DR. JAISHRI LAXMANRAO PATIL versus THE CHIEF MINISTER & ORS.

[2021] 15 S.C.R. 715

DR. JAISHRI LAXMANRAO PATIL

THE CHIEF MINISTER & ORS.

(Civil Appeal No.3123 of 2020)

MAY 05, 2021

[ASHOK BHUSHAN, L. NAGESWARA RAO, S. ABDUL NAZEER, HEMANT GUPTA AND S. RAVINDRA BHAT, JJ.]

Reservation – Constitution of India – Arts. 15 and 16 –Constitution (Eighty-first Amendment) Act, 2000 – Socially andeducationally backward class (SEBC) – Reservation in favour ofbackward class citizens – On 16.11.1992, nine-Judge ConstitutionBench of Supreme Court delivered judgment in Indra Sawhneycase laying down law pertaining to principle of reservation underthe Constitution – Six separate judgments were delivered in the caseincluding one judgment of Justice Jeevan Reddy, which was forhimself and three other judges – Whether judgment in case of IndraSawhney needs to be referred to larger bench or require re-look bythe larger bench in the light of subsequent ConstitutionalAmendments, judgments and changed social dynamics of the societyetc. – Held, No – Held [per Ashok Bhushan, J. (for himself and S.Abdul Nazeer, J.)] with Ravindra Bhat, J., L. Nageswara Rao, J.and Hemant Gupta, J. concurring : The greatest common measureof agreement in six separate judgments delivered in Indra Sawhneyis: (i) Reservation under Article 16(4) should not exceed 50%. (ii)For exceeding reservation beyond 50%, extra-ordinarycircumstances as indicated in paragraph 810 of Justice JeevanReddy should exist for which extreme caution is to be exercised –The 50% rule affirmed in Indra Sawhney is to fulfill the objective ofequality as engrafted in Article 14 of which Articles 15 and 16 arefacets – 50% is reasonable and it is to attain the object of equality– To change the 50% limit is to have society which is not foundedon equality but based on caste rule – The cap on percentage ofreservation as laid down in Indra Sawhney is with the object ofstriking 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

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Aachieve principle of equality and with the object to strike balancewhich cannot be said to be arbitrary or unreasonable – TheConstitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Art.16 makes it clear that ceiling of50% “has now received constitutional recognition” – The judgmentof Indra Sawhney has stood the test of the time and has never beenBdoubted by any judgment of Supreme Court – No substance in anyof the grounds urged for revisiting and referring the judgment ofIndra Sawhney to larger Bench – Held (per S. Ravindra Bhat, J.supplementing, with Hemant Gupta, J. concurring therewith): Theceiling of 50% with the “extraordinary circumstances” exception,Cis the just balance that allows the State sufficient latitude to ensuremeaningful affirmative action, to those who deserve it, and at thesame time ensure that the essential content of equality, and itsinjunction not to discriminate on various proscribed grounds (caste,religion, sex, place of residence) is retained – To dilute the 50%benchmark further, would be to effectively destroy the guaranteeDof equality, especially the right not to be discriminated against onthe grounds of caste (under Articles 15 and 16).Reservation – Constitution of India – Arts. 15 and 16 – Sociallyand educationally backward class (SEBC) – Reservation in favourof backward class citizens – Identification of Maratha communityEas SEBCs – State Government set up backward class commissionto ascertain the social and educational status of the community –By its report (the Gaikwad Commission Report), the Commissionrecommended that the Maratha community be declared as SEBC –This led to enactment of the SEBC Act, 2018 giving effect to theFrecommendations of the Gaikwad Commission, resulting inreservation in favour of that community; consequent to which, theaggregate reservations exceeded 50% – Whether the SEBC Act,2018 as amended in 2019 granting reservation for the Marathacommunity in addition to 50% social reservation in educational

institutions and in public services and posts is covered by exceptionalGcircumstances as contemplated by Constitution Bench in IndraSawhney’s case – Held, No – The High Court found existence of theextra-ordinary situations with regard to exceeding 50% ceiling inrespect to grant of separate reservation to Maratha because thepopulation of backward class is 80% and reservation limit is onlyH50%, and containing the Maratha in pre-existing reservation for

OBC shall not be justice to them, which circumstances is not coveredunder the parameters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling – No extraordinarycircumstances made out in granting separate reservation of MarathaCommunity by exceeding the 50 per cent ceiling limit of reservation– Maharashtra State Reservation (of Seats for Admission inEducational Institutions in the State and for appointments in thepublic services and posts under the State) for Socially andEducationally Backward Classes (SEBC) Act, 2018.

Reservation – Constitution of India – Arts. 15 and 16 –Socially and educationally backward class (SEBC) – Reservationin favour of backward class citizens – Representation of Marathasin State services – Whether the State Government on the strength ofMaharashtra State Backward Commission Report chaired by M.C.Gaikwad made out case of existence of extraordinary situationand exceptional circumstances in the State to fall within the exceptioncarved out in the judgment of Indra Sawhney – Held, No – TheConstitution pre-condition for providing reservation as mandatedby Article 16(4) is that the backward class is not adequatelyrepresented in the public services – The Commission labored undermisconception that unless Maratha community is not representedequivalent to its proportion, it is not adequately represented – IndraSawhney has categorically held that what is required by the Statefor providing reservation under Article 16(4) is not proportionaterepresentation but adequate representation – The constitutionalprecondition as mandated by Article 16(4) being not fulfilled withregard to Maratha class, both the Gaikwad Commission’s reportand consequential legislation are unsustainable – Sufficient andadequate representation of Maratha community in public servicesis indicator that they are not socially and educationally backward.

Reservation – Constitution of India – Arts. 15, 16 and Art.342Ar/w Art.366(26C) – Constitution 102[nd ]Amendment – Socially andeducationally backward class (SEBC) – Reservation in favour ofbackward class citizens – Whether the Constitution 102[nd ]Amendmentdeprives the State Legislature of its power to enact legislationdetermining the socially and economically backward classes andconferring the benefits on the said community under its enablingpower and Whether, States power to legislate in relation to “any

Abackward class” under Articles 15(4) and 16(4) is anyway abridgedby Article 342A read with Article 366(26C) of the Constitution –Held (per Ravindra Bhat, J., with L. Nageswara Rao, J. and HemantGupta, J. concurring) (majority opinion):The two points of referenceare inter-related – By introduction of Articles 366(26C) and 342Athrough the 102nd Constitution Amendment, the President alone, toBthe exclusion of all other authorities, is empowered to identify SEBCsand include them in list to be published under Article 342A (1),which shall be deemed to include SEBCs in relation to each Stateand Union Territory for the purposes of the Constitution – The Statescan, through their existing mechanisms, or even statutoryCcommissions, only make suggestions to the President or theCommission under Art.338B, for inclusion, exclusion or modificationof castes or communities, in the list to be published underArt.342A(1) – The States’ power to make reservations, in favour ofparticular communities or castes, the quantum of reservations, thenature of benefits and the kind of reservations, and all other mattersDfalling within the ambit of Arts.15 and 16 – except with respect toidentification of SEBCs, remains undisturbed – Held (per L.Nageswara Rao, J. supplementing, with Hemant Gupta, J.concurring therwith): There is only one list that can be issued bythe President specifying the socially and educationally backwardEclasses and only those classes are treated as socially andeducationally backward classes for the purposes of the Constitution– It is apparent from Article 342A(1) and (2) that there is no scopefor any list of socially and educationally backward classes, otherthan the list to be notified by the President – Held [per AshokBhushan, J. (for himself and S. Abdul Nazeer, J.)](minority opinion):FParliamentary intention discernible from Select Committee reportand statement of Minister of Social Justice and Empowerment isthat the intention of the Parliament for bringing Constitutionalamendment was not to take away the power of the State to identifybackward class in the State – The use of word ‘Central’ in ArticleG342A(2) was only with the intent to limit the list issued by thePresident to Central services.

Reservation – Constitution of India – Arts. 15(4) and 16(4) –Socially and educationally backward class (SEBC) – Reservationin favour of backward class citizens – Constitution (102ndHAmendment) Act challenged, on ground that it violated the basic

structure, or essential features of the Constitution – Article 342A ofthe Constitution was brought by the Constitution 102nd Amendment– Whether, Article 342A abrogates States power to legislate or classifyin respect of “any backward class of citizens” and thereby affectsthe federal policy / structure of the Constitution of India – Held[per Ashok Bhushan, J. (for himself and S. Abdul Nazeer, J.)]:Article 342A was brought by Constitution 102nd Amendment to giveconstitutional status to National Backward Classes Commission andfor publication of list by the President of socially and educationallybackward classes which was to be Central List for governingemployment under Government of India and the organisations underit – The Constitution 102nd Amendment Act does not violate anybasic feature of the Constitution and is constitutionally valid – Held(per Ravindra Bhat, J., with L. Nageswara Rao, J. and HemantGupta, J. concurring): Alteration of the content of state legislativepower in an oblique and peripheral manner would not constitute aviolation of the concept of federalism – It is only if the amendmenttakes away the very essence of federalism or effectively divests thefederal content of the constitution, and denudes the states of theireffective power to legislate or frame executive policies (co-extensivewith legislative power) that the amendment would take away anessential feature or violate the basic structure of the Constitution –Applying such benchmark, the power of identification of SEBCshitherto exercised by the States and now shifted to the domain ofthe President (and for its modification, to Parliament) by virtue ofArticle 342A does not in any manner violate the essential featuresor basic structure of the Constitution – The 102nd Amendment isalso not contrary to or violative of proviso to Article 368 (2) of theConstitution – Article 342A of the Constitution by denuding Statespower to legislate or classify in respect of “any backward class ofcitizens” does not affect or damage the federal polity and does notviolate the basic structure of the Constitution of India.

Maharashtra State Reservation (of seats for admission ineducational institutions in the State and for appointments in thepublic services and posts under the State) for Socially andEducationally Backward Classes (SEBC) Act, 2018 – s.2(j) – Held:s.2(j) of the Act, 2018 insofar as it declares Maratha communityEducationally and Socially Backward Category is ultra vires to theConstitution and struck down.

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Maharashtra State Reservation (of seats for admission ineducational institutions in the State and for appointments in thepublic services and posts under the State) for Socially andEducationally Backward Classes (SEBC) Act, 2018 – s.4(1)(a) –Held: s.4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as itgrants reservation under Art.15(4) to the extent of 12% of totalBseats in educational institutions including private institutions whetheraided or unaided by the State, other than minority educationalinstitutions, is ultra vires to the Constitution and struck down –Constitution of India – Art.15(4).

Maharashtra State Reservation (of seats for admission inCeducational institutions in the State and for appointments in thepublic services and posts under the State) for Socially andEducationally Backward Classes (SEBC) Act, 2018 – s.4(1)(b) –Held: s.4(1)(b) of Act, 2018 as amended by Act, 2019 grantingreservation of 13% to the Maratha community of the totalDappointments in direct recruitment in public services and posts underthe State, is ultra vires to the Constitution and struck down.

In the instant matters, questions of seminal importancerelating to contours and extent of special provisions for theadvancement of socially and educationally backward class (SEBC)Eof citizens as contemplated under Article 15(4) of the Constitutionand contours and extent of provisions of reservation in favour ofthe backward class citizens under Article 16(4) of the Constitution,arose for consideration.

The State of Maharashtra promulgated an Ordinance in theFyear 2014, which granted reservation to the Maratha communityin public employment and in the field of education. Later, theOrdinance was given the shape of an Act, which was challengedbefore the High Court. The court stayed the operation of theenactment. The State Government then set up backward classcommission to ascertain the social and educational status of theGcommunity. By its report dated 13.11.2018 (the GaikwadCommission Report), the Commission recommended that theMaratha class of citizens be declared as Socially andEducationally Backward Class (“SEBC”). This soon led to theenactment of the Maharashtra State Reservation (of Seats forAdmission in Educational Institutions in the State and forH

appointments in the public services and posts under the State)for Socially and Educationally Backward Classes (SEBC) Act,2018, giving effect to the recommendations of the GaikwadCommission, resulting in reservation in favour of that community;consequent to which, the aggregate reservations exceeded 50%.

Subsequently, writ petitions were filed before the BombayHigh Court, challenging the identification of Marathas as SEBCs,the conclusions of the Commission, which culminated in itsadoption by the State of Maharashtra and enactment of the SEBCAct, the quantum of reservations, and the provisions of the Actitself, on diverse grounds. By the impugned judgment, the HighCourt turned down the challenge and upheld the identification ofMarathas as SEBCs, and further upheld the reasons presentedbefore it, that extraordinary circumstances existed, warrantingthe breach of the 50% mark, which was held to be the outer limitin the nine-judge decision of this court in Indra Sawhney case.Six separate judgments were delivered in the case including onejudgment of Justice Jeevan Reddy, which was for himself andthree other judges. The Constitution (102nd Amendment) Act,2018 also came to be challenged before this Court, on the groundthat it violated the basic structure, or essential features of theConstitution. The Constitution (102nd Amendment) Act, 2018was brought into force on 15.08.2018 adding Article 338B, 342Aand 366(26C).

The following six questions accordingly arose forconsideration before this Court:

1. Whether judgment in case of Indra Sawhney needs to bereferred to larger bench or require re-look by the larger benchin the light of subsequent Constitutional Amendments, judgmentsand changed social dynamics of the society etc.?

2. Whether Maharashtra State Reservation (of seats foradmission in educational institutions in the State and forappointments in the public services and posts under the State)for Socially and Educationally Backward Classes (SEBC) Act,2018 as amended in 2019 granting reservation for Marathacommunity in addition to 50% social reservation is covered byexceptional circumstances as contemplated by ConstitutionBench in Indra Sawhney’s case?

3. Whether the State Government on the strength ofMaharashtra State Backward Commission Report chaired byM.C. Gaikwad has made out case of existence of extraordinarysituation and exceptional circumstances in the State to fall withinthe exception carved out in the judgment of Indra Sawhney?

4. Whether the Constitution One Hundred and SecondBAmendment deprives the State Legislature of its power to enacta legislation determining the socially and economically backwardclasses and conferring the benefits on the said community underits enabling power?

5. Whether, States power to legislate in relation to “anyCbackward class” under Articles 15(4) and 16(4) is anyway abridgedby Article 342(A) read with Article 366(26C) of the Constitutionof India?

6. Whether, Article 342A of the Constitution abrogatesStates power to legislate or classify in respect of “any backwardDclass of citizens” and thereby affects the federal policy / structureof the Constitution of India?

Disposing of the matters, the Court

per Ashok Bhushan, J. (for himself and for S. Abdul Nazeer,

HELD:1.1. The greatest common measure of agreementin six separate judgments delivered in Indra Sawhney is: (i)Reservation under Article 16(4) should not exceed 50%. (ii)Forexceeding reservation beyond 50%, extra-ordinary circumstancesas indicated in paragraph 810 of Justice Jeevan Reddy shouldFexist for which extreme caution is to be exercised. [Para 444][940-C-D]

1.2. The 50% rule spoken in Balaji and affirmed in IndraSawhney is to fulfill the objective of equality as engrafted in Article14 of which Articles 15 and 16 are facets. 50% is reasonable andGit is to attain the object of equality. To change the 50% limit is tohave society which is not founded on equality but based oncaste rule.

1.3. The cap on percentage of reservation as has been laiddown by Constitution Bench in Indra Sawhney is with the objectHof striking balance between the rights under Article 15(1) and

15(4) as well as Articles 16(1) and 16(4). The cap on percentageis to achieve principle of equality and with the object to strike abalance which cannot be said to be arbitrary or unreasonable.[Para 444][940-D-F]

1.4. Providing reservation for advancement of any sociallyand educationally backward class in public services is not theonly means and method for improving the welfare of backwardclass. The State ought to bring other measures includingproviding educational facilities to the members of backward classfree of cost giving concession in fee, providing opportunities forskill development to enable the candidates from the backwardclass to be self-reliant. [Para 444][940-G]

1.5. There can be no quarrel that society changes, lawchanges, people changes but that does not mean that somethingwhich is good and proven to be beneficial in maintaining equalityin the society should also be changed in the name of change alone.[Para 444][940-H; 941-A]

1.6. When the Constitution Bench in Indra Sawhney heldthat 50% is upper limit of reservation under Article 16(4), it isthe law which is binding under Article 141 and to be implemented.[Para 444][941-A-B]

1.7. The Constitution Bench judgment in Indra Sawhney isalso fully applicable in reference to Article 15(4) of theConstitution of India. [Para 444][941-B]

1.8. The setting aside of 50% ceiling by eleven JudgeBench in T.M.A. Pai Foundation case as was laid down by St.Stephen’s case i.e. 50% ceiling in admission in aided MinorityInstructions has no bearing on the principle of 50% ceiling laiddown by Indra Sawhney with respect to reservation. The judgmentof T.M.A. Pai was in reference to rights of minority under Article30 and is not relevant for Reservation under Articles 16(4) and15(4) of the Constitution. [Para 444][941-C-D]

1.9. The Constitution (Eighty-first Amendment) Act, 2000by which sub-clause (4B) was inserted in Article 16 makes it clearthat ceiling of 50% “has now received constitutional recognition”.[Para 444][941-D]

A1.10. The extraordinary situations indicated in paragraph810 were only illustrative and cannot be said to be exhaustive.However, it cannot be said that paragraph 810 provided only ageographical test. The use of expression “on being out of themain stream of national life”, is social test, which also needs tobe fulfilled for case to be covered by exception. [Para 444][941-BE-F]

1.11. There is no substance in any of the 10 grounds urgedfor revisiting and referring the judgment of Indra Sawhney to alarger Bench. [Para 444][941-F-G]

C1.12. What was held by the Constitution Bench in IndraSawhney on the relevance and significance of the principle of staredecisis is clearly binding. The judgment of Indra Sawhney hasstood the test of the time and has never been doubted by anyjudgment of this Court. The Constitution Bench judgment of thisCourt in Indra Sawhney neither needs to be revisited nor referred

Dto larger Bench for consideration. [Para 444][941-G-H]

1.13. The Constitution Bench in M. Nagaraj does notcontain any ratio that ceiling of 50% reservation may be exceededby showing quantifiable contemporary data relating tobackwardness. The Commission has completely misread the ratioEof the judgment, when the Commission took the view that on thequantifiable data ceiling of 50% can be breached. [Para 444][942-

1.14. The Commission and the High Court found existenceof the extra-ordinary situations with regard to exceeding 50%ceiling in respect to grant of separate reservation to MarathaFbecause the population of backward class is 80% and reservationlimit is only 50%, containing the Maratha in pre-existingreservation for OBC shall not be justice to them, whichcircumstances is not covered under the parameters indicated inIndra Sawhney’s case as extra-ordinary circumstance to breachG50% ceiling. [Para 444][942-C]

1.15. No extraordinary circumstances were made out ingranting separate reservation of Maratha Community byexceeding the 50 per cent ceiling limit of reservation. The Act,2018 violates the principle of equality as enshrined in Article 16.HThe exceeding of ceiling limit without there being any extra-

ordinary circumstances clearly violates Article 14 and 16 of theConstitution which makes the enactment ultra vires. [Para444][942-D-E]

1.16. The proposition is well settled that Commissions’reports are to be looked into with deference. However, one ofthe parameter of scrutiny of Commission’s report as approvedby this Court is that on the basis of data and materials referred toin the report whether conclusions arrived by the Commissionare justified. [Para 444][942-E-F]

1.17. The measures taken under Article 15(4) and 16(4)can be examined as to whether they violate any constitutionalprinciple, and are in conformity with the rights under Article 14,15 and 16 of the Constitution. The scrutiny of measures taken bythe State, either executive or legislative, thus, has to pass test ofthe constitutional scrutiny. [Para 444][942-F-G]

1.18. The word ‘adequate’ is relative term used in relationto representation of different caste and communities in publicemployment. The objective of Article 16(4) is that backward classshould also be put in mainstream to enable to share power of theState by affirmative action. To be part of public service, as acceptedby the Society of today, is to attain social status and play role ingovernance. [Para 444][942-G-H; 943-A]

1.19. The representation of Marathas in public services inGrade A, B, and comes to 33.23%, 29.03%, 37.06% and36.53% computed from out of the open category filled posts, isadequate and satisfactory representation of Maratha community.One community bagging such number of posts in public servicesis matter of pride for the community and its representation inno manner can be said to not adequate in public services. [Para444][943-B-C]

1.20. The Constitution pre-condition for providingreservation as mandated by Article 16(4) is that the backwardclass is not adequately represented in the public services. TheCommission labored under misconception that unless Marathacommunity is not represented equivalent to its proportion, it isnot adequately represented. Indra Sawhney has categorically held

Athat what is required by the State for providing reservation underArticle 16(4) is not proportionate representation but adequaterepresentation. [Para 444][943-C-D]

1.21. The constitutional precondition as mandated byArticle 16(4) being not fulfilled with regard to Maratha class, bothBthe Gaikwad Commission’s report and consequential legislationare unsustainable. [Para 444][943-E]

1.22. Having disapproved the grant of reservation underArticle 16(4) to Maratha community, the said decision becomesrelevant and shall certainly have effect on the decision of theCCommission holding Maratha to be socially and educationallybackward. Sufficient and adequate representation of Marathacommunity in public services is indicator that they are not sociallyand educationally backward. From the facts and figures as notedby Gaikwad Commission in its report regarding representationof Marathas in public services, the percentage of Marathas inDadmission to Engineering, Medical Colleges and otherdisciplines, their representation in higher academic posts, it isseen that conclusion drawn by the Commission is not supportablefrom the data collected. The data collected and tabled by theCommission as noted in the report clearly proves that MarathasEare not socially and educationally backward class. [Para 444][943-F-H; 944-A]

1.23. The elementary principle of interpreting theConstitution or statute is to look into the words used in thestatute, when the language is clear, the intention of the LegislatureFis to be gathered from the language used. The aid tointerpretation is resorted to only when there is some ambiguityin words or expression used in the statute. The rule ofharmonious construction, the rule of reading of the provisionstogether as also rule of giving effect to the purpose of the statute,and few other principles of interpretation are called in questionGwhen aids to construction are necessary in particular context.[Para 444][944-B-C]

1.24. The shift from literal rule to purposive and objectiveinterpretation of constitutional document is adopted since theConstitution is not to be interpreted in static and rigid manner,H

the Constitution is an organic and living document which needsto be interpreted with cardinal principals and objectives of theConstitution. The shift from literal to purposive method ofinterpretation has been now more and more, being adopted forinterpreting constitutional document. [Para 444][944-D-E]

1.25. The law is well settled in this country thatParliamentary Committee reports including speech given by theMinister in the Parliament are relevant materials to ascertainthe intention of Parliament while construing constitutionalprovisions. [Para 444][944-E-F]

1.26. The consultation by the State on all policy mattersaffecting the socially and educationally backward classes is nowmandatory as per sub-clause (9) of Article 338B which mandatoryrequirement cannot be by-passed by any State while the Statetakes any major policy decision. Sub-clause (9) of Article 338Buses 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 ofconsultation is that ‘consultee’ shall place the relevant materialbefore person from whom ‘consultation’ is asked for and adviceand opinion given by consulting authority shall guide the authoritywho has asked for consultation. [Para 444][944-F-H]

1.27. It is, thus, clear as sun light that Parliamentaryintention discernible from Select Committee report and statementof Minister of Social Justice and Empowerment is that theintention of the Parliament for bringing Constitutional amendmentwas not to take away the power of the State to identify backwardclass in the State. [Para 444][945-A-B]

1.28. When the Parliamentary intention is discernable andadmissible as aid to statutory interpretation, there is no reasonnot to interpret Article 342A in manner as per the intention ofthe Parliament noticed above. [Para 444][945-B]

1.29. The word ‘Central’ in Article 342A (2) was used forpurpose and object. The use of ‘Central’ was only with the intentto limit the list issued by the President to Central services. It iswell settled rule of interpretation that no word in statute or

AConstitution is used without any purpose. Word ‘Central’ has tobe given meaning and purpose. [Para 444][945-C-D]

1.30. When Article 342A is interpreted to mean that Article342A refers to ‘Central List’ which is prepared for services underthe Government of India and organisations under the GovernmentBof India, the definition given under Article 366(26C) whichspecifically refer to Article 342A has to be read together and listof backward classes which is not Central List shall not begoverned by the definition under Article 366(26C). Since, (26C)has been inserted in the context of Article 342A, if the context islist prepared by the State and it is State List, definition underC(26C) shall not govern. [Para 444][945-D-F]

1.31. Article 342A was brought by Constitution 102ndAmendment to give constitutional status to National BackwardClasses Commission and for publication of list by the Presidentof socially and educationally backward classes which was to beDCentral List for governing employment under Government ofIndia and the organisations under it. [Para 444][945-F-G]

1.32. The Constitution 102nd Amendment Act does notviolate any basic feature of the Constitution. The constitutionalvalidity of Constitution (One Hundred and second Amendment)EAct is upheld. [Para 444][945-G-H]

2.1. Section 2(j) of the Act, 2018 insofar as it declaresMaratha community Educationally and Socially BackwardCategory is held to be ultra vires to the Constitution and struckdown. [Para 444][946-C-D]F

2.2. Section 4(1)(a) of Act, 2018 as amended by Act, 2019insofar as it grants reservation under Article 15(4) to the extentof 12% of total seats in educational institutions including privateinstitutions whether aided or unaided by the State, other thanminority educational institutions, is declared ultra vires to theGConstitution and struck down. [Para 444][946-D-E]

2.3. Section 4(1)(b) of Act, 2018 as amended by Act, 2019granting reservation of 13% to the Maratha community of thetotal appointments in direct recruitment in public services andposts under the State, is held to be ultra vires to the ConstitutionHand struck down. [Para 444][946-F]

T.M.A. Pai Foundation and others v. State of Karnatakaand others, (2002) 8 SCC 481 : [2002] 3 Suppl. SCR587 and S.V.Joshi v. State of Karnataka, (2012) 7 SCC41 – distinguished.

M. Nagraj and others v. Union of India & Ors. (2006)8 SCC 212 and M.R. Balaji v. State of Mysore, AIR1963 SC 649 : [1963] Suppl. SCR 439 – explained.

Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : [1965]SCR 908 – held applicable.

Ram Singh and others v. Union of India, (2015) 4 SCC697 : [2015] 5 SCR 670 – affirmed.

Indra Sawhney v. Union of India 1992 Suppl. (3) SCC217 : [1992] 2 Suppl. SCR 454]; Jarnail Singh andothers v. Lachhmi Narain Gupta and others, 2018 (10)SCC 396 : [2018] 10 SCR 663; Barium Chemicals ltd.and another v. The Company Law Board and others,AIR 1967 SC 295 : [1966] Suppl. SCR 311; Dinesh B.v. Union of India and others, T. Devadasan v. Union ofIndia and another, AIR (1964) SC 179 : [1964] SCR680; State of Punjab v. Hiralal and others, (1970) 3SCC 567 : [1971] 3 SCR 267; State of Kerala andothers v. N.M. Thomas and others, (1976) 2 SCC 310 :[1976] 1 SCR 906; Akhil Bharatiya Soshit KaramchariSangh, (Railway) v. Union of India and others, (1981)1 SCC 246 : [1981] 2 SCR 185; K.C. Vasant Kumarand another v. State of Karnataka, (1985) Supp. (1)SCC 714; Union of India and others v. Rakesh Kumarand others, (2010) 4 SCC 50: [2010] 1 SCR 483; Vikaskishanrao Gawali v. The State of Maharashtra, (2021)SCC Online SC 170; St. Stephen’s College v. Universityof Delhi, (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121;Kalpana Mehta and others v. Union of India and others,(2018) 7 SCC 1 : [2018] 4 SCR 1; Rajnarain Singh v.Chairman, Patna Administration Committee, Patna andanother, AIR 1954 SC 569 : [1955] SCR 290; Re DelhiLaws Act, 1912, Ajmer-Merwara (Extension of Laws)Act, 1947 v. Part ‘C’ States(Laws) Act, 1950, AIR 1951

SC 332 : [1951] SCR 747; General Manager, SouthernRailway, Personnel Officer (Reservation), SouthernRailway v. Rangachari, AIR 1962 SC 36 :[1962]SCR 586; State of Kerala and another v. N.M. Thomasand others, 1976 (2) SCC 310 : [1976] 1 SCR 906; T.Devadasn v. Union of India and another, AIR 1964 SC179 : [1964] SCR 680; Akhil Bharatiya SochitKaramchari Sangh (Railway) Represented by itsAssistant General Secretary on behalf of the Associationv. Union of India and others, (1981) 1 SCC 246 : [1981]2 SCR 185; K.C. Vasanth Kumar and another v. Stateof Karnataka, 1985 (Supp) SCC 714 : [1985] Suppl.SCR 352; State of Punjab and Hira Lal and others,1970 (3) SCC 567 : [1971] 3 SCR 267; N.M. Thomas,Akhil Bharatiya Karamchari Sangh and State of PunjabS.V. Joshi and others v. State of Karnataka and others,(2012) 7 SCC 41; Post Graduate Institute of MedicalEducation & Research, Chandigarh and others v. FacultyAssociation and others; Chebrolu Leela Prasad Rao &Ors. v. State of A.P. & Ors., 2020 (7) SCALE 162; Smt.Indira Nehru Gandhi v. Raj Narain, (1975) Suppl. SCC1 : [1976] SCR 347; His Holiness Kesavananda BharatiSripadagalvaru v. State of Kerala and another, (1973)4 SCC 225 : [1973] Suppl. SCR 1; K.S. Puttaswamyand another v. Union of India and others, 2017 (10)SCC 1 : [2017] 10 SCR 569; Supreme Court Advocates-on-Record Association and others v. Union of India,1993 (4) SCC 441 : [1993] 2 Suppl. SCR 659; AshokaKumar Thakur v. Union of India and others, 2008 (6)SCC 1 : [2008] 4 SCR 1; All India Reporter KaramchariSangh and others v. All India Reporter Limited andothers, 1988 Supp SCC 472 : [1988] SCR 774; NandKishore v. State of Punjab, 1995 (6) SCC 614 : [1995]4 Suppl. SCR 16; The State of Madras v. ChampakamDorairajan, AIR 1951 SC 226 : [1951] SCR 525; B.Venkataramana v. State of Tamil Nadu and Another, AIR1951 SC 229; Minerva Mills limited and others v. Unionof India and others, (1980) 3 SCC 625 : [1981]1 SCR 206; St. Stephen’s College case, (1992) 1 SCC

558 : [1991] 3 Suppl. SCR 121; Society for Un-aidedPrivate Schools of Rajasthan v. Union of India andanother, (2012) 6 SCC 1: [2012] 2 SCR 715; K. KrishnaMurthy and others v. Union of India and another, (2010)7 SCC 202 : [2010] 6 SCR 972; Jarnail Singh and othersv. Lachhmi Narain Gupta and others, 2018 (10) SCC396 : [2018] 10 SCR 663; State of Gujarat v. Mirzapur,Moti Kureshi Kassab Jamat and others, (2005) 8 SCC534 : [2005] 4 Suppl. SCR 582; Union of India and othersv. Rakesh Kumar and others, (2010) 4 SCC 50 : [2010]1 SCR 483; M.R. Balaji v. The State of Mysore andothers, AIR (1963) SC 649 : [1963] Suppl. SCR 439;The State of Andhra Pradesh and others v. U.S.V.Balram, etc., (1972) 1 SCC 660 : [1972] 3 SCR 247;Barium Chemicals v. Company Law Board, AIR 1967 SC295 : [1966] Suppl. SCR 311; B.K. Pavitra and othersv. Union of India and others, (2019) 16 SCC 129 : [2019]7 SCR 1086; Mukesh Kumar and another v. State ofUttarakhand and others, (2020) 3 SCC 1; ITC Ltd. v.Agricultural Produce Market Committee and others, (2002)9 SCC 232 : [2002] 1 SCR 441; State of Travancore,Cochin and others v. Bombay Company Ltd., AIR 1952SC 366 : [1952] SCR 1112 ; Aswini Kumar Ghose andanother v. Arabinda Bose and another, AIR 1952 SC 369: [1953] SCR 1; His Holiness Kesvananda Bharati v.State of Kerala and another, (1973) 4 SCC 225 : [1973]Suppl. SCR 1; R.S. Nayak v. A.R. Antulay, 1984 (2)SCC 183 : [1984] 2 SCR 495; Minerva Mills Ltd. andothers v. Union of India and others, (1980) 3 SCC 625: [1981] 1 SCR 206; Chandramouleshwar Prasad v.The Patna High Court and others, (1969) 3 SCC 56 :[1970] 2 SCR 666; Union of India v. ShankalchandHimatlal Sheth and another, (1977) 4 SCC 193 : [1978]1 SCR 423; Indian Administrative Services (S.C.S.)Association, U.P. and Others, (1993) Suppl. 1 SCC 730:[1992] 2 Suppl. SCR 389; Supreme Court Advocateson Record Association and others v. Union of India,(1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; State(NCT) of Delhi v. Union of India and another, 2018 (8)

ASCC 501 : [2018] 7 SCR 1 and Abhiram Singh v. C.C.Commachen (Dead) By Legal Representatives andothers, (2017) 2 SCC 629 : [2017] 1 SCR 158 –referred to.

The Central Province and Berar Sales of Motor SpiritBand Lubricants Taxations Act, 1938, AIR 1939 FederalCourt 1 – referred to.

Granville Austin in “The Indian Constitution: Cornerstoneof Nation” and Justice G.P. Singh in 296 ‘Principlesof Statutory Interpretation’, 14th Edition – referred to.

Cper S. Ravindra Bhat, J. [Concurring with Ashok Bhushan,J. on question Nos.1,2,3 and also supplementing in relation toquestion No.1]

1.1. Re Point No. 1: Indra Sawhney does not require to bereferred to larger bench nor does it require reconsideration inDthe light of subsequent constitutional amendments, judgmentsand changed social dynamics of the society, for the reasons setout by Ashok Bhushan, J. and my reasons, in addition. [Para188][1064-F-G]

1.2. careful reading of the judgments in Indra Sawhney,Eclarifies that seven out of nine judges concurred that there existsa quantitative limit on reservation – spelt out @ 50%. In theopinion of four judges, therefore, per the judgment of B.P. JeevanReddy, J., this limit could be exceeded under extraordinarycircumstances and in conditions for which separate justificationFhas to be forthcoming by the State or the concerned agency.However, there is unanimity in the conclusion by all seven judgesthat an outer limit for reservation should be 50%. 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 agreementGabout the existence of an outer limit, i.e. 50%, the petitioner’sargument about the incoherence or uncertainty about theexistence of the rule or that there were contrary observationswith respect to absence of any ceiling limit in other judgments(the dissenting judgments of K. Subbarao, in T. Devadasan vUnion of India, the judgments of S.M. Fazal Ali and Krishna Iyer,H

JJ. in State of Kerala v N.M. Thomas and the judgment ofChinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka)is not an argument compelling review or reconsideration ofIndra Sawhney rule. [Para 10][951-F-H; 952-A-B]

1.3. The idea of definitive and objective principle, in theform of 50% ceiling on limitation, emerges on an overall readingof Indra Sawhney. The argument made by the respondents wasthat this court should not go by such ceiling limit, but rather,while exercising its judicial review power, proceed on case-by-case approach, and resting its conclusions on fact dependentexercises, using other criteria, such as reasonableness,proportionality, etc. for judging excessive reservations. However,what constitutes reasonableness and what is proportionate in agiven case, would be unchartered and indeterminate areas. It isone thing to try persuading the court to discard 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 beproved, but also principle that is sought to be substituted, shouldhave clarity, or else, the argument would be one asking the courtto take leap in the dark. It is not enough, therefore to resort toobservations such as “the length of the leap to be provideddepends upon the gap to be covered” or the proportionalitydoctrine (deployed to judge validity of an executive or legislativemeasure), because they reveal no discernible principle.Reasonableness is no doubt familiar phrase in the constitutionallexicon; yet there is considerable subjectivity and relativity in itspractise. [Para 31][962-G; 963-A-C]1.4. The ceiling of 50% with the “extraordinarycircumstances” exception, is the just balance- what is termed asthe “Goldilocks solution” - i.e. the solution containing the rightbalance that allows the state sufficient latitude to ensuremeaningful affirmative action, to those who deserve it, and at thesame time ensures that the essential content of equality, and itsinjunction not to discriminate on the various proscribed grounds(caste, religion, sex, place of residence) is retained. This courtin M. Nagaraj v. Union of India observed that “a numericalbenchmark is the surest immunity against charges of

Adiscrimination.” To dilute the 50% benchmark further, would beto effectively destroy the guarantee of equality, especially theright not to be discriminated against on the grounds of caste(under Articles 15 and 16). [Para 34][964-D-F]

2. Re Point No 2: The Maharashtra State Reservation (ofBseats for admission in educational institutions in the State and forappointments 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 forMaratha community in addition to 50% social reservation is notcovered by exceptional circumstances as contemplated byCConstitution Bench in Indra Sawhney’s case. [Para 188][1064-G-H; 1065-A-B]

3. Re Point No. 3: The State Government, on the strengthof Maharashtra State Backward Commission Report chaired byM.C. Gaikwad has not made out case of existence ofDextraordinary situation and exceptional circumstances in the Stateto fall within the exception carved out in Indra Sawhney. [Para188][1065-B-C]

4. Re Point No 4: Whether the Constitution One Hundredand Second Amendment deprives the State Legislature of itsEpower to enact legislation determining the socially andeconomically backward classes and conferring the benefits onthe said community under its enabling power?; and Re. PointNo. 5 Whether, States’ power to legislate in relation to “anybackward class” under Articles 15(4) and 16(4) is anyway abridgedFby Article 342(A) read with Article 366(26c) of the Constitutionof India.On these two interrelated points of reference, conclusionsare as follows:

(i) By introduction of Articles 366 (26C) and 342A throughGthe 102nd Constitution of India, the President alone, to theexclusion of all other authorities, is empowered to identify SEBCsand include them in list to be published under Article 342A (1),which shall be deemed to include SEBCs in relation to each stateand union territory for the purposes of the Constitution. [Para188]H

(ii) The states can, through their existing mechanisms, oreven statutory commissions, only make suggestions to thePresident or the Commission under Article 338B, for inclusion,exclusion or modification of castes or communities, in the list tobe published under Article 342A(1). [Para 188][1065-D-H]

(iii) The reference to the Central List in Article 342A(2) isthe one notified by the President under Article 342A(1). It is tobe the only list for all purposes of the Constitution, in relation toeach state and in relation to every union territory. The use of theterm “the Central List” is only to refer to the list prepared andpublished under Article 342A (1), and no other; it does not implythat the states have any manner of power to publish their list ofSEBCs. Once published, under Article 342A (1), the list can onlybe amended through law enacted by Parliament, by virtue ofArticle 342A (2). [Para 188][1066-A-C](iv) In the task of identification of SEBCs, the Presidentshall be guided by the Commission set up under Article 338B;its advice shall also be sought by the state in regard to policiesthat might be framed by it. If the commission prepares reportconcerning matters of identification, such report has to be sharedwith the state government, which is bound to deal with it, inaccordance with provisions of Article 338B. However, the finaldetermination culminates in the exercise undertaken by thePresident (i.e. the Central Government, under Article 342A (1),by reason of Article 367 read with Section 3 (8) (b) GeneralClauses Act). [Para 188][1066-C-E]

(v) The states’ power to make reservations, in favour ofparticular communities or castes, the quantum of reservations,the nature of benefits and the kind of reservations, and all othermatters falling within the ambit of Articles 15 and 16 – exceptwith respect to identification of SEBCs, remains undisturbed.[Para 188][1066-E-F]

(vi) The Commission set up under Article 338B shallconclude its task expeditiously, and make its recommendationsafter considering which, the President shall expeditiously publishthe notification containing the list of SEBCs in relation to states

Aand union territories, for the purpose of the Constitution. [Para188][1066-F-G]

(vii) Till the publication of the notification mentioned indirection (vi), the existing lists operating in all states and unionterritories, and for the purposes of the Central Government andBcentral institutions, continue to operate. This direction is issuedunder Article 142 of the Constitution of India. [Para 188][1066-G-H]

5. Re Point No. 6: The alteration of the content of statelegislative power in an oblique and peripheral manner would notconstitute violation of the concept of federalism. It is only if theCamendment takes away the very essence of federalism oreffectively divests the federal content of the constitution, anddenudes the states of their effective power to legislate or frameexecutive policies (co-extensive with legislative power) that theamendment would take away an essential feature or violate theDbasic structure of the Constitution. Applying such benchmark,this court is of the opinion that the power of identification of SEBCshitherto exercised by the states and now shifted to the domain ofthe President (and for its modification, to Parliament) by virtueof Article 342A does not in any manner violate the essentialfeatures or basic structure of the Constitution. The 102ndEAmendment is also not contrary to or violative of proviso toArticle 368 (2) of the Constitution of India. Article 342A of theConstitution by denuding States power to legislate or classify inrespect of “any backward class of citizens” does not affect ordamage the federal polity and does not violate the basic structureof the Constitution of India. [Paras 187, 188][1064-C-E; 1067-A-FB]

6. The appeals and writ petitions are therefore, disposedof in terms of the operative order of Bhushan, J. in para 444 ofhis Judgment. [Para 189][1067-B-C]

Indra Sawhney v Union of India (1992) 3 Supp SCCG217 : [1992] 2 Suppl. SCR 454; T. Devadasan v Unionof India [1964] 4 SCR 680; State of Kerala v N.M.Thomas 1976 (2) SCC 310 : [1992] 2 Suppl. SCR 454;K.C. Vasanth Kumar v. State of Karnataka [1985] 1Suppl. SCR 352; M.R. Balaji v. State of Mysore 1963HSuppl. 1 SCR 439; P. Rajendran v. State of T.N. [1968]

2 SCR 786; Peeriakaruppan v. State of T.N. (1971) 1SCC 38: [1971] 2 SCR 430; State of A.P. v. USV Balram(1972) 1 SCC 660: [1972] 3 SCR 247; State of U.P.v. Pradeep Tandon (1975) 1 SCC 267 : [1975] 2 SCR 761; Janki Prasad Parimoo v. State of J&K (1973) 1SCC 420 : [1973] 3 SCR 236; Krishena Kumar andAnr. v. Union of India & Ors. (1990) 4 SCC 207 : [1990]3 SCR 352; Union of India v Raghubir Singh [1989] 3SCR 316; Barium Chemicals v. Company Law Board[1966] Suppl. 3 S.C.R. 311; Mukesh Kumar v. State ofUttarakhand (2020) 3 SCC 1; In re Kerala EducationBill [1959] SCR 995; T.M.A Pai Foundation v. State ofKarnataka 2002 (8) SCC 481 : [2002] 3 Suppl.SCR 587; R.C. Poudyal v. Union of India 1994 Supp(1) SCC 324 : [1993] 1 SCR 891; State of Punjab v.Hiralal [1971] 3 SCR 267; M. Nagaraj v. Union ofIndia (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;Pramati Educational & Cultural Trust v. Union of India2014 (8) SCC 1 : [2014] 11 SCR 712; B.K. Pavitra v.Union of India (2019) 16 SCC 129: [2019]7 SCR 1086; State of Travancore-Cochin v. BombayCompany Ltd, [1952] SCR 1112; Aswini Kumar Ghose& Anr. v. Arabinda Ghose & Anr. AIR 1953 SC 75:[1953] SCR 215 P.V. Narasimha Rao v. State (1998) 4SCC 626 : [1998] 2 SCR 870;Sanjeev CokeManufacturing v. Bharat Coking Coal Ltd. & Anr.[1983] 1 SCR 1000; Kalpana Mehta and Ors. v. Unionof India and Ors. (2018) 7 SCC 1 : [2018] 4 SCR 1;Soosai Etc v. Union of India [1985] Suppl 3 SCR 242;Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877;Basavalingappa v Munichinnappa [1965] 1 SCR 316;Kishori Lal Hans v. Raja Ram Singh 1972 (3) SCC 1 :[1972] 2 SCR 632; Bir Singh v. Delhi Jal Board (2018)10 SCC 312 : [2018] 10 SCR 513; ChampakamDorairajan v. State of Madras AIR 1951 SC 226 :[1951] SCR 525; State of Karnataka v. Union of India[1978] 2 SCR 1; GVK Industries Ltd. v. Income TaxOfficer (2011) 4 SCC 36 : [2011] 3 SCR 366; KuldipNayar v. Union of India (2006) 7 SCC 1 : [2006]

5 Suppl. SCR 1;G. Narayanaswami v. G.Panneerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172;Pushpa Devi v. Milkhi Ram (1990) 2 SCC 134: [1990]1 SCR 278; Karnataka State Financial Corporation.v. N. Narasimahaiah (2008) 5 SCC 176 : [2008] 4SCR 853; Laurel Energetics (P) Ltd. v. SecuritiesExchange Board of India (2017) 8 SCC 541 : [2017]5 SCR 1005; Kihoto Hollohan v. Zachillhu (1992) 2Suppl. SCC 651 : [1992] 1 SCR 686; Marri ChandraShekhar Rao v. Dean, Seth G.S. Medical College (1990)3 SCC 130 : [1990] 2 SCR 843; State of Maharashtra& Anr v. Union of India & Anr. (1994) 5 SCC 244 :[1994] 1 Suppl. SCR 714; 20th Century FinanceCorpn. Ltd. v. State of Maharashtra (2000) 6 SCC 12:[2000] 1 Suppl. SCR 120; Builders’ Association ofIndia v. Union of India (1989) 2 SCC 645 : [1989]2 SCR 320; Commissioner of Income Tax v. WillamsonFinancial Services (2008) 2 SCC 202 : [2007]13 SCR 376; Tata Consultancy Services v. State of A.P.(2005) 1 SCC 308 : [2004] 5 Suppl. SCR 1040;Bimolangshu Roy v. State of Assam (2018) 14 SCC 408: [2017] 13 SCR 301; Ashoka Kumar Thakur v. Unionof India (2008) 6 SCC 1 : [2008] 4 SCR 1; New DelhiMunicipal Council v. State of Punjab (1997) 7 SCC339 : [1996] 10 Suppl. SCR 472; Shivraj SinghChauhan v. Speaker, Madhya Pradesh LegislativeAssembly 2020 SCC Online SC 363 141; DTC MazdoorCongress v. Delhi Transport Corporation [1990] 1Suppl. SCR 142; Balram Kumawat v. Union of India(2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24; AbhiramSingh v. C.D. Commachen (2017) 2 SCC 629 : [2017]1 SCR 158;Punjab Land Development andReclamation Corpn. Ltd. v. Presiding Officer, LabourCourt, (1990) 3 SCC 682 : [1990] 3 SCR 111; P.Kasilingam v PSG College of Technology 1995 Supp(2) SCC 348 : [1995] 2 SCR 1061; Black DiamondBeverages v Commercial Tax Officer 1998 (1) SCC 458: [1997] 4 Suppl. SCR 133; Godrej and BoyceManufacturing Co v State of Maharashtra 2014 (3) SCC

DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER

430 : [2014] 2 SCR 203; K. Lakshminarayanan v.Union of India (2020) 14 SCC 664 : [2018]14 SCR 689; Raghunathrao Ganpatrao v. Union ofIndia 1994 Suppl. (1) SCC 191 : [1993] 1 SCR 480;Jindal Stainless Ltd. v. State of Haryana, 2016 SCCOnLine SC 1260; State of Rajasthan v. Union of India1978 1 SCR 1; Kesavananda Bharti v. State of Kerala[1973] Suppl. SCR 1; Sajjan Singh v. State of Rajasthan[1965] 1 SCR 933; and Maharao Sahib Shri BhimSinghji v. Union of India (1981) 1 SCC 166 : [1985]1 Suppl. SCR 862 – referred to.

Harksen v. Lane 1997 (11) BCLR 1489 (CC); BBCEnterprises v. Hi-Tech Xtravision Ltd., 1990) 2 All ER118; City Council of Pretoria v. Walker 1998 (3) BCLR257 (CC); Fullilove v. Klutznick, 448 U.S. 448 (1980);Adarand Constructors, Inc. v. Penal 515 U.S. 200(1995); Canadian National Railway Co v. Canada(Canadian Human Rights Commission) [1987] 1 SCR1114; Ontario (Human Rights Commission) v Ontario(Ministry of Health) (1994) 21 CHRR (Ont CA) D/259 and R. (Baiai) v. Home Secretary, [2006] EWHC823 (Admin). – referred to.

Rabindranath Tagore’s Gitanjali, Verse 35; AharonBarak, The Judge in Democracy, p.132; MichaelKirby, Indian and Australian Constitutional Law: ARecent Study in Contrasts’, 60 JILI (2018) 1, p. 30 andHerbert Weschler, ‘Towards Neutral Principles ofConstitutional Law’, (1959) 73 Harv. L. Rev. 1 –referred to.

per L. Nageswara Rao, J. [Concurring with Ashok Bhushan,J. on question Nos.1, 2 and 3, and concurring with S. RavindraBhat, J. on question Nos.4, 5 and 6]

1. It is difficult to agree with the submissions made on behalfof the Respondents that the use of words ‘central list’ wouldrestrict the scope and amplitude of the notification to be issuedunder Article 342A(1). There is only one list that can be issuedby the President specifying the socially and educationallybackward classes and only those classes are treated as socially

Aand educationally backward classes for the purposes of theConstitution. Taking cue from the National Commission forBackward Classes Act, 1993, the Respondents argued that thewords ‘Central list’ is with reference only to appointments toCentral services and admission in Central educational institutions.BReading ‘Central list’ in that manner would be curtailing the widthof Article 342A(1). If so read, the sweep of Sub-Clause (1) shallbe minimized. Moreover, to achieve the said meaning, words whichare not in Article 342A(1) have to be read into it. Contextually,the words Central list in Article 342A(2) can be only with referenceto the list contained in the notification which may be issued underCArticle 342A(1). It is well settled law that the provisions of theConstitution have to be harmoniously construed and it is apparentfrom Article 342A(1) and (2) that there is no scope for any list ofsocially and educationally backward classes, other than the listto be notified by the President. As the other expressions ‘for theDpurposes of the Constitution’ and ‘unless the context otherwiserequires’ have been dealt with by Justice Bhat, there is nothingmore to add to the construction placed by him on the saidexpressions. [Para 25][1077-F-G; 1078-A-C]

2. Only those backward classes included in the publicEnotification under Article 342A shall be socially and educationallybackward classes for the purposes of the Constitution. [Para26][1078-E]

Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006]5 Suppl. SCR 1; G. Narayanaswami v. G. Pannerselvam(1972) 3 SCC 717 : [1973] 1 SCR 172; South AsiaFIndustries Private Ltd v. S. Sarup Singh and others[1965] 3 SCR 829; Institute of Chartered Accountantsof India v. Price Waterhouse (1997) 6 SCC 312 : [1997]2 Suppl. SCR 267; J.P. Bansal v. State of Rajasthan(2003) 5 SCC 134 : [2003] 2 SCR 933; Kanai Lal SurGv. Paramnidhi Sadhukhan, [1958] 1SCR 360; State(NCT of Delhi) v. Union of India (2018) 8 SCC 501 :[2018] 7 SCR 1; R.S. Nayak v. A.R. Antulay (1984) 2SCC 183 : [1984] 2 SCR 495; Grasim Industries Ltd.v. Collector of Customs, Bombay (2002) 4 SCC 297 :[2002] 2 SCR 945; Workmen of Dimakuchi Tea Estate

v Managenment of Dimakuchi Tea Estate, [1958] SCR1156; M/s New India Sugar Mills Ltd v. Commissionerof Sales Tax, Bihar [1963] 2 SCR Suppl. 459; C. I. T v.N. C. Budharaja and Co.(1994)1 SCC Suppl. 280:[1993] 2 Suppl. SCR 185; Kalpana Mehta and Ors. v.Union of India and Ors. (2018) 7 SCC 1 : [2018]4 SCR 1; Punjab Land Development and ReclamationCorporation Ltd. v. Presiding Officer, Labour Court(1990) 3 SCC 682 : [1990] 3 SCR 111; P. Kasilingamv. P.S.G. College of Technology, (1995) 2 Suppl. SCC 348; Indra Sarma v. V. K. V. Sarma (2013) 15 SCC 755: [2013] 14 SCR 1019; Sudha Rani Garg v. JagdishKumar (2004) 8 SCC 329; Nyadar Singh v. Union ofIndia (1988) 4 SCC 170 : [1988] 2 Suppl. SCR 546and Union of India v. Sankalchand Himmat Lal Seth[1977) 4 SCC 193 : [ 1978] 1 SCR 423 – referred to.McCulloch v. Maryland, 17 U.S. 316 (1819); AdamsExpress Company v. Commonwealth of Kentucky 238US 190 (1915); United States v. Goldenberg 168 US 95(1897); Jones v D.P.P. [1962] AC. 635; R. v. Oakes[1959] 2 Q.B. 350; Aron Soloman v. Soloman & Co.1897 AC 22; Pepper (Inspector of Taxes) v Hart 1993AC 593; R v. DPP ex-parte Duckenfield [1999] 2 AllER 873; Black-Clawson International Ltd. 1975 AC591; Assam Railways and Trading Co Ltd v. InlandRevenue, 1935 AC 445; Letang v. Cooper [1965] 1 QB232; Gough v. Gough, (1891) 2 QB 665; Collinsv. Texas, 223 U.S. 288; East End Dwellings Co. Ltd v.Finsbury Borough Council [1952] AC 109 and Townev. Eisner 245 U.S. 425 (1918) – referred to.Purposive Interpretation in Law by Aharon Barak;Benjamin Cardozo, the Nature of Judicial Process,(New Haven: Yale University Press, 13th Edn., 1946),141; Craies on Legislation, 9[th] Edition and Bennionon Statutory Interpretation, 5[th] Edition – referred to.

Case Law Reference

DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER& ANR

Para 199APara 201Para 211Para 216Para 217BPara 218Para 239Para 265Para 269Para 273CPara 274Para 311Para 345Para 350Para 351DPara 352Para 356Para 359Para 392EPara 393Para 394Para 395Para 402Para 407F

Para 7

Para 10Para 10GPara 13Para 13Para 13Para 13Para 13

[2021] 15 S.C.R.

DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER& ANR

Para 6Para 6FPara 6Para 6Para 6Para 9Para 10GPara 10Para 11Para 12Para 12Para 15H

From the Judgment and Order dated 27.06.2019 of the High Courtof Judicature at Bombay in PIL No. 175 of 2018.

CWith

Civil Appeal Nos. 3124, 3133, 3134, 3131, 3129 Of 2020, WritPetition (C) Nos. 915, 504, 914 of 2020, Civil Appeal Nos. 3127, 3126,3125, 3128, 3130 of 2020, Writ Petition (C) No. 938 of 2020.

K. K. Venugopal, S.C. Verma, Sathish Chanda Verma, Vivek Kolhi,DAmit Kumar, AGs., Ravindra Lokhande, Nalin Kohli, Abhinav Mukerji,Arunabh Choudhary, Krishnaraj Thakker, AAGs., Vinay Arora, DAG.,Tushar Mehta, SG., N. Venketaraman, ASG., Sathish Chanda Verma,Rajiv Ranjan, Prabhuling Navadgi, Advs. Gen., Baldev Raj Mahajan, Sr.Adv.(AG)., K.N. MohamBalgopal, Sr. Adv.(A.G.)., Vijay Narayan, Sr.Adv. (AG)., Arvind P. Datar, Pradeep Sancheti, Gopal Sankaranarayanan,EShyam Divan, Sidharth Bhatnagar, Dr. Rajiv Dhawan, B.H. Marlapalle,Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, V.A. Thorat, KapilSibal, C.U. Singh, A.M. Singhvi, Rafique A. Dada, Ms. MahalakshmiPavani, Ranjit Kumar, Ms. Somya Chakraborti, Ms. Malvika Trivedi, S.Niranjan Reddy, Jaideep Gupta, Dr. Manish Singhvi, Jayanth Muth Raj,FSr. Advs., Ms. Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, Ms. JanviDubey, Vishal Sinha, Amit Anand Tiwari, Vivek Singh, Rahul Arya, S.Mahesh Sahasranaman, Pratap Shankar, Ms. Mary Mitzy, K.K. Singh,Sagar Saxena, Ms. Devyani Gupta, Premlal Krishnan, Utsav Trivedi,Anurag Mankar, Vinayak Bhandari, Ashish Choudhary, Aditya Sidhra,GNadeem Afroz, Ms. Bharti Tyagi, Rameshwar F. Totla, Ashutosh Dubey,Ms. Rajshri Dudey, Arun Nagar, Rahul Totla, Abhishek Chauhan, Ms.Ravleen Chhabra, V.S. Rawat, Samrudhi Bendbhar, Amit Kumar,Siddhartha Chowdhury, Dr. Gunratan Sadavarte, Pankaj Kumar Singh,Makrand Pratap Singh, Pawan Kumar Shukla, Kamal Kumar Pandey,Raj Singh Rana, S.B. Talekar, Vipin Nair, P.B. Suresh, KarthikHJayashankar, Sughosh Subramanyam, Ms. Pradyna Talekar, Ms. MadhaviAyyappan, Anshumaan Bahadur, R.K. Deshpande, Hrishikesh S. Chitaley,Ashwin Deshpande, Vijay Kari Singh, Samir Malik, Govind Jee, KrishnaKumar Singh, Sanjay V. Kharde, Satyajeet S. Kharde, Kailas BajiraoAutade, Ms. Sheetal Patil, Prashant Shantaram Chaudhari, Amol B.Karande, Dilip B. Rode, Sandesh R. Patil, Mahesh B. Karande, PritamC. Rajput, Dilip Annasaheb Taur, Rajesh Tekale, Ashish Gaikwad,Ramesh Dube Patil, Rishi Kumar Singh Gautam, Sanjay Kharde, VishalKadam, Satyajeet Kharde, Samrat Shinde, Ms. Shraddha Deshmukh,Ms. Chinmayee Chandra, Rajat Nair, Kanu Agrawal, NavanjayMahapatra, Amrish Kumar, Sachin Patil, Rahul Chitnis, Akshay Shinde,Vaibhav Sugdare, Ms. Misha Rohatgi Mohta, Ms. Harshika Verma, Ms.S. Lakshmi Iyer, Aaditya A. Pande, Geo Joseph, Sudhanshu S. Choudhari,Mahesh P. Shinde, Anil Golegaonkar, Rajesh Tekale, Ashish Gaikwad,Madhur Golegaonkar, Ms. Rucha Pande, Ms. Bhavana Khichi, BhagwanGavali, Ms. Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, AbdulrahimanTamboli, Rahul Joshi, Tapesh Kumar Singh, Aditya Pratap Singh, Ms.Bhaswati Singh, Nishant Sharma, Ms. Adviteeya, Rakesh K. Sharma,Prashant Shrikant Kenjale, Sandeep Sudhakar Deshmukh, NishantRamakantrao Katneshwarkar, Shriram P. Pingle, Ms. Rashmi D.Dhongde, Abhijit Patil, Sandeep Dere, Ms. Pooja Thorat, Nilesh Lonkar,Ms. Manisha Jain, Rajesh Inamdar, Ms. Namisha Jain, Shivaji M. Jadhav,Brij Kishor Sah, Anish R. Shah, Ms. Qurratulain, Aditya S. Jadhav,Nicholas Choudhury, Ms. Joyshree Barman, Rajat Joseph, Ravi Bharuka,Ajit Pravin Wagh, Ms. Astha Prasad, Ms. Prabhleen Kaur, Ms. IshitaFarsaiya, Apoorv Shukla, Dhairyashil Salunkhe, Ms. Buva MrunalDattatraya, Manu T. Ramachandran, Suhas Kumar Kadam, Ms. ManjuJetley, Samrat Krishnarao Shinde, Amol Nirmalkumar Suryawanshi,Mareesh Pravir Sahay, Pranav P. Patil, Krishna Kumar, Dr. Vipin Gupta,V.K. Biju, Neeleshwar Pawani, Amlendu Kumar Akhilesh Kumar Jha,Abhay Pratap Singh, Shaji George, Ms. Vijay Laxmi, Ms. Rubina Jawed,Shreyas Gacche, Anerao Pandit, T.R.B. Sivakumar, Yadav NarenderSingh, Rajsaheb Patil, Ravi Prakash Jadhav, Ms. Akshata Jadav, Ms.Swati Vaibhav, Prashant Shrikant Kenjale, Farrukh Rasheed, A. Karthik,Ms. Smrithi Suresh, Arsh Khan, Ms. Sreepriya K., Ravindra KeshavraoAdsure, Jaiprakash Babasaheb Chavan, Sideshwar Namdev Biradar,Yash Prashant Sonawane, Yogesh Ramesh Joshi, Ashok Arora, RajeevKumar Bansal, Girish Patel, Abhishek Sharma, Dinesh P. Rajbhar, Ms.Anzu K. Varkey, Akash Avinash Kakade, Somanatha Padhan, SwetabKumar, Ms. Sukhada Omprakash Kakade, Dr. Rajesh Pandey, Sumeer

ASodhi, Ms. Prachi Misra, Chaitanya, Kartik Pant, Ms. Aswathi M.K.,Ms. Jaikriti S. Jadeja, S. Hari Haran, Amit A. Pai, Ms. PankhuriBharadwaj, Ms. Bhavana Duhoon, Ms. Ranu Purohit, Shakul R. Ghatole,Dr. A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,Sharwan Kumar Goyal, Jai Gopal Saboo, Sadashiv, Shankar Chillarge,Kaleeswaram Raj, Mohammed Sadique T.A., Ms. Thulasi K. Raj, Ms.BMaitreyi S. Hegde, Ms. Uttara P.V., Ms. Sheryl Sebastian, Ms. SnehaRavi Iyer, Amol B. Karande, Vikrant Yadav, Mahesh B. Karande,Sandesh R. Patil, Ankit Yadav, Mahfooz A. Nazki, Polanki Gowtham,Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, ShreySharma, Abhimanyu Tewari, Ms. Eliza Bar, Ms. Diksha Rai, ShuvodeepCRoy, Ms. Palak Mahajan, Shuvodeep Roy,Rahul Raj Mishra, Manish Kumar, Harpreet Singh, Sahil Raveen, SahilChandra, S.C. Verma, Ms. Prachi Mishra, Sumeer Sodhi, Hussain Ali,Chaitanya, Kartik Pant, Chirag M. Shroff, Ms. Abhilasha Bharti, SushantDogra, Kanu Agarwal, Aniruddha P. Mayee, Mrs. Bihu Sharma, Ms.Pratishtha Vij, Arun Bhardwaj, Dilbag Singh, Dr. Monika Gusain, VishwaDPal Singh, Ms. Pragya Baghel, Vishnu Sharma, Kumar Anurag Singh,Parthiv Goswami, Abhishek Roy, Ms. Aastha Shreshtha, Ms. TulikaMukherjee, Ms. Taruna Ardhendumauli Prasad, Aman Bhatnagar, ParthAwasthi, Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash, Ms.Anandita Mitra, Supratik Sarkar, G. Prakash, Shubhranshu Padhi, AshishYadav, Rakshit Jain, Vishal Banshal, Pukhrambam Ramesh Kumar, Ms.EAnupama Ngangom, Karun Sharma, Siddhesh Kotwal, Ms. BansuriSwaraj, Divyansh Tiwari, Ms. Ana Upadhyay, Ms. Manya Hasija,Nirnimesh Dube, Mrs. K. Enatoli Sema, Amit Kumar Singh, NityaNambair, Vitso Rio, Karan Bharihoke, Ms. Neha Sahai Bharihoke,Siddhant Sharma, D.K. Devesh, Sameer Abhyankar, Nalin Talwar, AmishTandon, Ayush Beotra, Varun Tandon, Dipin Tamang, Uddhav Khanna,FMs. Shafali Jain, M. Yogesh Kanna, Raja Rajeshwaran S., Ms. LakshmiIyer, Aditya Chadha, Ms. Uma Prasuna Bachu, P. Venkat Reddy, PrashantTyagi, P. Srinivas Reddy, M/s Venkat Palwai Law Associates, ShuvodeepRoy, Rahul Raj Mishra, Apoorv Singhal, Aashish Prasad, Suhaan Mukerji,Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda, Sayandeep PahariGfor M/s PLR Chambers & Co., Avijit Mani Tripathi, Shaurya Sahay,Aditya Shankar Pandey, Pradeep Misra, Suraj Singh, Amit Tiwari, AmitYadav, Amit Sharma, Ms. Ruchira Gupta, Shishir Deshpande, AnuragSharma, Ms. Mona Sinha, Abhishek Kumar Srivastava, K.V.Jagdishvaran, Mrs. G. Indira, V.G. Pragasam, S. PrabhuRamasubramanian, Advs. for the appearing parties.H

The Judgments of the Court were delivered by

ASHOK BHUSHAN, J. (for himself and S. Abdul Nazeer,J.), L. Nageswara Rao, J. Hemant Gupta, J. and S. Ravindra Bhathave also concurred on Question Nos. 1, 2 and 3.

