, did not accept any of
the amendments in view of explanation furnished by
the Ministry. The 7th meeting was held on 14.07.2017.
The clarification issued by the Secretary of
Ministry of Social Justice and Empowerment has been
noticed in paragraph 29 which is to the following
effect:
“29. ………She also clarified that conferring
of constitutional status on the National
Commission for Backward Classes would in
no way take away the existing powers of
the State Backward Classes Commissions.
The only difference would be with regard
to the Central List, where the power of
exclusion or inclusion, after the
Constitutional amendment, it would come to
the Parliament with the recommendations of
the NCBC.”
324
374. After elaborate discussion, the Committee
submitted its report dated 19.07.2017. One of the
amendments which was moved before the Committee in
Article 338B was noticed and not accepted. In the
report the Ministry's stand was that proposed
amendment does not interfere with the power of the
State Government to identify the socially and
educationally backward classes. Paragraphs 47 and 48
of the report is as follows:
“47. The Committee discussed the amendment
wherein in article 338B a new sub-clause
(10) was proposed to be inserted. This
sub-clause (10) would read as follows:
‘Notwithstanding anything provided in
clause 9, the State Government shall
continue to have powers to identify
Socially and Educationally Backward
Classes’
48. It was clarified by the Ministry of
Social Justice and Empowerment to the
Committee that the proposed amendment does
not interfere with the powers of the State
Governments to identify the Socially and
Educationally Backward Classes. The
existing powers of the State Backward
Classes Commission would continue to be
there even after the passage of the
Constitution (One Hundred and Twenty-third
Amendment) Bill, 2017.”
325
375. With regard to the proposed Article 342A of the
Constitution, in paragraph 67 the Committee recorded
the observation to the following effect:
“67.The Committee observes that the
amendments do not in any way affect the
independence and functioning of State
Backward Classes Commissions' and they
will continue to exercise unhindered their
powers of inclusion/exclusion of other
backward classes with relation to State
List.”
376. The Select Committee's report came for
consideration before the Rajya Sabha. During the
debate, members have expressed their apprehension
regarding adversely affecting the rights of the
State by the proposed constitutional amendment. The
Rajya Sabha passed the Bill on 31.07.2017 with
amendment. Shri Thawarchand Gehlot, Minister of
Social Justice and Empowerment proposed the Bill.
Several members expressed their apprehension that
Bill is not in the interest of the powers of the
State. Shri B.K. Hari Prasad speaking on the Bill
stated following:
“SHRI B.K. HARIPRASAD: Sir, repealing
the Act of 1993 means that nothing would
stay as it is and, again, the directions
326
of the Supreme Court are being negated.
So, this Commission would not help the
Backward Classes and would take away the
powers of the States too. They want to
centralize all the powers, as they have
done in other cases. This cannot happen
in the case of OBCS. As I have already
said, though the Act was passed in
Parliament way back in 1993 for purposes
of employment, etc. and way back in 2007
for education, nothing has been
implemented so far. If they centralize
all things like employment,
identification of castes, etc., they
would be doing gross injustice to the
OBCS. They should think twice before
scrapping the powers of the States
because, as I have already mentioned, it
is the States which identify various
castes and communities. They know better
than the people sitting here in Delhi.
Hence, amending Article 342 and equating
identification of OBC List to the SC/ST
List should not be done. ...”
377. Shri Bhupender Yadav has also stated in his
speech that Amendment Bill cast threat to federalism
and the State interest. In his statement (translated
from Hindi) he said:
“......that this will be a big threat
to the federalism of the country and what
will happen to the rights of the States?
Here I want to say that at least this
subject should go before the House and
through the House to the country that
about five and a half thousand castes and
categories are under OBC in the Central
List of the country and about ten and a
327
half thousand castes and categories are
under OBC in the States List. The work of
their identification (SIC) and the power
that Parliament has, is for five and a
half thousand Central List only, the
rights of the States will be safe with
them and therefore, they have done the
work of strengthening the federal
structure through this amendment. For the
first time, we have created the system
that if the work of filling up the OBC
posts will not be done, then the report of
the OBC Commission will be placed before
the Parliament. This should be the demand
of democracy of the country that if the
lower class people do not get justice,
then all those documents should come
before the Parliament with reasons.
Provision to do the same has been made in
this OBC Commission.”
378. Shri Dilip Kumar Tirkey(Odisha), in his speech
has referred to State List and Central List and
stated (translated from Hindi) that powers to
identify OBC are remained with the State.
“Shri Dilip Kumar Tirkey (Odisha) :
Sir, you gave me an opportunity to speak
on the very important Amendment Bill, for
this, I thank you. Sir, in our country,
reservation for OBC was given about 24
years ago but there is a clear provision
in Article 14-15 of the Constitution that
the States can make special provision for
the socio-economic backward classes. Our
party BJD is in support of National
Commission to be made for OBC and we are.
328
supporting it but we have some issues and
concerns and I would like to present them
before the House. Sir, as per the present
system, every State has its own OBC list
and on that basis, they get reservation.
If, in a State, any caste falls under OBC
list then it is not mandatory that it
falls under the Central or other States
list. The logic behind this is that there
are different castes in every state and
these different castes have different
conditions. Now, after formation of the
National Commission, one Central list will
be made and only Centre shall notify them.
Sir, this is the opinion of our party that
the power of notification of OBC castes
should remain with the States only because
only the concerned state thoroughly knows
the fact of number of castes in their
States and what is their condition. Only
the government knows thoroughly. They may
face problems with central list.
Therefore, I would like to appeal to
Hon'ble Minister and the House to add such
a provision in the Bill whereby the work
of adding or deleting any caste from the
OBC list should be strictly done only on
the recommendation of the state government
to which it relates to. Sir, you can make
national list after the uniformity comes
gradually. When S.C., S.T, National
Commission was formed, it also took much
time. In my opinion, after the separate
S.C., S.T. Commission was formed, it got
the status of Constitutional body in 2003.
Therefore, 1 would like to appeal to the
House and the government to reconsider and
think on this point. Further, I would like
to add one more thing that in the
observation of Hon'ble Supreme Court,
there was a provision of review after
every 10 years so that other castes are
not left, therefore, it should be reviewed
329
after every 10 years. In my opinion, do
the needful keeping it in view also, thank
you.”
379. Similar apprehension was expressed by T.K.
Rangarajan and Shri Pradeep Tamta that Article 342A
takes away the existing powers of the State to
notify list of SEBC. After the debate, the Bill was
presented and passed in Rajya Sabha.
380. The Minister, Shri Thawarchand Gehlot, after
the debate stated that apprehension expressed by the
members that power of the State shall be affected
and federal structure shall be damaged is incorrect.
He stated that the power of the State shall not be
affected in any manner, the State's power to
include and exclude in its list of OBC shall still
continue. The statement (translated from Hindi) made
by the Minster is to the following effect:
“Sir, 4 major amendments are being
made in the Constitution; one amendment
pertains to part 10. of Article 338
wherein, OBC Commission did not have power
to hear grievances of the people belonging
to OBC category, that was to SC
Commission, now this power is being given
to the upcoming OBC Commission. There is
provision of SC Commission under Article
330
338, provision of ST Commission is under
338(A) and now provision of constituting
OBC Commission is being made under Article
338(B). SC Commission and ST Commission
already have Constitutional status
similarly, Constitutional status is being
given to OBC Commission as well. It simply
means that the way rights, duties and
power are given to the SC and ST
Commission, same rights have also been
given to them. Articles 341 and 342
provide for the inclusion and removal of
the castes of the respective categories.
Article 342 (A) also provides for
inclusion and removal of the castes
belonging to OBC category by adopting the
same procedure. Along with this, various
types of definitions are given in Article
366; castes belonging to SC category are
referred to in sub-clause 24 of it; castes
belonging to ST category are referred to
in sub-clause 25 of it and now a new
Article 26(C) is added to it. On the basis
of it, castes belonging to OBC category
will be defined. Hon'ble members were
feared that the rights the State
Commissions have at present that might be
reduced and the federal system will be
violated, pertaining to this I am to say
that it will not at all happen. There is
no provision anywhere in the Articles to
reduce their rights in any way. States
have constituted OBC Commission in their
respective territories since long ago.
When the Kaka Kalelkar Committee was
constituted and when it submitted its
report, at that time also many States had
constituted such Commission. The State
List deals with work concerned with OBC
category and notifies them. Thereafter, on
the basis of Mandal Commission Report as
well many States have constituted such
Commissions. Supreme Court had also given
331
verdict in 1992-1993, on that ground also
many States had constituted OBC Commission
in their respective territories. At
present as many as 30-31 States have
constituted such Commissions. Complete
list of it is with me. Right to include or
remove in the States List concerned with
OBCS will remain as it is and it will not
be violated in any manner.
In addition, keeping in view the
sentiments of Article 15 and 16, States
have also exercised their powers
pertaining to making schemes in the
interest of OBC category and making
provisions in this behalf and such power
will remain as it is. We are not making
any amendment in Article 15 and Article
16. It simply means that State Commissions
will not be affected in any way by this
Constitutional amendment. Maximum number
of Hon'ble Members have shared their views
expressing their fear on this point. I,
sincerely want to make it clear that State
Governments have right and will remain as
it is in future as well. No attempt will
be made to tamper with them.”
381. The Bill was passed in Rajya Sabhad on
31.07.2017 and thereafter it was taken by the Lok
Sabha on 02.08.2017. In Lok Sabha the Minister of
Social Justice and Empowerment again made a
statement that the Commission will take decision
related to the Central List It is useful to extract
332
the statement(translated from Hindi) of the Minister
made on 02.08.2017 which is to the following effect:
"Sh. Thawar Chand Gehlot
Madam, this Commission, which will be made,
will make decisions related to the Central
List. As there is a common list related to
Scheduled Caste and Scheduled Tribe of the
State and the Centre, so is not the case
here. In it, separate list is made for Centre
as well as for States. The task of making the
list of States is done by taking decision by
the States Commission.
If any State Government proposes to include
any Caste of that State in the Central List,
then n this regard, this Commission will give
opinion, otherwise the opinion of this
Commission is neither binding regarding the
State List nor the Commission will consider
it. According to my own belief, I assure you
that the report of the Central Commission
will not be binding on the subjects related
to the State, it contains such provisions.
You be assured and support this bill.”
382. The Lok Sabha also passed the Constitution
123rd Amendment Bill, 2017 on 02.08.2018 which was
agreed to by the Rajya Sabha on 06.08.2018 and the
Constitution (102nd Amendment) Act, 2018 after
receiving the assent of the President of India on
11.08.2018 was published on 11.08.2018 and its
enforcement has been notified with effect from
15.08.2018. The Constitution (102nd Amendment) Act
333
inserted Article 338B and 342A and Article 366(26C)
which are to the following effect:
“338B. (1) There shall be a Commission
for the socially and educationally backward
classes to be known as the National
Commission for Backward Classes.
(2) Subject to the provisions of any law
made in this behalf by Parliament, the
Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and
the conditions of service and tenure of
office of the Chairperson, Vice-Chairperson
and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and
other Members of the Commission shall be
appointed by the President by warrant under
his hand and seal.
(4) The Commission shall have the power to
regulate its own procedure.
(5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters
relating to the safeguards provided for
the socially and educationally backward
classes under this Constitution or under
any other law for the time being in force
or under any order of the Government and
to evaluate the working of such
safeguards;
(b) to inquire into specific complaints with
respect to the deprivation of rights and
safeguards of the socially and
educationally backward classes;
(c) to participate and advise on the socioeconomic development of the socially and
educationally backward classes and to
334
evaluate the progress of their development
under the Union and any State;
(d) to present to the President, annually and
at such other times as the Commission may
deem fit, reports upon the working of
those safeguards;
(e) to make in such reports the
recommendations as to the measures that
should be taken by the Union or any State
for the effective implementation of those
safeguards and other measures for the
protection, welfare and socio-economic
development of the socially and
educationally backward classes; and
(f) to discharge such other functions in
relation to the protection, welfare and
development and advancement of the
socially and educationally backward
classes as the President may, subject to
the provisions of any law made by
Parliament, by rule specify.
(6) The President shall cause all such
reports to be laid before each House of
Parliament along with a memorandum explaining
the action taken or proposed to be taken on
the recommendations relating to the Union and
the reasons for the non-acceptance, if any,
of any of such recommendations.
(7) Where any such report, or any part
thereof, relates to any matter with which any
State Government is concerned, a copy of such
report shall be forwarded to the State
Government which shall cause it to be laid
before the Legislature of the State along
with a memorandum explaining the action taken
or proposed to be taken on the
recommendations relating to the State and the
335
reasons for the non-acceptance, if any, of
any of such recommendations.
(8) The Commission shall, while investigating
any matter referred to in sub-clause (a) or
inquiring into any complaint referred to in
sub-clause (b) of clause (5), have all the
powers of a civil court trying a suit and in
particular in respect of the following
matters, namely:—
(a) summoning and enforcing the attendance of
any person from any part of India and
examining him on oath;
(b) requiring the discovery and production of
any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination
of witnesses and documents;
(f) any other matter which the President may,
by rule, determine.
(9) The Union and every State Government
shall consult the Commission on all major
policy matters affecting the socially and
educationally backward classes.".
342A. (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 socially and educationally
backward classes which shall for the purposes
of this Constitution be deemed to be socially
and educationally backward classes in
336
relation to that State or Union territory, as
the case may be.
(2) Parliament may by law include in or
exclude from the Central List of socially and
educationally backward classes specified in a
notification issued under clause (1) any
socially and educationally backward class,
but save as aforesaid a notification issued
under the said clause shall not be varied by
any subsequent notification.".
“366(26C) "socially and educationally
backward classes" means such backward classes
as are so deemed under article 342A for the
purposes of this Constitution;’.”
383. After noticing the principles of statutory
interpretation of Constitution and aids which can be
resorted to in case of any ambiguity in a word, we
now proceed to look into the constitutional
provisions inserted by the Constitution (102nd
Amendment) Act.
384. The first Article which has been inserted by
the Constitution (One Hundred and Second Amendment)
Act is Article 338B. The statement of objects and
reasons of the Constitution (One Hundred and Twenty
Third Amendment) Bill, 2017, we had noticed above,
337
in which one of the objects of the Constitutional
amendment was: -
“...in order to safeguard the
interests of the socially and
educationally backward classes more
effectively, it is proposed to create a
National Commission for Backward Classes
with constitutional status at par with the
National Commission for Scheduled Castes
and the National Commission for Scheduled
Tribes.
(Underlined by us)”
385. Prior to Constitution (One Hundred and Second
Amendment), there was already existing a National
Commission for Backward Classes under the National
Commission for Backward Classes, Act, 1993(in short
1993 Act), which was a statutory commission. To
comprehend the role and functions of the National
Commission for Backward Class created by the
Constitution (One Hundred and Second Amendment) Act,
we need to notice the difference into the role and
functions of the statutory commission and
Constitutional commission. Section 9 of 1993 Act
provided for the functions of the Commission, which
is to the following effect: -
338
“9. Functions of the Commission.–
(1) The Commission shall examine
requests for inclusion of any class of
citizens as a backward class in the
lists and hear complaints of overinclusion or under-inclusion of any
backward class in such lists and tender
such advice to the Central Government as
it deems appropriate.
(2) The advice of the Commission shall
ordinarily be binding upon the Central
Government.”
386. Section 11 provides for periodical revision of
the list by the Central government which is to the
following effect:-
“11. Periodic revision of lists by the
Central Government.–
(1) The Central Government may at
any time, and shall, at the expiration
of ten years from the coming into
force of this Act and every succeeding
period of ten years thereafter,
undertake revision of the lists with a
view to excluding from such lists
those classes who have ceased to be
backward classes or for including in
such lists new backward classes.
(2) The Central Government shall,
while undertaking any revision
referred to in sub-section (1),
consult the Commission. ”
339
387. The Act, 1993, indicates that functions of the
Commission were confined to only examine requests
for inclusion or exclusion from the list of backward
classes. The list “was defined in Section 2C of the
Act, 1993 to mean the list for reservation for
appointment of backward class in the services under
the Government of India. Article 338B now inserted
provides a much larger and comprehensive role to the
Commission. The Act, 1993 required the Commission
to give advice only to the Central Government.
Article 338B now requires the Commission to give
advice both to the Central Government and to the
States, which is clear from sub-clauses (5),(7) and
(9) of Article 338B, which is quoted as below:-
“(5) It shall be the duty of the
Commission—
(a) to investigate and monitor all
matters relating to the safeguards
provided for the socially and
educationally backward classes under
this Constitution or under any other
law for the time being in force or
under any order of the Government and
to evaluate the working of such
safeguards;
(b) to inquire into specific
complaints with respect to the
340
deprivation of rights and safeguards
of the socially and educationally
backward classes;
(c) to participate and advise on the
socio-economic development of the
socially and educationally backward
classes and to evaluate the progress
of their development under the Union
and any State;
(d) to present to the President,
annually and at such other times as
the Commission may deem fit, reports
upon the working of those safeguards;
(e) to make in such reports the
recommendations as to the measures
that should be taken by the Union or
any State for the effective
implementation of those safeguards and
other measures for the protection,
welfare and socio-economic development
of the socially and educationally
backward classes; and
(f ) to discharge such other functions
in relation to the protection, welfare
and development and advancement of the
socially and educationally backward
classes as the President may, subject
to the provisions of any law made by
Parliament, by rule specify.
(7) Where any such report, or any part
thereof, relates to any matter with which
any State Government is concerned, a copy
of such report shall be forwarded to the
State Government which shall cause it to
be laid before the Legislature of the
State along with a memorandum explaining
the action taken or proposed to be taken
on the recommendations relating to the
341
State and the reasons for the nonacceptance, if any, of any of such
recommendations.
(9) The Union and every State Government
shall consult the Commission on all major
policy matters affecting the socially and
educationally backward classes.”
388. The most important difference which is now
brought by Article 338B is sub-clause (9), which
mandates that every State Government to consult the
Commission on all major policy decisions affecting
socially and educationally backward classes. Subclause (9) is engrafted in mandatory form by using
expression “shall”. The States thus are now bound to
consult the Commission on all major policy matters
affecting socially and educationally backward class.
For the purposes of this case, we need not elaborate
on the expression “policy matter” occurring in subclause (9) of Article 338B. However, in the facts of
the present case, the decision of the Maharashtra
Government which culminated in 2018 Act to exceed
ceiling limit of 50 percent fixed for reservation as
per existing law and to give separate reservation to
Maratha in employment under State and in educational
342
institutions of the State where all policy decisions
within the meaning of clause (9) of Article 338B.
389. The word ‘consultation’ occurring in sub-clause
(9) is expression which has been used in several
Articles of the Constitution i.e. Article 124, 207,
233, 234, 320 and host of other articles. We may
notice the content and meaning of the expression
‘consultation’.
390. The Black’s Law Dictionary, 10th Edition,
defines ‘consultation’ as follows:-
“Consultation, n.(15c) 1. The act of
asking the advice or opinion of
someone(such as a lawyer). 2. A meeting in
which parties consult or confer. 3. Int’l
law. The interactive methods by which
states seek to prevent or resolve
disputes.- consult, vb.-consulting,
consultative, adj. ”
Advanced Law Lexicon by P.Ramanatha
Aiyar, 3rd Edition, defines ‘consult’:
“Consult. ‘Consult implies a
conference of two or more persons or the
impact of two or more minds brought about
in respect of a topic with a view to
evolve a correct or atleast a satisfactory
solution. It must be directed to the
essential points of the subject under
343
discussion and enable the consultor to
consider the pros and cons before coming
to a decision. The consultation may be
between an uninformed person and an expert
or between two experts.”
391. The ‘consultation’ or deliberation is not
complete or effective unless parties there to makes
their respective points of view known to the others
and examine the relative merit of their view. The
consultation is a process which requires meeting of
minds between the parties involves in the process of
consultation on the material facts and points
involved. The consultation has to be meaningful,
effective and conscious consultation. We may now
notice few cases of this Court where the expression
‘consultation’ as occurring in the Constitution of
India has been dealt with.
392. In Chandramouleshwar Prasad versus The Patna
High Court and others, (1969) 3 SCC 56, this Court
had occasion to consider the expression
‘consultation’ as occurring in Article 233 of the
Constitution. The Constitution Bench of this Court
344
explaining the expression ‘consultation’ held that
‘consultation’ is not an empty formality and it
should be complete and effective. Following has been
laid down in paragraph 7 of the judgment: -
“7. ...Consultation with the high Court
under Article 233 is not an empty
formality. So far as promotion of officers
to the cadre of District Judges is
concerned the High Court is best fitted to
adjudge the claims and merits of persons
to be considered for promotion. The
Governor cannot discharge his function
under Article 233 if he makes an
appointment of a person without
ascertaining the High Court’s views in
regard thereto...
...Consultation or deliberation is not
complete or effective before the parties
thereto make their respective points of
view known to the other or others and
discuss and examine the relative merits of
their views. If one party makes a proposal
to the other who has a counter proposal in
his mind which is not communicated to the
proposer the direction to give effect to
the counter proposal without anything
more, cannot be said to have been issued
after consultation. In our opinion, the
notification of October 17, 1968 was not
in compliance with Article 233 of the
Constitution. In the absence of
consultation the validity of the
notification of October 17, 1968 cannot be
sustained.”
345
393. In Union of India versus Shankalchand Himatlal
Sheth and another, (1977) 4 SCC 193, the
Constitution Bench of this Court had occasion to
examine Article 222 and the expression ‘consult’.
Explaining the word ‘consult’, Justice Y.V.
Chandrachud, in paragraphs 38 and 39 laid down
following: -
“38. In Words and Phrases (Permanent
Edition, 1960, Volume 9, page 3) to
'consult' is defined as 'to discuss
something together, to deliberate'. Corpus
Juris Secundum (Volume 16A, Ed. 1956, page
1242) also says that the word 'consult' is
frequently defined as meaning 'to discuss
something together, or to deliberate'.
Quoting Rollo v. Minister of Town and
Country Planning(1) and Fletcher v.
Minister of Town and Country Planning(2)
Stroud's Judicial Dictionary (Volume 1'
Third Edition, 1952, page 596) says in the
context of the expression " consultation
with any local authorities" that
"Consultation means that, on the one side,
the Minister must supply sufficient
information to the local authority to
enable them to tender advice, and, on the
other hand, a sufficient opportunity must
be given to the local authority to tender
advice". Thus, deliberation is the
quintessence of consultation. That implies
that each individual case must be
considered separately on the basis of its
own facts. Policy transfers on a wholesale
basis which leave no scope for considering
the facts of each particular case and
which are influenced by one-sided
346
governmental considerations are outside
the contemplation of our Constitution.
39. It may not be a happy analogy, but
it is commonsense that he who wants to
'consult' a doctor cannot keep facts up
his sleeve. He does so at his peril for he
can receive no true advice unless he
discloses facts necessary for diagnosis of
his malady. Homely analogies apart, which
can be multiplied, a decision of the
Madras High Court in R. Pushpam & Anr. v.
Stale of Madras(1) furnishes a good
parallel. section 43(b), Madras District
Municipalities Act, 1920, provided that
for the purpose of election of Councillors
to a Municipal Council, the Local
Government 'after consulting the Municipal
Council' may determine the wards in which
reserved seats shall be set apart. While
setting aside the reservation made in
respect of one of the wards on the ground
that the Local Government had failed to
discharge its statutory obligation of
consulting the Municipal Council, Justice
K. Subba Rao, who then adorned the Bench
of the Madras High Court, observed : "The
word 'consult' implies a conference of two
or more persons or an impact of two or
more minds in respect of a topic in order
to enable them to evolve a correct, or at
least, a satisfactory solution." In, order
that the two minds may be able to confer
and produce a mutual impact, it is
essential that each must have for its
consideration full and identical facts,
which can at once constitute both the
source and foundation of the final
decision.”
347
394. In Indian Administrative Services (S.C.S.)
Association, U.P. and Others,(1993) Supp.(1) SCC
730, this Court had occasion to explain the
expression ‘consultation’ as occurring in All India
Services Act, 1951. In paragraph 26, following
conclusions were recorded by this Court:-
“26.(1) Consultation is a process which
requires meeting of minds between the
parties involved in the process of
consultation on the material facts and
points involved to evolve a correct or at
least satisfactory solution. There should
be meeting of minds between the proposer
and the persons to be consulted on the
subject of consultation. There must be
definite facts which constitute the
foundation and source for final decision.
The object of the consultation is to
render consultation meaningful to serve
the intended purpose. Prior consultation
in that behalf is mandatory.
... ... ... ...”
395. The word ‘consultation’ as occurring in
Articles 124, 216, 217 and 222 came for
consideration before the Constitution Bench of this
Court in Supreme Court Advocates on Record
Association and others versus Union of India, (1993)
4 SCC 441. Justice Ratnavel Pandian delivering a
concurring opinion has elaborately dealt with the
348
consultation. In paragraph 112, following has been
stated: -
“112. It is clear that under Article
217(1), the process of 'consultation' by
the President is mandatory and this clause
does not speak of any discretionary
'consultation' with any other authority as
in the case of appointment of a Judge of
the Supreme Court as envisaged in Clause
(2) of Article 124. The word
'consultation' is powerful and eloquent
with meaning, loaded with undefined
intonation and it answers all the
questions and all the various tests
including the test of primacy to the
opinion of the CJI. This test poses many
tough questions, one of them being, what
is the meaning of the expression
'consultation' in the context in which it
is used under the Constitution. As in the
case of appointment of a Judge of the
Supreme Court and the High Court, there
are some more constitutional provisions in
which the expression 'consultation' is
used......”
396. When the Constitutional provision uses the
expression ‘consultation’ which ‘consultation’ is to
be undertaken by a Constitutional authority like
National Commission for Backward Classes in the
present case, the ‘consultation’ has to be
meaningful, effective with all relevant materials
and information placed before Commission. As
349
observed above, the National Backward Class
Commission has been given constitutional status
under Article 338B has now been entrusted with
numerous functions regarding the backward classes.
The Commission is now to advice not only the Union
Government but the State Government also and various
measures as enumerated in sub-clause(5). The
objective of sub-clause (9) of Article 338B is to
ensure that even the States did not take any major
policy decision without consulting the Commission
who is competent to provide necessary advice and
solution keeping in view the larger interest of
backward class. We thus are of the considered
opinion that the consultation by the State on all
policy matters affecting the socially and
educationally backward classes is now mandatory as
per sub-clause(9) of Article 338B which mandatory
requirement cannot be by-passed by any State while
the State takes any major policy decision.
397. It is true that the expression ‘consultation’
in sub-clause (4) of Article 338B is not to be read
350
as concurrence but as held above, ‘consultation’ has
to be effective and meaningful. The object of
consultation is that ‘consultee’ shall place the
relevant material before person from whom
‘consultation’ is asked for and advice and opinion
given by consulting authority shall guide the
authority who has asked for consultation.
398. The regime which was invoked prior to insertion
of Article 342A was that central list was issued by
the Central Government under 1993 Act and State
lists were issued by State Governments. It was also
open for the State to request for exclusion or
inclusion from the list of OBCs of Central list. The
same procedure is to issue even after insertion of
Article 342A with regard to Central list.
399. The appellants insist that Article 342A has to
be given a literal interpretation. The plain
language of an Article has to be given full effect
irrespective of intention of Parliament as claimed
by the Attorney General as well the learned counsel
for the State. The submission of the appellants is
351
that Article 342A borrows the same scheme as is
delineated in Articles 341 and 342 of the
Constitution. It is submitted that when Article 342A
borrows the same scheme which is clear from the fact
that sub-clause (1) of Article 342A is para mataria
with Articles 341(1) and 342(1), it is clearly meant
that power to identify educationally and socially
backward classes is only with the President but
after consultation with the Governor of the State.
It is submitted that expression the “socially and
educationally backward classes” which shall for the
purposes of this Constitution be deemed to be
socially and educationally backward classes in
relation to that State or Union territory” has to be
given meaning and it is only list issued by public
notification under sub-clause (1) which is the list
of backward classes of a State or Union territory.
No other list is contemplated. Hence, the State has
no authority or jurisdiction to identify backward
classes or issue any list that is so called State
List. Further interpreting sub-clause (2) of Article
342A, it is submitted that use of expression
352
“Central List” in sub-clause (2) is only to refer
the list specified by the notification in sub-clause
(1) of Article 342A and expression Central List has
been used in the above context.
400. Elaborating the argument, it is further
contended that the definition given in the Article
366(26C) which provides that socially and
educationally backward classes means such backward
classes as are so deemed under Article 342A for the
purposes of this Constitution, the use of the
expression “for the purposes of this Constitution”
clearly means that it is for Articles 15 and 16
also, the list which is referred to under Article
342A has to be utilised. The definition under
Article 366(26C) does not contemplate any other list
apart from list under Article 342A.
401. In contra with above interpretation put by the
petitioner, learned Attorney General and learned
counsel for the State submit that the Constitutional
provision is to be interpreted as per the intention
353
of the Parliament and Parliament having never
intended to take away the power of the State to
identify backward classes in the State for the
purpose of employment in the State, Article 342A
cannot be read in a manner as claimed by the
appellants. The use of expression “Central List”
under sub-clause (2) of Article 342A is decisive
since the Parliament clearly intended to confine the
list as contemplated by Article 342A(1) as a Central
List for the purposes of employment in the Central
Government services and Central Government
organisations.
402. Primarily the language employed in a statute
and the Constitutional provision is determinative
factor of legislative intention. The legislative
intention opens two clues. Firstly, meaning of the
word in the provision and secondly, the purpose and
object pervading through the statutes. It is well
settled that primary rule of construction is that
the intention of the legislation must be found in
the words used by the Legislature itself. This Court
354
apart from the above well settled principles of
statutory interpretation has laid down some further
rules of interpretation to interpret the
constitutional provision. We may profitably refer to
a Constitution Bench judgment of this Court in State
(NCT) of Delhi vs. Union of India and another,
2018(8) SCC 501. The Constitution Bench in the above
case had occasion to interpret the Constitutional
provision of Article 239AA which was inserted by
Constitution (Sixty Ninth Amendment) Act, 1991. The
Constitution Bench of this Court interpreted Article
239-AA by referring to principles of the
constitutional objectivity, federal functionalism,
democracy and pragmatic federalism. Justice Dipak
Misra, CJ, speaking for himself, A.K. Sikri and A.M.
Khanwilkar, JJ., laid down that although, primarily,
it is a literal rule which is considered to be the
norm while interpreting statutory and constitutional
provisions, yet mere allegiance to the dictionary or
literal meaning of words contained in the
provisions, sometimes, does not serve the purpose of
355
a living document. In paragraph 135 following was
laid down:
“135. The task of interpreting an
instrument as dynamic as the Constitution
assumes great import in a democracy. The
constitutional courts are entrusted with
the critical task of expounding the
provisions of the Constitution and further
while carrying out this essential
function, they are duty-bound to ensure
and preserve the rights and liberties of
the citizens without disturbing the very
fundamental principles which form the
foundational base of the Constitution.
Although, primarily, it is the literal
rule which is considered to be the norm
which governs the courts of law while
interpreting statutory and constitutional
provisions, yet mere allegiance to the
dictionary or literal meaning of words
contained in the provision may, sometimes,
annihilate the quality of poignant
flexibility and requisite societal
progressive adjustability. Such an
approach may not eventually subserve the
purpose of a living document.”
403. The Constitution Bench further observed that a
theory of purposive interpretation has gained
importance where the Courts shall interpret the
Constitution in the purposive manner so as to give
effect to its intention. In paragraphs 149, 150, 155
and 156 following was laid down:
356
“149. Having stated the principles
relating to constitutional interpretation
we, as presently advised, think it apt to
devote some space to purposive
interpretation in the context, for we
shall refer to the said facet for
understanding the core controversy. It
needs no special emphasis that the
reference to some precedents has to be in
juxtaposition with other concepts and
principles. As it can be gathered from the
discussion as well as the authorities
cited above, the literal rule is not to be
the primary guiding factor in interpreting
a constitutional provision, especially if
the resultant outcome would not serve the
fructification of the rights and values
expressed in the Constitution. In this
scenario, the theory of purposive
interpretation has gained importance where
the courts shall interpret the
Constitution in a purposive manner so as
to give effect to its true intention. The
Judicial Committee in Attorney General of
Trinidad and Tobago v. Whiteman [Attorney
General of Trinidad and
Tobago v. Whiteman, (1991) 2 AC 240 :
(1991) 2 WLR 1200 (PC)] has observed: (AC
p. 247)
“The language of a Constitution falls
to be construed, not in a narrow and
legalistic way, but broadly and
purposively, so as to give effect to its
spirit.…”
150. In S.R. Chaudhuri v. State of
Punjab [S.R. Chaudhuri v. State of Punjab,
(2001) 7 SCC 126] , a three-Judge Bench
has opined that constitutional provisions
357
are required to be understood and
interpreted with an object-oriented
approach and a Constitution must not be
construed in a narrow and pedantic sense.
The Court, while holding that the
Constituent Assembly Debates can be taken
aid of, observed the following: (SCC p.
142, para 33)
“33. … The words used may be general
in terms but, their full import and
true meaning, has to be appreciated
considering the true context in which
the same are used and the purpose which
they seek to achieve.”
(emphasis supplied)
155. The emphasis on context while
interpreting constitutional provisions has
burgeoned this shift from the literal rule
to the purposive method in order that the
provisions do not remain static and rigid.
The words assume different incarnations to
adapt themselves to the current demands as
and when the need arises. The House of
Lords in R. (Quintavalle) v. Secy. of
State for Health [R.
(Quintavalle) v. Secy. of State for
Health, (2003) 2 AC 687 : (2003) 2 WLR 692
: 2003 UKHL 13 (HL)] ruled: (AC p. 700,
para 21)
“21. … The pendulum has swung towards
purposive methods of construction. This
change was not initiated by the
teleological approach of European
Community jurisprudence, and the
influence of European legal culture
generally, but it has been accelerated
by European ideas: see, however, a
358
classic early statement of the purposive
approach by Lord Blackburn in River
Wear Commissioners v. Adamson[River
Wear Commissioners v. Adamson, (1877) LR
2 AC 743, at p. 763 (HL)] . In any
event, nowadays the shift towards
purposive interpretation is not in
doubt. The qualification is that the
degree of liberality permitted is
influenced by the context.…”
(emphasis supplied)
156. Emphasising on the importance of
determining the purpose and object of a
provision, Learned Hand, J.
in Cabell v. Markham [Cabell v. Markham,
148 F 2d 737 (2d Cir 1945)] enunciated:
“Of course it is true that the words
used, even in their literal sense, are
the primary, and ordinarily the most
reliable, source of interpreting the
meaning of any writing: be it a statute,
a contract, or anything else. But it is
one of the surest indexes of a mature
and developed jurisprudence not to make
a fortress out of the dictionary; but to
remember that statutes always have some
purpose or object to accomplish, whose
sympathetic and imaginative discovery is
the surest guide to their meaning.”
404. The shift from literal rule to purposive and
objective interpretation of a constitutional
document is adopted since the Constitution is not to
be interpreted in static and rigid manner, the
359
Constitution is an organic and living document which
needs to be interpreted with cardinal principals and
objectives of the Constitution. The shift from
literal to purposive method of interpretation has
been now more and more, being adopted for
interpreting a constitutional document. The
Constitution Bench in State (NCT of Delhi) case
(supra) has also noticed one more principle which is
to be applied for interpretation of a constitutional
document that is constitutional culture and
pragmatism. In paragraphs 165, 166 and 169
following was held:
“165. The constitutional courts, while
interpreting the constitutional
provisions, have to take into account the
constitutional culture, bearing in mind
its flexible and evolving nature, so that
the provisions are given a meaning which
reflect the object and purpose of the
Constitution.
166. History reveals that in order to
promote and nurture this spirit of
constitutional culture, the courts have
adopted a pragmatic approach of
interpretation which has ushered in an era
of “constitutional pragmatism”.
169. Further, the Court also highlighted
that a balance between idealism and
pragmatism is inevitable in order to
create a workable situation ruling out any
absurdity that may arise while adopting
either one of the approaches: (Supreme
Court Advocates-on-Record Assn.
case [Supreme Court Advocates-on-Record
Assn. v. Union of India, (2016) 5 SCC 1] ,
SCC pp. 320-31 & 611, paras 145 & 766)
“145. … ‘468. The rule of law envisages
the area of discretion to be the minimum,
requiring only the application of known
principles or guidelines to ensure nonarbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring
discretion upon high functionaries and,
whenever feasible, introducing the element
of plurality by requiring a collective
decision, are further checks against
arbitrariness. This is how idealism and
pragmatism are reconciled and
Integrated to make the system workable in
a satisfactory manner.’ [Ed.: As observed
in Supreme Court Advocates-on-Record
Assn. v. Union of India, (1993) 4 SCC 441,
p. 699, para 468.]
* * *
766. It is this pragmatic
interpretation of the Constitution that
was postulated by the Constituent
Assembly, which did not feel the
necessity of filling up every detail in
the document, as indeed it was not
possible to do so.””
405. Justice Dipak Misra in the Constitution Bench
further laid down in paragraph 284.11:
“284.11. In the light of the contemporary
issues, the purposive method has gained
importance over the literal approach and the
constitutional courts, with the vision to
realise the true and ultimate purpose of the
Constitution not only in letter but also in
spirit and armed with the tools of ingenuity
and creativity, must not shy away from
performing this foremost duty to achieve
constitutional functionalism by adopting a
pragmatic approach. It is, in a way,
exposition of judicial sensibility to the
functionalism of the Constitution which we
call constitutional pragmatism. The spirit
and conscience of the Constitution should not
be lost in grammar and the popular will of
the people which has its legitimacy in a
democratic set-up cannot be allowed to lose
its purpose in simple semantics.”
406. In the above judgment the Constitution Bench
laid down that the purposive method has gained
importance over the literal approach. One of us
(Justice Ashok Bhushan) while delivering a
concurring judgment in the Constitution Bench
judgment of State (NCT of Delhi) (supra) has also
laid down that the Constitutional interpretation has
to be purposive taking into consideration the need
of time and constitutional principles. It was
further held that the intent of Constitution Framers
and object and purpose of Constitutional amendment
always throw light on the Constitutional provisions.
Following was laid down in paragraph 537:
“537. From the above discussions, it is
apparent that constitutional interpretation
has to be purposive taking into consideration
the need of time and constitutional
principles. The intent of Constitution
Framers and object and purpose of
constitutional amendment always throw light
on the constitutional provisions but for
interpreting a particular constitutional
provision, the constitutional scheme and the
express language employed cannot be given a
go-by. The purpose and intent of the
constitutional provisions have to be found
from the very constitutional provisions which
are up for interpretation. We, thus, while
interpreting Article 239-AA have to keep in
mind the purpose and object for which the
Sixty-ninth Constitution (Amendment) Act,
1991 was brought into force. After noticing
the above principles, we now proceed further
to examine the nature and content of the
constitutional provisions.”
407. We may also notice a seven-Judge Bench judgment
of this Court on principles of interpretation of
Constitution. In Abhiram Singh vs. C.C.
Commachen(Dead) By Legal Representatives and others,
(2017) 2 SCC 629, Justice Madan B. Lokur, with whom
Justice T.S. Thakur, CJ and Justice S.A. Bobde,
concurred noticed the conflict between a literal
interpretation or purposive interpretation. It was
held that interpretation has, therefore, to consider
not only the context of the law but the context in
which the law is enacted. Justice Lokur extracted
Bennion on Statutory Interpretation in paragraph 38
to the following effect:
“38. In Bennion on Statutory
Interpretation[6th Edn. (Indian Reprint) p.