1. This Constitution Bench has been constituted to considerquestions of seminal importance relating to contours and extent of specialprovisions for the advancement of socially and educationally backwardclass (SEBC) of citizens as contemplated under Article 15(4) andcontours and extent of provisions of reservation in favour of the backwardclass citizens under Article 16(4) of the Constitution of India. Thechallenge/interpretation of the Constitution (102[nd] Amendment) Act, 2018is also up for consideration.

2. All the above appeals have been filed challenging the commonjudgment of the High Court dated 27.06.2019 by which judgment severalbatches of writ petitions have been decided by the High Court. Differentwrit petitions were filed before the High Court between the years 2014to 2019, apart from other challenges following were under challenge:

The Ordinance No. XIII of 2014 dated 09.07.2014 providing16% reservation to Maratha. The Ordinance No.XIV of 2014dated 09.07.2014 providing for 5% reservation to 52 MuslimCommunities. The Maharashtra State Reservation (of seats forappointment in educational institutions in the State and forappointment or posts for public services under the State) foreducationally and socially backward category (ESBC) Act, 2014and Maharashtra State Socially and Educationally Backward Class(SEBC) (Admission in Educational Institutions in the State andfor posts for appointments in public service and posts) ReservationAct, 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 Section4(1)(a), 4(1)(b) over and above 12% and 13% respectively asrecommended by Maharashtra State Backward Class Commission. Thewrit petitions challenging the Ordinance XIII and XIV of 2014 as wellas Act, 2014 were dismissed as having become infructuous. Few writpetitions were also allowed and few detagged and other writ petitionshave been disposed of.

A4. Writ petition under Article 32 of the Constitution of India, namely,Writ Petition(C) No. 938 of 2020 (Shiv Sangram & Anr. vs. Union ofIndia & Anr.) has been filed questioning the Constitution (102[nd]Amendment) Act, 2018.

5. While issuing notice on 12.07.2019, three-Judge Bench ofBthis Court directed that the action taken pursuant to the impugned judgmentof the High Court shall be subject to the result of the SLP. It was madeclear that the judgment of the High Court and the reservation in questionshall not have any retrospective effect. The three-Judge Bench afterhearing the parties, on 09.09.2020, while granting leave passed followingorder:C

“17. In view of the foregoing, we pass the following orders: -

(A) As the interpretation of the provisions inserted by theConstitution (102nd Amendment) Act, 2018 is substantialquestion of law as to the interpretation of the Constitution ofDIndia, these Appeals are referred to larger Bench. Thesematters shall be placed before Hon’ble The Chief Justice ofIndia for suitable orders.

(B) Admissions to educational institutions for the academicyear 2020-21 shall be made without reference to theEreservations provided in the Act. We make it clear that theAdmissions made to Post-Graduate Medical Courses shall notbe altered.

(C) Appointments to public services and posts under theGovernment shall be made without implementing theFreservation as provided in the Act.

Liberty to mention for early hearing. “

6. Three-Judge Bench referring the matter to Constitution Benchhas referred all the appeals and the order contemplated that the mattershall be placed before the Chief Justice for the suitable orders. ReferringGorder although mention that the interpretation of Constitution (OneHundred and Second Amendment) Act, 2018 is substantial question oflaw as to the interpretation of the Constitution but the reference was notconfined to the above question. The learned counsel for the parties havemade elaborate submissions in all the appeals as well as the writ petitionsfiled under Article 32. Elaborate submissions were addressed on theH

impugned judgment of the High Court. We thus have proceeded to hearthe parties and decide all the appeals and writ petitions finally.

7. After appeals being referred to larger Bench by order dated09.09.2020, Hon’ble the Chief Justice of India has constituted thisConstitution Bench before whom these appeals and writ petitions arelisted. This Constitution Bench after hearing learned counsel for theparties 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 theirsubmissions.

8. The hearing commenced on 15.03.2021 and concluded on26.03.2021. At this stage, we may indicate the headings in which wehave divided to comprehensively understand the issues, submissions, ourconsideration, our conclusion and operative part of the judgment. Thefollowing are the heads of subjects under which we have treated theentire batch of cases:

(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 Sawhneyjudgment to larger Bench.

(6)The status of Reservation at the time of Enactment ofAct, 2018.

(7)Consideration of 10 grounds urged for revisiting andreferring the judgment of Indra Sawhney to largerBench.

(8)Principle of Stare Decisis.

(9)Whether Gaikwad Commission Report has made out acase of extra-ordinary situation for grant of separatereservation to Maratha community exceeding 50%limit?

(10) Whether the Act, 2018 as amended in 2019 grantingseparate reservation for Maratha community byexceeding the ceiling limit of 50% makes out exceptionalcircumstances as per the judgment of Indra Sawhney?

A(11)Gaikwad Commission Report – scrutiny.

(12) Whether the data of Marathas in public employment asfound out by Gaikwad Commission makes out cases forgrant of reservation under Article 16(4) of theConstitution of India to Maratha community ?

(13) Social and Educational Backwardness of MarathaCommunity.

(14) The Constitution (102[nd] Amendment) Act, 2018.

(15) Conclusions.

C(16) Order.

9. On 08.03.2021 the six questions which were proposed to beconsidered were enumerated in the following manner:

(1)Questions Framed.

“1. Whether judgment in case of Indra Sawhney v. Union ofIndia [1992 Suppl. (3) SCC 217] needs to be referred to largerbench or require re-look by the larger bench in the light ofsubsequent Constitutional Amendments, judgments andchanged social dynamics of the society etc.?

2. Whether Maharashtra State Reservation (of seats foradmission in educational institutions in the State and forappointments 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% reservationfor Maratha community in addition to 50% social reservationis covered by exceptional circumstances as contemplated byConstitution Bench in Indra Sawhney’s case?

3. Whether the State Government on the strength ofMaharashtra State Backward Commission Report chaired byM.C. Gaikwad has made 12 out case of existence ofextraordinary situation and exceptional circumstances in theState to fall within the exception carved out in the judgment ofIndra Sawhney?

4. Whether the Constitution One Hundred and SecondAmendment deprives the State Legislature of its power to enact

legislation determining the socially and economically backwardclasses and conferring the benefits on the said communityunder its enabling power?

5. Whether, States power to legislate in relation to “anybackward class” under Articles 15(4) and 16(4) is anywayabridged by Article 342(A) read with Article 366(26c) of theConstitution of India?

6. Whether, Article 342A of the Constitution abrogates Statespower to legislate or classify in respect of “any backward classof citizens” and thereby affects the federal policy / structureof the Constitution of India?”

(2)Background Facts.

10. We need to first notice certain background facts relevant forthe present case and details of various writ petitions filed in the HighCourt. The “Maratha” is Hindu community which mainly resides inthe State of Maharashtra. After the enforcement of the Constitution ofIndia, the President of India in exercise of power under Article 240appointed Commission to investigate the conditions of all such sociallyand educationally backward classes, known as Kaka KalelkarCommission, the first National Commission for backward classes. TheKaka Kalelkar Commission submitted its report on 30.03.1955 where itobserved - Vol.I “In Maharashtra, besides the Brahman it is the Marathawho claimed to be the ruling community in the villages, and the Prabhu,that dominated all other communities”. Thus, the first Backward ClassesCommission did not find Maratha as other backward class community inthe State of Bombay.

11. On 01.11.1956, bilingual State of Bombay under the StateRe-organisation Act was formed with the addition of 8 districts ofVidharbha (Madhya Bharat) and 5 districts of Marathwada (HyderabadState). On 14.08.1961 through Ministry of Home Affairs while decliningto act on the Kaka Kalelkar Commission Report informed all the StateGovernments that they had discretion to choose their own criteria indefining backward classes and it would be open for State Governmentsto draw its own list of other backward classes. On 14.11.1961 acting onthe directives of the Government of India, the Government ofMaharashtra appointed B.D.Deshmukh Committee for defining OBCand to take steps for their developments. The B.D. Deshmukh Committee

Asubmitted its report on OBC to the Government of Maharashtra on11.01.1964. It did not find Maratha as backward class. On 13.08.1967,the State of Maharashtra issued unified list of OBC consisting of 180castes 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 thesecond National Backward Classes Commission within the meaning ofBArticle 340 of the Constitution popularly known as Mandal Commission.In the report of second National Backward Classes Commission withregard to the State of Maharashtra while distributing percentage of Indianpopulation by castes and religious groups, estimated other backwardclasses as 43.70 per cent, whereas in the category of forward HinduCcastes and communities the Marathas were included with 2.2 per cent.The population of other backward classes of remaining Hindu Castesgroups was estimated as 43.7% and backward non-Hindu classes as8.40 per cent and total approximate backward class of Hindu includingnon-Hindu castes was estimated as 52%. At page 56 of volume of reportunder heading percentage of the castes and religious groups under sub-Dheading forward Hindu castes and communities following table given:

III. Forward Hindu Castes & Communities

12. The Maratha, thus, was included in forward Hindu caste, byGthe second National Backward Classes Commission.

13. request was received by the National Commission forBackward Classes for inclusion of “Maratha” in the Central List ofBackward Classes for Maharashtra along with Kunbi as backward classof Maharashtra. The National Commission for Backward ClassesHconducted public hearing at Mumbai and after hearing Government

officials, Chairman of the Maharashtra State Backward ClassesCommission submitted detailed report dated 25.02.1980 holding thatMaratha is not socially and educationally backward class communitybut socially advanced and prestigious community. It is useful to referto paragraph 22 of the report (last paragraph) which is to the followingeffect:

“22. In view of the above facts and position, the Bench finds thatMaratha is not socially backward community but is sociallyadvanced and prestigious community and therefore the Requestfor Inclusion of “Maratha” in the Central List of Backward Classesfor Maharashtra along with Kunbi should be rejected. In fact,“Maratha” does not merit inclusion in the Central List of BackwardClasses for Maharashtra either jointly with “Kunbi” or under aseparate entry of its own.”

14. On 16.11.1992 nine-Judge Constitution Bench of this Courtdelivered 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 underConstitution this Court also issued directions to the Government of India,each of the State Governments to constitute permanent body forentertaining, examining and recommending upon on requests for inclusionand complaints of over inclusion of other backward classes of citizens.

15. The Maharashtra State OBC Commission headed by JusticeR.M. Bapat submitted report on 25.07.2008 conclusively recordingthat Maratha could not be included in the OBC list because it is forwardcaste. The report in the end concluded:

“It was agreed with majority that the resolution, stating that itwould not be appropriate from social justice perspective to includeMaratha community in the ‘Other Backward Class’ category, hasbeen passed with majority in the commission’s meeting convenedin Pune on 25/07/2008. And it was agreed with majority that sucha recommendation should be sent to the government. The oppositeopinion in relation to this has been separately recorded and it hasbeen attached herewith.”

16. The Maharashtra State Other Backward Classes Commissionon 03.06.2013 rejected the request of the State Government to reviewthe findings recorded by the State OBC Commission in its report dated

A25.07.2008 holding the Maratha caste as forward community. Despitethe existence of statutory State OBC Commission, the Government ofMaharashtra appointed special Committee headed by sitting Minister,Shri Narayan Rane to submit report on the Maratha Caste. On26.02.2014 Rane Committee submitted its report to the State andrecommended that for the Maratha special reservation under ArticleB15(4) and 16(4) of the Constitution of India be provided. On 09.07.2014Maharashtra Ordinance No.XIII of 2014 was promulgated providingfor 16% reservation in favour of the Maratha caste. Writ Petition No.2053of 2014 (Shri Sanjeet Shukla vs. State of Maharashtra) along with otherwrit petitions were filed where two separate Ordinances promulgatedCon 09.07.2014 providing for reservation for seats for admissions in aidedand non-aided institutions of the State and appointment to the post topublic service under the State separate 16% reservation in whichMaratha was included, was challenged. The Government resolution dated15.07.2014 specifying the Maratha community as the community sociallyand economically backward entitled for 16% reservation was challenged.D17. The Division Bench of the High Court by an elaborate orderconsidering the relevant materials including the reports of NationalBackward Classes Commission and State Backward ClassesCommission and other materials on record stayed the operation ofMaharashtra Ordinance No.XIII of 2014 and Resolution datedE15.07.2014. However, it was directed that in case any admission hasalready been granted in educational institution till that date based onOrdinance No.XIII of 2014 the same shall not be disturbed and theStudents shall allow to complete their respective courses.

18. The SLP(C)Nos.34335 and 34336 were filed in this CourtFchallenging interim order dated 14.11.2014 which SLPs were notentertained by this Court with request to decide the writ petitions at anearly date.

19. The Maharashtra Legislature passed the Act, 2014 on23.12.2014 which received the assent of the Governor on 09.01.2015,Gand 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 theDivision Bench of the Bombay High Court passed an order on 07.04.2015staying the implementation of the provisions of the Act 1 of 2015 providing16% reservation to Maratha. The interim order, however, directed thatappointment to 16% reservation for Maratha under Act 1 of 2015 in theH

advertisements already issued shall be made from open merit candidatestill final disposal of the writ petition and appointment shall be made subjectto the outcome of the writ petition.

20. On 30.06.2017 the State Government made reference toState Backward Classes Commission to submit report on the factsand the observation made in the reference to the Government regardingMaratha. On 02.11.2017 Justice M.G. Gaikwad came to be appointed asChairman of State Backward Classes Commission. On 14.08.2018 theNational Commission for Backward Classes (Repeal) Act was passedrepealing the National Commission for Backward Classes Act, 1993.On 15.08.2018 the Constitution (102[nd] Amendment) Act, 2018 wasbrought into force adding Article 338B, 342A and 366(26C). Article 338,sub-clause (10) was also amended. On 15.11.2018, the State BackwardClasses Commission submitted its report on social and educational andeconomic status of Maratha. The Commission recommended for declaringMaratha caste of citizens as social and economic backward class ofcitizens with inadequate representation in services. The Commission alsoopined that looking to the exceptional circumstances and extraordinarysituations on declaring Maratha class as SEBC and their consequentialentitlement to the reservation benefits, the Government may take decisionwithin the constitutional provisions. The Government after receipt of theabove report enacted Act, 2018 which was published on 30.11.2018 andcame into force from that day. PIL No.175 of 2018 (Dr. JaishriLaxmanrao Patil Vs. The Chief Minister and Ors.) and other writpetitions and PILs were filed challenging the Act, 2018. The High Courtin the impugned judgment has noticed the pleadings in three writ petitionsbeing 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 of2020 and C.A.No.3124 of 2020 most of the volumes and writtensubmissions have been filed. It shall be sufficient to notice these threeCivil Appeals, apart from the details of few other cases which shall benoted hereinafter.

C.A.No. 3123 of 2020 (Dr. Jaishri Laxmanrao Patil Vs. TheChief Minister and Ors.)

21. This appeal has been filed against the judgment of the HighCourt in PIL NO.175 of 2018 filed by Dr. Jaishri Laxmanrao Patil

Aquestioning the 16% separate reservation given to Maratha under Act,2018 published on 30.11.2018. The writ petitioner pleaded that providingreservation to Maratha community to the extent of 16% amounts tobreach of Article 14, 16 and 21 of the Constitution of India and alsobypassing ceiling of reservation of 50%. Referring to judgment of thisCourt in Indra Sawhney’s case and law laid down in Mr. Nagraj andBothers vs. Union of India & Ors. (2006) 8 SCC 212, it was pleadedthat the reservation is not permissible beyond 50%. Various grounds hadbeen taken in the writ petition questioning the 16% reservation forMaratha. During the pendency of the writ petition subsequent eventsoccurred resulting into enlarging the scope of the petition, in the writCpetition several applications for intervention and impleadment have beenfiled seeking to justify the Act, 2018. The High Court allowed theapplications for intervention and they were directed to be added as partyrespondents.

C.A.No. 3124 of 2020 (Sanjeet Shukla vs. The State ofDMaharashtra)

22. This appeal arises out of the judgment in Writ Petition (C)No.4100 of 2018. In the writ petition an extensive challenge was madeto the Backward Classes Commission report which was basis for Act,2018. The same writ petitioner i.e. Sanjeet Shukla has earlier filed WritEPetition (C) No.3151 of 2014 challenging the Ordinance promulgated bythe Government of Maharashtra in the year 2014. The interim orderdated 14.11.2014 was passed in the Writ Petition No.3151 of 2014. Thepetitioner has also pleaded that the Act, 2014 was also stayed by theHigh court on 07.04.2015. It was pleaded that Maratha community is apowerful community in the State of Maharashtra with proved dominanceFin Government Service, Co-operatives, Sugar Co-operatives etc.reference of earlier National Backward Class Commission and StateBackward Class Commission was made wherein the claim of Marathato be included in OBC was rejected. The comments have also beenmade on the aggressive tactics adopted by the Maratha community byGagitation, dharna for the grant of reservation to them. It was also pleadedthat Act, 2018 is passed without complying with the requirement ofConstitution (102[nd] Amendment) Act, 2018. In the writ petition followingprayers have been made:

“(a) Issue writ, order or direction in the nature of certiorari orany other appropriate writ, order or direction of that nature therebyH

quashing and striking down Maharashtra State Socially andEducationally Backward (SEBC) Class (Admission in EducationalInstitutions in the State and for posts for appointments in publicservice and posts) Reservation Act, 2018, as being invalid andviolative of the provisions of the Constitution of India;

(b) During pendency of the petition, this Hon’ble Court be pleasedto say to the operation, implementation and effect of theMaharashtra State Socially and Educationally Backward (SEBC)Class (Admission in Educational Institutions in the State and forposts for appointments in public service and posts) ReservationAct, 2018;

b1. during pendency of the present petition, this Hon’ble Court bepleased to issue an appropriate writ, order or direction that noappointments should be made under Maharashtra State Sociallyand Educationally Backward (SEBC) Class (Admission inEducational Institutions in the State and for posts for appointmentsin public service and posts) Reservation Act, 2018;

b2. during pendency of the present petition, this Hon’ble Court bepleased to issue an appropriate writ, order or direction of thatnature that no posts should be kept vacant by reference to theMaharashtra State Socially and Educationally Backward (SEBC)Class (Admission in Educational Institutions in the State and forposts for appointments in public service and posts) ReservationAct, 2018;

b3. during pendency of the present petition, this Hon’ble Court bepleased to issue an appropriate writ, order or direction of thatnature that no advertisements for vacancies should be placedreserving any posts under Maharashtra State Socially andEducationally Backward (SEBC) Class (Admission in EducationalInstitutions in the State and for posts for appointments in publicservice and posts) Reservation Act, 2018;

b4. during pendency of the present petition, this Hon’ble Court bepleased to issue an appropriate writ, order or direction of thatnature that no admission in educational institutions should be madeunder reserved category as per Maharashtra State Socially andEducationally Backward (SEBC) Class (Admission in Educational

AInstitutions in the State and for posts for appointments in publicservice and posts) Reservation Act, 2018;

b5. during pendency Court be pleased to issue an appropriatewrit, order or direction of that nature that no Caste Certificatesshould be issued under Maharashtra State Socially andBEducationally Backward (SEBC) Class (Admission in EducationalInstitutions in the State and for posts for appointments in publicservice and posts) Reservation Act, 2018;”

C.A.No.3125 of 2020 (Dr. Uday Govindraj Dhople & Anr.vs. State of Maharashtra & Anr.)

C23. This appeal arises out of Writ Petition (LD.)No.4128 of 2018filed by Dr. Udai Govindraj Dhople. The writ petition was filed inrepresentative capacity on behalf of the similarly situated medicalstudents/medical aspirants who are adversely affected by the Act, 2018.

24. The writ petitioners seek quashing of Act, 2018 and in thealternative quashing and setting aside Sections 2(j), 3(2), 3(4), 4,5,9(2),10Dand 12 of the Act, 2018. The petitioner pleads that reservation systemhas become tool of convenience for the Government and politicians inpower for their vote bank. It is further pleaded that Maratha was nevertreated as backward class community and earlier their claim was rejected.It was further pleaded that the impugned enactment seriously prejudicesEthe chances of open candidates in all fields of education as well as inservice. It was further pleaded that Gaikwad Commission’s report is notbased on fiscal data. There was inadequacy of data base. communitywhich was found not to be backward for last 50 years is now declaredas backward class without any change of circumstances. The writpetitioner, pleads that enactment shall have an adverse effect whichFshall divide the society by caste basis on communal line. The impugnedenactment is claimed to be violative of the basic structure and fundamentalvalue of the Constitution capitulated in Article 14, 16 and 19 of theConstitution.

C.A.Nos. 3133, 3134 and 3131 of 2020G25. These appeals have been filed by the appellants who werenot parties in the PIL No.175 of 2018, against the High Court judgmentpraying for permission to file SLP which has already been granted.

26. C.A.No. 3129 arising out of PIL(ST)No.1949 of 2019whereby 16% reservation to Maratha under Act, 2018 has beenHchallenged.

27. Writ Petition (C)No. 915 of 2020 has been filed underArticle 32 of the Constitution of India praying for directing the respondentsthat all the admission to Post Graduate Medical & Dental Courses in theState of Maharashtra for the academic year 2020-21 shall be madesubject to the outcome of the SLP(C)No.15735 of 2019 and connectedpetitions.

28. Writ Petition (C) No. 504 of 2020 filed under Article 32has been filed seeking mandamus direction to the respondents thatprovisions of Act, 2018 should not be made applicable to the admissionto Post Graduate Medical & Dental Courses in the State of Maharashtrafor the academic year 2020-21.

29. Writ Petition (C) No. 914 of 2020 filed under Article 32prays for writ in the nature of certiorari or any other writ or order ordirection to hold the impugned Socially and Educationally BackwardClasses (SEBC) Act, 2018 as unconstitutional and violative of Article14, 16 & 19 of the Constitution of India and further Act, 2018 should notbe made available to the medical admission process for Post-graduatestudents 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.4128of 2018. The prayer of which writ petition has already been noticed byC.A.No.3125 of 2020.

31. C.A.No. 3126 of 2020 has been filed against the impugnedjudgment of the High Court in Writ Petition (C)No.3846 of 2019(Mohammad Sayeed Noori Shafi Ahmed & Ors. vs. The State ofMaharashtra & Ors.). Writ Petitioners were challenging the Act, 2018as well as the Maharashtra State Backward Class Commission Reporton the Social, Educational, Economic Status of the Marathas and AlliedAspects, 2018. The question was also raised about inaction on the partof the State of Maharashtra in not acting upon the report of MaharashtraState Minority Commission (2011) recommending special reservation tocertain Muslim communities and failure to introduce Bill on the floor ofthe State Legislature providing for 5% reservation to 52 Muslimcommunities 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.

A33. Writ Petition (C) No. 938 of 2018 has been filed underArticle 32 of the Constitution of India challenging the validity ofConstitution (102[nd] Amendment) Act, 2018. Writ Petition notices thatissue regarding Constitution (102[nd] Amendment) Act, 2018 is pending inSLP(C)No.15737 of 2019(C.A.No.3123 of 2020). The writ petitioneralso claimed to have filed an I.A.No.66438 of 2020 for impleadment inBSLP(C) No. 15737 of 2019. The petitioner’s submission is that if theeffect of Constitution (102[nd] Amendment) Act, 2019 is to take awaypower of State Legislature with respect to identification of OBC/SEBC,it is obvious that Constitution (102[nd] Amendment) Act, 2018 has takenaway the legislative powers of State Legislature with respect to someCareas of law making power. The petitioner, further, submits that theprocedure prescribed by the proviso to clause (2) of Article 368 of theConstitution of India has not been followed since no ratification by thelegislatures of not less than one-half of the States by Resolution wasobtained. In the writ petition following prayers have been made:D“a) This Hon’ble Court be pleased to hold and declare that the102[nd] Amendment of the Constitution of India published in theGazette of India dated 11.08.2018 is unconstitutional being inviolation of proviso to clause (2) of Article 368 and also beingviolative of the right guaranteed under Article 14 and 21 of theConstitution of India.Eb) This Hon’ble Court please to issue writ of mandamus or awrit in the nature of mandamus or any other writ, order or directiondirecting that the 102[nd] Amendment of the Constitution of Indiashall not be enforced hereafter as result of its being violative ofArticle 368 as also the basic structure of the Constitution of IndiaFand also being violative of Article 14 and 21 of the Constitution ofIndia.”

34. In the writ petitions before the High Court, the State ofMaharashtra has filed affidavit in reply dated 16.01.2018 in Writ PetitionNo.4100 of 2018 supporting the Act, 2018, which has been extensivelyrelied by the High Court in the impugned judgment. The affidavits wereGalso filed by the intervenors and affidavits were filed in support ofChamber Summons. The High Court after perusing the writ petitions,affidavits, applications filed by the interveners, Chamber Summons andsupporting other materials and after hearing counsel appearing for therespective parties has broadly capitulated following points forHconsideration:

(3) Points for consideration before the High Court.

35. “(III) Whether the impugned Act of 2018 is constitutionallyinvalid on account of lack of legislative competence on thefollowing sub-heads:-

(a) The subsisting interim order passed by the BombayHigh Court in Sanjeet Shukla vs. State of Maharashtra (WP3151/2014) thereby granting stay to similar enactment andordinance of the State, which is pending for adjudication beforethis Court.

(b) The 102nd (Constitution) Amendment, 2018 deprivesthe State legislature of its power to enact legislationdetermining the Socially and Educationally Backward Classand conferring the benefits on the said class in exercise of itsenabling power under Article 15(4) and 16(4) of the Constitution.

(C) The limitation of 50% set out by the Constitutionbench in Indra Sawhney in form of constitutional principle donot permit reservation in excess of 50%.

(IV) Whether the State has been able to establish the social andeducational backwardness and inadequacy of representation ofthe Maratha community in public employment on the basis of thereport of MSBCC under the Chairmanship of Justice Gaikwad onthe basis of quantifiable and contemporaneous data ?

(V) Scope of Judicial Review for interference in the findings,conclusions and recommendation of the MSBCC.

(VI) Whether the reservation carved out for Maratha communityby the State Government in form of impugned legislation satisfiesthe parameters of reasonable classification under Article 14 ofthe Constitution ?

(VII) Whether the ceiling of 50% laid down by the Hon’ble ApexCourt in case of Indra Sawhney vs. Union of India, is to betaken as constitutional principle and deviation thereof violatesthe basic tenet of equality enshrined in the Constitution?

(VIII) Whether the State is able to justify existence of exceptionalcircumstances or extra-ordinary situation to exceed the permissiblelimit of 50% within the scope of guiding principles laid down inIndra Sawhney ?

(IX) Whether in the backdrop of the findings, conclusions andrecommendations of the MSBCC report, whether the StateGovernment has justified exercise of its enabling power underArticle 15(4) and 16(4) of the Constitution ?”

36. The High Court in paragraph 177 of the judgment hasBsummarised its conclusion to the following effect:

“177. In the light of the discussion above, we summarizeour conclusions to the points which we have formulated in theproemial of the judgment and deliberated in the judgment. Wesummarize our conclusions in the same sequence :

[1] We hold and declare that the State possess the legislativecompetence to enact the Maharashtra State Reservation for Seatsfor Admission in Educational Institutions in the State and forappointments in the public services and posts under the State (forSocially and Educationally Backward Classes) SEBC Act, 2018and State’s legislative competence is not in any way affected bythe Constitution (102nd Amendment) Act 2018 and the interimorder passed by this Court in Writ Petition No. 3151 of 2014. Weresultantly uphold the impugned enactment except to the extentof quantum of reservation as set out in point no. 6.

E[2] We conclude that the report of the MSBCC under theChairmanship of Justice Gaikwad is based on quantifiable andcontemporaneous data and it has conclusively established thesocial, economical and educational backwardness of the Marathacommunity and it has also established the inadequacy ofrepresentation of the Maratha community in public employment /Fposts under the State. Accordingly we uphold the MSBCC report.

[3] We hold and declare that the classification of the Marathaclass into “Socially and Educationally Backward Class” compliesthe twin test of reasonable classification permissible under Article14 of the Constitution of India, namely, (a) intelligible differentiaGand (b) rational nexus to the object sought to be achieved.

[4] We hold and declare that the limit of reservation should notexceed 50%, however in exceptional circumstances and extra-ordinary situations, this limit can be crossed subject to availabilityof quantifiable and contemporaneous data reflecting

backwardness, inadequacy of representation and without affectingthe efficiency in administration.

[5] We hold and declare that the report of the Gaikwad Commissionhas set out the exceptional circumstances and extra-ordinarysituations justifying crossing of the limit of 50% reservation as setout in Indra Sawhney’s case.

[6] We hold and declare that the State Government in exercise ofits enabling power under Articles 15(4)(5) and 16(4) of theConstitution of India is justified, in the backdrop of report ofMSBCC, in making provision for separate reservation to Marathacommunity. We, however, hold that the quantum of reservationset out by the Maharashtra State Reservation for Seats forAdmission in Educational Institutions in the State and forappointments in the public services and posts under the State (forSocially and Educationally Backward Classes) SEBC Act, 2018,in section 4(1)(a) and 4(1)(b) as 16% is not justifiable andresultantly we quash and set aside the quantum of reservationunder the said provisions over and above 12% and 13%respectively as recommended by the Commission.”

In view of the conclusions, the High Court passed following orderin the batch of writ petitions:

“: O R R :

[A] In the light of summary of conclusions above, we dispose ofthe following writ petitions / PILs by upholding the Impugned Actof 2018 except to the extent of quantum of reservation prescribedby 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 ofthe Impugned Act of 2018, are also disposed of in view of theImpugned Act being upheld except to the extent of quantum ofreservation prescribed by section 4(1)(a) and 4(1)(b).

1] PIL No.19 of 2019:- The petition is allowed in terms ofprayer clause (a).

2] PIL No.181 of 2018:- The petition is allowed in terms ofprayer clause (a). As far as prayer clause (b) is concerned,we grant liberty to the petitioner to file fresh petition in casecause of action survives.

[C] The following writ petitions are rendered infructuous onaccount of the passing of SEBC Act of 2018 which has repealedthe 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 de-tagged from the presentgroup of petitions as they claim reservation for the Muslimcommunities.

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 asprayer clause (A) is concerned. As far as prayer (B) is concerned

the petitioner is at liberty to file an appropriate Writ Petition seekingsaid relief.

[F] PIL (Stamp No.) 36115 of 2018 :- The is disposed of since therecommendation of the commission are implemented in form ofthe impugned SEBC Act, 2018.

[G] In the light of disposal of above writ petitions and PILs, allpending civil applications / notice of motions / Chamber Summonstaken out in these writ petitions and PILs do not survive and thesame are accordingly disposed of.”

37. Aggrieved with the impugned judgment of the High Courtdated 27.06.2019, the appellants have filed the Civil Appeals noted abovein 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, learnedsenior counsel, Shri Amit Anand Tiwari, learned counsel and Shri S.B.Talekar, learned counsel for the appellants. Shri Amol B. Karande, learnedcounsel, has been heard in support of Writ Petition No.938 of 2020.

39. We have heard Shri K.K. Venugopal, learned Attorney Generalfor India and Shri Tushar Mehta, learned Solicitor General. Shri MukulRohatgi, learned senior counsel, has appeared for the State ofMaharashtra and Chhattisgarh. Shri Shekhar Naphade, learned seniorcounsel, and Shri P.S. Patwalia, learned senior counsel, have alsoappeared for the State of Maharashtra. Shri Kapil Sibal, learned seniorcounsel, has appeared for the State of Jharkhand. Dr. Abhishek ManuSinghvi, learned senior counsel, has also appeared for the respondentNo.3 in C.A. No.3123 of 2020.

40. We have also heard several learned counsel appearing fordifferent States. Shri Manish Kumar, learned counsel has appeared forthe State of Bihar, Shri Karan Bharihok, has appeared for the State ofPunjab, Dr. Manish Singhvi, learned senior counsel, has appeared forthe State of Rajasthan. Shri C.U. Singh, learned senior counsel, hasappeared for the respondents. Shri Sudhanshu S. Choudhari, learnedcounsel has appeared for some of the respondents, Shri V. Shekhar,

Alearned senior counsel has appeared for the State of Maharashtra, ShriS. Niranjan Reddy, learned senior counsel, has appeared for the State ofAndhra Pradesh, Shri Shekhar Nephade, learned senior counsel andShri Jayanth Muth Raj, learned senior counsel have appeared for theState of Tamil Nadu. Shri Jaideep Gupta, learned senior counsel hasappeared for the State of Karnataka. Shri Vinay Arora, learned counsel,Bhas appeared for the State of Uttarakhand. Shri Arun Bhardwaj, learnedcounsel, has appeared for the State of Haryana. Shri Amit Kumar, learnedcounsel, has appeared for the State of Meghalaya. Shri Pradeep Misra,learned counsel, has appeared for the State of U.P. and Shri TapeshKumar Singh, learned counsel, has appeared for the Madhya PradeshCPublic Service Commission. Ms. Diksha Rai, learned counsel, hasappeared for the State of Assam.

41. We have also heard Mrs. Mahalakshmi Pavani, learned seniorcounsel, Shri A.P. Singh, learned counsel, Mr. Shriram Pingle, learnedcounsel, Shri V.K. Biju, learned counsel, Shri Hrishikesh s. Chitaley,Dlearned counsel, Shri Mr. Kaleeswaram Raj, learned counsel, and ShriAshok Arora for intervenors. Mr. Akash Avinash Kakade has alsoappeared for the interveners.

42. Learned counsel for the parties have made elaboratesubmissions on the six questions as noted above. Learned counsel forEthe parties have also made their respective submissions on the points forconsideration as was formulated by the High Court in the impugnedjudgment. The elaborate submissions have also been made by thepetitioners challenging the various provisions of Act, 2018. Learnedcounsel appearing for the petitioners have made scratching attack onthe Gaikwad Commission’s report, various data and details have beenFreferred to by the petitioners to support their submissions that Marathacommunity is not socially and educationally backward class.

43. We shall now proceed to notice the submission advanced bylearned counsel including submissions of Attorney General for India inseriatim.G

(4) Submissions of the parties.

44. Shri Arvind Datar, learned senior counsel, led the argumentson behalf of the appellant. Shri Datar submits that there is no need torefer the judgment of Constitution Bench of this Court in Indra Sawhneyto an Eleven-Judge Bench. Reference to larger Bench can be madeH

only for compelling reasons. No judgment of this Court has doubted thecorrectness of nine-Judge Constitution Bench of this Court in IndraSawhney’s case. On the other hand 50% limit for reservation has beenreiterated at least by four Constitution Bench judgments of this Courtrendered after judgment in Indra Sawhney’s case. All the High Courtshave uniformly accepted the limit of 50% reservation. In some Stateswhere for political reasons 50% limit had been breached, it was struckdown repeatedly. The limit of 50% reservation laid down by theConstitution Bench of this Court in Indra Sawhney is now an integralpart of the trinity of Article 14, 15 and 16 of the Constitution. Anylegislative or executive legislations against it are void and have to bestruck down. Shri Datar has specifically referred to the ConstitutionBench judgment of this Court in M. Nagaraj vs. Union of India, (2006)8 SCC 212 in which case the Constitution Bench of this Court laiddown that the State cannot obliterate the Constitutional requirement ofceiling limit of 50%. It was held that if the ceiling limit of 50% is breachedthe 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 toexcessiveness so as to breach the limit of 50%. The request to refer thejudgment of Nagaraj has been refused by subsequent Constitution Benchjudgment of this Court in Jarnail Singh and others vs. Lachhmi NarainGupta and others, 2018(10) SCC 396. The parameters, when thisCourt revisits its judgments have been clearly laid down in which thepresent case does not fall. The judgment delivered by nine-Judge Benchneeds to be followed under the principle of stare decisis. More so forthe last more than 28 years no judgment of this Court had expressed anydoubt 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 toeleven-Judge Bench. In law, certainty, consistency and continuity arehighly desirable. The Parliament has not touched 50% limit laid downunder Article 15(4) and 16(4) of the Constitution for the last severaldecades.

46. The impugned judgment of the Bombay High Court is liable tobe set aside as it is contrary to the clear principle laid down in the IndraSawhney’s case. The High Court has not given any reason as to howextra-ordinary situations as mentioned in paragraph 810 in Indra Sawhneycase is made out in the context of reservation for the Maratha caste/

Acommunity in Maharashtra. Exception and certain extra-ordinarysituations to the 50% principle carved out in Indra Sawhney does notcover the case of Maratha since such “rule is confined to far flung andremote areas, where they are out of main stream of national life”. IndraSawhney has also mandated extreme caution for going beyond 50%.The reservation limit of 50% has also been applied in the decisionsBrendered in the context of Article 243D and 243T of the Constitution ofIndia relating to Panchayats and Municipalities. The earlier reports ofNational Commission for Backward Classes has rejected claim ofMaratha to be included in backward class. The opinion of NationalCommission for Backward Classes cannot be disregarded by the StateCand in the event it had any grievance remedy of review was provided.

47. The Maratha community has been found to be sociallyadvanced and prestigious caste. It is submitted that limit of 50% isessential right on part of equality which is part of basic structure. Evenmembers of Scheduled Tribes and Other Backward Classes who qualifyDon merit can continue to enjoy the benefit of merit quota. The limit of50% as laid down in Indra Sawhney, only Parliamentary amendmentis contemplated. Whenever Parliament wanted to get over 50% ceilinglimit laid down by Indra Sawhney, the constitutional Amendments werebrought, namely, Constitution 77[th] Amendment and Constitution 81[st]Amendment.E

48. Shri Datar has referred to various paragraphs of judgment ofthis Court in Indra Sawhney. In support of his submission that majorityhas laid down upper ceiling of 50% for providing reservation under Article16(4) and 15(4), Shri Datar submits that the judgment of Indra Sawhneycannot be confined only to Article 16(4) but the law was laid downFtaking 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 Marathacommunity has been examined by successive Commissions orCommittees up to June 2013 and each of the Commission and CommitteeGdid not recognise members of Maratha community as deserving forreservation as backward class. Shri Divan has referred to KalelkarCommission Report (1955), Mandal Commission Report (1980) andNational Backward Class Commission Report (2000). He has alsoreferred to the Deshmukh Committee report which did not include theHMaratha Community in the list of backward communities. Reference

has also been made to the Khatri Commission (1995) and BapatCommission (2008).

50. It is submitted that when the Maharashtra State Commissionfor backward class declined to reconsider in the matter of reservation ofMaratha, the State Government appointed Narayan Rane Committeewho was Minister in the State Government which submitted reportin 2014 that although Maratha Community may not be socially backwardbut it recommended new Socially and Economically Backward Class(SEBC). Shri Divan has submitted that Gaikwad Commission whichsubmitted its Report on 15.11.2018 concluding that Maratha Communityin Maharashtra are socially, educationally and economically backwardand are eligible to be included in backward class category is completelyflawed. It was not open for the Gaikwad Commission to ignoredetermination by National Commission and State Committees/Commissionuntil June 2013 holding that Maratha are forward class in the State ofMaharashtra. The report failed to recognize the consequences of MarathaCommunity being politically organised and being the dominant politicalclass in Maharashtra for several decades. Politically organised classesthat dominate government are not backward in any Constitutional sense.

51. Coming to the Constitution (One Hundred and SecondAmendment), 2018, Shri Divan submits that 102nd ConstitutionAmendment now contemplates identification by National Commissionof Backward Classes. The Constitutional scheme which is delineatedby Article 341 and 342 has also been borrowed in Article 342A. Theidentification of backward classes is now centralized. Shri Divan hasalso highlighted adverse impact of the impugned act on medical admissionin the State of Maharashtra.

52. Law laid down by Constitution Bench in Indra Sawhney’scase that reservation under Article 15(4) and 16(4) should not exceedthe upper limit of 50 percent has been followed and reiterated by severaljudgments of this Court including Constitution Bench judgments. TheGaikwad Commission report and the reason given by the report does notmake out any case for exception regarding Maratha Community to fallin extraordinary circumstances as contemplated in paragraph 810 of thejudgment in Indra Sawhney’s case.

53. Shri Gopal Sankaranarayanan, learned senior Counsel hasmade his submission on the Constitution (One Hundred and Second

AAmendment), 2018. Shri Narayanan submits that after the Constitution(One Hundred and Second Amendment), 2018, the State legislature couldnot have passed the 2018 Act. Article 338B and 342A brought by theConstitution (One Hundred and Second Amendment), mark see changein the entire regime regarding identification of backward classes. Thepower of the National Commission of Backward Classes as per ArticleB338B sub-clause (5) includes power to make reports andrecommendations on measures that should be taken by the Union or anyState. The National Commission for Backward Class is also required tobe now consulted both by the Union and the State. Article 366(26) statesthat the phrase ‘Socially, Educationally and Backward Classes’ meansCsuch Backward Classes as are so deemed under Article 342A, for thepurposes of this Constitution which provision does not permit Socially,Educationally and Backward Classes to have any other meaning. Thepurposes of this Constitution, as occurring in Article 366(26C) shall alsoapply to Article 16(4). After the Constitution (One Hundred and SecondAmendment), the States have no power to identify socially, educationallyDand backward classes. The State Governments are still left free to decidethe nature or extent of provision that may be made in favour of sociallyand educationally backward classes identified in accordance with Article342A. When the power to determine SCs and STs have always beencentralized, it is absurd to suggest that allowing the same procedure forEidentification of socially, educationally and backward classes shall violatefederalism.54. Shri Gopal Sankaranarayanan further submitted that the relianceon Select Committee Report of Rajya Sabha is unwarranted. In theSelect Committee Report which was submitted in July 2018, there wereFseveral dissents, since many members of the Select Committeeunderstood 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 inthe Constitution to achieve uniformity and certainty and not due to any

political reasons. There is no ambiguity in Article 342A which requiresGany external aid for interpretation.

55. Shri Sidharth Bhatnagar, learned counsel appearing for theappellant also adopts the submissions of Mr. Datar and Mr. GopalSankaranarayanan and submits that the judgment of this Court in M.R.Balaji versus State of Mysore, AIR 1963 SC 649, had laid down thatH

reservation under Article 15(4) shall be less than 50 percent whichprinciple finds its approval in Indra Sawhney’s Case.In IndraSawhney’s Case, Eight out of Nine Judges took the view that reservationcannot exceed 50 percent. He submits that judgment of Indra Sawhneyneed not be referred to larger Bench.

56. Mr. Pradeep Sancheti, learned senior Advocate, has confinedhis submissions to the Gaikwad Commission Report. He submits thatdue difference to the opinion of the Commission does not mean thatopinion formed is beyond the judicial scrutiny. He submits thatbackwardness has to be based on objective factors where inadequacyhas to factually exist. The Court while exercising power of Judicial Reviewhas to consider the substance of the matter and not its form, theappearance or the cloak, or the veil of the executive action is to becarefully scrutinized and if it appears that Constitutional power has beentransgressed, the impugned action has to be struck down.

57. Shri Sancheti submitted that three National Backward ClassCommissions and three State Backward Class Commissions did notinclude Maratha Community as backward community which findingsand reasons could not have been given goby by Gaikwad Commissionconstituted in the year 2017. The Gaikwad Commission (hereinafterreferred to as Commission), survey, data results, analysis suffers fromvarious inherent flaws. The sample survey conducted by the Commissionis skewed, unscientific and cannot be taken as representative sample.Sample size is very small. Out of 43,629 persons surveyed, only 950persons were from the Urban Area. Mumbai was excluded from theSurvey. Sample size of total population was well below 0.02 percent.The Commission assumes that the Maratha form 30 percent of the State’spopulation. Without there being any quantifiable data, the Commissionpicked up and chose certain parameters whereas conveniently left outmany of the parameters where Maratha Community is better off. TheCommission has not provided comparable State average for at least28 of the parameters used in the study. When the State Average is noton the record, treating those parameters as parameters of backwardnessis wholly unfounded. The High Court in the impugned judgment has alsonot met the submissions which were brought on record before the HighCourt regarding the serious flaws committed by the Commission.

58. The marking system adopted by the Commission was notrational; the Constitution of the Commission and experts was loaded in

Afavour of the Maratha community since the majority of the members ofthe Commission were all Marathas. It is submitted that Marathas arethe most dominant community not only in politics but also in other fieldssuch as educational institutions, sugar factories, agriculture etc. whichaspects are relevant criteria for identifying backwardness of community.The sample size was so small that no quantifiable data could have beenBfound.

59. Referring to Chapter 10 of the Commission’s report, ShriSancheti submits that no extraordinary situation as contemplated inparagraph 810 of judgment of Indra Sawhney’s case could be madeout, even if all the findings given by the Commission are accepted to beCtrue. The Commission has relied on outdated data for holding that‘Marathas’ were ‘Shudras’. When an unscientific survey is done, anunrealistic result is bound to come. There has been adequaterepresentation of Maratha Community in the Public Services. TheCommission erred in holding that the representation is not proportionateDand recommended reservation under Article 16(4). The Commission hasnot even adverted to the requirement regarding efficiency as contemplatedunder Article 335 of the Constitution of India.

60. Shri Sancheti submits that more than 40 percent Members ofParliament and 50 percent of Members of Legislative Assembly areEMarathas. Shri Sancheti submits that the Commission’s report is onlypaperwork which could not be accepted by the Court, while the Act,2018, purports to create reservation for socially and economicallyBackward Classes but in effect the enactment is reservation for onlyMaratha which enactment is not sustainable. F61. Shri Sancheti submits that from the various data regarding

F61. Shri Sancheti submits that from the various data regardingrepresentation in jobs of Maratha community itself make it clear thatMaratha community is adequately represented in Public Services andthere is no Constitutional requirement for providing reservation underArticle 16(4). Shri Sancheti submits that the Commission has given undueimportance to the suicide by the Maratha farmers. He submits that fromGthe data given in the report, the proportion of suicide of Maratha comesto 23.56 percent which is even less from the proportion of 30 percent asclaimed by the Commission. The High Court by wrong appreciation offacts concludes that those who committed suicide, 80.28 percent wereMarathas. There is no basis to attribute farmer suicide to MarathaHBackwardness. Shri Sancheti submits that undue weightage has been

given to the percentage of Maratha in ‘Dubbeywala class’ which cannotbe 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 judgmentof this Court in Indra Sawhney’s case which is based on principles ofequality and reasonableness. Dr. Dhavan submits that in fact IndraSawhney should be strengthened to make 50 percent strict subject todire restrictions and stronger judicial review. The Indra Sawhney shouldbe treated as comprehensive decision on various aspects of reservationas whole and the attempt of the respondents to distinguish IndraSawhney on the basis that it was decision only on Article 16(4) isspurious.63. Dr. Dhavan, however, submits that in the judgment of IndraSawhney, weak test for judicial scrutiny in matters within the subjectivesatisfaction of the scrutiny was laid down i.e. test as laid down by thisCourt in Barium Chemicals ltd. and another versus The CompanyLaw Board and others, AIR 1967 SC 295. Dr. Dhavan submits thatthere ought to be strict scrutiny test and this Court may tweak thisaspect of Indra Sawhney so that the strict scrutiny test applies. The 50percent test as has been articulated in the Indra Sawhney is based onthe principle of giving everyone fair chance. 50 percent ceiling is basedon principle of equality to prevent reverse discrimination which is asmuch principle that the Constitution records to equality as anythingelse. The direction of Indra Sawhney that list of Other Backward Classesbe reviewed periodically is not being followed. Dr. Dhavan, however,submits that the entire power of reservation has not been taken awayfrom the State.

64. Elaborating his submissions on the Constitution (One Hundredand Second Amendment) Act, 2018, Dr. Dhavan submits that the essenceof 102nd Amendment as exemplified in Article 342A results in themonopoly of identification even though implementation is left to the State.His submission is that this is contrary to the basic structure of federalismof the Constitution. In that it deprived the States of the crucial power ofidentification which was very important power of the State under Article15, 16 and 46. The obligation of the State in Article 15, 16 and 46 continueto be comprehensive.

65. Alternate submissions advanced by Dr. Dhavan is that Article342A can be read down to describe the power of the Centre in relation

Ato the Central Services and leaving the identification and implementationpower of the States intact. Dr. Dhavan, however, submits thatMaharashtra legislature had the competence to enact the 2018 Act, eventhough the Constitution (One Hundred and Second Amendment) hadcome by that time. He, however, submits that any legislation which isenacted will still be subject to Indra Sawhney and Nagraj principles.B

66. Dr. Dhavan submits that various reports of Maharashtra infact found that it is not necessary to include Maratha despite theirpersistent efforts. He submits that the test to be applied is “what hashappened since the last report negating inclusion of Maratha that nowrequires change to include them”. He submits that the logic of theCprinciple is that if the Marathas were not backward for over Seventyyears, how they have suddenly become backward now. Dr. Dhavanreiterates his submission that there is no judgment which has questionedIndra Sawhney’s case. He submits that reservation under politicalpressure, social pressure need not to be taken. political obligation toDthe electorate is not constitutional obligation. He further submits thatobject of Article 16(4) is empowerment i.e. sharing of the State power.He submits that Maratha are not deprived of sharing power; hence, nocase is made out for granting reservation under Article 16(4).

67. Shri B.H. Marlapalle, learned senior counsel, has also submittedEthat doctrine of extraordinary circumstances cannot be applied to adominant class of Society. He submits that the representation of Marathain the Legislative Assembly of the State is more than 50 percent and inthe Cabinet of the State they are more than 50 percent. After enforcementof the Constitution, Marathas were never regarded as an OtherBackward Community. Three Central Commission and three StateFCommissions have rejected the claim of the Marathas to be backward.68. Shri S.B. Talekar, appearing in Civil Appeal No.3126 of 2020has submitted that Writ Petition No.3846 of 2019 was filed by Mohd.Saeed Noori & Others, claiming reservation for Muslims. The High Courtalthough noted the submissions but had made no consideration. LearnedGCounsel contended that the State has no legislative competence to enactthe 2018 Act. He submits that power to legislate on the subject has beentaken away by virtue of 102nd Constitutional Amendment by addingArticle 342A in the Constitution of India. He also questioned thecomposition of Gaikwad Commission.

69. Shri R.K. Deshpande, appearing for the appellant has alsocontended that by Article 342A, separate mechanism has beenintroduced for the purpose of identification of backward class. He submitsthat there cannot be any State list of ‘Socially and Educationally BackwardClass’ after the 102nd Constitutional Amendment. He submits thatidentification 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 thatThree-Judge Bench having refused the prayer to refer the IndraSawhney judgment to larger Bench, the Said prayer needs no furtherconsideration. Shri Tiwari submits that present is not case covered byany exceptional circumstances as mentioned in the Indra Sawhney’sjudgment. Historically, Marathas have been treated as forward classwho are socially, economically and politically well-of. Prior to the reportof Gaikwad Commission, as many as six Commissions have heldMarathas are not entitled to be treated as backward class. There hasbeen no change in the circumstances to include Maratha Community inthe list of Backward Classes. With respect to 102nd ConstitutionalAmendment, shri Tiwari submits that now States are not empowered tonotify class of persons as socially and educationally backward for thepurposes of the Constitution. However, State’s power to confer benefitson an already identified class of persons as SEBC as identified underArticle 342A remains intact. The High Court committed an error in holdingthat States still have power to identify class as SEBC. The High Courterred in not appreciating the import of Article 366(26C).

71. We may also notice the submission of writ petitioner inW.P.(civil) No.938 of 2020, challenging the 102[nd] ConstitutionalAmendment Act, 2018.

72. Shri Amol B. Karande, learned counsel for the petitioner submitsthat in event Article 342A read with Article 366(26C) of the Constitutionof India takes away the power of the State to identify backward class,the said Constitutional Amendment shall be violative of basic feature ofthe Constitution, i.e. Federalism.

73. He further submits that by the Constitutional Amendment, thepower of the State to legislate under various Entries under List-II andList-III have been taken away, hence, it was obligatory to follow theprocedure as prescribed in Proviso to Article 368(2) of the Constitution

Aof India, which having not done, the Constitutional Amendment is notvalid.

74. Learned Counsel submits that Article 366(26C) requires certainclarification since there is no clarity regarding Central List and StateList. He submits that States shall have still power to legislate on theBidentification of the backward class.

75. Learned Attorney General, Shri K.K.Venugopal, has madesubmissions on the 102nd Constitutional Amendment. Shri Venugopalsubmits that he shall confine his arguments on the 102nd ConstitutionalAmendment only. Referring to Article 12 of the Constitution, the learnedCAttorney General submits that the definition of the “State includesGovernment and Parliament of India and Government and Legislatureof each State.” Under Article 15(4) and 16(4), the State has power toidentify the ‘Socially and Educationally Backward Class/Backward Class’and take affirmative action in favour of such classes which power hasbeen regularly exercised by the State.D76. Learned Attorney General submits that the Constitution Benchin Indra Sawhney held that there ought to be permanent body, in thenature of Commission or Tribunal to which inclusion and non-inclusionof groups, classes and Sections in the list of Other Backward Classescan be made. The Constitution Bench directed both the UnionEGovernment and the State Government to constitute such permanentmechanism in the nature of Commission.

77. Learned Attorney General submits that it is inconceivable thatno State shall have power to identify backward class, the direction issuedby the Nine-Judge Bench still continuing. He has referred to the judgmentFdelivered by Justice Jeevan Reddy for himself and three other Judgesand judgment delivered by Justice Thommen and submits that the abovedirections were the directions of the majority. Learned Attorney Generalsubmits that no such amendment has been made by which the effect ofArticle 15(4) and 16(4) have been impacted. He submits that NationalGBackward Class Commission Act, 1993 was passed in obedience ofdirection of this Court in Indra Sawhney’s case. He submits that Section2(C) of 1993 Act refers to Central list. Learned Attorney General hasalso 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 Article342A was to cover the Central list alone, the 1993 Act, having been

repealed on 14.08.2018. The Attorney General has also referred to SelectCommittee Report dated 17.07.2017, paragraph 12, 18, 19 and 55 andsubmits that Select Committee Report indicate that the intention ofConstitutional Amendment was not to take away the State’s power toidentify the Backward Class, the Select Committee Report clearly indicatethat State’s Commission shall continue to perform their duties.

78. Learned Attorney General submits that Central List ascontemplated under Article 342A (2) relates to employment under theUnion Government, Public Sector Corporation, Central institutions inStates where Central list was to be utilized. He submits that StateGovernment identification of Backward Class/Socially and EducationallyBackward Classes is not touched by Article 342A.

79. Referring to Scheduled Castes and Scheduled Tribes learnedAttorney General submits that the power was given to the Presidentunder the Constitutional Scheme and States had no concern at all withScheduled Castes/Scheduled Tribes. He submits that Article 342A dealswith the Central List for its own purpose whereas in every State, thereis separate State list of Other Backward Class. There was no attemptto modify Articles 15(4) and 16(4) by the Parliament. Unless Articles15(4) and 16(4) are amended, the State’s power cannot be touched.

80. Learned Attorney General had also referred to an affidavitfiled on behalf of Government of India in Writ Petition (Civil) No.12 of2021, Dinesh B. versus Union of India and others, in which affidavitUnion of India with respect to the Constitution (One Hundred and SecondAmendment) Act, 2018 has pleaded that power to identify and specifythe Socially and Educationally Backward Class list lies with Parliament,only with reference to Central List of Socially and EducationallyBackward Class. It is further pleaded that the State Government mayhave their separate State list for Socially and Educationally BackwardClass for the purposes of providing reservation to the recruitment toState Government Services or admission to the State GovernmentEducational Institutions. Learned Attorney General reiterates the abovestand in respect of the Constitution (One Hundred and SecondAmendment) Act, 2018.

81. Referring to the Other Backward Caste list, with regard tothe State of Punjab, the learned Attorney General submits that in theCentral list, there are 68 castes and whereas in the State list, there are

A71 castes. Learned Attorney General submits that the question of validityof the Constitution (One Hundred and Second Amendment) shall ariseonly when the State’s power is taken away. Replying to the submissionsmade by the learned counsel for the writ petitioner in W.P.No.938 of2020, learned Attorney General submits that in the Constitution (OneHundred and Second Amendment), there was no applicability of provisoBto Article 368(2). He submits that insofar as legislation under List-III isconcerned, 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 AttorneyGeneral submits that Entry 41 has no concern with identification ofCbackward class. The Constitution (One Hundred and SecondAmendment) does not amend the lists under Schedule VII; hence, thereis no requirement of ratification by the States.