847] it is said that:
“General judicial adoption of the term
“purposive construction” is recent, but the
concept is not new. Viscount Dilhorne,
citing Coke, said that while it is now
fashionable to talk of a purposive
construction of a statute the need for such
a construction has been recognized since
the seventeenth century. [Stock v. Frank
Jones (Tipton) Ltd., (1978) 1 WLR 231 at p.
234] In fact the recognition goes
considerable further back than that. The
difficulties over statutory interpretation
belong to the language, and there is
unlikely to
be anything very novel or recent about
their solution … Little has changed over
problems of verbal meaning since the Barons
of the Exchequer arrived at their famous
resolution in Heydon case [Heydon Case,
(1584) 3 Co Rep 7a : 76 ER 637] .
Legislation is still about remedying what
is thought to be a defect in the law. Even
the most “progressive” legislator,
concerned to implement some wholly normal
concept of social justice, would be
constrained to admit that if the existing
law accommodated the notion there would be
no need to change it. No legal need that is
….”
408. Approving the purposive construction the Court
also held that a pragmatic view is required to be
taken and the law interpreted purposefully. In
paragraph 39 following was observed:
“39. We see no reason to take a
different view. Ordinarily, if a statute is
well drafted and debated in Parliament
there is little or no need to adopt any
interpretation other than a literal
interpretation of the statute. However, in
a welfare State like ours, what is intended
for the benefit of the people is not fully
reflected in the text of a statute. In such
legislations, a pragmatic view is required
to be taken and the law interpreted
purposefully and realistically so that the
benefit reaches the masses. …”
409. Justice T.S. Thakur delivering his concurring
opinion in paragraph 74 held that an interpretation
which has the effect of diluting the constitutional
objective should be avoided and the purpose of the
constitution be kept in mind. In paragraphs 74, 76
and 77 following was observed:
“74. The upshot of the above discussion
clearly is that under the constitutional
scheme mixing religion with State power is
not permissible while freedom to practice,
profess and propagate religion of one's
choice is guaranteed. The State being
secular in character will not identify
itself with any one of the religions or
religious denominations. This necessarily
implies that religion will not play any
role in the governance of the country which
must at all times be secular in nature. The
elections to the State Legislature or to
Parliament or for that matter or any other
body in the State is a secular exercise
just as the functions of the elected
representatives must be secular in both
outlook and practice. Suffice it to say
that the constitutional ethos forbids
mixing of religions or religious
considerations with the secular functions
of the State. This necessarily implies that
interpretation of any statute must not
offend the fundamental mandate under the
Constitution. An interpretation which has
the effect of eroding or diluting the
constitutional objective of keeping the
State and its activities free from
religious considerations, therefore, must
be avoided. This Court has in several
pronouncements ruled that while
interpreting an enactment, the Courts
should remain cognizant of the
constitutional goals and the purpose of the
Act and interpret the provisions
accordingly.
76. Extending the above principle further
one can say that if two constructions of a
statute were possible, one that promotes the
constitutional objective ought to be
preferred over the other that does not do so.
77. To somewhat similar effect is the
decision of this Court in State of
Karnataka v. Appa Balu Ingale[State of
Karnataka v. Appa Balu Ingale, 1995 Supp (4)
SCC 469 : 1994 SCC (Cri) 1762] wherein this
Court held that as the vehicle of
transforming the nation's life, the Court
should respond to the nation's need and
interpret the law with pragmatism to further
public welfare and to make the constitutional
animations a reality. The Court held that
Judges should be cognizant of the
constitutional goals and remind themselves of
the purpose of the Act while interpreting
any legislation. The Court said: (SCC p. 486,
para 35)
“35. The Judges, therefore, should
respond to the human situations to meet
the felt necessities of the time and
social needs, make meaningful the right
to life and give effect to the
Constitution and the will of the
legislature. This Court as the vehicle of
transforming the nation's life should
respond to the nation's needs and
interpret the law with pragmatism to
further public welfare to make the
constitutional animations a reality.
Common sense has always served in the
court's ceaseless striving as a voice of
reason to maintain the blend of change
and continuity of order which is sine qua
non for stability in the process of
change in a parliamentary democracy. In
interpreting the Act, the Judge should be
cognizant to and always keep at the back
of his/her mind the constitutional goals
and the purpose of the Act and interpret
the provisions of the Act in the light
thus shed to annihilate untouchability;
to accord to the Dalits and the Tribes
right to equality; give social
integration a fruition and make
fraternity a reality.””
410. Applying the above principles laid down by the
Constitution Benches of this Court on interpretation
of a Constitution, in the fact of the present case,
we need to discern the intention of Parliament in
inserting Article 342A. We have already found that
reports of the Parliamentary Committee and the
statement made by the Minister while moving the Bill
are relevant aids for a construction of
constitutional provision. The Parliamentary
Committee report makes it clear that after obtaining
the clarification from the Ministry that the
Constitutional Amendment is not intended to take
away the right of identification of backward class
from a State. It submitted its report to the effect
that rights of State Backward Classes Commission
shall continue unhindered. The Parliamentary
Standing Committee further noticed that the list
which is contemplated under Article 342A is only
Central List of the backward classes for a
particular State for the purposes of services under
the Government of India and its organizations.
411. We have further noticed the statement of
Minister of Social, Justice and Empowerment, made
both in Rajya Sabha and Lok Sabha. The Minister
stated the task of preparing list of the State of
the Backward Classes is taken by the State
Commission and the amendment shall have no effect on
the right of the State and State Backward Classes
Commission to identify the backward classes. We have
extracted above the relevant statement of Minister
in the foregoing paragraphs.
412. We may further notice that the above statement
was made by the Minister of Social Justice and
Empowerment in the background of several members of
the Parliament expressing their apprehension that
the Constitution 102nd Amendment shall take away
rights of the States to identify backward classes in
each State. The Minister of Social Justice and
Empowerment for allaying their apprehension made a
categorical statement that the Constitutional
Amendment shall not affect the power of the State,
the State Backward Classes Commission to identify
the backward classes in the State.
413. Learned Attorney General for India in his
submission has referred to the statement of Minister
of Social Justice and Empowerment as well as
Parliamentary Select Committee report and has
emphasised that the Parliamentary intention was
never to take away the rights of the States to
identify backward classes in their respective
States. Learned Attorney General has referred to and
relied on the Union's stand taken in Writ Petition
(C) No.12 of 2021-Dinesh B. vs. Union of India &
Ors., where the stand of the Union on the
Constitution (102nd Amendment) Act, 2018 was made
clear in paragraph 11. We extract paragraph 11 of
the above affidavit relied by the learned Attorney
General which is to the following effect:
"11.That, from the above, it is evident
that the power to identify and specify the
SEBCs lies with Parliament, only with
reference to the Central List of SEBCs. The
State Governments may have their separate
State Lists of SEBCs for the purpose of
providing reservation in recruitment to
State Government services or admission in
State Government educational institutions.
The castes/communities included in such
State Lists of SEBCs may differ from the
castes/communities included in the Central
List of SEBCs. It is submitted that the
inclusion or exclusion of any caste or
community in the State List of SEBCs is the
subject of the concerned State Government
and the Government of India has no role in
the matter.”
414. It is, thus, clear as sun light that
Parliamentary intention discernible from Select
Committee report and statement of Ministry of Social
Justice and Empowerment is that the intention of the
Parliament for bringing Constitutional amendment was
not to take away the power of the State to identify
backward class in the State.
415. The Parliamentary intention was further
discernible that the list which was contemplated to
be issued by President under Article 342A was only
the Central List which was to govern the services
under the Government of India and organisations
under the Government of India. When the
Parliamentary intention is discernable and
admissible as aid to statutory interpretation, we
see no reason not to interpret Article 342A in
manner as per the intention of the Parliament
noticed above.
416. We also need to reflect on the submission of
petitioner that the scheme under Article 342A has to
be interpreted in accordance with already existing
scheme under Articles 341 and 342. There is no doubt
that the Constitutional scheme under Article 342A
(1) and those of Article 341(1) and 342(1) are same
but there is a vast difference between the list of
SC and ST as contemplated by Articles 341 and 342 of
those of backward classes which now is contemplated
under Article 342A.
417. The concept of Scheduled Castes was well known
even before the enforcement of the Constitution.
There was already Scheduled Castes list in existence
when the Constitution was enforced. We may refer to
Government of India Act, 1935, Schedule (1),
paragraph 26 which defines the Scheduled Castes in
the following words:
“26.-(1) In the foregoing provisions of
this Schedule the following expressions
have the meanings hereby assigned to them,
that is to say:-
“…… …… …
“the scheduled castes" means such
castes, races or tribes or parts of or
groups within castes, races or tribes,
being castes, races, tribes, parts or
groups which appear to His Majesty in
Council to correspond to the classes of
persons formerly known as "the depressed
classes", as His Majesty in Council may
specify; and…”
418. The Government of India has also issued a
Scheduled Castes List under the Government of India
Scheduled Castes Order 1936. The Constitution
framers were, thus, well aware with the concept of
Scheduled Casts and Scheduled Tribes and hence the
same scheme regarding SC was continued in the
Constitution by way of Article 341 of the
Constitution.
419. The expression 'backward class' does not find
place in the Government of India Act, 1935. The
Constitution framers recognising that backward
classes of citizens need affirmative action by the
State to bring them in the main stream of the
society has engrafted a special provision for
backward classes. Under Article 16(4) the State was
empowered to make any provision for reservation of
appointment or posts in favour of any backward class
of citizens not adequately represented in services.
When the Constitution empowers the State to make any
provision, the provision may embrace all aspects of
measures including identification of the backward
classes. The Constitution Bench of this Court in
Indra Sawhney has accepted and recognised this
position. It is both the States and Union who are
entitled to identify backward classes of citizens
and to take measures. Indra Sawhney had, thus,
issued directions to Union as well as States to
constitute permanent body for identification and for
taking necessary measures. The power to identify the
backward classes was with the State and there are no
intentions that the power of the State as occurring
in Articles 15(4) and 16(4) in any manner has been
taken away by the Constitutional amendment. The
power given to the State under Articles 15(4) and
16(4) are for the benefit of backward classes of
citizens. Any limitation or limitation of such power
cannot be readily inferred and has to be expressly
provided by the Constitution. The submission of the
petitioner that Article 342A which relates to
socially and educationally backward class should be
read in the Constitutional scheme as delineated
under Articles 341 and 342, thus, cannot be
accepted.
420. Now, we come to the expression “Central List”
as occurring in Article 342A (2). In pursuance of
the direction issued by the Constitution Bench of
this Court in Indra Sawhney, the Parliament has
enacted the National Commission for Backward Classes
Act, 1993. Section 2(c) of the Act defines 'lists'
in the following words:
“Section 2(c) “lists” means lists
prepared by the Government of India from
time to time for purposes of making
provision for the reservation of
appointments or posts in favour of backward
classes of citizens which, in the opinion
of that Government, are not adequately
represented in the services under the
Government of India and any local or other
authority within the territory of India or
under the control of the Government of
India;”
421. Section 9 of the Act defines the functions of
the Commission. Section 9 provides as follows:
“9. Functions of the Commission.–(1) The
Commission shall examine requests for
inclusion of any class of citizens as a
backward class in the lists and hear
complaints of over-inclusion or underinclusion of any backward class in such
lists and tender such advice to the Central
Government as it deems appropriate.
(2) The advice of the Commission shall
ordinarily be binding upon the Central
Government.”
422. The National Commission for Backward Classes
Act, 1993 clearly indicates that the Parliamentary
enactment was related to services under the
Government of India and the Act, 1993 was not to
govern or regulate identification of backward
classes by the concerned State. The States had also
enacted “State Legislation” constituting Backward
Classes Commission. In the State of Maharashtra,
Maharashtra State Backward Classes Commission, act
was enacted in 2005. Along with passing of the
Constitution 102nd Amendment, the National Commission
for Backward Classes (Repeal) Act, 2018 was passed
which received the assent of the President of India
on 14.08.2018. We may notice Section 2 of the Repeal
Act which is to the following effect:
"Section2.(1) The National Commission for
Backward Classes Act, 1993 is hereby
repealed and the National Commission for
Backward Classes constituted under subsection (1) of section 3 of the said Act
shall stand dissolved.
(2) The repeal of the National
Commission for Backward Classes Act, 1993
shall, however, not effect,--
(i) the previous operation of the Act
so repealed or anything duly done or
suffered thereunder; or
(ii) any right, privilege, obligation
or liability acquired, accrued or
incurred under the Act so repealed, or
(iii) any penalty, confiscation or
punishment
incurred in respect of any contravention
under the Act so repealed; or
(iv) any proceedings or remedy in
respect of any such right, privilege,
obligation, liability, penalty,
confiscation or punishment as aforesaid,
and any such proceeding or remedy may be
instituted, continued or enforced, and
any such penalty, confiscation or
punishment may be imposed or made as if
that Act had not been repealed.
(3)... … … …”
423. The National Commission for Backward Classes by
the Constitutional 102nd Amendment was, thus, given
constitutional status which was available to the
Commission which as a statutory Commission under
1993 enactment.
The Parliamentary Select Committee report dated
17.07.2017 and the Minutes of the Parliamentary
Standing Committee as referred to and extracted
above indicates that it was well known that there
are two lists of Backward Classes, one “Central
List” and other ”State List”. During the
Parliamentary Committee report it was clarified and
expressed that Constitutional amendment is only with
regard to “Central List” which expression was
expressly included in sub-clause (2) of Article
342A.
424. We may also look into the use of expression
“Central List” under Article 342A in contradiction
to the words, “list of Scheduled Castes”, “list of
Scheduled Tribes” as occurring in Articles 341(2)
and 342(2) which are to following effect:
“341.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 may be.
342.Scheduled Tribes.-(1)The President
may with respect to any State or Union
territory, and where it is a State, after
consultation with the Governor thereof, by
public notification, specify the tribes or
tribal communities or parts of or groups
within tribes or tribal communities which
shall for the purposes of this Constitution
be deemed to be Scheduled Tribes in
relation to that State or Union territory,
as the case may be.”
425. Article 341(1) uses expression 'Scheduled
Castes' and the same expression finds place in subclause (2) when the sub-clause (2) of the Article
uses expression “list of Scheduled Castes” specified
in notification. Similarly, Article 342(2) also uses
expression 'list of Scheduled Tribes' specified in
the notification.
426. Article 342A(2) uses an extra word “Central”
before the expression 'List' of socially and
educationally backward classes. If it is to be
accepted that the constitutional scheme of Articles
341 and 342 was to be followed and carried in
Article 342A also, the same expression, which was
necessary to be used i.e. “list of socially and
educationally backward classes” which use would have
been in line of the expression occurring in Article
341(2) and 342(2). It is, thus, clear that an extra
word, namely, 'Central' has been added in Article
342(2) before the expression 'list of socially and
educationally backward classes'. When the statute or
Constitution uses an additional word it has to be
presumed that the use of additional word is for a
purpose and object and it is not superfluous or
redundant.
427. While interpreting a constitutional provision,
no word shall be treated as superfluous and
redundant. We have noticed above that the list for
services in the Government of India was Central List
which was being prepared prior to the Constitution
Amendment, under Act, 1993.
428. We may also deal with the submission of the
petitioner that the word 'Central List' was used in
sub-clause (2) of Article 342A to refer the public
notification specifying the socially educationally
backward classes issued by the President of India
under sub-clause (1). The expression “list of
socially and educationally backward classes'
specified in notification under sub-clause (1) is
already there under sub-clause (2) which clearly
meant and referred to notification issued under subclause (1), hence, there was no necessity for use of
an additional word 'Central' in sub-clause (1) which
was wholly superfluous and redundant. We are of the
view that the word 'Central' was used for a purpose
and object, the use of the 'Central' was only with
the intent to limit the list issued by the President
to Central services. Sub-clause (1) of Article 342
and sub-clause (2) of Article 342A has to be given
harmonious construction and we read both the
Articles together to find out purpose and intent of
the list issued by the President under sub-clause
(1). It is the 'Central List' which could be amended
by the Parliament by exercising power under subclause (2) of Article 342A.
429. A question may be asked that when under 1993
Act “Central List” was prepared by Government of
India and the “State list” was prepared by States,
what was the necessity to bring the 102nd
Constitutional Amendment if the same regime of two
lists i.e. “Central list” and “State list” was to
continue? For answering the question we first look
into the 1993 Act to understand the nature of
exercise undertaken under the Act regarding “Central
List” and change in the exercise, if any, after 102nd
Constitutional Amendment.
430. We have already noticed Section 2(c) and 9 of
1993 Act. We may also notice Section 11 of 1993 Act
which provides: -
“11. Periodic revision of lists by the
Central Government.–(1) The Central
Government may at any time, and shall, at
the expiration of ten years from the coming
into force of this Act and every succeeding
period of ten years thereafter, undertake
revision of the lists with a view to
excluding from such lists those classes who
have ceased to be backward classes or for
including in such lists new backward
classes. (2) The Central Government shall,
while undertaking any revision referred to
in sub-section (1), consult the
Commission.”
431. Section 2(c), 9 and 11 makes it clear that list
prepared by the Central Government from time to time
for reservation of appointments or posts in favour
of backward classes in the services under the
Government of India and any local or other
authority, within the territory of India or under
the control of Government of India was an statutory
exercise of the Government of India under the 1993
Act. All the lists which were issued after 1993 Act
by the Government of India were by executive orders
issued from time to time. For what purpose, 102nd
Constitutional Amendment was made? Answer is not for
to seek.
432. Under the Government of India Act, 1935, the
list of “the Scheduled Castes” was to be specified
by His Majesty in Council as per clause 26 of
Schedule I of the Government of India Act, 1935,
which was also an executive function. The legal
regime of the list of Scheduled caste saw a sea
change under the Constitution of India as reflected
in Article 341 and 342. What was the change brought
by Constitution of India regarding the list of
Scheduled Caste can be well understood when we look
into the debates of the Constituent Assembly on
Draft Articles 300A and 300B which corresponds to
Articles 341 and 342 of the Constitution of India.
433. Dr. B.R. Ambedkar moving the Amendment briefly
outlined the object and purpose of the
Constitutional provisions in debates dated
17.09.1949 in 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.”
434. The main object of the Constitutional provision
was to “eliminate any kind of political factors
having a play in the matter of the disturbance in
the Scheduled so published by the President.”
435. We have to read the same objective for change
of the statutory regime of backward class under 1993
Act into Constitutional regime by Article 342A. To
eliminate any kind of political factor to play with
regard to list of backward class issued by
Government of India from time to time under 1993
Act, the Constitution Amendment was brought as was
brought by Constituent Assembly by Draft Article 341
and 342. Now, by virtue of Article 342A, the list
once issued by the President under Article 342A(1)
cannot be tinkered with except by way of
Parliamentary enactment. Thus, the above was the
objective of the Constitutional Amendment and not
the taking away the power of the States to identify
the Backward Class in State with regard to
reservation for employment in the State services and
reservation in educational institution in the
States. A laudable objective of keeping away
political pressure in amending the list of Backward
class issued by President once has been achieved,
hence, it cannot be said that the 102nd
Constitutional Amendment was without any purpose if
the power of State to identify Backward classes in
their State was to remain as it is.
436. The above also sufficiently explain the stand
taken by Minister of Social Justice and Empowerment
on the floor of House. The Minister clarified that
the Constitutional Amendment is not to take away the
power of the State to identify the Backward Classes
in the State for purposes of the State and was
confined to “Central List” which was being prepared
by the Government of India as in earlier regime.
Learned Attorney General in his submission
forcefully carried the same stand regarding
interpretation of Article 342A. We see no reason to
reject the submission of learned Attorney General
for India and learned senior counsel appearing for
the States that the 102nd Constitutional Amendment
was not intended to take away the power of the State
regarding identification of Backward Class for
services in the State or educational institutions in
the State.
437. We also need to reflect on definition of
socially and educationally backward classes as
occurring in Article 366(26C). Article 366 is the
definition clause of the Constitution. Article 366
begins with the following effect:
“366. Definition in this Constitution,
unless the context otherwise requires, the
following expressions have as, the meanings
hereby respectively assigned to them, .....”
‘(26C) "socially and educationally
backward classes" means such backward
classes as are so deemed under article 342A
for the purposes of this Constitution;’.”
438. When we look into the definition as inserted by
Article 366(26C), it is clear that definition
provides that socially and educationally backward
class means such backward classes as are deemed
under Article 342A for the purposes of this
Constitution. When we have interpreted Article 342A
to mean that Article 342A refers to 'Central List'
which is prepared for services under the Government
of India and organisations under the Government of
India, the definition given under Article 366(26C)
which specifically refer to Article 342A has to be
read together and list of backward classes which is
not Central List shall not be governed by the
definition under Article 366(26C). Since, the 26C
has been inserted in the context of Article 342A, if
the context is list prepared by the State and it is
State List, definition under (26C) shall not govern.
Article 366(26C), thus, has to be read contextually
with Article 342A and for no other purpose.
439. The interpretation which we have put on Article
342A is in full accord with intention of the framers
of the Constitution. Dr. B.R. Ambedkar in the
Constituent Assembly had said that a backward
community is to be determined by each local
Government. The determination, i.e., identification
of the backward classes was, thus, left to the local
Government as was clearly and categorically stated
by Dr. Ambedkar in the Constituent Assembly debates.
It is most relevant for the present discussion to
quote the exact words used by Dr. Ambedkar while
answering the debate on draft sub-clause, Article
10(3) which is Article 16(4) of the present
Constitution:
"Somebody asked me: “What is a backward
community”? Well, I think anyone who reads
the language of the draft itself will find
that we have left it to be determined by each
local Government. A backward community is a
community which is backward in the opinion of
the Government.”
440. The framers of the Constitution, thus, had
contemplated that determination of backward class as
occurring in draft Article 10(3), i.e, present
Article 16(4) is to be done by the local Government.
The constitutional scheme, thus, was framed in
accordance with the above background. After the
Constitution, it is for the last 68 years backward
class was being identified by the respective State
Governments and they were preparing their respective
lists and granting reservation under Articles 15(4)
and 16(4) as per their decision. The Constitution
Bench of Indra Sawhney did recognise and held that
each State Government is fully competent to identify
backward classes and this is why the Indra Sawhney
directed for appointment of a permanent body both by
the Union as well as by the State and consequently
Commissions were constituted National Backward
Classes Commission and State Backward Classes
Commission. To reverse the entire constitutional
scheme regarding identification of backward classes
by the State which was continuing in the last 68
years, a clear and explicit Constitutional
Amendment, was necessary. There is no express
indication in the 102nd Constitutional Amendment that
the power of the State is being taken away for
identification of the backward classes.
441. We are not persuaded to interpret Article 342A
against the intention of the Parliament which is
reflected in the Parliamentary Committee report and
the statement made by the Minister on the floor of
the House. The statement of the Minister on the
floor of the House was clear and categorical, we
cannot put an interpretation which was never
intended by the Parliament and which may have
serious consequences with the rights of the States
which neither Parliament intended nor wanted to
bring. We, thus, hold that Article 342A was brought
by Constitution 102nd Amendment to give
constitutional status to National Backward Classes
Commission and for publication of list by the
President of socially and educationally backward
classes which was to be Central List for governing
employment under Government of India and the
organisations under it. The expression 'Central
List' used in sub-clause (2) of Article 342A has
been used for the purpose and object which cannot be
ignored nor lost sight. The definition clause under
Article 366(26C) has to be read contextually with
Article 366(26C) which is referred under Article
366(2C) itself. Thus, the definition is relevant in
the context of 'Central List' and the definition is
not governing to list prepared by the State which
was not under contemplation in Article 342A.
442. We do not find any merit in the challenge to
the Constitution 102nd Amendment. The Constitution
102nd Amendment does not violate any basic feature of
the Constitution. The argument of the learned
counsel for the petitioner is that Article 368 has
not been followed since the Constitution 102nd
Amendment was not ratified by the necessary majority
of the State. The Parliament never intended to take
the rights of the State regarding identification of
backward classes, the Constitution 102nd Amendment
was not covered by Proviso to Article 368 sub-clause
(2), hence, the same did not require any
ratification. The argument of procedural violation
in passing the 102nd Constitutional Amendment cannot
also be accepted. We uphold the Constitution 102nd
Amendment interpreted in the manner as above.
443. The High Court in the impugned judgment has
correctly interpreted the Constitution 102nd
Amendment and the opinion of the High Court that the
Constitution 102nd Amendment does not take away the
legislative competence of Maharashtra Legislature is
correct and we approve the same.
(15)Conclusions.
444. From our foregoing discussion and finding we
arrive at following conclusions:
(1) The greatest common measure of agreement in
six separate judgments delivered in Indra
Sawhney is:
(i)Reservation under Article 16(4) should not
exceed 50%.
(ii)For exceeding reservation beyond 50%,
extra-ordinary circumstances as indicated
in paragraph 810 of Justice Jeevan Reddy
should exist for which extreme caution is
to be exercised.
(2) The 50% rule spoken in Balaji and affirmed
in Indra Sawhney is to fulfill the objective of
equality as engrafted in Article 14 of which
Articles 15 and 16 are facets. 50% is
reasonable and it is to attain the object of
equality. To change the 50% limit is to have a
society which is not founded on equality but
based on caste rule.
(3) We are of the considered opinion that the
cap on percentage of reservation as has been
laid down by Constitution Bench in Indra Sawhney
is with the object of striking a balance between
the rights under Article 15(1) and 15(4) as well
as Articles 16(1) and 16(4) . The cap on
percentage is to achieve principle of equality
and with the object to strike a balance which
cannot be said to be arbitrary or unreasonable.
(4) Providing reservation for advancement of
any socially and educationally backward class in
public services is not the only means and method
for improving the welfare of backward class. The
State ought to bring other measures including
providing educational facilities to the members
of backward class free of cost giving concession
in fee, providing opportunities for skill
development to enable the candidates from the
backward class to be self-reliant.
(5) There can be no quarrel that society
changes, law changes, people changes but that
does not mean that something which is good and
proven to be beneficial in maintaining equality
in the society should also be changed in the
name of change alone.
(6) When the Constitution Bench in Indra
Sawhney held that 50% is upper limit of
reservation under Article 16(4), it is the law
which is binding under Article 141 and to be
implemented.
(7) We find that the Constitution Bench judgment
in Indra Sawhney is also fully applicable in
reference to Article 15(4) of the Constitution
of India.
(8) The setting aside of 50% ceiling by elevenJudge Bench in T.M.A. Pai Foundation case as was
laid down by St. Stephen’s case i.e. 50% ceiling
in admission in aided Minority Instructions has
no bearing on the principle of 50% ceiling laid
down by Indra Sawhney with respect to
reservation. The judgment of T.M.A. Pai was in
reference to rights of minority under Article 30
and is not relevant for Reservation under
Articles 16(4) and 15(4) of the Constitution.
(9) The Constitution (Eighty-first Amendment)
Act, 2000 by which sub-clause (4B) was inserted
in Article 16 makes it clear that ceiling of 50%
“has now received constitutional recognition”.
(10) We fully endorse the submission of Shri
Rohtagi that extraordinary situations indicated
in paragraph 810 were only illustrative and
cannot be said to be exhaustive. We however do
not agree with Mr. Rohtagi that paragraph 810
provided only a geographical test. The use of
expression “on being out of the main stream of
national life”, is a social test, which also
needs to be fulfilled for a case to be covered
by exception.
(11) We do not find any substance in any of the
10 grounds urged by Shri Rohatgi and Shri Kapil
Sibal for revisiting and referring the judgment
of Indra Sawhney to a larger Bench.
(12) What was held by the Constitution Bench in
Indra Sawhney on the relevance and significance
of the principle of stare decisis clearly binds
us. The judgment of Indra Sawhney has stood the
test of the time and has never been doubted by
any judgment of this Court. The Constitution
Bench judgment of this Court in Indra Sawhney
neither needs to be revisited nor referred to a
larger Bench for consideration.
(13) The Constitution Bench in M. Nagaraj does
not contain any ratio that ceiling of 50%
reservation may be exceeded by showing
quantifiable contemporary data relating to
backwardness. The Commission has completely
misread the ratio of the judgment, when the
Commission took the view that on the
quantifiable data ceiling of 50% can be
breached.
(14) The Commission and the High Court found
existence of the extra-ordinary situations with
regard to exceeding 50% ceiling in respect to
grant of separate reservation to Maratha because
the population of backward class is 80% and
reservation limit is only 50%, containing the
Maratha in pre-existing reservation for OBC
shall not be justice to them, which
circumstances is not covered under the para
meters indicated in Indra Sawhney’s case as
extra-ordinary circumstance to breach 50%
ceiling.
(15) We have found that no extraordinary
circumstances were made out in granting separate
reservation of Maratha Community by exceeding
the 50 per cent ceiling limit of reservation.
The Act, 2018 violates the principle of equality
as enshrined in Article 16. The exceeding of
ceiling limit without there being any extra-ordinary circumstances clearly violates Article
14 and 16 of the Constitution which makes the
enactment ultra vires.
(16) The proposition is well settled that
Commissions’ reports are to be looked into with
deference. However, one of the parameter of
scrutiny of Commission’s report as approved by
this Court is that on the basis of data and
materials referred to in the report whether
conclusions arrived by the Commission are
justified.
(17) The measures taken under Article 15(4) and
16(4) can be examined as to whether they violate
any constitutional principle, and are in
conformity with the rights under Article 14, 15
and 16 of the Constitution. The scrutiny of
measures taken by the State, either executive or
legislative, thus, has to pass test of the
constitutional scrutiny.
(18) The word ‘adequate’ is a relative term used
in relation to representation of different caste
and communities in public employment. The
objective of Article 16(4) is that backward
class should also be put in main stream to
enable to share power of the State by
affirmative action. To be part of public
service, as accepted by the Society of today, is
to attain social status and play a role in
governance.
(19) We have examined the issues regarding
representation of Marathas in State services on
the basis of facts and materials compiling by
Commission and obtained from States and other
sources. The representation of Marathas in
public services in Grade A, B, C and D comes to
33.23%, 29.03%, 37.06% and 36.53% computed from
out of the open category filled posts, is
adequate and satisfactory representation of
Maratha community. One community bagging such
number of posts in public services is a matter
of pride for the community and its
representation in no manner can be said to not
adequate in public services.
(20) The Constitution pre-condition for
providing reservation as mandated by Article
16(4) is that the backward class is not
adequately represented in the public services.
The Commission labored under misconception that
unless Maratha community is not represented
equivalent to its proportion, it is not
adequately represented.
Indra Sawhney has categorically held that what
is required by the State for providing
reservation under Article 16(4) is not
proportionate representation but adequate
representation.
(21) The constitutional precondition as mandated
by Article 16(4) being not fulfilled with regard
to Maratha class, both the Gaikwad Commission’s
report and consequential legislation are
unsustainable.
(22) We having disapproved the grant of
reservation under Article 16(4) to Maratha
community, the said decision becomes relevant
and shall certainly have effect on the decision
of the Commission holding Maratha to be socially
and educationally backward. Sufficient and
adequate representation of Maratha community in
public services is indicator that they are not
socially and educationally backward.
From the facts and figures as noted by
Gaikwad Commission in its report regarding
representation of Marathas in public services,
the percentage of Marathas in admission to
Engineering, Medical Colleges and other
disciplines, their representation in higher
academic posts, we are of the view that
conclusion drawn by the Commission is not
supportable from the data collected. The data
collected and tabled by the Commission as noted
in the report clearly proves that Marathas are
not socially and educationally backward class.
(23) The elementary principle of interpreting
the Constitution or statute is to look into the
words used in the statute, when the language is
clear, the intention of the Legislature is to
be gathered from the language used. The aid to
interpretation is resorted to only when there
is some ambiguity in words or expression used
in the statute. The rule of harmonious
construction, the rule of reading of the
provisions together as also rule of giving
effect to the purpose of the statute, and few
other principles of interpretation are called
in question when aids to construction are
necessary in particular context.
(24)The shift from literal rule to purposive
and objective interpretation of a
constitutional document is adopted since the
Constitution is not to be interpreted in static
and rigid manner, the Constitution is an
organic and living document which needs to be
interpreted with cardinal principals and
objectives of the Constitution. The shift from
literal to purposive method of interpretation
has been now more and more, being adopted for
interpreting a constitutional document.
(25)The law is well settled in this county that
Parliamentary Committee reports including speech
given by the Minister in the Parliament are
relevant materials to ascertain the intention of
Parliament while construing constitutional
provisions.
(26) We are of the considered opinion that the
consultation by the State on all policy matters
affecting the socially and educationally
backward classes is now mandatory as per subclause(9) of Article 338B which mandatory
requirement cannot be by-passed by any State
while the State takes any major policy decision.
Sub-clause (9) of Article 338B uses the
expression ‘consultation’. It is true that the
expression ‘consultation’ is not to be read as
concurrence but the ‘consultation’ has to be
effective and meaningful. The object of
consultation is that ‘consultee’ shall place the
relevant material before person from whom
‘consultation’ is asked for and advice and
opinion given by consulting authority shall
guide the authority who has asked for
consultation.
(27) It is, thus, clear as sun light that
Parliamentary intention discernible from Select
Committee report and statement of Minister of
Social Justice and Empowerment is that the
intention of the Parliament for bringing
Constitutional amendment was not to take away
the power of the State to identify backward
class in the State.
(28) When the Parliamentary intention is
discernable and admissible as aid to statutory
interpretation, we see no reason not to
interpret Article 342A in manner as per the
intention of the Parliament noticed above.
(29) We are of the view that word ‘Central’ in
Article 342A (2) was used for purpose and
object. The use of ‘Central’ was only with the
intent to limit the list issued by the President
to Central services. It is well settled rule of
interpretation that no word in a statute or
Constitution is used without any purpose. Word
‘Central’ has to be given meaning and purpose.
(30) When we have interpreted Article 342A to
mean that Article 342A refers to 'Central List'
which is prepared for services under the
Government of India and organisations under the
Government of India, the definition given under
Article 366(26C) which specifically refer to
Article 342A has to be read together and list of
backward classes which is not Central List shall
not be governed by the definition under Article
366(26C). Since, the (26C) has been inserted in
the context of Article 342A, if the context is
list prepared by the State and it is State List,
definition under (26C) shall not govern.
(31) We, thus, hold that Article 342A was
brought by Constitution 102nd Amendment to give
constitutional status to National Backward
Classes Commission and for publication of list
by the President of socially and educationally
backward classes which was to be Central List
for governing employment under Government of
India and the organisations under it.
(32) The Constitution 102nd Amendment Act, 2018
does not violate any basic feature of the
Constitution. We uphold the constitutional
validity of Constitution (One Hundred and second
Amendment) Act, 2018.
(16)O R D E R
In view of the foregoing discussions and
conclusions, we decide all the Civil Appeals and
Writ Petitions in this batch of cases in following
manner:
(1) C.A.No.3123 of 2020 and other civil appeals
challenging the impugned judgment of the High
Court dated 27.06.2019 are allowed. The impugned judgment of the High Court dated
27.06.2019 is set aside. The writ petitions
filed by the appellants in the High Court
are allowed with following effect:
(a) Section 2(j) of the Act, 2018 insofar as
it declares Maratha community Educationally and Socially Backward Category is
held to be ultra vires to the Constitution and struck down.
(b) Section 4(1)(a) of Act, 2018 as amended
by Act, 2019 insofar as it grants
reservation under Article 15(4) to the
extent of 12% of total seats in
educational institutions including private institutions whether aided or unaided by the State, other than minority
educational institutions, is declared
ultra vires to the Constitution and
struck down.
(c) Section 4(1)(b) of Act, 2018 as amended
by Act, 2019 granting reservation of 13%
to the Maratha community of the total
appointments in direct recruitment in
public services and posts under the
State, is held to be ultra vires to the
Constitution and struck down.
(d) That admissions insofar as Postgraduate
Medical Courses which were already held
not to affect by order dated 09.09.2020,
which shall not be affected by this
judgment. Hence, those students who have
already been admitted in Postgraduate
Medical Courses prior to 09.09.2020
shall be allowed to continue.
(e) The admissions in different courses,
Medical, Engineering and other streams
which were completed after the judgment
of the High Court dated 27.06.2019 till
09.09.2020 are saved. Similarly, all the
appointments made to the members of the
Maratha community in public services after the judgment of the High Court dated
27.06.2019 till order passed by this
Court on 09.09.2020 are saved. However, no further benefit can be claimed
by such Maratha students admitted in
different course or Maratha students who
were appointed in public services in the
State under Act, 2018.
(f) After the order was passed on 09.09.2020
neither any admission can be taken in
the educational institutions nor any appointment can be made in public services
and posts in accordance with Act, 2018.
(2) The Writ Petition (C)No.914 of 2020, Writ
Petition (C)No.915 of 2020, Writ Petition
(C)No.504 of 2020 filed under Article 32 of
the Constitution are disposed of as per above
directions.
(3) Writ Petition No.938 of 2020 challenging the
Constitutional validity of Constitution 102nd
Amendment Act, 2018 is dismissed in view of
the interpretation of Constitution 102nd
Amendment Act, 2018 as above.
445. Before we close, we record our indebtedness to
learned counsel who appeared in these cases and
enlightened us with regard to issues involved in
this batch of appeals and writ petitions which are
of seminal importance both for constitutional law as
well as for the society in general. All the learned
counsel apart from oral submissions have submitted
their excellent brief written notes touching various
issues which were sought to be canvassed by them
before this Court, which rendered valuable
assistance to us.
446. Parties shall bear their own costs.
………………………………………………J.
(ASHOK BHUSHAN)
………………………………………………J.
(S. ABDUL NAZEER)
New Delhi,
May 05, 2021.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
Civil Appeal No. 3123 of 2020
Dr. Jaishri Laxmanrao Patil …. Appellant (s)
Versus
The Chief Minister & Anr. .... Respondent(s)
With
Civil Appeal No. 3124 of 2020
Civil Appeal No .3133 of 2020
Civil Appeal No .3134 of 2020
Civil Appeal No .3131 of 2020
Civil Appeal No .3129 of 2020
W.P.(C) No .915 of 2020
W.P.(C) No .504 of 2020
W.P.(C) No .914 of 2020
Civil Appeal No .3127 of 2020
Civil Appeal No .3126 of 2020
Civil Appeal No .3125 of 2020
Civil Appeal No .3128 of 2020
Civil Appeal No .3130 of 2020
W.P.(C) No .938 of 2020
J U D G M E N T
L. NAGESWARA RAO, J.
1. I have carefully gone through the erudite and scholarly
opinions of Justice Ashok Bhushan and Justice S. Ravindra Bhat. So
far as the question Nos.1, 2 and 3 are concerned, they are in unison.
There is a difference of opinion in relation to question Nos. 4, 5
1 | Page
and 6. I am in agreement with the opinion of Justice Ashok
Bhushan in respect of question Nos.1, 2 and 3. As these issues
have been dealt with exhaustively by Justice Ashok Bhushan, I
do not have anything further to add.
2. Question Nos.4, 5 and 6 pertain to the interpretation of
Article 342 A of the Constitution of India. On these questions,
I am unable to persuade myself to accept the conclusion
reached by Justice Ashok Bhushan. I agree with the
denouement of the judgment of Justice S. Ravindra Bhat on
issue Nos.4, 5 and 6.