83. Shri Mukul Rohtagi, learned senior counsel, appearing for theState of Maharashtra has led the arguments. Shri Rohtagi has articulatedDhis submissions in very effective manner. Shri Rohtagi states that hissubmission shall be principally confined to question No.1.

84. Shri Rohtagi submits that there are several reasons whichrequire that the Constitution Bench judgment in Indra Sawhney berevisited, necessitating reference to the larger Bench of Eleven Judges.EShri Rohtagi during course of submission has handed over chart givinghistory of judgments on reservation. The chart makes reference of therelevant paragraphs of judgments of this Court in M.R.Balaji versusState of Mysore(Supra),T. Devadasan versus Union of India andanother, AIR (1964) SC 179, State of Punjab versus Hiralal andFothers, (1970) 3 SCC 567; State of Kerala and others versus N.M.Thomas and others, (1976) 2 SCC 310; Akhil Bharatiya SoshitKaramchari Sangh, (Railway) versus Union of India and others,(1981) 1 SCC 246; K.C. Vasant Kumar and another versus State ofKarnataka, (1985) supp. (1) SCC 714; T.M.A. Pai Foundation andothers versus State of Karnataka and others, (2002) 8 SCC 481, M.GNagaraj and others versus Union of India and others, (2006) 8SCC 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 andanother ,(2010) 7 SCC 202; Chebrolu Leela Prasad Rao versusState of Andhra Pradesh, (2020) SCC Online SC 383; VikasH

kishanrao Gawali versus The State of Maharashtra, (2021) SCCOnline SC 170 and Constitution Bench judgment of this Court in IndraSawhney. The Chart also indicates the reasons why Indra Sawhney’sjudgment requires review. The Chart in comprehensive mannerdiscloses the law on reservation prior to Indra Sawhney and subsequentthereto.

85. We may now notice the Groundswhich have been emphasizedby Shri Mukul Rohtagi for referring the judgment of Indra Sawhney toa larger Bench.

(5)The 10 grounds urged for referring Indra Sawhneyjudgment to larger Bench.

i) In the judgment of Indra Sawhney, there is no unanimity,in view of different reasoning adopted in six separatejudgments delivered in the case. He submits that thejudgments are in three groups – one containing the judgmentof Justice Jeevan Reddy, which is for himself and threeother judges, which held that while 50 percent is the ruleDbut in certain extraordinary situations, it can be breached.Shri Rohtagi submits that Justice Pandian and Justice Sawanthave held that 50 percent can be breached, hence, themajority opinion is that 50 percent can be breached. It isonly Justice Thommen, Justice Kuldip Singh and JusticeER.M. Sahai who have held that 50 percent cannot bebreached. He submits that the judgment of majority opinionin Indra Sawhney is being wrongly read as holding that 50percent is the ceiling limit for reservation.

ii)Different judges from 1963 till date have spoken in differentvoice with regard to reservation under 15(4) and 16(4) whichis good ground to refer Indra Sawhney judgment to alarger Bench.

iii)The Balaji has held that Article 15(4) is an exception toArticle 15(1) which theory has not been accepted by thisCourt in N.M. Thomas as well as Indra Sawhney, thevery basis of fixing the ceiling of 50 percent has gone. ShriRohtagi submits that the Constitution of India is livingdocument. The ideas cannot remain frozen, even the thinkingof framers of the Constitution cannot remain frozen fortimes immemorial.

782SUPREME COURT REPORTS

iv)Neither Article 16(4) nor Article 15(4) contains anypercentage. The Court cannot read percentage i.e. 50percent for effecting reservation under Article 15(4) andArticle 16(4), providing ceiling by number is cutting downthe Constitutional provisions of Part-III and Part-IV. IndraSawhney’s judgment has restricted the sweep of ArticleB15 and Article 16 of the Constitution. The Constitutionalprovisions cannot be read down which principle is applicableonly with regard to statutes.

v) Judgment of Indra Sawhney is judgment on Article 16(4)and not on Article 15(4), hence, the ratio of judgment cannotCbe applied with regard to Article 15(4). He submits thatIndra Sawhney itself states that Article 15(4) and Article16(4) are distinct and different provisions.

vi)The judgment of Indra Sawhney does not consider theimpact of Directive Principles of State Policy such as ArticleD39(b)(c) and Article 46, While interpreting Article 14, 16(1)and 16(4).

vii)The 50 percentage ceiling limit was followed by ConstitutionBench of this Court in St. Stephen’s College versusUniversity of Delhi,(1992) 1 SCC 558, by upholding theEprocedure for admission of students in aided minorityeducational institutions which ceiling limit of 50 percent hasbeen set aside by 11-Judge Bench judgment in T.M.A. PaiFoundation (Supra). 11-Judge Bench judgment in T.M.A.Pai judgment indicates that the ceiling of 50 percent is noFlonger available to be relied on even for purposes of Article15 and Article 16.

viii)The Constitutional 77th and 81st Amendment Act insertingArticle 16(4)(A) and Article 16(4)(B) have the effect ofundoing in part the judgment of Indra Sawhney and thusGmandating re-look.

ix)The 103[rd] Constitutional Amendment by which 10 percentreservation have been provided for Economically WeakerSections in addition to reservation given under Article 15(4)and Article 16(4) is clear pointer of overruling of 50 percentceiling for reservation under 15(4) and 16(4).H

x)The extraordinary circumstances as indicated in paragraph810 of Indra Sawhney’s case is not exhaustive, far flungand remote areas mentioned therein are only illustrative.There may be other exceptions where states are entitled toexceed the 50 percent ceiling limit.

86. Shri P.S. Patwalia, appearing for the State of Maharashtrahas advanced the submissions on rest of the questions. Shri Patwaliahas advanced submissions supporting the report of Gaikwad Commission.He submits that Gaikwad Commission was appointed under the 2005Act at the time when the challenge to 2014 Act was pending in theBombay High Court. He submits that there was no challenge to theconstitution of Gaikwad Commission before the High Court at any stage.He submits that if 30 percent Maratha are to be fit in 27 percent OBCreservation, we will be giving them complete mirage. Shri Patwaliahas taken us to the different chapters of the report and submits that theCommission has mentioned about procedure, investigations and evidencecollected. He submits that quantifiable data was collected by theCommission through experts and three agencies appointed by theCommission. Experts were also engaged to marshal the data and submittheir opinion. Chapter 10 of the report dealt with the exceptionalcircumstances regarding Marathas justifying exceeding 50 percent ceilinglimit for reservation. He submits that the Commission has assessed theMaratha population as 30 percent.

87. Shri Patwalia submits that the scope of judicial review of aCommission’s report is very limited. This Court shall not enter intoassessment of evidence to come to different conclusion. He submitsthat the Gaikwad Commission report is unanimous report. After thereceipt of the report, the Act, 2018 was passed unanimously by theLegislative Assembly. The subjective satisfaction of the StateGovernment to declare community as socially and educationallybackward is not to be easily interfered by the Courts in exercise ofJudicial Review Jurisdiction.

88. On the basis of the Commission’s report, the State Governmentarrived at the satisfaction that Maratha are socially and educationallybackward class which satisfaction need not be tested in Judicial ReviewJurisdiction. Formation of the opinion by the State is purely subjectiveprocess. This Court has laid down in several judgments that theCommission’s report needs to be treated with deference. The High Court

Ain the impugned judgment has elaborately considered the GaikwadCommission’s report and the other material including the reservationwhich was granted to Other Backward Community in the year 1902 bySahuji Maharaj. He submits that the High Court had considered theeffect of reports given by the earlier Commissions in the impugnedjudgment and gave reasons why earlier reports cannot operate detrimentBto the Marathas.

89. It is submitted that method and manner of survey is to bedecided on by the Commission. No contrary data of any expert ortechnical body has been placed before this Court by the appellants tocome to the conclusion that the data considered by the Commission wasCnot relevant. The choice of parameters is essentially to be decided bythe expert body appointed to determine the backwardness. The statisticsof population of Maratha community is credible and rightly been acceptedby the Commission.

90. The Commission had given common questionnaire to maintainDuniformity for social, economical and educational backwardness. TheCommission has given relevant parameters. The Commission hadconsidered the number of representations received and collected. TheCommission also considered the objection for inclusion of Maratha asbackward class in Other Backward classes category and otherwise. E[[nd]] Constitutional Amendment

91. Shri Patwalia with respect to 102[[nd]] Constitutional Amendmentstates that he adopts the submissions of learned Attorney Generalcompletely. He submits that Article 342A and mechanism which hasbeen brought in force only relate to the Central list which is for thepurposes of appointment in posts under the Central Government orEducational Institutions under the control of the Central Government.FShri Patwalia further submits that the Select Committee report relied bythe High Court is fully admissible for deciphering the history of legislationand the intention of the Parliament. He further submits that today thereis 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 forthe State of Maharashtra, has elaborately dealt with the judgment of thisCourt in M. R. Balaji(Supra). He submits that all subsequent judgmentsproviding ceiling of 50 percent are based on Balaji’s Case and therebeing several flaws in the said judgment, the case needs to be referredHto larger Bench. He submits that 50 percent ceiling on reservation for

Scheduled Caste, Scheduled Tribes and Other Backward Class is judiciallegislation which is impermissible. He further submits that reservationcannot exceed 50 percent is not the ratio of judgment of Balaji. It issubmitted that Balaji has not considered the effect of the non obstanteclause contained in Article 15(4). Shri Naphade has also dealt with thejudgments of this Court in T.Devadasan(Supra), N.M. Thomas (Supra)and Indra Sawhney.

93. Shri Naphade elaborating his submissions on Article 342Asubmits that the State has legislative competence to prescribe reservationto backward class. He has referred to Entry 25 of List-III and Entry 41of List-II. He submits that careful perusal of Article 342A indicatesthat the scheme of this Article is substantially different from Article 341and 342. The difference in the language of clause (2) of Article 342A ascompared to clause (2) of Article of 341 and 342 makes all the difference.The view canvas by petitioners that 102nd Constitutional Amendmenttakes away the legislative competence and legislative power of the Statesruns counter to the basic structure of the Constitution and the scheme ofdistribution of power between the State and Centre. It is settled principleof interpretation that by construing any provision of Act of Parliament orConstitution, the legislative history of the relevant subject is necessaryto be seen.94. Shri Kapil Sibal, senior advocate, appearing for the State ofJharkhand has advanced the submissions on all aspects of the matterswhich are under consideration in the present batch of cases. He submitsthat how balance for Article 14, 15 and 16 shall be maintained is matterwithin the domain of the executive/State legislature. No Court should fixthe percentage for Article 15 and 16. In Indra Sawhney’s case, therewas no data for imposing ceiling of 50 percent. Justice Jeevan Reddydid not rely on the Mandal Commission’s report. Mr. Sibal submits that50 percent was not an issue in the Indra Sawhney. He submits thatparameters for Article 15(4) and Article 16(4) are entirely different whereArticle 15 is eligibility and Article 16 is ability to get job. Apart fromBalaji, all other judgments are on Article 16. He submits that questionNo.VI framed in Indra Sawhney’s case could not have been answeredwithout looking into the statistics. The concept of equality will differfrom State to State. There cannot be strait Jacket formula. Why stopreservation to only 50 percent when matter relates to affirmative actionby the State which is felt required by the concerned State. Limiting

Aaccess 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 followedin particular case. In Indra Sawhney’s case, the Court was dealingwith Office Memorandum issued by Government of India wherereservation was less than 50 percent. The observation regarding 50percent is only an Obiter. By the judgment of this Court in N.M. Thomas,Bthe basis of Balaji Case that Article 15(4) is an exception to Article15(1) has gone. The whole judgment could not be relied on as precedentanymore. Whether particular quota of reservation is violative of Article15(1) depends on facts of each case. The State ought to be given freehand to pick the percentage as per need and requirement of each State.CThere is no judicial power to pick percentage.

95. Shri Sibal giving illustration of Kendriya Vidyalaya submittedthat General students cannot come and those institutions cater only tothe employees of Government, Army; and the General can only comewhen the seats are vacant. He submits that the balance has to be doneDby the executive and not by the Court. These are the issues which needto be decided by larger Bench. These issues having never beenaddressed before this Court in Indra Sawhney’s case, the matter needsto be referred to larger Bench.

96. The Constitution of India is living, transformative document.EThe Court cannot shackle the legislature. Shri Sibal submits that 50 percentlimit for reservation prescribed in Indra Sawhney is no longer goodlaw after 103rd Constitutional Amendment which inserted Article 15(6)and Article 16(6) into the Constitution. Several States have alreadyprovided for reservation beyond 50 percent to Scheduled Caste,Scheduled Tribe and Socially and Educationally Backward class. In theFabove circumstances, it is necessary that these matters may be referredto 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 advancethe interest of socially and educationally backward classes. Any exerciseGof power by the Union cannot encroach upon the power of the State toidentify and empower the socially and educationally backward classesand determine the extent of reservation required. The expression, “forthe purposes of this Constitution” can therefore only be construed withinthe contours of power that the Union is entitled to exercise with respect

to entities, institutions, authorities and Public Sector Enterprises underthe aegis and control of the Union.

98. The expression “Central List” in Article 342A(2) relates tothe notification under Article 342A(1), wherein the Central List willinclude identification of socially and educationally backward classes forthe purposes of entities, institutions, authorities and public sectorenterprises in State, but under the aegis or control of the Union. Anyother interpretation would allow an executive act to whittle down thelegislative power of the States to provide for the advancement of thesocially and educationally backward classes, under Articles 15(4), 15(5)as well as in Article 16(4), which are an integral part of the chapter onfundamental rights.

99. Article 342A and Article 342A(1) and 342A(2) must beinterpreted in the historical context and developments both pre and postIndra Sawhney, where the identification of the socially and educationallybackward classes in the State lists was the basis for determining theextent 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 theexpression “list” in the context of identification of Scheduled Castes andScheduled Tribes. This is because historically, Scheduled Castes andTribes were identified by the Government of India and accepted by theStates.

100. Learned Solicitor General Shri Tushar Mehta, submits thathe adopts the submissions made by learned Attorney General. He submitsthat 102ndConstitutional Amendment shall not dilute the power of theState. Article 342A (1) is only enabling provision. The Act, 2018, doesnot violate 102ndConstitutional Amendment.

101. Dr. Abhishek Manu Singhvi, appearing for the respondentsubmits that State’s power was never intended to be taken away. Hesubmits that material including discussion in reports of ParliamentaryCommittee are fully admissible and has to be relied for finding the intentand purpose of Constitutional provision. Dr. Singhvi has elaboratelytaken us to the proceedings of the Select Committee and its report. Dr.Singhvi has cited the Constitution Bench judgment of this Court inKalpana Mehta and others versus Union of India and others, (2018)7 SCC 1.He has also referred to the Statements of objects of 123rdBillwhich notices that there were State lists prior to Indra Sawhney. TheCentral list was confined to Central Institutions and Central Government

Aposts. Shri Singhvi has also referred to 1993 Act and submits that in thesaid Act Section 2(C) referred to list which was only Central list.Article 342A(2) uses the same Central list and interpretation of Article342A(2) has to be made taking the same meaning of Central list as wasknown and understood under the regime prior to 102[nd] ConstitutionalAmendment Act. This Court shall not annotate the State’s power underBsome interpretive exercise. Dr. Singhvi further submits that today thereis no Central list under Article 342A, there being no occupied field, it itspremature and academic.

102. Shri C.U. Singh, learned senior Advocate, appearing forrespondents has referred to Gaikwad Commission’s report in detail. HeChas referred to data collected and reflected in the report and submit thatthe Commission on the basis of quantifiable data has determined Marathaas socially and educationally backward community. He has also referredto Chapter 10 of the report which carves out exceptional circumstancesfor exceeding 50 percent limit. Shri C.U. Singh has taken the Court toDvarious tables and charts regarding representation of Maratha Communityin the Public services, Universities and Higher Institutions. Shri C.U.Singh submits that the representation in the public services is not inaccordance with the proportion of population of Maratha. He submitsthat backwardness has to come from living standard, job. The Commissionhas found that Marathas to be more in Agriculture and in AgriculturalElabour. He submits that we need to take into consideration the overallsituation.103. Learned Counsel for the State of Bihar, State of Punjab,State of Rajasthan, State of Andhra Pradesh, State of Tamil Nadu, Stateof Kerala, State of Assam, State of Uttar Pradesh, State of HaryanaFhave also advanced the similar submissions as advanced by the State ofMaharashtra that 102nd Constitutional Amendment shall not take awaypower of the legislative/executive power of the State to identify OBCand to take measures for implementation of reservation. All State’scounsel submitted that there has always been two lists i.e. Central ListGand State List. It is submitted that any other interpretation shall violatethe 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 tribalpopulation. He submits that reservation allowed in State of MeghalayaHis in accord with paragraph 810 of the Indra Sawhney’s judgment.

105. Shri Vinay Arora, learned counsel appearing for State ofUttarakhand, submits that State has two lists one drawn by State andanother Central list. He adopts the arguments of learned AttorneyGeneral. Shri Vinay Arora submits that judgment of Indra Sawhneyneed not to be referred to larger Bench. He submits that affirmativeaction 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 ofMaharashtra. However, learned counsel Shri A.P.Singh and Shri B.B.Biju, appearing for different interveners submits that judgment of IndraSawhney need not be referred to larger Bench. They submitted thatafter seventy years, there has been upliftment. The reservation is affectingthe merit as well as the society.

107. We have heard learned counsel for the parties and perusedthe records.

108. All the relevant materials which were before the High Courthave been compiled in different volumes and filed for convenience.Learned counsel for the parties during submissions have referred variousmaterials including necessary relevant enactments and reports. Fromvarious volumes master index containing all details of volumes hasalso been prepared and submitted. Before we enter into submissions ofthe learned counsel for the parties on six questions framed by us and theimpugned judgment of the High Court including points for considerationnoted in the judgment of the High Court, we need to first look into thestatutory provisions pertaining to reservation in force at the time whenAct, 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 unified list of OBCconsisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgmentof this Court in Indra Sawhney case, the Central List of OBC wasissued by the Ministry of Welfare, Government of India notifying theCentral List of OBC consisting of more than 200 castes. The CentralList of OBC as on date contains about 252 OBC. The Governmentof Maharashtra by its Government decision dated 07.12.1994 created

Aspecial 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, 2001was enacted which was published in the Maharashtra GovernmentGazette on 22.01.2004. Section 2(b) defines De-notified Tribes. SectionB2(f) defines Nomadic Tribes. Section 2(g) defines Other BackwardClasses and Section 2(k) defines reservation and Section 2(m) definesSpecial Backward Category. Sections 2(b), 2(f), 2(g), 2(k) and 2(m) areas follows:

C“Section 2(b) “ De-notified Tribes (Vimukta Jatis) “ meansthe Tribes declared as such by the Government from time to time;

2(f) “Nomadic Tribes “ means the Tribes wandering fromplace to place in search of their livelihood as declared byGovernment from time to time ;

2(g) “Other Backward Classes” means any socially andeducationally backward classes of citizens as declared by theGovernment and includes Other Backward Classes declared bythe Government of India in relation to the State of Maharashtra ;

2(k) “reservation” means the reservation of post in theEservices for the members of Scheduled Castes, Scheduled Tribes,De-notified Tribes (Vimukta Jatis), Nomadic Tribes, SpecialBackward Category and Other Backward Classes;

2(m) “Special Backward Category” means socially andFeducationally backward classes of citizens declared as SpecialBackward Category by the Government.”

110. Section 4 provides for reservation and percentage. Section4(2) is as follows:

Section 4(2) Subject to other provisions of this Act, thereGshall be posts reserved for the persons belonging to the ScheduledCastes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),Nomadic Tribes, Special Backward Category and OtherBackward Classes, at the stage of direct recruitment in publicservices and posts specified under clause (j) of section 2, asHprovided below:-

_____________________________________________”

111. The Maharashtra State Commission for Backward ClassesAct, 2005 was enacted by the State Legislature providing for constitutionof State level Commission for Backward Classes other than theScheduled Castes and Scheduled Tribes and to provide for mattersconnected therewith or incidental thereto. Section 2(e) defined the Listsin following words:

“Section 2(e) “Lists” means the Lists prepared by the StateGovernment, from time to time, for the purposes of makingprovision for the reservation of appointments or posts, in favourof the backward classes of citizens who, in the opinion of theState Government, are not adequately represented in the servicesunder the State Government and any local or other authority withinthe State or under the control of the State Government;”

112. Section 9 of the Act deals with functions of the Commissionin the following words:

A“Section 9.(1) It shall be the function of the Commission,—

(a) to entertain and examine requests for inclusion ofany class of citizens as backward class in the Lists ;

(b) to entertain, hear, enquire and examine complaintsof over-inclusion or under-inclusion of any backward class insuch Lists and tender such advice to the State Government asit deems appropriate;

(c) to take periodical review and make recommendationsto the State Government regarding the criteria and methodologyof determining the backward class of citizens ;

(d) to cause studies to be conducted on regular basisthrough and in collaboration with reputed academic and researchbodies for building of data about the changing socio-economicstatus of various classes of citizens;

(e) to regularly review the socio-economic progress ofthe backward class of citizens ; and (f ) to perform such otherfunctions as may be prescribed.

(2) The advice given or recommendations made by the Commissionunder this section shall ordinarily be binding on the StateGovernment and the State Government shall record reasons inwriting, if, it totally or partially rejects the advice orrecommendations or modifies it.”

113. Another Enactment, namely, Maharashtra Private ProfessionalEducational Institutions (Reservation of seats for admission for ScheduledCastes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), NomadicFTribes and Other Backward Classes) Act, 2006 was enacted whichwas published in Maharashtra Gazette on 01.08.2006. Section 2 definesvarious expressions including Nomadic Tribes and Other BackwardClasses in other words. Section 4 provided that in every Aided PrivateProfessional Educational Institution, seats equal to 50% shall be reservedGfor candidates belonging to the Reserved Category. Section 4 of the Actis as follows:

“Section 4. (1) In every Aided Private Professional EducationalInstitution, seats equal to fifty per cent. of the Sanctioned Intakeof each Professional Course shall be reserved for candidatesbelonging to the Reserved Category.

(2) The seats reserved for candidates belonging to the ReservedCategory under sub-section (1) shall be filled in by admittingcandidates belonging to the Scheduled Castes, Scheduled Tribes,De-notified Tribes (Vimukta Jatis), Nomadic Tribes and OtherBackward Classes, respectively, in the proportion specified in theTable below :–

________________________________________________”

114. As noted above, at the time of enactments of above 2001and 2006 Acts, list containing Other Backward Classes had been existingwhich was issued by the State Government from time to time. By GRdated 26.09.2008, the State of Maharashtra extended the list of OBCto include 346 castes. We have already noticed that the MaharashtraState Reservation (of seats for admission in educational institutions inthe State and for appointments or posts in the public services under theState) for Educationally and Socially Backward Category (ESBC) Act,2014 was enacted by the State Legislature which received the assent ofthe Governor on 09.01.2015. In the said Act Maratha community was

Adeclared as Educationally and Socially Backward Category (ESBC).The implementation of the Act was stayed by the High Court by itsorder dated 07.04.2015 passed in Writ Petition No.3151 of 2014 whichcontinued in operation till the writ petition was dismissed as infructuousby the impugned judgment. From the Acts 2001 and 2006 as noted above,it is clear that the percentage of reservation in the State of MaharashtraBin Public Services was 52% whereas percentage of reservation of seatsfor admission for SC and ST, De-notified Tribes and Nomadic Tribesand Other Backward Classes in Private Professional EducationalInstitutions was 50% at the time of enactment of Act, 2018. We mayalso notice certain relevant provisions of Act LXII of 2018. The PreambleCof the Act reads:

“An Act to provide for reservation of seats for admission ineducational institutions in the State and for reservation of postsfor appointments in public services and posts under the State, toSocially and Educationally Backward Classes of Citizens (SEBC)Din the State of Maharashtra for their advancement and for mattersconnected therewith or incidental thereto.

WHEREAS it is expedient to provide for reservation of seats foradmission in educational institutions in the State and for reservationof posts for appointments in public services and posts under theEState to Socially and Educationally Backward Classes of Citizens(SEBC) in the State of Maharashtra for their advancement andfor matters connected therewith or incidental thereto ; it is herebyenacted in the Sixty-ninth Year of the Republic of India, asfollows:—”F115. Section 2(1)(j) provides that Socially and EducationallyBackward 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 beGEducationally and Socially Backward Category (ESBC)inpursuance of the Maharashtra State Reservation (of seats foradmission in educational institutions in the State and forappointments or posts in the public services under the State) forEducationally and Socially Backward Category (ESBC) Act,2014.”H

116. Section 3 provides for applicability to all the directrecruitments, appointments made in public services and posts in the Statewhich is as follows:

“3. (1) This Act shall apply to all the direct recruitments,appointments made in public services and posts in the Stateexcept,—

(a) the super specialized posts in Medical, Technical andEducational field ;

(b) the posts to be filled by transfer or deputation ;

(c) the temporary appointments of less than forty-five daysduration ; and

(d) the post which is single (isolated) in any cadre or grade.

(2) This Act shall also apply, for admission in educational institutionsincluding private educational institutions, whether aided or un-aidedby the State, other than the minority educational institutions referredto in clause (1) of article 30 of the Constitution of India.

(3) The State Government shall, while entering into or renewingan agreement with any educational institution or any establishmentfor the grant of any aid as provided in the explanation to clauses(d) and (e) of section 2, respectively, incorporate condition forcompliance with the provisions of this Act, by such educationalinstitution or establishment.

(4) For the removal of doubts it is hereby declared that nothing inthis Act shall affect the reservation provided to the Other BackwardClasses under the Maharashtra State Public Services (Reservationfor Scheduled Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic Tribes, Special Backward Category andOther Backward Classes) Act, 2001 and the Maharashtra PrivateProfessional Educational Institutions (Reservation of seats foradmission for Scheduled Castes, Scheduled Tribes, De-notifiedTribes (Vimukta Jatis), Nomadic Tribes and Other BackwardClasses) Act, 2006.”

117. Section 4 deals with seats for admission in educationalinstitutions and appointments in public services and posts under the Stateor 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 theother provisions of this Act,—

(a) sixteen per cent. of the total seats in educational institutionsincluding private educational institutions, whether aided or un-aided by the State, other than minority educational institutionsreferred to in clause (1) of article 30 of the Constitution ofIndia ; and

(b) sixteen per cent. of the total appointments in directrecruitment in public services and posts under the State, shallbe separately reserved for the Socially and EducationallyBackward Classes (SEBC) including the Maratha Community:

Provided that, the above reservation shall not beapplicable to the posts reserved in favour of the ScheduledTribes candidates in the Scheduled Areas of the State underDthe Fifth Schedule to the Constitution of India as per thenotification issued on the 9th June 2014 in this behalf.

(2) The principle of Creamy Layer shall be applicable forthe purposes of reservation to the Socially and EducationallyBackward Classes (SEBC) under this Act and reservation underEthis Act shall be available only to those persons who are belowCreamy Layer.

Explanation.—For the purposes of this sub-section, theexpression “Creamy Layer” means the person falling in thecategory of Creamy Layer as declared by the Government in theFSocial Justice and Special Assistance Department, by general orspecial orders issued in this behalf, from time to time.”

118. We have already noticed that in the writ petitions filed beforethe High Court, Act, 2018 was challenged being invalid and violative ofthe provisions of the Constitution of India.

(7) Consideration of 10 Grounds urged for revisiting andreferring the judgment of Indra Sawhney to larger Bench.

119. Shri Mukul Rohtagi as well as Shri Kapil Sibal, learned seniorcounsel have submitted that judgment of Indra Sawhney needs to berevisited and refer to larger Bench of eleven Judges.

120. We shall proceed to consider the grounds given by Shri MukulRohtagi in seriatim which shall also cover the grounds raised by ShriSibal.

121. First ground of Shri Rohatgi is that it is only three Judges,Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahaiwho held that 50% reservation cannot be breached whereas other sixJudges have held that 50% can be breached, hence, majority opinion inIndra Sawhney does not hold that 50% is the ceiling limit for reservation.For considering the above submission we need to notice the opinionexpressed in each of the six judgments delivered in Indra Sawhney’scase.

122. Before we proceed to notice the relevant paragraphs of thejudgment of Indra Sawhney, we need to first notice method of cullingout the majority opinion expressed in judgment where more than onejudgments have been delivered. The Constitution Bench of this Court inRajnarain Singh vs. Chairman, Patna Administration Committee,Patna and another, AIR 1954 SC 569, had occasion to find out themajority opinion of seven-Judge Bench judgment delivered by this Courtin Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension ofLaws)Act, 1947 vs. Part ‘C’ States(Laws) Act, 1950, AIR 1951SC 332. The Constitution Bench laid down that opinion whichembodies the greatest common measures of the agreement among theBench is to be accepted the decision of the Court. Thus, for culling outthe decision of the Court in case where there are several opinions, onwhich there is greatest common measure of agreement is the decisionof the Court.123. We now revert back to the judgment of Indra Sawhney tofind out what is the greatest common measures of the agreement betweenthe Judges with regard to the reservation to the extent of 50%. JusticeB.P. Jeevan Reddy for himself, M.H. Kania, CJ, M.N.Venkatachaliah,A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservationunder Article 16(4). In paragraph 809 conclusion was recorded by theCourt that reservations contemplated under Article 16(4) should notexceed 50%. In paragraph 810 it was observed that in certain extra-ordinary circumstances, some relaxation in this strict rule of 50% maybecome imperative. Paragraphs 809 and 810 are to following effect:

“809. From the above discussion, the irresistible conclusionthat follows is that the reservations contemplated in clause (4) ofArticle 16 should not exceed 50%.

A810. While 50% shall be the rule, it is necessary not to put outof consideration certain extraordinary situations inherent in thegreat diversity of this country and the people. It might happen thatin far flung and remote areas the population inhabiting those areasmight, on account of their being out of the mainstream of nationallife and in view of conditions peculiar to and characteristical toBthem, need to be treated in different way, some relaxation in thisstrict rule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

124. Justice S. Ratnavel Pandian while delivering separatejudgment has expressed his disagreement with the proposition of fixingCthe reservation for socially and educationally backward classes at 50%as maximum limit. In paragraph 243(9) following was laid down byJustice Pandian:

“243(9) No maximum ceiling of reservation can be fixed underArticle 16(4) of the Constitution for reservation of appointmentsDor posts in favour of any backward class of citizens “in the servicesunder the State”. The decisions fixing the percentage of reservationonly 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 belowE50% of total number of seats. Paragraph 323(8) of Justice Thommen’sopinion is as follows:

“323(8) Reservation in all cases must be confined to minority ofavailable posts or seats so as not to unduly sacrifice merits. Thenumber of seats or posts reserved under Article 15 or Article 16Fmust at all times remain well below 50% of the total number ofseats or posts.”

126. Justice Kuldip Singh also in paragraph 384(i) expressed hisopinion in accord with Justice R.M. Sahai which is as follows:

“384(i) that the reservations under Article 16(4) must remain belowG50% 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 reservationshould in no case exceed 50%. Justice T.K. Thommen, Justice KuldipSingh and Justice R.M. Sahai delivered dissenting opinion.H

128. Now, we come to the judgment delivered by Justice P.B.Sawant who delivered concurring opinion. Two paragraphs of thejudgment of Justice Sawant are relevant to notice. In paragraph 518justice Sawant observed that there is no legal infirmity in keeping thereservations under clause(4) alone or under clause (4) and clause (1) ofArticle 16 together, exceeding 50%. However, validity of the extent ofexcess of reservations over 50% would depend upon the facts andcircumstances of each case. In the same paragraph Justice Sawant,however, observed that it would ordinarily be wise and nothing muchwould be lost, if the intentions of the Framers of the Constitution and theobservations of Dr. Ambedkar, on the subject be kept in mind. JusticeSawant obviously referred to speech of Dr. Ambedkar dated 30.11.1948where Dr. Ambedkar has categorically stated that reservation underArticle 16(4) shall be confined to minority of seats. However, in paragraph552 justice Sawant has recorded his answers and in answer to QuestionNo.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 agrade, cadre or service in any particular year. It is only forextraordinary reasons that this percentage may be exceeded.However, every excess over 50 per cent will have to be justifiedon valid grounds which grounds will have to be specifically madeout.”

129. The above opinion of Justice Sawant is completely in accordwith the opinion expressed by Justice B.P. Jeevan Reddy in paragraphs809 and 810. The opinion of Justice Sawant expressed in the aboveparagraph is that ordinarily, the reservations under Article 16(1) and16(4) should not exceed 50% and it is only in extra-ordinarycircumstances that this percentage may be exceeded which is also theopinion expressed by Justice B.P. Jeevan Reddy. Applying the principleof Constitution Bench of this Court in Rajnarain Singh (supra), theopinion embodies the greatest common measure of agreement betweenthe opinions expressed. Thus, the majority opinion, the ratio of judgmentof Indra Sawhney as expressed by the majority is one which is expressedin paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.The submission of Shri Mukul Rohtagi cannot be accepted that majority

Aopinion of Indra Sawhney is that 50% can be breached. The majorityopinion as noted above is that normally reservation should not exceed50% and it is only in extra-ordinary circumstances it can exceed 50%.What can be the extra-ordinary circumstances have been indicated inparagraph 810.

B130. Alternatively if we again look to the opinion in all six judgments,we notice :

(a)Justice B.P. Jeevan Reddy (for himself and three otherJudges) held in paragraph 809 that the reservationcontemplated in clause (4) of Article 16 should not exceedC50%.

(b)Justice Thommen, Justice Kuldip Singh and Justice Sahaiin their separate opinion held that reservation under Article16(4) should not exceed 50%.

131. Thus greatest common measure of agreement in six separateDjudgments delivered in Indra Sawhney is that:

(i)Reservation under Article 16(4) should not exceed 50%.

(ii)For exceeding reservation beyond 50% extraordinarycircumstance as indicated in paragraph 810 of the judgmentof Justice Jeevan Reddy should exist, for which extremeEcaution is to be exercised.

132. The above is the ratio of Indra Sawhney judgment.

133. We, thus, do not find any good ground to revisit IndraSawhney or to refer the same to larger Bench on the above groundFurged.

134. Now, we come to the second ground pressed by Shri Rohtagiis that different Judges from 1993 till date have spoken in different voiceswith regard to reservation under Article 15(4) and 16(4) which is goodground to refer Indra Sawhney to larger Bench.

135. We may notice the Constitution Bench judgment of this Courtin M.R. Balaji and others vs. State of Mysore and others, AIR1963 SC 649, in which this Court while considering Article 15(4) hadlaid down that reservation under Article 15(4) ordinarily, speakinggenerally and in broad manner special provision should be less thanH50%, how much less than 50% would depend upon the prevailing

circumstances in each case. The Constitution Bench in the above casewas considering the challenge to order passed by the State of Mysorethat 68% of the seats available for admission to the Engineering andMedical Colleges and to other technical institutions were reserved andonly 32% remain available to the merit pool. The question about theextent of the special provision which would be competent to State tomake under Article 15(4) was also examined by the Constitution Bench.The Constitution Bench speaking through Justice P.B. Gajendra Gadkarstated following in paragraph 34:“34..........A special provision contemplated by Article 15(4) likereservation of posts and appointments contemplated by Article16(4) must be within reasonable limits. The interests of weakersections of society which are first charge on the States and theCentre have to be adjusted with the interests of the community asa whole. The adjustment of these competing claims is undoubtedlya difficult matter, but if under the guise of making specialprovision, State reserves practically all the seats available in allthe colleges, that clearly would be subverting the object of Article15(4). In this matter again, we are reluctant to say definitely whatwould be proper provision to make. Speaking generally and in abroad way, special provision should be less than 50%; how muchless than 50% would depend upon the present prevailingcircumstances in each case.”

136. The Constitution Bench also after noticing the judgment ofthis Court in General Manager, Southern Railway, PersonnelOfficer(Reservation), Southern Railway vs. Rangachari, AIR 1962SC 36, observed that what is true in regard to Article 15(4) is equallytrue in Article 16(4). Following observations were made in paragraph37:

“37. ….Therefore, what is true in regard to Article 15(4) is equallytrue in regard to Article 16(4). There can be no doubt that theConstitution-makers assumed, as they were entitled to, that whilemaking adequate reservation under Article 16(4), care would betaken not to provide for unreasonable, excessive or extravagantreservation, for that would, by eliminating general competition ina large field and by creating wide-spread dissatisfaction amongstthe employees, materially affect efficiency. Therefore, like thespecial provision improperly made under Article 15(4), reservation

Amade under Article 16(4) beyond the permissible and legitimatelimits would be liable to be challenged as fraud on theConstitution. …”

137. The reservation ought to be less than 50% was spoken in theabove Constitution Bench judgment.

138. The next Constitution Bench judgment which noted thejudgment in M.R. Balaji (supra) and applied the percentage of 50% onthe carry forward rule is T. Devadasan. The first judgment in which adiscordant note with regard to 50% limit of reservation was expressed isthe judgment of this Court in State of Kerala and another vs. N.M.CThomas and others, 1976 (2) SCC 310, In the above case theConstitution Bench had occasion to examine Rule 13-AA of Kerala Stateand Subordinate Services Rules, 1958 which empower the State to grantexemption for specific period to any member or member belonging toScheduled Castes and Scheduled Tribes from passing the test referredto in Rule 13 and Rule 13-A. The State of Kerala granted exemption toDmember of SC and ST from passing of the test, N.M. Thomas, respondenthad filed writ petition in the High Court asking for declaration that theRule 13-AA as unconstitutional. The grievance of the respondent wasthat by virtue of exemption granted to members of the SC they havebeen promoted earlier than the respondent, although they had not passedEthe test. The High Court allowed the writ petition against which judgmentthe State of Kerala had come up in appeal. The appeal was allowed andRule 13-AA was held to be valid. The Constitution Bench judgment ofthe Court was delivered by Chief Justice, A.N. Ray with whom JusticeK.K. Mathew, Justice M.H. Beg, Justice V.R. Krishna Iyer and JusticeS. Murtaza Fazal Ali concurred by delivering separate opinions. TwoFJudges, namely, Justice H.R. Khanna and Justice A.C. Gupta delivereddissenting opinion. With regard to extent of reservation upto 50% onlytwo Judges, namely, Justice Fazal Ali and Justice Krishna Iyer hasexpressed the opinion. Justice Beg noticed the Constitution Benchjudgments of this Court in M.R. Balaji and T.Devadasan, which hadGheld that more than 50% reservation for backward class would violatethe principle of reasonableness. No opinion of his own was expressedby Justice Beg. Justice Fazal Ali also in his judgment had noted 50%ceiling of reservation but observed that the above is only rule of cautionand does not exhaust all categories. In paragraph 191 Justice Fazal Aliconsidered the question and following was laid down:H

“191. This means that the reservation should be within thepermissible limits and should not be cloak to fill all the postsbelonging to particular class of citizens and thus violate Article16(1) of the Constitution indirectly. At the same time clause (4) ofArticle 16 does not fix any limit on the power of the Governmentto make reservation. Since clause (4) is part of Article 16 of theConstitution it is manifest that the State cannot be allowed toindulge in excessive reservation so as to defeat the policy containedin Article 16(1). As to what would be suitable reservation withinpermissible limits will depend upon the facts and circumstancesof each case and no hard and fast rule can be laid down, nor canthis matter be reduced to mathematical formula so as to beadhered to in all cases. Decided cases of this Court have no doubtlaid down that the percentage of reservation should not exceed50 per cent. As I read the authorities, this is, however, rule ofcaution and does not exhaust all categories. Suppose for instancea State has large number of backward classes of citizens whichconstitute 80 per cent of the population and the Government, inorder to give them proper representation, reserves 80 per cent ofthe jobs for them, can it be said that the percentage of reservationis bad and violates the permissible limits of clause (4) of Article16? The answer must necessarily be in the negative. The dominantobject of this provision is to take steps to make inadequaterepresentation adequate.”139. Justice Krishna Iyer in paragraph 143 of the judgmentexpressed his concurrence with the opinion of Justice Fazal Ali thatarithmetical limit of 50% in any one year set by some earlier rulingscannot perhaps be pressed too far. Following observations were madein paragraph 143:

“143. ... I agree with my learned Brother Fazal Ali, J., in the viewthat the arithmetical limit of 50 per cent in any one year set bysome earlier rulings cannot perhaps be pressed too far. Overallrepresentation in department does not depend on recruitment ina particular year, but the total strength of cadre. I agree with hisconstruction of Article 16(4) and his view about the “carryforward” rule.

140. With regard to 50% reservation limit, above are onlyobservations made by two Hon’ble Judges in seven-Judge Constitution

ABench. It is true that Justice Fazal Ali expressed his discordant notewith the ceiling of 50% but the observations as noted above were notthe decision of the seven-Judge Constitution Bench judgment.

141. In T. Devadasn vs. Union of India and another, AIR1964 SC 179, Constitution Bench of this Court had occasion to examineBthe carry forward rule in recruitment under the Union of India. ThisCourt had noticed M.R. Balaji and held that what was laid down inM.R. Balaji would apply in the above case. Referring to M.R. Balajifollowing was laid down in paragraph 16 to the following effect:

“16. The startling effect of the carry forward rule asCmodified in 1955 would be apparent if in the illustration which wehave taken there were in the third year 50 total vacancies insteadof 100. Out of these 50 vacancies 9 would be reserved for theScheduled Castes and Tribes, adding to that, the 36 carried forwardfrom the two previous years, we would have total of 45 reservedvacancies out of 50, that is, percentage of 90. In the case beforeDus 45 vacancies have actually been filled out of which 29 havegone to members of the Scheduled Castes and Tribes on the basisof reservation permitted by the carry forward rule. This comes toabout 64.4% of reservation. Such being the result of the operationof the carry forward rule we must, on the basis of the decisionEin 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 case in whichreservation of vacancies to be filled by promotion was upheld bythis Court, Gajendragadkar, J., who delivered the majority judgmentobserved:

“It is also true that the reservation which can be madeunder Article 16(4) is intended merely to give adequaterepresentation to backward communities. It cannot be usedfor creating monopolies or for unduly or illegitimately disturbingthe legitimate interests of other employees. In exercising thepowers under Article 16(4) the problem of adequaterepresentation of the backward class of citizens must be fairlyand objectively considered and an attempt must always be madeto strike reasonable balance between the claims of backwardclasses and the claims of other employees as well as theimportant consideration of the efficiency of administration;….”

It is clear from both these decisions that the problem ofgiving adequate representation to members of backward classesenjoined by Article 16(4) of the Constitution is not to be tackledby framing general rule without bearing in mind its repercussionsfrom year to year. What precise method should be adopted forthis purpose is matter for the Government to consider. It is enoughfor us to say that while any method can be evolved by theGovernment it must strike “a reasonable balance between theclaims of the backward classes and claims of other employees”as pointed out in Balaji case [AIR 1963 SC 649].”142. In the above case Justice Subba Rao has expressed dissentingopinion. Justice Subba Rao observed that what was held in M.R. Balajicannot be applied in the case of reservation of appointment in the matterof recruitment. Following observation was made by Justice Subba Raoin paragraph 30:

“30. In the instant case, the State made provision; adoptingthe principle of “carry forward”. Instead of fixing higherpercentage in the second and third selections based upon the earlierresults, it directed that the vacancies reserved in one selection forthe said Castes and Tribes but not filled up by them but filled upby other candidates, should be added to the quota fixed for thesaid Castes and Tribes in the next selection and likewise in thesucceeding selection. As the posts reserved in the first year forthe said Castes and Tribes were filled up by non-Scheduled Casteand non-Scheduled Tribe applicants, the result was that in thenext selection the posts available to the latter was proportionatelyreduced. This provision certainly caused hardship to the individualswho applied for the second or the third selection, as the case maybe, though the non-Scheduled Castes and non-Scheduled Tribes,taken as one unit, were benefited in the earlier selection orselections. This injustice to individuals, which is inherent in anyscheme of reservation cannot, in my view, make the provision forreservation nonetheless provision for reservation.”

143. In Akhil Bharatiya Sochit Karamchari Sangh (Railway)Represented by its Assistant General Secretary on behalf of theAssociation vs. Union of India and others, (1981) 1 SCC 246,Justice O. Chinnappa Reddy observed that there is no fixed ceiling toreservation or preferential treatment to the Scheduled Castes and

AScheduled Tribes though generally reservation may not be far in excessof 50%. Following words were spoken in paragraph 135:

“135. There is no fixed ceiling to reservation or preferentialtreatment in favour of the Scheduled Castes and Scheduled Tribesthough generally reservation may not be far in excess of fifty perBcent. There is no rigidity about the fifty per cent rule which is onlya 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 Balajiobserved that percentage of reservations is not matter upon which aCcourt may pronounce with no material at hand. Following observationswere made by Justice O. Chinnappa Reddy in paragraph 57:

“57. The Balaji [M.R. Balaji v. State of Mysore, AIR 1963 SC649,Court then considered the question of the extent of the specialprovision which the State would be competent to make underArticle 15(4). ……

We should think that that is matter for experts in managementand administration. There might be posts or technical courses forwhich only the best can be admitted and others might be postsand technical courses for which minimum qualification wouldalso serve. The percentage of reservations is not matter uponwhich court may pronounce with no material at hand. For acourt to say that reservations should not exceed 40 per cent 50per cent or 60 per cent, would be arbitrary and the Constitutiondoes 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 broad way aspecial provision should be less than 50 per cent, and how muchless than 50 per cent would depend upon the relevant prevailingcircumstances in each case, the Court confessed: “In this matteragain, we are reluctant to say definitely what would be properprovision to make.” All that the Court would finally say was thatin the circumstances of the case before them, reservation of 68per cent was inconsistent with Article 15(4) of the Constitution.We are not prepared to read Balaji [M.R. Balaji v. State ofMysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439] as arbitrarilylaying 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 contrary opinion to one which wasexpressed by Justice O. Chinnappa Reddy in paragraph 149. JusticeVenkataramiah held that 50% rule has not been unsettled by the majorityin N.M. Thomas. In paragraph 149 following was laid down:

“149. After carefully going through all the seven opinions in theabove case, it is difficult to hold that the settled view of this Courtthat the reservation under Article 15(4) or Article 16(4) could notbe more than 50% has been unsettled by majority on the Benchwhich decided this case.”

146. The reference of Judges, who spoke in different voices arethe judgments as noted above. It is relevant to notice that neither inN.M. Thomas nor in K Basant case the decision of the Court wasto disapprove 50% ceiling as fixed by M.R. Balaji. It is although truethat Justice Fazal Ali, Justice O.Chinnappa Reddy and Justice KrishnaIyer have expressed their doubt about the advisability of 50% rule.Another judgment which has been referred to is the judgment of thisCourt in State of Punjab and Hira Lal and others, 1970(3) SCC567, where K.S.Hegde, J. speaking for three-Judge Bench hadobserved that the question of reservation to be made is primarily matterfor the State to decide. However, no observation was made by JusticeHegde in the above case regarding M.R. Balaji case.

147. The judgment of this Court in N.M. Thomas, AkhilBharatiya Karamchari Sangh and State of Punjab and even dissentingjudgment of Justice Krishna Iyer in Devadasan and Akhil BharatiyaKaamchari Sangh have been referred to and considered by nine-JudgeConstitution Bench of this Court in Indra Sawhney. In Indra Sawhney,Justice B.P. Jeevan Reddy while considering the question No.6 notedM.R. Balaji, Devadasan, N.M. Thomas and concluded that reservationcontemplated in clause (4) of Article 16 should not exceed 50%. Afterconsidering all the above cases which according to Shri Rohtagi arediscordant notes, larger nine-Judge Constitution Bench having heldthat the reservation contemplated in clause (4) of Article 16 should notexceed 50% of earlier doubt raised by the Judges as noted above cannotbe relied any further. The larger Bench in Indra Sawhney has settledthe law after considering all earlier decisions of this Court as well asreliance of opinion of few Judges as noted and as relied by Shri Rohtagiis of no avail and cannot furnish any ground to refer judgment of IndraSawhney to larger Bench.

A148. One more judgment delivered after Indra Sawhney has beenrelied by Shri Rohtagi that is S.V. Joshi and others vs. State ofKarnataka and others, (2012) 7 SCC 41. Shri Rohtagi submits thatthis Court in S.V. Joshi in paragraph 4 referring to M.Nagaraj vs.Union of India, (2006) 8 SCC 212, held if State wants to exceed50% reservation, then it is required to base its decision on the quantifiableBdata. In paragraph 4 following was laid down:

“4. Subsequent to the filing of the above writ petitions, Articles15 and 16 of the Constitution have been amended vide theConstitution (Ninety-third Amendment) Act, 2005, and theConstitution (Eighty-first Amendment) Act, 2000, respectively,Cwhich Amendment Acts have been the subject-matter ofsubsequent decisions of this Court in M. Nagaraj v. Union ofIndia (2006) 8 SCC 212, and Ashoka Kumar Thakur v. Unionof India [(2008) 6 SCC 1] in which, inter alia, it has been laiddown that if State wants to exceed fifty per cent reservation,Dthen it is required to base its decision on the quantifiable data. Inthe 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 Statewants to exceed 50% reservation, then it is required to base its decisionEon quantifiable data, which is clear misreading of judgment of theConstitution Bench in M. Nagaraj. In M. Nagaraj, the ConstitutionBench has not laid down any proposition to the effect that if Statewants to exceed 50% reservation, then it is required to base its decisionon the quantifiable data. To the contrary the Constitution Bench of thisCourt in M. Nagaraj has reiterated the numerical bench mark like 50%Frule in Indra Sawhney’s case. Following observation was made by theConstitution Bench in paragraphs 120 and 122:

“120......In addition to the above requirements this Courtin Indra Sawhney [1992 Supp (3) SCC 217] has evolvednumerical benchmarks like ceiling limit of 50% based on post-Gspecific roster coupled with the concept of replacement to provideimmunity against the charge of discrimination.

122. We reiterate that the ceiling limit of 50%, the concept ofcreamy layer and the compelling reasons, namely, backwardness,inadequacy of representation and overall administrative efficiency

are all constitutional requirements without which the structure ofequality of opportunity in Article 16 would collapse.”

150. The Constitution Bench judgment of this Court in AshokKumar Thakur has also not laid down any proposition which has beenreferred in paragraph 4 of S.V. Joshi. This Court’s judgment of three-Judge Bench in S.V. Joshi case does not support the contention of ShriRohtagi.

151. In view of the foregoing discussion, we do not find anysubstance in the second ground of Shri Rohtagi that this Court’s judgmentof Indra Sawhney to be referred to larger Bench.

152. The judgment of Indra Sawhney has been followed by thisCourt in number of cases including at least in the following fourConstitution Bench judgments:

(1)Post Graduate Institute of Medical Education &Research, Chandigarh and others vs. FacultyAssociation and others;D

(2)M. Nagaraj and others vs. Union of India and others,2006(8) SCC 212;

(3)Krishna Murthy (Dr.) and others vs. Union of Indiaand anoter 2010 (7) SCC 202

Which judgment though was considering reservation underArticle 243D and 243T has applied 50% ceiling as laid downin Balaji.

(4)The Constitution Bench judgment of this Court in ChebroluLeela Prasad Rao & Ors. vs. State of A.P. & Ors.,2020(7) Scale 162, reiterated the principle as referredand reiterated that outer limit is 50% as specified in IndraSawhney’s case.

153. We move to ground Nos.3 and 4 as formulated by ShriMukul Rohtagi to make reference to the larger Bench.

154. The Constitution, the paramount law of the country has givento the Indian citizens the basic freedom and equality which are meant tobe lasting and permanent. The Constitution of India is the vehicle bywhich the goals set out in it are to be achieved. The right from primitivesociety upto the organised nations the most cherished right which all

Ahuman beings sought was the right to equality. The Preamble of ourConstitution reflects deep deliberations and precision in choosing idealand aspirations of people which shall guide all those who have to govern.Equality of status and opportunity is one of the noble objectives of theframers of the Constitution. The doctrine of equality before law is partof rule of law which pervades the Indian Constitution. Justice Y.V.BChandrachud in Smt. Indira Nehru Gandhi vs. Raj Narain, (1975)Supp. SCC 1 has referred to equality of status and opportunity as formingpart of the basic structure of the Constitution. In paragraph 664 followingwas observed:“664. I consider it beyond the pale of reasonable controversyCthat if there be any unamendable features of the Constitution onthe score that they form part of the basic structure of theConstitution, they are that: (i) Indian sovereign democratic republic;(ii) Equality of status and opportunity shall be secured to all itscitizens; (iii) The State shall have no religion of its own and allDpersons shall be equally entitled to freedom of conscience and theright freely to profess, practise and propagate religion and that(iv) the nation oil all be governed by Government of laws, not ofmen. These, in my opinion, are the pillars of our constitutionalphilosophy, the pillars, therefore, of the basic structure of theConstitution.”E155. Articles 15 and 16 of the Constitution which are facets ofright of equality were incorporated as fundamental rights to translate theideals and objectives of the Constitution and to give opportunities to thebackward class of the society so as to enable them to catch up thosewho are ahead of them. Article 15(1) and Article 16(1) of the ConstitutionFare the provisions engrafted to realise substantive equality where Articles15(4) and 16(4) are to realise the protective equality. Articles 15(1) and16(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 inIndra Sawhney in paragraph 641 has said that the equality has beenGsingle greatest craving of all human beings at all points of time. Forfinding out the objectives and the intention of the framers of theConstitution we need to refer to Constituent Assembly debates on draftArticle 10 (Article 16 of the Constitution) held on 30.11.1948 (Book 2Volume No,VII), Dr. Ambedkar’s reply on draft Article 10 has beenreferred to and quoted in all six judgments delivered in Indra SahwneyH

case. What was the objective of Article 10, 10(1) and 10(3) has beenexplained by Dr. Ambedkar which speech has been time and againreferred to remind us the objective of the above fundamental right.

156. Dr. Ambedkar referred to Article 10(1) as generic principle.Dr. Ambedkar observed that if the reservation is to be consistent on thesub-clause (1) of Article 10 it must confine to the reservation of minorityof seats. Following are the part of speech of Dr. B.R. Ambedkar in theConstituent Assembly:

“ If honourable Members will bear these facts in mind—the three principles, we had to reconcile,—they will see that nobetter formula could be produced than the one that is embodied insub-clause (3) of article 10 of the Constitution; they will find thatthe view of those who believe and hold that there shall be equalityof opportunity, has been embodied in sub-clause (1) of Article 10.It is generic principle. At the same time, as I said, we had toreconcile this formula with the demand made by certaincommunities that the administration which has now—for historicalreasons—been controlled by one community or few communities,that situation should disappear and that the others also must havean opportunity of getting into the public services. Supposing, forinstance, we were to concede in full the demand of thosecommunities who have not been so far employed in the publicservices to the fullest extent, what would really happen is, weshall be completely destroying the first proposition upon whichwe are all agreed, namely, that there shall be an equality ofopportunity. Let me give an illustration. Supposing, for instance,reservations were made for community or collection ofcommunities, the total of which came to something like 70 percent. of the total posts under the State and only 30 per cent. areretained as the unreserved. Could anybody say that the reservationof 30 per cent. as open to general competition would be satisfactoryfrom the point of view of giving effect to the first principle, namely,that there shall be equality of opportunity? It cannot be in myjudgment. Therefore the seats to be reserved, if the reservation isto be consistent with sub-clause (1) of Article 10, must be confinedto minority of seats. It is then only that the first principle couldfind its place in the Constitution and effective in operation.”

DEF

A157. The above views of Dr. Ambedkar expressed in theConstituent Assembly for balancing the draft Articles 10(1) and 10(3)equivalent to Articles 16 and 16(4) have been referred to and relied bythis Court in Indra Sawhney as well as in other cases.

158. Shri Rohtagi submits that this Court in Balaji has held sub-Bclause (4) of Article 16 as exception to Article 16(1) which was thepremise for fixing 50%. In N.M. Thomas and Indra Sawhney now itis held that Article 16 sub-clause (4) is not exception to Article 16(1), thesubmission is that in view of the above holding in N.M. Thomas andIndra Sawhney the ceiling of 50% has to go. It is true that seven-JudgeConstitution Bench in N.M. Thomas held that Article 16(4) is not anCexception to Article 16(1) which was noticed in paragraph 713 of thejudgment of Indra Sawhney. Justice B.P. Jeevan Reddy in paragraph733 said “At this stage, we see to clarify one particular aspect. Article16(1) is facet of Article 14, just as Article 14 permits reasonableclassification, so does Article 16(1)”. In paragraph 741 following wasDlaid down:“741. ....In our respectful opinion, the view taken by the majorityin Thomas [(1976) 2 SCC 310, 380] is the correct one. We toobelieve that Article 16(1) does permit reasonable classificationfor ensuring attainment of the equality of opportunity assured byEit. For assuring equality of opportunity, it may well be necessaryin certain situations to treat unequally situated persons unequally.Not doing so, would perpetuate and accentuate inequality. Article16(4) is an instance of such classification, put in to place the matterbeyond controversy. The “backward class of citizens” areclassified as separate category deserving special treatment inFthe nature of reservation of appointments/posts in the services ofthe State. Accordingly, we hold that clause (4) of Article 16 is notexception to clause (1) of Article 16. It is an instance ofclassification implicit in and permitted by clause (1)......”

159. As laid down by the Constitution Bench in Indra Sawhney,Gwe proceed on the premise that Article 16(4) is not an exception toArticle 16(1). It is also held that Article 16(4) is 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 decisiononly on the observation that Article 15(4) is exception and proviso toH

Article 15(1). Article 15(4) was referred to as special provision. Inparagraph 34 of Balaji it is also laid down that special provisioncontemplated by Article 15(4) like reservation of posts by Article 16(4)must be within the reasonable limitation. We again quote the relevantobservation from paragraph 34:

“34. ...That is not to say that reservation should not be adopted;reservation should and must be adopted to advance the prospectsof the weaker sections of society, but in providing for specialmeasures in that behalf care should be taken not to excludeadmission to higher educational centres to deserving and qualifiedcandidates of other communities. special provision contemplatedby Article 15(4) like reservation of posts and appointmentscontemplated by Article 16(4) must be within reasonable limits.The interests of weaker sections of society which are first chargeon the States and the Centre have to be adjusted with the interestsof the community as whole. The adjustment of these competingclaims is undoubtedly difficult matter, but if under the guise ofmaking special provision, State reserves practically all theseats available in all the colleges, that clearly would be subvertingthe object of Article 15(4). In this matter again, we are reluctantto say definitely what would be proper provision to make.Speaking generally and in broad way, special provision shouldbe less than 50%; how much less than 50% would depend uponthe present prevailing circumstances in each case...”

161. Both Shri Mukul Rohtagi and Shri Kapil Sibal submits thatconstitutional provisions contained in Articles 15 and 16 do not permitlaying down any percentage in measures to be taken under Articles15(4) and 16(4). It is submitted that fixation of percentage of 50% cannotbe said to be constitutional. We need to answer the question from wheredoes 50% rule come from?

162. The 50% rule spoken in Balaji and affirmed in IndraSawhneyis to fulfill the objective of equality as engrafted in Article 14 ofwhich Articles 15 and 16 are facets. The Indra Sawhney itself givesanswer of the question. In paragraph 807 of Indra Sawhney held thatwhat is more reasonable than to say that reservation under clause (4)shall not exceed 50% of the appointment. 50% has been said to bereasonable and it is to attain the objective of equality. In paragraph 807Justice Jeevan Reddy states:

A“807. We must, however, point out that clause (4) speaks ofadequate representation and not proportionate representation.Adequate representation cannot be read as proportionaterepresentation. Principle of proportionate representation isaccepted only in Articles 330 and 332 of the Constitution and thattoo for limited period. These articles speak of reservation ofBseats in Lok Sabha and the State legislatures in favour of ScheduledTribes and Scheduled Castes proportionate to their population,but they are only temporary and special provisions. It is thereforenot possible to accept the theory of proportionate representationthough the proportion of population of backward classes to theCtotal population would certainly be relevant. Just as every powermust be exercised reasonably and fairly, the power conferred byclause (4) of Article 16 should also be exercised in fair mannerand within reasonable limits — and what is more reasonable thanto say that reservation under clause (4) shall not exceed 50% ofthe appointments or posts, barring certain extraordinary situations

as explained hereinafter. From this point of view, the 27%reservation provided by the impugned Memorandums in favourof backward classes is well within the reasonable limits. Togetherwith reservation in favour of Scheduled Castes and ScheduledTribes, it comes to total of 49.5%. In this connection, referenceEmay be had to the Full Bench decision of the Andhra PradeshHigh Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down theenhancement of reservation from 25% to 44% for OBCs. Thesaid enhancement had the effect of taking the total reservationFunder Article 16(4) to 65%.”