3. In view of the cleavage of opinion on the interpretation
of Article 342 A of the Constitution, it is my duty to give
reasons for my views in accord with the judgment of Justice S.
Ravindra Bhat. In proceeding to do so, I am not delving into
those aspects which have been dealt with by him.
4. Article 342 A which falls for interpretation is as follows: -
342 A. Socially and educationally backward
classes. — (1) The President may with respect to any
State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public
notification, specify the socially and educationally
backward classes which shall for the purposes of this
Constitution be deemed to be socially and educationally
2 | Page
backward classes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from
the Central List of socially and educationally backward
classes specified in a notification issued under clause
(1) any socially and educationally backward class, but
save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent
notification.
5. Article 366 (26 C) which is also relevant is as under: -
366. Definitions. Unless the context otherwise
requires, the following expressions have the
meanings hereby respectively assigned to them,
that is to say—
xx xx xx xx xx
[(26C) ―socially and educationally backward classes
means such backward classes as are so deemed under
article 342 A for the purposes of this Constitution;]
6. Before embarking upon the exercise of construing the
above Articles, it is necessary to refer to the cardinal
principles of interpretation of the Constitution. Constitution is
intended to endure for ages to come, and, consequently to be
adapted to the various crises of human affairs. We must not
forget that it is the Constitution we are expounding1
. The
Constitution is a living and organic document which requires
to be construed broadly and liberally. I am reminded of
1 McCulloch v. Maryland, 17 U.S. 316 (1819)
3 | Page
the word of caution by Benjamin Cardozo who said that “a
Judge is not a knight errant roaming at will in pursuit of his
own ideal of beauty or of goodness. Judge is not to innovate
at pleasure”.2
Rules which are applied to the interpretation of
other statutes, apply to the interpretation of the
Constitution3
. It may be desirable to give a broad and
generous construction to the constitutional provisions, but
while doing so the rule of “plain meaning” or “literal”
interpretation, which remains “the primary rule”, has also to
be kept in mind. In fact, the rule of “literal construction” is
the safe rule even while interpreting the Constitution unless
the language used is contradictory, ambiguous, or leads
really to absurd results4
. The duty of the judicature is to act
upon the true intention of the legislature, the mens or
sententia legis. (See: G. Narayanaswami v. G.
Pannerselvam5
, South Asia Industries Private Ltd v. S.
Sarup Singh and others
6
, Institute of Chartered
Accountants of India v. Price Waterhouse
7
and J.P.
Bansal v. State of Rajasthan
8
). The first and primary rule
2 Benjamin Cardozo, the Nature of Judicial Process, (New Haven: Yale University Press,
13th Edn., 1946), 141.
3 Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
1938
4 Kuldip Nayar v. Union of India, (2006) 7 SCC 1
5 (1972) 3 SCC 717
6 1965 SCR (3) 829
7 (1997) 6 SCC 312
8 (2003) 5 SCC 134
4 | Page
of construction is that the intention of the legislature must be
found in the words used by the legislature itself9
. Oliver
Wendell Holmes Jr. has famously said in a letter, “I do not care
what their intention was. I only want to know what the words
mean.”10
If the language of the meaning of the statute is
plain, there is no need for construction as legislative intention
is revealed by the apparent meaning11. Legislative intent
must be primarily ascertained from the language used in
statute itself.
12
7. In his book Purposive Interpretation in Law,
13 Aharon
Barak says that constitutional language like the language of
any legal text plays a dual role. On the one hand, it sets the
limits of interpretation. The language of the Constitution is
not clay in the hands of the interpreter, to be molded as he or
she sees fit. A Constitution is neither a metaphor nor a nonbinding recommendation. On the other hand, the language
of the Constitution is a source for its purpose. There are
other sources, to be sure, but constitutional language is an
important and highly credible source of information. The fact
9 Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 (1) SCR 360
10 Cited in Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia
Law Review, Vol. 47, No. 4, 527-546 (1947), 538.
11 Adams Express Company v. Commonwealth of Kentucky, 238 US 190 (1915)
12 United States v. Goldenberg, 168 US 95 (1897)
13 Aharon Barak, Purposive Interpretation in Law, (Sari Bashi transl.), (Princeton:
Princeton University Press, 2005).
5 | Page
that we may learn the purpose of a Constitution from sources
external to it does not mean that we can give a Constitution a
meaning that is inconsistent with its explicit or implicit
language. Interpretation cannot create a new constitutional
text. Talk of Judges amending the Constitution through their
interpretation of the Constitution is just a metaphor. The
claim that a constitutional text limits but does not command
is true only for the limited number of cases in which, after
exhausting all interpretive tools, we can still extract more
than one legal meaning from the constitutional language and
must therefore leave the final decision to judicial discretion.
In these exceptional cases, language provides a general
direction but does not draw a precise map of how to reach
the destination. Usually, however, constitutional language
sets not only the limits of interpretation, but also its specific
content.14
8. It is a cardinal principle applicable to all kinds of
statutes that you may not for any reason attach to a
statutory provision a meaning which the words of that
provision cannot reasonably bear. If they are capable of more
than one meaning, then you can choose between these
14 Id, 374-375.
6 | Page
meanings, but beyond that the Court must not go.15
Lord
Parker, CJ observed in R. v. Oakes
16
there is no ground for
reading in words according to what may be ‘the supposed
intention of Parliament’.
9. Justice Ashok Bhushan in his opinion at para 346 rightly
held that the elementary principle of interpreting the
Constitution or a statute is to look into the words used in the
statute and when the language is clear, the intention of the
legislature is to be gathered from the language used. He
further opined that aid to interpretation is resorted to only
when there is some ambiguity in words or expression used in
the statute. Justice Bhushan in State (NCT of Delhi) v.
Union of India
17 held that the constitutional interpretation
has to be purposive taking into consideration the need of the
times and constitutional principles. The intent of framers of
the Constitution and object and purpose of constitutional
amendment always throw light on the constitutional
provisions but for interpreting a particular constitutional
provision, the constitutional scheme and the express
language employed cannot be given a go-by. He further held
that the purpose and intent of the constitutional provisions
15 Jones v D.P.P. [1962] AC. 635
16 [1959] 2 Q.B. 350
17 (2018) 8 SCC 501
7 | Page
have to be found from the very constitutional provisions
which are up for interpretation.
10. In the 183rd Report of the Law Commission of India,
Justice M. Jagannadha Rao observed that a statute is a will of
legislature conveyed in the form of text. It is well settled
principle of law that as a statute is an edict of the legislature,
the conventional way of interpreting or construing the statute
is to see the intent of the legislature. The intention of
legislature assimilates two aspects. One aspect carries the
concept of ‘meaning’ i.e. what the word means and another
aspect conveys the concept of ‘purpose’ and ‘object’ or
‘reason’ or ‘approach’ pervading through the statute. The
process of construction, therefore, combines both liberal and
purposive approaches. However, necessity of interpretation
would arise only where a language of the statutory provision
is ambiguous, not clear or where two views are possible or
where the provision gives a different meaning defeating the
object of the statute. He supported his view by referring to
two judgments of this Court in R.S. Nayak v. A.R. Antulay
18
and Grasim Industries Ltd. v. Collector of Customs,
Bombay
19
. It was held in R.S. Nayak (supra) that the
18 (1984) 2 SCC 183
19 (2002) 4 SCC 297
8 | Page
plainest duty of the Court is to give effect to the natural
meaning of the words used in the provision if the words of the
statute are clear and unambiguous.
11. The words of a statute, when there is a doubt about
their meaning, are to be understood in the sense in which
they best harmonise between the subject of the enactment
and the object which the legislature has used. Their meaning
is found not so much in a strictly grammatical or etymological
propriety of language, nor even in its popular use, as in the
subject or in the occasion on which they are used, and the
object to be attained.20
12. It is a recognised rule of interpretation of statutes that
the expressions used therein should ordinarily be understood
in a sense in which they best harmonise with the object of the
statute, and which effectuate the object of the legislature21
.
However, the object-oriented approach cannot be carried to
the extent of doing violence to the plain language used by rewriting the section or structure words in place of the actual
words used by the legislature22. The logical corollary that
flows from the judicial pronouncements and opinion of
20 Workmen of Dimakuchi Tea Estate v Managenment of Dimakuchi Tea Estate, 1958
SCR 1156
21 M/s New India Sugar Mills Ltd v. Commissioner of Sales Tax, Bihar 1963 SCR Supl.
(2) 459
22 C. I. T v. N. C. Budharaja and Co. 1994 SCC Supl. (1) 280
9 | Page
reputed authors is that the primary rule of construction is
literal construction. If there is no ambiguity in the provision
which is being construed there is no need to look beyond.
Legislative intent which is crucial for understanding the
object and purpose of a provision should be gathered from
the language. The purpose can be gathered from external
sources but any meaning inconsistent with the explicit or
implicit language cannot be given.
13. In Aron Soloman v. Soloman & Co.
23
the House of
Lords observed that the intention of legislature is a ‘slippery
phrase’. What the legislature intended can be legitimately
ascertained from that which it has chosen to enact, either in
express words or by reasonable and necessary implication. A
construction which furthers the purpose or object of an
enactment is described as purposive construction. A
purposive construction of an enactment is one which gives
effect to the legislative purpose by (a) following the literal
meaning of the enactment where that meaning is in
accordance with the legislative purpose or (b) applying a
strained meaning where the literal meaning is not in
accordance with the legislative purpose.24
If that is the case,
23 1897 AC 22
24 Bennion on Statutory Interpretation, Fifth Edition Pg. 944
10 | Page
there is no gainsaying that purposive interpretation based on
the literal meaning of the enactment must be preferred.
14. In case of ambiguity this Court has adopted purposive
interpretation of statutory provisions by applying rule of
purposive construction. In the instant case, the deliberations
before the Select Committee and its report and Parliamentary
Debates were relied upon by the Respondents in their support
to asseverate that the object of Article 342 A is to the effect
that the power of the State legislature to identify socially and
educationally backward classes is not taken away. Ergo,
Article 342 A requires to be interpreted accordingly.
15. The exclusionary rule by which the historical facts of
legislation were not taken into account for the purpose of
interpreting a legislation was given a decent burial by the
House of Lords in Pepper (Inspector of Taxes) v Hart
25
.
In Kalpana Mehta and Ors. v. Union of India and Ors.
26
,
a five Judge Bench of this Court held that the Parliamentary
Standing Committee report can be taken as an aid of for the
purpose of interpretation of a statutory provision. Wherever
the reliance on such reports is necessary, they can be used
for assisting the court in gathering historical facts. In accord
25 1993 AC 593
26 (2018) 7 SCC 1
11 | Page
with the said judgment, the deliberations of the report of the
Select Committee can be utilised as an extrinsic aid for
interpretation of Article 342 A, in case there is any ambiguity
in the provision.
16. In R v. DPP ex-parte Duckenfield
27
, Laws, CJ,
cautioned about the great dangers in treating government
pronouncements, however, helpful, as an aid to statutory
construction. In Black-Clawson International Ltd.
28
taking
the opinion of a minister, or an official or a committee, as to
the intended meaning in particular application of a clause or
a phrase was held to be stunting of the law and not a healthy
development. The crucial consideration when dealing with
enacting historical materials is the possibility that Parliament
changed its mind, or for some reason departed from it29. In
Letang v. Cooper
30
it was held that enacting history must
be inspected with great care and caution. As an indication of
legislative intention, it is very far behind the actual words of
the Act. While setting out the relevant portions of the report
of the Select Committee, Justice Bhat pointed out that the
report reflected the opinions of both sides before concluding
27 [1999] 2 All ER 873
28 1975 AC 591
29 Assam Railways and Trading Co Ltd v. Inland Revenue, 1935 AC 445
30 [1965] 1 QB 232
12 | Page
that the concern of the States will be considered in
accordance with the procedure under Article 341 & Article
342. There is no doubt that the Minister was assuaging the
concerns of the Members by stating that the power of the
States to identify backward classes is not being disturbed. I
am convinced that there is no reason to depart from the text
which is in clear terms and rely upon the legislative history to
construe Article 342 A contrary to the language. I am not
persuaded to agree with the submissions of the learned
Attorney General and the other counsel for the States that
Article 342 A has to be interpreted in light of the Select
Committee report and discussion in the Parliament, especially
when the legislative language is clear and unambiguous.
17. Where the Court is unable to find out the purpose of an
enactment, or is doubtful as to its purposes, the Court is
unlikely to depart from the literal meaning31. There is no
dispute that the statement of objects and reasons do not
indicate the purpose for which Article 342 A was inserted.
During the course of the detailed hearing of these matters,
we repeatedly probed from counsel representing both sides
about the purpose for inserting Article 342 A in the
Constitution. No satisfactory answer was forthcoming. In
31 Section 309, Bennion on Statutory Interpretation, 5th Edition.
13 | Page
spite of our best efforts, we could not unearth the reason for
introduction of Article 342 A. As the purpose is not clear,
literal construction of Article 342 A should be resorted to.
18. Craies culled out the following principles of
interpretation of legislation: -
1. Legislation is always to be understood first in
accordance with its plain meaning.
2. Where the plain meaning is in doubt, the Courts will
start the process of construction by attempting to
discover, from the provisions enacted, to the broad
purpose of the legislation.
3. Where a particular reading would advance the purpose
identified, and would do no violence to the plain
meaning of the provisions enacted, the Courts will be
prepared to adopt that reading.
4. Where a particular reading would advance the purpose
identified but would strain the plain meaning of the
provisions enacted, the result will depend on the
context and, in particular, on a balance of the clarity of
the purpose identified and the degree of strain on the
language.
14 | Page
5. Where the Courts concluded that the underlined
purpose of the legislation is insufficiently plain, or
cannot be advanced without an unacceptable degree of
violence to the language used, they will be obligated,
however regretfully in the circumstances of the
particular case, to leave to the legislature the task of
extending or modifying the legislation32
.
19. To ascertain the plain meaning of the legislative
language, we proceed to construe Article 342 A of the
Constitution of India. Article 342 A was inserted in the
Constitution by the Constitution (102nd Amendment) Act,
2017. A plain reading of Article 342 A (1) would disclose that
the President shall specify the socially and educationally
backward classes by a public notification after consultation
with the Governor. Those specified as socially and
educationally backward classes in the notification shall be
deemed to be socially and educationally backward classes in
relation to that State or Union Territory for the purposes of
the Constitution. Article 342 A (2) provides that inclusion or
exclusion from the list of socially and educationally backward
classes specified in the notification under Article 342 A (1)
32 Craies on Legislation, 9th Edition Pg. 643
15 | Page
can be only done by law made by the Parliament. The word
‘Central list’ used in Article 342 A (1) had given rise to
conflicting interpretations. Article 366 deals with definitions.
Sub-Article 26 (C) was inserted in Article 366 of the
Constitution by the Constitution (102nd Amendment) Act,
2017 according to which, socially and educationally backward
classes shall mean such backward classes as are so deemed
under Article 342 A for the purposes of the Constitution. The
use of words ‘means’ indicates that the definition is a hardand-fast definition, and no other meaning can be assigned to
the expression that is put down in definition. (See: Gough
v. Gough, (1891) 2 QB 665, Punjab Land Development
and Reclamation Corporation Ltd. v. Presiding Officer,
Labour Court (1990) 3 SCC 682 and P. Kasilingam v.
P.S.G. College of Technology, 1995 SCC Supl. (2) 348.)
When a definition clause is defined to “mean” such and such,
the definition is prima facie restrictive and exhaustive.33
20. The legislature can define its own language and
prescribe rules for its construction which will generally be
binding on the Courts34. Article 366 (26) (c) makes it clear
that, it is only those backward classes as are so deemed
33 Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755
34 Collins v. Texas, 223 U.S. 288
16 | Page
under Article 342 A which shall be considered as socially and
educationally backward classes for the purposes of the
Constitution and none else. No other class can claim to
belong to ‘socially and educationally backward classes’ for
the purposes of the Constitution, except those backward
classes as are so deemed under Article 342 A of the
Constitution.
21. This Court in Sudha Rani Garg v. Jagdish Kumar
35
dealt with the word ‘deemed’ in the following manner: -
“The word ‘deemed’ is sometimes used to impose for
the purposes of a statute an artificial construction of a
word or phrase that would not otherwise prevail.
Sometimes it is used to put beyond doubt a particular
construction that might otherwise be certain.
Sometimes it is used to give a comprehensive
description that includes what is obvious, what is
uncertain and what is, in the ordinary sense,
impossible".
22. Lord Asquith in East End Dwellings Co. Ltd v.
Finsbury Borough Council
36
held that, “if one is bidden to
treat imaginary state of affairs as real, one must surely,
unless prohibited from doing so, also imagine as real the
consequences and incidents which, if the putative state of
35 (2004) 8 SCC 329
36 [1952] AC 109
17 | Page
affairs had in fact existed, must inevitably have flowed from it
or accompanied it. The use of the word ‘deemed’ in the
definition clause as well as in Article 342 A puts it beyond
doubt that it is only those backward classes which are
specified in the notification that may be issued by the
President, who can claim to be socially and educationally
backward classes for the purposes of the Constitution.
23. There is no equivocacy in the legislative language used
in Article 342 A. The ordinary meaning that flows from a
simple reading of Article 342 A is that the President after
consultation with the Governor of a State or Union Territory
may issue a public notification specifying socially and
educationally backward classes. It is those socially and
educationally backward classes who shall be deemed as
socially and educationally backward classes in relation to that
State or Union Territory for the purposes of the Constitution.
There is no obscurity in Article 342 A (1) and it is crystal clear
that there shall be one list of socially and educationally
backward classes which may be issued by the President.
Restricting the operation of a list to be issued under Article
342 A (1) as not being applicable to States can be done only
by reading words which are not there in the provision.
18 | Page
According to Aharon Barak, “the structure of the Constitution
can be given implicit meaning to what is written between the
lines of the text, but it cannot add lines to the text. To do so
would be to fill a gap or lacuna, using interpretative
doctrines”.
37 There is no reason for reading Article 342 A (1)
in any other manner except, according to the plain legal
meaning of the legislative language. The words ‘Central list’
is used in Article 342 A (2) have created some controversy in
construing Article 342 A. To find out the exact connotation of
a word in a statute, we must look to the context in which it is
used38
. No words have an absolute meaning, no words can
be defined in vacuo, or without reference to some context39
.
Finally, the famous words of Justice Oliver Wendell Holmes Jr.
“the word is not a crystal transparent and unchanged; it is a
skin of a living thought and may vary in colour and content
according to the circumstances and the time in which it is
used”.
40
24. Article 342 A (2) provides that inclusion or exclusion
from Central list of socially and educationally backward
classes specified in a notification issued under Sub-Clause 1
37 Barak supra, 374.
38 Nyadar Singh v. Union of India 1988 4 SCC 170
39 Professor HA Smith cited in Union of India v. Sankalchand Himmat Lal Seth [1977) 4
SCC 193
40 Towne v. Eisner, 245 U.S. 425 (1918)
19 | Page
can be done only by the Parliament. A plain reading of the
provision can lead to the following deduction: -
a. There is a notification issued by the President
under clause (1).
b. The notification specifies socially and
educationally backward classes.
c. Inclusion or exclusion can be done only by law
made by the Parliament.
d. Save otherwise, the notification shall not be varied
by any subsequent notification.
e. The list notified is referred to as “Central list”.
25. I find it difficult to agree with the submissions made on
behalf of the Respondents that the use of words ‘central list’
would restrict the scope and amplitude of the notification to
be issued under Article 342 A (1). There is only one list that
can be issued by the President specifying the socially and
educationally backward classes and only those classes are
treated as socially and educationally backward classes for the
purposes of the Constitution. Taking cue from the National
Commission for Backward Classes Act, 1993, the
Respondents argued that the words ‘Central list’ is with
reference only to appointments to Central services and
admission in Central educational institutions. Reading
20 | Page
‘Central list’ in that manner would be curtailing the width of
Article 342 A (1). If so read, the sweep of Sub-Clause (1) shall
be minimized. Moreover, to achieve the said meaning, words
which are not in Article 342 A (1) have to be read into it.
Contextually, the words Central list in Article 342 A (2) can be
only with reference to the list contained in the notification
which may be issued under Article 342 A (1). It is well settled
law that the provisions of the Constitution have to be
harmoniously construed and it is apparent from Article 342 A
(1) and (2) that there is no scope for any list of socially and
educationally backward classes, other than the list to be
notified by the President. As the other expressions ‘for the
purposes of the Constitution’ and ‘unless the context
otherwise requires’ have been dealt with by Justice Bhat, I
have nothing more to add to the construction placed by him
on the said expressions. To avoid any confusion, I endorse
the conclusion of Justice Ashok Bhushan on question Nos. 1, 2
and 3 and the final order proposed in Para No. 444 of his
judgment. Insofar as question Nos. 4, 5 and 6 are
concerned, I am in agreement with the opinion of Justice S.
Ravindra Bhat.
26. A conspectus of the above discussion would be that
only those backward classes included in the public
21 | Page
notification under Article 342 A shall be socially and
educationally backward classes for the purposes of the
Constitution.
.....................................J.
[ L. NAGESWARA RAO ]
New Delhi,
May 05, 2021
22 | Page
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 3123 OF 2020
DR. JAISHRI LAXMANRAO PATIL .....APPELLANT(S)
VERSUS
THE CHIEF MINISTER AND ORS. .....RESPONDENT(S)
WITH
CIVIL APPEAL NO. 3124 OF 2020
CIVIL APPEAL NO. 3133 OF 2020
CIVIL APPEAL NO. 3134 OF 2020
CIVIL APPEAL NO. 3131 OF 2020
CIVIL APPEAL NO. 3129 OF 2020
WRIT PETITION (C) NO. 915 OF 2020
WRIT PETITION (C) NO. 504 OF 2020
WRIT PETITION (C) NO. 914 OF 2020
CIVIL APPEAL NO. 3127 OF 2020
CIVIL APPEAL NO. 3126 OF 2020
CIVIL APPEAL NO. 3125 OF 2020
CIVIL APPEAL NO. 3128 OF 2020
CIVIL APPEAL NO. 3130 OF 2020
WRIT PETITION (C) NO. 938 OF 2020
1
J U D G M E N T
HEMANT GUPTA, J.
I have gone through the judgments authored by learned Hon’ble Shri
Ashok Bhushan, J., Hon’ble Shri S. Ravindra Bhat, J. and also the order
authored by Hon’ble Shri L. Nageswara Rao, J. I am in agreement with the
reasoning and the conclusion on the Question Nos. 1, 2 and 3 in the
judgment rendered by Hon’ble Shri Ashok Bhushan, J., as well as additional
reasons recorded by Hon’ble Shri S. Ravindra Bhat, J. and by Hon’ble Shri
L. Nageswara Rao, J.
I entirely agree with the reasoning and the conclusions in the
Judgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. and
Hon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
May 5, 2021.
2
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 3123/2020
JAISHRI LAXMANRAO PATIL ...APPELLANT(S)
VERSUS
THE CHIEF MINISTER & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 3124/2020
CIVIL APPEAL NO. 3133/2020
CIVIL APPEAL NO. 3134/2020
CIVIL APPEAL NO. 3131/2020
CIVIL APPEAL NO. 3129/2020
WRIT PETITION (C) NO. 915/2020
WRIT PETITION (C) NO. 504/2020
WRIT PETITION (C) NO. 914/2020
CIVIL APPEAL NO. 3127/2020
CIVIL APPEAL NO. 3126/2020
CIVIL APPEAL NO. 3125/2020
2
CIVIL APPEAL NO. 3128/2020
CIVIL APPEAL NO. 3130/2020
WRIT PETITION (C) NO. 938/2020
J U D G M E N T
S. RAVINDRA BHAT, J.
1. Franklin D. Roosevelt, the great American leader, once said that “The test of
our progress is not whether we add more to the abundance of those who have
much; it is whether we provide enough for those who have too little.”In these batch
of appeals arising from a common judgment of the Bombay High Court1
, this court
is called to adjudicate upon the extent to which reservations are permissible by the
state, the correctness of its approach in designating a community2
as a “Backward
Class” for the purposes of the Constitution, and, by an enactment3
(hereafter
referred to as “the SEBC Act”) defining who could benefit from, and the extent of
reservations that could be made in various state established facilities and
educational institutions, and in the public services of the State of Maharashtra.
A Brief Prelude
1In WP No 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and connected batch of cases.
2The Maratha community (hereafter “the Marathas”).
3Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for
appointments in the public services and posts under the State (for Socially and Educationally Backward Classes)
SEBC Act, 2018 i.e., Maharashtra Act No. LXII of 2018 (for short ‘SEBC Act’).
3
2. Dr. Babasaheb Ambedkar, when he spoke on November 25, 1949, in the
Constituent Assembly of India at the time of the adoption of the Constitution,
presciently said:
“From January 26, 1950, onwards we are going to enter into a life of
contradictions. In politics, we will have equality, one man, one vote,
one vote and one value. In society and economy, we will still have
inequality. In our social and economic life, we shall, by reason of our
social and economic structure, continue to deny the principle of one
man-one value.”
3. The quest for one person, one value, of true equality, and of fraternity of
Indians, where caste, race, gender, and religion are irrelevant, has produced mixed
results. As long as there is no true equality, of opportunity, of access, and of the
true worth of human beings, and as long as the world is “broken up into fragments
by narrow domestic walls”4
the quest remains incomplete. The present judgment is
part of an ongoing debate, which every generation of Indians has to grapple with,
and this court confront, at different points in time.
4. The Maratha community, in the State of Maharashtra repeatedly sought
reservations through diverse nature of demands through public meetings, marches
etc, by members of the community. It also led to representatives and organizations
of the community taking the demands to the streets, resulting in the State of
Maharashtra promulgating an Ordinance for the first time in the year 2014, which
granted reservation to the community in public employment and in the field of
education. Later, the Ordinance was given the shape of an Act5
, which was
challenged before the Bombay High Court.6
The court, after considering the rival
submissions, including the arguments of the state stayed the operation of the
enactment. The State Government then set up a backward class commission to
4Rabindranath Tagore’s Gitanjali, Verse 35.
5Maharashtra Act No. I of 2015.
6In Writ Petition No. 3151/2014.
4
ascertain the social and educational status of the community. Initially, the
commission was headed by Justice S. B. Mhase. His demise led to the appointment
of Justice MG Gaikwad (Retired) as chairperson of the commission; it comprised
of 10 other members.The Committee headed by Justice Gaikwad was thus
reconstituted on 3rd November, 2017. By its report dated 13.11.2018 (the Gaikwad
Commission Report)7
, the Commission, on the basis of the surveys and studies it
commissioned, and the analysis of the data collected during its proceedings,
recommended that the Maratha class of citizens be declared as a Socially and
Educationally Backward Class (“SEBC” hereafter). This soon led to the enactment
of the SEBC Act, giving effect to the recommendations of the Gaikwad
Commission, resulting in reservation to the extent of 16% in favour of that
community; consequently, the aggregate reservations exceeded 50%.
5. The SEBC Act was brought into force on 30th November, 2018. Close on its
heels a spate of writ petitions was filed before the Bombay High Court,
challenging the identification of Marathas as SEBCs, the conclusions of the
Commission, which culminated in its adoption by the State of Maharashtra and
enactment of the SEBC Act, the quantum of reservations, and the provisions of the
Act itself, on diverse grounds. All writ petitions were clubbed together and
considered. By the impugned judgment, the High Court turned down the challenge
and upheld the identification of Marathas as SEBCs, and further upheld the reasons
presented before it, that extraordinary circumstances existed, warranting the breach
of the 50% mark, which was held to be the outer limit in the nine-judge decision of
this court in Indra Sawhney v. Union of India8
(hereafter variously “Indra
Sawhney” or “Sawhney”).
6. The special leave petitions, filed against the impugned judgment, were
heard, and eventually, leave granted. Some writ petitions too were filed,
7Report of the Committee, page 10.
8Indra Sawhney v Union of India 1992 Supp (3) SCC 217.
5
challenging provisions of the SEBC Act. The validity of the Constitution (102nd)
Amendment Act9
too is the subject matter of challenge, on the ground that it
violates the basic structure, or essential features of the Constitution.10A Bench of
three judges, after hearing counsel for the parties, referred the issues arising from
these batch of petitions and appeals, to a Constitution bench, for consideration, as
important questions arising for interpretation
7. The five-judge bench, by its order dated 08.03.2021, referred the following
points, for decision:
(1) Whether judgment in case of Indra Sawhney v. Union of India [1992
Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look
by the larger bench in the light of subsequent Constitutional Amendments,
judgments and changed social dynamics of the society etc.?
(2) Whether Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the public
services and posts under the State) for Socially and Educationally Backward
Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13%
reservation for Maratha community in addition to 50% social reservation is
covered by exceptional circumstances as contemplated by Constitution
Bench in Indra Sawhney’s case?
(3) Whether the State Government on the strength of Maharashtra State
Backward Commission Report chaired by M.C. Gaikwad has made out a
case of existence of extraordinary situation and exceptional circumstances in
the State to fall within the exception carved out in the judgment of Indra
Sawhney?
(4) Whether the Constitution One Hundred and Second Amendment deprives
the State Legislature of its power to enact a legislation determining the
9Hereafter referred to as “the 103rd Amendment”.
10 Writ petition 938/2020.
6
socially and economically backward classes and conferring the benefits on
the said community under its enabling power?
(5) Whether, States’ power to legislate in relation to “any backward class”
under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read
with Article 366(26c) of the Constitution of India?
(6) Whether Article 342A of the Constitution abrogates States’ power to
legislate or classify in respect of “any backward class of citizens” and
thereby affects the federal policy / structure of the Constitution of India?
8. I had the benefit of reading the draft judgment of Ashok Bhushan, J. which
has exhaustively dealt with each point. I am in agreement with his draft, and the
conclusions with respect to Point Nos (1) (2) and (3). In addition to the reasons in
the draft judgment of Ashok Bhushan, J., I am also giving my separate reasons, in
respect of Point No. (1). I am however, not in agreement with the reasons and
conclusions recorded in respect of Point Nos. (4) and (5), for reasons to be
discussed elaborately hereafter. I agree with the conclusions of Ashok Bhushan, J.,
in respect of Point No (6); however, I have given my separate reasons on this point
too.
9. With these prefatory remarks, I would proceed to discuss my reasons,
leading to the conclusions, on both the points of concurrence, as well as
disagreement with the draft judgment of Ashok Bhushan, J.
Re Point No. 1: Whether judgment in case of Indra Sawhney v. Union
of India,1992 Supp. (3) SCC 217 needs to referred to larger bench of
require re-look by the larger bench in the light of subsequent
Constitutional Amendments, judgments and changed social dynamics
of the society etc.?
10. A careful reading of the judgments in Indra Sawhney v. Union of India11
,
clarifies that seven out of nine judges concurred that there exists a quantitative
limit on reservation – spelt out @ 50%. In the opinion of four judges, therefore, per
11 1992 Supp. (3) SCC 217.
7
the judgment of B.P. Jeevan Reddy, J., this limit could be exceeded under
extraordinary circumstances and in conditions for which separate justification has
to be forthcoming by the State or the concerned agency. However, there is
unanimity in the conclusion by all seven judges that an outer limit for reservation
should be50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B.
Sawant, JJ. indicated that there is no general rule of 50% limit on reservation. In
these circumstances, given the general common agreement about the existence of
an outer limit, i.e. 50%, the petitioner’s argument about the incoherence or
uncertainty about the existence of the rule or that there were contrary observations
with respect to absence of any ceiling limit in other judgments (the dissenting
judgments of K. Subbarao, in T. Devadasan v Union of India12
, the judgments of
S.M. Fazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas13 and the
judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka14)
is not an argument compelling a review or reconsideration of Indra Sawhney rule.
11. The respondents had urged that discordant voices in different subjects
(Devadasan, N.M. Thomas and Indra Sawhney) should lead to re-examination of
the ratio in Indra Sawhney. It would be useful to notice that unanimity in a given
bench (termed as a “supermajority”) – denoting a 5-0 unanimous decision in a
Constitution Bench cannot be construed as per se a strong or compelling reason to
doubt the legitimacy of a larger bench ruling that might contain a narrow majority
(say, for instance with a 4-3 vote, resulting in overruling of a previous unanimous
precedent). The principle of stare decisis operates both vertically- in the sense that
decisions of appellate courts in the superior in vertical hierarchy, bind tribunals and
courts lower in the hierarchy, and horizontally- in the sense that a larger bench
formation ruling, would be binding and prevail upon the ruling of a smaller bench
121964 (4) SCR 680.
131976 (2) SCC 310.
141985 SCR Suppl. (1) 352.
8
formation. The logic in this stems from the raison d’etre for the doctrine of
precedents, i.e. stability in the law. If this rule were to be departed from and the
legitimacy of a subsequent larger bench ruling were to be doubted on the ground
that it comprises of either plurality of opinions or a narrow majority as compared
with a previous bench ruling (which might be either unanimous or of a larger
majority, but of lower bench strength), there would uncertainty and lack of clarity
in the realm of precedential certainty. If precedential legitimacy of a larger bench
ruling were thus to be doubted, there are no rules to guide the courts’ hierarchy or
even later benches of the same court about which is the appropriate reading to be
adopted (such as for instance, the number of previous judgments to be considered
for determining the majority, and consequently the correct law).
12. In view of the above reasoning, it is held that the existence of a plurality of
opinions or discordant or dissident judgments in the past – which might even have
led to a majority (on an overall headcount) supporting a particular rule in a
particular case cannot detract from the legitimacy of a rule enunciated by a later,
larger bench, such as the nine-judge ruling in Indra Sawhney.
13. So far as the argument that Indra Sawhney was concerned only with
reservations under Article 16(4) is concerned, this Court is inclined to accept the
submissions of the petitioner. The painstaking reasoning in various judgments, in
Indra Sawhney, including the judgments of Pandian and Sawant, JJ. would show
that almost all the previous precedents on both Article 15(4) and 16(4) were
considered15
.
14. The tenor of all the judgments shows the anxiety of this Court to decisively
rule on the subject of reservations under the Constitution – in regard to backward
classes and socially and educationally backward classes. This is also evident from
15M.R. Balaji v. State of Mysore 1963 Supp. 1 SCR 439; P. Rajendran v. State of T.N. (1968) 2 SCR 786 [Articles
15(4)]; A Peeriakaruppan v. State of T.N. (1971) 1 SCC 38 [Article 15(4)]; State of A.P. v. USV Balram (1972) 1
SCC 660 [Article 15(4)]; T. Devadasan (supra); State of U.P. v. Pradeep Tandon (1975) 1 SCC 267; Janki Prasad
Parimoo v. State of J&K (1973) 1 SCC 420; N.M. Thomas [Article 16(4) & K.C. Vasanth Kumar [Article 15(4)].
9
the history of Article 15(4) which was noticed and the phraseology adopted
(socially and educationally backward classes) which was held to be wider than
“backward classes” though the later expression pointed to social backwardness.
Such conclusions cannot be brushed aside by sweeping submission pointing to the
context of the adjudication in Indra Sawhney.
15. The argument on behalf of the States –that a decision is to be considered as a
ratio only as regards the principles decided, having regard to the material facts, in
the opinion of this Court, the reliance upon a judgment of this Court in Krishena
Kumar and Anr. v. Union of India & Ors.16 in the opinion of this Court is
insubstantial. The reference of the dispute, i.e. notification of various backward
classes for the purpose of Union public employment under Article 16(4) and the
issuance of the OM dated 1990 no doubt provided the context for the Court to
decide as it did in Indra Sawhney. However, to characterize its conclusions and the
considerations through the judgments of various judges, as not ratios but mere
obiter or observations not binding upon the states is an over-simplification. The
OM did lead to widespread protests and discontent. Initially, the writ petitions were
referred to a five-judge bench which, upon deliberation and hearing felt that the
matter required consideration by a larger bench (presumably in view of the
previous ruling by the seven judges in N.M. Thomas where two judges had
expressly stated that there was no ceiling on reservation and the later five judge
judgment in K.C. Vasanth Kumar where one judge had expressed a similar
reservation). It was for the purpose of decisively declaring the law that the ninejudge bench was formed and the question formulated by it. Not only did the judges
who constituted a majority speak about this rule; even the two other judges who
16 (1990) 4 SCC 207.
10
did not agree with the 50% ceiling rule, dealt with this aspect. This is evident from
the judgment of Sawant, J17:
“518. To summarise, the question may be answered thus. There is no
legal infirmity in keeping the reservations under Clause (4) alone or
under Clause (4) and Clause (1) of Article 16 together, exceeding
50%. However, validity of the extent of excess of reservations over
50% would depend upon the facts and circumstances of each case
including the field in which and the grade or level of administration
for which the reservation is kept. Although, further, legally and
theoretically the excess of reservations over 50% may be justified, it
would ordinarily be wise and nothing much would be lost, if the
intentions of the framers of the Constitution and the observations of
Dr. Ambedkar, on the subject in particular, are kept in mind. The
reservations should further be kept category and gradewise at
appropriate percentages and for practical purposes the extent of
reservations should be calculated category and gradewise..”
16. Likewise, Pandian, J., after elaborate discussion,18recorded his conclusions
in this manner:
“189. I fully share the above views of Fazal Ali, Krishna Iyer,
Chinnappa Reddy, JJ holding that no maximum percentage of
reservation can be justifiably fixed under
Articles 15(4) and/or 16(4) of the Constitution.”
17. Both show that the extent of whether a 50% limit is applicable, was
considered by all the judges. Therefore, the arguments on behalf of the States and
the contesting respondents in this regard are unmerited. Likewise, to say that
whether a 50% limit of reservation existed or not was not an issue or a point of
reference, is without basis; clearly that issue did engage the anxious consideration
of the court.
17 At page 552, SCC Report.
18In paras 177-178 at page 407-413 and the conclusions in para 189 at page 413 in Indra Sawhney (supra).
11
18. The States had argued that providing a ceiling (of 50%) amounts to
restricting the scope of Part III and Part IV of the Constitution. A provision of the
constitution cannot be “read down” as to curtail its width, or shackle state power,
which is dynamic. The state legislatures and executives are a product of
contemporary democratic processes. They not only are alive to the needs of the
society, but are rightfully entitled to frame policies for the people. Given the
absence of any caste census, but admitted growth of population, there can be no
doubt that the proportion of the backward classes has swelled, calling for greater
protection under Articles 15 (4) and 16 (4). Also, every generation has aspirations,
which democratically elected governments are bound to meet and consider, while
framing policies. In view of these factors, the fixed limit of 50% on reservations,
requires to be reconsidered. Counsel submitted that whether reservations in a given
case are unreasonable and excessive, can always be considered in judicial review,
having regard to the circumstances of the particular case, the needs of the state and
by weighing the rights, in the context of the states’ priorities, having regard to their
obligations under the Directive Principles of State Policy, which are now deemed
as fundamental as the rights under Part III of the Constitution. The court’s
flexibility in testing whether a measure is reasonable or not can always be retained
and moulded appropriately.
19. Lt. Col Khajoor Singh v. Union of India (supra) is an authority for the
approach that this court should adopt, when it is asked to reconsider a previous
precedent of long standing. The court observed that:
“We are of opinion that unless there are clear and compelling
reasons, which cannot be denied, we should not depart from the
interpretation given in these two cases and indeed from any
interpretation given in an earlier judgment of this Court, unless there
is a fair amount of unanimity that the earlier decisions are manifestly
wrong. This Court should not, except when it is demonstrated beyond
all reasonable doubt that its previous ruling, given after due
12
deliberation and full hearing, was erroneous, go back upon its
previous ruling, particularly on a constitutional issue.”
20. In Keshav Mills (supra) the court elaborated what considerations would
weigh with it, when a demand for review of the law declared in a previous
judgment is made:
“..Frequent exercise by this Court of its power to review its earlier
decisions on the ground that the view pressed before it later appears
to the Court to be more reasonable, may incidentally tend to make law
uncertain and introduce confusion which must be consistently
avoided. …it would be inexpedient to lay down any principles which
should govern the approach of the Court in dealing with the question
of reviewing and revising its earlier decisions. It would always depend
upon several relevant considerations: What is the nature of the
infirmity or error on which a plea for a review and revision of the
earlier view is based? On the earlier occasion, did some patent
aspects of the question remain unnoticed, or was the attention of the
Court not drawn to any relevant and material statutory provision, or
was any previous decision of this Court bearing on the point not
noticed? Is the Court hearing such plea fairly unanimous that there is
such an error in the earlier view? What would be the impact of the
error on the general administration of law or on public good? Has the
earlier decision been followed on subsequent occasions either by this
Court or by the High Courts? And, would the reversal of the earlier
decision lead to public inconvenience, hardship or mischief? These
and other relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction to
review and revise its earlier decisions.”
21. Identical observations were made in Jindal Stainless (supra). In Union of
India v Raghubir Singh19
, a Constitution Bench articulated the challenges often
faced by this court:
“….The social forces which demand attention in the cauldron of
change from which a new society is emerging appear to call for new
perceptions and new perspectives…..The acceptance of this principle
ensured the preservation and legitimation provided to the doctrine of
191989 (3) SCR 316.
13
binding precedent, and therefore, certainty and finality in the law,
while permitting necessary scope for judicial creativity and
adaptability of the law to the changing demands of society. The
question then is not whether the Supreme Court is bound by its own
previous decisions. It is not. The question is under what circumstances
and within what limits and in what manner should the highest Court
over-turn its own pronouncements.”
22. What the respondents seek, in asking this court to refer the issue to a larger
bench, strikes at the very essence of equality. The review of precedents undertaken
by Indra Sawhney not only spanned four turbulent decades, which saw several
amendments to the Constitution, but led to a debate initiated by five judges in M.R.
Balaji, (and followed up in at least more than 10 decisions) later continued by
seven judges in N.M. Thomas. This debate- i.e., between Balaji and Indra
Sawhney, saw the court’s initial declaration that a 50% ceiling on reservations
should be imposed, which was questioned in three judgments, though not in
majority decisions of various benches. Therefore, to decisively settle this important
issue- among other issues, the nine-judge bench was constituted. Indra Sawhney
decisively ruled that reservations through special provisions should not exceed
50% by a 7-2 majority. Two judges did not indicate any limit on reservations, they
did not also indicate any clear guiding principle about what should be the court’s
approach, when a party complains that reservations are excessive or unreasonable.
Indra Sawhney is equally decisive on whether reservations can be introduced for
any new class, or the quantum of reservations, when introduced, or changed, can
be the subject matter of judicial review, for which according to the majority of
judges, the guiding principle would be the one enunciated in Barium Chemicals v.
Company Law Board20
.
201966 (Suppl.) 3 S.C.R. 311, to the effect that where a statutory power can be exercised through the subjective
satisfaction of any authority or the state, it should be based on objective materials, and on relevant considerations,
eschewing extraneous factors and considerations.
14
23. The salience of the issue under consideration is that equality has many
dimensions. In the context of Articles 15 (4) and 16 (4,) and indeed the power of
classification vested in the state, to adopt protective discrimination policies, there
is an element of obligation, or a duty, to equalize those sections of the population
who were hitherto, “invisible” or did not matter. The reach of the equalizing
principle, in that sense is compelling. Thus while, as explained by this court in
Mukesh Kumar v. State of Uttarakhand21 there is no right to claim a direction that
reservations should be provided (the direction in that case being sought was
reservation in promotions in the state of Uttarakhand), the court would intervene if
the state acts without due justification, but not to the extent of directing
reservations.22Equally, the states’ obligation to ensure that measures to uplift the
educational and employment opportunities of all sections, especially vulnerable
sections such as scheduled castes and STs and backward class of citizens, is
underscored- not only in Article 15 (4) but also by Article 46, though it is a
directive principle.23 It is wrong therefore, to suggest that Indra Sawhney did not
examine the states’ obligations in the light of Directive Principles; it clearly did- as
is evident from the express discussion on that aspect in several judgments.24
21(2020) 3 SCC 1.
22As this court did, in P & T Scheduled Caste/Tribe Employee Welfare Association vs Union of India &Ors. 1988
SCR Suppl. (2) 623, when, upon withdrawal of a government order resulted in denial of reservation in promotion,
hitherto enjoyed by the employees. The court held:
“While it may be true that no writ can be issued ordinarily competing the Government to make
reservation under Article 16 (4) which PG NO 630 is only an enabling clause, the circumstances in which
the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs
Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier
while others who are similarly situated in the other departments are allowed to enjoy it make the action of
Government discriminatory and invite intervention by this Court.”
23“46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other
weaker sections The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.”
24There is discussion about the states’ obligations, in the context of reservations, in the judgments of Pandian
(paras 173,194); Dr. Thommen, J (Para 297); Kuldip Singh, J (para 387); P.B. Sawant, J (paras 416-418, 433-34,
479-451); R.M. Sahai, J (Para 593) and B.P. Jeevan Reddy, for himself, Kania, CJ, M.N. Venkatachalaiah and A.M.
15
24. Protective discrimination, affirmative action, or any other term used by this
court, means the measure of the state to ensure that past inequities are not carried
on as today’s burdens, that full (and one may add, meaningful) opportunities are
given to all in participation in governance structures: access to public institutions
(through special provisions under Article 15 (4)) and adequate representation
(through reservations under Article 16 (4)). They are tools in the repertoire of the
states to empower those hitherto barred from sharing power- and all that went with
it, of bringing first hand perspectives in policy making, of acting as pathbreakers,
of those breaking the glass ceiling- in short, imparting dimensions in democratic
governance which were absent.25
25. A constant and recurring theme in the several judgments of Indra Sawhney
was the concept of balance. This expression was used in two senses- one, to
correct the existing imbalance which existed, due to past discriminatory practices
that kept large sections of the society backward; two, the quest for achieving the
balance between the guarantee of equality to all, and the positive or affirmative
discrimination sanctioned by Article 15 (4) and 16 (4).26 B.P. Jeevan Reddy, J (for
himself and four other judges) held that (para 808, SCC reports):
“It needs no emphasis to say that the principal aim of Articles 14 and
16 is equality and equality of opportunity and that clause (4) of
Ahmadi, JJ (in Paras 648-49, 695, 747, Paras 834-835 and Para 860- all SCC references).
25The idea of empowerment is articulated in the judgment of Jeevan Reddy, in Indra Sawhney firstly in Para 694:
“The above material makes it amply clear that the objective behind clause (4) of Article 16 was the sharing of State
power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was
now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power,
were sought to be inducted thereinto and since that was not practicable in the normal course, a special provision
was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the
deprived backward communities — to give them a share in the administrative apparatus and in the governance of
the community.” and then, in Para 788. that “the object of Article 16(4) was “empowerment” of the backward
classes. The idea was to enable them to share the state power.”
26This theme of balance occurs 49 times in various judgments. All the judges deal with it; although
Pandian and Sawant, JJ, reject the numerical ceiling of 50%, their judgments acknowledge the need to
maintain the balance between the main parts of Articles 15 and 16, while ensuring that past discrimination
is remedied.
16
Article 16 is but a means of achieving the very same objective. Clause
(4) is a special provision — though not an exception to clause (1).
Both the provisions have to be harmonised keeping in mind the fact
that both are but the re-statements of the principle of equality
enshrined in Article 14. The provision under Article 16(4) —
conceived in the interest of certain sections of society — should be
balanced against the guarantee of equality enshrined in clause (1) of
Article 16 which is a guarantee held out to every citizen and to the
entire society.”
26. There is more discussion on this subject by the same judgment.27Dr.
Thommen, J, expressed that reservations should not be an end all, and should not
be perpetuated, beyond the objectives they were designed to achieve and that “A
balance has to be maintained between the competing values and the rival claims
and interests so as to achieve equality and freedom for all.” (Ref. Para 255, SCC
reports).R.M. Sahai, J, expressed the idea in these terms (Ref. Para 560, SCC
reports):
“Any State action whether ‘affirmative’ or ‘benign’, ‘protective’ or
‘competing’ is constitutionally restricted first by operation of Article
16(4) and then by interplay of Articles 16(4) and 16(1). State has been
empowered to invade the constitutional guarantee of ‘all’ citizens
under Article 16(1) in favour of ‘any’ backward class of citizens only
if in the opinion of the government it is inadequately represented.
Objective being to remove disparity and enable the unfortunate ones
in the society to share the services to secure equality in, ‘opportunity
and status’ any State action must be founded on firm evidence of clear
and legitimate identification of such backward class and their
inadequate representation. Absence of either renders the action
suspect. Both must exist in fact to enable State to assume jurisdiction
to enable it to take remedial measures….States' latitude is further
narrowed when on existence of the two primary, basic or
jurisdictional facts it proceeds to make reservation as the wisdom and
legality of it has to be weighed in the balance of equality pledged and
guaranteed to every citizen and tested on the anvil of reasonableness
to “smoke out” any illegitimate use and restrict the State from
crossing the clear constitutional limits.”
27Paras 614 and 814, SCC reports.
17
27. Constitutional adjudication involves making choices, which necessarily
means that lines have to be drawn, and at times re-drawn- depending on “the
cauldron of change”28
. It has been remarked that decisions dealing with
fundamental concepts such as the equality clause are “heavily value-laden, and
necessarily so, since value premises (other than the values of "equality" and
"rationality") are necessary to the determination that the clause requires.”
29
28. Interpretation of the Constitution, is in the light of its uniqueness, Dr.
Aharon Barak, the distinguished former President of the Israeli Supreme Court
remarked, in his work:30
“Some argue that giving a modern meaning to the language of the
constitution is inconsistent with regarding the constitution as a source
of protection of the individual from society31. Under this approach, if
the constitution is interpreted in accordance with modern views, it will
reflect the view of the majority to the detriment of the minority. My
reply to this claim is inter alia, that a modern conception of human
rights is not simply the current majority’s conception of human rights.
The objective purpose refers to fundamental values that reflect the
deeply held beliefs of modern society, not passing trends. These beliefs
are not the results of public opinion polls or mere populism; they are
fundamental beliefs that have passed the test of time, changing their
form but not their substance.”
29. As the organ entrusted with the task of interpreting the laws and the
Constitution, the word of this court is final. Undoubtedly its role is as a co-equal
branch of governance; nevertheless, its duty to interpret the law and say what its
silences (or ambiguities) denote, in the particular contexts that it has to contend
28A phrase used in Raghubir Singh (supra).
29Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf. C. PERELMAN,
THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT 1-60 (1963).
30Aharon Barak, The Judge in a Democracy, p.132.
31 See generally Antonin Scalia, “Originalism: The Lesser Evil, “57 U. Cin. L. Rev. 849, 862-863
(1989).
18
with, involve making choices. These choices are not made randomly, or
arbitrarily32, but based on a careful analysis of the rights involved, the remedies
proposed by the legislative or executive measure, the extent of limits imposed by
the Constitution, and so on. The history of the legislation or the measure, or indeed
the provision of the Constitution plays a role in this process. Interpretation involves
an element of line drawing, of making choices. This court’s decisions are replete
with such instances. The doctrine of classification is the first instance where this
court drew a line, and indicated a choice of interpretation of Article 14; likewise,
right from In re Kerala Education Bill33to T.M.A Pai Foundation v. State of
Karnataka,34 a textually absolute fundamental right, i.e. Article 30 has been
interpreted not to prevent regulation for maintenance of educational standards, and
legislation to prevent mal-administration. Yet, whenever a choice is made in the
interpretation of a provision of this constitution, and a limit indicated by a decision,
it is on the basis of principle and principle alone.
30. As noticed previously, the search of this court, in Indra Sawhney – after an
exhaustive review of all previous precedents, was to indicate an enduring principle
for application by courts, that would strike the just balance between the
aspirational rights – and the corresponding duty of the states to introduce
affirmative measures to combat inequality (under Articles 15 [4] and 16 [4]) on the
one hand, and the principle of equality and its command against practising
inequality in proscribed areas (caste being one, in both Articles 15 and 16). It was
suggested during the hearing that the quantitative criteria (50% limit on
32Michael Kirby, Indian and Australian Constitutional Law: A Recent Study in Contrasts’, 60 JILI
(2018) 1, p. 30; Also see Herbert Weschler, ‘Towards Neutral Principles of Constitutional Law’, (1959)
73 Harv. L. Rev. 1.
331959 SCR 995.
342002 (8) SCC 481.
19
reservation) is too restrictive leaving no breathing room for democratically elected
governments. This court remarked in R.C. Poudyal v. Union of India35 that
“124. … In the interpretation of a constitutional document, “words
are but the framework of concepts and concepts may change more
than words themselves”. The significance of the change of the
concepts themselves is vital and the constitutional issues are not
solved by a mere appeal to the meaning of the words without an
acceptance of the line of their growth. It is aptly said that “the
intention of a Constitution is rather to outline principles than to
engrave details”.”
31. The idea of a definitive and objective principle, in the form of a 50% ceiling
on limitation, emerges on an overall reading of Indra Sawhney. The argument
made by the respondents was that this court should not go by such a ceiling limit,
but rather, while exercising its judicial review power, proceed on a case-by-case
approach, and resting its conclusions on fact dependent exercises, using other
criteria, such as reasonableness, proportionality, etc. for judging excessive
reservations. However, what constitutes reasonableness and what is proportionate
in a given case, would be unchartered and indeterminate areas. It is one thing to try
persuading the court to discard a known principle, in the light of its loss of
relevance, yet for that argument to prevail, not only should the harm caused by the
existing principle be proved, but also a principle that is sought to be substituted,
should have clarity, or else, the argument would be one asking the court to take a
leap in the dark. It is not enough, therefore to resort to observations such as “the
length of the leap to be provided depends upon the gap to be covered”36 or the
proportionality doctrine (deployed to judge validity of an executive or legislative
measure), because they reveal no discernible principle. Reasonableness is no
351994 Supp (1) SCC 324.
36State of Punjab v. Hiralal, 1971 (3) SCR 267.
20
doubt a familiar phrase in the constitutional lexicon; yet there is considerable
subjectivity and relativity in its practise. Again, to quote Dr. Barak there are “zones
of reasonableness”37
. This places the court in a difficult situation, where the state’s
choices require greater deference, and a corresponding narrowing of judicial
review, given that the standard of review is the one indicated in Barium Chemicals.
The South African Constitutional Court voiced a similar idea, in connection with
an affirmative action program, when it observed that:
“The fairness of a measure differentiating on any prohibited ground
depends not only on its purpose, but on the cumulative effect of all
relevant factors, including the extent of its detrimental effects on nondesignated groups”.38
32. In another case, City Council of Pretoria v. Walker,39Sachs J.(of the South
African Constitutional Court)remarked that:
"[p]rocesses of differential treatment which have the legitimate
purpose of bringing about real equality should not be undertaken in a
manner which gratuitously and insensitively offends and marginalises
persons identified as belonging to groups who previously enjoyed
advantage."
33. In that case, the question for judicial review was whether a local authority in
a period of transition, could impose a lower flat rate tariff in one locality (inhabited
by the historically discriminated black community, with poor infrastructure) and a
higher metered tariff in a locality with better infrastructure, inhabited by the white
community. Sachs J. held that this was not unfair discrimination against the
applicant, a white resident, but rather a failure on the part of the local authority to
put down a basis for the differential levy of tariffs, rooted in substantive equality:
37The Judge in a Democracy, Aharon Barak at p. 248.
38Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C.
39 1998 (3) BCLR 257 (CC) at para. 123.
21
“Yet, any form of systematic deviation from the principle of equal and
impartial application of the law (as was the practice in the present
case for a certain period), might well have to be expressed in a law of
general application which would be justiciable according to the
criteria of reasonableness and justifiability”.
34. Upon examination of the issue from this perspective, the ceiling of 50% with
the “extraordinary circumstances” exception, is the just balance- what is termed as
the “Goldilocks solution”40- i.e. the solution containing the right balance that
allows the state sufficient latitude to ensure meaningful affirmative action, to those
who deserve it, and at the same time ensures that the essential content of equality,
and its injunction not to discriminate on the various proscribed grounds (caste,
religion, sex, place of residence) is retained. This court in M. Nagaraj v. Union of
India41observed that “a numerical benchmark is the surest immunity against
charges of discrimination.” To dilute the 50% benchmark further, would be to
effectively destroy the guarantee of equality, especially the right not to be
discriminated against on the grounds of caste (under Articles 15 and 16).
35. In view of all these reasons, the argument that Indra Sawhney requires
reconsideration, and ought to be referred to a larger bench, is hereby rejected.
Affirmative Action and the Reservation Paradigm
Special Provisions
36. Before parting with this section, this opinion would dwell upon affirmative
action, and possibilities under the Constitution, from a larger perspective. Most
debates, and precedents in the country have centred round the extent of reservation
40“Having or producing the optimal balance between two extremes” The Merriman Webster Dictionary
https://www.merriam-webster.com/dictionary/Goldilocks. The term was used by Justice Elena Kagan in
her dissent, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) “the
difficulty then, is finding the Goldilocks solution-not too large, not too small, but just right.” This term is
also used to denote a proper balance, in management parlance.
41(2006) 8 SCC 212.
22
and administration of quotas (reservations) under Articles 15 (4) and 16(4). The
term “special provision” in Article 15 (4) is of wider import, than reservations.
Unlike the United States of America which – in the absence of a provision enabling
such special provisions, and which has witnessed a turbulent affirmative action
policy jurisprudence, the 1960s and 1970s witnessing the framing of policies and
legislation, and the subsequent narrowing of minority and racial criteria, to support
affirmative action, our Constitution has a specific provision.
37. During the hearing, it was pointed out that there are not enough
opportunities for education of backward classes of citizens, and that schools and
educational institutions are lacking. It was argued by the states that sufficient
number of backward classes of young adults are unable to secure admissions in
institutions of higher learning.
38. It would be, in this context, relevant to notice that two important
amendments to the Constitution of India, which have the effect of transforming the
notion of equality, were made in the last 15 years. The first was the eighty sixth
amendment – which inserted Article 21A42- which had the effect of enjoining the
state to provide free and compulsory education to all children in the age group 6-
14. The second was the Constitution Ninety Third Amendment Act, which inserted
Article 15 (5)43 enabling the state to make special provisions “for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educational institutions,
whether aided or unaided.” The transformative potential of these provisions (both
42“21A. Right to education. — The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.”
43“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth..[(5) Nothing in this
article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by
law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes
or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.”
23
of which have been upheld by this court – in Pramati Educational & Cultural
Trust v. Union of India44) is yet to be fully realized. Article 21A guarantees
minimum universal education; whereas Article 15(5) enables access to backward
classes of citizens admissions, through special provisions by the state, in private
educational institutions. The Right to Education Act, 2009 provides a broad
statutory framework for realization of Article 21A.
39. The availability of these constitutional provisions, however does not mean
that those belonging to backward class of citizens would be better off or would
reap any automatic benefits. Here, it is relevant to consider that often, any debate
as to the efficacy or extent of reservation, invariably turns to one stereotypical
argument- of merit. Long ago, in his important work45– Marc Galanter had dealt
with the issue of merit in this manner:
“Let us take merit to mean performance on tests (examinations,
interview, character references or whatever) thought to be related to
performance relevant to the position (or other opportunity) in
question and commonly used as a measure of qualification for that
position. (In every case it is an empirical question whether the test
performance is actually a good predictor of performance in the
position, much less of subsequent positions for which it is a
preparation.) Performance on these tests is presumably a composite
of native ability, situational advantages (stimulation in the family
setting, good schools, sufficient wealth to avoid malnutrition or
exhausting work, etc.), and individual effort. The latter may be
regarded as evidence of moral desert, but neither native ability nor
situational advantages would seem to be. The common forms of
selection by merit do not purport to measure the moral desert
dimension of performance. Unless one is willing to assume that such
virtue is directly proportionate to the total performance, the argument
for merit selection cannot rest on the moral deservingness of
individual candidates…..”
442014 (8) SCC 1.
45 Marc Galanter, Competing Equalities – Law and the Backward Classes in India.
24
40. In his judgment, (in Indra Sawhney) Sawant,J. too spoke of this
phenomenon:
“405. The inequalities in Indian society are born in homes and
sustained through every medium of social advancement. Inhuman
habitations, limited and crippling social intercourse, low-grade
educational institutions and degrading occupations perpetuate the
inequities in myriad ways. Those who are fortunate to make their
escape from these all-pervasive dragnets by managing to attain at
least the minimum of attainments in spite of the paralysing effects of
the debilitating social environment, have to compete with others to
cross the threshold of their backwardness. Are not those attainments,
however low by the traditional standards of measuring them, in the
circumstances in which they are gained, more creditable? Do they not
show sufficient grit and determination, intelligence, diligence,
potentiality and inclination towards learning and scholarship? Is it
fair to compare these attainments with those of one who had all the
advantages of decent accommodation with all the comforts and
facilities, enlightened and affluent family and social life, and high
quality education? Can the advantages gained on account of the
superior social circumstances be put in the scales to claim merit and
flaunted as fundamental rights? May be in many cases, those coming
from the high classes have not utilised their advantages fully and their
score, though compared with others, is high, is in fact not so when
evaluated against the backdrop of their superior advantages - may
even be lower…..
406. Those who advance merit contention, unfortunately, also
ignore the very basic fact - (though in other contexts, they may be the
first to accept it) - that the traditional method of evaluating merit is
neither scientific nor realistic. Marks in one-time oral or written test
do not necessarily prove the worth or suitability of an individual to a
particular post, much less do they indicate his comparative calibre.
What is more, for different posts, different tests have to be applied to
judge the suitability. The basic problems of this country are massoriented. India lives in villages, and in slums in towns and cities. To
tackle their problems and to implement measures to better their lot,
the country needs personnel who have firsthand knowledge of their
problems and have personal interest in solving them. What is needed
25
is empathy and not mere sympathy. One of the major reasons why
during all these years after Independence, the lot of the downtrodden
has not even been marginally improved and why majority of the
schemes for their welfare have remained on paper, is perceptibly
traceable to the fact that the implementing machinery dominated as it
is by the high classes, is indifferent to their problems….”
There were observations earlier in the judgment of Chinnappa Reddy, J, in
K.C. Vasant Kumar (supra).
Anatole France had – in his ironic (and iconic) observations remarked once,
that
“In its majestic equality, the law forbids rich and poor alike to sleep
under bridges, beg in the streets and steal loaves of bread.”
41. The previous rulings in Vasant Kumar (supra), and the comments of Dr.
Amartya Sen in his work “Merit and Justice” were considered in some detail, in
the recent ruling in B.K. Pavitra v. Union of India46
,
““Merit” must not be limited to narrow and inflexible criteria such as
one's rank in a standardised exam, but rather must flow from the
actions a society seeks to reward, including the promotion of equality
in society and diversity in public administration.”
This court also noted that merit as we understand - i.e. performance in standardised
tests, is largely dependent upon neutral factors, which discriminate in favour of
those who are privileged.
42. The argument of merit thus ignores the inherent and situational inequity
between those who have no access to the means of achieving the goal of
meaningful education, i.e. to colleges and professional institutions, based on
competitive evaluations like tests, and those who have all the wherewithal for it.
46(2019) 16 SCC 129.
26
Those from low-income groups cannot join coaching programmes, which hone
candidates’ skills in succeeding in an entrance test.
43. Overemphasis on merit therefore, ignores the burdens of the past, assumes
that everything is perfectly fair now and asks the question of how the candidate
fares in examinations that test only a narrow range of skills, mainly of linear-type
thought. This decontextualized, neutrality-based thinking glosses over historical
and centuries old inequalities, the burdens of which continue to plague those who
labour under disadvantage, and through the so called “level playing field” of a
common exam, or evaluation, privileges those who had, and continue to have,
access to wealth, power, premium education and other privileges, thus
consolidating these advantages. Merit is a resource attractor. Those with it,
accumulate more of it, more wealth and acquire more power. They use that money
and power to purchase more increments of merit for themselves and their children.
44. The eminent legal thinker, Michael Sandel, in his Tyranny of Merit, bemoans
that the US has now become a sorting machine“that promises mobility on the basis
of merit but entrenches privilege and promotes attitudes toward success corrosive
of the commonality democracy requires” (p. 155)He further says that first, all are
told that although the promise of a mobile society based on merit is better than a
hereditary hierarchy, it is important to comprehend that this promise does not come
with any attendant promise to attenuate inequality in society. On the contrary, this
promise legitimizes “inequalities that arise from merit rather than birth” (p.
161).Second, we learn that a system that rewards the most talented is likely to
undervalue the rest, either explicitly or implicitly.
45. The context of these observations is to highlight that even when reservations
are provided in education, sufficient numbers of the targeted students may not be
able to achieve the goal of admission, because of the nature of the entrance criteria.
Equality of opportunity then, to be real and meaningful, should imply that the
necessary elements to create those conditions, should also be provided for. It would
27
therefore be useful to examine – only by way of illustration- the schemes that exist,
for advancing educational opportunities, to Scheduled Caste (“SC” hereafter)/
Scheduled Tribe (“ST” hereafter) and SEBC students.
46. Central government scholarships are available to students from SC communities,
for studies in Class IX and X, conditional to income of parents/ guardians being less than
₹2,50,000 per annum. Eligible students must also not be covered by any other central
government scholarships or funding, but may be eligible for the National Means-cumMerit Scholarship Scheme.47 Under the pre matric scholarship scheme, day scholars are
provided with 225 per month for a period of ten months, with a books and ad hoc grant, ₹
at 750 p.a. Hostellers receive 525 per month, for a period of ten months, with a similar ₹ ₹
grant at 1000 p.a. For 2020-21 a total amount of 750 crores was allocated, of which ₹ ₹ ₹
404.93 crores was released. The previous years, from 2015-16 to 2019-20, the total
allocated budget was 1,922 crores, of which 1,561.90 crores was released to 121.85 ₹ ₹
lakh beneficiaries.48
47. Pre-matric scholarships are provided for students of Class I to X, whose
parents are manual scavengers, tanners and flyers, waste-pickers, or persons
engaged in hazardous cleaning, as defined under the Manual Scavengers Act,
2013.49 Hostellers are provided 700 per month, while day scholars, 225 per ₹ ₹
month through the academic year (ten months). Grants of 750 and 1000 p.a. are ₹ ₹
available to day-scholars and hostellers respectively. Here too, selected candidates
are excluded from all other scholarships.
47 Scheme List, Ministry of Social Justice and Empowerment, available at
http://socialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). See also, Notification
dated 06.09.2019, ‘Funding pattern for Pre-Matric Scholarship Scheme for SC Students studying in Class 9th and
10th for the year 2019-20’, available at
http://socialjustice.nic.in/writereaddata/UploadFile/Scm_guidelines_06092019.pdf (Last accessed on 21.04.2021).
48Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry of Social Justice and
Empowerment, p.50, available at
http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed
on 23.04.2021).
49 Ministry of Social Justice and Empowerment, Notification dated 2.04.2018, available at
http://socialjustice.nic.in/writereaddata/UploadFile/Pre-Matric_Scholarship_haz.pdf (Last accessed on 21.04.2021).
28
48. At the post matric level, the Central Sector Scholarship Scheme of Top Class
for SC Students, makes scholarships available to SC students who have secured
admission at IIMs, IITs, AIIMS, NITs, NLUs, other central government
institutions, institutions of national importance, etc.50 The scholarship covers
tuition fee (capped at 2 lakhs per annum for private institutions), living expenses ₹
at 2220 per month, allowance for books and stationery, and a computer and ₹
accessories (capped at 45,000, as one time assistance). Eligibility criteria require ₹
total family income from all sources to be less than 8,00,000 per annum. Under ₹
this scheme, in 2020-21, the total budget allocation was 40 crores; of this, as on ₹
31.12.2020 24.03 crores were spent on 1550 beneficiaries. ₹
51 For the previous
years, i.e. 2016-17 to 2019-2020, the total allocated budget was 131.50 crores, ₹
with a total expenditure of 127.62 crores, on 6676 beneficiaries. ₹
52
49. Similar pre-matric and post-matric scholarships are also available to ST
students. At the state level too, various such scholarship schemes are made
available to SC and ST students, and students belonging to minority communities
and backward classes.53Similar pre-matric and post-matric scholarships are also
available to ST students. At the state level too, various such scholarship schemes
are made available to SC and ST students, and students belonging to minority
communities and backward classes.54 In respect of the post-matric scholarship for
ST students, for the financial year 2020-21, an amount of 1833 crores was ₹
50Scheme List, Ministry of Social Justice and Empowerment, available at
http://socialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021).
51Annual Report, 2020-2021, pg. 68, Department of Social Justice & Empowerment, Ministry of Social Justice and
Empowerment, available at
http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed on
23.04.2021)
52Ibid
53See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767 (Last accessed on 21.04.2021).
54See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767 (Last accessed on 21.04.2021).
29
budgeted, out of which 1829.08 crore was released. ₹
55 For the pre-matric
scholarship for ST students, for the financial year 2020-21, an amount of 250 ₹
crores was budgeted, out of which 248.9 crores were released. ₹
50. Under the Central Scholarship Scheme of Top-Class for ST students, in the
year 2020-2021, a total budget of 29.31 Crores was allocated, out of which 20 ₹ ₹
Crore was disbursed among 2449 (1973 male and 512 female) beneficiaries.56 In
the year 2019-2020, a total budget of 20 Crores was allocated, with disbursement ₹
of 19.1 Crores to 1914 beneficiaries. ₹
57 The State of Telangana had the highest
number of beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradesh
at 147. The States of Chattisgarh and Madhya Pradesh had 69 and 49 beneficiaries
respectively.58
51. Under the National Fellowship Scheme for ST students (at higher levels of
education such as Ph.D., M.Phil), an amount of 90.78 Cr was disbursed to 2525 ₹
fellowship scholars.59 Under the National Overseas Scholarship for ST students, for
post-graduate study abroad, in the year 2020-21, an amount of 4.76 crore was ₹
disbursed to 30 beneficiaries.60
52. In respect of Other Backward Classes (OBCs), central government prematric and post-matric (Class 11-12th and above) are available, for students whose
parents’/guardian’s income from all sources does not exceed 2.5 lakhs. Under the ₹
pre-matric scholarship, 100/- per month for 10 months is given to day scholars ₹
and 500/- per month for 10 months is given to hostellers. For the year 2020-2021 ₹
(as on 31.12.2020) a total budget of 175 crore was allocated, out of which ₹
55Post-Matric Scholarship, Ministry of Tribal Affairs, data available at https://dashboard.tribal.gov.in/ (Last
accessed on 23.04.2021).
56Ibid.
57Ibid.
58Ibid.
59Ibid.
60Ibid.
30
₹118.09 crore was provided to 200 lakh beneficiaries. In the previous years, from
2015-16 to 2019-20, a total of 759.9 crore was allocated, out of which 701.42 ₹ ₹
Crores was released to 463.08 lakh beneficiaries.61
53. Under the post-matric scholarship for OBCs, for the year 2020-2021, a total
budget of 1100 crore was allocated, out of which, 802.27 crores were provided ₹ ₹
to 80 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total
budget of 5,035.75 crore was allocated, out of which 4,827.89 crore was ₹ ₹
released for 207.96 lakh beneficiaries.62
54. A national fellowship is also available to OBC students at the degree levels
of M.Phil and Ph.D. Fellowships are awarded to research students, at 31,000 per ₹
month for junior research fellows and at 35,000 per month for senior research ₹
fellows. Under this fellowship, for the year 2020-21, a budget of 45 crore was ₹
allocated, out of which 18 crore is expected to be provided to 2900 anticipated ₹
beneficiaries. In the previous years, from 2016-17 to 2019-20, 149.5 crore was ₹
allocated, out of which approx. 154 crore was provided to 7,200 beneficiaries ₹
(5,100 provisional).63
55. A report of the NITI Aayog64, based on data from the 2001 Census, analysed
that the gap between literacy rates of the general population and that of the SC
population had not reduced over the years. The rate of school drop-outs was seen
as a crucial indicator of lack of educational development. The dropout rates for SC
children were seen to be very high – 32.7% in Classes I to V; 55.2% in Classes I to
VIII; and 69.1% in classes I to X in 2004–05. The gap between the SC population
61Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry of Social Justice and
Empowerment, p. 104-105, available at
http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf (Last accessed on
23.04.2021).
62Ibid., at p. 105.
63Ibid., at p. 107-108.
64Available at https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/11th/11_v1/11v1_ch6.pdf
(Last accessed on 21.04.2021).
31
and the general category was seen to increase at higher levels of schooling. Data on
dropout rates for ST students in the year 2006-07 shows that the primary level
(Class I-V), 33.2% ST students drop out. At the elementary level (Class I – VIII),
this increases to 62.5%, while at the secondary level (Class I- X), the drop-out rate
is 78.7%.65 For the same time frame, the drop out rates for SC students at the
primary level was 36%; at the elementary level, 53.1%; and at the secondary level,
69%.66According to the Annual Report (Periodic Labour Force Survey) for the year
2018-19, the literacy rate for age 7 and above was 69.4% for STs, 72.2% for SCs,
77.5% for OBCs, and 85.9% for others.67
56. This data makes a case for an intensive study into diverse areas such as the
adequacy or otherwise of scholarships, quantum disbursed, eligibility criteria (the
maximum family income limit of 2,50,000/- possibly ₹ excludes large segments of
beneficiaries, given that even Group D employment in the Central Government can
result in exclusion of any scholarships to children of such employees), and
reconsideration about introducing other facilities, such as incentivising
scholarships, grants and interest free or extremely low interest education loans to
widen the net of recipients and beneficiaries. States and the Union government
may also revisit the threshold limits and their tendency to exclude otherwise
deserving candidates. For instance, even if an SC/ST or SEBC household has an
income of 6,00,000/- year, the denial of scholarship to a deserving student from ₹
that background cannot equate her or him with another candidate, whose family
65Reports and Publications, Ministry of Statistics and Program Implementation, available at
http://mospi.nic.in/sites/default/files/reports_and_publication/cso_research_and_publication_unit/COSIOIESIOTSD
VOL-2/Pages%20from%20educations-1.13.pdf (Last accessed on 22.04.2021).
66Reports and Publications, Ministry of Statistics and Program Implementation, available at
http://mospi.nic.in/sites/default/files/reports_and_publication/cso_research_and_publication_unit/COSIOIESIOTSD
VOL-2/Pages%20from%20educations-1.12.pdf(Last accessed on 22.04.2021).
67Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at
http://mospi.nic.in/sites/default/files/publication_reports/Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last
accessed on 22.04.2021).
32
income might be four times that amount, and who might be able to pay annual fees
for medical education, in private educational institutions. In other words, there
needs to be constant scrutiny, review and revision of these policies and their
effectiveness, besides the aspect of increasing funding, etc.
The wider possibilities of affirmative action- USA, South Africa and Canada
The US Experience
57. In the US, in Fullilove v. Klutznick,
68 the US Supreme Court rejected a
challenge to the constitutionality of a federal law demanding preferential treatment
of minority-owned businesses through a racial quota system. The challenged law69
prescribed pre-conditions for receipt of state and local government public works
grants upon the private entity's assurance that at least 10% of the amount of each
grant would be spent on contracts with minority business enterprises (MBEs).
Public contracts normally were awarded to the lowest bidder; the provision
operated to grant public works contracts to the lowest bidder who complied with
the 10% set-aside (quota) goal. The executive policy framed pursuant to the Act
imposed upon those receiving grants and their prime contractors an affirmative
duty to seek out and employ available, qualified, and bona fide MBEs. As the
objective of the MBE provision was to overcome longstanding barriers to minority
participation in public contracting opportunities, the set-aside provision i.e.
condition favoured a higher MBE bid as long as the higher price reflected inflated
costs resulting from past disadvantage and discrimination. The administrative
program therefore authorized the Economic Development Agency to waive the
minority participation requirement where a high minority business bid is not
attributable to the present effects of past discrimination. The plaintiffs in Fullilove
68 448 U.S. 448 (1980).
69 Section 103(f)(2), Public Works Employment Act of 1977
33
were non-minority associations of construction contractors and subcontractors.
They alleged that enforcement of the Public Works Act's MBE requirement caused
economic injury to the non-minority business plaintiffs. In addition, the plaintiffs
asserted that the MBE 10% quota provision violated the equal protection clause of
the fourteenth amendment and the equal protection element of the due process
clause of the fifth amendment.
58. The US Supreme Court held that the interference with the business
opportunities of non-minority firms caused by the 10% set-aside program did not
render the Act constitutionally defective. The Court rejected the alleged equal
protection violation on the grounds that the Act ensured equal protection of the
laws by providing minority businesses an equal opportunity to participate in
federal grants. The later decision Adarand Constructors, Inc. v. Penal70 held that
federal affirmative action programs are now subject to strict scrutiny, just as state
and local programs were since 1989. The court held that “federal racial
classifications, like those of a state, must serve a compelling governmental
interest, and must be narrowly tailored to further that interest.”
South Africa
59. Under South Africa’s Constitution of 1998, Chapter 2, Article 9(3) dealing
with "Equality" reads thus:
"The state may not unfairly discriminate directly or indirectly against
any one on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth".
Chapter 10 says that public administration "must be broadly
representative of the South African people, with objectivity [and]
70515 U.S. 200 (1995)
34
fairness," and it needs "to redress the imbalances of the past to
achieve broad representation”.
60. In furtherance of these provisions, in October 1998, the Employment Equity
Act was legislated. The Act starts with the premise that "pronounced
disadvantages" created by past policies cannot be redressed by a simple repeal of
past discriminatory laws, and there was a need to enforce "employment equity to
redress the effects of discrimination," and "achieve a diverse workforce broadly
representative" of the people of South Africa. The Act has two purposes: (1) to
promote "equal opportunity and fair treatment in employment through the
elimination of unfair discrimination," and (2) to implement "affirmative action
measures to redress the disadvantages in employment experienced by designated
groups, in order to ensure their equitable representation in all occupational
categories and levels in the workforce." Designated groups are defined as black
people (who include Africans, Coloureds and Indians), women, and people with
disabilities.
61. Affirmative action measures for designated groups must include
identification and removal of barriers adversely affecting them, actions to further
diversity, reasonable accommodations to ensure equal opportunity and equitable
representation, and efforts at training to retain and develop them. Representation is
extended to all occupational categories and levels in the workforce and this is to be
ensured through preferential treatment and numerical goals, but not with quotas.
The Employment Equity Plan itself must state the objectives to be achieved each
year, the affirmative action measures with timetables and strategies to be
implemented to accomplish them, and the procedure to evaluate the plan. Each
plan ought not to be for a period of less than one year, and not longer than five
years. (At the expiration of one plan, another may follow.) While preferential
treatment is meant for only suitably qualified people, such suitability may be a
35
product of formal qualifications, prior learning, relevant experience, or capacity to
acquire, within a reasonable time, the ability to do the job.