163. In paragraph 808, Justice Jeevan Reddy referred to speechof Dr. Ambedkar where he said that the reservation should be confined(to minority of seats). The expression minority of seats”. Whentranslated into figure the expression less than 50% comes into operation.

164. To change the 50% limit is to have society which is notfounded on equality but based on caste rule. The democracy is an essentialfeature of our Constitution and part of our basic structure. If thereservation goes above 50% limit which is reasonable, it will be slipperyslope, the political pressure, make it hardly to reduce the same. Thus,Hanswer to the question posed is that the percentage of 50% has been

arrived at on the principle of reasonability and achieves equality asenshrined by Article 14 of which Articles 15 and 16 are facets.

165. We may notice one more submission of Shri Rohtagi in theabove context. Shri Rohtagi submits that the Constitution of India is aliving document, ideas cannot remain frozen, even the thinking of theframers of the Constitution cannot remain frozen for time immemorial.Shri Rohtagi submits that due to change in need of the society the lawshould change.

166. Justice J.M. Shalet and Justice K.N. Grover,JJ. Speaking inHis Holiness Kesavananda Bharati Sripadagalvaru vs. State ofKerala and another, (1973) 4 SCC 225, laid down following inparagraph 482 and 634:

“482. These petitions which have been argued for verylong time raise momentus issues of great constitutional importance.Our Constitution is unique, apart from being the longest in theworld. It is meant for the second largest population with diversepeople speaking different languages and professing varyingreligions. It was chiselled and shaped by great political leadersand legal luminaries, most of whom had taken an active part inthe struggle for freedom from the British yoke and who knewwhat domination of foreign rule meant in the way of deprivationof basic freedoms and from the point of view of exploitation ofthe millions of Indians. The Constitution is an organic documentwhich must grow and it must take stock of the vast socio-economicproblems, particularly, of improving the lot of the common manconsistent with his dignity and the unity of the nation.634. Every Constitution is expected to endure for longtime. Therefore, it must necessarily be elastic. It is not possible toplace the society in straightjacket. The society grows, itsrequirements change. The Constitution and the laws may have tobe changed to suit those needs. No single generation can bind thecourse of the generation to come. Hence every Constitution, wiselydrawn up, provides for its own amendment.”

167. Shri Rohtagi has placed reliance on the judgment of this Courtin K.S. Puttaswamy and another vs. Union of India and others,2017(10) SCC 1, wherein in paragraph 476 following was laid down:

A“476. However, the learned Attorney General has arguedin support of the eight-Judge Bench and the six-Judge Bench,stating that the Framers of the Constitution expressly rejected theright to privacy being made part of the fundamental rights chapterof the Constitution. While he may be right, Constituent AssemblyDebates make interesting reading only to show us what exactlyBthe Framers had in mind when they framed the Constitution ofIndia. As will be pointed out later in this judgment, our judgmentsexpressly recognise that the Constitution governs the lives of 125crore citizens of this country and must be interpreted to respond

to the changing needs of society at different points in time.”C

168. Another judgment relied by Shri Rohtagi is in Supreme CourtAdvocates-on-Record Association and others vs. Union of India,1993(4) SCC 441, wherein in paragraph 16 following has been laiddown:

“16. The proposition that the provisions of the ConstitutionDmust be confined only to the interpretation which the Framers,with the conditions and outlook of their time would have placedupon them is not acceptable and is liable to be rejected for morethan one reason — firstly, some of the current issues could nothave been foreseen; secondly, others would not have beenEdiscussed and thirdly, still others may be left over as controversialissues, i.e. termed as deferred issues with conflicting intentions.Beyond these reasons, it is not easy or possible to decipher as towhat were the factors that influenced the mind of the Framers atthe time of framing the Constitution when it is juxtaposed to thepresent time. The inevitable truth is that law is not static andFimmutable but ever increasingly dynamic and grows with theongoing passage of time.”

169. The time fleets, generations grow, society changes, valuesand needs also change by time. There can be no denial that law shouldchange with the changing time and changing needs of the society.GHowever, the proposition of law as noted above does not render anyhelp to the submission of Shri Rohtagi that in view of needs of the societywhich are changing 50% rule should be given up.

170. The constitutional measures of providing reservation, givingconcessions and other benefits to backward classes including sociallyH

and educationally backward class are all affirmative measures. We havecompleted more than 73 years of independence, the Maharashtra is oneof the developed States in the country which has highest share in thecountry’s GST i.e. 16%, higher share in Direct Taxes-38% and highercontribution to country’s GDP, 38.88%. The goal of the Constitutionframers was to bring caste-less society. The directive principles of theState Policy cast onerous obligation on the States to promote welfare ofthe people by securing and protecting as effectively as it may socialorder in which social justice, economic and political shall inform all theinstitutions of the national life. Providing reservation for advancement ofany socially and educationally backward class in public services is notthe only means and method for improving the welfare of backward class.The State ought to bring other measures including providing educationalfacilities to the members of backward class free of cost, giving concessionin fee, providing opportunities for skill development to enable thecandidates from the backward class to be self- reliant.171. We recall the observation made by Justice R.V. Raveendranin Ashoka Kumar Thakur vs. Union of India and others, 2008(6)SCC 1, where His Lordship held that any provision for reservation is atemporary crutch, such crutch by unnecessary prolonged use, shouldnot become permanent liability. In words of Justice Raveendranparagraph 666 is as follows:

“666. Caste has divided this country for ages. It has hamperedits growth. To have casteless society will be realisation of anoble dream. To start with, the effect of reservation may appearto perpetuate caste. The immediate effect of caste-basedreservation has been rather unfortunate. In the pre-reservationera people wanted to get rid of the backward tag—either socialor economical. But post reservation, there is tendency evenamong those who are considered as “forward”, to seek the“backward” tag, in the hope of enjoying the benefits ofreservations. When more and more people aspire for“backwardness” instead of “forwardness” the country itselfstagnates. Be that as it may. Reservation as an affirmative actionis required only for limited period to bring forward the sociallyand educationally backward classes by giving them gentlesupportive push. But if there is no review after reasonable periodand if reservation is continued, the country will become caste

Adivided society permanently. Instead of developing united societywith diversity, we will end up as fractured society foreversuspicious of each other. While affirmative discrimination is roadto equality, care should be taken that the road does not become arut in which the vehicle of progress gets entrenched and stuck.Any provision for reservation is temporary crutch. Such crutchBby unnecessary prolonged use, should not become permanentliability. It is significant that the Constitution does not specificallyprescribe casteless society nor tries to abolish caste. But bybarring discrimination in the name of caste and by providing foraffirmative action Constitution seeks to remove the difference inCstatus on the basis of caste. When the differences in status amongcastes are removed, all castes will become equal. That will be abeginning for casteless egalitarian society.”

172. We have no doubt that all Governments take measures toimprove the welfare of weaker sections of the society but looking to theDincreased requirement of providing education including higher education

to more and more sections of society other means and measures have tobe forged. In view of the privatisation and liberalisation of the economypublic employment is not sufficient to cater the needs of all. More avenuesfor providing opportunities to members of the weaker sections of thesociety and backward class to develop skills for employment notEnecessary the public service. The objectives engrafted in our Constitutedand ideals set by the Constitution for the society and the Governmentsare still not achieved and have to be pursued. There can be no quarrelthat society changes, law changes, people changes but that does notmean that something which is good and proven to be beneficial inFmaintaining equality in the society should also be changed in the name ofchange alone.

173. In Ashoka Kumar Thakur vs. Union of India, (supra),Justice Dalveer Bhandari has also laid down that the balance should bestruck to ensure that reservation would remain reasonable. We are ofGthe considered opinion that the cap on percentage of reservation as hasbeen laid down by Constitution Bench in Indra Sawhney is with theobject of striking balance between the rights under Article 15(1) and15(4) as well as Articles 16(1) and 16(4). The cap on percentage is toachieve principle of equality and with the object to strike balance whichcannot be said to be arbitrary or unreasonable.H

174. The judgment of Indra Sawhney is being followed for morethan quarter century without there being any doubt raised in any of thejudgments 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 aNation” while discussing the topic “The judiciary and the socialrevolution” states:

“The members of the Constituent Assembly brought to the framingof the Judicial provisions of the Constitution an idealism equalledonly by that shown towards the Fundamental Rights. Indeed, theJudiciary was seen as an extension of the Rights, for it was thecourts that would give the Rights force. The Judiciary was to bean arm of the social revolution, upholding the equality that Indiansand longed for during colonial days, but had not gained-not simplybecause the regime was colonial, and perforce repressive, butlargely because the British had feared that social change wouldendanger their rule.”

176. The Constitution enjoins constitutional duty to interpret andprotect the Constitution. This Court is guardian of the Constitution.

177. We may also quote Justice Mathew, in KeshavanandaBharati (Supra), where he reiterated that judicial function is bothcreation and application of law. The principle of Indra Sawhney is bothcreation application of law. In paragraph, 1705, Justice Mathew says: -

“1705. The judicial function is, like legislation, both creationand application of law. The judicial function is ordinarily determinedby the general norms both as to procedure and as to the contentsof the norm to be created, whereas legislation is usually determinedby the Constitution only in the former respect. But that is adifference in degree only. From dynamic point of view, theindividual norm created by the judicial decision is stage in aprocess beginning with the establishment of the first Constitution,continued by legislation and customs, and leading to the judicialdecisions. The Court not merely formulates already existing lawalthough it is generally asserted to be so. It does not only ‘seek’and ‘find’ the law existing previous to its decision, it does notmerely pronounce the law which exists ready and finished priorto its pronouncement. Both in establishing the presence of the

Aconditions and in stipulating the sanction, the judicial decision hasa constitutive character. The law-creating function of the courtsis especially manifest when the judicial decision has the characterof precedent, and that means when the judicial decision createsa general norm. Where the courts are entitled not only to applypre-existing substantive law in their decisions, but also to createBnew law for concrete cases, there is comprehensible inclinationto give these judicial decisions the character of precedents. Withinsuch legal system, courts are legislative organs in exactly thesame sense as the organ which is called the legislator in the

narrower and ordinary sense of the term…””C178. In All India Reporter Karamchari Sangh and others vs.All India Reporter Limited and others, 1988 Supp SCC 472, athree-Judge Bench speaking through Justice Venkataramiah held thatthe decisions of the Supreme Court which is Court of record, constitutea source of law apart from being binding precedent under Article 141.DFollowing was laid down in paragraph 11:“11. ....Article 141 of the Constitution provides that thelaw declared by Supreme Court shall be binding on all courts withinthe territory of India. Even apart from Article 141 of the Constitutionthe decisions of the Supreme Court, which is court of record,constitute source of law as they are the judicial precedents ofEthe 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 bythis Court is of binding character and as commandful as the law madeby legislative body or authorized delegate of such body. In paragraph 17Ffollowing was laid down:

“17. …Their Lordships’ decisions declare the existing law but donot enact any fresh law”, is not in keeping with the plenary functionof the Supreme Court under Article 141 of the Constitution, forthe Court is not merely the interpreter of the law as existing butmuch beyond that. The Court as wing of the State is by itself aGsource of law. The law is what the Court says it is. Patently theHigh Court fell into an error in its appreciation of the role of thisCourt.”

180. When the Constitution Bench in Indra Sawhney held that50% is upper limit of reservation under Article 16(4), it is the law whichHis binding under Article 141 and to be implemented.

181. The submission of Shri Kapil Sibal that the judgment of IndraSawhney is shackle to the legislature in enacting the law does notcommend us. When the law is laid down by this Court that reservationought not to exceed 50% except in extra-ordinary circumstances allauthorities including legislature and executive are bound by the said law.There is no question of putting any shackle. It is the law which is bindingon all.

182. This Court has laid down in large number of cases thatreservation in super-specialties and higher technical and in disciplineslike atomic research etc. are not to be given which is law developed inthe national interest. In paragraph 838, Indra Sawhney has noticedcertain posts where reservations are not conducive in public interest andthe national interest. Following has been held in paragraph 838:

“838. While on Article 335, we are of the opinion that thereare certain services and positions where either on account of thenature of duties attached to them or the level (in the hierarchy) atwhich they obtain, merit as explained hereinabove, alone counts.In such situations, it may not be advisable to provide forreservations. For example, technical posts in research anddevelopment organisations/departments/ institutions, in specialitiesand super-specialities in medicine, engineering and other suchcourses in physical sciences and mathematics, in defence servicesand in the establishments connected therewith. Similarly, in thecase of posts at the higher echelons e.g., Professors (in Education),Pilots in Indian Airlines and Air India, Scientists and Techniciansin nuclear and space application, provision for reservation wouldnot be advisable.”

182(a). If we accept the submission of the learned counsel forthe respondent to the logical extent that since there is no indication inArticles 15 and 16 certain posts cannot be reserved, no such exclusioncould have been made. The law as existing today is one which has beenlaid down in Indra Sawhney in paragraph 838 which is law spelt outfrom the constitutional provisions including Article 15 and 16.

183. What has been laid down by the Constitution Bench in IndraSawhney in paragraphs 839, 840 and 859(8) is law declared by thisCourt and is to be implemented also by all concerned. The Parliamenthas passed the Central Educational Institutions Reservation andAppointment Act, 2006 providing for reservation- 15% for SC, 7-1/2%,

A15%, 27% for other classes in Central Educational Institutions(Reservation in Admission) Act, 2006. Section 4 provides that Act not toapply in certain cases which is to the following effect:

“Section 4 of the Act specifically says that the provisionsof Section 3 shall (sic/not) apply to certain institutions. Section 4Breads as under:

“4. Act not to apply in certain cases.—The provisions ofSection 3 of this Act shall not apply to—

(a) Central Educational Institution established in the tribalareas referred to in the Sixth Schedule to the Constitution;

(b) the institutions of excellence, research institutions,institutions of national and strategic importance specified in theSchedule to this Act:

Provided that the Central Government may, as and whenconsidered necessary, by notification in the Official Gazette, amendDthe Schedule;

(c) Minority Educational Institution as defined in this Act;

(d) course or programme at high levels of specialisation,including at the post-doctoral level, within any branch or study orEfaculty, which the Central Government may, in consultation withthe appropriate authority, specify.”

184. Exclusion of reservation in above Parliamentary enactmentclearly indicates that law declared by Indra Sawhney in paragraphs839, 840 and 859 as noted above is being understood as law and beingFimplemented, this reinforces our view that ceiling limit of 50% forreservation as approved by Indra Sawhney’s case is law within themeaning of Article 141 and is to be implemented by all concerned.

185. In view of the above discussion, ground Nos. 3 and 4 asurged by Shri Mukul Rohtagi do not furnish any ground to review IndraGSawhney or to refer the said judgment to the larger Constitution Bench.

REASON NO. 5

186. Shri Rohtagi submits that Indra Sawhney judgment beingjudgment on Article 16(4), its ratio cannot be applied with regard toArticle 15(4). Justice Jeevan Reddy before proceeding to answer the

questions framed clearly observed that the debates of the ConstituentAssembly on Article 16 and the decision of this Court on Articles 15 and16 and few decisions of US Supreme Court are helpful. The observationsof the Court that decision of this Court on Article 16 and Article 15 arehelpful clearly indicate that principles which have been discerned forinterpreting Article 16 may also be relevant for interpretation of Article15. Justice Jeevan Reddy has noted two early cases on Article 15namely The State of Madras versus Champakam Dorairajan, AIR1951 SC 226 and B.Venkataramana versus State of Tamil Naduand Another, AIR 1951 SC 229. Justice Jeevan Reddy in paragraph757 has observed that although Balaji was not case arising underArticle 16(4) but what is said about Article 15(4) came to be acceptedas equally good and valid for the purposes of Article 16(4). JusticeJeevan Reddy said in paragraph 757:-

“757. Though Balaji was not case arising under Article 16(4),what it said about Article 15(4) came to be accepted as equallygood and valid for the purpose of Article 16(4).The formulationsenunciated 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 Balajirelevant in this behalf. ...

(underlined by us)”

187. It was further held in paragraph 808 that clause (4) of Article16 is means of achieving the objective of equality and it is nothing butreinstatement of principle of equality enshrined in Article 14. The relevantobservation by Justice Jeevan Reddy in paragraph 808 is as follows:

“808. It needs no emphasis to say that the principle aim ofArticle 14 and 16 is equality and equality of opportunity and thatClause (4) of Article 16is but means of achieving the verysame objective. Clause (4) is special provision - though not anexception to Clause (1). Both the provisions have to be harmonisedkeeping in mind the fact that both are but the restatements of theprinciple of equality enshrined in Article 14.The provision underArticle 16(4)-conceived in the interest of certain sections of society- should be balanced against the guarantee of equality enshrinedin Clause (1) of Article 16 which is guarantee held out to everycitizen and to the entire society. It is relevant to point out that Dr.

AAmbedkar himself contemplated reservation being “confined to aminority of seats” (See his speech in Constituent Assembly, setout in para 28). No other member of the Constituent Assemblysuggested otherwise. It is, thus clear that reservation of majorityof seats was never envisaged by the founding fathers. Nor arewe satisfied that the present context requires us to depart fromBthat concept.

(underlined by us)”

188. Clause (4) of Article 15 is also special provision which isnothing but reinstatement of the principles of equality enshrined in ArticleC14. The principles which have been laid down in paragraph 808 withrespect to Article 16(4) are clearly applicable with regard to Article15(4) also. In the majority judgment of this Court in Indra Sawhney, theBalaji principle i.e. the 50 percent rule has been approved and notdeparted with. The 50 percent principle which was initially spoken of inBalaji having been approved in Indra Sawhney. We failed to see as toDhow prepositions laid down by this Court in Indra Sawhney shall not beapplicable for Article 15. It has been laid down in Indra Sawhney thatexpression “Backward Class” used in Article 16(4) is wider that theexpression “Socially and Educationally Backward Class” used in Article15(5).E 189. We thus do not find any substance in submissions of MukulRohtagi that the judgment of this Court in Indra Sawhney need not beapplied in reference to Article 15.

REASON -6

F190. Shri Rohtagi submits that in Indra Sawhney judgment, theimpact 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 inPart-IV of the Constitution are fundamental in governance of the country.The State while framing its policy, legislation, had to take measures toGgive effect to the Constitutional Objective as contained in Part-IV of theConstitution. The Fundamental Rights are rights which the Constitutionguarantees to the Citizen whereas Part-IV of the Constitution is theobligation of the State which it has to discharge for securing Constitutionalobjective. In the most celebrated judgment of this Court i.e.Keshavananda Bharati Sripadagalvaru and others versus State ofH

Kerala and another, (1973) 4 SCC 225, in several of the opinions, thePart-III and Part-IV of the Constitution has been dealt with. ChiefJustice S.M. Sikri,in paragraph 147 of the judgment, stated that: -

“147. It is impossible to equate the directive principles withfundamental rights though it cannot be denied that they are veryimportant. But to say that the directive principles give directiveto take away fundamental rights in order to achieve what isdirected by the directive principles seems to me contradiction interms.”

191. In the same judgment, Justice Hegde and MukherjeaJ.J, held that Fundamental Rights and the Directive Principles of StatePolicy constitute the conscience of our Constitution. Following was statedin paragraph 712: -

“712. No one can deny the importance of the Directive Principles.The Fundamental Rights and the Directive Principles constitutethe ‘conscience’ of our Constitution. The purpose of theFundamental Rights is to create an egalitarian society, to free allcitizens from coercion or restriction by society and to make libertyavailable for all. The purpose of the Directive Principles is to fixcertain social and economic goals for immediate attainment bybringing about non-violent social revolution. Through such socialrevolution the Constitution seeks to fulfil the basic needs of thecommon man and to change the structure of bur society. It aimsat making the Indian masses free in the positive sense.”

192. The Constitution Bench of this Court in Minerva Mills limitedand others versus Union of India and others, (1980) 3 SCC 625,has also elaborately dealt both Fundamental Rights and DirectivePrinciples of State Policy. The question which arose before theConstitution bench in context of Fundamental Rights and DirectivePrinciples of State Policy was noticed by Justice Chandrachud, C.J.,in paragraph 40 as:-

“40. The main controversy in these petitions centres round thequestion whether the directive principles of State policy containedin Part IV can have primacy over the fundamental rights conferredby Part III of the Constitution. That is the heart of the matter.Every other consideration and all other contentions are in the natureof by-products of that central theme of the case. The competing

Aclaims of parts III and IV constitute the pivotal point of the casebecause, Article 31C as amended by section 4 of the 42ndAmendment provides in terms that law giving effect to anydirective principle cannot be challenged as void on the groundthat it violates the rights conferred by Article 14 or The 42ndAmendment by its section 4thus subordinates the fundamentalBrights conferred by Articles 14 and 19 to the directive principles.”

193. It was held that both Part-III and Part-IV of the Constitutionare two kinds of State’s obligation i.e. negative and positive. The harmonyand balance between Fundamental Rights and Directive Principles ofState Policy is an essential feature of the Basic Structure of theCConstitution. Justice Chandrachud elaborating the relation betweenPart-III and Part-IV stated in paragraph 57: -

“57. This is not mere semantics. The edifice of our Constitution isbuilt upon the concepts crystallised in the Preamble. We resolvedto constitute ourselves into Socialist State which carried with itDthe obligation to secure to our people justice-social, economic andpolitical. We, therefore, put part IV into our Constitution containingdirective principles of State policy which specify the socialisticgoal to be achieved. We promised to our people democraticpolity which carries with it the obligation of securing to the peopleEliberty of thought, expression, belief, faith and worship; equalityof status and of opportunity and the assurance that the dignity ofthe individual will at all costs be preserved. We, therefore, putPart, III in our Constitution conferring those rights on the people.Those rights are not an end in themselves but are the means to anend. The end is specified in Part IV. Therefore, the rights conferredFby Art III are subject to reasonable restrictions and the Constitutionprovides that enforcement of some of them may, in stateduncommon circumstances, be suspended. But just as the rightsconferred by Part III would be without radar and compass ifthey were not geared to an ideal, in the same manner the attainmentGof the ideals set out in Part IV would become pretence fortyranny if the price to be paid for achieving that ideal is humanfreedoms. One of the faiths of our founding fathers was the purityof means. Indeed, under our law, even dacoit who has committeda murder cannot be put to death in the 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 setout in Part IV have, therefore, to be achieved without the abrogationof the means provided for by Part III. It is in this sense that PartsIII and IV together constitute the core of our Constitution andcombine to form its conscience. Anything that destroys the balancebetween the two parts will ipso facto destroy an essential elementof the basic structure of our Constitution.”

194. Article 38 of Directive Principles of State Policy oblige theState to strive to promote the welfare of the people by securing andprotecting as effectively as it may 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 stepsin promoting and giving effect to policy under Article 38 of theConstitution. Justice Jeevan Reddy in his judgment of Indra Sawhneyhas noted Article 38 and Article 46 of Part-IV of the Constitution. Inparagraph 647, Article 38 and 46 has been notice in following words: -

“647. The other provisions of the Constitution having bearing onArticle 16are Articles 38, 46 and the set of articles in Part XVI.Clause (1) of Article 38obligates the State to “strive to promotethe welfare of the people by securing and protecting as effectivelyas it may social order in which justice, social, economic andpolitical, shall inform all the institutions of the national life.”

195. The criticism mounted by Mr. Rohtagi that Indra Sawhneyjudgment does not consider the impact of Directive Principles of StatePolicy while interpreting Article 16 is thus not correct. Further in paragraph841, it has been held that there is no particular relevance of Article 38 incontext of Article 16(4). In paragraph 841, following has beenobserved: -

“841. We may add that we see no particular relevance of Article38(2) in this context. Article 16(4) is also measure measure toensure 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 inIndra Sawhney judgment. Article 39 of the Constitution enumeratescertain principles of policy to be followed by the State. Article 39 (b) and39(c) which are relevant for the present case are as follows: -

“39. Certain principles of policy to be followed by the State:-

A(b) that the ownership and control of the material resources ofthe community are so distributed as best to subserve the commongood; and

(c) that the operation of the economic system does not result inthe concentration of wealth and means of production to theBcommon detriment;”

197. We fail to see that how the measures taken under Article15(4) and 16(4) shall in any manner can be read to breach DirectivePrinciples of State Policy. Article 16(4) and 15(4) are also measures toensure equality of status besides the equality of opportunity.

C198. We thus do not find any substance in the above submissionof Mr. Mukul Rohtagi.

Ground NO. 7

199. Shri Rohtagi submits that an Eleven-Judge Bench of thisDCourt in T.M.A. Pai foundation and others versus State of Karnatakaand others, (2002) 8 SCC 481, has struck down the law laid down bythis Court in St. Stephen’s College case, (1992) 1 SCC 558 which hadheld that aided minority educational institutions although entitled topreferably admit their community candidate but intake should not bemore than 50 percent. Shri Rohtagi submits that St. Stephen’s CollegeEcase has put cap of 50 percent which was nothing but recognition ofIndra Sawhney Principle. Shri Rohtagi submits that the Eleven-JudgeBench in T.M.A. Pai Foundation case has set aside the aforesaid capof 50 percent. Mr. Rohtagi relies on paragraph 151 of Kirpal,C.J.and paragraph 338 by Rumapal, J. of the judgment, which is toFthe following effect: -

“151. The right of the aided minority institution to preferably admitstudents of its community, when Article 29(2)was applicable, hasbeen clarified by this Court over decade ago in the St. Stephen’sCollege case. While upholding the procedure for admitting students,this Court also held that aided minority educational institutionsGwere entitled to preferably admit their community candidates soas to maintain the minority character of the institution, and thatthe state may regulate the intake in this category with due regardto the area that the institution was intended to serve, but that thisintake should not be more than 50% in any case. Thus, St.HStephen’s endeavoured to strike balance between the two

Articles. Though we accept the ratio of St. Stephen’s, which hasheld the field for over decade, we have compelling reservationsin accepting the rigid percentage stipulated therein. As Article 29and Article 30 apply not only to institutions of higher education butalso to schools, ceiling of 50% would not be proper. It will bemore appropriate that depending upon the level of the institution,whether it be primary or secondary or high school or college,professional or otherwise, and on the population and educationalneeds of the area in which the institution is to be located the stateproperly balances the interests of all by providing for such apercentage of students of the minority community to be admitted,so as to adequately serve the interest of the community for whichthe institution was established.388. I agree with the view as expressed by the Learned ChiefJustice that there is no question of fixing percentage when theneed may be variable. I would only add that in fixing percentage,the Court in St. Stephens in fact “reserved” 50% of availableseats in minority institution for the general category ostensiblyunder Article 29(2).pertains to the right of an individual and is nota class right. It would therefore apply when an individual is deniedadmission into any educational institution maintained by the Stateor receiving aid from the State funds, solely on the basis of theground of religion, race, caste, language or any of them. It doesnot operate to create class interest or right in the sense that anyeducational institution has to set apart for non-minorities as classand without reference to any individual applicant, fixed percentageof available seats. Unless Articles 30(1) and 29(2) are allowed tooperate in their separate fields then what started with the voluntary‘sprinkling’ of outsiders, would become major inundation and alarge chunk of the right of an aided minority institution to operatefor the benefit of the community it was set up to serve, would bewashed away.”

200. T.M.A. Pai foundation case was judgment of this Courtinterpreting Article 29 and 30 of the Constitution. Article 30 of theConstitution gives Fundamental Right to the minorities to establish andadminister educational institutions. The Right of minority is different anddistinct right as recognized in the Constitution. The 93rd ConstitutionalAmendment Act, 2005, by which sub-clause (5) has been added in Article

A15 excludes the minority educational institutions referred to in clause (1)of Article 30. Sub-clause (5) of Article 15 is clear constitutional indicationthat with regard to rights of minority regarding admission to educationalinstitutions, the minority educational institutions referred to in clause (1)of Article 30 are completely excluded. What was laid down by this Courtin T.M.A. Pai foundation case, finds clear epoch in the 93[rd]BConstitutional Amendment.

201. We may refer to Three-Judge Bench judgment of thisCourt in Society for Un-aided Private Schools of Rajasthan versusUnion of India and another, (2012) 6 SCC 1, where this Court hadoccasion to consider Article 14, 15 & 16 as well as 21A of the Constitution.CShri Kapadia, C.J., speaking for majority, held that reservation of 25percent in unaided minority schools result in changing character of schoolsholding that Section 12(1)(c) of Right to Education Act, 2009 violatesright conferred under minority school under Article 31. Paragraphs 61and 62 of the judgment are as follows: -D

“61. Article 15(5)is an enabling provision and it is for the respectiveStates either to enact legislation or issue an executive instructionproviding for reservation except in the case of minority educationalinstitutions referred to in Article 30(1). The intention of theParliament is that the minority educational institution referred toEin Article 30(1) is separate category of institutions which needsprotection of Article 30(1) and viewed in that light we are of theview that unaided minority school(s) needs special protection underArticle 30(1).Article 30(1)is not conditional as Article 19(1)(g).In sense, it is absolute as the Constitution framers thought that itwas the duty of the Government of the day to protect the minoritiesFin the matter of preservation of culture, language and script viaestablishment of educational institutions for religious and charitablepurposes [See: Article 26].

62. Reservations of 25% in such unaided minority schools resultin changing the character of the schools if right to establish andGadminister such schools flows from the right to conserve thelanguage, script or culture, which right is conferred on such unaidedminority schools. Thus, the 2009 Act including Section 12(1)(c)violates the right conferred on such unaided minority schools underArticle 30(1). ”

202. From the law as laid down in T.M.A. Pai foundation Case(supra)as well as Society for Un-aided Private Schools of Rajasthan(supra), it is clear that there can be no reservation in unaided minorityschools referred in Article 30(1).

203. The 50 percent ceiling as put by this Court in St. Stephen’sCollege case was struck off by T.M.A. Pai Foundation case to giveeffect to content and meaning of Article 30. The striking of the cap of50 percent with regard to minority institutions is an entirely differentcontext and can have no bearing with regard to 50 percent cap whichhas been approved in the reservation under Article 16(4) in the IndraSawhey’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’scase.

Ground – 8

205. Shri Rohtagi relying on Constitutional 77[th] and 81[st] AmendmentActs submits that these amendments have the effect of undoing in partthe judgment of Indra Sawhney which necessitates revisiting of thejudgment. By the 77thConstitutional Amendment Act, 1995, sub-clause(4A) was inserted in Article 16 of the Constitution. The aboveConstitutional Amendment was brought to do away the law laid downby this Court in Indra Sawhney that no reservation in promotion can begranted. By virtue of sub-clause 4A of Article 16 now, the reservation inpromotion is permissible in favour of Scheduled Caste, Scheduled Tribe.The ratio of Indra Sawhney to the above effect no longer survives andthe Constitutional provisions have to be give effect to. There can be nocase for revisiting the Indra Sawhney judgment on this ground. Nowcoming to 81stConstitutional Amendment Act, 2000, by which sub-clause(4B) was inserted in Article 16. The above provision was also to undothe ratio laid down by the Indra Sawhney judgment regarding carryforward vacancies. The Constitutional Amendment laid down that inunfilled vacancies of year which was reserved shall be treated as separateclass of vacancies to be filled up in any succeeding year or years andsuch class of vacancies shall not be considered together with the vacanciesof the year in which they are being filled up for determine the ceiling of50 percent. Article (4B) is for any reference is quoted as below: -

“16(4B). Nothing in this article shall prevent the State fromconsidering any unfilled vacancies of year which are reserved

Afor being filled up in that year in accordance with any provisionfor reservation made under clause (4) or clause (4A) as separateclass of vacancies to be filled up in any succeeding year or yearsand such class of vacancies shall not be considered together withthe vacancies of the year in which they are being filled up fordetermining the ceiling of fifty per cent reservation on total numberBof vacancies of that year.”

206. The above Constitutional Amendment makes it very clearthat ceiling of 50 percent “has now received Constitutional recognition.”Ceiling of 50 percent is ceiling which was approved by this Court inIndra Sawhney’s case, thus, the Constitutional Amendment in factCrecognize the 50 percent ceiling which was approved in Indra Sawhney’scase and on the basis of above Constitutional Amendment, no case hasbeen made out to revisit Indra Sawhney.

Ground-9

D207. Shri Rohtagi submits that judgment of Indra held that theStates cannot identify the backward classes solely on the basis ofeconomic criteria as Indra Sawhney has set aside the O.M. dated13.08.1990 which provided 10 percent reservation to economically weakersection. The submission of Shri Rohtagi is that by 103rdConstitutionalAmendment, Parliament has inserted Article 15(6) and 16(6) wherebyE10 percent reservation is granted to economically weaker section.

208. It is submitted that in view of the 10 percent reservation asmandated by 103rdConstitutional amendment, 50 percent reservation aslaid down by Indra Sawhney is breached. Shri Rohtagi has furthersubmitted that the issue pertaining to 103rdConstitutional AmendmentFhas been referred to larger Bench in W.P. (Civil) No. 55 of 2019,Janhit Abhiyan versus Union of India. In view of above,We refrainourselves from making any observation regarding effect and consequenceof 103[rd] Constitutional Amendment.

Ground– 10

209. Shri Rohtagi submits that in paragraph 810 of judgment ofIndra Sawhney, certain extraordinary circumstances have been referredto which cannot be said to be cast in stone. The extra-ordinarycircumstances provided in paragraph 810 i.e. of far-flung and remotearea cannot be cast in stone and forever unchanging. He submits thatHthe same was given only by way of example and cannot be considered

exhaustive. Morever, it is geographical test which may not apply in everyState. In paragraph 810 of Indra Sawhney, Justice Jeevan Reddyprovided: -

“810. While 50% shall be the rule, it is necessary not to put out ofconsideration certain extraordinary situations inherent in the greatdiversity of this country and the people. It might happen that infar-flung and remote areas the population inhabiting those areasmight, on account of their being put of the mainstream of nationallife and in view of conditions peculiar to and characteristical tothem, need to be treated in different way, some relaxation in thisstrict rule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

210. We fully endorse the submission of Shri Rohtagi thatextraordinary situations indicated in paragraph 810 were only illustrativeand cannot be said to be exhaustive. We however do not agree with Mr.Rohtagi that paragraph 810 provided only geographical test. The useof expression “on being out of the main stream of national life”, is asocial test, which also needs to be fulfilled for case to be covered byexception.

211. We may refer to Three-Judge Bench judgment of this Courtin Union of India and others versus Rakesh Kumar and others,(2010)4 SCC 50, this Court had occasion to consider the provisions of FifthSchedule of the Constitution. Article 243B and provisions of Part-IX ofthe Constitution inserted by 73rdConstitutional Amendment Act, 1992.Reservation of seats was contemplated in the statutory provisions. Thejudgment of Indra Sawhney especially paragraph 809 and 810 werealso noted and extracted by this Court. This Court noted that even thejudgment of Indra Sawhney did recognize the need for exceptiontreatment in such circumstances. In paragraph 44, this Court held thatthe case of Panchayats in Scheduled Areas is fit case that warrantexceptional treatment with regard to reservation and the rationale ofupper ceiling of 50 percent for reservation in higher education and publicemployment can be readily extended to the domain of verticalrepresentation at the Panchayat level in the Scheduled Area. Paragraphs43 and 44 are extracted below: -

“43. For the sake of argument, even if an analogy between Article243-Dand Article 16(4) was viable, close reading of the Indra

Sawhney decision will reveal that even though an upper limit of50% was prescribed for reservations in public employment, thesaid decision did recognise the need for exceptional treatment insome circumstances. This is evident from the following words (atParas. 809, 810):

“809. From the above discussion, the irresistible conclusionthat 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 outof consideration certain extraordinary situations inherent in thegreat diversity of this country and the people. It might happenthat in far-flung and remote areas the population inhabitingthose areas might, on account of their being put of themainstream of national life and in view of conditions peculiarto and characteristical to them, need to be treated in differentway, some relaxation in this strict rule may become imperative.In doing so, extreme caution is to be exercised and specialcase made out.”

44. We believe that the case of Panchayats in Scheduled Areas isa fit case that warrants exceptional treatment with regard toreservations. The rationale behind imposing an upper ceiling ofE50% in reservations for higher education and public employmentcannot be readily extended to the domain of political representationat the Panchayat-level in Scheduled Areas. With respect toeducation and employment, parity is maintained between the totalnumber of reserved and unreserved seats in order to maintain aFpragmatic balance between the affirmative action measures andconsiderations of merit.”

212. This Court carved out one more exceptional circumstancewhich may fit in extraordinary situations as contemplated by paragraph810 in the Indra Sawhney’s case. We may also notice that theGConstitution Bench of this Court in K. Krishna Murthy and othersversus Union of India and another, (2010) 7 SCC 202. In paragraph82(iv) applied 50 percent ceiling in vertical reservation in favour ofScheduled Caste/Scheduled Tribe/ Other Backward Class in context oflocal self government. However, it was held that exception can be madein order to safeguard the interest of Scheduled Tribes located in ScheduledHArea. Paragraph 82(iv) is as follows: -“82.(iv) The upper ceiling of 50% vertical reservations in favourof SCs/STs/OBCs should not be breached in the context of localself-government. Exceptions can only be made in order tosafeguard the interests of the Scheduled Tribes in the matter oftheir representation in panchayats located in the Scheduled Areas.”

213. The judgment of the Constitution Bench in the above casehad approved the Three-Judge Bench judgment of this Court in Unionof India and others Rakesh Kumar (supra) in paragraph 67, which isto the following effect: -

“67. In the recent decision reported as Union of India v. RakeshKumar, (2010) 4 SCC 50, this Court has explained why it may benecessary to provide reservations in favour of Scheduled Tribesthat exceed 50% of the seats in panchayats located in ScheduledAreas. However, such exceptional considerations cannot beinvoked when we are examining the quantum of reservations infavour of backward classes for the purpose of local bodies locatedin general areas. In such circumstances, the vertical reservationsin favour of SC/ST/OBCs cannot exceed the upper limit of 50%when taken together. It is obvious that in order to adhere to thisupper ceiling, some of the States may have to modify theirlegislations so as to reduce the quantum of the existing quotas infavour of OBCs.”

214. We thus are of the view that extraordinary situations indicatedin paragraph 810 are only illustrative and not exhaustive but paragraph810 gives an indication as to which may fit in extra ordinary situation.

215. In view of foregoing discussions, we do not find any substancein grounds raised by Shri Rohtagi for re-visiting the judgment of IndraSawhney and referring the judgment of Indra Sawhney to largerBench.

The judgment of Indra Sawhney has been repeatedly followedby this Court and has received approval by at least four ConstitutionBenches of this Court as noted above. We also follow and reiterate theprepositions as laid down by this Court in Indra Sawhney in paragraphs809 and 810. We further observe that ratio of judgment of IndraSawhney is fully applicable in context of Article 15 of the Constitution.

(8)Principle of Stare Decisis

A216. The seven-Judge Constitution Bench judgment in KeshavMills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 hasunanimously held that before reviewing and revising its earlier decisionthe Court must itself satisfy whether it is necessary to do so in the interestof public good or for any other compelling reason and the Court mustendeavour to maintain certainty and continuity in the interpretation ofBthe law in the country.

217. In Jarnail Singh and others vs. Lachhmi Narain Guptaand others, 2018(10) SCC 396, the prayer to refer the ConstitutionBench judgment in M.Nagaraj (supra) was rejected by the ConstitutionBench relying on the law as laid down in Keshav Mills’ case. Inparagraph 9 following has been laid down:

“9. Since we are asked to revisit unanimous ConstitutionBench judgment, it is important to bear in mind the admonition ofthe Constitution Bench judgment in Keshav Mills [Keshav MillsCo. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636] . ThisCourt 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 itselfwhether in the interests of the public good or for any othervalid and compulsive reasons, it is necessary that the earlierdecision should be revised. When this Court decides questionsof law, its decisions are, under Article 141, binding on all courtswithin the territory of India, and so, it must be the constantendeavour and concern of this Court to introduce and maintainan element of certainty and continuity in the interpretation oflaw in the country. Frequent exercise by this Court of its powerto review its earlier decisions on the ground that the viewpressed before it later appears to the Court to be morereasonable, may incidentally tend to make law uncertain andintroduce confusion which must be consistently avoided. Thatis not to say that if on subsequent occasion, the Court issatisfied that its earlier decision was clearly erroneous, it shouldhesitate to correct the error; but before previous decision ispronounced to be plainly erroneous, the Court must be satisfiedwith fair amount of unanimity amongst its members that

revision of the said view is fully justified. It is not possible ordesirable, and in any case it would be inexpedient to lay downany principles which should govern the approach of the Courtin dealing with the question of reviewing and revising its earlierdecisions. It would always depend upon several relevantconsiderations: — What is the nature of the infirmity or erroron which plea for review and revision of the earlier view isbased? On the earlier occasion, did some patent aspects of thequestion remain unnoticed, or was the attention of the Courtnot drawn to any relevant and material statutory provision, orwas any previous decision of this Court bearing on the pointnot noticed? Is the Court hearing such plea fairly unanimousthat there is such an error in the earlier view? What would bethe impact of the error on the general administration of law oron public good? Has the earlier decision been followed onsubsequent occasions either by this Court or by the HighCourts? And, would the reversal of the earlier decision lead topublic inconvenience, hardship or mischief? These and otherrelevant considerations must be carefully borne in mindwhenever this Court is called upon to exercise its jurisdictionto review and revise its earlier decisions. These considerationsbecome still more significant when the earlier decision happensto be unanimous decision of Bench of five learned Judgesof this Court.”

218. The principle of stare decisis also commends us not toaccept the submissions of Shri Rohtagi. The Constitution Bench of thisCourt in State of Gujarat versus Mirzapur, Moti Kureshi Kassab Jamatand others, (2005) 8 SCC 534, explaining the principle of Staredecisis laid down following in paragraphs 111 and 118:-

“111. Stare decisis is Latin phrase which means “standby decided cases; to uphold precedents; to maintain formeradjudication”. This principle is expressed in the maxim “staredecisis et non quieta movere” which means to stand by decisionsand not to disturb what is settled. This was aptly put by LordCoke in his classic English version as “Those things which havebeen so often adjudged ought to rest in peace”. However,according to Justice Frankfurter, the doctrine of stare decisis isnot “an imprisonment of reason” (Advanced Law Lexicon, P.

Ramanatha Aiyer, 3[rd] Edn. 2005, Vol.4, P.4456). The underlyinglogic of the doctrine is to maintain consistency and avoiduncertainty. The guiding philosophy is that view which has heldthe field for long time should not be disturbed only becauseanother view is possible.

B118. The doctrine of stare decisis is generally to be adheredto, because well-settled principles of law founded on series ofauthoritative pronouncements ought to be followed. Yet, thedemands of the changed facts and circumstances, dictated byforceful factors supported by logic, amply justify the need for afresh look.”C

219. The Constitution Bench in Indra Sawhney speaking throughJustice Jeevan Reddy has held that the relevance and significance ofthe principle of stare decisis have to be kept in mind. It was reiteratedthat in law certainty, consistency and continuity are highly desirablefeatures. Following are the exact words in paragraph 683:-D

“683... Though, we are sitting in larger Bench, we have kept inmind the relevance and significance of the principle of Stare decisis.We are conscious of the fact that in law certainty, consistencyand continuity are highly desirable features. Where decisionhas stood the test of time and has never been doubted, we haveErespected it unless, of course, there are compelling and strongreasons to depart from it. Where, however, such uniformity is notfound, we have tried to answer the question on principle keepingin mind the scheme and goal of our Constitution and the materialplaced before us.”F220. What was said by Constitution Bench in Indra Sawhneyclearly binds us. Judgment of Indra Sawhney has stood the test of timeand has never been doubted. On the clear principle of stare decisis,judgment of Indra Sawhney neither need to be revisited nor referred tolarger bench of this Court.G221. The principle laid down in Keshav Mills when applied inthe facts of the present case, it is crystal clear that no case is made outto refer the case of Indra Sawhney to larger Bench.

(9)Whether Gaikwad Commission Report has made out case-of extraordinary situation for grant of separate reservationHto Maratha community exceeding 50% limit ?

222. We have noticed above that majority judgment in IndraSawhney has laid down that reservation shall not exceed 50% as rule.In the majority opinion, however, it was held that looking to the diversityof the country there may be some extra-ordinary situations wherereservation in exceptional cases is made exceeding 50% limit. In thisrespect, We may again refer to paragraphs 809 and 810 of the judgmentof 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 conclusionthat follows is that the reservations contemplated in clause (4) ofArticle 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to putout of consideration certain extraordinary situations inherent inthe great diversity of this country and the people. It might happenthat in far flung and remote areas the population inhabiting thoseareas might, on account of their being out of the mainstream ofnational life and in view of conditions peculiar to and characteristicalto them, need to be treated in different way, some relaxation inthis strict rule may become imperative. In doing so, extreme cautionis to be exercised and special case made out.”

223. The second term of reference to the State Backward ClassesCommission included specific reference, i.e., “to define exceptionalcircumstances and/or extra-ordinary situations to be applied for the benefitof reservation in the present context”. The Gaikwad Commission hasseparately and elaborately considered the above term of reference. Aseparate Chapter, Chapter-X has been devoted in the Commission’sReport. The heading of the Chapter-X is “EXCEPTIONALCIRCUMSTANCES AND/OR EXTRA ORDINARYSITUATIONS”.

224. We have already noticed the submission of Shri MukulRohtagi with reference to exceptional circumstances while consideringthe Ground No.10 as emphasized by him for referring the case to alarger Bench. We have observed that the exceptional circumstances asindicated in paragraph 810 of Indra Sawhney were not exhaustive butillustrative. The Constitution Bench, however, has given indication ofwhat could be the extra-ordinary circumstances for exceeding the limitof 50%. The Commission has noticed the majority opinion in Indra

[2021] 15 S.C.R.

ASawhney. We may notice paragraph 234-Chapter X of the Report whichis to the following effect:

“234. The Constitutional provisions relating to the reservations,either under Article 15 or Article 16 of the Constitution do notprescribe percentage of reservation to be provided to each of theBbackward classes i.e. Scheduled Castes, Scheduled Tribes andBackward Classes. However, reservations to be provided to theScheduled Castes and Scheduled Tribes has already been providedby the Government of India, i.e. 15% Scheduled Castes and 7.5%for Scheduled Tribes. Excluding that 22.5% reservations, theexisting Bus provisions for reservation for Backward Classes isC27%. Though originally Article 15 and Article 16 of the 997Constitution did not specify the percentage of the reservation fordifferent classes, the amended provisions of Article 16(4A) and(4B) specify that the State Government is not prevented fromconsidering any unfilled vacancies of year which are reservedDfor being filled up in that year in accordance with any provisionfor reservation made under Article 16(4) or (4A) as separateclass of vacancies to be filled up in any succeeding year or yearsand such class of vacancies shall not be considered together withthe vacancies of the year in which they are being filled up fordetermining the ceiling of 50% reservation on total number of

vacancies of that year. In Indra Sawhney’s case (supra), theHonourable the Supreme Court for the first time, by majority,specified ceiling for total reservation of 50%. The Honourablethe Supreme Court considered this issue while answering questionNos. 6(a), 6(b) and 6(c) formulated by it in the Judgment. TheFquestoins are produced herein under:-

“6(A) Whether the 50% rule enunciated in Balaji binding rule oronly rule of caution or rule of prudence?

6(b)Whether the 50% rule, if any, is confined to reservationsmade under Clause (4) of Article 16 or whether it takes inGall types of reservations that can be provided under Article16?

6(c)Further while applying 50% rule, if any, whether an yearshould be taken as unit or whether the total strength ofthe cadre should be looked to?”

The Honourable the Supreme Court in para 94A in answered thequestions Indra Sawhney’s case formulated by it stating thatreservation contemplated in clause (4) of Article 16 of theConstitution shall not exceed 50%. In the same para theHonourable the Supreme Court has ruled that some relaxation inthis TIRNITURE DIVIST strict rule may become imperative witha caution. “In doing so extreme caution is to be exercised and aspecial case is to be made out”. The relevant passage from para94A (of AIR) the judgment of the Honourable the Supreme Courtin Indra Sawhney’s case majority view is reproduced and thatruns as under:“While 50% shall be the rule, it is necessary not to put out ofconsideration certain extraordinary situations inherent in the greatdiversity 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 out of the main stream of national lifeand in view of conditions peculiar to and characteristical to them,need to be treated in different way, some relaxation in this strictrule may become imperative. In doing so, extreme caution is to beexercised and special case made out.”

225. After noticing the above proposition of law the Commissionproceeded to deal with the subject. In paragraph 234 the Commissionhas noted the Constitution Bench judgment in M. Nagaraj & Ors. vs.Union of India & Ors. (supra) observing that this Court has againconsidered the aspect of ceiling of 50% reservation. The Commission,however, proceeded with an assumption that in Nagaraj this Court hasruled that for relaxation, i.e., 50%, there should be quantifiable andcontemporary data. We may notice the exact words of the Commissionin paragraph 234 which is to the following effect:

“The Honourable the Supreme Court has again considered thisaspect 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 Courtconsidered the validity of inserted clauses (4A) and (4B) by wayof amendment to Article 16 of the Constitution. However, inNagaraj, the Honourable the Supreme Court has ruled that forthe relaxation i.e. ceiling of 50% there should be quantifiableand contemporary data (Emphasis supplied).”

226. The above view has again been reiterated by the Commissionn paragraph 235 to the following effect:

“235.......However, it is seen from Nagaraj that ceiling of50% reservation may be exceeded by showing quantifiablecontemporary data relating to backwardness as required by ClauseB(4) of Article 15 and Clause (4) of Article 16 of the Constitution.”

227. From the above, it is clear that the Commission read theConstitution Bench judgment of this Court in Nagaraj laying down thatceiling of 50% reservation may be exceeded by showing quantifiablecontemporary data relating to the backwardness. The above reading ofConstitution Bench judgment by the Commission was wholly incorrect.We may again notice the judgment of M. Nagaraj in the above respect.M. Nagaraj was case where Constitution (Eighty-fifth Amendment)Act, 2001 inserting Article 16(4A) was challenged on the ground thatthe 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 theState from making any provision for reservation in matters ofpromotion, with consequential seniority, to any class or classes ofposts in the services under the State in favour of the ScheduledCastes and the Scheduled Tribes which, in the opinion of the State,Eare not adequately represented in the services under the State.”

228. The Constitution Bench proceeded to consider the submissionraised by the petitioner challenging the constitutional validity of theconstitutional provision. The Constitution Bench in Nagaraj has noticedthe maximum limit of reservation in paragraphs 55 to 59. The ConstitutionFBench held that majority opinion in Indra Sawhney has held that rule of50% was binding rule and not mere rule of prudence. Paragraph 58of the Constitution Bench judgment in Nagaraj is as follows:

“58. However, in Indra Sawhney [1992 Supp (3) SCC217 the majority held that the rule of 50% laid down in Balaji [AIRG1963 SC 649] was binding rule and not mere rule of prudence.”

229. In paragraph 107, the Constitution Bench observed:

“107....If the State has quantifiable data to showbackwardness and inadequacy then the State can makereservations in promotions keeping in mind maintenance of

efficiency which is held to be constitutional limitation on thediscretion of the State in making reservation as indicated by Article335.....”

230. The Constitution Bench noted its conclusion in paragraphs121, 122 and 123. In paragraph 123 following has been laid down:

“123. However, in this case, as stated above, the main issueconcerns the “extent of reservation”. In this regard the Stateconcerned will have to show in each case the existence of thecompelling reasons, namely, backwardness, inadequacy ofrepresentation and overall administrative efficiency before makingprovision for reservation. As stated above, the impugned provisionis an enabling provision. The State is not bound to make reservationfor SCs/STs in matters of promotions. However, if they wish toexercise their discretion and make such provision, the State hasto collect quantifiable data showing backwardness of the classand inadequacy of representation of that class in publicemployment in addition to compliance with Article 335. It is madeclear that even if the State has compelling reasons, as stated above,the State will have to see that its reservation provision does notlead to excessiveness so as to breach the ceiling limit of 50% orobliterate the creamy layer or extend the reservation indefinitely.”

231. The Constitution Bench in paragraph 123 held that provisionof Article 16(4A) is an enabling provision and State is not bound to makereservation for Scheduled Castes and Scheduled Tribes in the mattersof promotion and however, if they wish to exercise their discretion andmake such provision, the State has to collect quantifiable data showingbackwardness of the class and inadequacy of representation.

232. The above observation regarding quantifiable data was inrelation to enabling power of the State to grant reservation in promotionto the Scheduled Caste and Scheduled Tribes. It is further relevant tonotice that in the last sentence of paragraph 123 it is stated: “It is madeclear that even if the State has compelling reasons, as stated above, theState will have to see that its reservation provision does not lead toexcessiveness so as to breach the ceiling limit of 50% or obliterate thecreamy layer or extend the reservation indefinitely”.

233. The Constitution Bench, thus, in the above case clearly laiddown that even reservation for promotion, ceiling of 50% limit cannot be

Abreached. The Commission has completely erred in understanding theratio of the judgment, when the Commission took the view that on thequantifiable data ceiling of 50% can be breached. There is no such ratiolaid down by this Court in M. Nagaraj. Hence, the very basis of theCommission to proceed to examine quantifiable data for exceeding thelimit of 50% is unfounded.B

234. Paragraph 236 of the Report of the Commission contains aheading “QUANTIFIABLE DATA”. It is useful to extract the entireparagraph 236 which is to the following effect:

“QUANTIFIABLE DATA:

236. As per the Census of the year 2011 population ofScheduled Castes and Scheduled Tribes in the State ofMaharashtra is 11,81% and 9.35% respectively. The percentageof Backward Classes, Maratha and Kunbi, have not been foundto have been specified in the Census of the year 2011. On theDinstructions of the Government of Maharashtra, the GokhaleInstitute of Politics and Economics, Pune, conducted Socio-Economic Caste Census. It was the survey of rural population inthe State of Maharashtra. On the detailed survey the GokhaleInstitute of Politics and Economics recorded the findings on specificEpercentage of the Maratha community with Kunbi community as35.7%. Percentage of all the reserved Backward Classes to be48.6%. The percentage of other Classes or the population, whohave not disclosed their castes, is shown to be 15.7%, From thissurvey report though it relates to the rural area, total percentageof the exiting Backward Classes, Maratha and Kunbi, who claimFto be backward, comes to 48.6% plus 35.7% equivalent to 84.3%of the total population. There is no dispute that large population ofthe Maratha and Kunbi castes as well as existing BackwardClasses are inhabitants of the rural areas. 48.6% population ofthe existing reserved category including Scheduled Castes,GScheduled Tribes and all Backward Classes have been alreadyidentified as socially and educationally backward. The Marathacaste has been identified socially, educationally and economicallybackward by this Commission. So as total 84.3% population canbe said to be of backward classes.”

235. Regarding the above noted quantifiable data, the Commissionhas recorded its reasons for reservation under Article 15(4) and 16(4) inparagraph 259. We extract here paragraph 259 to the following effect:

“259. To sum up this Commission already found above onappreciation of evidence collected/produced before it that 80% to85% of the population in the State of Maharashtra is backward.According to this Commission to accommodate the 80% to 85%backward Population within ceiling of 50% will be injustice tothem and as such it would frustrate the very purpose of thereservation policy arising out of Article 15 and Article 16 of theConstitution. In the considered opinion of this Commission, this isthe extra ordinary situation, which has been mentioned in the 2ndTerm of Reference and as required by Indra Sawhney. 80% to85% backward population adverted to above speaks aboutquantifiable contemporary data, vide Nagaraj. If, accordingly,ceiling of 50% increased efficiency in administration could not beaffected because all of them would compete. This Commissionrecord facts findings that as required by the 2nd Term of Referencethere are not only exceptional circumstances but also extra ordinarysituations, which need to be applied for the grant of the reservationin the present context in view of Clause (4) of Article 15 andClause (4) of Article 16 of the Constitution.) This will enable theGovernment of Maharashtra to make special provision for theadvancement of the Maratha community, which is certainly sociallyand educationally backward class and ultimately that will enablethe Government of Maharashtra to make provision for reservationof appointment or posts in favour of the Maratha community inthe services under the State.”

236. It is clear that the entire basis of the Commission to exceed50% limit is that since the population of backward class is between 80%to 85%, reservation to them within the ceiling 50% will be injustice tothem.

237. We may revert back to paragraph 810 where Indra Sawhneyhas given illustration which illustration is regarding certain extra-ordinarysituations. The exact words used in paragraph 810 are:

“It might happen that in far flung and remote areas thepopulation inhabiting those areas might, on account of their being

Aout of the main stream of national life and in view of conditionspeculiar to and characteristical to them, need to be treated in adifferent way, some relaxation in this strict rule may becomeimperative. In doing so, extreme caution is to be exercised and aspecial case made out.”

B238. Shri Rohtagi had submitted that the test laid down in paragraph810 is only geographical test which was an illustration. It is true that inIndra Sawhney the expression used was “far flung and remote areas”but the social test which was part of the same sentence stated “thepopulation inhabiting those areas might, on account of their being out ofthe main stream of national life and in view of conditions peculiar to andCcharacteristical to them”. Thus, one of the social conditions in paragraph810 is that being within the main stream of National Life, the case ofMaratha does not satisfy the extra-ordinary situations as indicated inparagraph 810 of Indra Sawhney. The Marathas are in the main streamof the National Life. It is not even disputed that Marathas are politicallyDdominant caste.

239. This Court in several judgments has noticed that what canbe the extra-ordinary situations as contemplated in paragraph 810 infew other cases. We have referred above the three-Judge Bench judgmentin Union of India and others vs. Rakesh Kumar and others, (2010)E4 SCC 50, where three-Judge Bench held that exceptional case of 50%ceiling can be in regard to Panchayats in scheduled areas. The abovethree-Judge Bench has also been approved and reiterated by theConstitution Bench of this Court in K.K. Krishnamurthi (supra). Inthe above cases this Court was examining the reservation in Panchayats.In the context of Part IX of the Constitution, 50% ceiling principle wasFapplied but exception was noticed.

240. In the above context, we may also notice the paragraph 163of the impugned judgment of the High Court where the High Court hasalso come to the conclusion that the Maratha has made out case ofextra-ordinary situation within the meaning of paragraph 610 of IndraGSawhney’s case. The High Court in paragraph 163 of judgment madefollowing observation:

“163...We would curiously refer to the reports, which woulddisclose that it is for the first time in form of Gaikwad Commissionthe quantifiable data has been collected and in terms of Nagaraj,

the quantifiable data, inadequacy of representation are two keyfactors which would permit exceeding of reservation of 50% bythe State. ….”

241. The High Court has endorsed the opinion of the Commissionthat when the population of backward class is 85% if they would getonly 50%, it would not be valid. In paragraph 165 of the impugnedjudgment following is the opinion of the High Court:

“165....The percentage of other classes of population whohave not disclosed their caste have been shown to be 15.7%. TheCommission therefore concludes that though the survey reportrelates to rural area, the total percentage of existing backwardclasses, Maratha and kunbi, who claim to be backward comes to48.6% + 35.7%, equivalent to 84.3% of the total population. TheCommission has also made reference to the census of the year1872 which calculates the population of Shudras and the censusreport of 1872 from which the position emerge that more than80% population was found backward in the census of 1872. Thecommission categorizes this as an extra-ordinary situation sincethe majority of the unequals are living with the minority of theequals. The figures available on record on the basis of 2011 censusdisclose that the State population is about 11.24 crores out of which3,68,83,000 is the population of OBC (VJNT, OBC SBC) Thestatistics of Ministry of Social Justice and Empowerment,Government of India has given the State wise percentage of OBCsin 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 is30%. Therefore, in terms of the population, if we look at the figuresthen the situation which emerges is that almost 85% of thepopulation is of the backward classes and to suggest that if 85%of people are backward and they get only reservation of 50%, itwould be traversity of justice. When we speak of equality – equalityof status and opportunity, then whether this disparity would bereferred to as achieving equality is the moot question. The situationof extra-ordinary circumstances as set out though by way ofillustration in Indra Sawhney would thus get attracted and thetheme of the Indian Constitution to achieve equality can be attained.

AOnce we have accepted that the Maratha community is abackward class, then it is imperative on the part of the State touplift the said community and if the State does so, and in extraordinary circumstances, exceed the limit of 50%, we feel that thisis an extra ordinary situation to cross the limit of 50%.”