62. Under the Employment Equity Act, employers must consult with their
employees and representative trade unions, after which an audit of employment
policies and practices in the workplace must be undertaken. Analysis of the
information garnered in the audit is meant to assist in developing demographic
profiles of the work force, and identifying barriers to the employment or
advancement of designated groups. Under-representation of designated groups in
all categories of work must also be identified. Quotas are expressly prohibited
under Section 15(3) of the Act. In 2003, the Black Economic Empowerment Act
was legislated. This Act has as its purpose the "economic empowerment of all
black people, including women, workers, youth, people with disabilities and people
living in rural areas". To measure compliance with black economic empowerment
(BEE) requirements, the Department of Trade and Industry uses a balanced
scorecard, consisting of three broad components. The scorecard will be used for
government procurement, public-private partnerships, sale of state-owned
enterprises, when licenses are applied for, and for any other relevant economic
activity. Strategies aimed at levelling the playing field may include the elimination
of employment barriers such as adapting testing requirements to compensate for
educational disadvantage or lack of work experience71; reviewing recruitment,
selection and promotion procedures to ensure fairness in job competition72;
accelerated and corrective training; and the transformation of work environments
that exclude or otherwise disadvantage designated groups, e.g. measures aimed at
71 Durban City Council (Physical Environment Service Unit) v. Durban Municipal Employees’ Society (DMES)
(1995) 4 ARB 6.9.14.
72 Durban Metro Council (Consolidated Billing) v. IMATU obo Van Zyl and Another (1998) 7 ARB 6.14. 1.
36
integrating career and family responsibilities73 (flexible work schedules, child care
structures, facilitating career breaks, etc).
Canada
63. In Canadian National Railway Co v. Canada (Canadian Human Rights
Commission)74, Dickson J. reasoned that the purpose of an affirmative action
programme is to break a continuing cycle of systemic discrimination. The goal is
not to compensate past victims or even to provide new opportunities for specific
individuals who have been unfairly refused jobs or promotion in the past, but to
ensure that future applicants and workers from the affected groups will not face the
same insidious barriers that blocked their forebears.
64. In Ontario (Human Rights Commission) v Ontario (Ministry of Health)75, the
Ontario Court of Appeal interpreted the affirmative action provisions of the
Ontario Human Rights Code 1990 and the Canadian Human Rights Act 1985, to
reinforce the important insight that substantive equality requires positive action to
ameliorate the conditions of disadvantaged groups. One of the important purposes
of the provisions is to protect affirmative action programmes from being
challenged as violating the formal equality provisions contained elsewhere in the
Code or Act. Affirmative action, according to the court, is aimed at
“achieving substantive equality by enabling or assisting
disadvantaged persons to acquire skills so that they can compete
equally for jobs on a level playing field with those who do not have
the disadvantage. The purpose of s. 14(l) is not simply to exempt or
protect affirmative action programs from challenge. It is also an
interpretative aid that clarifies the full meaning of equal rights by
promoting substantive equality”.76
73Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1996] 1 CMLR 175 (ECJ) at 181.
74 [1987] 1 SCR 1114 at 1143.
75 (1994) 21 CHRR (Ont CA) D/259 at D/265, quoting with approval Sheppard ‘Litigating the relationship
between equity and equality’ (Study paper of the Ontario Law Reform Commission) Toronto (1993) 28.
76 (1994) 21 CHRR (Ont CA) D/259 at D/265.
37
Possibilities for Affirmative Action other than Reservation in India
65. The US practice of encouraging diversity by incentivising it by for instance,
the award of government contracts to firms that have a good record of recruiting
members from racially or ethnically disadvantaged groups, has found echo in
policies in Madhya Pradesh. Other States such as UP, Bihar, Karnataka, AP and
Telangana have followed a policy of affirmative action in awarding contracts and
in that manner protecting SC and ST entrepreneurs’ entry into trade, business and
other public works as contractors. Recently, Karnataka enacted a legislation,
namely, the Karnataka Transparency in Public Procurement (Amendment) Act,
2016, which reserves 24.1% for SC and ST contracts in all Government works,
public contracts up to 50 lakh. This law aims to ensure the presence of SC and ₹
ST contractors and to get the award of Government work without rigid tender
process. Orissa, too provides for a price preference to SC/ST entrepreneurs to the
extent of 10% of contracts of a certain value.
66. There is empirical evidence, in India, in different sectors that access to
productive employment is confined to a few sections of the workforce, among the
most backward of classes, while the rest eke out a living in the informal economy.
The faultlines of division between those who are employed in good jobs and those
who are “excluded” run deep, and are based on caste, religion, region, and other
sectarian divisions all of which overlap with class and gender, such that even
within the small section of the workforce which is productively employed in
decent jobs, some groups are better represented than others, placed higher than
others, while some castes and communities are practically absent in the top
echelons of the private corporate sector. While private employers firmly believe
that jobs should be allocated on the basis of individual merit, their views about
38
how merit is distributed overlaps strongly with existing stereotypes around caste,
religion, gender and regional differences.
67. A method by which the private sector can substantively contribute to
alleviate discrimination and inequality, is through its corporate social responsibility
(CSR) programmes. CSR has been compulsory in India since 2013. These
initiatives have taken two major forms: education of the under-privileged either
through special schools or other programmes to support school-going children, and
support to poor women through home-based work or micro-finance. While these
measures are significant, there are other spheres where CSR could be directed,
with even greater benefits. The definition and scope of CSR needs to be broadened
to include measures to counteract the natural tendencies towards exclusion of
certain groups. Private sector managements need to show sensitivity to societal
patterns of exclusion and must consciously make an attempt not to fall prey
dominant social stereotypes, which penalize people due to their birth into
stigmatizing jobs, even if they might be individually qualified and competent.
68. In addition to being sensitized to the problem of under-representation at the
time of employment (by actively pursuing policies to promote and/or by equal
opportunity employment policies), private companies can also pay attention to
supplier diversity in matters of procurement. By encouraging supplies from firms
owned by SCs, STs, or those from backward class or deprived classes, the large
organized private sector in India could give a huge boost to the micro, medium and
small enterprises owned by entrepreneurs from such marginalized groups. Indeed,
this is also one of the planks used in the USA, for instance, where minority-owned
businesses are not only given active financial incentives by the government, but
larger firms are expected to source a part of their supplies from minority-owned
businesses. Given that typically, SC, ST and backward class individuals owned
micro enterprises are likely to employ greater proportion of persons from these
39
communities (as compared to enterprises owned by upper-caste groups), an active
supplier diversity programme would also boost employment.
69. In view of all these developments, it is time that the states and the Union
government gather data about the extent and reach of the existing schemes for
employment, and in the field of education, take steps to ensure greater access, by
wherever necessary, increasing funding, increasing the number and extent of
coverage of scholarships, and setting up all manner of special institutions which
can train candidates aspiring for higher education, to increase their chances of
entry in admission tests, etc. Likewise, innovative employment incentives to the
private sector, especially in the manner of employment in contracts or projects
awarded by the state or its instrumentalities, need to be closely examined and
implemented. These welfare measures can also include giving tax incentives to
schemes that fund scholarships and easy (or interest free) loans to SC, ST and
SEBC students, which can enhance their access to educational institutions. Today,
even if an SC, or SEBC candidate secures admission in a common entrance
examination for a medical seat, in a private institution, the amounts charged as
annual fees would exclude most of such candidates (even those who are ineligible
to government scholarships, as being marginally above the threshold of ₹
2,50,000/- per annum annual family income). Other incentives, such as awarding
marks while evaluating private entities for the purpose of public tenders, and
giving them appropriate scores or advantage, if their workforce employs defined
percentages of SC/ST or SEBC individuals, etc. too would make a substantial
difference.
Re Point No (2) Whether Maharashtra State Reservation (of seats for admission
in educational institutions in the State and for appointments in the public
services and posts under the State) for Socially and Educationally Backward
Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13%
reservation for Maratha community in addition to 50% social reservation is
40
covered by exceptional circumstances as contemplated by Constitution Bench in
Indra Sawhney’s case?
and Re Point No (3) Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has
made out a case of existence of extraordinary situation and exceptional
circumstances in the State to fall within the exception carved out in the
judgment of Indra Sawhney?
70. I agree, with respect, with the reasoning and conclusions of Ashok Bhushan,
J. on the above two points of reference and have nothing to add.
Re: Point No. 4 Whether Article 342 of the Constitution abrogates State power to
legislate or classify in respect of “any backward class of citizens” and thereby
affect the federal policy/structure of the Constitution of India? And
Point No. 5 Whether, States’ power to legislate in relation to “any backward
class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read
with Article 366(26c) of the Constitution of India?
I. Relevant provisions in consideration
71. Both the above points of reference, by their nature, have to be and therefore,
are considered together. The Constitution (123rd Amendment) Bill, 2017, after its
passage became the Constitution (One Hundred and Second Amendment) Act,
2018; it received the assent of the President of India and came into force on
15.08.2018. The amendment inserted Articles 338B and 342A. These are
reproduced below:
“338B. (1) There shall be a Commission for the socially and
educationally backward classes to be known as the National
Commission for Backward Classes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, ViceChairperson and three other Members and the conditions of service
and tenure of office of the Chairperson, Vice-Chairperson and other
41
Members so appointed shall be such as the President may by rule
determine.
(3) The Chairperson, Vice-Chairperson and other Members of the
Commission shall be appointed by the President by warrant under his
hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission— (a) to investigate and
monitor all matters relating to the safeguards provided for the socially
and educationally backward classes under this Constitution or under
any other law for the time being in force or under any order of the
Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation
of rights and safeguards of the socially and educationally backward
classes;
(c) to participate and advise on the socio-economic development of
the socially and educationally backward classes and to evaluate the
progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those
safeguards;
(e) to make in such reports the recommendations as to the measures
that should be taken by the Union or any State for the effective
implementation of those safeguards and other measures for the
protection, welfare and socio-economic development of the socially
and educationally backward classes; and
(f) to discharge such other functions in relation to the protection,
welfare and development and advancement of the socially and
educationally backward classes as the President may, subject to the
provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each
House of Parliament along with a memorandum explaining the action
taken or proposed to be taken on the recommendations relating to the
Union and the reasons for the non-acceptance, if any, of any of such
recommendations.
42
(7) Where any such report, or any part thereof, relates to any matter
with which any State Government is concerned, a copy of such report
shall be forwarded to the State Government which shall cause it to be
laid before the Legislature of the State along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the State and the reasons for the nonacceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to
in sub-clause (a) or inquiring into any complaint referred to in subclause (b) of clause (5), have all the powers of a civil court trying a
suit and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person from any
part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or
office;
(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting the socially and
educationally backward classes."
xxxxxx xxxxxx xxxxxx
"342A. (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 socially and educationally
backward classes which shall for the purposes of this Constitution be
deemed to be socially and educationally backward classes in relation
to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List
of socially and educationally backward classes specified in a
notification issued under clause (1) any socially and educationally
43
backward class, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification."
72. Article 366(26C), which defined “socially and educationally backward
classes “too was inserted; it is reproduced below, for the sake of reference:
‘366. Definitions.-In this Constitution, unless the context otherwise
requires, the following expressions have the meanings hereby
respectively assigned to them, that is to say-
(1)….
xxxxxx xxxxxx xxxxxx
(26C) "socially and educationally backward classes" means such
backward classes as are so deemed under article 342A for the
purposes of this Constitution;’
73. The Bill which was moved in Parliament by which the 102ndamendment was
introduced, interalia, stated as follows:
“STATEMENT OF OBJECTS AND REASONS
xxxxxx xxxxxx xxxxxx
2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003, a
separate National Commission for Scheduled Tribes was created by
inserting a new article 338A in the Constitution. Consequently, under
article 338 of the Constitution, the reference was restricted to the
National Commission for the Scheduled Castes. Under clause (10) of
article 338 of the Constitution, the National Commission for
Scheduled Castes is presently empowered to look into the grievances
and complaints of discrimination of Other Backward Classes also.
3. In the year 1992, the Supreme Court of India in the matter of
Indra Sawhney and others Vs. Union of India and others (AIR 1993,
SC 477) had directed the Government of India to constitute a
permanent body for entertaining, examining and recommending
requests for inclusion and complaints of over-inclusion and underinclusion in the Central List of Other Backward Classes. Pursuant to
the said Judgment, the National Commission for Backward Classes
Act was enacted in April, 1993 and the National Commission for
Backward Classes was constituted on 14th August, 1993 under the
44
said Act. At present the functions of the National Commission for
Backward Classes is limited to examining the requests for inclusion of
any class of citizens as a backward class in the Lists and hear
complaints of over-inclusion or under-inclusion of any backward class
in such lists and tender such advice to the Central Government as it
deems appropriate. Now, in order to safeguard the interests of the
Socially and Educationally Backward Classes more effectively, it is
proposed to create a National Commission for Backward Classes with
constitutional status at par with the National Commission for
Scheduled Castes and the National Commission for Scheduled Tribes.
4. The National Commission for the Scheduled Castes has
recommended in its Report for 2014-15 that the handling of the
grievances of the Socially and Educationally Backward Classes under
clause (10) of article 338 should be given to the National Commission
for Backward Classes.
5. In view of the above, it is proposed to amend the Constitution
of India, inter alia, to provide the following, namely:—
(a) to insert a new article 338 so as to constitute the National
Commission for Backward Classes which shall consist of a
Chairperson, Vice-Chairperson and three other Members. The said
Commission will hear the grievances of Socially and Educationally
Backward Classes, a function which has been discharged so far by the
National Commission for Scheduled Castes under clause (10) of
article 338; and
(b) to insert a new article 342A so as to provide that the President
may, by public notification, specify the Socially and Educationally
Backward Classes which shall for the purposes of the Constitution be
deemed to be Socially and Educationally Backward Classes.”
II. Contentions of parties
74. The appellants argue that the Maharashtra SEBC Act (which was enacted
and brought into force on 30.11.2018), could not have been enacted, and is clearly
void. It is argued that on a plain reading of Article 342A read with Article
366(26C), it is clear that States were denuded of their power to identify backward
classes and the task was to be performed exclusively by the National Commission
45
for Backward Classes set up under Article 338B (hereafter “NCBC”). Mr. Arvind
Datar, Mr. Shyam Divan and Mr. Gopal Sankaranarayanan, learned senior counsel
emphasized that the expression “for the purposes of this Constitution” under
Article 366(26C) and Article 342A(1) can only imply that the States’ jurisdiction
and power to identify a community as a backward class stood denuded.
Consequently, it is only upon the recommendation of the NCBC that any
community can henceforth be included in the list of SEBCs. It was submitted that
by virtue of Article 342A, even the Union or the Central Government ceases to
have any power to modify, add to or delete from the list so notified under Article
342A(1). It is Parliament alone which can make such modification, deletion or
alteration. The term ‘Central List’ in Article 342(2) is not the list published by the
Union for the affairs of the Union. The Constitution has used the word “Union”
wherever the reference is made to the Government of India or Central Government,
i.e., Articles 53, 73, 79, 309, List I of Schedule VII whereas the word ‘Central
Government’ has been used recently in certain amendments which is not the
expression used in the Constitution originally adopted. Thus, the reference to
“Central List” means only the List in relation to states and union territories, for the
purpose of the Constitution notified under Article 342A (1).
75. Learned senior counsel argued that the decision in Indra Sawhney (supra)
77
had required the setting up of permanent Commissions for identifying communities
or castes such as backward classes to enable their notification by their respective
governments. In the light of this recommendation and having regard to the
principal existing provision under Article 340, Parliament had enacted the National
Commission for Backward Classes Act, 1993 (hereafter “the NCBC Act”). That
enactment used the expression, “Central list” in Section 2(c)78
.
77Paras 847, 855 (c) and 859 (13)- SCC report.
78Defined as “lists” means lists prepared by the Government of India from time to time for purposes of making
provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion
of that Government, are not adequately represented in the services under the Government of India and any local or
46
76. Learned counsel for the appellants submitted that while amending the
Constitution, the expression “Central List” meant the List to be published by the
President on the aid and advice of the Council of Ministers, after consultation with
the Governors, i.e., the aid and advice of the State Governments. Thus, having
regard to plain language of Article 366(26C) and Article 342A as well as the
provisions in Article 338B (7), (8) and (9), there is no question of the State
Governments or State Legislatures retaining any power to identify backward
classes. That power is with the President.
77. It was submitted by Mr. Gopal Sankaranarayan, learned senior counsel that
the object which impelled the Constitution (102ndAmendment) Act, 2018 appears
to be to set up a national body for evolving scientific criteria of uniform
application with regard to the identification of communities as backward classes. It
was submitted that the frequent demands by various communities to be included in
the list of backward classes to garner/gain access to State funded institutions and
for public employment meant that States either succumb to such pressure or apply
ad-hoc criteria and set up ad-hoc bodies which did not or could not consider issues
in a dispassionate and holistic manner. Learned counsel relied upon the decision of
this Court in Ram Singh &Ors. v. Union of India (supra)79 to say that demands
made by such communities led to States providing special reservation, which
became the subject matter of judicial scrutiny.
78. Learned counsel also referred to agitations for inclusion of communities in
other States such as Rajasthan which also led to repeated litigation. It was,
other authority within the territory of India or under the control of the Government of India;
79“54. The perception of a self-proclaimed socially backward class of citizens or even the perception of the
"advanced classes" as to the social status of the "less fortunates" cannot continue to be a constitutionally
permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the
Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical
formulae evolved by taking into account social, economic and educational indicators. Determination of
backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions
but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious
abdication of the constitutional duty of the State.”
47
therefore, argued that to avoid these instances, and to ensure that a national
standard for considering the relevant indicia for backwardness is constitutionally
applied, an amendment to the Constitution was made. Learned counsel urged that
the position adopted by the States, i.e., that they were not denuded of executive and
legislative power and that the amendment only sought to give additional
constitutional status to the existing NCBC is unfounded. It was pointed out that
before the coming into force of the Constitution (102ndAmendment) Act, 2018,
Article 340 existed under the original Constitution. Parliament, in exercise of its
legislative power, enacted the NCBC Act. The NCBC had existed for 27 years and
had conducted surveys and identified several communities as backward. The lists
published by it were in existence and were in use by the Central Government for its
purposes, including in public employment. Undoubtedly, not all communities
included in the States’ lists were part of the NCBC list. However, the list was
broadly common to a large extent. Learned counsel emphasized that there was no
necessity for bringing any constitutional amendment if the new Commission were
to be given constitutional status and the lists published by it, made binding only on
the Central Government which was to acquire such high degree of status that it
could be modified by Parliament alone. It was submitted that surely, State
interference with the Central list did not warrant such a drastic measure as a
constitutional amendment.
79. Mr. Sankaranarayanan submitted that although there are passages in the
report of the Select Committee of the Rajya Sabha, Parliament had discussed the
amendment and taken into account the views of certain individuals; the fact
remains that it is the text of the Constitution as amended, which is to be
interpreted. Learned counsel relied upon the decisions reported as State of
Travancore-Cochin v. Bombay Company Ltd80; Aswini Kumar Ghose &Anr. v.
801952 SCR 1112
48
Arabinda Ghose & Anr.81and P.V. Narasimha Rao v. State82
. He also referred to the
decision in Sanjeev Coke Manufacturing v. Bharat Coking Coal Ltd. &Anr83
.It was
submitted that the consistent opinion of this Court has been the one adopted in
Pepper v. Hart84
, which permits reference to the statements made in the House at
the time of the introduction of Bill as an aid to construction of legislation which is
ambiguous or obscure, and not in any other circumstances. It was thus submitted
that the intention of the amendment was to ensure that a uniform standard and one
aware of looking at backwardness in an objective manner, was to be adopted and
applied, for the purposes of the Constitution. This also was aimed at eliminating
the mischief that led to the introduction of communities as a consequence of
protests – having been triggered by political considerations on the eve of elections.
80. The submissions articulated on behalf of the respondent States by Mr. Mukul
Rohatgi, Mr. Kapil Sibal, Dr. A.M. Singhvi and Mr. Naphade, Additional
Advocates General and Standing Counsel appearing on behalf of the various
States, was that the interpretation suggested by the appellants is drastic. It was
emphasized that the States’ responsibility under Article 15(4) and 16(4) to make
special provisions including reservations is undeniable. In the absence of any
amendment to these provisions, learned counsel submitted that the Constitution
(102ndAmendment) Act, 2018 cannot be so interpreted as to denude the States of
their powers altogether. Learned counsel submitted that pursuant to the
recommendations and directions in Indra Sawhney (supra), not only was the
NCBC Act enacted; in addition, different States also set up permanent
commissions to identify communities as backward classes for the purpose of
Constitution. Those Commissions were set up in exercise of legislative powers
81AIR 1953 SC 75
82(1998) 4 SCC 626.
83 (1983) 1 SCR 1000.
841993 (1) All. ER 42.
49
traceable to one or the other Entry in List II of the Seventh Schedule to the
Constitution. The plenary legislative power of the States remains unaltered. That
being the case, this Court should not accept the appellants’ submission that Articles
338B and 342A place fetters upon the exercise of such legislative power as well as
executive power of the States.
81. Learned counsel submitted that this Court should closely examine the
contents of the report of the Select Committee of the Rajya Sabha, and the
statements made by the Government, particularly that the power and jurisdiction of
the States would remain unaffected. It was further urged that this Court can and
should and ought to have looked into the contents of these reports to discern the
true meaning and intent behind the Constitution (One Hundred and Second
Amendment) Act, 2018, which was not to disrupt the existing legislative
arrangement between the Centre and the State. In this regard, learned counsel
placed reliance upon the judgment of this Court in Kalpana Mehta and Ors. v.
Union of India and Ors.85
,and submitted that the Court can take aid of reports of
Parliamentary Committees for the purpose of appreciating the historical
background of statutory provisions, and also to resolve the ambiguity in the
legislation.
82. It was submitted that if the matter were to be considered in the true
perspective and the report of the Select Committee, examined as an aid to
interpretation of the Constitution (102ndAmendment) Act, 2018, especially Article
342A, it would be apparent that the Parliament never intended, by the amendment,
to disturb the existing order and denude the States of their executive or legislative
power to identity backward classes while making special provisions under Articles
15(4) and 16(4). It was submitted that Indra Sawhney (supra) only created a larger
movement for the setting-up of Commissions by the Union and the States. Learned
counsel emphasized that even while identifying the communities for the purpose of
85(2018) 7 SCC 1
50
the Central List, the views of the States were always ascertained. Parliament
merely sought to replicate the amendment by which collection of data has been
undertaken under Article 338 (in relation to SCs). The introduction of Article 338B
was in line with the introduction of Articles 338A and 338 – which enables the
setting-up of National Commissions for Scheduled Castes and Scheduled
Tribes(the latter through another amendment which was brought into force on
19.02.2004).
83. It was submitted that Articles 366(26C), 338B and 342A(1) have to,
therefore, be read harmoniously in the light of the expression “Central List” which
occurs in Article 342A(2). This would be in keeping with the debates and
assurances held out in the Select Committee report that States’ power would
continue to remain unaffected. It was submitted that such construction would result
in a harmonious interpretation of all provisions of the Constitution.
84. The learned Attorney General, appearing on account of notice issued by this
Court, urged that the 102nd Amendment did not bring about a radical change in the
power of identification of backward classes, in relation to states, and that this
power continues to remain with states. He submitted that the comparison by the
appellants, with the powers conferred by Article 338 and the Presidential power
under Article 341 and Article 342, is inapt, because those were original provisions
of the Constitution, having a historical background. It was submitted that the states’
responsibilities to uplift the lot of weaker sections, apparent from the directive
principle under Article 46, is through affirmative policies under Articles 15(4) and
16(4). To alter this balance, which had existed from the beginning of the coming
into force of the Constitution, is too drastic, and nothing in the debates leading to
the 102nd Amendment, or in any material, such as the Select Committee Report,
suggests that end.
85. The learned Attorney General also submitted that the object of the 102nd
amendment was to ensure that a commission with constitutional status would
51
periodically examine the needs of socially and educationally backward classes
(“SEBC” hereafter), and suggest inclusion or exclusion of such classes, in a list for
the purposes of Central Government, or central public sector corporation
employment, and extension of other benefits under union educational and other
institutions, under Articles 15 (4) and 16 (4). In case such a list is drawn and
published under Article 342A (1), it is only Parliament that has the power to
modify it. This does not, in any manner disturb or take away the states’ power to
identify or include communities as backward classes of citizens for the purposes of
benefits that they wish to extend to them, through state policies and legislation, or
for reservation in state employment under Article 16 (4). He highlighted that the
term “Unless the context otherwise requires” is the controlling phrase, which
precedes the definition of various terms under Article 366 of the Constitution.
Therefore, if the context is different- as is evident from Article 342A (2), by the use
of the term “Central List”, that should be given meaning, and the interpretation
based on that meaning should prevail in the construction of the entire provision
(i.e. Article 342A).
86. The learned Attorney General further argued that this court had specifically
recognized the states’ power to identify, make special provisions, and reservations,
in Indra Sawhney. He urged that the 102nd Amendment was not meant to limit this
constitutional obligation of the states, but rather to streamline the method of
identification of socially and educationally backward class of citizens, for the
purpose of central employment, and centrally funded and sponsored schemes,
institutions and facilities. It was urged that this is apparent from the use of the
expression “Central List” in Article 342A (2), which has to guide the interpretation
of the list referred to in Article 342A (1).
III. Provisions relating to Scheduled Castes and Scheduled Tribes, in the
Constitution of India
52
87. Before proceeding with the interpretation of the provisions of the 102nd
Amendment, it would be useful to briefly recapitulate the provisions that existed
for the identification of SCs and STs. Before the Constitution was framed, the
Government of India Act, by Section 26 defined SCs86. One Dr. J.H. Hutton, a
Census Commissioner of India, framed a list of the depressed classes
systematically, and that list was made the basis of an order promulgated by the
British Government in India called the Government of India (Scheduled Castes)
Order, 1936. This court, in one of its decisions noticed that such list became the
basis for the Constitution (Scheduled Castes) Order, 1950.87 Article 338 as
originally enacted, provided for appointment of a special officer for the SCs and
STs to investigate all matters relating to the safeguards provided for the SCs and
STs under the Constitution and to report to the President on their working. In 1990,
this position changed, and the Constitution (Sixty Fifth) Amendment Act was
enacted to create a five-member commission under Article 338. The statement of
objects88 envisioned that such a commission would be
“a more effective arrangement in respect of the constitutional
safeguards for Scheduled Castes and Scheduled Tribes than a single
Special Officer as at present. It is also felt that it is necessary to
elaborate the functions of the said Commission so as to cover
measures that should be taken by the Union or any State for the
effective implementation of those safeguards and other measures for
the protection, welfare and socio-economic development of the
Scheduled Castes and Scheduled Tribes.”
88. The composite Commission for SCs and STs was bifurcated by another
amendment- the Constitution (Eighty Ninth Amendment) Act, 2003, which inserted
86" the scheduled castes " means such castes, races or tribes or parts of or groups within castes, races or tribes,
being castes, races, tribes, parts or groups, which appear to His Majesty in Council to correspond to the classes of
persons formerly known as " the depressed classes", as His Majesty in Council may specify”
87Soosai Etc vs Union of India1985 Supp (3) SCR 242.
88Statement of Objects and Reasons, Constitution Sixty fifth Amendment Act, 1990
53
Article 338A, enabling the creation of a commission exclusively to consider
measures and make recommendations for amelioration of STs. Article 338B has
now been introduced through the 102nd amendment, which is in issue.
89. The relevant provisions relating to SCs and STs under the Constitution are
extracted below:
“Article 366
366. Definitions.-In this Constitution, unless the context otherwise requires,
the following expressions have the meanings hereby respectively assigned to
them, that is to say-
(1) xxxxxx xxxxxx xxxxxx
(24) “Scheduled Castes” means such castes, races or tribes or parts of or
groups within such castes, races or tribes as are deemed under Article 341 to
be Scheduled Castes for the purposes of this Constitution;”
(25) “Scheduled Tribes” means such tribes or tribal communities or parts
of or groups within such tribes or tribal communities as are deemed under
article 342 to be Scheduled Tribes for the purposes of this Constitution;”
Article 338
338. [National Commission for Scheduled Castes] (1) There shall be a
Commission for the Scheduled Castes to be known as the National
Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the
Commission shall consist of a Chairperson, Vice-Chairperson and three other
Members and the conditions of service and tenure of office of the
Chairperson, Vice-Chairperson and other Members so appointed shall be
such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the
Commission shall be appointed by the President by warrant under his hand
and seal.
(4) The Commission shall have the power to regulate its own procedure.
54
(5) It shall be the duty of the Commission —
(a) to investigate and monitor all matters relating to the safeguards provided
for the Scheduled Castes under this Constitution or under any other law for
the time being in force or under any order of the Government and to evaluate
the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights
and safeguards of the Scheduled Castes;
(c) to participate and advise on the planning process of socio-economic
development of the Scheduled Castes and to evaluate the progress of their
development under the Union and any State;
(d) to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should
be taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socioeconomic development of the Scheduled Castes; and
(f) to discharge such other functions in relation to the protection, welfare and
development and advancement of the Scheduled Castes as the President may,
subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of
Parliament along with a memorandum explaining the action taken or
proposed to be taken on the recommendations relating to the Union and the
reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with
which any State Government is concerned, a copy of such report shall be
forwarded to the Governor of the State who shall cause it to be laid before the
Legislature of the State along with a memorandum explaining the action
taken or proposed to be taken on the recommendations relating to the State
and the reasons for the non-acceptance, if any, of any of such
recommendations.
55
(8) The Commission shall, while investigating any matter referred to in subclause (a) or inquiring into any complaint referred to in sub-clause (b) of
clause (5), have all the powers of a civil court trying a suit and in particular
in respect of the following matters, namely :—
(a) summoning and enforcing the attendance of any person from any part of
India and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission on
all major policy matters affecting Scheduled Castes.”
Before the 102nd Amendment Act, the following sub-Article formed part of
Article 338:
“(10) In this article, references to the Scheduled Castes and to such
other backward classes as the President may, on receipt of the report
of a Commission appointed under clause (1) of article 340, by order
specify and also shall be construed as including references to the
Anglo-Indian community.”
By the 102nd Amendment Act, the words “and to such other backward classes as
the President may, on receipt of the report of a Commission appointed under
clause (1) of article 340, by order specify” were deleted89. The other provisions
relating to SCs and STs are as follows:
“338A. National Commission for Scheduled Tribes.—
89By Section 2 which is as follows: “2. In article 338 of the Constitution, in clause (10), the words, brackets and
figures "to such other backward classes as the President may, on receipt of the report of a Commission appointed
under clause (1) of article 340, by order specify and also" shall be omitted”.
56
(1) There shall be a Commission for the Scheduled Tribes to be known
as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, ViceChairperson and three other Members and the conditions of service
and tenure of office of the Chairperson, Vice-Chairperson and other
Members so appointed shall be such as the President may by rule
determine.
(3) The Chairperson, Vice-Chairperson and other Members of the
Commission shall be appointed by the President by warrant under his
hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission— (a) to investigate and
monitor all matters relating to the safeguards provided for the
Scheduled Tribes under this Constitution or under any other law for
the time being in force or under any order of the Government and to
evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation
of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Tribes and to evaluate the
progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those
safeguards;
(e) to make in such reports recommendation as to the measures that
should be taken by the Union or any State for the effective
implementation of those safeguards and other measures for the
protection, welfare and socio-economic development of the Scheduled
Tribes; and
(f) to discharge such other functions in relation to the protection,
welfare and development and advancement of the Scheduled Tribes as
the President may, subject to the provisions of any law made by
Parliament, by rule specify.
57
(6) The President shall cause all such reports to be laid before each
House of Parliament along with a memorandum explaining the action
taken or proposed to be taken on the recommendations relating to the
Union and the reasons for the non-acceptance, if any, of any such
recommendations.
(7) Where any such report, or any part thereof, relates to any matter
with which any State Government is concerned, a copy of such report
shall be forwarded to the Governor of the State who shall cause it to
be laid before the Legislature of the State along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the State and the reasons for the nonacceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to
in sub-clause (a) or inquiring into any complaint referred to in subclause (b) of clause (5), have all the powers of a civil court trying a
suit and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person from any
part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or
office;
(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled Tribes.]
Article 341
341. 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 may be
58
(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
Article 342
342. Scheduled Tribes -(1) The President may with respect to any
State or Union territory, and where it is a State, after consultation
with the Governor thereof, by public notification, specify the tribes or
tribal communities or parts of or groups within tribes or tribal
communities which shall for the purposes of this Constitution be
deemed to be Scheduled Tribes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause ( 1 )
any tribe or tribal community or part of or group within any tribe or
tribal community, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification.”
IV. Previous commissions set up to identify SEBCs
90. It would be useful at this stage to recollect that before Indra Sawhney, two
commissions were set up at the national level, to examine and make suitable
recommendations in respect of identification of other backward classes. These
were the Kaka Kalelkar Commission90 and the B.P. Mandal Commission91. The
Kalelkar Commission, after an exhaustive survey and study, through its report,
identified 2399 backward groups and recommended several measures for their
advancement, as steps that could be taken by the Union and the states. The Mandal
Commission report identified individuals belonging to 3,743 different castes and
communities, as “backward”.
V. Interpretation of provisions similar to Article 342A- i.e. Articles 341 and
342 of the Constitution of India
90 Set up by the Central Government, in January 1953.
91 Set up by the Central Government on 1 January, 1979.
59
91. The consistent view while interpreting Articles 341 and 342 has been that
the power which the Constitution conferred is initially upon the President, who,
after the introduction of the 65th and 89th Amendments and the insertion of Articles
338 and 338A, is aided in the task of identification of the SCs and STs, by two
separate Commissions, to include or exclude members claiming to be SCs or STs.
The view of this Court has been that once a determination has been done, no court
can, by interpretive process, or even the executive through its policies, include
members of other communities as falling within a particular class or described
community or even in any manner extend the terms of the determination under
Articles 341 or 342. The power to further include, or modify contents of the
existing list (of SC/STs) is with Parliament only [by reason of Article341 (2) and
Article 342 (2)] This position has been consistently followed in a series of
decisions. Likewise, in the interpretation as to which communities are categorized
as SCs or STs, this Court has been definite, i.e. that only such classes or
communities who specifically fall within one or the other lists, that constitute SCs
or such STs for the purpose of this Constitution under Article 366(24) and Article
366 (25). This has been established in the decision of this Court in Bhaiya
Lal v. Harikishan Singh92; Basavalingappa v Munichinnappa93 and Kishori Lal
Hans v. Raja Ram Singh94The recent Constitution Bench decision in Bir Singh v.
Delhi Jal Board95, reiterated this position clearly:
“36. The upshot of the aforesaid discussion would lead us to the
conclusion that the Presidential Orders issued under Article 341 in
regard to Scheduled Castes and under Article 342 in regard to
Scheduled Tribes cannot be varied or altered by any authority
including the Court. It is Parliament alone which has been vested with
the power to so act, that too, by laws made. Scheduled Castes and
92 1965 (2) SCR 877.
93 1965 (1) SCR 316.
94 1972 (3) SCC 1.
95 (2018) 10 SCC 312.
60
Scheduled Tribes thus specified in relation to a State or a Union
Territory does not carry the same status in another State or Union
Territory. Any expansion/deletion of the list of Scheduled
Castes/Scheduled Tribes by any authority except Parliament would be
against the constitutional mandate under Articles 341 and 342 of the
Constitution of India.
******** ********
38. It is an unquestionable principle of interpretation that interrelated
statutory as well as constitutional provisions have to be harmoniously
construed and understood so as to avoid making any provision
nugatory and redundant. If the list of Scheduled Castes/Scheduled
Tribes in the Presidential Orders under Articles 341/342 is subject to
alteration only by laws made by Parliament, operation of the lists of
Scheduled Castes and Scheduled Tribes beyond the classes or
categories enumerated under the Presidential Order for a particular
State/Union Territory by exercise of the enabling power vested by
Article 16(4)would have the obvious effect of circumventing the
specific constitutional provisions in Articles 341/342. In this regard, it
must also be noted that the power under Article 16(4) is not only
capable of being exercised by a legislative provision/enactment but
also by an Executive Order issued under Article 166 of the
Constitution. It will, therefore, be in consonance with the
constitutional scheme to understand the enabling provision under
Article 16(4) to be available to provide reservation only to the classes
or categories of Scheduled Castes/Scheduled Tribes enumerated in the
Presidential Orders for a particular State/Union Territory within the
geographical area of that State and not beyond. If in the opinion of a
State it is necessary to extend the benefit of reservation to a
class/category of Scheduled Castes/Scheduled Tribes beyond those
specified in the Lists for that particular State, constitutional discipline
would require the State to make its views in the matter prevail with the
central authority so as to enable an appropriate parliamentary
exercise to be made by an amendment of the Lists of Scheduled
Castes/Scheduled Tribes for that particular State. Unilateral action by
States on the touchstone of Article 16(4) of the Constitution could be a
possible trigger point of constitutional anarchy and therefore must be
held to be impermissible under the Constitution.”
VI. Pre-102nd Amendment position in the Constitution in relation to SEBCs
61
92. The original Constitution did not contain any special provision of like
manner as Articles 341 and 342. It did not define SEBCs. The only reference to
SEBCs was in Article 340, which enabled the Central Government to setup a
Commission for recommending measures for the progress and upliftment of
backward classes of citizens. That provision is as follows:
“340. Appointment of a Commission to investigate the conditions of
backward classes
(1) The President may by order appoint a Commission consisting of
such persons as he thinks fit to investigate the conditions of socially
and educationally backward classes within the territory of India and
the difficulties under which they labour and to make recommendations
as to the steps that should be taken by the Union or any State to
remove such difficulties and to improve their condition and as to the
grants that should be made for the purpose by the Union or any State
the conditions subject to which such grants should be made, and the
order appointing such Commission shall define the procedure to be
followed by the Commission
(2) A Commission so appointed shall investigate the matters referred
to them and present to the President a report setting out the facts as
found by them and making such recommendations as they think proper
(3) The President shall cause a copy of the report so presented
together with a memorandum explaining the action taken thereon to
be laid before each House of Parliament”
93. After the decision of this Court in Champakam Dorairajan v. State of
Madras96
, Article 15 was amended and Article 15 (4) was introduced. The term
“socially and educationally backward class of citizens” was inserted, conferring
power upon the State to make special provisions for their advancement. This term
“socially and educationally backward” has been held to also provide colour the
term “backward class” in the decision in Indra Sawhney – as indeed in the earlier
decision in NM Thomas (supra). This court noticed that ‘backward class’ of
96 AIR 1951 SC 226.
62
citizens, though wider in context, has to take colour from social backwardness,
which also results in educational backwardness.
94. Indra Sawhney in para 859 (13)97, had issued directions with regard to the
desirability of setting up Commissions by the Central and State Governments, to
ascertain the position and identification of backward class of citizens, evaluation of
rational criteria and periodic review of such lists. Pursuant to this direction,
Parliament introduced the NCBC Act, 1993. This Act defined ‘Central List’ under
Section 2(c). The terms of this enactment make it clear that the lists of backward
class of citizens prepared by the Commission and recommended to the Central
Government were to be for the purposes of providing reservations in employment
under Article 16(4), and for reservations and other ameliorate measures that the
Central Government can initiate and introduce under Article 15(4). Acting on the
recommendations of this court, post Indra Sawhney, several State Governments
appeared to have enacted other laws for setting up commissions for backward class
and backward caste groups98. In four States – Tamil Nadu, Gujarat, Punjab and
Haryana, the Commissions were set up by executive action.