B242. Again at page 453 of the judgment, the High Court reiteratedthat extra-ordinary situations have been culled out by the report sincebackward class is 85%, Maratha being 30%. Treating above to be extra-ordinary situation following observations have been made in paragraph170:

C“170...The extra-ordinary situations have been culled outas the report has declared that Maratha community comprise 30%of the population of the State and this figure is derived on thebasis of quantifiable data. The extra-ordinary situation is thereforecarved out for awarding an adequate representation to the Marathacommunity who is now declared socially, educationally andDeconomically backward. Based on the population of 30%,Commission has arrived at conclusion that the total percentageof State population which is entitled for the constitutional benefitsand advantages as listed under Article 15(4) and Article 16(4)would be around 85% and this is compelling extra-ordinaryEsituation demanding extra-ordinary solution within the constitutionalframework. ...”243. From the above, it is clear that both the Commission and theHigh Court treated the extra-ordinary situations with regard to exceeding50% for granting separate reservation to Maratha, the fact that populationFof backward class is 85% and reservation limit is only 50%. The aboveextra-ordinary circumstances as opined by the Commission and approvedby the High Court is not extra-ordinary situation as referred to inparagraph 810 of Indra Sawhney judgment. The Marathas are dominantforward class and are in the main stream of National life. The abovesituation is not an extra-ordinary situation contemplated by IndraGSawhney judgment and both Commission and the High Court fell inerror in accepting the above circumstances as extra-ordinarycircumstance for exceeding the 50 % limit. At this stage, we may noticethat what was said by Dr. Ambedkar in the Constituent Assembly debatesdated 30.11.1948 while debating draft Article 10/3 (Article 16(4) of theHConstitution). Dr. Ambedkar by giving an illustration said :

“Supposing, for instance, we were to concede in full thedemand of those communities who have not been so far employedin the public services to the fullest extent,what would really happenis, we shall be completely destroying the first proposition uponwhich we are all agreed, namely, that there shall be an equality ofopportunity. Let me give an illustration. Supposing, for instance,reservations were made for community or collection ofcommunities, the total of which came to something like 70 percent. of the total posts under the State and only 30 per cent. areretained as the unreserved. Could anybody say that the reservationof 30 per cent. As open to general competition would besatisfactory from the point of view of giving effect to the firstprinciple, namely, that there shall be equality of opportunity? Itcannot be in my judgment. Therefore the seats to be reserved, ifthe reservation is to be consistent with sub-clause (1) of Article10, must be confined to minority of seats. It is then only that thefirst principle could find its place in the Constitution and effectivein operation.”

244. The illustration given by Dr. Ambedkar that supposing 70%posts are reserved and 30% may retain as unreserved, can anybody saythat 30% as open to general competition would be satisfactory frompoint of view of giving effect to the first principle of equality, the answergiven by Dr. Ambedkar was in negative. Thus, Constituent Assembly bygiving illustration has already disapproved principle which is nowpropounded by the High Court. We cannot approve the view of the Highcourt based on the same view taken by the Commission.

245. In view of the foregoing discussion, we are of the consideredopinion that neither the Gaikwad Commission’s report nor the judgmentof the High Court has made out an extra-ordinary situation in the case ofMaratha where ceiling of 50% can be exceeded. We have already noticedthe relevant discussion and conclusion of the Commission in the aboveregard and we have found that the conclusions of the Commission areunsustainable. We, thus, hold that there is no case of extra-ordinarysituation for exceeding the ceiling limit of 50% for grant of reservationto Maratha over and above 50% ceiling of reservation.

(10)Whether the Act, 2018, as amended in 2019 grantingseparate reservation for Maratha Community by exceedingceiling of 50 percent makes out exceptional circumstancesas per the judgment of Indra Sawhney case?

A246. We have noticed above the provisions of the 2018 Act. InSection 2(j), the Maratha Community has been declared and included inthe educationally and socially backward category and under Section 4(1),16 percent (12 percent as per 2019 Amendment Act) of the total seats ineducational institutions including private educational institutions, otherthan minority educational institutions are reserved and 16 percent (13Bpercent as amended by 2019 Act) of total appointment in directrecruitment in public services and posts. Section 3(4) has further madeit clear that nothing in the Act shall effect the reservation provided toother backward classes under 2001 Act and 2006 Act. The legislativehistory of 2018 enactment is necessary to be noticed to find out theCobjects and reasons for the enactment.

247. We have noted in detail various reports of National Backwardcommissions as well as State Backward Commissions which haverepeatedly rejected the claim of Maratha to be included in OtherBackward Communities. After receipt of Bapat Commission ReportDwhich rejected the claim of Maratha to be Other Backward Classes, theState Government appointed Committee under the chairmanship of asitting Minister i.e. Narayan Rane Committee. On the basis of said RaneCommittee report, the State enacted 2014, Act, constitutional validity ofwhich Act was challenged in the High Court and was stayed by theEHigh Court vide its order dated 07.04.2015. During pendency of the writpetition, the State Government made reference to the MaharashtraBackward Class Commission in June, 2017 and one of the term of theReference was to the following effect: -

“ii) defines the exceptional circumstances and extraordinaryFsituations applied for the benefits of the reservation in thecontemporary scenario.”

248. The Maharashtra Backward Class Commission submittedits report in 15.11.2018, which report became the basis for 2018 enactment.

249. The Statements of objects and reasons for 2018 enactmentGhave been published in the Maharashtra Government Gazette dated29.11.2018 publishing the bill No. 78(LXXVIII) of 2018. Paragraph 6 ofthe Statement of object and reasons notices the earlier 2014 Act and thestay by the High Court and further reference to the Commission.Paragraph 6 of the Statement of objects and reasons is as follows:-H

“6. Thereafter, the Maharashtra State Reservation (of seatsfor admission in educational institutions in the State and forappointments or posts in the public services under the State) forEducationally and Socially Backward Category (ESBC) Act, 2014(Mah.I of 2015), for converting the said Ordinance into an Act ofthe State Legislature, was enacted on 9[th] January 2015. However,the Constitutional validity of the said Act has been challengedbefore the Hon’ble High Court. The Hon’ble High Court has stayedthe implementation of the said Act on 7[th] April, 2015.

Thereafter, the State Government has requested theMaharashtra Backward Classes Commission in june 2017, to,-

(i)Determine Contemporary Criteria and parameters to beadopted in ascertaining the social, educational andeconomic backwardness of Marathas for extendingbenefit of reservation under the constitutional provisionkeeping in focus the various judgments of the courts,Dreservation laws and constitutional mandate;

(ii)Define the exceptional circumstances and extra ordinarysituation applied for the benefits of reservation in thecontemporary scenario;

(iii)Scrutinize and inspect the quantifiable data and otherinformation which the State has submitted to Hon. Courtto investigate the backwardness of Maratha Community;

(iv)Determine the representation of Marathas in the StatePublic Employment;

(v)Ascertain the proportion of the population of the MarathaCommunity in the State by collecting the informationavailable under various sources.”

250. Paragraph 8 of the Statement of objects and reasons furtherstates that the Commission has submitted its report to the StateGovernment on 15.11.2018. Paragraph 8 refers to the conclusion andthe findings of the Commission. The conclusions and findings of theCommission have been noticed in paragraph 8 of the Statement of Objectsand reasons.

251. The report of the Maharashtra State Backward ClassCommission dated 15.11.2018 became the basis for granting separate

Areservation to the Maratha community by exceeding the 50 percent ceilinglimit. We have already in detail has dealt the report of the Commissionespecially Chapter 10 where Commission dealt with extraordinarysituation.

252. The Government after considering the report, its conclusionBand findings and recommendations formed the opinion for giving separatereservation to the Maratha community as socially and educationallybackward classes (SEBC). Paragraph 9 of the statement of objects andreasons is as follows: -

“9. The Government of Maharashtra has considered theCreport, conclusions, findings and recommendations of the saidCommission. On the basis of the exhaustive study of the saidCommission on various aspects regarding the Marathas, like publicemployment, education, social status, economical status, ratio ofpopulation, living conditions, small size of land holdings by families,percentage of suicide of farmers in the State, type of works doneDfor living, migration of families, etc., analysed by data, theGovernment is of opinion that,-

(a)The Maratha Community is socially and educationallybackward and backward class for the purposes ofArticle 15(4) and (5) and Article 16(4), on the basisEof quantifiable data showing backwardness,inadequacy in representation by the said Commission;

(b)Having regard to the exceptional circumstances andextraordinary situation generated on declaringMaratha as socially and educationally backward andFtheir consequential entitlement to the reservationsbenefits and also having regard to the backward classcommunities already included in the OBC list, ifabruptly asked to share their well establishedentitlement of reservation with 30% of MarathaGcitizenry, it would be catastrophic scenario creatingan extraordinary situation and exceptionalcircumstances, which if not swiftly and judiciouslyaddressed, may lead to unwarranted repercussionsin the well harmonious co-existence in the State, it isexpedient to relax for the percentage of reservation

by exceeding the limit of 50%, for advancement ofthem, without disturbing the existing fifty-two percentreservation currently applicable in the State, only forthose who are not in creamy layer;

(c)It is expedient to provide for 16 percent of reservationto such category;

(d)It is expedient to make special provision, by law, orthe advancement of any Socially and EducationallyBackward Classes of Citizens, in so far as admissionto educational institutions, other than the minorityeducational institutions, is concerned but such specialprovisions shall not include the reservation of seatsfor election to the Village Panchayat Samitis, ZillaParishads, Municipal Councils, MunicipalCorporations, etc;

(e)It is expedient to provide for reservation to suchclasses in admissions to educational institutionsincluding private educational institutions whetheraided or unaided by the State, other than minorityeducational institutions referred to in clause (1) ofArticle 30 of the Constitution; and in appointments inpublic services and posts under the State, excludingreservations in favour of Scheduled Tribes candidatesin the Scheduled Areas of the State under the FifthSchedule to the Constitution of India, as per thenotification issued on the 9[th] 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 ofeducational qualification for direct recruitment for thisclasses and there will definitely be competitionamongst them for such recruitment; and

(g)To enact suitable law for the above purposes.

In view of the above, the State Government isof the opinion that the persons belonging to suchcategory below the Creamy layer need special helpto advance further, in the contemporary period, so

that they can move to stage of equality with theadvanced sections of the society, wherefrom theycan proceed on their own.”

253. The statement and object of the bill clearly indicates that theState has formed the opinion on the basis of the report of the CommissionsBand had accepted the reasons given by the Commission holding thatextraordinary circumstances for exceeding the ceiling limit is made out.We have already in detail analyze and noticed the report of theCommission and have held that no extraordinary circumstances havebeen made out on the basis of reasoning given in the report. While thefoundation itself is unsustainable, the formation of opinion by the StateCGovernment to grant separate reservation to the Marathas exceeding50 percent limit is unsustainable.

254. It is well settled that all legislative Act and executive acts ofthe Government have to comply with the Fundamental Rights. The State’slegislative or any executive action passed in violation of FundamentalDRights is ultra vires to the Constitution. The 50 percent ceiling limit forreservation laid down by Indra Sawhney case is on the basis of principleof equality as enshrined in Article 16 of the Constitution. In paragraph808, Indra Sawhney laid down: -

“808. It needs no emphasis to say that the principle aimEof Article 14 and 16 is equality and equality of opportunity andthat Clause (4) of Article 16 is but means of achieving the verysame objective. Clause (4) is special provision - though not anexception to Clause (1). Both the provisions have to be harmonisedkeeping in mind the fact that both are but the restatements of theFprinciple of equality enshrined in Article 14.The provisionunder Article 16(4) -conceived in the interest of certain sectionsof society - should be balanced against the guarantee of equalityenshrined in Clause (1) of Article 16which is guarantee heldout to every citizen and to the entire society. It is relevant to pointout that Dr. Ambedkar himself contemplated reservation beingG“confined to minority of seats” (See his speech in ConstituentAssembly, set out in para 28). No other member of the ConstituentAssembly suggested otherwise. It is, thus clear that reservationof majority of seats was never envisaged by the founding fathers.Nor are we satisfied that the present context requires us to departHfrom that concept.”DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER& ANR. [ASHOK BHUSHAN, J.]

255. The Constitution Bench of this Court in M. Nagaraj (Supra)has reiterated that ceiling limit on reservation fixed at 50 percent is topreserve equality. In paragraphs 111 and 114, following was laid down: -

“111. The petitioners submitted that equality has beenrecognized to be basic feature of our Constitution. To preserveequality, balance was struck in Indra Sawhney so as to ensurethat the basic structure of Articles 14, 15 and 16 remains intactand at the same time social upliftment, as envisaged by theConstitution, stood achieved. In order to balance and structurethe equality, ceiling limit on reservation was fixed at 50% of thecadre strength; reservation was confined to initial recruitment andwas not extended to promotion...

114. In Indra Sawhney, the equality which was protectedby the rule of 50%, was by balancing the rights of the generalcategory vis-à-vis the rights of BCs en bloc consisting of OBCs,SCs and STs...”

256. We have found that no extraordinary circumstances weremade out in granting separate reservation of Maratha Community byexceeding the 50 percent ceiling limit of reservation. The Act, 2018 violatesthe principle of equality as enshrined in Article 16. The exceeding ofceiling limit without there being any exceptional circumstances clearlyviolates Article 14 and 16 of the Constitution which makes the enactmentultra vires.

257. We thus conclude that the Act, 2018 as amended in 2019,granting separate reservation for Maratha community has not made outany exceptional circumstances to exceed the ceiling of 50 percentreservation.

–(11) Gaikwad Commission Report scrutiny

258. Shri Pradeep Sancheti, learned senior counsel, appearing forthe appellant elaborating his submissions has questioned the GaikwadCommission’s Report on numerous grounds. Shri Patwalia, learned seniorcounsel, appearing for the State of Maharashtra has refuted the challenge.

259. Shri Sancheti submits that judicial scrutiny of quantifiabledata claimed by the State is an essential constitutional safeguard. Hesubmits that though the Court has to look into the report with judicialdeference but judicial review is permissible on several counts. report

Awhich violates the constitutional principle and rule of law can very wellbe interfered with in exercise of judicial review. Shri Sancheti submitsthat three National Backward Classes Commissions as well as threeState Backward Classes Commissions for the last 60 years haveconsidered the claim of Marathas to be included in Other BackwardCommunity which claim was repeatedly negatived. He submits that theBreport of National Backward Classes Commissions and State BackwardClasses Commissions could not have been ignored by GaikwardCommission in the manner it has dealt with the earlier reports. ShriSancheti submits that the National Backward Classes Commission aswell as the State Backward Classes Commission considered theCcontemporaneous data and came to conclusion at particular time.Gaikward Commission which was appointed in 2017 had no jurisdictionto pronounce that Maratha was backward community from the beginningand all earlier reports are faulty. Shri Sancheti submits that Marathacommunity is most dominant community in the State of Maharashtraweilding substantial political power. The majority of Legislature belongsDto Maratha community, out of 19 Chief Ministers of the MaharashtraState, 13 Chief Ministers were from Maratha community. Out of 25Medical Colleges in Maharashtra 17 Medical Colleges are founded/owned by the people belonging to Maratha community. In 24 of the 31District Central Cooperative Banks are occupied by the persons fromEMartha community. Out of the functioning 161 Cooperative SugarFactories in Maharashtra, in 86 Sugar Factories persons from Marathacommunity 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,Fdata result, analysis therein suffers from various inherent flaws. Thesample survey conducted by the Commission is unscientific and cannotbe taken as respective sample. The sample size is very small. Only 950persons were surveyed from Urban areas. He submits that Commissionwas loaded with members belonging to the Maratha community. The

Agency for survey (Data collections) was selected without tenderingGprocess. Out of five organisations that conducted the survey two wereheaded by persons from Maratha community. The Maratha communityhas adequate representation in public service which fact is apparentfrom data collected by the Commission itself. On the basis of datacollection by the Commission no conclusion could have been arrivedH

that Maratha community is not adequately represented in services in theState.

261. Shri Patwalia refuting the submissions of the learned counselfor the appellant submits that Gaikwad Commission has consideredconclusions arrived by all earlier Commissions and thereafter it hadrecorded its conclusion. The Commission before proceeding further haslaid down procedure for investigation. The Commission decided to conductsurvey as to collect information in respect of the social and educationalbackwardness. The Commission has surveyed to collect information ofall families in two villages in each District and the Commission decidedto collect information by selecting one Municipal Corporation and oneMunicipal Council from each of six regions of the State of Maharashtra.For the purpose of sample survey five different Agencies have beennominated. The Commission also conducted public hearing, collectedrepresentations from persons, numbering 195174. Out of representations,193651 persons are in favour of reservation to Maratha whereas 1523were in favour of reservation of Maratha community by creating separatepercentage. The Commission also recorded evidence, obtainedinformation from the Government departments and other organisations,Universities and after fixing parameters allocated 10 marks for sociallybackward class, 8 marks out of 25 marks has been allocated foreducational backwardness, 7 marks to the economically backward classand after following the marking system held that Maratha communityhas obtained more that 12.5 marks and has satisfied that it is socially,educationally and economically backward class. 784 resolutions of GramPanchayats were in favour of granting reservation of OBC. It is submittedthat the representation of Maratha community in the public services isnot equivalent to their population which is 30%. Hence, they were entitledto separate reservation to make their representation as per theirpopulation.

262. Shri Patwalia further submits that scope of judicial review ofa report of the Commission is too limited. This Court shall not substituteits opinion in place of the opinion arrived by the Commission. He submitsthat parameters of judicial review have been laid down in IndraSawhney’s case. The Court shall not sit in appeal over the opinion ofexperts. The report of Gaikwad Commission is based on sample studyof Maratha community. It is on the basis of the report of the GaikwadCommission that State Government formed opinion that Maratha

Acommunity is socially and educationally backward class and deservesa separate reservation in recognition of their legitimate claim. Inclusionof Maratha community in already existing OBC community for whom19% reservation is allowed shall have adverse effect on the OBC whoare already enjoying the reservation, hence decision was taken to grantseparate reservation.B

263. We have considered the submissions of the parties andperused the records. Before proceeding further, we need to notice theparameters of judicial review in such cases.

264. We may first notice the Constitution Bench judgment of thisCCourt 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 NaganGowda Committee which has submitted report in 1961 and made arecommendation for reservation. In pursuance of the report, the Stateof Mysore had issued an order dated 31.07.1961 deciding to reserve15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50%Dfor backward class totaling to 68% of seats available for admission tothe Engineering and Medical Colleges and to other technical institutionsin the State. The Constitution Bench elaborated the extent of judicialreview to an executive action. In paragraph 35 of the judgment, theConstitution Bench laid down following:E“35. The petitioners contend that having regard to the infirmitiesin the impugned order, action of the State in issuing the said orderamounts to fraud on the Constitutional power conferred on theState by Article 15(4). This argument is well-founded, and mustbe upheld. When it is said about an executive action that it is aFfraud on the Constitution, it does not necessarily mean that theaction is actuated by mala fides. An executive action which ispatently and plainly outside the limits of the constitutional authorityconferred on the State in that behalf is struck down as being ultravires the State’s authority. If, on the other hand, the executiveaction does not patently or overtly transgress the authorityGconferred on it by the Constitution, but the transgression is covertor latent, the said action is struck down as being fraud on therelevant constitutional power. It is in this connection that courtsoften consider the substance of the matter and not its form and inascertaining the substance of the matter, the appearance or theHcloak, or the veil of the executive action is carefully scrutinized

and if it appears that notwithstanding the appearance, the cloakor the veil of the executive action, in substance and in truth theconstitutional power has been transgressed, the impugned actionis struck down as fraud on the Constitution. ….”

264(a). From the above, it is clear that what was emphasised bythe Court is that it is the substance of the matter which has to be examinedand not its form, appearance, or the cloak, or the veil of the executiveaction has to be carefully scrutinised.

265. The next judgment which we need to notice is the judgmentof 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 ofthe Commission’s report. The Commission for the backward classes inthe State of Andhra Pradesh appointed by the State Governmentsubmitted report. The High Court held the enumeration of the backwardclasses as well as reservation invalid. The State of Andhra Pradesh filedthe appeal. The grounds of challenge were noticed in Paragraph 77 ofthe judgment. In paragraph 83-A of the judgment this Court observed:that the question to be answered is whether the materials relied in thereport are not adequate or sufficient to support its conclusion. Followinghave been laid down in paragraph 83-A:

“83-A. … But, in our opinion, the question is whether on thematerials collected by the Commission and referred to in its report,can it be stated that those materials are not adequate or sufficientto support its conclusion that the persons mentioned in the list asBackward Classes are socially and educationally backward? ....

...Therefore, the proper approach, in our opinion, should be to seewhether the relevant data and materials referred to in the reportof the Commission justify its conclusions. ….”

266. Thus, one of the parameters of scrutiny of Commission’sreport is that whether on the basis of data and materials referred to inthe report whether conclusions arrived by the Commission are justified.

267. In Indra Sawhney, one of the questions framed by theConstitution Bench to answer was question No.9, which is to the followingfact:

“9. Whether the extent of judicial review is restricted withregard to the identification of Backward Classes and the

percentage of reservations made for such classes to demonstrablyperverse identification or demonstrably unreasonablepercentage?”

268. In paragraph 842 of Indra Sawhney following was laid

down:

“842. It is enough to say on this question that there is noparticular or special standard of judicial scrutiny in matters arisingunder Article 16(4) or for that matter, under Article 15(4). Theextent and scope of judicial scrutiny depends upon the nature ofthe subject-matter, the nature of the right affected, the characterCof the legal and constitutional provisions applicable and so on.The acts and orders of the State made under Article 16(4) do notenjoy any particular kind of immunity. At the same time, we mustsay that court would normally extend due deference to the judgmentand discretion of the executive — co-equal wing — in thesematters. .....”D

269. In paragraph 798, it was held by the Constitution Bench inIndra Sawhney that opinion formed with respect to grant of reservationis not beyond judicial scrutiny altogether. The Constitution Bench referredto an earlier judgment of this Court in Barium Chemicals v. CompanyLaw Board, AIR 1967 SC 295. In the above regard paragraph 798 isEextracted for ready reference:

“798. …It does not, however, mean that the opinion formedis beyond judicial scrutiny altogether. The scope and reach ofjudicial scrutiny in matters within subjective satisfaction of theexecutive are well and extensively stated in BariumFChemicals v. Company Law Board [1966 Supp SCR 311 : AIR1967 SC 295] which need not be repeated here. Suffice it tomention that the said principles apply equally in the case of aconstitutional provision like Article 16(4) which expressly placesthe particular fact (inadequate representation) within the subjectiveGjudgment of the State/executive.”

270. Indra Sawhney having referred to the judgment of this Courtin Barium Chemicals (supra) for the scope and reach of judicialscrutiny. We need to refer the test enunciated in Barium Chemicals.The Constitution Bench in Barium Chemicals had occasion to considerthe expression “if in the opinion of the Central Government occurring in

Section 237 of Companies Act, 1956”. Justice Hidayatullah laid downthat no doubt the formation of opinion is subjective but the existence ofthe circumstances relevant to the inference as the sine quo non for actionmust be demonstrable. Following observations were made in paragraph27:

“27. …No doubt the formation of opinion is subjective but theexistence of circumstances relevant to the inference as the sinequa non for action must be demonstrable. If the action is questionedon the ground that no circumstances leading to an inference ofthe kind contemplated by the section exists, the action might beexposed to interference unless the existence of the circumstancesis made out. As my brother Shelat has put it trenchantly:

“It is not reasonable to say that the clause permitted theGovernment to say that it has formed the opinion on circumstanceswhich it thinks exist….”

Since the existence of “circumstances” is conditionfundamental to the making of an opinion, the existence of thecircumstances, if questioned, has to be proved at least prima facie.”

271. Justice Shelat with whom Justice Hidayatullah has agreed inparagraph 63 laid down following:

“63. .....Therefore, the words, “reason to believe” or “in the opinionof” do not always lead to the construction that the process ofentertaining “reason to believe” or “the opinion” is an altogethersubjective process not lending itself even to limited scrutiny bythe court that such “a reason to believe” or “opinion” was notformed on relevant facts or within the limits or as Lord Redcliffand Lord Reid called the restraints of the statute as an alternativesafeguard to rules of natural justice where the function isadministrative.”

272. Dr. Rajiv Dhavan, learned senior counsel, during hissubmission has contended that Indra Sawhney in its judgment has reliedon very weak test. He contended that the constitutional reservationsare required to be subjected to strict scrutiny tests.

273. We may also notice two-Judge Bench judgment of this Courtin B.K. Pavitra and others vs. Union of India and others, (2019)16 SCC 129, where this Court had after referring to earlier judgment

Alaid down that Committee/commission has carried out an exercise forcollecting data, the Court must be circumspect in exercising the powerof judicial review to re-evaluate the factual material on record.

274. We may also notice recent judgment of this Court in MukeshKumar and another vs. State of Uttarakhand and others, (2020) 3BSCC 1, in which one of us Justice L. Nageswara Rao speaking forthe Bench laid down following in paragraph 13:

“13. .....The Court should show due deference to the opinion ofthe State which does not, however, mean that the opinion formedis beyond judicial scrutiny altogether. The scope and reach ofCjudicial scrutiny in matters within the subjective satisfaction of theexecutive are extensively stated in Barium ChemicalsLtd. v. Company Law Board [Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295] , which need not bereiterated.”

D275. The grant of reservation under Article 15(4) or 16(4) eitherby an executive order of State or legislative measures are Constitutionalmeasures which are contemplated to fulfill the principle of equality. Themeasures taken under Article 15(4) and 16(4) thus, can be examined asto whether they violate any constitutional principle, are in conformitywith the rights under Article 14, 15 and 16 of the Constitution. The scrutinyEof measures taken by the State either executive or legislative, thus, hasto pass test of the constitutional scrutiny. It is true that the Court has tolook into the report of the Commission or Committee with deference butscrutiny to the extent as to whether any constitutional principle has beenviolated or any constitutional requirement has not been taken intoFconsideration is fully permissible. As laid down in V. Balram case (supra)the judicial scrutiny is also permissible as to whether from the materialcollected by the Commission or committee the conclusion on which theCommission has arrived is permissible and reasonable. We are consciousof the limitation on the Court’s scrutiny regarding factual data andmaterials collected by the Court. We without doubting the manner andGprocedure of collecting the data shall proceed to examine the report onthe strength of facts, materials, and data collected by the Commission.

(12)Whether the data of Marathas in public employment asfound out by Gaikwad Commission makes out cases for grantof reservation under Article 16(4) of the Constitution of IndiaHto Maratha community?

276. The reservation under Article 16(4) of the Constitution isenabling power of the State to make any provision for reservation ofappointment or posts in favour of other backward class of citizens whoin the opinion of the State is not adequately represented in the servicesunder the State. The conditions precedent for exercise of power underArticle 16(4) is that the backward class is not adequately represented inthe services under the State.

277. The Constitution Bench of this Court in Indra Sawhneywhile elaborating on Article 16(4) has held that clause (4) of Article 16speaks of adequate representation and not proportionate representationin paragraph 807: -

“807. We must, however, point out that clause (4) speaksof adequate representation and not proportionate representation.Adequate representation cannot be read as proportionaterepresentation. Principle of proportionate representation isaccepted only in Article 330 and 332 of the Constitution and thattoo for limited period. These articles speak of reservation ofseats in Lok Sabha and the State legislatures in favour of ScheduledTribes and Scheduled Castes proportionate to their population,but they are only temporary and special provisions. It is thereforenot possible to accept the theory of proportionate representationthough the proportion of population of backward classes to thetotal population would certainly be relevant...”

278. The objective behind clause (4) of Article 16 is sharing thepower by those backward classes of the society who had no opportunitiesin the past to be part of the State services or to share the power of theState. Indra Sawhney has noted the above objective in paragraph 694of the judgment (by Justice Jeevan Reddy), which is to the followingeffect: -

“694. The above material makes it amply clear that theobjective behind clause (4) of Article 16 was the sharing of Statepower. The State power which was almost exclusivelymonopolized by the upper castes i.e., few communities, wasnow sought to be made broad-based. The backward communitieswho were till then kept out of apparatus of power, were sought tobe inducted there into and since that was not practicable in thenormal course, special provision was made to effectuate thesaid objective. In short, the objective behind Article 16(4) is

Aempowerment of the deprived backward communities – to givethem share in the administrative apparatus and in the governanceof the community.”

279. The State, when provides reservation under Article 16(4) byexecutive action or by legislation, condition precedent, that the backwardBclass is not adequately represented in the service has to be fulfilled. TheConstitution Bench in M.Nagaraj (Supra) has laid down following inparagraph 102:-

“102...If the appropriate Government enacts law providingfor reservation without keeping in mind the parameters in ArticleC16(4) and Article 335 then this Court will certainly set aside andstrike down such legislation...”

280. Further in paragraph 107, M.Nagaraj laid down following:-

“107...As long as the boundaries mentioned in Article 16(4),Dnamely, backwardness, inadequacy and efficiency ofadministration are retained in Articles 16(4-A) and 16(4-B) ascontrolling factors, we cannot attribute constitutional invalidity tothese enabling provisions. However, when the State fails to identifyand implement the controlling factors then excessiveness comesin, which is to be decided on the facts of each case. In givenEcase, where excessiveness results in reverse discrimination, thisCourt has to examine individual cases and decide the matter inaccordance with law. This is the theory of “guided power”. Wemay once again repeat that equality is not violated by mereconferment of power but it is breached by arbitrary exercise ofFthe power conferred.”281. The word ‘adequate’ is relative term used in relation torepresentation of different caste and communities in public employment.The objective of Article 16(4) is that backward class should also be putin main stream and they are to be enabled to share power of the State byGaffirmative action. To be part of public service, as accepted by the Societyof today, is to attain social status and play role in governance. Thegovernance of the State is through service personnel who play keyrole in implementing government policies, its obligation and duties. TheState for exercising its enabling power to grant reservation under Article

16(4) has to identify inadequacy in representation of backward classwho is not adequately represented. For finding out adequaterepresentation, the representation of backward class has to be contrastedwith representation of other classes including forward classes. It is arelative term made in reference to representation of backward class,other caste and communities in public services. The Maratha communityis only one community among the numerous castes and communities inthe State of Maharashtra. The principal caste and communities in theState of Maharashtra consists of Scheduled Castes/Scheduled Tribes,de-notified tribes, nomadic tribes (B, and D), special backward categoryand other backward classes, general categories and the minorities.

282. large number of castes and communities are included inthe above class of castes. We may refer to number of caste andcommunities included in different groups. Few details are on the record:SC (59), ST (47) and OBC (348).

283. The above details indicate that in rough estimate in theState of Maharashtra, there are more than 500 castes and communitieswhich are living in the State and earning their livelihood.

284. For identifying inadequacy of one particular class in publicservices, balance has to be struck by the State, objective being allbackward classes which include Scheduled Caste, Scheduled Tribe tohave representation in the public services. The State cannot take anymeasure which violates the balance. The expression ‘inadequacy’ hasto be understood in above manner.

285. Now we proceed to look into the report of GaikwadCommission which has separately in detail in Chapter IX dealt with thesubject “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 ofall the Reserved Classes and Open Categories in the servicesunder the State has been sought from the State Government andother state agencies...”

287. The Commission was well aware of the Constitutionalconditions stipulated to be complied by the State for reserving the posts

Ain favour of backward class of citizens which is clear from what hasbeen stated in paragraph 215 which for ready reference is extracted asbelow: -

“215. The three Constitutional conditions stipulated to becompiled by State for reserving the posts in favour of anyBBackward Class of Citizens in the Public Services under orcontrolled by the State as also confirmed to be non-negotiable bythe judicial pronouncement from time to time are as under: -

i)If such Backward Class is not adequatelyCrepresented in the services under the State.

ii)The total reservation should not exceed 50%unless there are extra ordinary and compellingcircumstances which should be demonstrated andjustified by quantifiable data.

iii)Such reservation should be consistent with themaintenance of efficiency in the administration.”

288. The Commission from paragraph 214 to 219 have noticedthe various information received from the government and position ofEdifferent classes of society in open category and reserved category indifferent services. Table deals with strength of Marathas inGovernment/Public Services/PRIs/ULBs in the State. Table deals withnumber of Marathas and others class and communities including opencategory in Central services namely IAS, IPS, IFS and Table dealswith position of employees and officers in Mantralaya Cadre. The tablesFA and enumerated the details grade wise from Grade-A to Grade-D.We proceed to examine the issue on the basis of facts and figurescompiled by the Commission obtained from State and othersources. The figures compiled relates as on 01.08.2018. Figures havingobtained from the State, there is no question of doubting the facts andGfigures compiled by the Commission.

289. Table is part of paragraph 219 of the report. We need toextract entire table for appreciating the question.

Table A: Strength of Marathas in Government/PublicServices/PRIs/ULBs in the State

S.GradSanctioPosts VacaPost Post Posts Posts Posts Posts Posts Posts Posts Posts Posts Ne ned filled nt sanctiofilled filled filled filled filled filled filled filled filled filled o of posts in as postsned for for from from from from from from from from from servion open open MaratSCs STs VimuNomadic NomaNomaother Speciaces 01/08categorcategha kta Tribe dic dic backwl /18 y ory class Jati (NT Tribe Tribe ard backwfrom (VJ B) (NT (NT class ard out of A) C) D) (OBC) class Bopen (SBC) category posts1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 Grad83532 49190343442669 28048 9321676282142111138911440232e 2 (11.16%52263(1.66%(1.0(5.27%)4(2.78%))(8.16%)(3.((1.7%)(1.)09%)38%)34%)2 Grad83425 59504239244527 31193 9057 9038 3980(4.71976 1693(2.02235 1516371500( 1.8e 1 (10.86(10.837%) (2.373%) (2.683(1.81%6(7.64%)0%)3Grad95241078340169044857541338%) 15322%) [REDACTED]%) 2314520136%) 25967)174100 196197Ce 7 03 1 4 (10.21(6.95%) (2.43(2.11%) (2.7377(10.52%)35(16.09%) %) %) (1.(2.07%)%) 84%)4Grad3013851995710181372999959236387303691728256715588(1.8624834249996342e 0 15 (12.07(10.08(5.73%) (1.885%) (2. 79(8.29%)(2.%) %) %) 07%) (1.10%)15%)Total1420751091632906730705722120798143389023932214285333583323380 1359712927181497901Ave14.6410.096.352.272.012.521.659.572.10% D290. The relevant figures pertaining to posts filled as on 01.08.2018,includes posts filled from open category, posts filled from Maratha classesfrom out of open category posts, posts filled from SCs, posts filled fromSTs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic TribesE

290. The relevant figures pertaining to posts filled as on 01.08.2018,includes posts filled from open category, posts filled from Maratha classesfrom out of open category posts, posts filled from SCs, posts filled fromSTs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic TribesNT-B, posts filled from Nomadic Tribes NT-C,NT-D and posts filledfrom the backward classes (OBC) and posts filled from special backwardclasses(SBC). The above figures correctly represent the representationof different classes in public services.

291. Now, we take the representation of Marathas grade wise asreflected by Table A.

GRADE-A

292. Posts filled are 49,190 out of which open category posts are28,048 and posts filled from Maratha classes are 9,321. The MarathaCommunity obviously has been competing in the open category and hasobtained the post as open category candidates. The Chart also mentionedbelow each class the percentage against the column of posts filled fromMaratha class, percentage 11.16% has been mentioned. Similarly,different percentage has been mentioned against all other classes. Whenwe take the total number of posts, posts filled for open category, it is

Amentioned as 28,048 out of which Marathas are 9,321. When wecalculate the percentage of Maratha representation out of theopen category filled post, percentage comes out to 33.23 percent.Thus, the correct percentage of Maratha out of the open category postis 33.23 percent which indicates that more than 33 percent of the opencategory post has been bagged by Maratha. In Maharashtra whileBconsidering the status of reservation, we have noticed that 52 percentposts are reserved for different categories and only 48 percent posts areavailable for open category. Out of 48 percent posts available for opencategory, Marathas have obtained 33.23 percent. The percentage givenby the Commission in below Maratha class i.e. 11.86% is obviously wrongCand erroneous. The Maratha who have been competing in open categorycannot claim any post in the reserved category of 52 percent. Thus, therepresentation has to be computed taking into the seats of open category.Similarly, while computing the percentage of Marathas in Grade B, Cand D, similar mistakes have been committed by the Commission. InGrade-B, total posts filled from open category were 31193 out of whichDMarathas 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 ofwhich Marathas were 1,53,224, percentage of which comes out to 37.06percent and for Grade-D, total posts filled form open category were99592 out of which Marathas were 36387, percentage of which comesEout to 36.53 percent.

293. comparative chart of open category seats which are filled,number of posts of Maratha community and percentage in the posts isas follows: -

294. The above representation of Marathas in public services inGrade-A, B, and are adequate and satisfactory. One communitybagging such number of posts in public services is matter of pride forthe community and its representation in no manner can be said to notHadequate in public services. The Constitutional pre-condition that

backward class is not adequately represented is not fulfilled. The StateGovernment has formed opinion on the basis of the above figuressubmitted by the Gaikwad Commission. The opinion of the StateGovernment being based on the report, not fulfilling the Constitutionalrequirement for granting reservation to Maratha community becomesunsustainable.

295. Now we also look into Table and given in paragraphs220 and 224 are as follows:-

Table C: Mantralaya Cadres

FGH

A296. Table contains all details including posts filled from opencategory, posts filled from Maratha officers. Taking the post of IAS inthe open category filled are 161. Maratha IAS officers are 25, percentageof which comes to 15.52 percent. Similarly, in IPS out of 140 filled upposts, Marathas are 39, percentage of which comes to 27.85 percentand similarly, in IFS, out of 89, 16 were Marathas, percentage of whichBcomes to 17.97 percent.

297. With regard to percentage mentioned in each column, errorhas been committed by the Commission in reflecting less percentagewhich is incorrect and erroneous. Following is tabular chart of postsfilled in open category, posts filled by Maratha and percentage is asCfollows: -

298. Now, we come to Table i.e. Mantralaya Cadres. Table Calso contains the details of posts filled from open category and postsfilled from Maratha category in Grade-A, B, and D. For example,Grade-A posts filled from open category are 248 out of which MarathasEare 93, percentage of which comes out to 37.5 percent.

299. Similarly, in Grade-B, posts filled from open category are793 out of which Marathas are 415, percentage of which comes to 52.33percent.

300. For Grade-C, posts filled from open category are 808 out ofFwhich Marathas are 421, percentage of which comes to 52.10 percent.

301. For Grade-D, posts filled from open category are 333, out ofwhich 185 are Marathas, percentage of which comes to 55.55 percent.

302. The tabular chart for posts filled in open category, posts filledby Marathas and percentage is as follows: -

303. All the three tables A, and and percentage of Marathaswho have competed from open category make it abundantly clear thatthey are adequately represented in the services. The Commission althoughnoted all the figures correctly in all the columns but committed error incomputing the percentage adding posts available for open category aswell as posts available for reserved categories. Maratha cannot claim tocompete for the reserved category posts; hence, there is no question ofcomputing 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 opencategory filled posts, and the representation of Marathas in most of theGrades is above 30 percent. This is the basic error committed by theCommission in computing the percentage due to which it fell in error infinding their representation in services inadequate.

304. There is one more fundamental error which has beencommitted by the Commission. The Constitution pre-condition forproviding reservation as mandated by Article 16(4) is that the backwardclass is not adequately represented in the public services. The Commissionlabored under misconception that unless Maratha community is notrepresented equivalent to its proportion, it is not adequately represented.We may notice what has been said by the Commission in paragraph 219while recording its conclusion emerging from the analysis of informationcontained in Table A,B,C and D. In paragraph 219(c), the Commissionstates: -

“219(C)...The obvious conclusion that emerges from theabove information is that in none of the four grades the strengthof Maratha Class employees is touching the proportion to theirpopulation in the State which is based on various sources isestimated at an average 30%. So also, their presence inadministration is more at the lower grades of “C” and “D” andhave comparatively lesser existence and role in decision makinglevels of State administration in “A” and “B” grades...”

305. Indra Sawhney has categorically held that what is requiredby the State for providing reservation under Article 16(4) is notproportionate representation but adequate representation. TheCommission thus proceeds to examine the entitlement under Article 16(4)on the concept of proportionate representation in the State services whichis fundamental error committed by the Commission.

A306. The Government committed an error in accepting therecommendation without scrutinizing the report with regard to correctpercentage of representation of Marathas in services. The constitutionalprecondition as mandated by Article 16(4) being not fulfilled with regardto Maratha class, both the Gaikwad Commission’s report andconsequential legislation are unsustainable. We thus hold that MarathaBclass was not entitled for any reservation under Article 16(4) and grantof reservation under Article 16(4) is unconstitutional and cannot besustained.

(13)Social and Educational Backwardness of MarathaCommunityC

307. We have noted above that three National Backward ClassesCommissions and three State Backward Classes Commissionsconsidered the claim of Maratha community to be included in the otherbackward community but all Commissions rejected such claim ratherthey were held to be belonging to forward community. The first NationalDBackward Classes Commission on 30.03.1955, i.e., Kaka KalelkarCommission did not include Maratha commission in the list of backwardcommunities. The Commission observed:

“In Maharashtra, besides the Brahman it is the Maratha whoclaimed to be the ruling community in the villages and the PrabhuEthat dominated all other communities.

308. The second National Backward Classes Commission, i.e.,Mandal Commission in its report included Maratha community as forwardHindu community. The National Commission on Backward Classes inthe year 2000 elaborately examined the claim of Maratha community toFbe included in other backward class. The entire Commission heard theclaim of Maratha, including the members of State Backward ClassesCommission representing the claim of Maratha community. The NationalBackward Classes commission held that Maratha community is anadvanced community of the society and it cannot be included with KunbiGunder separate entity of its own. We may extract paragraphs 18, 19 and22 of the Commission’s report which are to the following effect:

“18. community with history of such origin and close associationwith the ruling classes, community, many of whose members,from its inception enjoyed important economic and political rightsand positions of power and influence and eventually became rulers

and members of ruling classes at different levels cannot in anyway be thought to have suffered any social disadvantages. TheBench is aware that in what is identified as ruling class/caste,every member of it does not rule, but the fact that those who rulecome from distinct caste community imparts certain amountof prestige and self-confidence even to those from the same caste/community who personally belong to the ruling functionaries andto the totality of that caste/community. It is significant to note thatMarathas have sought and received recognition of as of KshatriyaVarna category and therefore does not secure them status or casteupgradation Examples are Vanniakula Kshatriya in Tamil Nadu,the adoption of the umbrella name “Kshatriya” by all BCs inGujarat, Paundra- Kshatriya (an SC) in West Bengal and so on.But no community which is recognized generally, i.e. by the restof the society as of “Kshatriya” category and correctly finds placein BC list.19. The modern history of Maharashtra is witness to the continueddominance of Marathas in its society and polity as evident fromthe fact, for example, that in the post-Independence period, thecommunity provided the largest number of Chief Ministers. Duringthe full Bench hearing on 14.12.99, the Bench had put the questionto the representatives of the Maratha Community as to whydespite there being so many Chief Ministers and importantMinisters in the State, some of whom also became importantMinisters in the Centre, none of them got or moved to get Marathasincluded in the list of BCs is eloquent testimony not only of thefact that Marathas are not backward class but also of the wisdomand objectivity of these Chief Ministers. The only ground raisedby the representatives of the community in support of their claimfor inclusion in the list of BCs what the fact of the origin of Marathasfrom Kunbis and the alleged use of the name Maratha by somemembers of Kunbi caste in some areas of the State. The Benchis of the view that since there, undoubtedly, is distinct class/community Called “Maratha” and since it is obviously an advancedcommunity in society and polity as already noted, it cannot beincluded in the list of Backward Classes. The Bench cannot acceptthe claim of the representatives of the community that many knownMaratha leaders including one whose name they mentioned have

Agot caste certificates as “Kunbi” as valid ground for inclusion ofMarathas in the list of BCs with Kunbis. The Bench has no groundto believe that any known Maratha leaders would have soughtsuch certificates, nor have those who have made this allegationspresented any evidence in support of this claim. But even if, forargument’s sake, claim or argument is it does not prove thatBMaratha is the same as Kunbi or synonym of Kunbi. Leavingaside the allegations made by some of the representatives of thecommunity, the Bench is aware that some shortsighted individualsbelonging to different non-backward castes unfortunately resortto seeking and securing fake caste certificates and in the contextCof the well-known qualities of India’s administrative system,elements are not rare which entertain such requests anddeliberately issue false caste certificates. This menace, likedifferent forms of corruption, has become more and morethreatening. In certain Advices, the Commission has advised theCentral and State Governments how this menace could beDextirpated. But false caste-certificates and false caste-identitiesbased on them cannot change the reality of caste-identities asthey occur in society.”

22. In view of the above facts and position, the Bench finds thatMaratha is not socially backward community but is sociallyEadvanced and prestigious community and therefore the Requestfor Inclusion of “Maratha” in the Central List of Backward Classesfor Maharashtra along with Kunbhi should be rejected. In fact“Maratha” does not merit inclusion in the Central list of BackwardClasses for Maharashtra either jointly with “Kunbhi” or under aFseparate entity of it’s own.”

309. We may also refer now to the three State Backward ClassesCommissions appointed by the State. In the year 1961, DeshmukhCommittee appointed by the State of Maharashtra did not include theMaratha community in the list of backward communities. In the yearG2001, Khatri Commission rejected the demand of Maratha to be includedin backward class communities. On 25.07.2008, Bapat Commission inits report rejected the demand to include Maratha community in theother backward class communities by majority.

310. After the Bapat Commission’s report, the State GovernmentHhad appointed Rane Committee to be headed by Cabinet Minister who

collected data and observed that Maratha may not be socially andeducationally backward but recommended grant of reservation aseducationally and financially backward class. The National Commissionor the State Commission, when it is appointed to examine the claim of aparticular community to be included or excluded from list of otherbackward classes, it is to look into the contemporaneous data and fact.The State to inform itself of the status of particular community appointsCommissions or Committees to take affirmative measures as ordainedby the constitutional provisions of Articles 15 and 16. The relevant is thedata status of the community as existing at the time of investigation andreport.

311. This Court in Ram Singh and others vs. Union of India,(2015) 4 SCC 697, has categorically laid down in paragraph 49 that adecision which impacts the rights of many under Articles 14 and 16 ofthe Constitution must be taken on contemporaneous inputs. Followingobservations were made by two-Judge Bench of this Court in paragraph49:

“49. ......A decision as grave and important as involved in thepresent case which impacts the rights of many under Articles 14and 16 of the Constitution must be taken on the basis ofcontemporaneous inputs and not outdated and antiquated data. Infact, under Section 11 of the Act revision of the Central Lists iscontemplated every ten years. The said provision further illuminateson the necessity and the relevance of contemporaneous data tothe decision-making process.”

312. We fully endorse the above view of this Court. Any study ofCommittee or Commission is with regard to present status since objectis to take affirmative actions in present or in future to help the particularcommunity. Three National Backward Classes Commissions reports asnoted above in the year 1955, 1980 and 2000, were the reports regardingthe status of the community as was found at the relevant time. Similarly,three State Committee/Commissions in the year 1961, 2001 and 2008also were reporting the status of Marathas at the relevant time when thereport was submitted. The term of the reference of the GaikwadCommission was not to examine as to whether earlier reports of theNational Commissions for Backward Classes or Committee/Commissionsof the State earlier in not recommending Maratha to be included in OBCwere correct or not. Terms of reference which is part of the report

Aclause (1) and clause (3) clearly indicate that the Commission was tocollect contemporaneous data. Quantifiable data collected by the Statewhich have been referred in the report were of the data collected periodafter 2014. The Commission’s observations made in the report that itdoes not agree with the earlier reports cannot be approved.

313. We, however, hasten to add that it is always open to theState to collect relevant data to find out as to whether particular casteor community is to be included in the list of other backward classes orexcluded from the same despite any decision to the contrary taken earlier.The Constitution Bench in Indra Sawhney has also laid down forCperiodical review which is for the purpose and object that thosecommunities who were earlier backward and advanced should beexcluded and those communities who were earlier advanced and mighthave degraded into backward class should be included. Thus, the Statewas fully entitled to appoint backward classes commission to collectrelevant data and submit the report.D314. When in earlier period of about 60 years, right from 1955 to2008, repeatedly it was held that Maratha community is not backwardclass, Gaikwad Commission ought to have applied the test that “whathappened thereafter that now the Maratha community is to beEincluded in OBC”. The Commission has not adverted to this aspect ofthe matter. The Commission ought to have also focused on comparativeanalysis as to what happened in the recent years that Marathas havebecome backward from forward class. In this context, we may alsorefer to the judgment of this Court in Ram Singh (supra) where NationalBackward Classes Commission has rejected the claim of Jat to beFincluded in other backward communities with regard to several States.The National Commission recommended that Jat is politically dominantclass and need not to be included in OBC. The Union disregarding thesaid report had issued notification including Jat as OBC in the differentStates in the Central List. It was challenged in this Court by way of writGpetition. This Court held that the report of National Backward ClassesCommission could not have been disregarded and ought to have beengiven due weight. This Court held that Jat community is politicallyorganised class which was rightly not included in the category of otherbackward classes. In paragraph 55 following was laid down:

“55. The perception of self-proclaimed socially backwardclass of citizens or even the perception of the “advanced classes”as to the social status of the “less fortunates” cannot continue tobe constitutionally permissible yardstick for determination ofbackwardness, both in the context of Articles 15(4) and 16(4) ofthe Constitution. Neither can backwardness any longer be matterof determination on the basis of mathematical formulae evolvedby 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 inclusionsbut the gates would be opened only to permit entry of the mostdistressed. Any other inclusion would be serious abdication ofthe constitutional duty of the State. Judged by the aforesaidstandards we must hold that inclusion of the politically organisedclasses (such as Jats) in the List of Backward Classes mainly, ifnot solely, on the basis that on same parameters other groups whohave fared better have been so included cannot be affirmed.”

315. We have already noted that after the 2014 enactment, writpetition was filed in the High Court challenging 2014, enactment by whichMaratha community was declared as socially and educationally backwardclass and separate reservation was provided for. The Ordinance XIII of2014 was issued to that effect; writ petition was filed in the High Courtchallenging the Ordinance and inclusion of Maratha as other backwardcategory. The High Court elaborately heard all parties and passed adetailed interim order in Writ Petition No.2053 of 2014 on 14.11.2014where it set out various facts which were placed before the Court forstaying the Ordinance and staying the grant of separate reservation toMaratha community. We may refer to paragraph 40(e) of the orderdated 14.11.2014 of the High Court which is to the following effect:

“40. In the context of 16% reservation for Marathas upon theirclassifications as Educationally and Socially Backward Classes,he following position emerges:

..................

(e) The petitioner in Public Interest Litigation No.140 of2014 placed on record some statistics by reference to data compiledby Dr. Suhas Palshikar in the book on “Politics of Maharashtra:

ALocal Context of the Political Process:”, Editors: Suhas Palshikarand Nitin Birmal, Pratima Prakashan, 2007 which suggest that-

(I) From 1962 to 2004, from out of 2430 MLAs, 1336 MLAscorresponding to 55% were Marathas;

B(ii) Nearly 54% of the educational institutions in the State arecontrolled by Marathas.

(iii) Members of the Maratha community dominate the universitiesin the State with 60 to 75% persons in the management.

(iv) Out of 105 sugar factories, almost 86 are controlled byCMarathas. About 23 district cooperative banks have Marathas astheir Chairpersons.

(v) About 71.4% of the cooperative institutions in the State areunder control of Maratha community.

D(vi) About 75 to 90% of the land in the State is owned by Marathacommunity.

None of the aforesaid was disputed by or on behalf of therespondents in any of the affidavits or at the hearing.

EIt was also stated by the petitioner at the hearing that ever sincethe establishment of the State of Maharashtra on 1 November1956, out of 17 Chief Ministers, 12 have been Marathas. The lastnon-Maratha Chief Minister was during the period January 2003to October 2004. This statement was also not disputed.”

F316. The above stated facts were not disputed before the HighCourt, and before this Court also in the submissions of the parties abovefacts have been repeated and it has been submitted that those factsclearly prove that Maratha are not socially backward. The Commissionin its report does not dispute that Maratha is politically dominant class.GIn this context, following is extracted from the report:

“Political dominance cannot be ground to determine socialand educational backwardness of any community.”

317. We have already found that Maratha community has adequateand sufficient representation in the public services. We have also notedH

that representation of Maratha in public services is present in all categoriesi.e. Group A, Group B, Group and Group posts, and the Marathashave occupied the posts by competing with open categories. Therepresentation of Marathas as noticed above has in many grades about30% against all filled posts of open category. When community is ableto compete with open category candidates and obtain substantial numberof seats (about 30%), this was relevant fact to be noticed whileconsidering the social and educational backwardness of the community.Even if grant and non-grant of reservation to backward under Article16(4) may not be considered as decisive for socially and educationallybackward class for grant under Article 15(4) but grant or non-grantunder Article 16(4) certainly is relevant for consideration which reflectson backward class or classes both in favour and against such backwardclass. We have noticed that the Commission has taken erroneous viewthat the representation of Maratha community in public services is notproportionate to their population and has recommended for grant ofreservation under Article 16(4). We having disapproved the grant ofreservation under Article 16(4) to Maratha community, the said decisionbecomes relevant and shall have certainly effect on the decision of theCommission holding Maratha to be socially and educationally backward.Sufficient and adequate representation of Maratha community in publicservices is indicator that they are not socially and educationally backward.318. The Commission in its report while discussing, in ChapterVIII has analysed the various data including data of students belongingto Maratha community who are pursuing Engineering, Medical and otherdisciplines. In paragraph 178 the Commission has recorded that it obtainedthe information as regards Marathas engaged in and pursuing academiccareer, which would also throw light on the depth of their involvement inhigher education. In Paragraph 178, 1(b) the Commission has extracteda table for the last three academic years (2014-15, 2015-16, 2016-17) inthe Engineering Courses as received from the Directorate of TechnicalEducation of the State Government. Out of open category seats inDiploma of 167168 Maratha achieved admission in 34,248 seats and inGraduate out of 221127, they could receive 32045 admissions, underPost Graduate out of 63795 they could secure admission in 12666 .Similarly details have been given about the Graduation and Post-GaduationMedical Courses for three years. In MBBS out of 4720 in the year2015-16 Maratha received 428 seats, in other streams out of 14360 theysecured 2620 seats, in the above regards table is produced hereunder:

319. Similarly, the Commission has given details of Medical PostDGraduation Courses in para-178-1(c)(c-ii) which indicates following withregard to other under-Graduate and Post-Graduate posts, details of whichgiven in paragraph 178-1(d) which indicates:

320. The above facts and figures which were obtained by theCommission itself indicate that students of Maratha community havesucceeded in open competition and got admissions in all the streamsincluding Engineering, Medical Graduation and Post-Graduation Coursesand their percentage is not negligible. The computation of percentage byGthe Commission against Maratha is since out of open category seats,since 50% seats are for reserved category and only 50% are open, thepercentage of the Maratha, thus, shall substantially increase as per tablegiven by the Commission itself.

321. The Commission has also made studies with regard toHrepresentation of Maratha in prestigious Central services, namely, IAS,

IPS and IFS with regard to State of Maharashtra. In the State ofMaharashtra out of 161 posts filled from open category candidates, thereare 25 IAS belonging from Maratha. Similarly out of 140 posts filledfrom 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 Marathacommunity. When we compute the percentage of IAS, IPS and IFS,percentage of Maratha out of the posts filled from open categorycandidates comes to 15.52, 27.85 and 17.97 percentage respectively,which is substantial representation of Marathas in prestigious Centralservices.

322. We may further notice that the above numbers of Marathaofficers are only in the State of Maharashtra on the posts of the IPS,IAS and IFS being Central services. Similarly, the members of Marathacommunity must have occupied the above posts in the other States ofthe Country of which details are not there.

323. The Commission has also collected data regarding engagementof Maratha in Higher Academic and Educational Fields of UniversityAssignments in the State in paragraph 226. The Table has beencompiled by the Commission. In the said paragraph where Marathasoccupied all categories of posts, including Head of Department, Professor,Associate Professor and Assistant Professor, the Commission has in theChart also noted the number of Marathas occupying different posts inseveral Universities. It is true that in some of the Universities there maynot be Maratha community in one or two posts but Chart indicates thatthere are sufficient number of Maratha in different Universities occupyingposts of HOD, Professor, Associate Professor and Assistant Professor.324. There cannot be any concept of Marathas occupying all higherposts including the posts in the Universities according to their proportionof population. The Commission has commented in the report that theirpercentage in the above posts is less, whereas Table indicates that inHOD post in Savitribai Phule University Pune, out of open categoryfilled post of 29 of HOD, only 3 are from Maratha community, out of 14Professors only 2 are from Maratha community and out of 33 AssociateProfessors only 3 are from Maratha community and out of 79 AssistantProfessors only 3 are from Maratha community. The Commissionconcludes that only 4.3% are from Maratha community in the aboveposts.

A325. In the Higher Academic posts and posts like IAS, IPS andIFS, there cannot be any basis to contend that since Maratha communityis not occupying posts according to their proportion of population, theyare socially and educationally backward classes. The above are the dataand figures on the basis of which the Commission concluded that theMarathas are socially and educationally backward class. When we lookBinto the aforesaid details regarding Maratha students occupyingEngineering, Medical and other streams, Maratha officers occupyingCentral posts of IAS, IPS and IFS and are occupying posts of HigherAcademic in Universities, mere fact that their occupation of posts is notequivalent to the proportion of their population cannot lead to theCconclusion that they are socially and educationally backward. We areconscious that the Commission has conducted sample survey collectedrepresentations and other information, data and has allotted marks onsocial and educational and economic backward class and in the markingMarathas were found to be backward. However, data and facts whichhave been collected by the Commission noted above clearly indicateDthat Marathas are neither socially nor educationally backward and theconclusion recorded by the Gaikwad Commission on the basis of itsmarking system, indicator and marking is not sufficient to conclude thatMarathas are socially and educationally backward.

326. The facts and figures as noted above indicate otherwise andEon the basis of the above data collected by the Commission, we are ofthe view that the conclusion drawn by the Commission is not supportablefrom the data collected. The data collected and tabled by the Commissionas noted above clearly proves that Marathas are not socially andeducationally backward.F

327. We have completed more than 70 years of independence, allgovernments have been making efforts and taking measures for overalldevelopments of all classes and communities. There is presumptionunless rebutted that all communities and castes have marched towardsadvancement. This Court in Ram Singh versus Union of India andGothers (Supra) has made such observations in paragraph 52:-

“52...This is because one may legitimately presume progressiveadvancement of all citizens on every front i.e. social, economicand educational. Any other view would amount to retrogradegovernance. Yet, surprisingly the facts that stare at us indicate aHgovernmental affirmation of such negative governance inasmuch

as decade old decisions not to treat the Jats as backward, arrivedat on due consideration of the existing ground realities, have beenreopened, in spite of perceptible all-round development of thenation. This is the basic fallacy inherent in the impugnedgovernmental decision that has been challenged in the presentproceedings...”

327(a).We also endorse the opinion of Brother Justice S. RavindraBhat on affirmative actions and giving of more and more incentives torealise the constitutional objectives which undoubtedly is the obligationand duty of the State.

328. We are constrained to observe that when more people aspirefor backwardness instead of forwardness, the country itself stagnateswhich situation is not in accord with constitutional objectives.

(14)The Constitution (One Hundred and Second Amendment)Act, 2018 [The Constitution(102ndAmendment)Act, 2018].

329. I have advantage of going through erudite draft judgmentcirculated by my esteemed Brother, Ravindra Bhat. Although, we bothare aditem on the question of Constitutional validity of Constitution 102[nd]Amendment Act, 2018, I regret my inability to agree with theinterpretation of the Constitution 102[nd] Amendment Act, 2018 as put bymy esteemed Brother.

330. The case of the appellant is that after 102[nd] Amendment tothe Constitution which came into force with effect from 15.08.2018, theMaharashtra Legislature had no competence to enact Act, 2018. Afterthe Constitution 102[nd] Amendment, the States have no power to identifysocially and educationally backward classes. The Constitution 102[nd]Amendment had brought change in the regime already in existence forbackward class to fall it in line with Articles 341 and 342 of theConstitution. Article 366(26C) says that the phrase SEBCs “means”those backward classes which are so deemed under Article 342A, forthe purposes of this Constitution. The expression “for the purposes ofthis Constitution” is used in Articles 15(4) and 16(4), 338B, 342A and inother Articles of the Constitution of India. In view of Article 342A theSEBCs are those who are specified by the President by public notificationfor the purposes of State or Union Territory under sub-clause(1) ofArticle 342A. Article 342A being analogous to Articles 341 and 342must be interpreted exactly in the same manner. The Parliament inserted

Aphrase “Central List” in clause (2) of Article 342A only to emphasizethe fact that after Constitution 102[nd] Amendment, the only list that shallbe drawn for the purposes of SEBCs is the Central List drawn by thePresident.