95. This Court had at the earlier part of this section, set out the provisions of
Article 366(26C), Article 338B and Article 342A. The Statement of Objects and
Reasons for the introduction of these provisions – referred to compendiously as the
102nd Amendment – do not indicate any concrete purpose for the insertion of those
provisions, except the general comment that Parliament wished to confer
constitutional status on the Commission for determination of SEBCs.
97SCC report.
98 The Maharashtra SCBC Act, 2006 is one such institution. The others are Karnataka State Commission for
Backward Classes, 1995; A.P. Commission for Backward Classes Act, 1995; U.P. State Commission for Backward
Classes Act, 1996; Kerala State Commission for Backward Classes Act, 1993; Madhya Pradesh Rajya
PichdaVargAdhiniyam, 1995; Bihar State Commission for Backward Classes Act, 1993; Assam Backward Classes
Commission Act, 1993; Orissa State Commission for Backward Classes Act, 1993; West Bengal Commission for
Backward Classes Act, 1993; J&K State Commission for Backward Classes Act, 1997; Chhatisgarth Rajya Pichhda
Varga Adhiniyam, 1993 & Telangana Commission for Backward Classes Act, 1993.
63
VII. The Constitution 123rd Amendment Bill, the 102nd Amendment Act and
report of the Parliamentary Standing Committee
96. Learned counsel for the respondents as indeed the appellants referred
extensively to the deliberations recorded in and assurances given, and reflected in
the Report of the Select Committee of the Rajya Sabha, submitted to the
Parliament at the time when the 123rd amendment bill was introduced. A brief
reference of this can now be made. The introduction (to the Report dated (July
2017) disclosed that in all, seven meetings were held by the Select Committee.
The committee comprised 25 members, with a Secretariat of 7 officials. It took
note of statements made by three representatives of the Ministry of Social Justice,
two from the Department of Legal Affairs and three from the Legislative
Department.
97. The Report noted the background of introduction of the 123rd Amendment
Bill including the amendments to Article 338 and the introduction of Article 338B.
It traces the history of the Backward Class Commissions set up under Article 340,
the office memoranda which led to the Judgment in Indra Sahwney, as well as the
direction by this Court in that Judgment regarding setting up of commissions. It
further noted the existing legal regime i.e., the NCBC Act, and noted that several
experts felt that there was no change or amendment needed to alter the existing
regime for identification of backward classes. In Para 20 of the Report, it was
noted that in the Fifth Consultation Meeting, the members had raised the concern
as to whether Article 342A(1) would exclude state consultation. The relevant para
reads as follows:
“18. It was also submitted that the powers and functions of the State
Government and the State Backward Classes Commissions with
regard to identification, exclusion and inclusion of classes in the State
List should be clarified. Further, the process of consultation with the
Governor should also be clarified in the Bill.
64
19. In response to the above issues raised, the Ministry clarified that
sub-clause (9) of article 338B does not in any way interfere with the
powers of the State Governments to prepare their own list. The
Committee was further informed that classes so included in the State
Backward Classes List do not automatically come in the Central List
of OBCs.
20. In its fifth meeting representatives/Members raised a concern
about clause (1) of Article 342A, whether the list would be issued by
the President after consultation with the State Government or
consultation with only Governor of the State. It was clarified by the
Ministry that clause (1) of Article 154 and Article 163 of the
Constitution clearly state that the Governor shall act on the advice of
the Council of Ministers. It is also clarified that under the above
Constitutional provisions, the Governor shall exercise his authority
either directly or indirectly through officers of respective State
Government. Article 341 of Constitution provides for consultation
with Governor of State with respect to Scheduled Castes and Article
342 of the Constitution provides consultation of President with
Governor of State in respect of Scheduled Tribes. As is the practice,
at not time has the State Government been excluded in the
consultation process. It is always invariably the State Government
which recommends to the President the category of
inclusion/exclusion in Scheduled Castes and Scheduled Tribes.
Similar provision is provided for in the case of conferring of
constitutional status for backward classes for inclusion in Central list
of socially and educationally backward classes. Consultation with
Governor thereby implies consultation with the State Government.”
98. In its clause-by-clause consideration of the Bill, the Committee noted the
apprehension with respect to setting up of a new Commission in Article 342B
instead of creating it under Article 340. In this context, a clarification was issued
that Article 340 enabled setting up of adhoc bodies like the Kaka Kalelkar
Commission and Mandal Commission, whereas Article 338B sought to confer
Constitutional status on a multi-member permanent body. Paras 31-34 of the
Report discussed the membership of the composition of the Commission under
Article 338B and also whether the NCBC Act would be repealed. Interestingly,
65
Para 47 reflects the discussion regarding an amendment by which new Sub-Article
10 was proposed to Article 338B. It read as follows:
“47. The Committee discussed the amendment wherein in article 338B
a new sub-clause (10) was proposed to be inserted. This sub-clause
(10) would read as follows:
‘Notwithstanding anything provided in clause 9, the State Government
shall continue to have powers to identify Socially and Educationally
Backward Classes’.
99. The Committee was satisfied, in the Report with the clarification issued by
the concerned Ministry in the following terms:
“48. It was clarified by the Ministry of Social Justice and
Empowerment to the Committee that the proposed amendment does
not interfere with the powers of the State Governments to identify the
Socially and Educationally Backward Classes. The existing powers of
the State Backward Classes Commission would continue to be there
even after the passage of the Constitution (One Hundred and Twentythird Amendment) Bill, 2017.”
100. Para 50-53 (of the Report) set out proposals to amend Article 342A which
limited it to making provisions for reservations in appointments or posts under the
Government of India or under the authority of the Government of India and also
consequential amendment to Article 342A (2). Further, a proposed Article 342A(3)
sought to empower the State Government - i.e. the Governor which could by public
notification, specify SEBCs for the purposes of reservation of posts under the State
or under any authority of the State. A like amendment was proposed, i.e., Article
342A (4) that:
“the Governor may on the advice of the State Commission of
Backward Classes include or exclude from the State list of socially
and educationally backward classes specified in a notification issued
under Clause (3)”.
66
101. The other set of amendments discussed were firstly, to Article 342A(1) that
with respect to a State or Union Territory, the President could make inclusions
“with prior recommendation of the State Government, given due regard to such
recommendations”, and secondly, for the introduction of Article 342A(3) and (4)
enabling the State to issue public notifications - like in the case of Article 342A(1)
and the consequential amendment thereof through legislation alone, via proposed
Article 342A (4).
102. Other amendments with respect to placing the report of the Commission
under Article 338B before both Houses of Parliament, consultation with the
governor to be based upon advice given to the governor by the state commission
for backward classes, and amendment of the list under Article 342A (1) being only
through a law based upon recommendations of the Commission under Article 338A
and 338B and also obliging and revision of the list in ten year periods, were
suggested.
103. All these were duly considered in the Committee’s Report and not accepted,
stating as follows:
“54. The Ministry, on the amendments moved, clarified that time
bound decadal revision of lists by the proposed Commission, is a
continuous process. The Commission however, is empowered to
enquire into specific complaints with respect to the deprivation of
right and safeguards of the socially and educationally backward
classes.
55. The Ministry clarified that the aspect of reservation of posts under
that State or under any other authority of the State or under the
control of the State, or seats in the educational institutions within that
State was beyond the purview of the instant Bill and hence the
amendments proposed are not allowed.
56. It was clarified by the Ministry that clause (1) of article 154 and
article 163 of the Constitution clearly state that Governor shall act on
the advice of the Council of Ministers. It was informed that under the
above Constitutional provisions the Governor shall exercise his
67
authority either directly or indirectly through officers of respective
State Government. Article 341 of Constitution provides for
consultation by the President with Governor of State with respect to
Scheduled Castes and article 342 of the Constitution provides
consultation by the President with Governor of State in respect of
Scheduled Tribes. As is the practice at no time has the State
Government been excluded in the consultation process. It is always
invariably the State Government which recommends to the President
the category of inclusion /exclusion in Scheduled Castes and
Scheduled Tribes. Similar provision is provided for in the case of
conferring of constitutional status for backward classes for inclusion
in Central list of SEBC. Consultation with Governor thereby implies
consultation with the State Government.
57. The Ministry also clarified to the Committee that the phrase “for
the purpose of this Constitution” as provided under clause (1) of
article 342A is on lines similar to articles 341 and 342 of the
Constitution. The setting up of the proposed Commission will not be
retrograde to the interest of the socially and educationally backward
classes. The article 342A will provide for a comprehensive
examination of each case of inclusion/exclusion from the Central List.
The ultimate power for such inclusion/exclusion would stand vested
with the Parliament.
58. The Committee held discussion on the proposed amendments and
in view of the detailed explanations furnished by the Ministry, the
Committee adopted the Clause 4 of the Bill without any amendments.
***
104. The section dealing with the amendment to Article 366 reads as follows:
“Clause 5:Provides for amendment of article 366
59. This Clause proposes to insert a new clause (26C) in article 366
which reads as under:-
“(26C) socially and educationally backward classes” means such
backward classes as are so deemed under article 342A for the
purposes of this Constitution;”
***
68
105. The Report of the Select Committee, made certain concluding general
observations, a part of which stated that:
“66. The Committee feels that the Constitutional Amendments
proposed in this Bill would further strengthen affirmative action in
favour of socially and educationally backward classes as well as
further boost concept of cooperative federalism between the Centre
and States.
67. The Committee observes that the amendments do not in any way
affect the independence and functioning of State Backward Classes
Commissions' and they will continue to exercise unhindered their
powers of inclusion/exclusion of other backward classes with relation
to State List.
68. The Committee also took note of the concerns raised by some
Members regarding the composition of the Commission and would
like to impress upon the Ministry that while addressing the concerns
of the Members the rules framed for the Chairperson and Members of
the National Commission for Scheduled Casts and National
Commission for Scheduled Tribes may be taken into consideration.
The Committee is of the view that while framing the rules for
composition of the proposed Commission and selection of its
Chairperson it should be ensured that the persons belonging to
socially and educationally backward classes be given due
representation to inspire confidence amongst the socially and
educationally backward classes. It may further be ensured that at
least one-woman member is part of the Commission.
69. The Committee hopes that the Bill would bring a sea change
by putting in place effective and efficient delivery mechanism for the
welfare of socially and educationally backward classes.”
VIII Extrinsic aids to interpretation of statutes: the extent to which they can be
relied upon
106. The parties presented rival submissions with respect to interpretation of the
words of the statute in the light of the reports of the Select Committee report as
69
well as the debates in Parliament at the time of introduction of the amendment, or
the law as enacted. The appellants asserted that such debates are of limited
assistance only as external aids in the case of an ambiguity and had relied upon a
line of decisions starting with State of Travancore-Cochin v. Bombay Trading
Company (supra) and culminating in P.V. Narasimha Rao (supra). On the other
hand, the respondent States alluded to the larger bench decision of this Court in
Kalpana Mehta (supra) which emphatically held that Standing Committee reports
and statements made on the floor of House can be limited extrinsic aids for
considering and interpreting express terms of a statute, or even the Constitution.
107. In the present case, the Statement of Objects and Reasons do not throw
much light on why the provisions of the 102ndAmendment Act were introduced. No
doubt, there are certain passages in the Select Committee Report suggestive of the
fact that the power of identification carved out through the newly inserted Articles
338B and 342A would not in any manner disturb the powers of the State to carry
on their work in relation to special provisions or reservations for backward classes
(through appropriate measures, be it legislative or executive). A holistic reading of
the report also suggests that the Select Committee reflected both points of view and
recorded the assurances given by the Ministry that the State’s power would not be
disturbed. At the same time, in conclusion, it was emphatically stated that the
States’ concerns would be given due regard and that the exercise would be in line
with the existing procedure under Articles 341 and 342.99 The report also contains
notes of dissent, which highlight that the amendments would deprive the States of
their existing power to identify, and provide reservations and other special
provisions for the benefit of SEBCs.
99“57. The Ministry also clarified to the Committee that the phrase “for the purpose of this Constitution” as
provided under clause (1) of article 342A is on lines similar to articles 341 and 342 of the Constitution. The setting
up of the proposed Commission will not be retrograde to the interest of the socially and educationally backward
classes. The article 342A will provide for a comprehensive examination of each case of inclusion/exclusion from the
Central List. The ultimate power for such inclusion/exclusion would stand vested with the Parliament.”
70
108. There cannot be a disagreement with the proposition that where the
provisions of the statute or its wordings are ambiguous, the first attempt should be
to find meaning, through internal aids, in the statute itself. Failing this, it is open to
the court to find meaning, and resolve the ambiguity, by turning to external aids,
which include the statements of objects and reasons, as well as Parliamentary
reports, or debates in Parliament. To this Court, it appears that the task of
interpreting the provisions of 102ndAmendment does not begin by relying on
external aids such as Statement of Objects and Reasons (which throw practically
no light on the meaning of the provisions), or even the Select Committee Report.
The task of interpretation is first to consider the overall scheme of the provisions,
and secondly, after considering the provision, proceed to resolve any perceived
ambiguity, if found, by resorting to aids within the statute. It is at the third stage,
when such resolution is impossible, that external aids are to be looked into. Thus,
in a seven-judge bench decision, this court, in State of Karnataka v. Union of
India100administered the following caution, while outlining the court’s task of
interpreting the Constitution:
“The dynamic needs of the nation, which a Constitution must fulfil,
leave no room for merely pedantic hair-splitting play with words or
semantic quibblings. This, however, does not mean that the Courts,
acting under the guise of a judicial power, which certainly extends to
even making the Constitution, in the sense that they may supplement it
in those parts of it where the letter of the Constitution is silent or may
leave room for its development by either ordinary legislation or
judicial interpretation, can actually nullify, defeat, or distort the
reasonably clear meaning of any part of the Constitution in order to
give expression to some theories of their own about the broad or basic
scheme of the Constitution. The theory behind the Constitution which
can be taken into account for purposes of interpretation, by going
even so far as to fill what have been called the "interstices" or spaces
left unfilled, due perhaps to some deliberate vagueness or
1001978 (2) SCR 1.
71
indefiniteness in the letter of the Constitution, must itself be gathered
from express provisions of the Constitution. The dubiousness of
expressions used may be cured by Court by making their meanings
clear and definite if necessary in the light of the broad and basic
purposes set before themselves by the Constitution makers. And, these
meanings may, in keeping with the objectives or ends which the
Constitution of every nation must serve, change with changing
requirements of the times. The power of judicial interpretation, even if
it includes what may be termed as "interstitial" law making, cannot
extend to direct conflict with express provisions of the Constitution or
to ruling them out of existence.”
109. The primary duty of this court, while interpreting a constitutional
provision(in the present case, an amendment to the Constitution, no less) was
underlined thus, in GVK Industries Ltd. v. Income Tax Officer101
“37. In interpreting any law, including the Constitution, the text of the
provision under consideration would be the primary source for
discerning the meanings that inhere in the enactment. However, in
light of the serious issues it would always be prudent, as a matter of
constitutional necessity, to widen the search for the true meaning,
purport and ambit of the provision under consideration. No provision,
and indeed no word or expression, of the Constitution exists in
isolation—they are necessarily related to, transforming and in turn
being transformed by, other provisions, words and phrases in the
Constitution.
38. Our Constitution is both long and also an intricate matrix of
meanings, purposes and structures. It is only by locating a particular
constitutional provision under consideration within that constitutional
matrix could one hope to be able to discern its true meaning, purport
and ambit. As Prof. Laurence Tribe points out:
“[T]o understand the Constitution as a legal text, it is essential to
recognize the … sort of text it is: a constitutive text that purports, in
the name of the people…, to bring into being a number of distinct but
inter-related institutions and practices, at once legal and political,
and to define the rules governing those institutions and practices.”
101(2011) 4 SCC 36.
72
(See Reflections on Free-Form Method in Constitutional
Interpretation. [108 Harv L Rev 1221, 1235 (1995)]).”
39. It has been repeatedly appreciated by this Court that our
Constitution is one of the most carefully drafted ones, where every
situation conceivable, within the vast experience, expertise and
knowledge of our framers, was considered, deliberated upon, and
appropriate features and text chosen to enable the organs of the State
in discharging their roles. While indeed dynamic interpretation is
necessary, if the meaning necessary to fit the changed circumstances
could be found in the text itself, we would always be better served by
treading a path as close as possible to the text, by gathering the plain
ordinary meaning, and by sweeping our vision and comprehension
across the entire document to see whether that meaning is validated
by the constitutional values and scheme.”
In examining provisions of the Constitution, courts should adopt the primary rule,
and give effect to the plain meaning of the expressions; this rule can be departed,
only when there are ambiguities. In Kuldip Nayar v. Union of India 102 after
quoting from G. Narayanaswami v. G. Panneerselvam103 this court held that
“201. … We endorse and reiterate the view taken in the above quoted
paragraph of the judgment. It may be desirable to give a broad and
generous construction to the constitutional provisions, but while doing
so the rule of “plain meaning” or “literal” interpretation, which
remains “the primary rule”, has also to be kept in mind. In fact the
rule of “literal construction” is the safe rule unless the language used
is contradictory, ambiguous, or leads really to absurd results.”
110. Whilst dealing the task of the court, and the permissible extent to which it
can resort to internal and extrinsic aids to construction of a statute, this court
remarked, in Pushpa Devi v. Milkhi Ram104that:
“18. It is true when a word has been defined in the interpretation
clause, prima facie that definition governs wherever that word is used
102(2006) 7 SCC 1.
103(1972) 3 SCC 717.
104(1990) 2 SCC 134.
73
in the body of the statute unless the context requires otherwise. “The
context” as pointed out in the book Cross-Statutory
Interpretation (2nd edn. p. 48) “is both internal and external”. The
internal context requires the interpreter to situate the disputed words
within the section of which they are part and in relation to the rest of
the Act. The external context involves determining the meaning from
ordinary linguistic usage (including any special technical meanings),
from the purpose for which the provision was passed, and from the
place of the provisions within the general scheme of statutory and
common law rules and principles.
19. The opening sentence in the definition of the section states “unless
there is anything repugnant in the subject or context”. In view of this
qualification, the court has not only to look at the words but also to
examine the context and collocation in the light of the object of the
Act and the purpose for which a particular provision was made by the
legislature.”
111. Again, in Karnataka State Financial Corporation. v. N. Narasimahaiah105it
was observed that:
“42. Interpretation of a statute would not depend upon a contingency.
It has to be interpreted on its own. It is a trite law that the court would
ordinarily take recourse to the golden rule of literal interpretation. It
is not a case where we are dealing with a defect in the legislative
drafting. We cannot presume any. In a case where a court has to
weigh between a right of recovery and protection of a right, it would
also lean in favour of the person who is going to be deprived
therefrom. It would not be the other way round. Only because a
speedy remedy is provided for that would itself (sic not) lead to the
conclusion that the provisions of the Act have to be extended although
the statute does not say so. The object of the Act would be a relevant
factor for interpretation only when the language is not clear and when
two meanings are possible and not in a case where the plain language
leads to only one conclusion.”
105(2008) 5 SCC 176.
74
112. In another recent decision, Laurel Energetics (P) Ltd. v. Securities Exchange
Board of India106 this court observed that:
“24. In Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa [Utkal Contractors and Joinery (P) Ltd. v. State of Orissa,
1987 Supp SCC 751] , a similar argument was turned down in the
following terms: (SCC pp. 757-58, paras 11-12)
‘11. Secondly, the validity of the statutory notification cannot be
judged merely on the basis of Statement of Objects and Reasons
accompanying the Bill. Nor it could be tested by the government
policy taken from time to time. The executive policy of the
Government, or the Statement of Objects and Reasons of the Act or
Ordinance cannot control the actual words used in the legislation.
In Central Bank of India v. Workmen [Central Bank of
India v. Workmen, AIR 1960 SC 12] S.K. Das, J. said: (AIR p. 21,
para 12)
‘12. … The Statement of Objects and Reasons is not admissible,
however, for construing the section; far less can it control the actual
words used.’
12. In State of W.B. v. Union of India [State of W.B. v. Union of India,
AIR 1963 SC 1241] , Sinha, C.J. observed: (AIR p. 1247, para 13)
‘13. … It is however, well settled that the Statement of Objects and
Reasons accompanying a Bill, when introduced in Parliament, cannot
be used to determine the true meaning and effect of substantive
provisions of the statute. They cannot be used except for the limited
purpose of understanding the background and the antecedent state of
affairs leading up to the legislation. But we cannot use this statement
as an aid to the construction of the enactment or to show that the
legislature did not intend to acquire the proprietary right vested in the
State or in any way to affect the State Governments' rights as owner of
minerals. A statute, as passed by Parliament, is the expression of the
collective intention of the legislature as a whole, and any statement
made by an individual, albeit a Minister, of the intention and objects
of the Act cannot be used to cut down the generality of the words used
in the statute.”
106(2017) 8 SCC 541
75
***
25. In the factual scenario before us, having regard to the aforesaid
judgment, it is not possible to construe the Regulation in the light of
its object, when the words used are clear. This statement of the law is
of course with the well-known caveat that the object of a provision
can certainly be used as an extrinsic aid to the interpretation of
statutes and subordinate legislation where there is ambiguity in the
words used.”
113. The position in UK is that that the report of a Select Committee may be
considered as background to the construction of an Act; however, such reports
could not be invested with any kind of interpretive authority.107 In R. (Baiai) v.
Home Secretary,108a report of the Parliamentary Joint Committee on Human Rights
was considered. The committee’s opinions on compatibility and other matters of
law were held to have persuasive value, however, they could have no greater
weight than, for example, the views of distinguished academic writers.109
IX Interpretation of the Constitution, the definition clause under Article 366
and Amendments to the Constitution
114. The Court has to interpret provisions of the Constitution, in this case,
introduced through an amendment. The proper method of interpreting such an
amendment was indicated by a five-judge bench in Kihoto Hollohan v. Zachillhu110
,
where it was held that:
“26. In expounding the processes of the fundamental law, the
Constitution must be treated as a logical whole. Westel Woodbury
Willoughby in The Constitutional Law of the United States (2nd edn.,
Vol. 1, p. 65) states:
107See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410.
108[2006] EWHC 823 (Admin).
109Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell) 2017 Chap. 27 @ para
27.1.13.1, page 952
1101992 Supp (2) SCC 651
76
“The Constitution is a logical whole, each provision of which is an
integral part thereof, and it is, therefore, logically proper, and indeed
imperative, to construe one part in the light of the provisions of the
other parts.”
***
“28. In considering the validity of a constitutional amendment the
changing and the changed circumstances that compelled the
amendment are important criteria. The observations of the U.S.
Supreme Court in Maxwell v. Dow [176 US 581 : 44 L Ed 597, 605
(1899)] are worthy of note: (L Ed p. 605)
“… to read its language in connection with the known condition of
affairs out of which the occasion for its adoption may have arisen,
and then to construe it, if there be therein any doubtful expressions, in
a way so far as is reasonably possible, to forward the known purpose
or object for which the amendment was adopted ….”
115. Recollecting these principles, this court is mindful of the first circumstance
that the 102ndAmendment brought in an entirely new dimension - an attempt to
identify backward classes, firstly by inserting Sub-Article (26C) into the definition
clause under Article 366. This insertion, in the opinion of the court, accords with
the statutory scheme of defining terms for the purposes of the Constitution. This
term “for the purposes of this Constitution” occurs twelve times111 in the
Constitution.
116. The interpretation of the definition in relation to the Constitution, is truly
indicative that for the purpose of the entire constitution, the meaning ascribed in
the definition clause – in this case, by Article 366 (26C), has to prevail. While
interpreting whether members of SCs/ STs who communities find mention in the
Presidential notification in two states, could claim reservation benefits in both
states, this court had occasion to consider a parimateria provision, i.e. Articles 366
(24) and (25) which defined SCs “for the purposes of this constitution”. In Marri
111Articles 108 (4); 299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366 (26C) and 367 (3)
77
Chandra Shekhar Rao v. Dean, Seth G.S. Medical College112, a Constitution Bench
of this Court held as follows:
“12. It is, however, necessary to give proper meaning to the
expressions ‘for the purposes of this Constitution’ and ‘in relation to
that State’ appearing in Articles 341 and 342 of the Constitution.”
This court then noticed the divergent views of the High Courts and then
observed:
“13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously. It is trite
saying that where there is conflict between two provisions, these
should be so interpreted as to give effect to both. Nothing is surplus in
a Constitution and no part should be made nugatory. This is well
settled. See the observations of this Court in Venkataramana
Devaru v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC 255] ,
where Venkatarama Aiyer, J. reiterated that the rule of construction is
well settled and where there are in an enactment two provisions which
cannot be reconciled with each other, these should be so interpreted
that, if possible, effect could be given to both. It, however, appears to
us that the expression ‘for the purposes of this Constitution’ in Article
341 as well as in Article 342 do imply that the Scheduled Caste and
the Scheduled Tribes so specified would be entitled to enjoy all the
constitutional rights that are enjoyable by all the citizens as such.
Constitutional right, e.g., it has been argued that right to migration or
right to move from one part to another is a right given to all — to
Scheduled Castes or Tribes and to non-scheduled castes or tribes. But
when a Scheduled Caste or Tribe migrates, there is no inhibition in
migrating but when he migrates, he does not and cannot carry any
special rights or privileges attributed to him or granted to him in the
original State specified for that State or area or part thereof. If that
right is not given in the migrated State it does not interfere with his
constitutional right of equality or of migration or of carrying on his
trade, business or profession. Neither Article 14, 16, 19 nor Article 21
is denuded by migration but he must enjoy those rights in accordance
with the law if they are otherwise followed in the place where he
migrates. There should be harmonious construction, harmonious in
1121990 SCC (3) 130.
78
the sense that both parts or all parts of a constitutional provision
should be so read that one part does not become nugatory to the other
or denuded to the other but all parts must be read in the context in
which these are used. It was contended that the only way in which the
fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)
(e) and 19(1)(f) could be given effect to is by construing Article 342 in
a manner by which a member of a Scheduled Tribe gets the benefit of
that status for the purposes of the Constitution throughout the
territory of India. It was submitted that the words “for the purposes of
this Constitution” must be given full effect. There is no dispute about
that. The words “for the purposes of this Constitution” must mean
that a Scheduled Caste so designated must have right under Articles
14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable
to him in his area where he migrates or where he goes. The expression
“in relation to that State” would become nugatory if in all States the
special privileges or the rights granted to Scheduled Castes or
Scheduled Tribes are carried forward. It will also be inconsistent with
the whole purpose of the scheme of reservation. In Andhra Pradesh, a
Scheduled Caste or a Scheduled Tribe may require protection because
a boy or a child who grows in that area is inhibited or is at
disadvantage. In Maharashtra that caste or that tribe may not be so
inhibited but other castes or tribes might be. If a boy or a child goes
to that atmosphere of Maharashtra as a young boy or a child and
goes in a completely different atmosphere or Maharashtra where this
inhibition or this disadvantage is not there, then he cannot be said to
have that reservation which will denude the children or the people of
Maharashtra belonging to any segment of that State who may still
require that protection. After all, it has to be borne in mind that the
protection is necessary for the disadvantaged castes or tribes of
Maharashtra as well as disadvantaged castes or tribes of Andhra
Pradesh. Thus, balancing must be done as between those who need
protection and those who need no protection, i.e., who belong to
advantaged castes or tribes and who do not. Treating the
determination under Articles 341 and 342 of the Constitution to be
valid for all over the country would be in negation to the very purpose
and scheme and language of Article 341 read with Article 15(4) of the
Constitution.
14. Our attention was drawn to certain observations in Elizabeth
Warburton v. James Loveland [1832 HL 499] . It is true that all
79
provisions should be read harmoniously. It is also true that no
provision should be so read as to make other provisions nugatory or
restricted. But having regard to the purpose, it appears to us that
harmonious construction enjoins that we should give to each
expression —”in relation to that State” or “for the purposes of this
Constitution” — its full meaning and give their full effect. This must
be so construed that one must not negate the other. The construction
that reservation made in respect of the Scheduled Caste or Tribe of
that State is so determined to be entitled to all the privileges and
rights under the Constitution in that State would be the most correct
way of reading, consistent with the language, purpose and scheme of
the Constitution. Otherwise, one has to bear in mind that if
reservations to those who are treated as Scheduled Caste or Tribe in
Andhra Pradesh are also given to a boy or a girl who migrates and
gets deducted (sic inducted) in the State of Maharashtra or other
States where that caste or tribe is not treated as Scheduled Caste or
Scheduled Tribe then either reservation will have the effect of
depriving the percentage to the member of that caste or tribe in
Maharashtra who would be entitled to protection or it would denude
the other non-Scheduled Castes or non-Scheduled Tribes in
Maharashtra to the proportion that they are entitled to. This cannot
be logical or correct result designed by the Constitution.”
(emphasis supplied)
117. This Constitution Bench decision was followed in another decision, again by
five judges in Action Committee on Issue of Caste Certificate to
Scheduled Castes & Scheduled Tribes in the State of Maharashtra &Anr v.
Union of India & Anr.113, when this court reiterated its previous view in Marri
(supra) and observed further as follows:
“16. We may add that considerations for specifying a particular caste
or tribe or class for inclusion in the list of Scheduled Castes/Schedule
Tribes or backward classes in a given State would depend on the
nature and extent of disadvantages and social hardships suffered by
that caste, tribe or class in that State which may be totally non est in
another State to which persons belonging thereto may migrate.
Coincidentally it may be that a caste or tribe bearing the same
113(1994) 5 SCC 244.
80
nomenclature is specified in two States but the considerations on the
basis of which they have been specified may be totally different. So
also the degree of disadvantages of various elements which constitute
the input for specification may also be totally different. Therefore,
merely because a given caste is specified in State A as a Scheduled
Caste does not necessarily mean that if there be another caste bearing
the same nomenclature in another State the person belonging to the
former would be entitled to the rights, privileges and benefits
admissible to a member of the Scheduled Caste of the latter State “for
the purposes of this Constitution”. This is an aspect which has to be
kept in mind and which was very much in the minds of the
Constitution-makers as is evident from the choice of language of
Articles 341 and 342 of the Constitution.”
118. The recent judgment in Bir Singh v. Delhi Jal Board (supra) reiterated the
previous two Constitution Bench judgments. It is useful to notice the partly
concurring judgment of Bhanumati, J. who observed that
“80. Clause (24) of Article 366 defines “Scheduled Castes” and
clause (25) of Article 366 defines “Scheduled Tribes”. The latter
means
“such tribes or tribal communities or parts of or groups within such
tribes or tribal communities as are deemed under Article 342 to be
“Scheduled Tribes” for the purposes of this Constitution”.
81. Article 341(1) of the Constitution empowers the President, in
consultation with the Governor of the State concerned, to specify
Scheduled Castes by public notification. Equally, Article 342(1) of the
Constitution empowers the President
“with respect to any State or Union Territory, and where it is a State,
after consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be “Scheduled Tribes” in relation to that
State or Union Territory, as the case may be”.
Article 342(2) of the Constitution empowers
81
“Parliament, by law, to include in or exclude from the list of
“Scheduled Tribes” specified in a notification issued under clause (1),
any tribe or tribal community or part of or group within any tribe or
tribal community, but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification.”
Until the Presidential Notification is modified by appropriate
amendment by Parliament in exercise of the power under Article
341(2) of the Constitution, the Presidential Notification issued under
Article 341(1) is final and conclusive and any caste or group cannot
be added to it or subtracted by any action either by the State
Government or by a court on adducing of evidence. In other words, it
is the constitutional mandate that the tribes or tribal communities or
parts of or groups within such tribes or tribal communities specified
by the President, after consultation with the Governor in the public
notification, will be “Scheduled Tribes” subject to the law made by
Parliament alone, which may, by law, include in or exclude from the
list of “Scheduled Tribes” specified by the President. Thereafter, it
cannot be varied except by law made by Parliament.
82. The President of India alone is competent or authorised to issue
an appropriate notification in terms of Articles 341(1) and 342(1).
Cumulative reading of Articles 338, 341 and 342 indicate that:
(a) Only the President could notify castes/tribes as Scheduled
Castes/Tribes and also indicate conditions attaching to such
declaration. A public notification by the President specifying the
particular castes or tribes as SC/ST shall be final for the purpose of
Constitution and shall be exhaustive.
(b) Once a notification is issued under clause (1) of Articles 341 and
342 of the Constitution, Parliament can by law include in or exclude
from the list of Scheduled Castes or Scheduled Tribes, specified in the
notification, any caste or tribe but save for that limited purpose the
notification issued under clause (1), shall not be varied by any
subsequent notification [ Ref. Action Committee on Issue of Caste
Certificate to SCs/STs in State of Maharashtra v. Union of India,
(1994) 5 SCC 244] .”
119. These three Constitution Bench judgments, Marri (supra), Action
Committee (supra) and Bir Singh (supra) therefore, have set the tone as it were, for
the manner in which determination by the President is to be interpreted, having
82
regard to the definition clause in Article 366, which has to apply for interpreting
the particular expression in a consistent manner, for the purpose of the
Constitution. Thus, the expression SCs in relation to a State for the “purpose of
this Constitution”, means the member of a SC declared to be so under the
Presidential Notification. The terms of such Presidential Notification insist that
such a citizen ought to be a resident of that concerned State or Union Territory.
This aspect is of some importance, given that there are a large number of
communities which are common in several States. However, the decisions of this
Court are uniform since Marri (supra) stated that it is only the citizens residing in a
particular state who can claim the benefit of reservation – either of that State or of
the Centre for the purposes of the Constitution in relation to that State. Necessarily,
therefore, the resident of State A is entitled to claim reservation benefits under
Articles 15(4) and 16(4) if he or she resides (the residential qualification that needs
to be fulfilled is that specified by the concerned State) in that State, (i.e. A) and
none else. As a sequitur, if such a person or community or caste (of state A) is also
described as a Scheduled Caste in State B, for the purposes of State services or
admission to State institutions, he cannot claim the benefits of reservation as a
scheduled caste in such B State. However, Bir Singh (supra) has made it clear that
for the purposes of Union employment and admissions to Union institutions the
position is different because SCs living within the territory of India in relation to
one State or the other, are deemed to be SCs or STs for the purposes of this
Constitution in relation for the purposes of Union employment.
120. The interpretation of Articles 341 and 342 of the Constitution, read with
Articles 366 (24) and 366 (25), have to, in our opinion, be the guiding factors in
interpreting Article 366 (26C), which follows a similar pattern, i.e. of defining, for
the purpose of the entire constitution, with reference to the determination of those
83
communities who are notified as SEBCs, under Article 342A (which again uses the
expression “for the purpose of this constitution”).
121. Quite similarly, when Article 366 was amended by the Forty Sixth
amendment Act, and Article 366(29A) was introduced to Article 366, this Court
considered the previous amendments, which are the 6thAmendment to the
Constitution and the 46thAmendment which amended Article 269 and Article 286,
besides introducing Entry 92A to the Union List. The Court went on to hold in a
five-judge bench decision in 20th Century Finance Corpn. Ltd. v. State of
Maharashtra114
, that the interpretation adopted by this Court led to the inexorable
conclusion that a limitation was placed upon the States’ power of taxation. Article
366(29A) on the one hand, expanded the specie of sale which could be the
legitimate subject of taxation by the State, but at the same time, on the other hand,
the amendment also introduced limitations upon the State power which was
subjected to controls by Parliament. Therefore, in the context of the amendment the
expression“sale” underwent alteration, partly allowing and partly restricting states’
power to tax goods. This court, after recounting the history of the previous
litigation, held that:
“19. Following the decisions referred to above, we are of the view
that the power of State Legislatures to enact law to levy tax on the
transfer of right to use any goods under Entry 54 of List II of the
Seventh Schedule has two limitations — one arising out of the entry
itself; which is subject to Entry 92-A of List I, and the other flowing
from the restrictions embodied in Article 286. By virtue of Entry 92-A
of List I, Parliament has power to legislate in regard to taxes on sales
or purchase of goods other than newspapers where such sale or
purchase takes place in the course of inter-State trade or commerce.
Article 269 provides for levy and collection of such taxes. Because of
these restrictions, State Legislatures are not competent to enact law
imposing tax on the transactions of transfer of right to use any goods
which take place in the course of inter-State trade or commerce.
Further, by virtue of clause (1) of Article 286, the State Legislature is
114(2000) 6 SCC 12
84
precluded from making law imposing tax on the transactions of
transfer of right to use any goods where such deemed sales take place
(a) outside the State; and (b) in the course of import of goods into the
territory of India. Yet, there are other limitations on the taxing power
of the State Legislature by virtue of clause (3) of Article 286. Although
Parliament has enacted law under clause (3)(a) of Article 286 but no
law so far has been enacted by Parliament under clause (3)(b) of
Article 286. When such law is enacted by Parliament, the State
Legislature would be required to exercise its legislative power in
conformity with such law. Thus, what we have stated above, are the
limitations on the powers of State Legislatures on levy of sales tax on
deemed sales envisaged under sub-clause (d) of clause (29-A) of
Article 366 of the Constitution.”
122. In a similar manner, the expression, “unless the context otherwise
provides”[which is the controlling expression in Article 366(1)] was interpreted by
an earlier Constitution Bench in Builders’ Association of India v. Union of
India115when the amendment to Article 366 was considered:
“32. Before proceeding further, it is necessary to understand what
sub-clause (b) of clause (29-A) of Article 366 of the Constitution
means. Article 366 is the definition clause of the Constitution. It says
that in the Constitution unless the context otherwise requires, the
expressions defined in that article have the meanings respectively
assigned to them in that article. The expression ‘goods’ is defined in
clause (12) of Article 366 of the Constitution as including all
materials, commodities and articles.”
After discussing the previous decisions in respect of the unamended provisions, the
court stated that:
“The emphasis is on the transfer of property in goods (whether as goods or in
some other form). The latter part of clause (29-A) of Article 366 of the
Constitution makes the position very clear. While referring to the transfer, delivery
or supply of any goods that takes place as per sub-clauses (a) to (f) of clause (29-
A), the latter part of clause (29-A) says that “such transfer, delivery or supply of
any goods” shall be deemed to be a sale of those goods by the person making the
transfer, delivery or supply and a purchase of those goods by the person to whom
such transfer, delivery or supply is made. Hence, a transfer of property in goods
115(1989) 2 SCC 645
85
under sub-clause (b) of clause (29-A) is deemed to be a sale of the goods involved
in the execution of a works contract by the person making the transfer and a
purchase of those goods by the person to whom such transfer is made. The object
of the new definition introduced in clause (29-A) of Article 366 of the Constitution
is, therefore, to enlarge the scope of ‘tax on sale or purchase of goods’ wherever it
occurs in the Constitution so that it may include within its scope the transfer,
delivery or supply of goods that may take place under any of the transactions
referred to in sub-clauses (a) to (f) thereof wherever such transfer, delivery or
supply becomes subject to levy of sales tax. So construed the expression ‘tax on
the sale or purchase of goods’ in Entry 54 of the State List, therefore, includes a
tax on the transfer of property in goods (whether as goods or in some other form)
involved in the execution of a works contract also. The tax leviable by virtue of
sub-clause (b) of clause (29-A) of Article 366 of the Constitution thus becomes
subject to the same discipline to which any levy under entry 54 of the State List is
made subject to under the Constitution. The position is the same when we look at
Article 286 of the Constitution. Clause (1) of Article 286 says that no law of a
State shall impose, or authorise the imposition of, a tax on the sale or purchase of
goods where such sale or purchase takes place — (a) outside the State; or (b) in
the course of the import of the goods into, or export of the goods out of, the
territory of India. Here again we have to read the expression “a tax on the sale or
purchase of goods” found in Article 286 as including the transfer of goods
referred to in sub-clause (b) of clause (29-A) of Article 366 which is deemed to be
a sale of goods and the tax leviable thereon would be subject to the terms of
clause (1) of Article 286. Similarly the restrictions mentioned in clause (2) of
Article 286 of the Constitution which says that Parliament may by law formulate
principles for determining when a sale or purchase of goods takes place in any of
the ways mentioned in clause (1) of Article 286 would also be attracted to a
transfer of goods contemplated under Article 366(29-A)(b). Similarly clause (3) of
Article 286 is also applicable to a tax on a transfer of property referred to in subclause (b) of clause (29-A) of Article 366. Clause (3) of Article 286 consists of two
parts. Sub-clause (a) of clause (3) of Article 286 deals with a tax on the sale or
purchase of goods declared by Parliament by law to be of special importance in
inter-State trade or commerce, which is generally applicable to all sales including
the transfer, supply or delivery of goods which are deemed to be sales under
clause (29-A) of Article 366 of the Constitution. If any declared goods which are
referred to in Section 14 of the Central Sales Tax Act, 1956 are involved in such
transfer, supply or delivery, which is referred to in clause (29-A) of Article 366,
the sales tax law of a State which provides for levy of sales tax thereon will have
to comply with the restrictions mentioned in Section 15 of the Central Sales Tax
Act, 1956.