331. Learned counsel for the appellant contends that MaharashtraBLegislature had no competence to enact 2018 Legislation after Constitution102[nd] Amendment. Learned senior counsel, Shri GopalSankaranarayanan, submitted that for interpreting Article 342A relianceon Select Committee report of Rajya Sabha is unwarranted.

332. The above submissions of the appellant have been stoutlyCrefuted by the learned counsel for the State of Maharashtra as well asother States. Under Articles 15(4) and 16(4), the Union and the Stateshave co-equal powers to advance the interest of the socially andeducationally backward classes; therefore, any exercise of power bythe Union cannot encroach upon the power of the State to identify sociallyand educationally backward classes. The expression “for the purpose ofDthe Constitution” can, therefore, only to be construed with the contoursof the power that Union is entitled to exercise with respect to entities,institutions, authorities and public sector enterprises under the control ofthe Union. The power to identify and empower socially and educationallybackward classes and determining the extent of reservation required isEvested in the State by our Constitution and recognised by judicialpronouncements including Indra Sawhney. The expression “Central List”occurring in Article 342A(2) relates to the identification under Article342A(1) wherein the Central List will include the socially andeducationally backward classes for the purposes of the CentralGovernment. Any other interpretation would allow to whittle down theFlegislative power of the State. Article 342A must be interpreted in thehistorical context. It is submitted that the Constitution 102[nd] Amendmenthas brought changes with regard to Central List. The expression CentralList is well understood concept in service jurisprudence for reservationpurposes of OBC, there are two lists, Central List and State List.G333. It is submitted that the Parliamentary Committee report andother materials throw considerable light on the intention of Parliamentfor inserting Article 342A in the Constitution. The Constitutionalamendment has to be interpreted in the light of the Parliamentary intention.The power of the State Government to legislate cannot be taken awaywithout amendment of Articles 15 and 16. The Parliament has not evenH

exercised its power to occupy the field of State by clearly using theexpression ‘Central List’ in sub-clause (2). If the Constitution 102[nd]Amendment is interpreted in the manner as appellants are interpreting,the Constitutional Amendment shall be violative of the federal structureand shall be unconstitutional.

334. We have in this batch of cases issued notice to learnedAttorney General, the interpretation of the 102[nd] Amendment to theConstitution of India being in question. Shri K.K. Venugopal, learnedAttorney general submits that the Constitution Bench in Indra Sawhneyin paragraph 847 had taken the view that there ought to be permanentbody, in the nature of Commission or Tribunal, to which complaints ofwrong inclusion or non-inclusion of groups, classes and sections in thelists of Other Backward Classes can be made. He submitted that theConstitution Bench in Indra Sawhney directed the Government of India,each of the State Governments and the Administrations of UnionTerritories to constitute permanent body for entertaining, examiningand recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes ofcitizens.

335. Learned Attorney General submits that in view of the abovenine-Judge Bench judgment of this Court it is inconceivable that anysuch amendment can be brought in the Constitution that no State shallhave competency to identify the backward classes, Article 15(4)necessarily includes the power of identification. Under Article 12 of theConstitution, the State includes the Government and Parliament, andGovernment and Legislature of each State. In event the States have todeprive their rights under Articles 15(4) and 16(4) of the Constitution, aproviso had to be added. Article 15(4) and 16(4) are the source of powerto identify SEBC. The Constitution 102[nd] amendment has not made anysuch amendment by which the effect of Articles 15(4) and 16(4) hasbeen impacted. He submits that the National Commission for BackwardClasses Act, 1993 was passed by the Parliament in obedience of directionof Indra Sawhney. Section 2(c) of the Act defines “lists” which is clearlylimited to the Central Government; Learned Attorney General submitsthat Article 342A covers the Central Government list alone. LearnedAttorney General has referred to Select Committee report dated17.07.2017 and submits that Select Committee report after consideringthe response and clarification by the concerned Ministry had opined that

A102[nd] Amendment was not to take the rights of the State to identifyother backward classes in their States. He submits that rights of theState to identify OBC for their States in respect of the States areuntouched. Referring to State of Punjab, learned Attorney General submitsthat there are two lists, Central List which contains 68 OBC, the StateList which contains 71, he submits that with regard to the ScheduledBCastes and Scheduled Tribes the President was given power in theConstitution with which State had no concern. There was no attempt onbehalf of the Parliament to modify Articles 15(4) and 16(4).336. Learned Attorney submits that Article 342A has to be readharmoniously with the other provisions of the Constitution. LearnedCAttorney General has also referred to short affidavit filed by the Unionof 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 identifyand specify the SEBCs lies with Parliament, only with reference to theCentral List of SEBCs. The State Governments may have their separateDState Lists of SEBCs in recruitment. Learned Attorney General adoptsthe same stand taken by the Union of India in the aforesaid affidavit. Hereiterated that the Parliament by passing Constitution Amendment hasnot taken away the power of the State to identify backward classes(SEBCs) in their States.

E337. He further submits that there is no violation of basic structureof the Constitution. Replying to the argument of learned counsel for thewrit petitioner under clause (2) of Article 368 learned Attorney Generalsubmits that power to identify backward classes being under Articles 15and 16, there is no occasion to examine the list of 7[th] Schedule to find thesource of power. He submits that no amendments have been made inFany of the Lists of 7[th] Schedule so as to attract the proviso to Article368(2). He submits that the Constitution 102[nd] Amendment did not requireratification by the State Legislature.

338. Before coming to the Articles in the Constitution inserted bythe Constitution 102[nd] Amendment, we need to notice the Statement ofGObjects and Reasons contained in the Constitution (One Hundred andTwenty-Third Amendment) Bill, 2017 which was introduced in the LokSabha on 4[th] April, 2017 and some details regarding legislative processwhich culminated into passing of the Constitution (One Hundred andSecond Amendment) Act, 2018. When Bill came for discussion to amendthe Constitution of India, it was passed by Lok Sabha on 10.04.2017.H

Rajya Sabha on motion adopted by the House on 11.4.2017 referred theBill to the Select Committee for examination of the Bill and report thereonto the Rajya Sabha. The Select Committee of Rajya Sabha examinedthe Bill by holding 7 meetings. The Select Committee asked clarificationon various issues from the Ministry and after receipt of clarificationssubmitted the report on 17.07.2017. The Constitution (One Hundred andTwenty-Third Amendment) Bill, 2017 with the Select Committee reportcame for consideration before the Rajya Sabha. The Bill was passedwith certain amendments on 31.07.2017 by the Rajya Sabha. Afterpassing of the Bill, it was again taken by the Lok Sabha and it waspassed by the Lok Sabha on 2[nd] August, 2018. Rajya Sabha agreed tothe Bill on 6[th] August, 2018.

339. The Statement of Objects and Reasons of Constitution 102[nd]Amendment are contained in the Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017. It is useful to extract the entire Statementof Objects and Reasons as contained in the Bill:

“STATEMENT OF OBJECTS AND REASONS

The National Commission for the Scheduled Castes andScheduled Tribes came into being consequent upon passing of theConstitution (Sixty-fifth Amendment) Act, 1990. The saidCommission was constituted on 12th March, 1992 replacing theCommission for the Scheduled Castes and Scheduled Tribes setup under the Resolution of 1987. Under article 338 of theConstitution, the National Commission for the Scheduled Castesand Scheduled Tribes was constituted with the objective ofmonitoring all the safeguards provided for the Scheduled Castesand the Scheduled Tribes under the Constitution or other laws.2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003, aseparate National Commission for Scheduled Tribes was createdby inserting new article 338A in the Constitution. Consequently,under article 338 of the Constitution, the reference was restrictedto the National Commission for the Scheduled Castes. Underclause (10) of article 338 of the Constitution, the NationalCommission for Scheduled Castes is presently empowered to lookinto the grievances and complaints of discrimination of OtherBackward Classes also.

3. In the year 1992, the Supreme Court of India in the matter ofIndra Sawhney and others Vs. Union of India and others (AIR

A1993, SC 477) had directed the Government of India to constitutea permanent body for entertaining, examining and recommendingrequests for inclusion and complaints of over-inclusion and under-inclusion in the Central List of Other Backward Classes. Pursuantto the said Judgment, the National Commission for BackwardClasses Act was enacted in April, 1993 and the NationalBCommission for Backward Classes was constituted on 14thAugust, 1993 under the said Act. At present the functions of theNational Commission for Backward Classes is limited to examiningthe requests for inclusion of any class of citizens as backwardclass in the Lists and hear complaints of over-inclusion or under-Cinclusion of any backward class in such lists and tender such adviceto the Central Government as it deems appropriate. Now, in orderto safeguard the interests of the socially and educationallybackward classes more effectively, it is proposed to create aNational Commission for Backward Classes with constitutionalstatus at par with the National Commission for Scheduled CastesDand the National Commission for Scheduled Tribes.

(Underlined by us)

4. The National Commission for the Scheduled Castes hasrecommended in its Report for 2014-15 that the handling of theEgrievances of the socially and educationally backward classesunder clause (10) of article 338 should be given to the NationalCommission for Backward Classes.

5. In view of the above, it is proposed to amend the Constitutionof India, inter alia, to provide the following, namely:—

F(a) to insert new article 338 so as to constitute the NationalCommission for Backward Classes which shall consist of aChairperson, Vice-Chairperson and three other Members. Thesaid Commission will hear the grievances of socially andeducationally backward classes, function which has beendischarged so far by the National Commission for Scheduled CastesGunder clause (10) of article 338; and

(b) to insert new article 342A so as to provide that the Presidentmay, by public notification, specify the socially and educationallybackward classes which shall for the purposes of the Constitutionbe 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 102[nd] Amendment, Articles 338 sub-clause(10), new Article 338B, Article 342A and 366(26C) were inserted.

341. In the writ petition before the High Court, the question wasraised “whether the Constitution (One Hundred and Second Amendment)Act, 2018 affects the competence of the Legislature to enact theimpugned Legislation.” The High Court noticed the parliamentary processincluding the report of Select Committee. The High Court held that useof Central List in sub-clause (2) of Article 342A is not in vacuum but itmust take its due meaning in reference to the context. The High Courtheld that Parliament being conscious of the facts that there are two listsoperating in various States, firstly, for providing reservation prescribedby the Central Government in Central services and the other list forproviding reservation by the respective State Governments, the Parliamentintended that it would retain the power to include or exclude from theCentral List. The High Court, further, held that had the Parliamentintended to deprive the State of its power, it would have specificallymentioned so. The High Court rejected the submission of the learnedcounsel for the appellants that the Constitution 102[nd] Amendment denudedthe power of the State to legislate with regard to other backwardcategories 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 filedquestioning the constitutional validity of the Constitution 102[nd]Amendment.

PRINCIPLES TO INTERPRET CONSTITUTIONALPROVISIONS

343. We in the present case are concerned with ConstitutionalAmendment brought by the Constitution (One Hundred and SecondAmendment) Act, 2018. The Constitutional Amendment is not normallegislative exercise and it is always carried out with an object and thepurpose. The Constitution of India is grand norm given to us by theFramers of the Constitution with great deliberations and debates. TheConstitution contained the objectives and goals of the nation and contains

BCD

Aideals For the governance by the State. Justice G.P. Singh in ‘Principlesof Statutory Interpretation’, 14[th] Edition under the heading ‘Intentionof the Legislature’ explains the statutory interpretation in followingwords:

“A statute is an edict of the Legislature” and theBconventional way of interpreting or construing statute is to seekthe ‘intention’ of its maker. statute is to be construed according‘to the intent of those that make it’ and ‘the duty of judicature is toact upon the true intention of the Legislature-the mens or sententialegis’.” The expression ‘intention of the Legislature’ is shorthandreference to the meaning of the words used by the LegislatureCobjectively determined with the guidance furnished by the acceptedprinciples of interpretation. “If statutory provision is open tomore than one interpretation the court has to choose thatinterpretation which represents the true intention of the Legislature,in other words the legal meaning’ or ‘true meaning’ of the statutoryDprovision.”

344. Chief Justice, Sir, Maurice Gwyer speaking in Federal Court,in The Central Province and Berar Sales of Motor Spirit andLubricants Taxations Act, 1938, AIR 1939 Federal Court 1, heldthat rules which apply to the interpretation of other statute applies equallyEto the interpretation of the constitutional enactment. But their applicationis of necessity condition by the subject matter of the enactment itself.

345. On the interpretation of the Constitution of India, ConstitutionBench of this Court in ITC Ltd. vs. Agricultural Produce MarketCommittee and others, (2002) 9 SCC 232, laid down followingFproposition in paragraph 59:

“59. The Constitution of India deserves to be interpreted,language permitting, in manner that it does not whittle down thepowers of the State Legislature and preserves the federalism whilealso upholding the Central supremacy as contemplated by someof its articles.”G

346. It is said that the statute is an edict of the Legislature. Theelementary principle of interpreting the Constitution or statute is to lookinto the words used in the statute, when the language is clear, the intentionof the Legislature is to be gathered from the language used. The aid tointerpretation is resorted to only when there is some ambiguity in wordsH

or expression used in the statute. The rule of harmonious construction,the rule of reading of the provisions together as also rule of giving effectto the purpose of the statute, and few other principles of interpretationare called in question when aids to construction are necessary in particularcontext. We have already noticed the Statement of Objects and Reasonsof the statute in the earlier paragraph. Paragraph 5 of the Statement ofObjects and Reasons mentions amendment of Constitution by (a) insertinga new Article 338B so as to constitute the National Commission forBackward Classes and (b) to insert new Article 342A so as to providethat the President may, by public notification, specify the socially andeducationally backward classes. The Bill was moved by ThawarchandGehlot, Minister of Social Justice and Empowerment.

347. Learned counsel for both the parties have advanced therespective submissions on the interpretation of words “Central List” asused in clause (2) of Article 342A. Both the parties having advanceddivergent submissions on the true and correct interpretation of “CentralList”, it becomes necessary to take aid of interpretation. What was thepurpose and object of uses of expression ‘Central List’, sub-clause (2)of Article 342A has to be looked into to find correct meaning of theconstitutional provisions.

348. We have noticed above that learned Attorney General aswell as learned counsel for the State of Maharashtra and other Stateshave relied on Select Committee report, debates in Parliament and theStatement of Minister to find out the intention of the Parliament in insertingArticle 342A of the Constitution.

349. Shri Gopal Sankaranarayanan, learned senior counsel forthe petitioner has questioned the admissibility of Parliamentary Committeereport. He submits that Parliamentary Committee report is not admissibleand cannot be used as aid to interpretation which submission has beenrefuted by Shri P.S. Patwalia, learned senior counsel as well Dr. A.M.Singhvi, learned Senior Counsel, who state that Parliamentary Committeereport as well the Statement made by the Minister in the Parliament areadmissible aids to the interpretation and are necessary to find out theintention of the Parliament in bringing the 102[nd] Amendment to theConstitution. We, thus, proceed to look into the law as to admissibility ofreport of Parliamentary Committee and Statement of Minister in theParliament as aids to interpret constitutional provision.

A350. Shri Gopal Sankaranarayanan, relying on the judgment ofthis Court in State of Travancore, Cochin and others vs. BombayCompany Ltd., AIR 1952 SC 366, submits that this Court observedthat the “speeches made by the members of the Constituent Assemblyas external aid to the constitutional interpretation is not admissible. Mr.Gopal Sankaranarayanan relies on paragraph 16 of the judgment whichBis to the following effect:

“16. It remains only to point out that the use made by thelearned Judges below of the speeches made by the members ofthe Constituent Assembly in the course of the debates on thedraft Constitution is unwarranted. That this form of extrinsic aidto the interpretation of statutes is not admissible has been generallyaccepted in England, and the same rule has been observed in theconstruction of Indian statutes — see Administrator-General ofBengal v. Prem Nath Mallick [22 IA 107, 118] . The reasonbehind the rule was explained by one of us in Gopalan case [1950SCR 88] thus:

“A speech made in the course of the debate on bill couldat best be indicative of the subjective intent of the speaker, but itcould not reflect the inarticulate mental process lying behind themajority vote which carried the bill. Nor is it reasonable to assumethat 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 thosewho did; and those who spoke might differ from each other —United States v. Trans-Missouri Freight Association [169 US290, 318] .”

This rule of exclusion has not always been adhered to inAmerica, and sometimes distinction is made between using suchmaterial to ascertain the purpose of statute and using it forascertaining its meaning. It would seem that the rule is adopted inCanada and Australia — see Craies on Statute Law, 5th Ed., p.122.”

351. It is relevant to notice that in paragraph 16 it was alsoobserved that rule of exclusion has not always been upheld to in Americaand sometime distinction is made between using such material toHascertaining purpose of statute and using it for ascertaining its meaning.

The judgment itself indicated that the said material is sometime used toascertain the purpose of statute. The law has been explained andelaborated in subsequent judgments of this Court which we shall noticehereinafter. One more judgment on which reliance has been placed byShri Gopal Sankaranarayanan is the judgment of this Court in AswiniKumar Ghose and another v. Arabinda Bose and another, AIR1952 SC 369, in which this Court referring to earlier judgment of thisCourt in State of Travancore, Cochin and others vs. BombayCompany Ltd. (supra) laid down in paragraph 31:

“31. As regards the speeches made by the Members ofthe House in the course of the debate, this Court has recentlyheld that they are not admissible as extrinsic aids to theinterpretation of statutory provisions: (State of Travancore-Cochin v. Bombay Co. Ltd. etc. [ CA Nos. 25, 28 and 29 of1952]”

352. With regard to speeches in the Constituent Assembly, theConstitution Bench of this Court, in His Holiness Kesvananda Bharativs. State of Kerala and another, (1973) 4 SCC 225, several Hon’bleJudges in their separate judgments have relied and referred to ConstituentAssembly debates for the interpretation of provisions of Part III andPart IV. Justice S.M. Sikri, CJ in paragraph 116 observed:

“186. The speeches can, in my view, be relied on only inorder to see if the course of the progress of particular provisionor provisions throws any light on the historical background or showsthat common understanding or agreement was arrived atbetween certain sections of the people..”

353. Justice Jaganmohan Reddy stoutly said that ConstituentAssembly debates be looked into for ascertaining intention of our framersof the Constitution. Justice Jaganmohan Reddy also held that in aconstitutional matter this Court should look into the proceedings of relevantdate including any speech which may throw light in ascertaining it. JusticeJaganmohan Reddy in paragraph 1088 laid down:

“1088. ...Speaking for myself, why should we not look intothem boldly for ascertaining what was the intention of our framersand how they translated that intention? What is the rationale fortreating them as forbidden or forbidding material. The Court in aconstitutional matter, where the intent of the framers of the

AConstitution as embodied in the written document is to beascertained, should look into the proceedings, the relevant dataincluding any speech which may throw light on ascertaining it. Itcan reject them as unhelpful, if they throw no light or throw onlydim light in which nothing can be discerned. Unlike statute, aConstitution is working instrument of Government, it is draftedBby people who wanted it to be national instrument to subservesuccessive generations. The Assembly constituted Committeesof able men of high calibre, learning and wide experience, and ithad an able adviser, Shri B.N. Rau to assist it. .....”

354. Justice H.R. Khanna in paragraph 1358 also in his judgmentChad elaborately referred to and relied on the speeches made in theConstituent Assembly. In paragraph 1367 His Lordship laid down:

“1367. So far as the question is concerned as to whetherthe speeches made in the Constituent Assembly can be taken intoconsideration, this court has in three cases, namely, I.C. GolakDNath v. State of Punjab, H.H. Maharajadhiraja Madhav RaoJiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC85 : (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 speechescan be taken into account. In Golak Nath case Subba Rao, C.J.,who spoke for the majority referred to the speeches of Pt.EJawaharlal Nehru and Dr Ambedkar on p. 791. Reference wasalso made to the speech of Dr Ambedkar by Bachawat, J. in thatcase on p. 924. In the case of Madhav Rao, Shah, J. who gavethe leading majority judgment relied upon the speech of SardarPatel, who was Minister for Home Affairs, in the ConstituentFAssembly (see P. 83). Reference was also made to the speechesin the Constituent Assembly by Mitter, J. on pages 121 and 122.More recently in H.S. Dhilion case relating to the validity ofamendment in Wealth Tax Act, both the majority judgment aswell as the minority judgment referred to the speeches made inthe Constituent Assembly in support of the conclusion arrived at.GIt can, therefore, be said that this Court has now accepted theview in its decisions since Golak Nath case that speeches madein the Constituent Assembly can be referred to while dealing withthe provision of the Constitution.”

355. Justice K.K. Mathew in paragraph 1598 had held that theHdebates in the Constituent Assembly can be looked into to understand

the legislative history of provision of the Constitution including itsderivation, that is, the various steps leading up to and attending itsenactment, 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 belooked into to understand the legislative history of provision ofthe Constitution including its derivation, that is, the various stepsleading up to and attending its enactment, to ascertain the intentionof the makers of the Constitution, it is difficult to see why thedebates are inadmissible to throw light on the purpose and generalintent of the provision. After all, legislative history only tends toreveal the legislative purpose in enacting the provision and therebysheds light upon legislative intent. It would be drawing an invisibledistinction if resort to debates is permitted simply to show thelegislative history and the same is not allowed to show thelegislative 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 again advanced that debates inParliament or the report of the Commission or Committee which proceedthe enactment is not permissible aid to construction. Submission wasnoted in paragraph 32 of the judgment to the following effect:

“32. Mr. Singhvi contended that even where the words in astatute are ambiguous and may be open to more than one meaningor sense, reference to the debates in Parliament or the report ofa commission or committee which preceded the enactment ofthe statute under consideration is not permissible aid toconstruction. ...”

357. In paragraph 33 it was held that in order to ascertain truemeaning of literal words in the statute reference to the report are heldlegitimate external aid. In paragraph 33 following was laid down:

“33. The trend certainly seems to be in the reverse gear inthat in order to ascertain the true meaning of ambiguous words ina statute, reference to the reports and recommendations of thecommission or committee which preceded the enactment of thestatute are held legitimate external aids to construction. Themodern approach has to considerable extent eroded theexclusionary rule even in England. ……”

A358. Ultimately, this Court rejected the submission raised and heldthat the reports of the Committee were admissible. Following was laiddown in paragraph 34:

“34. ….Further even in the land of its birth, the exclusionaryrule has received serious jolt in Black-Clawson InternationalBLtd. v. Papierwerke Waldhof-Aschaffenburg AG:[(1975) 1 AllER 810, 843] Lord Simon of Claisdale in his speech whileexamining the question of admissibility of Greer Report observedas under:

“At the very least, ascertainment of the statutoryCobjective can immediately eliminate many of the possiblemeanings that the language of the Act might bear; and, if anambiguity still remains, consideration of the statutory objective

is one of the means of resolving it.

The statutory objective is primarily to be collected from theDprovisions of the statute itself. In these days, when the long titlecan be amended in both Houses, I can see no reason for havingrecourse to it only in case of an ambiguity — it is the plainest ofall the guides to the general objectives of statute. But it will notalways help as to particular provisions. As to the statutory objectiveof these, report leading to the Act is likely to be the most potentEaid; and, in my judgment, it would be mere obscurantism not toavail oneself of it. There is, indeed clear and high authority that itis available for this purpose. ……”

359. It is noted that although the above Constitution Bench wassubsequently overruled by seven-Judge Bench but the above propositionFwas not touched.

We may also notice the Constitution Bench judgment of this Courtin Minerva Mills Ltd. and others vs. Union of India and others,(1980) 3 SCC 625. CJ, Y.V. Chandrachud speaking for the ConstitutionBench referred to speech of Law Minister made in the Parliament andGheld that the constitutional provisions cannot be read contrary to itsproclaimed purpose as was stated by the Law Minister in the floor ofthe House. In paragraph 65 following was laid down:

“65. Mr. Palkhivala read out to us an extract from thespeech of the then Law Minister who, while speaking on the

amendment to Article 31-C, said that the amendment was beingintroduced because the government did not want the “let andhindrance” of the fundamental rights. If the Parliament hasmanifested clear intention to exercise an unlimited power, it isimpermissible to read down the amplitude of that power so as tomake it limited. The principle of reading down cannot be invokedor applied in opposition to the clear intention of the legislature. Wesuppose that in the history of the constitutional law, noconstitutional amendment has ever been read down to mean theexact opposite of what it says and intends. In fact, to accept theargument that we should read down Article 31-C, so as to make itconform to the ratio of the majority decision in KesavanandaBharati [Kesavananda Bharati v. State of Kerala, 1973 SuppSCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461] , is to destroy theavowed purpose of Article 31-C as indicated by the very heading“Saving of Certain Laws” under which Articles 31-A, 31-B and31-C are grouped. Since the amendment to Article 31-C wasunquestionably made with view to empowering the legislaturesto pass laws of particular description even if those laws violatethe discipline of Articles 14 and 19, it seems to us impossible tohold that we should still save Article 31-C from the challenge ofunconstitutionality by reading into that Article words which destroythe rationale of that Article and an intendment which is plainlycontrary to its proclaimed purpose.”

360. We may conclude the discussion on the topic by referring toa subsequent Constitution judgment of this Court in Kalpana Mehtaand others vs. Union of India and others, (2018) 7 SCC 1, in whichone of us Justice Ashok Bhushan was also member. In the abovecase, the Constitution Bench elaborately dealt with the role ofParliamentary Committee. One of the questions which was referred tobefore the Constitution Bench to answer was “whether in litigationfiled before this Court under Article 32 and our Court can refer to andplace reliance upon the report of the Parliamentary Standing Committee.The Constitution Bench referring to earlier judgment of this Court inR.S. Nayak v. A.R. Antulay (supra) laid down following in paragraphs123 and 134:

“123. Constitution Bench in R.S. Nayak v. A.R.Antulay [R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, after

ABC

Areferring to various decisions of this Court and development inthe law, opined that the exclusionary rule is flickering in its dyingembers in its native land of birth and has been given decentburial by this Court. The Constitution Bench further observed thatthe basic purpose of all canons of the Constitution is to ascertainwith reasonable certainty the intention of Parliament and for theBsaid purpose, external aids such as reports of Special Committeepreceding the enactment, the existing state of law, the environmentnecessitating enactment of legislation and the object sought tobe achieved, etc. which Parliament held the luxury of availingshould not be denied to the court whose primary function is toCgive effect to the real intention of the legislature in enacting astatute. The Court was of the view that such denial would deprivethe Court of substantial and illuminating aid to construction and,therefore, the Court decided to depart from the earlier decisionsand held that reports of committees which preceded the enactmentof law, reports of Joint Parliamentary Committees and reportDof commission set up for collecting information can be referredto as external aids of construction.

134. From the aforesaid, it clear as day that the Court cantake aid of the report of the Parliamentary Committee for thepurpose of appreciating the historical background of the statutoryEprovisions and it can also refer to committee report or the speechof the Minister on the floor of the House of Parliament if there isany kind of ambiguity or incongruity in provision of an enactment.”

361. Justice Dipak Misra, CJ speaking for himself and JusticeA.M. Khanwilkar recorded his conclusion in paragraph 159.1 and 159.2Fto the following effect:

“159.1. Parliamentary Standing Committee report can be takenaid of for the purpose of interpretation of statutory provisionwherever it is so necessary and also it can be taken note of asexistence of historical fact.

159.2. Judicial notice can be taken of the Parliamentary StandingCommittee report under Section 57(4) of the Evidence Act and itis admissible under Section 74 of the said Act.”

362. Dr. Justice D.Y. Chandrachud laid down following in paragraph

“260. The use of parliamentary history as an aid to statutoryconstruction is an area which poses the fewest problems. Inunderstanding the true meaning of the words used by the legislature,the court may have regard to the reasons which have led to theenactment of the law, the problems which were sought to beremedied and the object and purpose of the law. For understandingthis, the court may seek recourse to background parliamentarymaterial associated with the framing of the law.”

363. Justice Ashok Bhushan, one of us, in his concurring judgmenthas observed that Committees of both Rajya Sabha and Lok Sabha areentrusted with enormous duties and responsibilities in reference to thefunctions of Parliament. Following was observed in paragraph 335:

“335. Various committees of both Rajya Sabha and LokSabha are entrusted with enormous duties and responsibilities inreference to the functions of Parliament. Maitlandin Constitutional History of England while referring to thecommittees of the Houses of British Parliament noticed thefunctions of the committees in the following words:

“… Then again by means of committees the Housesnow exercise what we may call an inquisitorial power. Ifanything is going wrong in public affairs committee may beappointed to investigate the matter; witnesses can be summonedto give evidence on oath, and if they will not testify they can becommitted for contempt. All manner of subjects concerningthe public have of late been investigated by parliamentarycommissions; thus information is obtained which may be usedas basis for legislation or for the recommendation ofadministrative reforms.”364. After noticing the relevant Rules, it was held thatparliamentary materials including reports and other documents arepermissible to be given as evidence in the Court of law. In paragraph351 following was laid down:

“351. From the above discussion it is clear that as matterof fact the parliamentary materials including reports and otherdocuments have been sent from time to time by the permission ofParliament itself to be given as evidence in courts of law.”

A365. Noticing the observation of House of Lords in Pepper(Inspector of Taxes) v. Hart, that parliamentary materials for thepurpose of construing legislation can be used, following observation inparagraph 380 was made:

“380. In the end Lord Wilkinson held that reference toBparliamentary materials for the purpose of construing legislationdoes not breach Article 9 of the Bill of Rights (1688). The followingwas held: (Hart case [Pepper (Inspector of Taxes) v. Hart, 1993AC 593 : (1992) 3 WLR 1032 : 1992 UKHL 3 (HL)] , AC p. 644)

“… For the reasons I have given, as matter of pureClaw this House should look at Hansard and give effect to theparliamentary intention it discloses in deciding the appeal. Theproblem is the indication given by the Attorney General that, ifthis House does so, your Lordships may be infringing theprivileges of the House of Commons.

DFor the reasons I have given, in my judgment reference toparliamentary materials for the purpose of construing legislationdoes not breach Article 9 of the Bill of Rights. …””

366. In paragraph 395, it was also noted by this Court thatparliamentary proceeding including reports of the Standing committeeEof Parliament were relied in large number of cases of this Court. Inparagraph 395 following was laid down:

“395. This Court in number of cases has also referred toand relied on parliamentary proceedings including reports of theStanding Committee of Parliament. The learned counsel for theFpetitioners have given reference to several cases in this regard,namely, Catering Cleaners of Southern Railway v. Union ofIndia [Catering Cleaners of Southern Railway v. Union ofIndia, (1987) 1 SCC 700 : 1987 SCC (L&S) 77] where the Courthas taken into consideration report of Standing Committee ofpetitions. Another case relied on is Gujarat ElectricityGBoard v. Hind Mazdoor Sabha [Gujarat ElectricityBoard v. Hind Mazdoor Sabha, (1995) 5 SCC 27 : 1995 SCC(L&S) 1166]. In State of Maharashtra v. Milind [State ofMaharashtrav. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117],the Court has referred to and relied on Joint ParliamentaryCommittee report. In Federation of Railway Officers

Assn. v. Union of India [Federation of Railway OfficersAssn. v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344],the Court has referred to report of the Standing Committee ofParliament on Railways. In Aruna Roy v. Union of India [ArunaRoyv. Union of India, (2002) 7 SCC 368 : 5 SCEC 310] , reportof Committee, namely, S.B. Chavan Committee, which wasappointed 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 case where report of StandingCommittee of Parliament on Petroleum and Natural Gas has beenreferred to and relied. Other judgments where ParliamentaryCommittee reports have been relied are Kishan Lal Gera v. Stateof Haryana [Krishan Lal Gera v. State of Haryana, (2011) 10SCC 529] , Modern Dental College and ResearchCentre v. State of M.P. [Modern Dental College & ResearchCentre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] and LalBabu Priyadarshi v. Amritpal Singh [Lal Babu Priyadarshiv. Amritpal Singh, (2015) 16 SCC 795 : (2016) 3 SCC (Civ) 649].”367. The above discussion makes it clear that the law is wellsettled in this county that Parliamentary Committee reports includingspeech given by the Minister in the Parliament and the debates arerelevant materials to ascertain the intention of Parliament while constitutingconstitutional provisions. We, thus, reject the objection of Shri GopalSankaranarayanan that Parliamentary Committee report and the speechof the Minister cannot be looked into for ascertaining the intention ofParliament in bringing the Constitution 102[nd] Amendment.

368. The intention of the Parliament for bringing the constitutionalamendment is necessary to be found out to interpret the constitutionalamendments. The words used in constitutional amendment have to beinterpreted in the context for which they were used. We may refer tothe celebrated words of Justice Holmes in Towne v. Eisner, 245 US418, where he observed: “a word is not crystal, transparent andunchanged; it is skin of living thought and may very greatly incolour and content according to the circumstances and the timein which it is used.” In what context the words “Central List” hasbeen used in Article 342A(1) has to find out and what was the intent ofParliament in using the words “Central List” in sub-clause (2) and whatwas the intent of the Parliament in inserting Article 342A in theConstitution are relevant for purposes of constitutional interpretation.

ABCD

A369. We need to look into the parliamentary process whichculminated into parliament passing the Constitution (102[nd] Amendment)Act, 2018. The Constitution (123[rd] Amendment) Bill, 2017 was introducedin the Lok Sabha on 02.04.2017 and was passed in Lok Sabha on10.04.2017. When the Bill came to the Rajya Sabha, by Motion adoptedby the House on 11.04.2017, the Bill was referred to the Select CommitteeBcomprising of 25 members of Rajya Sabha. The Select Committee heldseven meetings before submitting its report. Several members gave theirresponse to the Committee. In the first meeting of the Committee heldon 17.04.2017, Ministry of Social Justice and Empowerment placedcertain clarification of the Minister which was noticed and incorporatedCin paragraph 6 of the Minutes which is to the following effect:

“6. Secretary, Ministry of Social Justice and Empowerment furtherclarified that under the Backward Classes, unlike the SCs & STs,there are two lists i.c. the Central List and the State List. TheCentral List provides for education and employment opportunitiesDin Central Government Institutions. In the State List, the Statesare free to include or exclude, whoever they wish to, in theirBackward Classes List. As result, if there is certain categorywhich is not in the Central List, it may still be found in the StateList. That is the freedom and prerogative of the State BackwardClasses Commission and that would continue to be there.E

370. The Committee in its meeting held on 22.05.2017 asked severalclarifications. One of the clarifications asked was “To what extent therights of the States would be affected after coming into by the Bill underthe Constitution of the Select Committee.”F371. The Committee held sixth meeting on 03.07.2017. One ofthe proposed amendments have been noted in paragraph 21 of theMinutes, clarification on which was also noted in paragraph and theamendment was not accepted. The amendment proposed was“notwithstanding in any … in clause (9), the State Government shallcontinue to have power … socially and educationally backward classes.”GThe above proposed amendment in Article 338B was not accepted sinceMinistry clarified that the power of the State is not affected. Paragraphs21, 22 and 23 are as follows:

“21. The Committee discussed the amendment wherein inarticle 338B new sub-clause (10) was proposed to be inserted.HThis sub-clause (10) would state that ‘notwithstanding anything

provided in clause 9, the State Government shall continue to havepowers to identify Socially and Educationally Backward Classes’.

22. It was clarified by the Ministry to the Committee thatthe proposed amendment does not interfere with the powers ofthe State Governments to identify the Socially and EducationallyBackward Classes. The existing powers of the State BackwardClasses Commission would continue to be there even after thepassage of the Constitution (One Hundred and Twenty-thirdAmendment) Bill, 2017.

(underlined by us)

23. The Committee held discussions on the amendmentsproposed and in view of the explanation given by the Ministry, theCommittee adopted clause 3 without any amendments.”

372. Article 342A was also discussed by the Committee variousset of Amendments were noted in reference to Article 342A. TheCommittee noticed amendments proposed in Article 342A in paragraph24 t the following effect:

“24. The Committee then took up Clause 4 of the Bill forconsideration. The Committee considered the following amendmentproposed 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 State, on the request made by the governorthereof, by public notification specify the socially andeducationally backward classes for the purposes of makingprovisions for reservation of appointment to an office or postsunder Government of India or under any authority ofGovernment of India or under the control of the Governmentof 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 NationalCommission for Backward Classes include or exclude fromthe Central list of socially and educationally backward classesspecified in notification issued under clause (1).”;

(iii) In article 342A insert clause (3) as follows:

“The Governor of State, by public notification specify thesocially and educational backward classes for the purposes ofmaking provisions for reservation of posts under that State orunder any other authority of the State or under the central ofthe State, or seats in the educational institutions. within thatState” and

(iv) In article 342A insert clause (4) as follows:

“The Governor may, on the advice of the State Commissionof Backward Classes include or exclude from the State list ofsocially and educationally backward classes specified in aCnotification issued under clause (3)”

373. The Committee, however, did not accept any of theamendments in view of explanation furnished by the Ministry. The 7[th]meeting was held on 14.07.2017. The clarification issued by the Secretaryof Ministry of Social Justice and Empowerment has been noticed inDparagraph 29 which is to the following effect:

“29. ………She also clarified that conferring of constitutionalstatus on the National Commission for Backward Classes wouldin no way take away the existing powers of the State BackwardClasses Commissions. The only difference would be with regardEto the Central List, where the power of exclusion or inclusion,after the Constitutional amendment, it would come to theParliament with the recommendations of the NCBC.”

374. After elaborate discussion, the Committee submitted its reportdated 19.07.2017. One of the amendments which was moved beforeFthe Committee in Article 338B was noticed and not accepted. In thereport the Ministry’s stand was that proposed amendment does notinterfere with the power of the State Government to identify the sociallyand educationally backward classes. Paragraphs 47 and 48 of the reportis as follows:

“47. The Committee discussed the amendment wherein in article338B new sub-clause (10) was proposed to be inserted. Thissub-clause (10) would read as follows:

‘Notwithstanding anything provided in clause 9, the StateGovernment shall continue to have powers to identify Sociallyand Educationally Backward Classes’

48. It was clarified by the Ministry of Social Justice andEmpowerment to the Committee that the proposed amendmentdoes not interfere with the powers of the State Governments toidentify the Socially and Educationally Backward Classes. Theexisting powers of the State Backward Classes Commission wouldcontinue to be there even after the passage of the Constitution(One Hundred and Twenty-third Amendment) Bill, 2017.”

375. With regard to the proposed Article 342A of the Constitution,in paragraph 67 the Committee recorded the observation to the followingeffect:

“67. The Committee observes that the amendments do not in anyway affect the independence and functioning of State BackwardClasses Commissions’ and they will continue to exerciseunhindered their powers of inclusion/exclusion of other backwardclasses with relation to State List.”

376. The Select Committee’s report came for consideration beforethe Rajya Sabha. During the debate, members have expressed theirapprehension regarding adversely affecting the rights of the State by theproposed constitutional amendment. The Rajya Sabha passed the Bill on31.07.2017 with amendment. Shri Thawarchand Gehlot, Minister of SocialJustice and Empowerment proposed the Bill. Several members expressedtheir apprehension that Bill is not in the interest of the powers of theState. Shri B.K. Hari Prasad speaking on the Bill stated following:

“SHRI B.K. HARIPRASAD: Sir, repealing the Act of 1993means that nothing would stay as it is and, again, the directions ofthe Supreme Court are being negated. So, this Commission wouldnot help the Backward Classes and would take away the powersof the States too. They want to centralize all the powers, as theyhave done in other cases. This cannot happen in the case of OBCS.As I have already said, though the Act was passed in Parliamentway back in 1993 for purposes of employment, etc. and way backin 2007 for education, nothing has been implemented so far. Ifthey centralize all things like employment, identification of castes,etc., they would be doing gross injustice to the OBCS. They shouldthink twice before scrapping the powers of the States because,as I have already mentioned, it is the States which identify variouscastes and communities. They know better than the people sitting

Ahere in Delhi. Hence, amending Article 342 and equatingidentification of OBC List to the SC/ST List should not be done....”

377. Shri Bhupender Yadav has also stated in his speech thatAmendment Bill cast threat to federalism and the State interest. In hisBstatement (translated from Hindi) he said:

“......that this will be big threat to the federalism of thecountry and what will happen to the rights of the States? Here Iwant to say that at least this subject should go before the Houseand through the House to the country that about five and halfCthousand castes and categories are under OBC in the CentralList of the country and about ten and half thousand castes andcategories are under OBC in the States List. The work of theiridentification (SIC) and the power that Parliament has, is for fiveand half thousand Central List only, the rights of the States willbe safe with them and therefore, they have done the work ofDstrengthening the federal structure through this amendment. Forthe first time, we have created the system that if the work offilling up the OBC posts will not be done, then the report of theOBC Commission will be placed before the Parliament. Thisshould be the demand of democracy of the country that if theElower class people do not get justice, then all those documentsshould come before the Parliament with reasons. Provision to dothe same has been made in this OBC Commission.”

378. Shri Dilip Kumar Tirkey(Odisha), in his speech has referredto State List and Central List and stated (translated from Hindi) thatFpowers to identify OBC are remained with the State.

“Shri Dilip Kumar Tirkey (Odisha) :

Sir, you gave me an opportunity to speak on the very importantAmendment Bill, for this, I thank you. Sir, in our country, reservationfor OBC was given about 24 years ago but there is clearGprovision in Article 14-15 of the Constitution that the States canmake special provision for the socio-economic backward classes.Our party BJD is in support of National Commission to be madefor OBC and we are. supporting it but we have some issues andconcerns and I would like to present them before the House. Sir,as per the present system, every State has its own OBC list andH

on that basis, they get reservation. If, in State, any caste fallsunder OBC list then it is not mandatory that it falls under theCentral or other States list. The logic behind this is that there aredifferent castes in every state and these different castes havedifferent conditions. Now, after formation of the NationalCommission, one Central list will be made and only Centre shallnotify them. Sir, this is the opinion of our party that the power ofnotification of OBC castes should remain with the States onlybecause only the concerned state thoroughly knows the fact ofnumber of castes in their States and what is their condition. Onlythe government knows thoroughly. They may face problems withcentral list. Therefore, I would like to appeal to Hon’ble Ministerand the House to add such provision in the Bill whereby thework of adding or deleting any caste from the OBC list should bestrictly done only on the recommendation of the state governmentto which it relates to. Sir, you can make national list after theuniformity comes gradually. When S.C., S.T, National Commissionwas formed, it also took much time. In my opinion, after theseparate S.C., S.T. Commission was formed, it got the status ofConstitutional body in 2003. Therefore, 1 would like to appeal tothe House and the government to reconsider and think on thispoint. Further, I would like to add one more thing that in theobservation of Hon’ble Supreme Court, there was provision ofreview after every 10 years so that other castes are not left,therefore, it should be reviewed 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. Rangarajanand Shri Pradeep Tamta that Article 342A takes away the existing powersof the State to notify list of SEBC. After the debate, the Bill waspresented and passed in Rajya Sabha.

380. The Minister, Shri Thawarchand Gehlot, after the debatestated that apprehension expressed by the members that power of theState 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 stillcontinue. The statement (translated from Hindi) made by the Minster isto the following effect:

“Sir, 4 major amendments are being made in the Constitution;one amendment pertains to part 10. of Article 338 wherein, OBC

ACommission did not have power to hear grievances of the peoplebelonging to OBC category, that was to SC Commission, now thispower is being given to the upcoming OBC Commission. There isprovision of SC Commission under Article 338, provision of STCommission is under 338(A) and now provision of constitutingOBC Commission is being made under Article 338(B). SCBCommission and ST Commission already have Constitutional statussimilarly, Constitutional status is being given to OBC Commissionas well. It simply means that the way rights, duties and power aregiven to the SC and ST Commission, same rights have also beengiven to them. Articles 341 and 342 provide for the inclusion andCremoval of the castes of the respective categories. Article 342(A) also provides for inclusion and removal of the castes belongingto OBC category by adopting the same procedure. Along withthis, various types of definitions are given in Article 366; castesbelonging to SC category are referred to in sub-clause 24 of it;castes belonging to ST category are referred to in sub-clause 25Dof it and now new Article 26(C) is added to it. On the basis of it,castes belonging to OBC category will be defined. Hon’blemembers were feared that the rights the State Commissions haveat present that might be reduced and the federal system will beviolated, pertaining to this I am to say that it will not at all happen.EThere is no provision anywhere in the Articles to reduce theirrights in any way. States have constituted OBC Commission intheir respective territories since long ago. When the Kaka KalelkarCommittee was constituted and when it submitted its report, atthat time also many States had constituted such Commission. TheState List deals with work concerned with OBC category andFnotifies them. Thereafter, on the basis of Mandal CommissionReport as well many States have constituted such Commissions.Supreme Court had also given verdict in 1992-1993, on that groundalso many States had constituted OBC Commission in theirrespective territories. At present as many as 30-31 States haveGconstituted such Commissions. Complete list of it is with me. Rightto include or remove in the States List concerned withOBCS will remain as it is and it will not be violated in anymanner.

In addition, keeping in view the sentiments of Article 15and 16, States have also exercised their powers pertaining to

making schemes in the interest of OBC category and makingprovisions in this behalf and such power will remain as it is. Weare not making any amendment in Article 15 and Article 16. Itsimply means that State Commissions will not be affected in anyway by this Constitutional amendment. Maximum number ofHon’ble Members have shared their views expressing their fearon this point. I, sincerely want to make it clear that StateGovernments 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 andthereafter it was taken by the Lok Sabha on 02.08.2017. In Lok Sabhathe Minister of Social Justice and Empowerment again made statementthat the Commission will take decision related to the Central List It isuseful to extract the statement(translated from Hindi) of the Ministermade on 02.08.2017 which is to the following effect:

“Sh. Thawar Chand Gehlot

Madam, this Commission, which will be made, will make decisionsrelated to the Central List. As there is common list related toScheduled Caste and Scheduled Tribe of the State and the Centre,so is not the case here. In it, separate list is made for Centre aswell as for States. The task of making the list of States is done bytaking decision by the States Commission.

If any State Government proposes to include any Caste of thatState in the Central List, then n this regard, this Commission willgive opinion, otherwise the opinion of this Commission is neitherbinding regarding the State List nor the Commission will considerit. According to my own belief, I assure you that the report of theCentral Commission will not be binding on the subjects related tothe State, it contains such provisions. You be assured and supportthis bill.”

382. The Lok Sabha also passed the Constitution 123[rd] AmendmentBill, 2017 on 02.08.2018 which was agreed to by the Rajya Sabha on06.08.2018 and the Constitution (102[nd] Amendment) Act, 2018 afterreceiving the assent of the President of India on 11.08.2018 was publishedon 11.08.2018 and its enforcement has been notified with effect from15.08.2018. The Constitution (102[nd] Amendment) Act inserted Article338B and 342A and Article 366(26C) which are to the following effect:

“338B. (1) There shall be Commission for the socially andeducationally backward classes to be known as the NationalCommission for Backward Classes.

(2) Subject to the provisions of any law made in this behalf byParliament, the Commission shall consist of Chairperson, Vice-BChairperson and three other Members and the conditions of serviceand tenure of office of the Chairperson, Vice-Chairperson andother Members so appointed shall be such as the President mayby rule determine.

(3) The Chairperson, Vice-Chairperson and other MembersCof the Commission shall be appointed by the President by warrantunder his hand and seal.

(4) The Commission shall have the power to regulate its ownprocedure.

(5) It shall be the duty of the Commission—

(a)to investigate and monitor all matters relating to thesafeguards provided for the socially and educationallybackward classes under this Constitution or under anyother law for the time being in force or under any orderof the Government and to evaluate the working of suchEsafeguards;

(b)to inquire into specific complaints with respect to thedeprivation of rights and safeguards of the socially andeducationally backward classes;

(c)to participate and advise on the socio-economicFdevelopment of the socially and educationally backwardclasses and to evaluate the progress of their developmentunder the Union and any State;

(d)to present to the President, annually and at such othertimes as the Commission may deem fit, reports upon theGworking of those safeguards;

(e)to make in such reports the recommendations as to themeasures that should be taken by the Union or any Statefor the effective implementation of those safeguards andother measures for the protection, welfare and socio-

economic development of the socially and educationallybackward classes; and

(f)to discharge such other functions in relation to theprotection, welfare and development and advancementof the socially and educationally backward classes asthe President may, subject to the provisions of any lawBmade by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid beforeeach House of Parliament along with memorandum explainingthe action taken or proposed to be taken on the recommendationsrelating to the Union and the reasons for the non-acceptance, ifany, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to anymatter with which any State Government is concerned, copy ofsuch report shall be forwarded to the State Government whichshall cause it to be laid before the Legislature of the State alongwith memorandum explaining the action taken or proposed tobe taken on the recommendations relating to the State and thereasons for the non-acceptance, if any, of any of suchrecommendations.

(8) The Commission shall, while investigating any matter referredto in sub-clause (a) or inquiring into any complaint referred to insub-clause (b) of clause (5), have all the powers of civil courttrying suit and in particular in respect of the following matters,namely:—

(a)summoning and enforcing the attendance of any personfrom 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 fromGany court or office;

(e)issuing commissions for the examination of witnessesand documents;

(f)any other matter which the President may, by rule,determine.

A(9) The Union and every State Government shall consult theCommission on all major policy matters affecting the socially andeducationally backward classes.”.

342A. (1) The President may with respect to any State orUnion territory, and where it is State, after consultation with theBGovernor thereof, by public notification, specify the socially andeducationally backward classes which shall for the purposes ofthis Constitution be deemed to be socially and educationallybackward classes in relation to that State or Union territory, asthe case may be.

C(2) Parliament may by law include in or exclude from the CentralList of socially and educationally backward classes specified in anotification issued under clause (1) any socially and educationallybackward class, but save as aforesaid notification issued underthe 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 article342A for the purposes of this Constitution;’.”

383. After noticing the principles of statutory interpretation ofConstitution and aids which can be resorted to in case of any ambiguityEin word, we now proceed to look into the constitutional provisionsinserted by the Constitution (102[nd] Amendment) Act.

384. The first Article which has been inserted by the Constitution(One Hundred and Second Amendment) Act is Article 338B. Thestatement of objects and reasons of the Constitution (One Hundred andFTwenty Third Amendment) Bill, 2017, we had noticed above, in whichone of the objects of the Constitutional amendment was: -

“...in order to safeguard the interests of the socially andeducationally backward classes more effectively, it is proposed tocreate National Commission for Backward Classes withconstitutional statusat par with the National Commission forGScheduled Castes and the National Commission for ScheduledTribes.

(Underlined by us)”

385. Prior to Constitution (One Hundred and Second Amendment),Hthere was already existing National Commission for Backward Classes

under the National Commission for Backward Classes, Act, 1993(in short1993 Act), which was statutory commission. To comprehend the roleand functions of the National Commission for Backward Class createdby the Constitution (One Hundred and Second Amendment) Act, weneed to notice the difference into the role and functions of the statutorycommission and Constitutional commission. Section 9 of 1993 Actprovided for the functions of the Commission, which is to the followingeffect: -

“9. Functions of the Commission.–

(1) The Commission shall examine requests for inclusionof any class of citizens as backward class in the lists and hearcomplaints of over-inclusion or under-inclusion of any backwardclass in such lists and tender such advice to the Central Governmentas it deems appropriate.

(2) The advice of the Commission shall ordinarily be bindingupon the Central Government.”

386. Section 11 provides for periodical revision of the list by theCentral 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, atthe expiration of ten years from the coming into force of this Actand every succeeding period of ten years thereafter, undertakerevision of the lists with view to excluding from such lists thoseclasses who have ceased to be backward classes or for includingin such lists new backward classes.

(2) The Central Government shall, while undertaking anyrevision referred to in sub-section (1), consult the Commission. “

387. The Act, 1993, indicates that functions of the Commissionwere confined to only examine requests for inclusion or exclusion fromthe list of backward classes. The list “was defined in Section 2C of theAct, 1993 to mean the list for reservation for appointment of backwardclass in the services under the Government of India. Article 338B nowinserted provides much larger and comprehensive role to theCommission. The Act, 1993 required the Commission to give adviceonly to the Central Government. Article 338B now requires theCommission to give advice both to the Central Government and to the

AStates, 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 thesafeguards provided for the socially and educationally backwardclasses under this Constitution or under any other law for thetime being in force or under any order of the Government andto evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to thedeprivation of rights and safeguards of the socially andeducationally backward classes;

(c) to participate and advise on the socio-economic developmentof the socially and educationally backward classes and toevaluate the progress of their development under the Unionand any State;

(d) to present to the President, annually and at such other timesas the Commission may deem fit, reports upon the working ofthose safeguards;

(e) to make in such reports the recommendations as to themeasures that should be taken by the Union or any State forthe effective implementation of those safeguards and othermeasures for the protection, welfare and socio-economicdevelopment 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 andeducationally backward classes as the President may, subjectto the provisions of any law made by Parliament, by rule specify.

(7) Where any such report, or any part thereof, relates to anymatter with which any State Government is concerned, copy ofsuch report shall be forwarded to the State Government whichshall cause it to be laid before the Legislature of the State alongwith memorandum explaining the action taken or proposed tobe taken on the recommendations relating to the State and thereasons for the non-acceptance, if any, of any of suchrecommendations.

(9) The Union and every State Government shall consult theCommission on all major policy matters affecting the socially andeducationally backward classes.”

388. The most important difference which is now brought by Article338B is sub-clause (9), which mandates that every State Government toconsult the Commission on all major policy decisions affecting sociallyand educationally backward classes. Sub-clause (9) is engrafted inmandatory form by using expression “shall”. The States thus are nowbound to consult the Commission on all major policy matters affectingsocially and educationally backward class. For the purposes of this case,we need not elaborate on the expression “policy matter” occurring insub-clause (9) of Article 338B. However, in the facts of the presentcase, the decision of the Maharashtra Government which culminated in2018 Act to exceed ceiling limit of 50 percent fixed for reservation asper existing law and to give separate reservation to Maratha inemployment under State and in educational institutions of the State whereall policy decisions within the meaning of clause (9) of Article 338B.

389. The word ‘consultation’ occurring in sub-clause (9) isexpression which has been used in several Articles of the Constitutioni.e. Article 124, 207, 233, 234, 320 and host of other articles. We maynotice the content and meaning of the expression ‘consultation’.

390. The Black’s Law Dictionary, 10[th] Edition, defines‘consultation’ as follows:-

“Consultation, n.(15c) 1. The act of asking the advice oropinion of someone(such as lawyer). 2. meeting in whichparties consult or confer. 3. Int’l law. The interactive methods bywhich states seek to prevent or resolve disputes.- consult, vb.-consulting, consultative, adj.”

Advanced Law Lexicon by P.Ramanatha Aiyar, 3[rd] Edition,defines ‘consult’:

“Consult. ‘Consult implies conference of two or morepersons or the impact of two or more minds brought about inrespect of topic with view to evolve correct or atleast asatisfactory solution. It must be directed to the essential points ofthe subject under discussion and enable the consultor to considerthe pros and cons before coming to decision. The consultation

Amay be between an uninformed person and an expert or betweentwo experts.”

391. The ‘consultation’ or deliberation is not complete or effectiveunless parties there to makes their respective points of view known tothe others and examine the relative merit of their view. The consultationBis process which requires meeting of minds between the parties involvesin the process of consultation on the material facts and points involved.The consultation has to be meaningful, effective and consciousconsultation. We may now notice few cases of this Court where theexpression ‘consultation’ as occurring in the Constitution of India hasbeen dealt with.C392. In Chandramouleshwar Prasad versus The Patna HighCourt and others, (1969) 3 SCC 56, this Court had occasion to considerthe expression ‘consultation’ as occurring in Article 233 of theConstitution. The Constitution Bench of this Court explaining theexpression ‘consultation’ held that ‘consultation’ is not an empty formalityDand it should be complete and effective. Following has been laid down inparagraph 7 of the judgment: -

“7. ...Consultation with the high Court under Article 233 isnot an empty formality. So far as promotion of officers to thecadre of District Judges is concerned the High Court is best fittedEto adjudge the claims and merits of persons to be considered forpromotion. The Governor cannot discharge his function underArticle 233 if he makes an appointment of person withoutascertaining the High Court’s views in regard thereto...

...Consultation or deliberation is not complete or effectiveFbefore the parties thereto make their respective points of viewknown to the other or others and discuss and examine the relativemerits of their views. If one party makes proposal to the otherwho has counter proposal in his mind which is not communicatedto the proposer the direction to give effect to the counter proposalwithout anything more, cannot be said to have been issued afterGconsultation. In our opinion, the notification of October 17, 1968was not in compliance with Article 233 of the Constitution. In theabsence of consultation the validity of the notification of October17, 1968 cannot be sustained.”

393. In Union of India versus Shankalchand Himatlal ShethHand 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 paragraphs38 and 39 laid down following: -

“38. In Words and Phrases (Permanent Edition, 1960,Volume 9, page 3) to ‘consult’ is defined as ‘to discuss somethingtogether, to deliberate’. Corpus Juris Secundum (Volume 16A,Ed. 1956, page 1242) also says that the word ‘consult’ is frequentlydefined as meaning ‘to discuss something together, or to deliberate’.Quoting Rollo v. Minister of Town and Country Planning(1) andFletcher v. Minister of Town and Country Planning(2) Stroud’sJudicial Dictionary (Volume 1' Third Edition, 1952, page 596) saysin the context of the expression “ consultation with any localauthorities” that “Consultation means that, on the one side, theMinister must supply sufficient information to the local authorityto enable them to tender advice, and, on the other hand, sufficientopportunity must be given to the local authority to tender advice”.Thus, deliberation is the quintessence of consultation. That impliesthat each individual case must be considered separately on thebasis of its own facts. Policy transfers on wholesale basis whichleave no scope for considering the facts of each particular caseand which are influenced by one-sided governmentalconsiderations are outside the contemplation of our Constitution.39. It may not be happy analogy, but it is commonsensethat he who wants to ‘consult’ doctor cannot keep facts up hissleeve. He does so at his peril for he can receive no true adviceunless he discloses facts necessary for diagnosis of his malady.Homely analogies apart, which can be multiplied, decision ofthe Madras High Court in R. Pushpam & Anr. v. Stale ofMadras(1) furnishes good parallel. section 43(b), Madras DistrictMunicipalities Act, 1920, provided that for the purpose of electionof Councillors to Municipal Council, the Local Government ‘afterconsulting the Municipal Council’ may determine the wards inwhich reserved seats shall be set apart. While setting aside thereservation made in respect of one of the wards on the groundthat the Local Government had failed to discharge its statutoryobligation of consulting the Municipal Council, Justice K. SubbaRao, who then adorned the Bench of the Madras High Court,observed : “The word ‘consult’ implies conference of two or

Amore persons or an impact of two or more minds in respect of atopic in order to enable them to evolve correct, or at least, asatisfactory solution.” In, order that the two minds may be able toconfer and produce mutual impact, it is essential that each musthave for its consideration full and identical facts, which can atonce constitute both the source and foundation of the finalBdecision.”

394. In IndianAdministrative Services (S.C.S.) Association,U.P. and Others,(1993) Supp.(1) SCC 730, this Court had occasionto explain the expression ‘consultation’ as occurring in All India ServicesAct, 1951. In paragraph 26, following conclusions were recorded by thisCCourt:-

“26.(1) Consultation is process which requires meetingof minds between the parties involved in the process of consultationon the material facts and points involved to evolve correct or atleast satisfactory solution. There should be meeting of mindsDbetween the proposer and the persons to be consulted on thesubject of consultation. There must be definite facts whichconstitute the foundation and source for final decision. The objectof the consultation is to render consultation meaningful to servethe 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 ofthis Court in Supreme Court Advocates on Record Association andothers versus Union of India, (1993) 4 SCC 441. Justice RatnavelFPandian delivering concurring opinion has elaborately dealt with theconsultation. 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 doesnot speak of any discretionary ‘consultation’ with any otherGauthority as in the case of appointment of Judge of the SupremeCourt as envisaged in Clause (2) of Article 124.The word‘consultation’ is powerful and eloquent with meaning, loaded withundefined intonation and it answers all the questions and all thevarious tests including the test of primacy to the opinion of theCJI. This test poses many tough questions, one of them being,

what is the meaning of the expression ‘consultation’ in the contextin which it is used under the Constitution. As in the case ofappointment of Judge of the Supreme Court and the High Court,there are some more constitutional provisions in which theexpression ‘consultation’ is used......”

396. When the Constitutional provision uses the expression‘consultation’ which ‘consultation’ is to be undertaken by Constitutionalauthority like National Commission for Backward Classes in the presentcase, the ‘consultation’ has to be meaningful, effective with all relevantmaterials and information placed before Commission. As observed above,the National Backward Class Commission has been given constitutionalstatus under Article 338B has now been entrusted with numerousfunctions regarding the backward classes. The Commission is now toadvice not only the Union Government but the State Government alsoand various measures as enumerated in sub-clause(5). The objective ofsub-clause (9) of Article 338B is to ensure that even the States did nottake any major policy decision without consulting the Commission whois competent to provide necessary advice and solution keeping in viewthe larger interest of backward class. We thus are of the consideredopinion that the consultation by the State on all policy matters affectingthe socially and educationally backward classes is now mandatory asper sub-clause(9) of Article 338B which mandatory requirement cannotbe 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 as concurrence but as held above,‘consultation’ has to be effective and meaningful. The object ofconsultation is that ‘consultee’ shall place the relevant material beforeperson from whom ‘consultation’ is asked for and advice and opiniongiven by consulting authority shall guide the authority who has asked forconsultation.

398. The regime which was invoked prior to insertion of Article342A was that central list was issued by the Central Government under1993 Act and State lists were issued by State Governments. It was alsoopen for the State to request for exclusion or inclusion from the list ofOBCs of Central list. The same procedure is to issue even after insertionof Article 342A with regard to Central list.

399. The appellants insist that Article 342A has to be given aliteral interpretation. The plain language of an Article has to be given full

Aeffect irrespective of intention of Parliament as claimed by the AttorneyGeneral as well the learned counsel for the State. The submission of theappellants is that Article 342A borrows the same scheme as is delineatedin Articles 341 and 342 of the Constitution. It is submitted that whenArticle 342A borrows the same scheme which is clear from the factthat sub-clause (1) of Article 342A is para mataria with Articles 341(1)Band 342(1), it is clearly meant that power to identify educationally andsocially backward classes is only with the President but after consultationwith the Governor of the State. It is submitted that expression the “sociallyand educationally backward classes” which shall for the purposes ofthis Constitution be deemed to be socially and educationally backwardCclasses in relation to that State or Union territory” has to be given meaningand it is only list issued by public notification under sub-clause (1) whichis the list of backward classes of State or Union territory. No other listis contemplated. Hence, the State has no authority or jurisdiction to identifybackward classes or issue any list that is so called State List. Furtherinterpreting sub-clause (2) of Article 342A, it is submitted that use ofDexpression “Central List” in sub-clause (2) is only to refer the list specifiedby the notification in sub-clause (1) of Article 342A and expression CentralList has been used in the above context.400. Elaborating the argument, it is further contended that thedefinition given in the Article 366(26C) which provides that socially andEeducationally backward classes means such backward classes as areso deemed under Article 342A for the purposes of this Constitution, theuse of the expression “for the purposes of this Constitution” clearly meansthat it is for Articles 15 and 16 also, the list which is referred to underArticle 342A has to be utilised. The definition under Article 366(26C)Fdoes 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 thatthe Constitutional provision is to be interpreted as per the intention of theParliament and Parliament having never intended to take away the powerGof the State to identify backward classes in the State for the purpose ofemployment in the State, Article 342A cannot be read in manner asclaimed by the appellants. The use of expression “Central List” undersub-clause (2) of Article 342A is decisive since the Parliament clearlyintended to confine the list as contemplated by Article 342A(1) as aCentral List for the purposes of employment in the Central GovernmentHservices and Central Government organisations.

402. Primarily the language employed in statute and theConstitutional provision is determinative factor of legislative intention.The legislative intention opens two clues. Firstly, meaning of the word inthe provision and secondly, the purpose and object pervading throughthe statutes. It is well settled that primary rule of construction is that theintention of the legislation must be found in the words used by theLegislature itself. This Court apart from the above well settled principlesof statutory interpretation has laid down some further rules ofinterpretation to interpret the constitutional provision. We may profitablyrefer to Constitution Bench judgment of this Court in State (NCT) ofDelhi vs. Union of India and another, 2018(8) SCC 501. TheConstitution Bench in the above case had occasion to interpret theConstitutional provision of Article 239AA which was inserted byConstitution (Sixty Ninth Amendment) Act, 1991. The Constitution Benchof this Court interpreted Article 239-AA by referring to principles of theconstitutional objectivity, federal functionalism, democracy and pragmaticfederalism. Justice Dipak Misra, CJ, speaking for himself, A.K. Sikriand A.M. Khanwilkar, JJ., laid down that although, primarily, it is literalrule which is considered to be the norm while interpreting statutory andconstitutional provisions, yet mere allegiance to the dictionary or literalmeaning of words contained in the provisions, sometimes, does not servethe purpose of living document. In paragraph 135 following was laiddown:

“135. The task of interpreting an instrument as dynamicas the Constitution assumes great import in democracy. Theconstitutional courts are entrusted with the critical task ofexpounding the provisions of the Constitution and further whilecarrying out this essential function, they are duty-bound to ensureand preserve the rights and liberties of the citizens withoutdisturbing the very fundamental principles which form thefoundational base of the Constitution. Although, primarily, it is theliteral rule which is considered to be the norm which governs thecourts of law while interpreting statutory and constitutionalprovisions, yet mere allegiance to the dictionary or literal meaningof words contained in the provision may, sometimes, annihilatethe quality of poignant flexibility and requisite societal progressiveadjustability. Such an approach may not eventually subserve thepurpose of living document.”

403. The Constitution Bench further observed that theory ofpurposive interpretation has gained importance where the Courts shallinterpret the Constitution in the purposive manner so as to give effect toits intention. In paragraphs 149, 150, 155 and 156 following was laiddown:

“149. Having stated the principles relating to constitutionalinterpretation we, as presently advised, think it apt to devote somespace to purposive interpretation in the context, for we shall referto the said facet for understanding the core controversy. It needsno special emphasis that the reference to some precedents has tobe in juxtaposition with other concepts and principles. As it can begathered from the discussion as well as the authorities cited above,the literal rule is not to be the primary guiding factor in interpretinga constitutional provision, especially if the resultant outcome wouldnot serve the fructification of the rights and values expressed inthe Constitution. In this scenario, the theory of purposiveinterpretation has gained importance where the courts shallinterpret the Constitution in purposive manner so as to give effectto its true intention. The Judicial Committee in Attorney Generalof Trinidad and Tobago v. Whiteman [Attorney General ofTrinidad and Tobago v. Whiteman, (1991) 2 AC 240 : (1991) 2WLR 1200 (PC)] has observed: (AC p. 247)

“The language of Constitution falls to be construed,not in 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] , three-Judge Bench has opined that constitutional provisions are requiredto be understood and interpreted with an object-oriented approachand Constitution must not be construed in narrow and pedanticsense. The Court, while holding that the Constituent AssemblyDebates 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 appreciatedconsidering the true context in which the same are usedand the purpose which they seek to achieve.”

(emphasis supplied)

155. The emphasis on context while interpretingconstitutional provisions has burgeoned this shift from the literalrule to the purposive method in order that the provisions do notremain static and rigid. The words assume different incarnationsto adapt themselves to the current demands as and when theneed arises. The House of Lords in R. (Quintavalle) v. Secy. ofState 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 purposivemethods of construction. This change was not initiated by theteleological approach of European Community jurisprudence, andthe influence of European legal culture generally, but it has beenaccelerated by European ideas: see, however, classic earlystatement of the purposive approach by Lord Blackburn in RiverWear Commissioners v. Adamson [River Wear Commissionersv. Adamson, (1877) LR 2 AC 743, at p. 763 (HL)] . In any event,nowadays the shift towards purposive interpretation is not indoubt. The qualification is that the degree of liberalitypermitted is influenced by the context.…”

(emphasis supplied)

156. Emphasising on the importance of determining thepurpose and object of provision, Learned Hand, J.in Cabell v. Markham [Cabell v. Markham, 148 2d 737 (2dCir 1945)] enunciated:

“Of course it is true that the words used, even in their literalsense, are the primary, and ordinarily the most reliable, source ofinterpreting the meaning of any writing: be it statute, contract,or anything else. But it is one of the surest indexes of matureand developed jurisprudence not to make fortress out of thedictionary; but to remember that statutes always have somepurpose or object to accomplish, whose sympathetic andimaginative discovery is the surest guide to their meaning.”

404. The shift from literal rule to purposive and objectiveinterpretation of constitutional document is adopted since theConstitution is not to be interpreted in static and rigid manner, the

AConstitution is an organic and living document which needs to beinterpreted with cardinal principals and objectives of the Constitution.The shift from literal to purposive method of interpretation has beennow more and more, being adopted for interpreting constitutionaldocument. The Constitution Bench in State (NCT of Delhi) case (supra)has also noticed one more principle which is to be applied for interpretationBof constitutional document that is constitutional culture and pragmatism.In paragraphs 165, 166 and 169 following was held:

“165. The constitutional courts, while interpreting theconstitutional provisions, have to take into account the constitutionalculture, bearing in mind its flexible and evolving nature, so that theCprovisions are given meaning which reflect the object and purposeof the Constitution.

166. History reveals that in order to promote and nurturethis spirit of constitutional culture, the courts have adopted apragmatic approach of interpretation which has ushered in an eraDof “constitutional pragmatism”.

169. Further, the Court also highlighted that balancebetween idealism and pragmatism is inevitable in order to createa workable situation ruling out any absurdity that may arise whileadopting either one of the approaches: (Supreme CourtEAdvocates-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 ofdiscretion to be the minimum, requiring only the application ofknown principles or guidelines to ensure non-arbitrariness, but tothat limited extent, discretion is pragmatic need. Conferringdiscretion upon high functionaries and, whenever feasible,introducing the element of plurality by requiring collectivedecision, are further checks against arbitrariness. This is howidealism and pragmatism are reconciled and

Integrated to make the system workable in satisfactorymanner.’ [Ed.: As observed in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, p. 699, para468.]

766. It is this pragmatic interpretation of the Constitutionthat was postulated by the Constituent Assembly, which didnot 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 laiddown in paragraph 284.11:

“284.11. In the light of the contemporary issues, thepurposive method has gained importance over the literal approachand the constitutional courts, with the vision to realise the true andultimate purpose of the Constitution not only in letter but also inspirit and armed with the tools of ingenuity and creativity, mustnot shy away from performing this foremost duty to achieveconstitutional functionalism by adopting pragmatic approach. Itis, in way, exposition of judicial sensibility to the functionalism ofthe Constitution which we call constitutional pragmatism. The spiritand conscience of the Constitution should not be lost in grammarand the popular will of the people which has its legitimacy in ademocratic set-up cannot be allowed to lose its purpose in simplesemantics.”

406. In the above judgment the Constitution Bench laid down thatthe purposive method has gained importance over the literal approach.One of us (Justice Ashok Bhushan) while delivering concurring judgmentin the Constitution Bench judgment of State (NCT of Delhi) (supra)has also laid down that the Constitutional interpretation has to be purposivetaking into consideration the need of time and constitutional principles. Itwas further held that the intent of Constitution Framers and object andpurpose of Constitutional amendment always throw light on theConstitutional provisions. Following was laid down in paragraph 537:

“537. From the above discussions, it is apparent thatconstitutional interpretation has to be purposive taking intoconsideration the need of time and constitutional principles. Theintent of Constitution Framers and object and purpose ofconstitutional amendment always throw light on the constitutionalprovisions but for interpreting particular constitutional provision,the constitutional scheme and the express language employedcannot be given go-by. The purpose and intent of theconstitutional provisions have to be found from the very

Aconstitutional provisions which are up for interpretation. We, thus,while interpreting Article 239-AA have to keep in mind the purposeand object for which the Sixty-ninth Constitution (Amendment)Act, 1991 was brought into force. After noticing the aboveprinciples, we now proceed further to examine the nature andcontent of the constitutional provisions.”B

407. We may also notice seven-Judge Bench judgment of thisCourt on principles of interpretation of Constitution. In Abhiram Singhvs. C.C. Commachen (Dead) By Legal Representatives andothers, (2017) 2 SCC 629, Justice Madan B. Lokur, with whom JusticeT.S. Thakur, CJ and Justice S.A. Bobde, concurred noticed the conflictCbetween literal interpretation or purposive interpretation. It was heldthat interpretation has, therefore, to consider not only the context of thelaw but the context in which the law is enacted. Justice Lokur extractedBennion on Statutory Interpretation in paragraph 38 to the followingeffect:

D“38. In Bennion on Statutory Interpretation[6th Edn. (IndianReprint) p. 847] it is said that:

“General judicial adoption of the term “purposive construction” isrecent, but the concept is not new. Viscount Dilhorne, citing Coke,said that while it is now fashionable to talk of purposiveconstruction of statute the need for such constructionEhas 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 thanthat. The difficulties over statutory interpretation belong to thelanguage, and there is unlikely to be anything very novel or recentFabout their solution … Little has changed over problems of verbalmeaning since the Barons of the Exchequer arrived at their famousresolution in Heydon case [Heydon Case, (1584) 3 Co Rep 7a :76 ER 637] . Legislation is still about remedying what is thoughtto be defect in the law. Even the most “progressive” legislator,concerned to implement some wholly normal concept of socialGjustice, would be constrained to admit that if the existing lawaccommodated the notion there would be no need to change it.No legal need that is ….”

408. Approving the purposive construction the Court also heldthat pragmatic view is required to be taken and the law interpretedHpurposefully. In paragraph 39 following was observed:

“39. We see no reason to take different view. Ordinarily,if statute is well drafted and debated in Parliament there is littleor no need to adopt any interpretation other than literalinterpretation of the statute. However, in welfare State like ours,what is intended for the benefit of the people is not fully reflectedin the text of statute. In such legislations, pragmatic view isrequired to be taken and the law interpreted purposefully andrealistically so that the benefit reaches the masses. …”

409. Justice T.S. Thakur delivering his concurring opinion inparagraph 74 held that an interpretation which has the effect of dilutingthe constitutional objective should be avoided and the purpose of theconstitution be kept in mind. In paragraphs 74, 76 and 77 following wasobserved:

“74. The upshot of the above discussion clearly is that underthe constitutional scheme mixing religion with State power is notpermissible while freedom to practice, profess and propagatereligion of one’s choice is guaranteed. The State being secular incharacter will not identify itself with any one of the religions orreligious denominations. This necessarily implies that religion willnot play any role in the governance of the country which must atall times be secular in nature. The elections to the State Legislatureor to Parliament or for that matter or any other body in the State

is secular exercise just as the functions of the electedrepresentatives must be secular in both outlook and practice.Suffice it to say that the constitutional ethos forbids mixing ofreligions or religious considerations with the secular functions ofthe State. This necessarily implies that interpretation of any statutemust not offend the fundamental mandate under the Constitution.An interpretation which has the effect of eroding or diluting theconstitutional objective of keeping the State and its activities freefrom religious considerations, therefore, must be avoided. ThisCourt has in several pronouncements ruled that while interpretingan enactment, the Courts should remain cognizant of theconstitutional goals and the purpose of the Act and interpret theprovisions accordingly.

76. Extending the above principle further one can say thatif two constructions of statute were possible, one that promotesthe constitutional objective ought to be preferred over the otherthat does not do so.

77. To somewhat similar effect is the decision of this Courtin State of Karnataka v. Appa Balu Ingale [State ofKarnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994SCC (Cri) 1762] wherein this Court held that as the vehicle oftransforming the nation’s life, the Court should respond to thenation’s need and interpret the law with pragmatism to furtherpublic welfare and to make the constitutional animations reality.The Court held that Judges should be cognizant of the constitutionalgoals and remind themselves of the purpose of the Act whileinterpreting any legislation. The Court said: (SCC p. 486, para 35)

“35. The Judges, therefore, should respond to the humansituations to meet the felt necessities of the time and socialneeds, make meaningful the right to life and give effect to theConstitution and the will of the legislature. This Court as thevehicle of transforming the nation’s life should respond to thenation’s needs and interpret the law with pragmatism to furtherpublic welfare to make the constitutional animations reality.Common sense has always served in the court’s ceaselessstriving as voice of reason to maintain the blend of changeand continuity of order which is sine qua non for stability in theprocess of change in parliamentary democracy. Ininterpreting the Act, the Judge should be cognizant to and alwayskeep at the back of his/her mind the constitutional goals andthe purpose of the Act and interpret the provisions of the Actin the light thus shed to annihilate untouchability; to accord tothe Dalits and the Tribes right to equality; give social integrationa fruition and make fraternity reality.””

410. Applying the above principles laid down by the ConstitutionBenches of this Court on interpretation of Constitution, in the fact ofthe present case, we need to discern the intention of Parliament in insertingArticle 342A. We have already found that reports of the ParliamentaryCommittee and the statement made by the Minister while moving theBill are relevant aids for construction of constitutional provision. TheParliamentary Committee report makes it clear that after obtaining theclarification from the Ministry that the Constitutional Amendment is notintended to take away the right of identification of backward class froma State. It submitted its report to the effect that rights of State BackwardClasses Commission shall continue unhindered. The Parliamentary

Standing Committee further noticed that the list which is contemplatedunder Article 342A is only Central List of the backward classes for aparticular State for the purposes of services under the Government ofIndia 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 theBackward Classesis taken by the State Commission and theamendment shall have no effect on the right of the State and StateBackward Classes Commission to identify the backward classes.We have extracted above the relevant statement of Minister in theforegoing paragraphs.

412. We may further notice that the above statement was madeby the Minister of Social Justice and Empowerment in the backgroundof several members of the Parliament expressing their apprehensionthat the Constitution 102[nd] Amendment shall take away rights of theStates to identify backward classes in each State. The Minister of SocialJustice and Empowerment for allaying their apprehension made acategorical statement that the Constitutional Amendment shall not affectthe power of the State, the State Backward Classes Commission toidentify the backward classes in the State.413. Learned Attorney General for India in his submission hasreferred to the statement of Minister of Social Justice and Empowermentas well as Parliamentary Select Committee report and has emphasisedthat the Parliamentary intention was never to take away the rights of theStates to identify backward classes in their respective States. LearnedAttorney General has referred to and relied on the Union’s stand takenin Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India & Ors.,where the stand of the Union on the Constitution (102[nd] Amendment)Act, 2018 was made clear in paragraph 11. We extract paragraph 11 ofthe above affidavit relied by the learned Attorney General which is tothe following effect:

“11. That, from the above, it is evident that the power to identifyand specify the SEBCs lies with Parliament, only with referenceto the Central List of SEBCs. The State Governments may havetheir separate State Lists of SEBCs for the purpose of providingreservation in recruitment to State Government services or

ABC

Aadmission in State Government educational institutions. The castes/communities included in such State Lists of SEBCs may differfrom the castes/communities included in the Central List of SEBCs.It is submitted that the inclusion or exclusion of any caste orcommunity in the State List of SEBCs is the subject of theconcerned State Government and the Government of India hasBno role in the matter.”

414. It is, thus, clear as sun light that Parliamentary intentiondiscernible from Select Committee report and statement of Ministry ofSocial Justice and Empowerment is that the intention of the Parliamentfor bringing Constitutional amendment was not to take away the powerCof the State to identify backward class in the State.

415. The Parliamentary intention was further discernible that thelist which was contemplated to be issued by President under Article342A was only the Central List which was to govern the services underthe Government of India and organisations under the Government ofDIndia. When the Parliamentary intention is discernable and admissibleas aid to statutory interpretation, we see no reason not to interpret Article342A in manner as per the intention of the Parliament noticed above.

416. We also need to reflect on the submission of petitioner thatthe scheme under Article 342A has to be interpreted in accordance withEalready existing scheme under Articles 341 and 342. There is no doubtthat the Constitutional scheme under Article 342A (1) and those of Article341(1) and 342(1) are same but there is vast difference between thelist of SC and ST as contemplated by Articles 341 and 342 of those ofbackward classes which now is contemplated under Article 342A.

417. The concept of Scheduled Castes was well known evenbefore the enforcement of the Constitution. There was already ScheduledCastes list in existence when the Constitution was enforced. We mayrefer to Government of India Act, 1935, Schedule (1), paragraph 26which defines the Scheduled Castes in the following words:

G“26.-(1) In the foregoing provisions of this Schedule thefollowing expressions have the meanings hereby assigned to them,that is to say:-

“the scheduled castes” means such castes, races or tribesor parts of or groups within castes, races or tribes, being castes,races, tribes, parts or groups which appear to His Majesty in Councilto correspond to the classes of persons formerly known as “thedepressed classes”, as His Majesty in Council may specify; and…”

418. The Government of India has also issued Scheduled CastesList under the Government of India Scheduled Castes Order 1936. TheConstitution framers were, thus, well aware with the concept ofScheduled Castes and Scheduled Tribes and hence the same schemeregarding SC was continued in the Constitution by way of Article 341 ofthe Constitution.

419. The expression ‘backward class’ does not find place in theGovernment of India Act, 1935. The Constitution framers recognisingthat backward classes of citizens need affirmative action by the State tobring them in the main stream of the society has engrafted specialprovision for backward classes. Under Article 16(4) the State wasempowered to make any provision for reservation of appointment orposts in favour of any backward class of citizens not adequatelyrepresented in services. When the Constitution empowers the State tomake any provision, the provision may embrace all aspects of measuresincluding identification of the backward classes. The Constitution Benchof this Court in Indra Sawhney has accepted and recognised this position.It is both the States and Union who are entitled to identify backwardclasses of citizens and to take measures. Indra Sawhney had, thus,issued directions to Union as well as States to constitute permanentbody for identification and for taking necessary measures. The power toidentify the backward classes was with the State and there are nointentions that the power of the State as occurring in Articles 15(4) and16(4) in any manner has been taken away by the Constitutionalamendment. The power given to the State under Articles 15(4) and 16(4)are for the benefit of backward classes of citizens. Any limitation orlimitation of such power cannot be readily inferred and has to be expresslyprovided by the Constitution. The submission of the petitioner that Article342A which relates to socially and educationally backward class shouldbe read in the Constitutional scheme as delineated under Articles 341and 342, thus, cannot be accepted.

420. Now, we come to the expression “Central List” as occurringin Article 342A (2). In pursuance of the direction issued by the Constitution

ABench of this Court in Indra Sawhney, the Parliament has enacted theNational Commission for Backward Classes Act, 1993. Section 2(c) ofthe Act defines ‘lists’ in the following words:

“Section 2(c) “lists” means lists prepared by the Governmentof India from time to time for purposes of making provision forBthe reservation of appointments or posts in favour of backwardclasses of citizens which, in the opinion of that Government, arenot adequately represented in the services under the Governmentof India and any local or other authority within the territory ofIndia or under the control of the Government of India;”

C421. Section 9 of the Act defines the functions of the Commission.Section 9 provides as follows:

“9. Functions of the Commission.–(1) The Commission shallexamine requests for inclusion of any class of citizens as abackward class in the lists and hear complaints of over-inclusionDor under-inclusion of any backward class in such lists and tendersuch advice to the Central Government as it deems appropriate.

(2) The advice of the Commission shall ordinarily be binding uponthe Central Government.”

422. The National Commission for Backward Classes Act, 1993Eclearly indicates that the Parliamentary enactment was related to servicesunder the Government of India and the Act, 1993 was not to govern orregulate identification of backward classes by the concerned State. TheStates had also enacted “State Legislation” constituting Backward ClassesCommission. In the State of Maharashtra, Maharashtra State BackwardFClasses Commission, Act was enacted in 2005. Along with passing ofthe Constitution 102[nd] Amendment, the National Commission forBackward Classes (Repeal) Act, 2018 was passed which received theassent of the President of India on 14.08.2018. We may notice Section 2of the Repeal Act which is to the following effect:“Section 2.(1) The National Commission for Backward ClassesGAct, 1993 is hereby repealed and the National Commission forBackward Classes constituted under sub-section (1) of section 3of the said Act shall stand dissolved.

(2) The repeal of the National Commission for BackwardClasses Act, 1993 shall, however, not effect,—H

(i) the previous operation of the Act so repealed or anythingduly done or suffered thereunder; or

(ii) any right, privilege, obligation or liability acquired, accruedor incurred under the Act so repealed, or

(iii) any penalty, confiscation or punishment incurred inrespect 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 punishmentas aforesaid, and any such proceeding or remedy may be instituted,continued or enforced, and any such penalty, confiscation orpunishment may be imposed or made as if that Act had not beenrepealed.

423. The National Commission for Backward Classes by theConstitutional 102[nd] Amendment was, thus, given constitutional statuswhich was available to the Commission which as statutory Commissionunder 1993 enactment.

The Parliamentary Select Committee report dated 17.07.2017 andthe Minutes of the Parliamentary Standing Committee as referred toand extracted above indicates that it was well known that there are twolists of Backward Classes, one “Central List” and other “State List”.During the Parliamentary Committee report it was clarified and expressedthat Constitutional amendment is only with regard to “Central List” whichexpression 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 ScheduledCastes”, “list of Scheduled Tribes” as occurring in Articles 341(2) and342(2) which are to following effect:

“341.Scheduled Castes. -(1) The President may withrespect to any State or Union territory, and where it is State ,after consultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or groups withincastes, races or tribes which shall for the purposes of thisConstitution be deemed to be Scheduled Castes in relation to thatState or Union territory, as the case may be.

A342. Scheduled Tribes.-(1)The President may withrespect to any State or Union territory, and where it is State,after consultation with the Governor thereof, by public notification,specify the tribes or tribal communities or parts of or groups withintribes or tribal communities which shall for the purposes of thisConstitution be deemed to be Scheduled Tribes in relation to thatBState or Union territory, as the case may be.”

425. Article 341(1) uses expression ‘Scheduled Castes’ and thesame expression finds place in sub-clause (2) when the sub-clause (2)of the Article uses expression “list of Scheduled Castes” specified innotification. Similarly, Article 342(2) also uses expression ‘list ofCScheduled Tribes’ specified in the notification.

426. Article 342A(2) uses an extra word “Central” before theexpression ‘List’ of socially and educationally backward classes. If it isto be accepted that the constitutional scheme of Articles 341 and 342was to be followed and carried in Article 342A also, the same expression,Dwhich was necessary to be used i.e. “list of socially and educationallybackward classes” which use would have been in line of the expressionoccurring in Article 341(2) and 342(2). It is, thus, clear that an extraword, namely, ‘Central’ has been added in Article 342(2) before theexpression ‘list of socially and educationally backward classes’. WhenEthe statute or Constitution uses an additional word it has to be presumedthat the use of additional word is for purpose and object and it is notsuperfluous or redundant.427. While interpreting constitutional provision, no word shall betreated as superfluous and redundant. We have noticed above that thelist for services in the Government of India was Central List which wasFbeing prepared prior to the Constitution Amendment, under Act, 1993.

428. We may also deal with the submission of the petitioner thatthe word ‘Central List’ was used in sub-clause (2) of Article 342A torefer the public notification specifying the socially educationally backwardGclasses issued by the President of India under sub-clause (1). Theexpression ‘list of socially and educationally backward classes’ specifiedin notification under sub-clause (1) is already there under sub-clause (2)which clearly meant and referred to notification issued under sub-clause(1), hence, there was no necessity for use of an additional word ‘Central’in sub-clause (1) which was wholly superfluous and redundant.We areHof the view that the word ‘Central’ was used for purpose and object,

the use of the ‘Central’ was only with the intent to limit the list issued bythe President to Central services. Sub-clause (1) of Article 342 and sub-clause (2) of Article 342A has to be given harmonious construction andwe read both the Articles together to find out purpose and intent of thelist issued by the President under sub-clause (1). It is the ‘Central List’which could be amended by the Parliament by exercising power undersub-clause (2) of Article 342A.

429. question may be asked that when under 1993 Act “CentralList” was prepared by Government of India and the “State list” wasprepared by States, what was the necessity to bring the 102[nd]Constitutional Amendment if the same regime of two lists i.e. “Centrallist” and “State list” was to continue? For answering the question wefirst look into the 1993 Act to understand the nature of exercise undertakenunder the Act regarding “Central List” and change in the exercise, ifany, after 102[nd] Constitutional Amendment.

430. We have already noticed Section 2(c) and 9 of 1993 Act. Wemay 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 theexpiration of ten years from the coming into force of this Act andevery succeeding period of ten years thereafter, undertake revisionof the lists with view to excluding from such lists those classeswho have ceased to be backward classes or for including in suchlists 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 theCentral Government from time to time for reservation of appointmentsor posts in favour of backward classes in the services under theGovernment of India and any local or other authority, within the territoryof India or under the control of Government of India was an statutoryexercise of the Government of India under the 1993 Act. All the listswhich were issued after 1993 Act by the Government of India were byexecutive orders issued from time to time. For what purpose, 102[nd]Constitutional Amendment was made? Answer is not for to seek.

432. Under the Government of India Act, 1935, the list of “theScheduled Castes” was to be specified by His Majesty in Council as per

Aclause 26 of Schedule I of the Government of India Act, 1935, whichwas also an executive function. The legal regime of the list of Scheduledcaste saw sea change under the Constitution of India as reflected inArticle 341 and 342. What was the change brought by Constitution ofIndia regarding the list of Scheduled Caste can be well understood whenwe look into the debates of the Constituent Assembly on Draft ArticlesB300A and 300B which corresponds to Articles 341 and 342 of theConstitution of India.

433. Dr. B.R. Ambedkar moving the Amendment briefly outlinedthe object and purpose of the Constitutional provisions in debates dated17.09.1949 in following words: -C

“...The object of these two articles, as I stated, was toeliminate the necessity of burdening the Constitution with longlists of Scheduled Castes and Scheduled Tribes. It is now proposedthat the President, in consultation with the Governor or Ruler of aState should have the power to issue general notification in theDGazette specifying all the Castes and tribes or groups thereofdeemed to be Scheduled Castes and Scheduled Tribes for thepurposes of the privileges which have been defined for them inthe Constitution. The only limitation that has been imposed is this:that once notification has been issued by the President, which,Eundoubtedly, he will be issuing in consultation with and on theadvice of the Government of each State, thereafter, if anyelimination was to be made from the List so notified or any additionwas to be made, that must be made by Parliament and not by thePresident. The object is to eliminate any kind of political factorshaving play in the matter of the disturbance in the Schedule soFpublished by the President.”

434. The main object of the Constitutional provision was to“eliminate any kind of political factors having play in the matter of thedisturbance in the Scheduled so published by the President.”

435. We have to read the same objective for change of thestatutory regime of backward class under 1993 Act into Constitutionalregime by Article 342A. To eliminate any kind of political factor to playwith regard to list of backward class issued by Government of Indiafrom time to time under 1993 Act, the Constitution Amendment wasbrought as was brought by Constituent Assembly by Draft Article 341

and 342. Now, by virtue of Article 342A, the list once issued by thePresident under Article 342A(1) cannot be tinkered with except by wayof Parliamentary enactment. Thus, the above was the objective of theConstitutional Amendment and not the taking away the power of theStates to identify the Backward Class in State with regard to reservationfor employment in the State services and reservation in educationalinstitution in the States. laudable objective of keeping away politicalpressure in amending the list of Backward class issued by Presidentonce has been achieved, hence, it cannot be said that the 102[nd]Constitutional Amendment was without any purpose if the power ofState to identify Backward classes in their State was to remain as it is.

436. The above also sufficiently explain the stand taken by Ministerof Social Justice and Empowerment on the floor of House. The Ministerclarified that the Constitutional Amendment is not to take away the powerof the State to identify the Backward Classes in the State for purposesof the State and was confined to “Central List” which was being preparedby the Government of India as in earlier regime. Learned AttorneyGeneral in his submission forcefully carried the same stand regardinginterpretation of Article 342A. We see no reason to reject the submissionof learned Attorney General for India and learned senior counselappearing for the States that the 102[nd] Constitutional Amendment wasnot intended to take away the power of the State regarding identificationof Backward Class for services in the State or educational institutions inthe State.

437. We also need to reflect on definition of socially andeducationally backward classes as occurring in Article 366(26C). Article366 is the definition clause of the Constitution. Article 366 begins withthe following effect:

“366. Definition in this Constitution, unless the contextotherwise requires, the following expressions have as, the meaningshereby respectively assigned to them, .....”

‘(26C) “socially and educationally backward classes” meanssuch backward classes as are so deemed under article 342A forthe purposes of this Constitution;’.”

438. When we look into the definition as inserted by Article366(26C), it is clear that definition provides that socially and educationallybackward class means such backward classes as are deemed under

938SUPREME COURT REPORTS

AArticle 342A for the purposes of this Constitution. When we haveinterpreted Article 342A to mean that Article 342A refers to ‘CentralList’ which is prepared for services under the Government of India andorganisations under the Government of India, the definition given underArticle 366(26C) which specifically refer to Article 342A has to be readtogether and list of backward classes which is not Central List shall notBbe governed by the definition under Article 366(26C). Since, the 26Chas been inserted in the context of Article 342A, if the context is listprepared by the State and it is State List, definition under (26C) shall notgovern. Article 366(26C), thus, has to be read contextually with Article342A and for no other purpose.C

439. The interpretation which we have put on Article 342A is infull accord with intention of the framers of the Constitution. Dr. B.R.Ambedkar in the Constituent Assembly had said that backwardcommunity is to be determined by each local Government. Thedetermination, i.e., identification of the backward classes was, thus, leftDto the local Government as was clearly and categorically stated by Dr.Ambedkar in the Constituent Assembly debates. It is most relevant forthe present discussion to quote the exact words used by Dr. Ambedkarwhile answering the debate on draft sub-clause, Article 10(3) which isArticle 16(4) of the present Constitution:

E“Somebody asked me: “What is backward community”?Well, I think anyone who reads the language of the draftitself will find that we have left it to be determined by eachlocal Government. backward community is communitywhich is backward in the opinion of the Government.”

F440. The framers of the Constitution, thus, had contemplated thatdetermination of backward class as occurring in draft Article 10(3), i.e,present Article 16(4) is to be done by the local Government. Theconstitutional scheme, thus, was framed in accordance with the abovebackground. After the Constitution, it is for the last 68 years backwardclass was being identified by the respective State Governments and theyGwere preparing their respective lists and granting reservation underArticles 15(4) and 16(4) as per their decision. The Constitution Benchof Indra Sawhney did recognise and held that each State Governmentis fully competent to identify backward classes and this is why the IndraSawhney directed for appointment of permanent body both by theUnion as well as by the State and consequently Commissions wereH

constituted National Backward Classes Commission and State BackwardClasses Commission. To reverse the entire constitutional schemeregarding identification of backward classes by the State which wascontinuing in the last 68 years, clear and explicit ConstitutionalAmendment, was necessary. There is no express indication in the 102[nd]Constitutional Amendment that the power of the State is being takenaway for identification of the backward classes.

441. We are not persuaded to interpret Article 342A against theintention of the Parliament which is reflected in the ParliamentaryCommittee report and the statement made by the Minister on the floorof the House. The statement of the Minister on the floor of the Housewas clear and categorical, we cannot put an interpretation which wasnever intended by the Parliament and which may have seriousconsequences with the rights of the States which neither Parliamentintended nor wanted to bring. We, thus, hold that Article 342A was broughtby Constitution 102[nd] Amendment to give constitutional status to NationalBackward Classes Commission and for publication of list by the Presidentof socially and educationally backward classes which was to be CentralList for governing employment under Government of India and theorganisations under it. The expression ‘Central List’ used in sub-clause(2) of Article 342A has been used for the purpose and object whichcannot be ignored nor lost sight. The definition clause under Article366(26C) has to be read contextually with Article 366(26C) which isreferred under Article 366(2C) itself. Thus, the definition is relevant inthe context of ‘Central List’ and the definition is not governing to listprepared by the State which was not under contemplation in Article342A.

442. We do not find any merit in the challenge to the Constitution102[nd] Amendment. The Constitution 102[nd] Amendment does not violateany basic feature of the Constitution. The argument of the learned counselfor the petitioner is that Article 368 has not been followed since theConstitution 102[nd] Amendment was not ratified by the necessary majorityof the State. The Parliament never intended to take the rights of theState regarding identification of backward classes, the Constitution 102[nd]Amendment was not covered by Proviso to Article 368 sub-clause (2),hence, the same did not require any ratification. The argument ofprocedural violation in passing the 102[nd] Constitutional Amendment cannotalso be accepted. We uphold the Constitution 102[nd] Amendmentinterpreted in the manner as above.

443. The High Court in the impugned judgment has correctlyinterpreted the Constitution 102[nd] Amendment and the opinion of theHigh Court that the Constitution 102[nd] Amendment does not take awaythe legislative competence of Maharashtra Legislature is correct andwe approve the same.

B(15) Conclusions.

444. From our foregoing discussion and finding we arrive atfollowing conclusions:

(1) The greatest common measure of agreement in six separatejudgments delivered in Indra Sawhney is:

(i) Reservation under Article 16(4) should not exceed 50%.

(ii) For exceeding reservation beyond 50%, extra-ordinarycircumstances as indicated in paragraph 810 of Justice JeevanReddy should exist for which extreme caution is to be exercised.

(2) The 50% rule spoken in Balaji and affirmed in Indra Sawhneyis to fulfill the objective of equality as engrafted in Article 14 ofwhich Articles 15 and 16 are facets. 50% is reasonable and it is toattain the object of equality. To change the 50% limit is to have asociety which is not founded on equality but based on caste rule.

(3) We are of the considered opinion that the cap on percentageEof reservation as has been laid down by Constitution Bench inIndra Sawhney is with the object of striking balance betweenthe 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 equalityand with the object to strike balance which cannot be said to bearbitrary or unreasonable.

(4) Providing reservation for advancement of any socially andeducationally backward class in public services is not the onlymeans and method for improving the welfare of backward class.The State ought to bring other measures including providingeducational facilities to the members of backward class free ofGcost giving concession in fee, providing opportunities for skilldevelopment to enable the candidates from the backward class tobe 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 thesociety should also be changed in the name of change alone.

(6) When the Constitution Bench in Indra Sawhney held that50% is upper limit of reservation under Article 16(4), it is the lawwhich is binding under Article 141 and to be implemented.

(7) We find that the Constitution Bench judgment in IndraSawhney is also fully applicable in reference to Article 15(4) ofthe Constitution of India.

(8) The setting aside of 50% ceiling by eleven-Judge Bench inT.M.A. Pai Foundation case as was laid down by St. Stephen’scase i.e. 50% ceiling in admission in aided Minority Instructionshas no bearing on the principle of 50% ceiling laid down by IndraSawhney with respect to reservation. The judgment of T.M.A.Pai was in reference to rights of minority under Article 30 and isnot relevant for Reservation under Articles 16(4) and 15(4) of theConstitution.

(9) The Constitution (Eighty-first Amendment) Act, 2000 by whichsub-clause (4B) was inserted in Article 16 makes it clear thatceiling of 50% “has now received constitutional recognition”.

(10) We fully endorse the submission of Shri Rohtagi thatextraordinary situations indicated in paragraph 810 were onlyillustrative and cannot be said to be exhaustive. We however donot agree with Mr. Rohtagi that paragraph 810 provided only ageographical test. The use of expression “on being out of themain stream of national life”, is social test, which also needs tobe fulfilled for case to be covered by exception.

(11) We do not find any substance in any of the 10 grounds urgedby Shri Rohatgi and Shri Kapil Sibal for revisiting and referringthe judgment of Indra Sawhney to larger Bench.

(12) What was held by the Constitution Bench in Indra Sawhneyon the relevance and significance of the principle of stare decisisclearly binds us. The judgment of Indra Sawhney has stood thetest of the time and has never been doubted by any judgment ofthis Court. The Constitution Bench judgment of this Court in IndraSawhney neither needs to be revisited nor referred to largerBench for consideration.

(13) The Constitution Bench in M. Nagaraj does not contain anyratio that ceiling of 50% reservation may be exceeded by showingquantifiable contemporary data relating to backwardness. TheCommission has completely misread the ratio of the judgment,when the Commission took the view that on the quantifiable dataceiling of 50% can be breached.

(14) The Commission and the High Court found existence of theextra-ordinary situations with regard to exceeding 50% ceiling inrespect to grant of separate reservation to Maratha because thepopulation of backward class is 80% and reservation limit is only50%, containing the Maratha in pre-existing reservation for OBCshall not be justice to them, which circumstances is not coveredunder the para meters indicated in Indra Sawhney’s case asextra-ordinary circumstance to breach 50% ceiling.

(15) We have found that no extraordinary circumstances weremade out in granting separate reservation of Maratha Communityby 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-ordinarycircumstances clearly violates Article 14 and 16 of the Constitutionwhich makes the enactment ultra vires.

(16) The proposition is well settled that Commissions’ reports areto be looked into with deference. However, one of the parameterof scrutiny of Commission’s report as approved by this Court isthat on the basis of data and materials referred to in the reportwhether conclusions arrived by the Commission are justified.

(17) The measures taken under Article 15(4) and 16(4) can beexamined as to whether they violate any constitutional principle,and are in conformity with the rights under Article 14, 15 and 16of the Constitution. The scrutiny of measures taken by the State,either executive or legislative, thus, has to pass test of theconstitutional scrutiny.

(18) The word ‘adequate’ is relative term used in relation torepresentation of different caste and communities in publicemployment. The objective of Article 16(4) is that backward classshould also be put in main stream to enable to share power of theState by affirmative action. To be part of public service, as accepted

by the Society of today, is to attain social status and play role ingovernance.

(19) We have examined the issues regarding representation ofMarathas in State services on the basis of facts and materialscompiling by Commission and obtained from States and othersources. The representation of Marathas in public services inGrade A, B, and comes to 33.23%, 29.03%, 37.06% and36.53% computed from out of the open category filled posts, isadequate and satisfactory representation of Maratha community.One community bagging such number of posts in public servicesis matter of pride for the community and its representation in nomanner can be said to not adequate in public services.

(20) The Constitution pre-condition for providing reservation asmandated by Article 16(4) is that the backward class is notadequately represented in the public services. The Commissionlabored under misconception that unless Maratha community isnot represented equivalent to its proportion, it is not adequatelyrepresented.

Indra Sawhney has categorically held that what is required bythe State for providing reservation under Article 16(4) is notproportionate representation but adequate representation.

(21) The constitutional precondition as mandated by Article 16(4)being not fulfilled with regard to Maratha class, both the GaikwadCommission’s report and consequential legislation areunsustainable.

(22) We having disapproved the grant of reservation under Article16(4) to Maratha community, the said decision becomes relevantand shall certainly have effect on the decision of the Commissionholding Maratha to be socially and educationally backward.Sufficient and adequate representation of Maratha community inpublic services is indicator that they are not socially andeducationally backward.

From the facts and figures as noted by Gaikwad Commissionin its report regarding representation of Marathas in public services,the percentage of Marathas in admission to Engineering, MedicalColleges and other disciplines, their representation in higheracademic posts, we are of the view that conclusion drawn by the

Commission is not supportable from the data collected. The datacollected and tabled by the Commission as noted in the reportclearly proves that Marathas are not socially and educationallybackward class.

(23) The elementary principle of interpreting the Constitution orstatute is to look into the words used in the statute, when thelanguage is clear, the intention of the Legislature is to be gatheredfrom the language used. The aid to interpretation is resorted toonly when there is some ambiguity in words or expression used inthe statute. The rule of harmonious construction, the rule of readingof the provisions together as also rule of giving effect to the purposeof the statute, and few other principles of interpretation are calledin question when aids to construction are necessary in particularcontext.

(24)The shift from literal rule to purposive and objectiveinterpretation of constitutional document is adopted since theConstitution is not to be interpreted in static and rigid manner, theConstitution is an organic and living document which needs to beinterpreted with cardinal principals and objectives of theConstitution. The shift from literal to purposive method ofinterpretation has been now more and more, being adopted forinterpreting constitutional document.

(25) The law is well settled in this county that ParliamentaryCommittee reports including speech given by the Minister in theParliament are relevant materials to ascertain the intention ofParliament while construing constitutional provisions.

(26) We are of the considered opinion that the consultation by theState on all policy matters affecting the socially and educationallybackward classes is now mandatory as per sub-clause(9) of Article338B which mandatory requirement cannot be by-passed by anyState while the State takes any major policy decision.

Sub-clause (9) of Article 338B uses the expressionG‘consultation’. It is true that the expression ‘consultation’ is not tobe read as concurrence but the ‘consultation’ has to be effectiveand meaningful. The object of consultation is that ‘consultee’ shallplace the relevant material before person from whom ‘consultation’is asked for and advice and opinion given by consulting authorityshall guide the authority who has asked for consultation.

(27) It is, thus, clear as sun light that Parliamentary intentiondiscernible from Select Committee report and statement of Ministerof Social Justice and Empowerment is that the intention of theParliament for bringing Constitutional amendment was not to takeaway the power of the State to identify backward class in theState.

(28) When the Parliamentary intention is discernable andadmissible as aid to statutory interpretation, we see no reason notto interpret Article 342A in manner as per the intention of theParliament 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 onlywith the intent to limit the list issued by the President to Centralservices. It is well settled rule of interpretation that no word in astatute 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 Article342A refers to ‘Central List’ which is prepared for services underthe Government of India and organisations under the Governmentof India, the definition given under Article 366(26C) whichspecifically refer to Article 342A has to be read together and listof backward classes which is not Central List shall not be governedby the definition under Article 366(26C). Since, the (26C) hasbeen inserted in the context of Article 342A, if the context is listprepared by the State and it is State List, definition under (26C)shall not govern.

(31) We, thus, hold that Article 342A was brought by Constitution102[nd] Amendment to give constitutional status to NationalBackward Classes Commission and for publication of list by thePresident of socially and educationally backward classes whichwas to be Central List for governing employment underGovernment of India and the organisations under it.

(32) The Constitution 102[nd] Amendment Act, 2018 does not violateany basic feature of the Constitution. We uphold the constitutionalvalidity of Constitution (One Hundred and second Amendment)Act, 2018.

[2021] 15 S.C.R.

A(16) O R R

In view of the foregoing discussions and conclusions, we decideall the Civil Appeals and Writ Petitions in this batch of cases in followingmanner:

(1)C.A.No.3123 of 2020 and other civil appeals challengingBthe impugned judgment of the High Court dated 27.06.2019are allowed. The impugned judgment of the High Courtdated 27.06.2019 is set aside. The writ petitions filed by theappellants in the High Court are allowed with followingeffect:

(a)Section 2(j) of the Act, 2018 insofar as it declaresMaratha community Educationally and SociallyBackward Category is held to be ultra vires to theConstitution and struck down.

(b)Section 4(1)(a) of Act, 2018 as amended by Act, 2019Dinsofar as it grants reservation under Article 15(4) tothe extent of 12% of total seats in educationalinstitutions including private institutions whether aidedor un-aided by the State, other than minorityeducational institutions, is declared ultra vires to theConstitution and struck down.E

(c)Section 4(1)(b) of Act, 2018 as amended by Act, 2019granting reservation of 13% to the Marathacommunity of the total appointments in directrecruitment in public services and posts under theState, is held to be ultra vires to the Constitution andFstruck down.

(d)That admissions insofar as Postgraduate MedicalCourses which were already held not to affect byorder dated 09.09.2020, which shall not be affectedby this judgment. Hence, those students who haveGalready been admitted in Postgraduate MedicalCourses prior to 09.09.2020 shall be allowed tocontinue.

(e)The admissions in different courses, Medical,Engineering and other streams which were completed

DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER

after the judgment of the High Court dated 27.06.2019till 09.09.2020 are saved. Similarly, all theappointments made to the members of the Marathacommunity in public services after the judgment ofthe High Court dated 27.06.2019 till order passed bythis Court on 09.09.2020 are saved. However, nofurther benefit can be claimed by such Marathastudents admitted in different course or Marathastudents who were appointed in public services inthe State under Act, 2018.

(f)After the order was passed on 09.09.2020 neitherany admission can be taken in the educationalinstitutions nor any appointment can be made in publicservices 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 filedunder Article 32 of the Constitution are disposed of as perabove directions.

(3)Writ Petition No.938 of 2020 challenging the Constitutionalvalidity of Constitution 102[nd] Amendment Act, 2018 isdismissed in view of the interpretation of Constitution 102[nd]Amendment Act, 2018 as above.

445. Before we close, we record our indebtedness to learnedcounsel who appeared in these cases and enlightened us with regard toissues involved in this batch of appeals and writ petitions which are ofseminal importance both for constitutional law as well as for the societyin general. All the learned counsel apart from oral submissions havesubmitted their excellent brief written notes touching various issues whichwere sought to be canvassed by them before this Court, which renderedvaluable assistance to us.

446. Parties shall bear their own costs.

S. RAVINDRA BHAT, J.

1. Franklin D. Roosevelt, the great American leader, once saidthat “The test of our progress is not whether we add more to theabundance of those who have much; it is whether we provide enoughfor those who have too little.”In these batch of appeals arising from

Acommon judgment of the Bombay High Court[1], this court is called toadjudicate upon the extent to which reservations are permissible by thestate, the correctness of its approach in designating community[2] as a“Backward Class” for the purposes of the Constitution, and, by anenactment[3] (hereafter referred to as “the SEBC Act”) defining whocould benefit from, and the extent of reservations that could be made inBvarious state established facilities and educational institutions, and in thepublic services of the State of Maharashtra.

Brief Prelude

2. Dr. Babasaheb Ambedkar, when he spoke on November 25,C1949, in the Constituent Assembly of India at the time of the adoption ofthe Constitution, presciently said:

“From January 26, 1950, onwards we are going to enter intoa life of contradictions. In politics, we will have equality, oneman, one vote, one vote and one value. In society and economy,Dwe 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 offraternity of Indians, where caste, race, gender, and religion are irrelevant,Ehas produced mixed results. As long as there is no true equality, ofopportunity, of access, and of the true worth of human beings, and aslong as the world is “broken up into fragments by narrow domesticwalls”[4] the quest remains incomplete. The present judgment is part ofan ongoing debate, which every generation of Indians has to grapplewith, and this court confront, at different points in time.F

4. The Maratha community, in the State of Maharashtra repeatedlysought reservations through diverse nature of demands through publicmeetings, marches etc, by members of the community. It also led torepresentatives and organizations of the community taking the demands

1 In WP No 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and con nected batchGof cases.

2 The Maratha community (hereafter “the Marathas”).

3 Maharashtra State Reservation for Seats for Admission in Educational Institutions inthe State and for appointments in the public services and posts under the State (forSocially and Educationally Backward Classes) SEBC Act, 2018 i.e., Maharashtra ActNo. LXII of 2018 (for short ‘SEBC Act’).H4 Rabindranath Tagore’s Gitanjali, Verse 35.

to the streets, resulting in the State of Maharashtra promulgating anOrdinance for the first time in the year 2014, which granted reservationto the community in public employment and in the field of education.Later, the Ordinance was given the shape of an Act[5], which waschallenged before the Bombay High Court.[6] The court, after consideringthe rival submissions, including the arguments of the state stayed theoperation of the enactment. The State Government then set up abackward class commission to ascertain the social and educational statusof 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 othermembers.The Committee headed by Justice Gaikwad was thusreconstituted on 3[rd] November, 2017. By its report dated 13.11.2018(the Gaikwad Commission Report)[7], the Commission, on the basis of thesurveys and studies it commissioned, and the analysis of the data collectedduring its proceedings, recommended that the Maratha class of citizensbe declared as Socially and Educationally Backward Class (“SEBC”hereafter). This soon led to the enactment of the SEBC Act, givingeffect to the recommendations of the Gaikwad Commission, resulting inreservation 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 30[th] November, 2018.Close on its heels spate of writ petitions was filed before the BombayHigh Court, challenging the identification of Marathas as SEBCs, theconclusions of the Commission, which culminated in its adoption by theState of Maharashtra and enactment of the SEBC Act, the quantum ofreservations, and the provisions of the Act itself, on diverse grounds. Allwrit petitions were clubbed together and considered. By the impugnedjudgment, the High Court turned down the challenge and upheld theidentification of Marathas as SEBCs, and further upheld the reasonspresented before it, that extraordinary circumstances existed, warrantingthe breach of the 50% mark, which was held to be the outer limit in thenine-judge decision of this court in Indra Sawhney v. Union of India[8](hereafter variously “Indra Sawhney” or “Sawhney”).

5 Maharashtra Act No. I of 2015.

6 In Writ Petition No. 3151/2014.

7 Report of the Committee, page 10.

8 Indra Sawhney v Union of India 1992 Supp (3) SCC 217.

A6. The special leave petitions, filed against the impugned judgment,were heard, and eventually, leave granted. Some writ petitions too werefiled, challenging provisions of the SEBC Act. The validity of theConstitution (102[nd]) Amendment Act[9] too is the subject matter ofchallenge, on the ground that it violates the basic structure, or essentialfeatures of the Constitution.[10]A Bench of three judges, after hearingBcounsel for the parties, referred the issues arising from these batch ofpetitions and appeals, to Constitution bench, for consideration, asimportant questions arising for interpretation

7. The five-judge bench, by its order dated 08.03.2021, referredthe following points, for decision:C

(1) Whether judgment in case of Indra Sawhney v. Union of India[1992 Suppl. (3) SCC 217] needs to be referred to larger benchor require re-look by the larger bench in the light of subsequentConstitutional Amendments, judgments and changed socialdynamics of the society etc.?D

(2) Whether Maharashtra State Reservation (of seats for admissionin educational institutions in the State and for appointments in thepublic services and posts under the State) for Socially andEducationally Backward Classes (SEBC) Act, 2018 as amendedin 2019 granting 12% and 13% reservation for Maratha communityEin addition to 50% social reservation is covered by exceptionalcircumstances as contemplated by Constitution Bench in IndraSawhney’s case?

(3) Whether the State Government on the strength of MaharashtraFState Backward Commission Report chaired by M.C. Gaikwadhas made out case of existence of extraordinary situation andexceptional circumstances in the State to fall within the exceptioncarved out in the judgment of Indra Sawhney?

(4) Whether the Constitution One Hundred and SecondGAmendment deprives the State Legislature of its power to enacta legislation determining the socially and economically backwardclasses and conferring the benefits on the said community underits enabling power?

9 Hereafter referred to as “the 103rd Amendment”.

H10 Writ petition 938/2020.

(5) Whether, States’ power to legislate in relation to “any backwardclass” under Articles 15(4) and 16(4) is anyway abridged byArticle 342(A) read with Article 366(26c) of the Constitution ofIndia?

(6) Whether Article 342A of the Constitution abrogates States’power to legislate or classify in respect of “any backward classof citizens” and thereby affects the federal policy / structure ofthe 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 withhis 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., Iam also giving my separate reasons, in respect of Point No. (1). I amhowever, not in agreement with the reasons and conclusions recorded inrespect of Point Nos. (4) and (5), for reasons to be discussed elaboratelyhereafter. I agree with the conclusions of Ashok Bhushan, J., in respectof Point No (6); however, I have given my separate reasons on this pointtoo.

9. With these prefatory remarks, I would proceed to discuss myreasons, 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 Sawhneyv. Union of India,1992 Supp. (3) SCC 217 needs to referredto larger bench of require re-look by the larger bench in thelight of subsequent Constitutional Amendments, judgments andchanged social dynamics of the society etc.?

10. careful reading of the judgments in Indra Sawhney v.Union of India[11], clarifies that seven out of nine judges concurred thatthere exists quantitative limit on reservation – spelt out @ 50%. In theopinion of four judges, therefore, per the judgment of B.P. Jeevan Reddy,J., this limit could be exceeded under extraordinary circumstances andin conditions for which separate justification has to be forthcoming bythe State or the concerned agency. However, there is unanimity in theconclusionby all seven judges that an outer limit for reservation shouldbe50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B.Sawant, JJ. indicated that there is no general rule of 50% limit on

Areservation. In these circumstances, given the general commonagreement about the existence of an outer limit, i.e. 50%, the petitioner’sargument about the incoherence or uncertainty about the existence ofthe rule or that there were contrary observations with respect to absenceof any ceiling limit in other judgments (the dissenting judgments of K.Subbarao, in T. Devadasan v Union of India[12], the judgments of S.M.BFazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas[13] andthe judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. Stateof Karnataka[14]) is not an argument compelling review orreconsideration of Indra Sawhney rule.

11. The respondents had urged that discordant voices in differentCsubjects (Devadasan, N.M. Thomas and Indra Sawhney) should leadto re-examination of the ratio in Indra Sawhney. It would be useful tonotice that unanimity in given bench (termed as “supermajority”) –denoting 5-0 unanimous decision in Constitution Bench cannot beconstrued as per se strong or compelling reason to doubt the legitimacyDof larger bench ruling that might contain narrow majority (say, forinstance with 4-3 vote, resulting in overruling of previous unanimousprecedent). The principle of stare decisis operates both vertically- inthe sense that decisions of appellate courts in the superior in verticalhierarchy, bind tribunals and courts lower in the hierarchy, and horizontally-in the sense that larger bench formation ruling, would be binding andEprevail upon the ruling of smaller bench formation. The logic in thisstems from the raison d’etre for the doctrine of precedents, i.e. stabilityin the law. If this rule were to be departed from and the legitimacy of asubsequent larger bench ruling were to be doubted on the ground that itcomprises of either plurality of opinions or narrow majority as comparedFwith previous bench ruling (which might be either unanimous or of alarger majority, but of lower bench strength), there would uncertaintyand lack of clarity in the realm of precedential certainty. If precedentiallegitimacy of larger bench ruling were thus to be doubted, there are norules to guide the courts’ hierarchy or even later benches of the samecourt about which is the appropriate reading to be adopted (such as forGinstance, the number of previous judgments to be considered fordetermining the majority, and consequently the correct law).

12 1964 (4) SCR 680.13 1976 (2) SCC 310.14 1985 SCR Suppl. (1) 352.

12. In view of the above reasoning, it is held that the existence ofa plurality of opinions or discordant or dissident judgments in the past –which might even have led to majority (on an overall headcount)supporting particular rule in particular case cannot detract from thelegitimacy of rule enunciated by later, larger bench, such as the nine-judge ruling in Indra Sawhney.

13. So far as the argument that Indra Sawhney was concernedonly with reservations under Article 16(4) is concerned, this Court isinclined to accept the submissions of the petitioner. The painstakingreasoning in various judgments, in Indra Sawhney, including thejudgments of Pandian and Sawant, JJ. would show that almost all theprevious precedents on both Article 15(4) and 16(4) were considered[15].

14. The tenor of all the judgments shows the anxiety of this Courtto decisively rule on the subject of reservations under the Constitution –in regard to backward classes and socially and educationally backwardclasses. This is also evident from the history of Article 15(4) which wasnoticed and the phraseology adopted (socially and educationally backwardclasses) which was held to be wider than “backward classes” thoughthe later expression pointed to social backwardness. Such conclusionscannot be brushed aside by sweeping submission pointing to the contextof the adjudication in Indra Sawhney.15. The argument on behalf of the States –that decision is to beconsidered as ratio only as regards the principles decided, havingregard to the material facts, in the opinion of this Court, the relianceupon judgment of this Court in Krishena Kumar and Anr. v. Union ofIndia & Ors.[16] in the opinion of this Court is insubstantial. The referenceof the dispute, i.e. notification of various backward classes for the purposeof Union public employment under Article 16(4) and the issuance of theOM dated 1990 no doubt provided the context for the Court to decide asit did in Indra Sawhney. However, to characterize its conclusions andthe considerations through the judgments of various judges, as not ratiosbut mere obiter or observations not binding upon the states is an over-

15 M.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)]; 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 PrasadParimoo v. State of J&K (1973) 1 SCC 420; N.M. Thomas [Article 16(4) & K.C.Vasanth Kumar [Article 15(4)].

16 (1990) 4 SCC 207.

Asimplification. The OM did lead to widespread protests and discontent.Initially, the writ petitions were referred to five-judge bench which,upon deliberation and hearing felt that the matter required considerationby larger bench (presumably in view of the previous ruling by theseven judges in N.M. Thomas where two judges had expressly statedthat there was no ceiling on reservation and the later five judge judgmentBin K.C. Vasanth Kumar where one judge had expressed similarreservation). It was for the purpose of decisively declaring the law thatthe nine-judge bench was formed and the question formulated by it. Notonly did the judges who constituted majority speak about this rule;even the two other judges who did not agree with the 50% ceiling rule,Cdealt with this aspect. This is evident from the judgment of Sawant, J[17]:

“518. To summarise, the questionmay be answered thus. Thereis no legal infirmityin keeping the reservations under Clause(4) alone or under Clause (4) and Clause (1) ofArticle 16 together, exceeding 50%. However, validity of theDextent of excess of reservations over 50% would depend uponthe facts and circumstances of each case including the fieldin which and the grade or level of administration for whichthe reservation is kept. Although, further, legally andtheoretically the excess of reservations over 50% may bejustified, it would ordinarily be wise and nothing much wouldEbe lost, if the intentions of the framers of the Constitutionand the observations of Dr. Ambedkar, on the subject inparticular, are kept in mind. The reservations should furtherbe kept category and gradewise at appropriate percentagesand for practical purposes the extent of reservations shouldFbe calculated category and gradewise..”16. Likewise, Pandian, J., after elaborate discussion,[18 ]recordedhis conclusions in this manner:

“189. I fully share the above views of Fazal Ali, KrishnaIyer, Chinnappa Reddy, JJ holding that no maximumGpercentage of reservation can be justifiably fixed underArticles 15(4)and/or 16(4)of the Constitution.”