…. We are of the view that all transfers, deliveries and supplies of goods referred
to in clauses (a) to (f) of clause (29-A) of Article 366 of the Constitution are
subject to the restrictions and conditions mentioned in clause (1), clause (2) and
sub-clause (a) of clause (3) of Article 286 of the Constitution and the transfers
and deliveries that take place under sub-clauses (b), (c) and (d) of clause (29-A)
86
of Article 366 of the Constitution are subject to an additional restriction
mentioned in sub-clause (b) of Article 286(3) of the Constitution.”
123. In Commissioner of Income Tax v. Willamson Financial Services116
,this court
had to interpret “agricultural income”, a term defined in Article 366(1) as follows:
“366. Definitions.—In this Constitution, unless the context otherwise
requires, the following expressions have the meanings hereby
respectively assigned to them, that is to say—
(1) ‘agricultural income’ means agricultural income as defined for the
purposes of the enactments relating to Indian income tax;”
124. Noticing that the definition (Article 366 (1) (1)) itself referred to the term as
defined by the Income tax Act, and after considering the definition in the existing
enactment, this court held that:
“30. The expression “agricultural income”, for the purpose of
abovementioned entries, means agricultural income as defined for the
purpose of the enactments relating to Indian income tax vide Article
366(1) of the Constitution. Therefore, the definition of “agricultural
income” in Article 366(1) indicates that it is open to the income tax
enactments in force from time to time to define “agricultural income”
in any particular manner and that would be the meaning not only for
tax enactments but also for the Constitution. This mechanism has been
devised to avoid a conflict with the legislative power of States in
respect of agricultural income.”
125. Another important decision is Tata Consultancy Services v. State of
A.P.117The issue involved was interpretation of the expression in Article 366(12),
i.e. “goods” which reads as follows:
“(12) “goods” includes all materials, commodities, and articles”.
116(2008) 2 SCC 202.
117(2005) 1 SCC 308.
87
126. This court expansively interpreted the definition and held that the it includes
software programmes, observing that the term “goods” included intangible
property:
“27. In our view, the term “goods” as used in Article 366(12) of the
Constitution and as defined under the said Act is very wide and
includes all types of movable properties, whether those properties be
tangible or intangible. We are in complete agreement with the
observations made by this Court in Associated Cement Companies
Ltd. [(2001) 4 SCC 593] A software program may consist of various
commands which enable the computer to perform a designated task.
The copyright in that program may remain with the originator of the
program. But the moment copies are made and marketed, it becomes
goods, which are susceptible to sales tax. Even intellectual property,
once it is put on to a media, whether it be in the form of books or
canvas (in case of painting) or computer discs or cassettes, and
marketed would become “goods”. …… The term “all materials,
articles and commodities” includes both tangible and
intangible/incorporeal property which is capable of abstraction,
consumption and use and which can be transmitted, transferred,
delivered, stored, possessed, etc. The software programs have all
these attributes.”
127. It is therefore, apparent that whenever the definition clause, i.e. Article 366
has arisen for interpretation, this court has consistently given effect to the express
terms, and in the broadest manner. Whenever new definitions were introduced, full
effect was given, to the plain and grammatical terms, often, limiting existing
legislative powers conferred upon the states.
128. Before proceeding to examine whether the term “the Central List” in Article
342A indicates an expression to the contrary, [per Article 366 (1)] it is also
necessary to consider some decisions that have interpreted amendments which
introduced entirely new provisions, either affecting state’s legislative powers, or
limiting fundamental rights.
88
129. In Bimolangshu Roy v. State of Assam118 the state’s legislative competence to
enact a law providing for appointment of Parliamentary Secretaries, in the context
of provisions of the Constitution (Ninety-First Amendment) Bill, 2003 which was
passed by both the Houses of Parliament and after receiving the assent of the
President, became a provision of the Constitution. It introduced Article 164(1-A),
which had the effect of limiting the total number of Ministers in the Council of
Ministers in a State, including the Chief Minister, to fifteen per cent of the total
number of members of the Legislative Assembly of that State; the minimum
number of ministers was to be 12. The state assembly sought to create offices that
had the effect of exceeding the number mandated (15%). Upon a challenge, it was
argued that the state had legislative competence to enact the law, by virtue of
Article 194. That argument was repelled by this court, which held:
“36. As rightly pointed out by the petitioners, the existence of a
dedicated article in the Constitution authorising the making of law on
a particular topic would certainly eliminate the possibility of the
existence of the legislative authority to legislate in Article 246 read
with any entry in the Seventh Schedule indicating a field of legislation
which appears to be closely associated with the topic dealt with by the
dedicated article. For example, even if the Constitution were not to
contain Entries 38, 39, 40 in List II the State Legislatures would still
be competent to make laws w.r.t. the topics indicated in those three
entries, because of the authority contained in Articles 164(5), 186,
194, 195, etc. Therefore, to place a construction on those entries
which would have the effect of enabling the legislative body
concerned to make a law not within the contemplation of the said
articles would be plainly repugnant to the scheme of the
Constitution.”
***
“39. The distinction between the scheme of Article 262 Entry 56 of
List I and Entry 17 of List II and the scheme of Article 194 and Entry
39 of List II is this that in the case of inter-State water disputes
neither of the abovementioned two entries make any mention of the
118(2018) 14 SCC 408
89
adjudication of water disputes and only Article 262 deals with the
topic. In the case on hand, the relevant portion of the text of Article
194(3) and Entry 39 of List II are almost identical and speak about
the “powers, privileges and immunities” of the House, its Members
and committees.
40. The question therefore is — Whether the text of Article 194(3) and
Entry 39 is wide enough to authorise the legislature to make the Act?
41. In view of the fact that the text of both Article 194(3) and the
relevant portion of Entry 39 are substantially similar, the meaning of
the clause “the powers, privileges and the immunities of a House of
the legislature of a State … and of the Members of a House of such
legislature” must be examined.”
***
“43. Article 194 deals exclusively with the powers and privileges of
the legislature, its Members and committees thereof. While clause (1)
declares that there shall be freedom of speech in the legislature
subject to the limitations enumerated therein, clause (2) provides
immunity in favour of the Members of the legislature from any legal
proceedings in any court for anything said or any vote given by such
Members in the legislature or any committees, etc. Clause (3) deals
with the powers, privileges and immunities of a House of the
Legislature and its Members with respect to matters other than the
ones covered under clauses (1) and (2).
44. Thus, it can be seen from the scheme of Article 194 that it does not
expressly authorise the State Legislature to create offices such as the
one in question. On the other hand, Article 178 speaks about the
offices of Speaker and Deputy Speaker. Article 179 deals with the
vacation of those offices or resignations of incumbents of those offices
whereas Articles 182 and 183 deal with the Chairman and Deputy
Chairman of the Legislative Council wherever the Council exists. In
our opinion, the most crucial article in this Chapter is Article 187
which makes stipulations even with reference to the secretarial staff of
the legislature. On the face of such elaborate and explicit
constitutional arrangement with respect to the legislature and the
various offices connected with the legislature and matters incidental
to them to read the authority to create new offices by legislation
would be a wholly irrational way of construing the scope of Article
194(3) and Entry 39 of List II. Such a construction would be enabling
the legislature to make a law which has no rational connection with
90
the subject-matter of the entry. “The powers, privileges and
immunities” contemplated by Article 194(3) and Entry 39 are those of
the legislators qua legislators.”
130. In Ashoka Kumar Thakur v. Union of India119 the issue which arose for
consideration was the correct interpretation of Article 15(5)(extracted below in a
footnote)120, introduced by virtue of the Constitution (Ninety Third Amendment)
Act, 2005. It enabled the state to make special provisions for the advancement of
any SEBCs or for SCs or STs as far as they related to “their admission to
educational institutions including private educational institutions, whether aided
or unaided by the State, other than the minority educational institutions referred to
in clause (1) of article 30”. This court held that on a true construction, special
provisions for admission to such category of candidates, even in private
educational institutions, was permissible. The court inter alia, held that:
“125. Both Articles 15(4) and 15(5) are enabling provisions. Article
15(4) was introduced when the “Communal G.O.” in the State of
Madras was struck down by this Court in Champakam Dorairajan
case [1951 SCR 525] . In Unni Krishnan [(1993) 1 SCC 645] this
Court held that Article 19(1)(g) is not attracted for establishing and
running educational institutions. However, in T.M.A. Pai Foundation
case [(2002) 8 SCC 481] it was held that the right to establish and
run educational institutions is an occupation within the meaning of
Article 19(1)(g). The scope of the decision in T.M.A. Pai Foundation
case [(2002) 8 SCC 481] was later explained in P.A. Inamdar
case [(2005) 6 SCC 537] . It was held that as regards unaided
institutions, the State has no control and such institutions are free to
admit students of their own choice. The said decision necessitated the
enactment of the Constitution (Ninety-third Amendment) Act, 2005.
Thus, both Articles 15(4) and 15(5) operate in different areas. The
119(2008) 6 SCC 1.
120[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 30.]
91
“nothing in this article” [mentioned at the beginning of Article 15(5)]
would only mean that the nothing in this article which prohibits the
State on grounds which are mentioned in Article 15(1) alone be given
importance. Article 15(5) does not exclude Article 15(4) of the
Constitution.
126. It is a well-settled principle of constitutional interpretation that
while interpreting the provisions of the Constitution, effect shall be
given to all the provisions of the Constitution and no provision shall
be interpreted in a manner as to make any other provision in the
Constitution inoperative or otiose. If the intention of Parliament was
to exclude Article 15(4), they could have very well deleted Article
15(4) of the Constitution. Minority institutions are also entitled to the
exercise of fundamental rights under Article 19(1)(g) of the
Constitution, whether they be aided or unaided. But in the case of
Article 15(5), the minority educational institutions, whether aided or
unaided, are excluded from the purview of Article 15(5) of the
Constitution. Both, being enabling provisions, would operate in their
own field and the validity of any legislation made on the basis of
Article 15(4) or 15(5) has to be examined on the basis of provisions
contained in such legislation or the special provision that may be
made under Article 15(4) or 15(5)….”
131. The Court, similarly, gave full effect to the definition clause in Article 366
[in the definition of Union territory, under Article 366(30)]while examining the
soundness of the argument that immunity from intergovernmental taxation (i.e.,
under Article 289 which exempts states from Union taxation), extends to Union
Territories and municipalities. It was argued that in many cases, the Union
Territories had Legislative Assemblies, by statutory enactments, or special
provisions, and in the case of municipalities, the Constitution had, through
amendment, and introduction of Article 243X, authorized states to authorize
municipal levies. The court repelled this argument, in New Delhi Municipal
Council v. State of Punjab121in a nine-judge ruling, stating as follows:
121(1997) 7 SCC 339 at page 370.
92
“53. Before dealing with the specific circumstances of, and the
decision in, each of these cases, it is necessary that a few provisions
which figure prominently be dealt with. Article 246(4) of the
Constitution, as it stood on 26-1-1950, allowed Parliament to “make
laws with respect to any matter for any part of the territory of India
not included in Part A or Part B of the First Schedule”. The Seventh
Amendment Act brought about a number of changes affecting Union
Territories, some of which have already been noticed by us. The other
changes brought about by it are also relevant; it caused Article 246 to
be changed to its present form where Parliament is empowered to
make laws with respect to “any part of the territory of India not
included in a State”. The word “State” has not been defined in the
Constitution. Article 1(3) defines the territory of India as comprising:
(a) the territories of the States; (b) the Union Territories specified in
the First Schedule; and (c) such other territories as may be acquired.
The word “Union Territory” has been defined in Article 366(30) to
mean “any Union Territory specified in the First Schedule and
includes any other territory comprised within the territory of India but
not specified in that Schedule
54. Though not defined in the Constitution, the word “State” has been
defined in the General Clauses Act, 1897 (hereinafter called “the
General Clauses Act”). Article 367 of the Constitution states that the
General Clauses Act, 1897 shall, unless the context otherwise requires
and subject to any adaptations and modifications made under Article
372, apply for the interpretation of the Constitution. Therefore, on a
plain reading of the provisions involved, it would appear that the
definition of “State” in the General Clauses Act would be applicable
for the purposes of interpreting the Constitution. Article 372 is the
saving clause of the Constitution which enables all laws in force
before the commencement of the Constitution to continue in the
territory of India. Article 372-A, which, once again, owes its origin to
the Seventh Amendment Act, empowers the President to make further
adaptations in particular situations.
***********
“99. It is, therefore, clear that even under the new scheme,
Municipalities do not have an independent power to levy taxes.
Although they can now be granted more substantial powers than ever
before, they continue to be dependent upon their parent legislatures
93
for the bestowal of such privileges. In the case of Municipalities
within States, they have to be specifically delegated the power to tax
by the State Legislature concerned. In Union Territories which do not
have Legislative Assemblies of their own, such a power would have to
be delegated by Parliament. Of the rest, those which have Legislative
Assemblies of their own would have to specifically empower
Municipalities within them with the power to levy taxes.
100. We have already held that despite the fact that certain Union
Territories have Legislative Assemblies of their own, they are very
much under the supervision of the Union Government and cannot be
said to have an independent status. Under our constitutional scheme,
all taxation must fall within either of two categories: State taxation or
Union taxation. Since it is axiomatic that taxes levied by authorities
within a State would amount to State taxation, it would appear that
the words “or by any authority within a State” have been added in
Article 285(1) by way of abundant caution. It could also be that these
words owe their presence in the provision to historical reasons; it may
be noted that Section 154 of the 1935 Act was similarly worded. The
fact that Article 289(1), which in its phraseology is different from
Section 155 of the 1935 Act having been drafted by the Drafting
Committee to meet specific objections, does not contain words similar
to those in Article 285(1), will not in any way further the case of the
appellant, because the phrase “Union taxation” will encompass
municipal taxes levied by Municipalities in Union Territories.”
It is noteworthy that the court was inter alia, guided by the definition of “State” in
Article 367 of the Constitution of India.
X. Interpreting provisions of the 102nd Amendment- Article 366 (26C), 338B and
342A
132. What is noticeable in the lines of decisions preceding this section, including
those dealing with constitutional amendments- is that whenever the definition
clause (Article 366) arose for consideration, the court gave full effect to the
substantive amendments as well as the definition (as in the case of Builders
Association [supra] and Twentieth Century Leasing [supra]), as well as the newly
introduced provisions (as in the case of Bimolangshu Roy [supra] and Ashoka
94
Kumar Thakur [supra]). In Williamson Financial Services (supra)and New Delhi
Municipal Council (supra), this court gave full effect to the plain meaning of the
definition clause, in Article 366 (1) (1) and (30) respectively.
133. In this background, the crucial point to be decided is - did Parliament, acting
in its constituent capacity, whereby any amendment needed a special majority of
two thirds of its members present and voting, in both the Houses separately, wish
to bring about a change in status quo or not?
134. Parliament was aware that the procedure for identification of SCs and STs,
culminated with the final decision by the President on the aid and advice of the
Union Council of Ministers. This position in law underwent little change, despite
the Constitution (Sixty Fifth) and Constitution (Eighty Ninth)Amendment Acts,
which set up commissions for SCs and STs, replacing the provisions of the original
constitution which had created an authority called the “Special Officer”. Through
the amended Articles 338 and 338A, consultation with the states in the matter of
inclusion or exclusion, was and continues to be given due consideration. It is also
possible for states to initiate the process and propose the inclusion (or deletion of)
new communities or castes, by sending their proposals, duly supported by relevant
material, for consideration. This constitutional procedure, so to say, culminating in
the final word of Parliament was well known, in relation to SCs and STs. The
states were, and are, bound to consult these two commissions, for SCs and STs
(under Articles 338 and 338A).Till the 102nd Amendment, when it came to
backward classes, or SEBCs, the Constitution was silent- definitionally, as well as
the manner by which their identification could take place.
135. The interpretive exercise carried out in Indra Sawhney saw this court
enjoining the Central and State governments to set up some permanent
mechanisms in the form of commissions, to identify SEBCs through a systematic
and scientific manner and carry on regular periodic reviews. The respondent states
emphasize that pursuant to this direction, state enactments were framed and
95
brought into force. The arguments on their behalf as well as the Attorney General
was that given these directions by a nine-judge bench, it could not be inferred that
the 102nd Amendment was ever intended to bring about such a drastic change as to
exclude the state’s role altogether, in the task of making special provisions under
Article 15 (4) and Article 16 (4), in regard to identification of SEBCs.
136. It is correct that Indra Sawhney clearly voiced the need for the Central
Government and the states to take measures for setting up permanent commissions
or bodies, if need be through legislation, to carry out the task of identification of
communities as SEBCs for the purposes of Articles 15 and 16. However, that
articulation or even direction, could not have, in the opinion of this court, been an
injunction never to depart from the existing mechanisms of setting standards for
identification of such classes, nor was it to be a direction in perpetuity, that status
quo remain forever. It cannot be seriously assumed that if Parliament were so
minded, it cannot bring about changes at all to the Constitution, in regard to how
identification of backward classes is to take place. The existence of the provision in
Article 368, enabling amendments, and the inapplicability of the proviso to Article
368(2) in relation to the kind of changes to the Constitution, brought about by
introduction of Articles 366 (26C), Article 338B and Article 342A, negates this
argument.
137. A reading of the Select Committee’s Report (in relation to the 102nd
Amendment) bears out that various changes to the proposed amendments were
suggested on the ground that on a fair and reasonable interpretation of its terms,
State’s powers to make reservations could be impacted. The Central Government’s
representatives and officials assured that the State’s role in the process of backward
class identification and listing, would be maintained. None of the amendments
proposed, expressly preserving the state power, were accepted. The dissenting
members were aware that a fair and reasonable interpretation of the terms of the
96
amendment clearly ousted the State’s powers to identify backward classes of
citizens. This emerges on a reading of a note by Shri Sukhendu Shekhar Roy, a
Member of Parliament who relied on extracts of the judgment in Indra Sawhney
and observed that the amendments prescribed “for the unitary authority which in
effect shall encroach upon the jurisdiction of the States in the matter of identifying
and specifying the socially and educationally backward classes”. Three Members,
Shri Digvijaya Singh, Shri B.K. Hariprasad, and Shri Hussain Dalwai, submitted a
joint note of dissent which dealt with the powers of the commission under Article
342A, and also suggested changes in its composition. Shri Sharad Yadav, another
Member of Parliament, was of the view that there was no need of any inclusion or
exclusion of the castes and approval thereof should not be left to the Governor,
Parliament and President as it will be a step backward. Dr.Dalip Kumar Tirkey,
Member of the Rajya Sabha, proposed sub-articles (3) and (4) to Article 342A,
enabling the State to publish a list which could be modified by State Assemblies.
Ms. Kanimozhi in her long letter of dissent, also highlighted the effect of a
proposed amendment and insertion of Article 342A which had the effect of ousting
the states’ power, which they had hitherto exercised to identify SEBCs.
138. The debates in Parliament also witnessed members voicing apprehensions
that the power hitherto enjoyed by the states, would be whittled down drastically.
These fears were allayed by the concerned Minister who piloted the Bill before
both Houses of Parliament. Extracts of these statements have been set out in
extenso in the judgment of Ashok Bhushan, J.; they are not reproduced here, for the
sake of brevity.
139. These materials show that there was on the one hand, an assumption that the
changes ushered by the amendments would not disturb any part of states’ powers;
however, a sizeable number- 8 members, after a careful reading of the terms of the
amendment, dissented, saying that state power would be adversely impacted. In
97
these circumstances, the debate which ensued at the time of passing of the Bill into
the 102nd Amendment was by way of an assurance by the Minister concerned that
the existing power of the states would not be affected. To the same effect, are
debates on the floor of the Houses of Parliament. Given all these circumstances, it
is difficult to accept the contention that the Select Committee’s Report, to the
extent it holds out an assurance, should be used as a determinative external aid for
interpretation of the actual terms of the 102nd
Amendment. Likewise, debates and
statements cannot be conclusive about the terms of the changes brought about by
an amendment to the Constitution. The duty of the court always is to first interpret
the text, and only if there is ambiguity in the meaning, to resort first to internal
aids, before seeking external aids outside the text.
140. It would be useful to recollect that this Court had, through a seven-judge
bench, held that the words of the statute are to be construed on their own terms and
that the task of interpretation should not be determined by statements made by
Ministers and Members of Parliament. In Sanjeev Coke Manufacturing (supra) it
was held that:
“No one may speak for the Parliament and Parliament is never before
the Court. After Parliament has said what it intends to say, only the
Court may say what the Parliament meant to say. None else. Once a
statute leaves Parliament House, the Court's is the only authentic
voice which may echo (interpret) the Parliament. This the court will
do with reference to the language of the statute and other permissible
aids.”
141. This aspect was highlighted somewhat more vividly in a recent decision of
this Court in Shivraj Singh Chauhan v. Speaker, Madhya Pradesh Legislative
Assembly122
, where it was held that:
“In interpreting the Constitution, it would be not be correct to rely on
the speeches Constituent Assembly of India, Volume VIII (debate of 1
1222020 SCC Online SC 363
98
June 1949) made by individual members of the Constituent Assembly.
Each speech represents the view of one individual in the Assembly
which taken as a whole formed a kaleidoscope of competing political
ideologies. There may arise instances where the court is of the
independent opinion that the views raised by individual Members of
the Constituent Assembly in their speeches lay down considerations
that warrant examination and approval by the Court. The general rule
however, would be to examine the decisions taken by Constituent
Assembly taken by majority vote. The votes of the Constituent
Assembly represent equally the views of all the members of the
Assembly and are the final and dispositive expressions of the
constitutional choices taken in framing our Constitution.”
142. The use of external aids such as speeches and parliamentary reports was
commented upon earlier, rather strongly, by Sabyasachi Mukherjee, CJ in the
decision reported as DTC Mazdoor Congress v. Delhi Transport Corporation:123
“Construction or interpretation of legislative or rule provisions
proceeds on the assumption that courts must seek to discover and
translate the intention of the legislature or the rule-making body. This
is one of the legal fictions upon the hypothesis of which the framework
of adjudication of the intention of a piece of legislation or rule
proceeds. But these are fictional myths to a large extent as experience
should tell us. In most of the cases legislature, that is to say, vast
majority of the people who are supposed to represent the views and
opinions of the people, do not have any intention, even if they have,
they cannot and do not articulate those intentions. On most of these
issues their is no comprehension or understanding. Reality would
reveal that it is only those who are able to exert their view- points, in
a common parliamentary jargon, the power lobby, gets what it wants,
and the machinery is of a bureaucratic set up who draft the legislation
or rule or law. So, there- fore, what is passed on very often as the will
of the people in a particular enactment is the handy work of a
bureaucratic machine produced at the behest of a power lobby
control- ling the corridors of power in a particular situation. This
takes the mythical shape of the 'intention of the people' in the form of
legislation. Again, very often, the bureaucratic machine is not able to
correctly and properly transmute what was intended to be conveyed.
1231990 SCR Supp. (1) 142
99
In such a situation, is it or is it not better, one would ponder to ask,
whether the courts should attribute to the law-making body the
knowledge of the values and limitations of the Constitution, and
knowledge of the evils that should be remedied at a particular time
and in a situation that should be met by a particular piece of
legislation, and the court with the experience and knowledge of law,
with the assistance of lawyers trained in this behalf, should endeavour
to find out what will be the correct and appropriate solution, and
construe the rule of the legislation within the ambit of constitutional
limitations and upon reasonable judgment of what should have been
expressed. In reality, that happens in most of the cases. Can it be
condemned as judicial usurpation of law-making functions of the
legislature thereby depriving the people of their right to express their
will? This is a practical dilemma which Judges must always, in cases
of interpretation and construction, face and a question which they
must answer.”
143. The polyvocality of parliamentary proceedings where the views expressed
by Ministers or Parliamentarians may not be common or unanimous and the danger
of attributing a particular intention to the terms of a statute, through the words of a
Minister or other functionary which may be at odds with the plain words, cannot be
lost sight of.
144. In the decision reported as BBC Enterprises v.Hi-Tech Xtravision Ltd.,124 the
court cautioned against the use of the purposive interpretation rule, saying that
“the courts should now be very reluctant to hold that Parliament has
achieved nothing by the language it used, when it is tolerably plain
what Parliament wished to achieve.”
145. This caution was accepted in Balram Kumawat v. Union of India 125 where it
was held as follows:
“26. The courts will therefore reject that construction which will
defeat the plain intention of the legislature even though there may be
some inexactitude in the language used.
1241990) 2 All ER 118
125(2003) 7 SCC 628
100
[See Salmon v. Duncombe [Salmon v. Duncombe, (1886) LR 11 AC
627 (PC)] (AC at p. 634).] Reducing the legislation futility shall be
avoided and in a case where the intention of the legislature cannot be
given effect to, the courts would accept the bolder construction for the
purpose of bringing about an effective result. The courts, when rule of
purposive construction is gaining momentum, should be very reluctant
to hold that Parliament has achieved nothing by the language it used
when it is tolerably plain what it seeks to achieve. [See B.B.C.
Enterprises Ltd. v. Hi-Tech Xtravision Ltd. [B.B.C. Enterprises
Ltd. v. Hi-Tech Xtravision Ltd., (1990) 2 All ER 118 : 1990 Ch 609 :
(1990) 2 WLR 1123 (CA)] (All ER at pp. 122-23).]”
146. Taking into consideration the amendment to Section 123 of the
Representation of People’s Act, which introduced a new corrupt practice, i.e. the
candidate making an appeal on the basis of his religion or caste, this court took the
aid of the doctrine of purposive construction, in Abhiram Singh v. C.D.
Commachen126
. The majority judgment adopted a wide interpretation, whereby any
appeal on proscribed grounds, by the candidate, for himself, against his rival, or to
the voter, would constitute a corrupt practice:
“47. There is no doubt in our mind that keeping in view the social
context in which clause (3) of Section 123 of the Act was enacted and
today's social and technological context, it is absolutely necessary to
give a purposive interpretation to the provision rather than a literal or
strict interpretation as suggested by the learned counsel for the
appellants, which, as he suggested, should be limited only to the
candidate's religion or that of his rival candidates. To the extent that
this Court has limited the scope of Section 123(3) of the Act in Jagdev
Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964)
6 SCR 750 : AIR 1965 SC 183] , Kanti Prasad Jayshanker
Yagnik [Kanti Prasad Jayshanker Yagnik v. Purshottamdas
Ranchhoddas Patel, (1969) 1 SCC 455] and Ramesh Yeshwant
Prabhoo [Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,
(1996) 1 SCC 130 : (1995) 7 Scale 1] to an appeal based on the
religion of the candidate or the rival candidate(s), we are not in
126(2017) 2 SCC 629
101
agreement with the view expressed in these decisions. We have
nothing to say with regard to an appeal concerning the conservation
of language dealt with in Jagdev Singh Sidhanti [Jagdev Singh
Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 : AIR 1965 SC
183] . That issue does not arise for our consideration.
************
Conclusion
50. On a consideration of the entire material placed before us by the
learned counsel, we record our conclusions as follows:
50.1. The provisions of clause (3) of Section 123 of the Representation
of the People Act, 1951 are required to be read and appreciated in the
context of simultaneous and contemporaneous amendments inserting
clause (3-A) in Section 123 of the Act and inserting Section 153-A in
the Penal Code, 1860.
50.2. So read together, and for maintaining the purity of the electoral
process and not vitiating it, clause (3) of Section 123 of the
Representation of the People Act, 1951 must be given a broad and
purposive interpretation thereby bringing within the sweep of a
corrupt practice any appeal made to an elector by a candidate or his
agent or by any other person with the consent of a candidate or his
election agent to vote or refrain from voting for the furtherance of the
prospects of the election of that candidate or for prejudicially
affecting the election of any candidate on the grounds of the religion,
race, caste, community or language of (i) any candidate, or (ii) his
agent, or (iii) any other person making the appeal with the consent of
the candidate, or (iv) the elector.
50.3. It is a matter of evidence for determining whether an appeal has
at all been made to an elector and whether the appeal if made is in
violation of the provisions of clause (3) of Section 123 of the
Representation of the People Act, 1951.”
147. After the decision in Indra Sawhney, the NCBC Act was enacted by
Parliament in 1993. The scheme of that enactment showed that the NCBC was
tasked with making recommendations for various purposes; especially, (by Section
9 (1)) to “examine requests for inclusion of any class of citizens as a backward
class in the lists and hear complaints of over-inclusion or under-inclusion of any
102
backward class in such lists and tender such advice to the Central Government as
it deems appropriate”. By all accounts, that commission embarked on its task and
identified SEBCs in all the 31 states and union territories in India. According to the
information available127, as many as 2479 castes and communities have been
notified as backward classes, throughout the entire country, in relation to each state
and union territory. It is nobody’s case that the statutory commission – NCBC was
not functioning properly, or that there was any interference with its work. Nor is
there any suggestion that states voiced resentment at the decisions or
recommendations of the NCBC. Given these, the important question that hangs in
the air- if one can say so- is why did Parliament have to go to such great lengths, to
merely confer constitutional status, upon the NCBC, and at the same time, tie the
hands of the Union Government, robbing it of the flexibility it always had, of
modifying or amending the list of OBCs for the purposes of the Union Government
and Central public sector employment, and for purposes of schemes and admission
to institutions, under Article 15(4).
148. It was asserted by the Attorney General and the states, that the move to
amend the Constitution was only to empower the Central Government to publish a
list, for union employment and Central PSU posts. That power always existedunder the NCBC Act. Concededly, the states were not interfering with those lists.
The Union always had and exercised power to add or vary the contents of such lists
for central posts, PSUs and institutions, whether it enacted a law or not. There is no
reason why rigidity had to be imparted to the position with regard to preparation of
a list, by taking away the flexibility of the President to amend the lists, and
requiring it to approach Parliament, after initially publishing a list under Article
342A. Again, if this court’s direction in Indra Sawhney is the reason, then there is
no enabling legislation in all states, for setting up commissions. Rather, to require
127Website of the Ministry of Social Justice, Central Government: http://socialjustice.nic.in/UserView/index?
mid=76674 accessed on 12.04.2012 at 22.02 hrs.
103
the President on the aid and advice of the Union Council of Ministers to issue a
notification which can be only changed by Parliament (by reason of Article 342A),
is mystifying.
149. The interpretation suggested by the respondents, and by Ashok Bhushan, J.,
that the power of the states, which existed till the 102nd Amendment was made,
continues unimpeded, is not borne out. Such an interpretation amounts to saying
that Parliament went to great lengths by defining, for the first time, the term
SEBC128 in the Constitution, and provided for one notification under Article
342Aissued by the President, which would “specify the socially and educationally
backward classes which shall for the purposes of this Constitution be deemed to be
socially and educationally backward classes in relation to that State or Union
territory”, and then, restricted the width of the term “deemed for purposes of this
Constitution” by giving primacy to the term “Central List”. Such an interpretation
restricts the specification of a community as backward, in relation to that State or
Union territory, only for purposes of the Central List, i.e., for purposes of central
government employment and Central Institutions. Such an interpretation with
respect, is strained; it deprives plain and grammatical meaning to the provisions
introduced by the 102nd Amendment, has the effect of tying the hands of the
Central Government, and at the same time, grants the states unlimited latitude in
the manner of inclusion of any class of citizens as backward.
150. The claim that the interpretation suggested by the respondents is pragmatic
and conforms to the doctrine of purposive interpretation, with respect, cannot be
accepted. It completely undermines the width and amplitude of the following:
(a) The deeming fiction introduced by the 102nd Amendment, while inserting
Article 366 (26C);
128which per Article 366 (26C) “means such backward classes as are so deemed under article 342A for the
purposes of this Constitution”
104
(b) The use of the term “means” which has been interpreted to imply an
exhaustive definitional expression, in several decisions of this court129, as
a device to place the matter beyond the pale of interpretation, to ensure
that the only meaning attributable is the one directed by the provision.
Thus, SEBCs are, by reason of Article 366 (26C) only those deemed to be
so under Article 342A.
(c) The emphasis is on the community- upon being included, under Article
342A, for the purposes of this Constitution being “deemed to be”
socially and educationally backward classes, in Article 366 (26C). Thus,
for all purposes under the Constitution, such communities are deemed to
be SEBCs.
(d)The logical corollary is that such inclusion is for the purposes of the
constitution, to enable state and central government benefits, i.e. welfare
measures, special provisions under Articles 15 (4) and 15 (5), as well as
employment, under Article 16 (4). The enactment of this provision
excludes all other methods of identification, by any other body - either
the state, or any state commission or authority.
(e) The use of the expression for the purposes of this Constitution, - in
Article 342A (1), also emphasizes the idea that for all purposes, i.e under
Article 15 (4), 15 (5), and 16 (4), only the communities or classes
deemed to be SEBCs under Article342A would be treated as such, in
relation to the State or Union territory concerned.
129Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682
where a Constitution Bench stated:
“72. The definition has used the word ‘means’. When a statute says that a word or phrase shall “mean”—
not merely that it shall “include” — certain things or acts, “the definition is a hard-and-fast definition, and no other
meaning can be assigned to the expression than is put down in definition” (per Esher,
M.R., Gough v. Gough [(1891) 2 QB 665] ). A definition is an explicit statement of the full connotation of a term.”
Also P. Kasilingam v PSG College of Technology 1995 Supp (2) SCC 348; Black Diamond Beverages v
Commercial Tax Officer 1998 (1) SCC 458; Godrej and Boyce Manufacturing Co v State of Maharashtra 2014 (3)
SCC 430.
105
(f) Article 338 (10) was amended, to delete references to backward class of
citizens. It originally stated that scheduled castes also included references
"to such other backward classes as the President may, on receipt of the
report of a Commission appointed under clause (1) of article 340, by
order specify and also". These expressions were omitted and an entirely
new provision, exclusively for purpose of socially and educationally
backward classes, was inserted (Article 338B), which has to
independently consider all aspects relating to SCBCs, in a manner
identical to SCs and STs.
151. If all these factors are kept in mind, there can be no room for doubt that “the
Central List” in Article 342A (2) is none other than the list published in Article
342A(1) for the purposes of the Constitution. This means that after the introduction
of these provisions, the final say in regard to inclusion or exclusion (or
modification of lists) of SEBCs is firstly with the President, and thereafter, in case
of modification or exclusion from the lists initially published, with the Parliament.
152. This sequitur is the only reason why change was envisioned in the first
placeby Parliament, sitting in its constituent capacity, no less, which is to alter the
entire regime by ensuring that the final say in the matter of identification of SEBCs
would follow the same pattern as exists, in relation to the most backward classes
among all citizens, (i.e. the SCs and STs, through Articles 338, 338A, 341 and
342). Too much cannot be read into the use of the expression the Central list for
the simple reason that it is a list, prepared and published by the President, on the
aid and advice of the Union Council of Ministers. The term Central is no doubt,
unusual, but it occurs in the Constitution in several places. At the same time, the
Council of Ministers headed by the Prime Minister advices the President and
provides information relating to the administration of the affairs of the Union and
proposals for legislation (Article 78). Similarly, Article 77 uses the term “the
106
Government of India”. Given that these terms are used interchangeably, and mean
the same, “the Central List” carries no other signification than the list notified
under Article 342A(1), by the President at the behest of the Central Government.
153. It is noticeable that Article 367 of the Constitution of India incorporates, by
reference, the definitions set out in the General Clauses Act, 1897, as those
operating in relation to expressions not defined expressly in the Constitution
itself130. By Section 3 (8) (b) of that Act, “Central Government” means, after
commencement of the Constitution, the President of India.131In a recent decision, K.
Lakshminarayanan v. Union of India132 this court held that
130367. Interpretation.—(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject
to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this
Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or
made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the
President or, to an Ordinance made by a Governor, as the case may be.
(3) For the purposes of this Constitution ―”foreign State” means any State other than India:
Provided that, subject to the provisions of any law made by Parliament, the President may by order4
declare any State not to be a foreign State for such purposes as may be specified in the order.”
131General Clauses Act
“3. Definitions—In this Act, and in all Central Acts and Regulations made after the commencement of this
Act, unless there is anything repugnant in the subject or context,
*****
(8) “Central Government” shall—
(a) in relation to anything done before the commencement of the Constitution, mean the Governor General
or the Governor General in Council, as the case may be; and shall include—
(i) in relation to functions entrusted under sub-section (1) of section 124 of the Government of India Act,
1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to
it under that subsection; and
(ii) in relation to the administration of a Chief Commissioner’s Province, the Chief Commissioner acting
within the scope of the authority given to him under sub-section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the
President; and shall include—
(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government
of a State, the State Government acting within the scope of the authority given to it under that clause; 1 ***
(ii) in relation to the administration of a Part C State 2 before the commencement of the Constitution
(Seventh Amendment) Act, 1956], the Chief Commissioner or the Lieutenant Governor or the Government of a
neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or
article 243 of the Constitution, as the case may be; and
(iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope
of the authority given to him under article 239 of the Constitution”
132(2020) 14 SCC 664
107
“24. Thus, it is clear that the definition of Central Government, which
means the President is not controlled by the second expression “and
shall include the Administrator”. The ordinary or popular meaning of
the words “the President” occurring in Section 3(8)(b) has to be
given and the second part of the definition shall not in any way
control or affect the first part of the definition as observed above. In
the definition of Central Government, an Administrator shall be read
when he has been authorised or delegated a particular function under
the circumstances as indicated above. No statutory rules or any
delegation has been referred to or brought on record under which the
Administrator is entitled or authorised to make nomination in the
Legislative Assembly of the Union Territory of Puducherry. Thus, in
the present case, the definition of Central Government, as occurring
in Section 3(3) of the 1963 Act has to be read as to mean the President
and not the Administrator. The issue is answered accordingly.”
Article 342A (1) does not use the expression “Central Government”. Nevertheless,
Article 342A (2) uses the expression “Central List” which has led to an elaborate
interpretive discourse. If the logic of Article 367 (1) of the Constitution, together
with Section 3 (8) (b) of the General Clauses Act, were to be applied, “Central
List” necessarily refers to the list under Article 342A (1), which is prepared by the
President, for the purpose of the Constitution. The other interpretation, with
respect, would be unduly narrow and restrictive; it would have the effect of adding
words such as to the effect that the Central List, would “apply in relation to the
Central Government”. Such an addition of terms, with respect, cannot be resorted
to, when interpreting a Constitutional amendment, The amended provisions clearly
state that the determination is for the purpose of the Constitution and that SEBCs
(per Article 366 (26C) are deemed to be as determined in Article 342A; Article
342A states that the President shall by notification publish SEBCs in relation to
states and union territories, for the purpose of the Constitution.
154. There are other compelling reasons too, why the restrictive interpretation of
Article 342A, limiting the exercise of identification for the purpose of central
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employment and central benefits(and not made applicable to states) is to be
avoided as opposed to the interpretation based on the plain language of the new
provisions, which has to be adopted.
155. Parliament, through the 102ndAmendment clearly intended that the existing
legal regime for identification of communities as SCs and STs and for their
inclusion in the list of SCs and STs under Articles 341 and 342, which had hitherto
existed, ought to be replicated in relation to identification of SEBCs. To achieve
that, Parliament inserted Article 338B – which is a mirror image of Articles 338
and 338A. The tasks assigned to the new Commission for Backward Classes which
is envisioned as a multi-member Commission, are radically different from the
duties which were assigned by Parliament in the NCBC Act. Under Section 9 of
the erstwhile NCBC Act, which was repealed just before the commencement of the
102nd amendment, the NCBC was to examine requests for inclusion of any class of
citizens as backward classes in the list and the advice of the Commission was
ordinarily binding upon the Central Government. Section 11 provided for a
periodical revision of lists. As noticed by Ashok Bhushan, J., Article 338B
envisions a larger role for the new Commission. This Commission not only advises
the Central Government but also the States. It is impossible to read Article 338B in
isolation from the pre-existing parimateria provisions; it must be interpreted in the
light of the other two provisions which had existed all this while – Articles 338 and
338A. Those provisions clearly contemplate the same consultative role with the
Commission on policy matters, of the Central Government as well as the State
Governments. This is evident from sub-article (9) of these Articles. Thus, the
Commission – under Article 338B is not only assigned a constitutional role but is
also expected to act as an expert and engage with experts in the determination of
the communities. Article 338B(5) uses the term “SEBC” no less than on six
occasions. The expression also occurs in Article 338B(9). Thus, for the purposes of
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the Constitution, the Commission newly established under Article 338B, i.e., the
National Commission for Backward Classes shall be the only body to whom both
the Central Government and the State Governments have to turn, in all matters of
policy. Necessarily, the question of matters of policy would also include
identification of castes or communities as backward classes.
156. If the intention of the Parliament in amending the Constitution were to
merely confer or clothe the National Commission with constitutional status, the
matter would have ended by inserting Article 338B. To that end, the argument of
the respondents is understandable. Short of the task of identification, (which could
have continued with the states), if the amendment had not inserted Article 342A,
the States would have been duty bound to consult the Commission under Article
338B. The interpretation by Ashok Bhushan, J. to that extent might have been
acceptable. However, that the Constitution was amended further to introduce
Article 342A, containing the phraseology that it does, adding an entirely new
dimension which the court has to interpret, after considering the light of the
previous authorities, as also whenever new provisions were added to the
Constitution and more importantly, when such amendments were also
accompanied by changes in the definition clause.
157. The previous part of this judgment has discussed various authorities which
had considered one or the other clauses of Article 366, i.e the NDMC case, Tata
Consultancy (supra), Willamson Financial Services (supra). The NDMC case was
decided by a nine-judge bench; in all the other decisions, this court gave the fullest
latitude to the expressions in the definition clause while interpreting them in the
peculiar facts of the case. Similarly, when constitutional amendments introduced
new definitions such as in Article 366(29A), judicial interpretation leaned in favour
of giving literal meaning to the terms used which had led to change in the existing
tax regime. Such changes too limited the State’s legislative powers. Thus, for
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instance, in the Constitution bench judgments in Builders Association (supra) and
in 20th Century Leasing (supra), this Court had decisively ruled that the taxing
power of the States was explained by the amendment but at the same time was
limited in more than one manner by the express terms which had introduced a new
entry in the Central or Union legislative field. Furthermore, the principles on which
taxation could be resorted to by the States too had to be defined by the Union
Government. In other cases, whenever constitutional amendments brought about
changes in the existing status quo like in Kihoto Hollohan (supra) or limited the
legislative power constraining the state from expanding its council of ministers
beyond a certain percentage as with the introduction of Article 164(1A)in
Bimolangshu Roy(supra). This Court gave full literal effect to the terms of the
amendment after understanding the rationale for the change.
158. In Ashok Kumar Thakur (supra) and N. Nagraj (supra) the changes brought
through Constitutional Amendments were the subject matter of interpretation. In
Nagaraj, they were also the subject matter of challenge on the ground that the
amendments violated the basic structure of the Constitution. There too, the Court
interpreted the terms of the amendment by adopting a plain and literal meaning and
not by cutting down or reading down any term or phrase. In Ashok Kumar Thakur
(supra), the introduction of the new and radical Article 15(5) enabled States to
make special provisions for socially and educationally backward classes of
citizens, in unaided private educational institutions.
159. Given the weight of such precedents- which point to this court(i) giving full
effect to newly added provisions, (ii) by adopting the literal meaning in the
definition, set out in the Constitution (iii) as well as in the amendments to the
definition clause, and (iv) all of which noticed the changes brought about through
the amendments, and gave them plain effect, it is difficult to accept that the power
of amendment of the Constitution, in accordance with the special procedure set out
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in Article 368 – was used to about bring cosmetic changes conferring constitutional
status to NCBC. The conferment of constitutional status – as was noticed
previously, is achieved by only inserting Article 338B. However, the fact that it
mirrors the previous two provisions of Articles 338 and 338A and borrows from
that pattern clearly suggests that the new Commission is to have an identical role
much like the Commissions that advice the Central Government and Parliament
with respect to all matters pertaining to SCs and STs. Therefore, the new
Commission is expected to play a decisive role in the preparation of lists, which
the Constitution set apart as one list, deemed to be the list of SEBCs for the
purposes of Constitution in relation to every State and Union Territory. The
interplay between Articles 366(26C) and 338B is therefore crucial. The term
“deemed to be for the purposes of this Constitution” and a reference to Article
342A would necessarily mean that even the provision under Article 338B, is to be
interpreted in the same light. In other words, were the intention merely to confer
constitutional status, that would have been achieved by an insertion of the
provision in Article 338B without any other amendment, such as being in the
definition clause under 366 or the insertion of 342A.
160. The change brought about by the 102ndAmendment by introducing SubArticle (26C) to Article 366 and inserting a new provision - Article 342A, to my
mind, brings about a total alignment with the existing constitutional scheme for
identification of backward classes, with the manner and the way in which
identification of SCs and STs has been undertaken hitherto, by the Central
Government culminating in Presidential notifications. That task is aided by two
Commissions - respectively for SCs and STs, much as in the case of the new
National Commission for Backward Classes which will undertake the task of
aiding and advising the Central Government for issuing the notification for the
purposes of the Constitution under Article 342A. The pattern of finality and a
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single list, in relation to every State and UT – which exists in relation to SCs and
STs (Articles 341 and 342) now has been replicated with the introduction of Article
342A.
161. There have to be strong, compelling reasons for this Court to depart from the
interpretation which has been hitherto placed on the definition clause. As has been
demonstrated in more than one case, the interpretation of the definition clause in its
own terms in respect of the original constitutional provisions as well as the new
terms brought in by way of amendment (which also brought in substantive
amendments) have consistently shown a particular trend. If one keeps in mind the
interpretation of Articles 341 and 342 from the earliest decision in Bhayalal
(supra) and Bir Singh (supra), the only conclusion is that the task of examining
requests or demands for inclusion or exclusion is in the first instance only with the
President [Article 342(1)]. In this task, the President, i.e. the Central Government
is aided by the work of the Commissions set up under Articles 338 and 338A.
Upon the publication of the list containing the notification under Articles 341(1)
and 342(1), for the purposes of the Constitution in relation to the concerned State
or the concerned UT, the list of SCs and STs is conclusive. Undoubtedly, these
were the original provisions. Yet, one must be mindful of a crucial fact, which is
that the task for making special provisions under Article 15 and for making
reservations under Article 16(4) extends to the States. The power exercised by the
President in relation to every State vis-à-vis SCs and STs has been smooth and by
all accounts, there has been no resentment or friction. Once the concerned
community or caste is reflected in the list of one or the other State or Union
Territory, the extent of the benefits to be provided to members of such community
is a matter that lies entirely in the States’ domain. The amendment or modification
of any State list, can be undertaken only by Parliament, not even by the President.
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162. Much like in the case of the alignment of Article 338B with the other two
previously existing provisions of the Constitution, Article 342A aligns the function
(of identification of SEBCs and publishing the list, by the President) with Articles
341 and 342. These three sets of consecutive provisions, share their umbilical cord
with the definition clause [Article 366(24) in relation to SCs; Article 366(25) in
relation to STs and the new 366(26C) in relation to SEBCs]. This two-way linkage
between the definition clause with the substantive provisions is not without
significance. As has been held in Marri Chandra Shekar (supra); Action
Committee (supra) and Bir Singh (supra), the expression “for the purposes of the
Constitution” has to be given fullest weight. Therefore, whenever lists are prepared
under these three provisions in relation to States or UTs, the classes and castes
included in such list and no other are deemed to be castes or classes falling within
the one or the other category (SCs, STs, SEBCs) in relation to the particular State
or UT for the purposes of the Constitution.
163. If one were to, for the sake of argument, consider the deliberations before
the Select Committee reflected in its report, it is evident that amendments at three
places were moved to place the matter beyond controversy and clarify that States’
jurisdiction and power to identify SEBCs would remain undisturbed. To achieve
this, proposed Articles 342A(3) & (4) were introduced. These proposed
amendments were not accepted; and were dropped. No doubt, the rationale for
dropping (the amendments) was the impression given in the form of an assurance
that the express terms of the amendment did not divest the States of their power.
Further, paras 56 and 57 of the Select Committee report clearly state that the
Governor acts on the aid and advice of the Council of Ministers of the State and
that Articles 341 and 342 provide for consultation with the Governor in relation to
SCs and STs of the concerned States. The assurance held out was that, “at no time
has the State been excluded in the consultation process. It is by way of the State
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Government invariably which recommends to the President the category of
inclusion/exclusion in the SCs and STs. Similar provision is provided for in the
case of conferring of constitutional status to backward classes for inclusion in
Central List of SEBCs in consultation with Governor” thereby implying
consultation with the State Government. It was also stated in para 57 (of the
report)that “the expression ‘for the purpose of this Constitution’ is identical to that
phrase in Article 341 and Article 342.”
164. The deliberations of the Select Committee report only show that the existing
pattern of identification and inclusion of SCs and STs which entailed the active
involvement of the States was sought to be replicated for the purpose of preparing
the list, of OBCs, by the President. It was emphasised during the course of
arguments, an aspect that finds due reflection in the draft judgment of Ashok
Bhushan, J. that the term, “the Central List” is of crucial significance because it in
fact controls the entire provision, i.e., Article 342A, that it is in line with the Select
Committee Report as well as Parliamentary debates and that this Court has to give
it a purposive interpretation. In my respectful opinion, an isolated consideration of
the expression, “the Central List” containing classes and communities which are
deemed to be backward for the purpose of the Constitution, would undermine the
entire constitutional scheme. Parliamentary intent, on the contrary, clearly was to
replicate the existing pattern for inclusion in the list of SCs and STs for SEBCs – (a
term that had not been defined in the Constitution till then). Yet another way of
looking at the matter is that Article 342A(1) is the only provision which enables
the publication of one list of SEBCs. This provision clearly talks of publication of
a list through a Presidential notification for the purpose of the Constitution after the
process of identification. It is this list which contains members of classes or
communities which can be called as SEBCs by virtue of Article 366(26C). In other
words, the subject of Article 342A(1) determines the subject of Article
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366(26C)which in turn controls and guides the definition of the term “SEBCs” for
the entire Constitution. This is achieved by using emphatic terms such as “means”
and “deemed to be”. A similar emphasis is to be found in Article 342A(1) which
uses “shall for the purposes of the Constitution”. In both cases, i.e. Articles
366(26C) and 342A(1), there are no words limiting, or terms indicative of
restriction as to the extent to which such inclusion is to operate. Thus, like in the
case of Articles 341 and 342, those classes and castes included in the list of SEBCs
in relation to every State and every UT are:
(i) For the purposes of the Constitution;
(ii) deemed to be SEBCs in relation to concerned State or Union Territory.
165. The width and amplitude of the expression “shall be deemed to be” of the
expression cannot be diluted or cut down in any manner whatsoever. If one
understands that this list in fact identifies SEBCs for the purposes of the
Constitution, all that follows in Article 342A(2) is that such list can only be
amended by Parliament. The Court, therefore, has to see the object and content of
the entire Article to determine what it means. So viewed, firstly it is linked with
Article 366(26C) and the use of the terms “means” and “deemed” in the definition
is decisive, i.e., that there can be no class or caste deemed for the purposes of
Constitution other than those listed under Article 342A. Secondly, Article 342A(1)
is the only provision conferring power by which identification is undertaken by the
President in the first instance. This identification and publication of the list
containing the cases and communities is in relation to each State and each Union
Territory. Third, after publication of this notification, if changes are brought about
to it by inclusion or exclusion from that list, (called the “Central List” of SEBCs
for the first time), Parliament alone can amend it. It is important that the expression
“the Central List” is clarified by the phrase “socially and educationally backward
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classes specified in a notification under Clause (1)” which is reinforced
subsequently by the use of the term “aforesaid notification”. Thus, the subject
matter of initial identification and publication of the list for the purposes of the
Constitution is by the published President alone (under the aid and advice of the
Union Council of Ministers) and any subsequent variation by way of inclusion or
exclusion can be achieved only through an amendment by law, of that list.
166. If one interprets the entire scheme involving Articles 366(26C), 342A(1) and
342A(2), the irresistible conclusion that follows is that the power of publishing the
list of SEBCs, in relation to every State and Union Territory for the purposes of the
Constitution is with the President only. Such notification is later called as the
Central List by Article 342A(2); it can only be amended by the Parliament. The
contrary interpretation virtually reads into the provisions of the Constitution
amendments which were proposed and expressly rejected in the proceedings of the
Select Committee; it also has the effect of reading in what certain dissenting
members had proposed. Furthermore, by the interpretive process of taking into
account the deliberations before the Select Committee, and speeches on the floor of
the Parliament this Court would be reading into the Constitution provisions which
no longer exist i.e., that the State can continue to carry out identification of SEBCs.
This exercise would be contrary to the express terms.
167. Therefore, the above expressions, having regard to the precedents of this
Court with respect to (i) interpretation of the definition clause under Article 366;
(ii) interpretation of new definitions inserted in Article 366 and (iii) interpretation
of amendments made to the Constitution which inserted new provisions, where the
Court always leant in favour of giving fullest effect to the substantive provisions,
this court has to adopt the same approach, to usher change, by plain, literal
construction. This court never whittled down the terminology through extrinsic
aids such as speeches made on the floor of the Parliament or Select Committee
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reports. In this instance, doing so would be giving effect to what Parliamentarians
said or Ministers said, ignoring thereby, the plain terms of the Constitution. As
stated earlier, the Court cannot assume that Parliament merely indicated a cosmetic
change by conferment of constitutional changes which could have been best
achieved by introducing Article 338B.
168. Besides the judgment in Kihoto Hollohan (supra), this court, in
Raghunathrao Ganpatrao v. Union of India133
, dwelt on the duty of this court, to
discern the meaning, and give effect to amendments to the Constitution. The court
quoted from Walter F. Murphy, who in Constitutions, Constitutionalism and
Democracy explained what an ‘amendment’ meant:
“Thus an amendment corrects errors of commission or omission,
modifies the system without fundamentally changing its nature — that
is, an amendment operates within the theoretical parameters of the
existing Constitution.”
This court then observed as follows:
“86. In our Constitution, there are specific provisions for amending
the Constitution. The amendments had to be made only under and by
the authority of the Constitution strictly following the modes
prescribed, of course subject to the limitations either inherent or
implied. The said power cannot be limited by any vague doctrine of
repugnancy. There are many outstanding interpretative decisions
delineating the limitations so that the constitutional fabric may not be
impaired or damaged. The amendment which is a change or
alteration is only for the purpose of making the Constitution more
perfect, effective and meaningful. But at the same time, one should
keep guard over the process of amending any provision of the
Constitution so that it does not result in abrogation or destruction of
its basic structure or loss of its original identity and character and
render the Constitution unworkable. The court is not concerned with
the wisdom behind or propriety of the constitutional amendment
because these are the matters for those to consider who are vested
1331994 Supp (1) SCC 191
118
with the authority to make the Constitutional amendment. All that the
court is concerned with are (1) whether the procedure prescribed by
Article 368 is strictly complied with? and (2) whether the amendment
has destroyed or damaged the basic structure or the essential features
of the Constitution.”
169. In his article Statutory Interpretation and Constitutional Legislation
(sourced from the Cambridge Repository’s Interpreting Constitutional Legislation
David Feldman134 states that at times, there is no clear indication why a statute or
amendment is introduced:
“Statutes usually carry on their faces no indication of the mischief at
which they are aimed; they do not tell a story. Looking at the statute
as a whole will not always help: many statutes are collections of kneejerk reactions to a number of different stimuli, and the degree of
coherence is further reduced where changes in government policy are
given effect by amending earlier legislation drafted to give effect to
different policies.”
The article then goes on to emphasize that the context, and the pre-existing regime
has to be considered, while interpreting the amendment or provision:
“Constitutional provisions establishing the state and its main
institutions will often not be a response to a particular mischief. A
state’s institutional design is more likely to reflect a political theory
and idea of good government, as in the USA., or to be a result of
gradual accretion, as in the UK, than to be a reaction to an
identifiable problem. On the other hand, problems arising in the preconstitutional period may have directly influenced the choice of
political theory, and so have indirectly affected the distribution of
responsibilities between institutions, the powers allocated to each
institution, their relationships with each other, their powers, and
forms of accountability.”
170. As to what was the rationale for introducing Article 366(26C) and the other
substantive amendments by the 102nd Amendment, the statement of objects and
134Professor of law, Cambridge University and QC. Also former international judge in the Constitutional Court of
Bosnia and Herzegovnahttps://aspace.repository.cam.ac.uk/bitstream/handle/1810/246176/OA1838_Statutoryinterpretation-and-constitutional-legislation-FINAL-19-03-14.pdf?sequence=1&isAllowed=y
119
reasons is not precise. Even the Select Committee Report only voices that
constitutional status is to be conferred upon the new Commission which would
undertake its task and that the pattern existing with respect to SCs and STs would
be followed. In these circumstances, given that the limited interpretation would
virtually continue the status quo, this Court has to take into account the state of
affairs which existed at the time of introduction of the amendment.
171. The rationale for the amendment, highlighting the need for provisions such
as Article 338B, 342A read with Article 366(26C) is that Parliament had the
experience of about 71 years’ working of the Constitution and the system with
respect to matters regarding identification of the most backward classes of
communities, i.e., SCs and STs. By the 102nd Amendment, one commission for
SEBCs was set up to meet the aspirations and expectations of the population of the
country who might have become SEBCs for various reasons, to voice their
concerns directly for consideration by the National Commission under Article
338B, which could then become the subject matter of inclusion under Article
342A.
172. An offshoot of the 102ndAmendment possibly would be that dominant
groups or communities, once included, as SEBCs by states would, due to their
relative “forward” status, likely take a disproportionate share of state benefits of
reservation in employment and admission benefits to state institutions. Their
inclusion can well result in shrinkage of the real share of reservation benefits for
the most backward. This consequence can be avoided, if a commission or body,
such as the one under Article 338B evolves and applies rational and relevant
criteria.
173. The existence of a permanent body, which would objectively, without being
pressurised by the dust and din of electoral politics, consider the claims for
inclusion, not based on ad-hoc criteria, but upon uniformly evolved criteria, with
the aid of experts, in a scientific manner, be in consonance with the constitutional
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objectives of providing benefits to SEBCs, having regard to relative regional and
intra state levels of progress and development. Given all these factors, this Court is
of the opinion that the 102ndAmendment, by inserting 366(26C), 342A, 338B and
342A aligned the mechanism for identification of SEBCs with the existing
mechanism for identification of SCs/STs.
174. At this stage, a word about Article 338B is necessary. Earlier, it was noticed
that this provision mirrors Articles 338 and 338A and sets out various provisions
for setting up a National Commission which is like its counterparts, in relation to
SCs and STs (Articles 338 and 338A). The consultative provisions under Articles
338B(7) and 338B(9) in the opinion of this Court, only imply that in matters of
identification, the States can make their recommendations. However, by reason of
Article 342A, it is the President, i.e. the Union Government only, whose decision is
final and determinative. The determination made for inclusion or exclusion can be
amended through a law made by Parliament alone. Given that Article 338(B)(9)
enjoins the State/UT to consult the Commission on all major policy matters
affecting SEBCs, this consultation cannot imply that the States’ view would be of
such weight, as to be determinative or final and submit. The States can by virtue of
Article 338(7) consider the report of the Commission and are obliged to table the
recommendations relating to them before their legislature. The State can even
voice its reservations and state why it cannot accept the report. Further, given the
imperative and categorical phraseology of Article 342A, the final decision of
whether to include any caste or community in the list of SCBCs is that of the
Union Government, i.e. the President.
175. This Court is also of the opinion that the change brought about by the 102nd
Amendment, especially Article 342A is only with respect to the process of
identification of SEBCs and their list. Necessarily, the power to frame policies and
legislation with regard to all other matters, i.e. the welfare schemes for SEBCs,
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setting up of institutions, grants, scholarships, extent of reservations and special
provisions under Article 15(4), 15(5) and 16(4) are entirely with by the State
Government in relation to its institutions and its public services (including services
under agencies and corporations and companies controlled by the State
Government). In other words, the extent of reservations, the kind of benefits, the
quantum of scholarships, the number of schools which are to be specially provided
under Article 15(4) or any other beneficial or welfare scheme which is conceivable
under Article 15(4) can all be achieved by the State through its legislative and
executive powers. This power would include making suggestions and collecting
data – if necessary, through statutory commissions, for making recommendations
towards inclusion or exclusion of castes and communities to the President on the
aid and advice of the Union Council of Ministers under Article 342A. This will
accord with the spirit of the Constitution under Article 338B and the principle of
cooperative federalism135 which guides the interpretation of this Constitution.
176. The President has not thus far prepared and published a list under Article
342A (1). In view of the categorical mandate of Article 342A – which has to be
necessarily read along with Article 366(26C), on and from the date of coming into
force of the 102nd Amendment Act, only the President, i.e. the Central Government
has the power of ultimately identifying the classes and castes as SEBCs. This court
is conscious that though the amendment came into force more than two years ago,
as yet no list has been notified under Article 342A. It is also noteworthy that the
NCBC Act has been repealed. In these circumstances, the Court holds that the
President should after due consultation with the Commission set up under Article
338B expeditiously, publish a comprehensive list under 342A(1). This exercise
should preferably be completed with utmost expedition given the public
importance of the matter. Till such time, the SEBC lists prepared by the states
135Jindal Stainless Ltd. v. State of Haryana, 2016 SCC OnLine SC 1260; State of Rajasthan v. Union of India 1978
1 SCR 1.
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would continue to hold the field. These directions are given under Article 142,
having regard to the drastic consequences which would flow if it is held that all
State lists would cease to operate. The consequences of Article 342A would then be
so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim
benefits under Articles 15 and 16 of the Constitution.
Re: Point No. 6 Whether, Article 342A of the Constitution abrogates States
power to legislate or classify in respect of “any backward class of citizens” and
thereby affects the federal policy / structure of the Constitution of India?
177. In W.P.938/2020, learned counsel for the petitioner, Mr. Amol. B. Karande
urged that the provisions of the 102nd Amendment, especially Article 366(26C) and
Article 342A violate the essential features or the basic structure of the Constitution.
It was argued that these provisions impact the federal structure by denuding the
State of its power to fully legislate in favour of SEBCs under Entry 25 and Entry
41 of List II, and provide for reservations in favour of SEBCs. It was argued that
the power to identify and make suitable provisions in favour of SEBCs has always
been that of the States. This constitutional position was recognized in Indra
Sawhney (supra), when the Court required the State Government to set up
permanent Commissions. Through the impugned provisions, the President has now
been conferred exclusive power to undertake the task of identification of SEBCs
for the purposes of the Constitution. It was submitted that this strikes at the root of
the federal structure because it is the people who elect the members of the State
legislatures, who frame policies suitable for their peculiarly situated needs, having
regard to the demands of the region and its people.
178. Learned counsel argued that the original Constitution had set apart the power
to identify SCs and STs and conferred it upon the President – after which,
amendment could be carried out by the Parliament. However, such a power was
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advisably retained so far as the States were concerned, with their executives and
legislatures. The deprivation of the States’ power strikes at the root of its
jurisdiction to ensure that its residents get suitable welfare measures in the form of
schemes applicable to SEBCs as well as reservations.
179. Learned counsel relied upon certain passages of the judgment of this Court
in Kesavananda Bharti v. State of Kerala136 to support the argument that without
submitting the amendment for rectification under the proviso to Article 368(2), to
the extent it denuded the State legislatures of their powers to make laws in respect
of various fields under the State List too, the amendment would be void.
180. The Learned Attorney General who represented the Union argued that there
is no question of the 102nd Amendment Act or any of its provisions violating any
essential feature of the Constitution. It was submitted that unless the amendment in
question directly affects (i.e. takes away the legislative power altogether in the list
rather than a part of its content by amending any of the provisions in List II or List
III of the Seventh Schedule to the Constitution), there is no need for seeking
rectification of a majority of the statutes. The Attorney General relied upon a
judgment of this Court in Sajjan Singh v. State of Rajasthan137
.
181. Two issues arise with respect to the validity of provisions inserted by the
102nd Amendment Act. The first is a facial challenge inasmuch as the petitioner
urges that without following the procedure indicated in the proviso to Article
368(2), i.e. seeking approval or ratification of atleast one half of the legislative
assemblies of all the States, the amendment is void. In this regard what is
noticeable is that direct amendments to any of the legislative entries in the three
lists of the Seventh Schedule to the Constitution requires ratification. Thus, the
insertion of substantive provisions that might impact future legislation by the State
in an indirect or oblique manner would not necessarily fall afoul of the
136 1973 Supp. SCR 1
1371965 SCR (1) 933
124
Constitution for not complying with the procedure spelt out in the proviso to
Article 368(2). In Sajjan Singh (supra), this Court held as follows:
“The question which calls for our decision is: what would be the
requirement about making an amendment in a constitutional provision
contained in Part III, if as a result of the said amendment, the powers
conferred on the High Courts under Article 226 are likely to be
affected?”
The Sajjan Singh court repelled the challenge, holding that
“… Thus, if the pith and substance test is applied to the amendment
made by the impugned Act, it would be clear that Parliament is
seeking to amend fundamental rights solely with the object of
removing any possible obstacle in the fulfilment of the socio-economic
policy in which the party in power believes. If that be so, the effect of
the amendment on the area over which the High Courts' powers
prescribed by Article 226 operate, is incidental and in the present
case can be described as of an insignificant order. The impugned Act
does not purport to change the provisions of Article 226 and it cannot
be said even to have that effect directly or in any appreciable
measure. That is why we think that the argument that the impugned
Act falls under the proviso, cannot be sustained.
182. The majority judgment, therefore decisively held that an interpretation
which hinges on indirect impact of a provision, the amendment of which needs
ratification of the states, does not violate the Constitution and that unless the
amendment actually deletes or alters any of the Entries in the three lists of the
Seventh Schedule, or directly amends an Article for which ratification is necessary,
recourse to the proviso to Article 368 (2) was not necessary.
183. More recently, this issue was gone into in Kihoto Hollohan, where a
challenge on the ground that all provisions of an amendment which introduced the
Tenth Schedule were void for not following the procedure under the proviso to
Article 368, were questioned. The Court proceeded to analyse every provision of
the Tenth Schedule and held that para 7, which excluded the jurisdiction of all
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Courts, had the effect of divesting the jurisdiction of Courts under Articles 226 and
32 of the Constitution. In other words, the direct result of the amendment was to
bar the jurisdiction of High Courts and thus, it directly impacted Chapter 5 of Part
VI; a ratification was required by a majority of the States. Since that procedure was
not followed, para 7 was held to be violative of the basic structure of the
Constitution. The Court applied the doctrine of severability and held that the other
parts of the amendment, contained in the Tenth Schedule did not need any such
ratification and that para 7 alone would be severed on the ground of its being
contrary to express constitutional provisions. This court ruled as follows:
“59. In Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] a
similar contention was raised against the validity of the Constitution
(Seventeenth Amendment) Act, 1964 by which Article 31-A was again
amended and 44 statutes were added to the Ninth Schedule to the
Constitution. The question again was whether the amendment
required ratification under the proviso to Article 368. This Court
noticed the question thus: (SCR p. 940)
xxxxxx xxxxxx xxxxxx
76. The test of severability requires the Court to ascertain whether the
legislature would at all have enacted the law if the severed part was
not the part of the law and whether after severance what survives can
stand independently and is workable. If the provisions of the Tenth
Schedule are considered in the background of the legislative history,
namely, the report of the ‘Committee on Defections’ as well as the
earlier Bills which were moved to curb the evil of defection it would
be evident that the main purpose underlying the constitutional
amendment and introduction of the Tenth Schedule is to curb the evil
of defection which was causing immense mischief in our body politic.
The ouster of jurisdiction of courts under Paragraph 7 was incidental
to and to lend strength to the main purpose which was to curb the evil
of defection. It cannot be said that the constituent body would not
have enacted the other provisions in the Tenth Schedule if it had
known that Paragraph 7 was not valid. Nor can it be said that the rest
of the provisions of the Tenth Schedule cannot stand on their own even
if Paragraph 7 is found to be unconstitutional. The provisions of
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Paragraph 7 can, therefore, be held to be severable from the rest of
the provisions.
77. We accordingly hold on contentions (C) and (D):
That there is nothing in the said proviso to Article 368(2) which
detracts from the severability of a provision on account of the
inclusion of which the Bill containing the amendment requires
ratification from the rest of the provisions of such Bill which do not
attract and require such ratification. Having regard to the mandatory
language of Article 368(2) that ‘thereupon the Constitution shall
stand amended’ the operation of the proviso should not be extended to
constitutional amendments in a Bill which can stand by themselves
without such ratification.
That accordingly, the Constitution (Fifty-second Amendment) Act,
1985, insofar as it seeks to introduce the Tenth Schedule in the
Constitution of India, to the extent of its provisions which are
amenable to the legal-sovereign of the amending process of the Union
Parliament cannot be overborne by the proviso which cannot operate
in that area. There is no justification for the view that even the rest of
the provisions of the Constitution (Fifty-second Amendment) Act,
1985, excluding Paragraph 7 of the Tenth Schedule become
constitutionally infirm by reason alone of the fact that one of its
severable provisions which attracted and required ratification under
the proviso to Article 368(2) was not so ratified.
That Paragraph 7 of the Tenth Schedule contains a provision which is
independent of, and stands apart from, the main provisions of the
Tenth Schedule which are intended to provide a remedy for the evil of
unprincipled and unethical political defections and, therefore, is a
severable part. The remaining provisions of the Tenth Schedule can
and do stand independently of Paragraph 7 and are complete in
themselves workable and are not truncated by the excision of
Paragraph 7.
184. As far as the question of whether the amendment has the effect of violating
the basic or essential features so far as it impacts the federal structure of the
Constitution is concerned, what is noticeable is that past decisions have
emphasized that a mere change brought about through amendments howsoever
serious the impact, cannot per se be regarded as violative of the basic structure. In
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Raghunathrao Ganpatrao (supra)138 the deletion of Articles 291 and 362 of the
Constitution, by amendment, was questioned on the ground that they affected the
basic structure, or essential features of the Constitution. This court rejected the
argument and held that:
“107. On a deep consideration of the entire scheme and content of the
Constitution, we do not see any force in the above submissions. In the
present case, there is no question of change of identity on account of
the Twenty-sixth Amendment. The removal of Articles 291 and 362 has
not made any change in the personality of the Constitution either in
its scheme or in its basic features, or in its basic form or in its
character. The question of identity will arise only when there is a
change in the form, character and content of the Constitution. In fact,
in the present case, the identity of the Constitution even on the tests
proposed by the counsel of the writ petitioners and interveners,
remains the same and unchanged.”
185. In N. Nagaraj (supra), this aspect was analysed in the following terms:
“For a constitutional principle to qualify as an essential feature, it
must be established that the said principle is a part of the
constitutional law binding on the legislature. Only thereafter, the
second step is to be taken, namely, whether the principle is so
fundamental as to bind even the amending power of the Parliament,
i.e. to form a part of the basic structure. The basic structure concept
accordingly limits the amending power of the
Parliament……………………….
xxxxxx xxxxxx xxxxxx
……………..The values impose a positive duty on the State to ensure
their attainment as far as practicable. The rights, liberties and
freedoms of the individual are not only to be protected against the
State, they should be facilitated by it. They are to be informed.
Overarching and informing of these rights and values is the principle
of human dignity under the German basic law. Similarly, secularism is
the principle which is the overarching principle of several rights and
values under the Indian Constitution. Therefore, axioms like
138Ref. f.n. 104
128
secularism, democracy, reasonableness, social justice etc. are
overarching principles which provide linking factor for principle of
fundamental rights like Articles 14, 19 and
These principles are beyond the amending power of the Parliament.
xxxxxx xxxxxx xxxxxx
Under the Indian Constitution, the word 'federalism' does not exist in
the preamble. However, its principle (not in the strict sense as in
U.S.A.) is delineated over various provisions of the Constitution. In
particular, one finds this concept in separation of powers under
Articles 245 and 246 read with the three lists in the seventh schedule
to the Constitution.
To conclude, the theory of basic structure is based on the concept of
constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity.
xxxxxx xxxxxx xxxxxx
The word 'amendment' postulates that the old constitution survives
without loss of its identity despite the change and it continues even
though it has been subjected to alteration. This is the constant theme
of the opinions in the majority decision in Kesavananda Bharati. To
destroy its identity is to abrogate the basic structure of the
Constitution. This is the principle of constitutional sovereignty.”
186. Along similar lines, Krishna Iyer, J. had remarked as to what kind of an
amendment would be abhorrent and violate the basic structure in Maharao Sahib
Shri Bhim Singhji v. Union of India139 in the following terms:
“Therefore, what is a betrayal of the basic feature is not a mere
violation of Article 14 but a shocking, unconscionable or
unscrupulous travesty of the quintessence of equal justice.”
187. By these parameters, the alteration of the content of state legislative power
in an oblique and peripheral manner would not constitute a violation of the concept
139(1981) 1 SCC 166
129
of federalism. It is only if the amendment takes away the very essence of
federalism or effectively divests the federal content of the constitution, and
denudes the states of their effective power to legislate or frame executive policies
(co-extensive with legislative power) that the amendment would take away an
essential feature or violate the basic structure of the Constitution. Applying such a
benchmark, this court is of the opinion that the power of identification of SEBCs
hitherto exercised by the states and now shifted to the domain of the President (and
for its modification, to Parliament) by virtue of Article 342A does not in any
manner violate the essential features or basic structure of the Constitution. The
102nd Amendment is also not contrary to or violative of proviso to Article 368 (2)
of the Constitution of India. As a result, it is held that the writ petition is without
merit; it is dismissed.
Conclusions
188. In view of the above discussion, my conclusions are as follows:
(1)Re Point No. 1: Indra Sawhney (supra) does not require to be referred to
a larger bench nor does it require reconsideration in the light of
subsequent constitutional amendments, judgments and changed social
dynamics of the society, for the reasons set out by Ashok Bhushan, J. and
my reasons, in addition.
(2)Re Point No 2: The Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for appointments in
the public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019
granting 12% and 13% reservation for Maratha community in addition to
50% social reservation is not covered by exceptional circumstances as
130
contemplated by Constitution Bench in Indra Sawhney’s case. I agree
with the reasoning and conclusions of Ashok Bhushan, J. on this point.
(3) Re Point No. 3: I agree with Ashok Bhushan, J. that the State
Government, on the strength of Maharashtra State Backward
Commission Report chaired by M.C. Gaikwad has not made out a case of
existence of extraordinary situation and exceptional circumstances in the
State to fall within the exception carved out in Indra Sawhney.
(4)Re Point No 4:Whether the Constitution One Hundred and Second
Amendment deprives the State Legislature of its power to enact a
legislation determining the socially and economically backward classes
and conferring the benefits on the said community under its enabling
power?; and
(5)Re. Point No. 5 Whether, States’ power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway abridged by
Article 342(A) read with Article 366(26c) of the Constitution of India.
On these two interrelated points of reference, my conclusions are as
follows:
(i) By introduction of Articles 366 (26C) and 342A through the 102nd
Constitution of India, the President alone, to the exclusion of all other
authorities, is empowered to identify SEBCs and include them in a list to be
published under Article 342A (1), which shall be deemed to include SEBCs
in relation to each state and union territory for the purposes of the
Constitution.
(ii) The states can, through their existing mechanisms, or even statutory
commissions, only make suggestions to the President or the Commission
under Article 338B, for inclusion, exclusion or modification of castes or
communities, in the list to be published under Article 342A (1).
(iii) The reference to the Central List in Article 342A (2) is the one notified
by the President under Article 342A (1). It is to be the only list for all
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purposes of the Constitution, in relation to each state and in relation to every
union territory. The use of the term “the Central List” is only to refer to the
list prepared and published under Article 342A (1), and no other; it does not
imply that the states have any manner of power to publish their list of
SEBCs. Once published, under Article 342A (1), the list can only be
amended through a law enacted by Parliament, by virtue of Article 342A (2).
(iv) In the task of identification of SEBCs, the President shall be guided by
the Commission set up under Article 338B; its advice shall also be sought by
the state in regard to policies that might be framed by it. If the commission
prepares a report concerning matters of identification, such a report has to be
shared with the state government, which is bound to deal with it, in
accordance with provisions of Article 338B. However, the final
determination culminates in the exercise undertaken by the President (i.e. the
Central Government, under Article 342A (1), by reason of Article 367 read
with Section 3 (8) (b) General Clauses Act).
(v) The states’ power to make reservations, in favour of particular
communities or castes, the quantum of reservations, the nature of benefits
and the kind of reservations, and all other matters falling within the ambit of
Articles 15 and 16 – except with respect to identification of SEBCs, remains
undisturbed.
(vi) The Commission set up under Article 338B shall conclude its task
expeditiously, and make its recommendations after considering which, the
President shall expeditiously publish the notification containing the list of
SEBCs in relation to states and union territories, for the purpose of the
Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the
existing lists operating in all states and union territories, and for the purposes
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of the Central Government and central institutions, continue to operate. This
direction is issued under Article 142 of the Constitution of India.
(6) Re Point No. 6: Article 342A of the Constitution by denuding States power
to legislate or classify in respect of “any backward class of citizens” does not
affect or damage the federal polity and does not violate the basic structure of the
Constitution of India.
189. The reference is answered in the above terms. The appeals and writ petitions
are therefore, disposed of in terms of the operative order of Bhushan, J. in para 444
of his Judgment.
......................................................J
[S. RAVINDRA BHAT]
New Delhi,
May 5, 2021.