17 At page 552, SCC Report.

18 In paras 177-178 at page 407-413 and the conclusions in para 189 at page 413 inIndra Sawhney (supra).H

17. Both show that the extent of whether 50% limit is applicable,was considered by all the judges. Therefore, the arguments on behalf ofthe States and the contesting respondents in this regard are unmerited.Likewise, to say that whether 50% limit of reservation existed or notwas not an issue or point of reference, is without basis; clearly thatissue did engage the anxious consideration of the court.

18. The States had argued that providing 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 itswidth, or shackle state power, which is dynamic. The state legislaturesand executives are product of contemporary democratic processes.They not only are alive to the needs of the society, but are rightfullyentitled to frame policies for the people. Given the absence of any castecensus, but admitted growth of population, there can be no doubt thatthe proportion of the backward classes has swelled, calling for greaterprotection under Articles 15 (4) and 16 (4). Also, every generation hasaspirations, which democratically elected governments are bound to meetand consider, while framing policies. In view of these factors, the fixedlimit of 50% on reservations, requires to be reconsidered. Counselsubmitted that whether reservations in given case are unreasonableand excessive, can always be considered in judicial review, having regardto the circumstances of the particular case, the needs of the state and byweighing the rights, in the context of the states’ priorities, having regardto their obligations under the Directive Principles of State Policy, whichare now deemed as fundamental as the rights under Part III of theConstitution. The court’s flexibility in testing whether measure isreasonable or not can always be retained and moulded appropriately.

19. Lt. Col Khajoor Singh v. Union of India (supra) is anauthority for the approach that this court should adopt, when it is askedto reconsider previous precedent of long standing. The court observedthat:

“We are of opinion that unless there are clear and compellingreasons, which cannot be denied, we should not depart fromthe interpretation given in these two cases and indeed fromany interpretation given in an earlier judgment of this Court,unless there is fair amount of unanimity that the earlierdecisions are manifestly wrong. This Court should not, exceptwhen it is demonstrated beyond all reasonable doubt that its

Aprevious ruling, given after due deliberation and full hearing,was erroneous, go back upon its previous ruling, particularlyon constitutional issue.”

20. In Keshav Mills (supra) the court elaborated whatconsiderations would weigh with it, when demand for review of theBlaw declared in previous judgment is made:

“..Frequent exercise by this Court of its power to review itsearlier decisions on the ground that the view pressed beforeit later appears to the Court to be more reasonable, mayincidentally tend to make law uncertain and introduceCconfusion which must be consistently avoided. …it would beinexpedient to lay down any principles which should governthe approach of the Court in dealing with the question ofreviewing and revising its earlier decisions. It would alwaysdepend upon several relevant considerations: What is thenature of the infirmity or error on which plea for reviewDand revision of the earlier view is based? On the earlieroccasion, did some patent aspects of the question remainunnoticed, or was the attention of the Court not drawn to anyrelevant and material statutory provision, or was any previousdecision of this Court bearing on the point not noticed? IsEthe Court hearing such plea fairly unanimous that there issuch an error in the earlier view? What would be the impactof the error on the general administration of law or on publicgood? Has the earlier decision been followed on subsequentoccasions either by this Court or by the High Courts? And,would the reversal of the earlier decision lead to publicFinconvenience, hardship or mischief? These and otherrelevant considerations must be carefully borne in mindwhenever this Court is called upon to exercise its jurisdictionto review and revise its earlier decisions.”

21. Identical observations were made in Jindal Stainless (supra).GIn Union of India v Raghubir Singh[19], Constitution Bench articulatedthe challenges often faced by this court:

“….The social forces which demand attention in the cauldronof change from which new society is emerging appear to

H19 1989 (3) SCR 316.

call for new perceptions and new perspectives…..Theacceptance of this principle ensured the preservation andlegitimation provided to the doctrine of binding precedent,and therefore, certainty and finality in the law, while permittingnecessary scope for judicial creativity and adaptability ofthe law to the changing demands of society. The question thenis not whether the Supreme Court is bound by its own previousdecisions. It is not. The question is under what circumstancesand within what limits and in what manner should the highestCourt over-turn its own pronouncements.”22. What the respondents seek, in asking this court to refer theissue to larger bench, strikes at the very essence of equality. Thereview of precedents undertaken by Indra Sawhney not only spannedfour turbulent decades, which saw several amendments to theConstitution, but led to debate initiated by five judges in M.R. Balaji,(and followed up in at least more than 10 decisions) later continued byseven judges in N.M. Thomas. This debate- i.e., between Balaji andIndra Sawhney, saw the court’s initial declaration that 50% ceiling onreservations should be imposed, which was questioned in threejudgments, 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 thatreservations through special provisions should not exceed 50% by 7-2majority. Two judges did not indicate any limit on reservations, they didnot also indicate any clear guiding principle about what should be thecourt’s approach, when party complains that reservations are excessiveor unreasonable. Indra Sawhney is equally decisive on whetherreservations can be introduced for any new class, or the quantum ofreservations, when introduced, or changed, can be the subject matter ofjudicial review, for which according to the majority of judges, the guidingprinciple would be the one enunciated in Barium Chemicals v. CompanyLaw Board[20].

23. The salience of the issue under consideration is that equalityhas many dimensions. In the context of Articles 15 (4) and 16 (4,) andindeed the power of classification vested in the state, to adopt protective

20 1966 (Suppl.) 3 S.C.R. 311, to the effect that where statutory power can beexercised through the subjective satisfaction of any authority or the state, it should bebased on objective materials, and on relevant considerations, eschewing extraneousfactors and considerations.

Adiscrimination policies, there is an element of obligation, or duty, toequalize those sections of the population who were hitherto, “invisible”or did not matter. The reach of the equalizing principle, in that sense iscompelling. Thus while, as explained by this court in Mukesh Kumar v.State of Uttarakhand[21]there is no right to claim direction thatreservations should be provided (the direction in that case being soughtBwas reservation in promotions in the state of Uttarakhand), the courtwould intervene if the state acts without due justification, but not to theextent of directing reservations.[22 ]Equally, the states’ obligation to ensurethat measures to uplift the educational and employment opportunities ofall sections, especially vulnerable sections such as scheduled castes andCSTs and backward class of citizens, is underscored- not only in Article15 (4) but also by Article 46, though it is directive principle.[23] It iswrong therefore, to suggest that Indra Sawhney did not examine thestates’ obligations in the light of Directive Principles; it clearly did- as isevident from the express discussion on that aspect in several judgments.[24]

D24. Protective discrimination, affirmative action, or any other termused by this court, means the measure of the state to ensure that pastinequities are not carried on as today’s burdens, that full (and one mayadd, meaningful) opportunities are given to all in participation in21 (2020) 3 SCC 1.

22 As this court did, in P & T Scheduled Caste/Tribe Employee Welfare Association vsEUnion of India & Ors. 1988 SCR Suppl. (2) 623, when, upon withdrawal of governmentorder 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 competingthe Government to make reservation under Article 16 (4) which PG NO 630 isonly an enabling clause, the circumstances in which the members belonging tothe Scheduled Castes and the Scheduled Tribes in the Posts and TelegraphsFDepartment are deprived of indirectly the advantage of such reservation whichthey were enjoying earlier while others who are similarly situated in the otherdepartments are allowed to enjoy it make the action of Governmentdiscriminatory 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, inGparticular, of the Scheduled Castes and the Scheduled Tribes, and shall protect themfrom social injustice and all forms of exploitation.”24 There is discussion about the states’ obligations, in the context of reservations, in thejudgments 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. Ahmadi,HJJ (in Paras 648-49, 695, 747, Paras 834-835 and Para 860- all SCC references).

governance structures: access to public institutions (through specialprovisions under Article 15 (4)) and adequate representation (throughreservations under Article 16 (4)). They are tools in the repertoire ofthe states to empower those hitherto barred from sharing power- and allthat went with it, of bringing first hand perspectives in policy making, ofacting as pathbreakers, of those breaking the glass ceiling- in short,imparting dimensions in democratic governance which were absent.[25]

25. constant and recurring theme in the several judgments ofIndra Sawhney was the concept of balance. This expression was usedin two senses- one, to correct the existing imbalance which existed, dueto past discriminatory practices that kept large sections of the societybackward; two, the quest for achieving the balance between the guaranteeof equality to all, and the positive or affirmative discrimination sanctionedby Article 15 (4) and 16 (4).[26] B.P. Jeevan Reddy, J (for himself andfour other judges) held that (para 808, SCC reports):

“It needs no emphasis to say that the principal aim of Articles14 and 16 is equality and equality of opportunity and thatclause (4) of Article 16 is but means of achieving the verysame objective. Clause (4) is special provision — thoughnot an exception to clause (1). Both the provisions have to beharmonised keeping in mind the fact that both are but the re-statements of the principle of equality enshrined in Article14. The provision under Article 16(4) — conceived in theinterest of certain sections of society — should be balancedagainst the guarantee of equality enshrined in clause (1) of25 The idea of empowerment is articulated in the judgment of Jeevan Reddy, in IndraSawhney firstly in Para 694: “The above material makes it amply clear that theobjective behind clause (4) of Article 16 was the sharing of State power. The State powerwhich was almost exclusively monopolised by the upper castes i.e., few communities,was now sought to be made broad-based. The backward communities who were tillthen kept out of apparatus of power, were sought to be inducted thereinto and since thatwas not practicable in the normal course, special provision was made to effectuate thesaid objective. In short, the objective behind Article 16(4) is empowerment of the deprivedbackward communities — to give them share in the administrative apparatus and inthe governance of the community. “and then, in Para 788. that “the object of Article16(4) was “empowerment” of the backward classes. The idea was to enable them toshare the state power.”

26 This theme of balance occurs 49 times in various judgments. All the judges deal withit; although Pandian and Sawant, JJ, reject the numerical ceiling of 50%, their judgmentsacknowledge the need to maintain the balance between the main parts of Articles 15 and16, while ensuring that past discrimination is remedied.

[2021] 15 S.C.R.

AArticle 16 which is guarantee held out to every citizen andto the entire society.”

26. There is more discussion on this subject by the samejudgment.[27 ]Dr. Thommen, J, expressed that reservations should not bean end all, and should not be perpetuated, beyond the objectives theyBwere designed to achieve and that “A balance has to be maintainedbetween the competing values and the rival claims and interests soas to achieve equality and freedom for all.” (Ref. Para 255, SCCreports). R.M. Sahai, J, expressed the idea in these terms (Ref. Para560, SCC reports):

C“Any State action whether ‘affirmative’ or ‘benign’,‘protective’ or ‘competing’ is constitutionally restricted firstby operation of Article 16(4) and then by interplay of Articles16(4) and 16(1). State has been empowered to invade theconstitutional guarantee of ‘all’ citizens under Article 16(1)in favour of ‘any’ backward class of citizens only if in theDopinion of the government it is inadequately represented.Objective being to remove disparity and enable theunfortunate ones in the society to share the services to secureequality in, ‘opportunity and status’ any State action must befounded on firm evidence of clear and legitimate identificationEof such backward class and their inadequate representation.Absence of either renders the action suspect. Both must existin fact to enable State to assume jurisdiction to enable it totake remedial measures….States’ latitude is further narrowedwhen on existence of the two primary, basic or jurisdictionalfacts it proceeds to make reservation as the wisdom andFlegality of it has to be weighed in the balance of equalitypledged and guaranteed to every citizen and tested on theanvil of reasonableness to “smoke out” any illegitimate useand restrict the State from crossing the clear constitutionallimits.”

G27. Constitutional adjudication involves making choices, whichnecessarily means that lines have to be drawn, and at times re-drawn-depending on “the cauldron of change”[28]. It has been remarked thatdecisions dealing with fundamental concepts such as the equality clause

27 Paras 614 and 814, SCC reports.H28 phrase used in Raghubir Singh (supra).

are “heavily value-laden, and necessarily so, since value premises(other than the values of “equality” and “rationality”) are necessaryto 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 IsraeliSupreme Court remarked, in his work:[30]

“Some argue that giving modern meaning to the languageof the constitution is inconsistent with regarding theconstitution as source of protection of the individual fromsociety[31]. Under this approach, if the constitution isinterpreted in accordance with modern views, it will reflectthe view of the majority to the detriment of the minority. Myreply to this claim is inter alia, that modern conception ofhuman rights is not simply the current majority’s conceptionof human rights. The objective purpose refers to fundamentalvalues that reflect the deeply held beliefs of modern society,not passing trends. These beliefs are not the results of publicopinion polls or mere populism; they are fundamental beliefsthat have passed the test of time, changing their form but nottheir substance.”

29. As the organ entrusted with the task of interpreting the lawsand the Constitution, the word of this court is final. Undoubtedly its roleis as co-equal branch of governance; nevertheless, its duty to interpretthe law and say what its silences (or ambiguities) denote, in the particularcontexts that it has to contend with, involve making choices. These choicesare not made randomly, or arbitrarily[32], but based on careful analysisof the rights involved, the remedies proposed by the legislative orexecutive measure, the extent of limits imposed by the Constitution, andso on. The history of the legislation or the measure, or indeed the provisionof the Constitution plays role in this process. Interpretation involves an

29 Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf.C. PERELMAN, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT1-60 (1963).

30 Aharon Barak, The Judge in Democracy, p.132.

31 See generally Antonin Scalia, “Originalism: The Lesser Evil, “57 U. Cin. L. Rev. 849,862-863 (1989).

32 Michael Kirby, Indian and Australian Constitutional Law: Recent Study inContrasts’, 60 JILI (2018) 1, p. 30; Also see Herbert Weschler, ‘Towards NeutralPrinciples of Constitutional Law’, (1959) 73 Harv. L. Rev. 1.

Aelement of line drawing, of making choices. This court’s decisions arereplete with such instances. The doctrine of classification is the firstinstance where this court drew line, and indicated choice ofinterpretation of Article 14; likewise, right from In re Kerala EducationBill[33 ]to T.M.A Pai Foundation v. State of Karnataka,[34] textuallyabsolute fundamental right, i.e. Article 30 has been interpreted not toBprevent regulation for maintenance of educational standards, andlegislation to prevent mal-administration. Yet, whenever choice is madein the interpretation of provision of this constitution, and limit indicatedby decision, it is on the basis of principle and principle alone.

30. As noticed previously, the search of this court, in IndraCSawhney – after an exhaustive review of all previous precedents, wasto indicate an enduring principle for application by courts, that wouldstrike the just balancebetween the aspirational rights – and thecorresponding duty of the states to introduce affirmative measures tocombat inequality (under Articles 15 [4] and 16 [4]) on the one hand,

Dand the principle of equality and its command against practising inequalityin proscribed areas (caste being one, in both Articles 15 and 16). It wassuggested during the hearing that the quantitative criteria (50% limit onreservation) is too restrictive leaving no breathing room for democraticallyelected governments. This court remarked in R.C. Poudyal v. Unionof India[35] thatE“124. … In the interpretation of constitutional document,“words are but the framework of concepts and concepts maychange more than words themselves”. The significance of thechange of the concepts themselves is vital and theconstitutional issues are not solved by mere appeal to theFmeaning of the words without an acceptance of the line oftheir growth. It is aptly said that “the intention of Constitutionis rather to outline principles than to engrave details”.”

31. The idea of definitive and objective principle, in the form ofa 50% ceiling on limitation, emerges on an overall reading of IndraGSawhney. The argument made by the respondents was that this courtshould not go by such ceiling limit, but rather, while exercising its judicialreview power, proceed on case-by-case approach, and resting its

33 1959 SCR 995.34 2002 (8) SCC 481.H35 1994 Supp (1) SCC 324.

conclusions on fact dependent exercises, using other criteria, such asreasonableness, proportionality, etc. for judging excessive reservations.However, what constitutes reasonableness and what is proportionate ina given case, would be unchartered and indeterminate areas. It is onething to try persuading the court to discard known principle, in the lightof its loss of relevance, yet for that argument to prevail, not only shouldthe harm caused by the existing principle be proved, but also principlethat is sought to be substituted, should have clarity, or else, the argumentwould be one asking the court to take leap in the dark. It is not enough,therefore to resort to observations such as “the length of the leap tobe provided depends upon the gap to be covered”[36] or theproportionality doctrine (deployed to judge validity of an executive orlegislative measure), because they reveal no discernible principle.Reasonableness is no doubt 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 placesthe court in difficult situation, where the state’s choices require greaterdeference, and corresponding narrowing of judicial review, given thatthe standard of review is the one indicated in Barium Chemicals. TheSouth African Constitutional Court voiced similar idea, in connectionwith an affirmative action program, when it observed that:

“The fairness of measure differentiating on any prohibitedground depends not only on its purpose, but on the cumulativeeffect of all relevant factors, including the extent of itsdetrimental effects on non-designated groups”.[38]

32. In another case, City Council of Pretoria v. Walker,[39 ]SachsJ. (of the South African Constitutional Court)remarked that:

“[p]rocesses of differential treatment which have the legitimatepurpose of bringing about real equality should not beundertaken in manner which gratuitously and insensitivelyoffends and marginalises persons identified as belonging togroups who previously enjoyed advantage.”

33. In that case, the question for judicial review was whether alocal authority in period of transition, could impose lower flat rate

36 State of Punjab v. Hiralal, 1971 (3) SCR 267.

37 The Judge in Democracy, Aharon Barak at p. 248.

38 Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C.

39 1998 (3) BCLR 257 (CC) at para. 123.

Atariff in one locality (inhabited by the historically discriminated blackcommunity, with poor infrastructure) and higher metered tariff in alocality 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 failure on the part of the local authority toput down basis for the differential levy of tariffs, rooted in substantiveBequality:

“Yet, any form of systematic deviation from the principle ofequal and impartial application of the law (as was the practicein the present case for certain period), might well have tobe expressed in law of general application which would beCjusticiable according to the criteria of reasonableness andjustifiability”.

34. Upon examination of the issue from this perspective, the ceilingof 50% with the “extraordinary circumstances” exception, is the justbalance- what is termed as the “Goldilocks solution”[40 ]- i.e. the solutionDcontaining the right balance that allows the state sufficient latitude toensure meaningful affirmative action, to those who deserve it, and at thesame time ensures that the essential content of equality, and its injunctionnot to discriminate on the various proscribed grounds (caste, religion,sex, place of residence) is retained. This court in M. Nagaraj v. UnionEof India[41]observed that “a numerical benchmark is the surestimmunity against charges of discrimination.” To dilute the 50%benchmark further, would be to effectively destroy the guarantee ofequality, especially the right not to be discriminated against on thegrounds of caste (under Articles 15 and 16).F35. In view of all these reasons, the argument that Indra Sawhneyrequires reconsideration, and ought to be referred to larger bench, ishereby rejected.

Affirmative Action and the Reservation Paradigm

Special ProvisionsG40 “Having or producing the optimal balance between two extremes” The MerrimanWebster Dictionary https://www.merriam-webster.com/dictionary/Goldilocks. The termwas used by Justice Elena Kagan in her dissent, in Arizona Free Enterprise Club’sFreedom Club PAC v. Bennett, 564 U.S. 721 (2011)“the difficulty then, is finding theGoldilocks solution-not too large, not too small, but just right.”This term is also usedto denote proper balance, in management parlance.H41 (2006) 8 SCC 212.

36. Before parting with this section, this opinion would dwell uponaffirmative action, and possibilities under the Constitution, from largerperspective. Most debates, and precedents in the country have centredround the extent of reservation and administration of quotas (reservations)under Articles 15 (4) and 16(4). The term “special provision” in Article15 (4) is of wider import, than reservations. Unlike the United States ofAmerica which – in the absence of provision enabling such specialprovisions, and which has witnessed turbulent affirmative action policyjurisprudence, the 1960s and 1970s witnessing the framing of policiesand legislation, and the subsequent narrowing of minority and racial criteria,to support affirmative action, our Constitution has specific provision.

37. During the hearing, it was pointed out that there are not enoughopportunities for education of backward classes of citizens, and thatschools and educational institutions are lacking. It was argued by thestates that sufficient number of backward classes of young adults areunable to secure admissions in institutions of higher learning.

38. It would be, in this context, relevant to notice that two importantamendments to the Constitution of India, which have the effect oftransforming the notion of equality, were made in the last 15 years. The-first was the eighty sixth amendment – which inserted Article 21A[42]which had the effect of enjoining the state to provide free and compulsoryeducation to all children in the age group 6-14. The second was theConstitution Ninety Third Amendment Act, which inserted Article 15(5)[43] enabling the state to make special provisions “for the advancementof any socially and educationally backward classes of citizens orfor the Scheduled Castes or the Scheduled Tribes in so far as suchspecial provisions relate to their admission to educational institutionsincluding private educational institutions, whether aided orunaided.” The transformative potential of these provisions (both of which

42 “21A. Right to education. — The State shall provide free and compulsory educationto 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 placeof birth..[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shallprevent the State from making any special provision, by law, for the advancement of anysocially and educationally backward classes of citizens or for the Scheduled Castes orthe Scheduled Tribes in so far as such special provisions relate to their admission toeducational institutions including private educational institutions, whether aided orunaided by the State, other than the minority educational institutions referred to inclause (1) of article 30.”

Ahave been upheld by this court – in Pramati Educational & CulturalTrust v. Union of India[44]) is yet to be fully realized. Article 21Aguarantees minimum universal education; whereas Article 15(5) enablesaccess to backward classes of citizens admissions, through specialprovisions by the state, in private educational institutions. The Rightto Education Act, 2009 provides broad statutory framework forBrealization of Article 21A.

39. The availability of these constitutional provisions, howeverdoes not mean that those belonging to backward class of citizens wouldbe better off or would reap any automatic benefits. Here, it is relevant toconsider that often, any debate as to the efficacy or extent of reservation,Cinvariably turns to one stereotypical argument- of merit. Long ago, in hisimportant work[45]– Marc Galanter had dealt with the issue of merit inthis manner:

“Let us take merit to mean performance on tests (examinations,interview, character references or whatever) thought to berelated to performance relevant to the position (or otherDopportunity) in question and commonly used as measure ofqualification for that position. (In every case it is an empiricalquestion whether the test performance is actually goodpredictor of performance in the position, much less ofsubsequent positions for which it is preparation.)EPerformance on these tests is presumably composite ofnative ability, situational advantages (stimulation in the familysetting, good schools, sufficient wealth to avoid malnutritionor exhausting work, etc.), and individual effort. The lattermay be regarded as evidence of moral desert, but neither nativeability nor situational advantages would seem to be. TheFcommon forms of selection by merit do not purport to measurethe moral desert dimension of performance. Unless one iswilling to assume that such virtue is directly proportionate tothe total performance, the argument for merit selection cannotrest on the moral deservingness of individual candidates…..”

G40. In his judgment, (in Indra Sawhney) Sawant, J. too spoke ofthis phenomenon:

“405. The inequalities in Indian society are born in homesand sustained through every medium of social advancement.

44 2014 (8) SCC 1.H45 Marc Galanter, Competing Equalities – Law and the Backward Classes in India.

Inhuman habitations, limited and crippling social intercourse,low-grade educational institutions and degrading occupationsperpetuate the inequities in myriad ways. Those who arefortunate to make their escape from these all-pervasivedragnets by managing to attain at least the minimum ofattainments in spite of the paralysing effects of the debilitatingsocial environment, have to compete with others to cross thethreshold 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 towardslearning and scholarship? Is it fair to compare theseattainments with those of one who had all the advantages ofdecent accommodationwith all the comforts and facilities,enlightened and affluent family and social life, and highquality education? Can the advantages gained on accountof the superior social circumstances be put in the scales toclaim merit and flaunted as fundamental rights? May be inmany cases, those coming from the high classes have notutilised their advantages fully and their score, thoughcompared with others, is high, is in fact not so when evaluatedagainst the backdrop of their superior advantages - may evenbe lower…..406. Those who advance merit contention, unfortunately, alsoignore the very basic fact - (though in other contexts, theymay be the first to accept it) - that the traditional method ofevaluating merit is neither scientific nor realistic. Marks inone-time oral or written test do not necessarily prove the worthor suitability of an individual to particular post, much lessdo they indicate his comparative calibre. What is more, fordifferent posts, different tests have to be applied to judge thesuitability. The basic problems of this country are mass-oriented. India lives in villages, and in slums in towns andcities. To tackle their problems and to implement measures tobetter their lot, the country needs personnel who havefirsthand knowledge of their problems and have personalinterest in solving them. What is needed is empathy and notmere sympathy. One of the major reasons why during all these

Ayears after Independence, the lot of the downtrodden has noteven been marginally improved and why majority of theschemes for their welfare have remained on paper, isperceptibly traceable to the fact that the implementingmachinery dominated as it is by the high classes, is indifferentto their problems….”B

There were observations earlier in the judgment of ChinnappaReddy, J, in K.C. Vasant Kumar (supra).

Anatole France had – in his ironic (and iconic) observationsremarked once, that

“In its majestic equality, the law forbids rich and poor aliketo sleep under bridges, beg in the streets and steal loaves ofbread.”

41. The previous rulings in Vasant Kumar (supra), and thecomments of Dr. Amartya Sen in his work “Merit and Justice” wereDconsidered in some detail, in the recent ruling in B.K. Pavitra v. Unionof India[46],

““Merit” must not be limited to narrow and inflexible criteriasuch as one’s rank in standardised exam, but rather mustflow from the actions society seeks to reward, including theEpromotion of equality in society and diversity in publicadministration.”

This court also noted that merit as we understand - i.e. performancein standardised tests, is largely dependent upon neutral factors, whichdiscriminate in favour of those who are privileged.F

42. The argument of merit thus ignores the inherent and situationalinequity between those who have no access to the means of achievingthe goal of meaningful education, i.e. to colleges and professionalinstitutions, based on competitive evaluations like tests, and those whohave all the wherewithal for it. Those from low-income groups cannotGjoin coaching programmes, which hone candidates’ skills in succeedingin an entrance test.

43. Overemphasis on merit therefore, ignores the burdens of thepast, assumes that everything is perfectly fair now and asks the question

of how the candidate fares in examinations that test only narrow rangeof skills, mainly of linear-type thought. This decontextualized, neutrality-based thinking glosses over historical and centuries old inequalities, theburdens of which continue to plague those who labour under disadvantage,and through the so called “level playing field” of common exam, orevaluation, privileges those who had, and continue to have, access towealth, power, premium education and other privileges, thus consolidatingthese advantages. Merit is resource attractor. Those with it, accumulatemore of it, more wealth and acquire more power. They use that moneyand power to purchase more increments of merit for themselves andtheir children.44. The eminent legal thinker, Michael Sandel, in his Tyrannyof Merit, bemoans that the US has now become sorting machine”thatpromises mobility on the basis of merit but entrenches privilege andpromotes attitudes toward success corrosive of the commonalitydemocracy requires” (p. 155)He further says that first, all are told thatalthough the promise of mobile society based on merit is better than ahereditary hierarchy, it is important to comprehend that this promise doesnot come with any attendant promise to attenuate inequality in society.On the contrary, this promise legitimizes “inequalities that arisefrom merit rather than birth” (p. 161).Second, we learn that systemthat rewards the most talented is likely to undervalue the rest, eitherexplicitly or implicitly.

45. The context of these observations is to highlight that evenwhen reservations are provided in education, sufficient numbers of thetargeted students may not be able to achieve the goal of admission,because of the nature of the entrance criteria. Equality of opportunitythen, to be real and meaningful, should imply that the necessary elementsto create those conditions, should also be provided for. It would thereforebe useful to examine – only by way of illustration- the schemes thatexist, for advancing educational opportunities, to Scheduled Caste (“SC”hereafter)/ Scheduled Tribe (“ST” hereafter) and SEBC students.

46. Central government scholarships are available to students fromSC communities, for studies in Class IX and X, conditional to income ofparents/ guardians being less than ` 2,50,000 per annum. Eligible studentsmust also not be covered by any other central government scholarshipsor funding, but may be eligible for the National Means-cum-Merit

AScholarship Scheme.[47] Under the pre matric scholarship scheme, dayscholars are provided with ` 225 per month for period of ten months,with books and ad hoc grant, at ` 750 p.a. Hostellers receive ` 525 permonth, for period of ten months, with similar grant at ` 1000 p.a. For2020-21 total amount of ` 750 crores was allocated, of which ` 404.93crores was released. The previous years, from 2015-16 to 2019-20, theBtotal allocated budget was ` 1,922 crores, of which ` 1,561.90 croreswas released to 121.85 lakh beneficiaries.[48]

47. Pre-matric scholarships are provided for students of Class Ito X, whose parents are manual scavengers, tanners and flyers, waste-pickers, or persons engaged in hazardous cleaning, as defined under theCManual Scavengers Act, 2013.[49] Hostellers are provided ` 700 per month,while day scholars, ` 225 per month through the academic year (tenmonths). Grants of ` 750 and ` 1000 p.a. are available to day-scholarsand hostellers respectively. Here too, selected candidates are excludedfrom all other scholarships.D

48. At the post matric level, the Central Sector Scholarship Schemeof Top Class for SC Students, makes scholarships available to SC studentswho have secured admission at IIMs, IITs, AIIMS, NITs, NLUs, othercentral government institutions, institutions of national importance, etc.[50]The scholarship covers tuition fee (capped at ` 2 lakhs per annum forEprivate institutions), living expenses at ` 2220 per month, allowance forbooks and stationery, and computer and accessories (capped at ` 45,000,as one time assistance). Eligibility criteria require total family incomefrom 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

47 Scheme List, Ministry of Social Justice and Empowerment, available at http://Fsocialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). Seealso, Notification dated 06.09.2019, ‘Funding pattern for Pre-Matric Scholarship Schemefor SC Students studying in Class 9[th ]and 10[th ]for the year 2019-20’, available at http://socialjustice.nic.in/writereaddata/UploadFile/Scm_guidelines_06092019.pdf (Lastaccessed on 21.04.2021).

48 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministryof Social Justice and Empowerment, p.50, available at http://socialjustice.nic.in/Gwritereaddata/UploadFile/ANNUAL_REPORT_2021_ENG. pdf, (Last accessed on23.04.2021).

49 Ministry of Social Justice and Empowerment, Notification dated 2.04.2018, availableat http://socialjustice.nic.in/writereaddata/UploadFile/Pre-Matric_Scholarship_haz.pdf(Last accessed on 21.04.2021).

50 Scheme List, Ministry of Social Justice and Empowerment, availableat http://Hsocialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021).

31.12.2020 ` 24.03 crores were spent on 1550 beneficiaries.[51] For theprevious years, i.e. 2016-17 to 2019-2020, the total allocated budget was` 131.50 crores, with total expenditure of ` 127.62 crores, on 6676beneficiaries.[52]

49. Similar pre-matric and post-matric scholarships are alsoavailable to ST students. At the state level too, various such scholarshipschemes are made available to SC and ST students, and studentsbelonging to minority communities and backward classes.[53 ]Similar pre-matric and post-matric scholarships are also available to ST students. Atthe state level too, various such scholarship schemes are made availableto SC and ST students, and students belonging to minority communitiesand backward classes.[54] In respect of the post-matric scholarship forST students, for the financial year 2020-21, an amount of ` 1833 croreswas budgeted, out of which ` 1829.08 crore was released.[55] For thepre-matric scholarship for ST students, for the financial year 2020-21,an amount of ` 250 crores was budgeted, out of which ` 248.9 croreswere released.

50. Under the Central Scholarship Scheme of Top-Class for STstudents, in the year 2020-2021, total budget of ` 29.31 Crores wasallocated, out of which ` 20 Crore was disbursed among 2449 (1973male and 512 female) beneficiaries.[56] In the year 2019-2020, totalbudget of ` 20 Crores was allocated, with disbursement of ` 19.1 Croresto 1914 beneficiaries.[57] The State of Telangana had the highest numberof beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradeshat 147. The States of Chattisgarh and Madhya Pradesh had 69 and 49beneficiaries respectively.[58]

51 Annual Report, 2020-2021, pg. 68, Department of Social Justice & Empowerment,Ministry of Social Justice and Empowerment, available athttp://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed on23.04.2021)

52 Ibid

53See generally, https://pib.gov.in/PressReleaseP age.aspx?PRID=1593767 (Lastaccessed on 21.04.2021).

54 See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767(Last accessedon 21.04.2021).

55 Post-Matric Scholarship, Ministry of Tribal Affairs, data available athttps://dashboard.tribal.gov.in/(Last accessed on 23.04.2021).

56 Ibid.

57 Ibid.

58 Ibid.

A51. Under the National Fellowship Scheme for ST students (athigher levels of education such as Ph.D., M.Phil), an amount of ` 90.78Cr was disbursed to 2525 fellowship scholars.[59] Under the NationalOverseas Scholarship for ST students, for post-graduate study abroad,in the year 2020-21, an amount of ` 4.76 crore was disbursed to 30beneficiaries.[60]B

52. In respect of Other Backward Classes (OBCs), centralgovernment pre-matric and post-matric (Class 11-12[th] and above) areavailable, for students whose parents’/guardian’s income from all sourcesdoes not exceed ` 2.5 lakhs. Under the pre-matric scholarship, ` 100/-per month for 10 months is given to day scholars and ` 500/- per monthCfor 10 months is given to hostellers. For the year 2020-2021 (as on31.12.2020) total budget of ` 175 crore was allocated, out of which` 118.09 crore was provided to 200 lakh beneficiaries. In the previousyears, from 2015-16 to 2019-20, 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 year2020-2021, total budget of ` 1100 crore was allocated, out of which, `802.27 crores were provided to 80 lakh beneficiaries. In the previousyears, from 2015-16 to 2019-20, total budget of ` 5,035.75 crore wasallocated, out of which ` 4,827.89 crore was released for 207.96 lakhEbeneficiaries.[62]

54. national fellowship is also available to OBC students at thedegree levels of M.Phil and Ph.D. Fellowships are awarded to researchstudents, at ` 31,000 per month for junior research fellows and at` 35,000 per month for senior research fellows. Under this fellowship,Ffor the year 2020-21, 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 wasallocated, out of which approx. ` 154 crore was provided to 7,200beneficiaries (5,100 provisional).[63]

59 Ibid.G60

60 Ibid.

61 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministryof Social Justice and Empowerment, p. 104-105, available at http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf(Last accessed on23.04.2021).

62 Ibid., at p. 105.H63 Ibid., at p. 107-108.

55. report of the NITI Aayog[64], based on data from the 2001Census, analysed that the gap between literacy rates of the generalpopulation and that of the SC population had not reduced over the years.The rate of school drop-outs was seen as crucial indicator of lack ofeducational development. The dropout rates for SC children were seento 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 SCpopulation and the general category was seen to increase at higher levelsof schooling. Data on dropout rates for ST students in the year 2006-07shows 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%, whileat the secondary level (Class I- X), the drop-out rate is 78.7%.[65] For thesame time frame, the drop out rates for SC students at the primary levelwas 36%; at the elementary level, 53.1%; and at the secondary level,69%.[66]According 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 case for an intensive study into diverseareas such as the adequacy or otherwise of scholarships, quantumdisbursed, eligibility criteria (the maximum family income limit of` 2,50,000/- possibly excludes large segments of beneficiaries, giventhat even Group employment in the Central Government can result inexclusion of any scholarships to children of such employees), andreconsideration about introducing other facilities, such as incentivisingscholarships, grants and interest free or extremely low interest educationloans to widen the net of recipients and beneficiaries. States and theUnion government may also revisit the threshold limits and their tendencyto exclude otherwise deserving candidates. For instance, even if an SC/

64 Available at https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/11th/11_v1/11v1_ch6.pdf (Last accessed on 21.04.2021).

65 Reports and Publications, Ministry of Statistics and Program Implementation, availableathttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /c s o _ r s r _ n _ p u l i t i o n _ u n i t / O S I O I S I O T S V O L - 2 /-Pages%20from%20educations1.13.pdf (Last accessed on 22.04.2021).66 Reports and Publications, Ministry of Statistics and Program Implementation, availableathttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /c s o _ r s r _ n _ p u l i t i o n _ u n i t / O S I O I S I O T S V O L - 2 /-Pages%20from%20educations1.12.pdf (Last accessed on 22.04.2021).

67 Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at http://m o s p i . n i . i n / s i t s / u l t / i l s / p u l i t i o n _ r p o r t s /Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last accessed on 22.04.2021).

AST or SEBC household has an income of ` 6,00,000/- year, the denial ofscholarship to deserving student from that background cannot equateher or him with another candidate, whose family income might be fourtimes that amount, and who might be able to pay annual fees for medicaleducation, in private educational institutions. In other words, there needsto be constant scrutiny, review and revision of these policies and theirBeffectiveness, besides the aspect of increasing funding, etc.The wider possibilities of affirmative action- USA, South Africaand Canada

The US Experience

C57. In the US, in Fullilove v. Klutznick,[68 ] the US Supreme Courtrejected challenge to the constitutionality of federal law demandingpreferential treatment of minority-owned businesses through racialquota system. The challenged law[69] prescribed pre-conditions for receiptof state and local government public works grants upon the private entity’sassurance that at least 10% of the amount of each grant would be spentDon contracts with minority business enterprises (MBEs). Public contractsnormally were awarded to the lowest bidder; the provision operated togrant public works contracts to the lowest bidder who complied with the10% set-aside (quota) goal. The executive policy framed pursuant tothe Act imposed upon those receiving grants and their prime contractorsan affirmative duty to seek out and employ available, qualified, and bonaEfide MBEs. As the objective of the MBE provision was to overcomelongstanding barriers to minority participation in public contractingopportunities, the set-aside provision i.e. condition favoured higher MBEbid as long as the higher price reflected inflated costs resulting from pastdisadvantage and discrimination. The administrative program thereforeFauthorized the Economic Development Agency to waive the minorityparticipation requirement where high minority business bid is notattributable to the present effects of past discrimination. The plaintiffs inFullilove were non-minority associations of construction contractors andsubcontractors. They alleged that enforcement of the Public Works Act’sMBE requirement caused economic injury to the non-minority businessGplaintiffs. In addition, the plaintiffs asserted that the MBE 10% quotaprovision violated the equal protection clause of the fourteenth amendmentand the equal protection element of the due process clause of the fifthamendment.

68 448 U.S. 448 (1980).H69 Section 103(f)(2), Public Works Employment Act of 1977

58. The US Supreme Court held that the interference with thebusiness opportunities of non-minority firms caused by the 10% set-aside program did not render the Act constitutionally defective. The Courtrejected the alleged equal protection violation on the grounds that theAct ensured equal protection of the laws by providing minority businessesan equal opportunity to participate in federal grants. The later decisionAdarand Constructors, Inc. v. Penal[70] held that federal affirmativeaction programs are now subject to strict scrutiny, just as state and localprograms were since 1989. The court held that “federal racialclassifications, like those of state, must serve compellinggovernmental interest, and must be narrowly tailored to further thatinterest.”

South Africa

59. Under South Africa’s Constitution of 1998, Chapter 2, Article9(3) dealing with “Equality” reads thus:

“The state may not unfairly discriminate directly or indirectlyagainst 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 broadlyrepresentative of the South African people, with objectivity[and] fairness,” and it needs “to redress the imbalances ofthe past to achieve broad representation”.

60. In furtherance of these provisions, in October 1998, theEmployment Equity Act was legislated. The Act starts with the premisethat “pronounced disadvantages” created by past policies cannot beredressed by simple repeal of past discriminatory laws, and there wasa need to enforce “employment equity to redress the effects ofdiscrimination,” and “achieve diverse workforce broadlyrepresentative” of the people of South Africa. The Act has two purposes:(1) to promote “equal opportunity and fair treatment in employmentthrough the elimination of unfair discrimination,” and (2) to implement“affirmative action measures to redress the disadvantages inemployment experienced by designated groups, in order to ensuretheir equitable representation in all occupational categories and70 515 U.S. 200 (1995)

Alevels in the workforce.” Designated groups are defined as black people(who include Africans, Coloureds and Indians), women, and people withdisabilities.

61. Affirmative action measures for designated groups must includeidentification and removal of barriers adversely affecting them, actionsBto further diversity, reasonable accommodations to ensure equalopportunity and equitable representation, and efforts at training to retainand develop them. Representation is extended to all occupationalcategories and levels in the workforce and this is to be ensured throughpreferential treatment and numerical goals, but not with quotas. TheEmployment Equity Plan itself must state the objectives to be achievedCeach year, the affirmative action measures with timetables and strategiesto be implemented to accomplish them, and the procedure to evaluatethe plan. Each plan ought not to be for period of less than one year, andnot longer than five years. (At the expiration of one plan, another mayfollow.) While preferential treatment is meant for only suitably qualifiedDpeople, such suitability may be product of formal qualifications, priorlearning, relevant experience, or capacity to acquire, within reasonabletime, the ability to do the job.

62. Under the Employment Equity Act, employers must consultwith their employees and representative trade unions, after which anEaudit of employment policies and practices in the workplace must beundertaken. Analysis of the information garnered in the audit is meant toassist in developing demographic profiles of the work force, and identifyingbarriers to the employment or advancement of designated groups. Under-representation of designated groups in all categories of work must alsobe identified. Quotas are expressly prohibited under Section 15(3) of theFAct. In 2003, the Black Economic Empowerment Act was legislated.This Act has as its purpose the “economic empowerment of all blackpeople, including women, workers, youth, people with disabilitiesand people living in rural areas”. To measure compliance with blackeconomic empowerment (BEE) requirements, the Department of TradeGand Industry uses balanced scorecard, consisting of three broadcomponents. The scorecard will be used for government procurement,public-private partnerships, sale of state-owned enterprises, when licensesare applied for, and for any other relevant economic activity. Strategiesaimed at levelling the playing field may include the elimination ofemployment barriers such as adapting testing requirements to compensateH

for educational disadvantage or lack of work experience[71]; reviewingrecruitment, selection and promotion procedures to ensure fairness injob competition[72]; accelerated and corrective training; and thetransformation of work environments that exclude or otherwisedisadvantage designated groups, e.g. measures aimed at integrating careerand family responsibilities[73] (flexible work schedules, child care structures,facilitating career breaks, etc).

Canada

63. In Canadian National Railway Co v. Canada (CanadianHuman Rights Commission)[74], Dickson J. reasoned that the purpose ofan affirmative action programme is to break continuing cycle ofsystemic discrimination. The goal is not to compensate past victims oreven to provide new opportunities for specific individuals who have beenunfairly refused jobs or promotion in the past, but to ensure that futureapplicants and workers from the affected groups will not face the sameinsidious barriers that blocked their forebears.

64. In Ontario (Human Rights Commission) v Ontario (Ministryof Health)[75], the Ontario Court of Appeal interpreted the affirmativeaction provisions of the Ontario Human Rights Code 1990 and theCanadian Human Rights Act 1985, to reinforce the important insightthat substantive equality requires positive action to ameliorate theconditions of disadvantaged groups. One of the important purposes ofthe provisions is to protect affirmative action programmes from beingchallenged as violating the formal equality provisions contained elsewherein the Code or Act. Affirmative action, according to the court, is aimedat

“achieving substantive equality by enabling or assistingdisadvantaged persons to acquire skills so that they cancompete equally for jobs on level playing field with those

71 Durban City Council (Physical Environment Service Unit) v. Durban MunicipalEmployees’ 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.

73 Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1996] 1 CMLR 175 (ECJ) at181.

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 OntarioLaw Reform Commission) Toronto (1993) 28.

who do not have the disadvantage. The purpose of s. 14(l) isnot simply to exempt or protect affirmative action programsfrom challenge. It is also an interpretative aid that clarifiesthe full meaning of equal rights by promoting substantiveequality”.[76]

BPossibilities for Affirmative Action other than Reservation inIndia

65. The US practice of encouraging diversity by incentivising itby for instance, the award of government contracts to firms that have agood record of recruiting members from racially or ethnicallyCdisadvantaged groups, has found echo in policies in Madhya Pradesh.Other States such as UP, Bihar, Karnataka, AP and Telangana havefollowed policy of affirmative action in awarding contracts and in thatmanner protecting SC and ST entrepreneurs’ entry into trade, businessand other public works as contractors. Recently, Karnataka enacted alegislation, namely, the Karnataka Transparency in Public ProcurementD(Amendment) Act, 2016, which reserves 24.1% for SC and ST contractsin all Government works, public contracts up to ` 50 lakh. This law aimsto ensure the presence of SC and ST contractors and to get the awardof Government work without rigid tender process. Orissa, too providesfor price preference to SC/ST entrepreneurs to the extent of 10% ofEcontracts of certain value.66. There is empirical evidence, in India, in different sectors thataccess to productive employment is confined to few sections of theworkforce, among the most backward of classes, while the rest eke outa living in the informal economy. The faultlines of division between thoseFwho are employed in good jobs and those who are “excluded” run deep,and are based on caste, religion, region, and other sectarian divisions allof which overlap with class and gender, such that even within the smallsection 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 topGechelons of the private corporate sector. While private employers firmlybelieve that jobs should be allocated on the basis of individual merit,their views about how merit is distributed overlaps strongly with existingstereotypes around caste, religion, gender and regional differences.

67. method by which the private sector can substantivelycontribute to alleviate discrimination and inequality, is through its corporatesocial responsibility (CSR) programmes. CSR has been compulsory inIndia since 2013. These initiatives have taken two major forms: educationof the under-privileged either through special schools or other programmesto support school-going children, and support to poor women throughhome-based work or micro-finance. While these measures are significant,there are other spheres where CSR could be directed, with even greaterbenefits. The definition and scope of CSR needs to be broadened toinclude measures to counteract the natural tendencies towards exclusionof certain groups. Private sector managements need to show sensitivityto societal patterns of exclusion and must consciously make an attemptnot to fall prey dominant social stereotypes, which penalize people dueto their birth into stigmatizing jobs, even if they might be individuallyqualified and competent.

68. In addition to being sensitized to the problem of under-representation at the time of employment (by actively pursuing policiesto promote and/or by equal opportunity employment policies), privatecompanies can also pay attention to supplier diversity in matters ofprocurement. By encouraging supplies from firms owned by SCs, STs,or those from backward class or deprived classes, the large organizedprivate sector in India could give huge boost to the micro, medium andsmall 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 financialincentives by the government, but larger firms are expected to source apart of their supplies from minority-owned businesses. Given thattypically, SC, ST and backward class individuals owned micro enterprisesare likely to employ greater proportion of persons from these communities(as compared to enterprises owned by upper-caste groups), an activesupplier diversity programme would also boost employment.

69. In view of all these developments, it is time that the states andthe Union government gather data about the extent and reach of theexisting schemes for employment, and in the field of education, takesteps to ensure greater access, by wherever necessary, increasing funding,increasing the number and extent of coverage of scholarships, and settingup all manner of special institutions which can train candidates aspiringfor higher education, to increase their chances of entry in admission

Atests, etc. Likewise, innovative employment incentives to the privatesector, especially in the manner of employment in contracts or projectsawarded by the state or its instrumentalities, need to be closely examinedand implemented. These welfare measures can also include giving taxincentives to schemes that fund scholarships and easy (or interest free)loans to SC, ST and SEBC students, which can enhance their access toBeducational institutions. Today, even if an SC, or SEBC candidate securesadmission in common entrance examination for medical seat, in aprivate institution, the amounts charged as annual fees would excludemost of such candidates (even those who are ineligible to governmentscholarships, as being marginallyabove the threshold of ` 2,50,000/- perCannum annual family income). Other incentives, such as awarding markswhile evaluating private entities for the purpose of public tenders, andgiving them appropriate scores or advantage, if their workforce employsdefined percentages of SC/ST or SEBC individuals, etc. too would makea substantial difference.

DRe Point No (2) Whether Maharashtra State Reservation (ofseats for admission in educational institutions in the State and forappointments in the public services and posts under the State) forSocially and Educationally Backward Classes (SEBC) Act, 2018as amended in 2019 granting 12% and 13% reservation for Marathacommunity in addition to 50% social reservation is covered byEexceptional circumstances as contemplated by Constitution Benchin Indra Sawhney’s case?

and Re Point No (3) Whether the State Government on thestrength of Maharashtra State Backward Commission Report chairedby M.C. Gaikwad has made out case of existence of extraordinaryFsituation and exceptional circumstances in the State to fall withinthe exception carved out in the judgment of Indra Sawhney?

70. I agree, with respect, with the reasoning and conclusions ofAshok Bhushan, J. on the above two points of reference and have nothingto add.GRe: Point No. 4 Whether Article 342 of the Constitutionabrogates State power to legislate or classify in respect of “anybackward 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 anywayH

abridged by Article 342(A) read with Article 366(26c) of theConstitution of India?

I.Relevant provisions in consideration

71. Both the above points of reference, by their nature, have to beand therefore, are considered together. The Constitution (123[rd]Amendment) Bill, 2017, after its passage became the Constitution (OneHundred and Second Amendment) Act, 2018; it received the assent ofthe President of India and came into force on 15.08.2018. The amendmentinserted Articles 338B and 342A. These are reproduced below:

“338B. (1) There shall be Commission for the socially andeducationally backward classes to be known as the NationalCommission for Backward Classes.

(2) Subject to the provisions of any law made in this behalfby Parliament, the Commission shall consist of Chairperson,Vice-Chairperson and three other Members and the conditionsof service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be suchas the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Membersof the Commission shall be appointed by the President bywarrant under his hand and seal.

(4) The Commission shall have the power to regulate its ownprocedure.

(5) It shall be the duty of the Commission— (a) to investigateand monitor all matters relating to the safeguards providedfor the socially and educationally backward classes underthis Constitution or under any other law for the time being inforce or under any order of the Government and to evaluatethe working of such safeguards;

(b) to inquire into specific complaints with respect to thedeprivation of rights and safeguards of the socially andeducationally backward classes;

(c) to participate and advise on the socio-economicdevelopment of the socially and educationally backwardclasses and to evaluate the progress of their developmentunder the Union and any State;

(d) to present to the President, annually and at such othertimes as the Commission may deem fit, reports upon theworking of those safeguards;

(e) to make in such reports the recommendations as to themeasures that should be taken by the Union or any State forBthe effective implementation of those safeguards and othermeasures for the protection, welfare and socio-economicdevelopment of the socially and educationally backwardclasses; and

(f) to discharge such other functions in relation to theCprotection, welfare and development and advancement of thesocially and educationally backward classes as the Presidentmay, subject to the provisions of any law made by Parliament,by rule specify.

(6) The President shall cause all such reports to be laid beforeeach House of Parliament along with memorandumexplaining the action taken or proposed to be taken on therecommendations relating to the Union and the reasons forthe non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to anyEmatter with which any State Government is concerned, copyof such report shall be forwarded to the State Governmentwhich shall cause it to be laid before the Legislature of theState along with memorandum explaining the action takenor proposed to be taken on the recommendations relating tothe State and the reasons for the non-acceptance, if any, ofFany of such recommendations.

(8) The Commission shall, while investigating any matterreferred to in sub-clause (a) or inquiring into any complaintreferred to in sub-clause (b) of clause (5), have all the powersof civil court trying suit and in particular in respect of theGfollowing matters, namely:—

(a) summoning and enforcing the attendance of any personfrom 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 anycourt or office;

(e) issuing commissions for the examination of witnesses anddocuments;

(f) any other matter which the President may, by rule,determine.

(9) The Union and every State Government shall consult theCommission on all major policy matters affecting the sociallyand educationally backward classes.”

xxxxxxxxxxxx

xxxxxx

“342A. (1) The President may with respect to any State orUnion territory, and where it is State, after consultationwith the Governor thereof, by public notification, specify thesocially and educationally backward classes which shall forthe purposes of this Constitution be deemed to be sociallyand educationally backward classes in relation to that Stateor Union territory, as the case may be.

(2) Parliament may by law include in or exclude from theCentral List of socially and educationally backward classesspecified in notification issued under clause (1) any sociallyand educationally backward class, but save as aforesaid anotification issued under the said clause shall not be variedby any subsequent notification.”

72. Article 366(26C), which defined “socially and educationallybackward classes “too was inserted; it is reproduced below, for the sakeof reference:

‘366. Definitions.-In this Constitution, unless the contextotherwise requires, the following expressions have themeanings hereby respectively assigned to them, that is to say-

xxxxxxxxxxxxxxxxxx

(26C) “socially and educationally backward classes” meanssuch backward classes as are so deemed under article 342Afor the purposes of this Constitution;’

A73. The Bill which was moved in Parliament by which the102[nd]amendment was introduced, interalia, stated as follows:

“STATEMENT OF OBJECTS AND REASONS

xxxxxxxxxxxx

2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003,a separate National Commission for Scheduled Tribes wascreated by inserting new article 338A in the Constitution.Consequently, under article 338 of the Constitution, thereference was restricted to the National Commission for theScheduled Castes. Under clause (10) of article 338 of theConstitution, the National Commission for Scheduled Castesis presently empowered to look into the grievances andcomplaints of discrimination of Other Backward Classes also.

3. In the year 1992, the Supreme Court of India in the matterof Indra Sawhney and others Vs. Union of India and others(AIR 1993, SC 477) had directed the Government of India toconstitute permanent body for entertaining, examining andrecommending requests for inclusion and complaints of over-inclusion and under-inclusion in the Central List of OtherBackward Classes. Pursuant to the said Judgment, theNational Commission for Backward Classes Act was enactedin April, 1993 and the National Commission for BackwardClasses was constituted on 14th August, 1993 under the saidAct. At present the functions of the National Commission forBackward Classes is limited to examining the requests forinclusion of any class of citizens as backward class in theLists and hear complaints of over-inclusion or under-inclusionof any backward class in such lists and tender such advice tothe Central Government as it deems appropriate. Now, in orderto safeguard the interests of the Socially and EducationallyBackward Classes more effectively, it is proposed to create aNational Commission for Backward Classes with constitutionalstatus at par with the National Commission for ScheduledCastes and the National Commission for Scheduled Tribes.

4. The National Commission for the Scheduled Castes hasrecommended in its Report for 2014-15 that the handling ofthe grievances of the Socially and Educationally Backward

Classes under clause (10) of article 338 should be given tothe National Commission for Backward Classes.

5. In view of the above, it is proposed to amend the Constitutionof India, inter alia, to provide the following, namely:—

(a) to insert new article 338 so as to constitute the NationalCommission for Backward Classes which shall consist of aChairperson, Vice-Chairperson and three other Members. Thesaid Commission will hear the grievances of Socially andEducationally Backward Classes, function which has beendischarged so far by the National Commission for ScheduledCastes under clause (10) of article 338; and

(b) to insert new article 342A so as to provide that thePresident may, by public notification, specify the Socially andEducationally Backward Classes which shall for the purposesof the Constitution be deemed to be Socially andEducationally Backward Classes.”

II. Contentions of parties

74. The appellants argue that the Maharashtra SEBC Act (whichwas enacted and brought into force on 30.11.2018), could not have beenenacted, and is clearly void. It is argued that on plain reading of Article342A read with Article 366(26C), it is clear that States were denuded oftheir power to identify backward classes and the task was to be performedexclusively by the National Commission for Backward Classes set upunder Article 338B (hereafter “NCBC”). Mr. Arvind Datar, Mr. ShyamDivan and Mr. Gopal Sankaranarayanan, learned senior counselemphasized that the expression “for the purposes of this Constitution”under Article 366(26C) and Article 342A(1) can only imply that theStates’ jurisdiction and power to identify community as backwardclass stood denuded. Consequently, it is only upon the recommendationof the NCBC that any community can henceforth be included in the listof SEBCs. It was submitted that by virtue of Article 342A, even theUnion 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 isParliament alone which can make such modification, deletion or alteration.The term ‘Central List’ in Article 342(2) is not the list published by theUnion for the affairs of the Union. The Constitution has used the word“Union” wherever the reference is made to the Government of India or

ACentral Government, i.e., Articles 53, 73, 79, 309, List I of Schedule VIIwhereas the word ‘Central Government’ has been used recently in certainamendments which is not the expression used in the Constitution originallyadopted. Thus, the reference to “Central List” means only the List inrelation to states and union territories, for the purpose of the Constitutionnotified under Article 342A (1).B

75. Learned senior counsel argued that the decision in IndraSawhney (supra)[77] had required the setting up of permanentCommissions for identifying communities or castes such as backwardclasses to enable their notification by their respective governments. Inthe light of this recommendation and having regard to the principal existingCprovision under Article 340, Parliament had enacted the NationalCommission for Backward Classes Act, 1993 (hereafter “the NCBCAct”). That enactment used the expression, “Central list” in Section2(c)[78].

76. Learned counsel for the appellants submitted that whileDamending the Constitution, the expression “Central List” meant the Listto be published by the President on the aid and advice of the Council ofMinisters, after consultation with the Governors, i.e., the aid and adviceof the State Governments. Thus, having regard to plain language of Article366(26C) and Article 342A as well as the provisions in Article 338B (7),E(8) and (9), there is no question of the State Governments or StateLegislatures retaining any power to identify backward classes. Thatpower is with the President.

77. It was submitted by Mr. Gopal Sankaranarayan, learned seniorcounsel that the object which impelled the ConstitutionF(102[nd]Amendment) Act, 2018 appears to be to set up national body forevolving scientific criteria of uniform application with regard to theidentification of communities as backward classes. It was submittedthat the frequent demands by various communities to be included in thelist of backward classes to garner/gain access to State funded institutionsand for public employment meant that States either succumb to suchG77 Paras 847, 855 (c) and 859 (13)- SCC report.78 Defined as “lists”means lists prepared by the Government of India from time to timefor purposes of making provision for the reservation of appointments or posts infavour of backward classes of citizens which, in the opinion of that Government, are notadequately represented in the services under the Government of India and any local orother authority within the territory of India or under the control of the Government ofHIndia;

pressure or apply ad-hoc criteria and set up ad-hoc bodies which didnot or could not consider issues in 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 suchcommunities led to States providing special reservation, which becamethe subject matter of judicial scrutiny.

78. Learned counsel also referred to agitations for inclusion ofcommunities in other States such as Rajasthan which also led to repeatedlitigation. It was, therefore, argued that to avoid these instances, and toensure that national standard for considering the relevant indicia forbackwardness is constitutionally applied, an amendment to theConstitution was made. Learned counsel urged that the position adoptedby the States, i.e., that they were not denuded of executive and legislativepower and that the amendment only sought to give additional constitutionalstatus to the existing NCBC is unfounded. It was pointed out that beforethe coming into force of the Constitution (102[nd]Amendment) Act, 2018,Article 340 existed under the original Constitution. Parliament, in exerciseof its legislative power, enacted the NCBC Act. The NCBC had existedfor 27 years and had conducted surveys and identified severalcommunities as backward. The lists published by it were in existenceand were in use by the Central Government for its purposes, including inpublic employment. Undoubtedly, not all communities included in theStates’ lists were part of the NCBC list. However, the list was broadlycommon to large extent. Learned counsel emphasized that there wasno necessity for bringing any constitutional amendment if the newCommission were to be given constitutional status and the lists publishedby it, made binding only on the Central Government which was to acquiresuch high degree of status that it could be modified by Parliament alone.It was submitted that surely, State interference with the Central list didnot warrant such drastic measure as constitutional amendment.

79 “54. The perception of self-proclaimed socially backward class of citizens or eventhe perception of the “advanced classes” as to the social status of the “less fortunates”cannot continue to be constitutionally permissible yardstick for determination ofbackwardness, both in the context of Articles 15(4) and 16(4) of the Constitution.Neither can any longer backwardness be matter of determination on the basis ofmathematical formulae evolved by taking into account social, economic and educationalindicators. Determination of backwardness must also cease to be relative; possiblewrong inclusions cannot be the basis for further inclusions but the gates would beopened only to permit entry of the most distressed. Any other inclusion would be aserious abdication of the constitutional duty of the State.”

A79. Mr. Sankaranarayanan submitted that although there arepassages in the report of the Select Committee of the Rajya Sabha,Parliament had discussed the amendment and taken into account theviews of certain individuals; the fact remains that it is the text of theConstitution as amended, which is to be interpreted. Learned counselrelied upon the decisions reported as State of Travancore-Cochin v.BBombay Company Ltd[80]; Aswini Kumar Ghose & Anr. v. ArabindaGhose & Anr.[81 ]and P.V. Narasimha Rao v. State[82]. He also referred tothe decision in Sanjeev Coke Manufacturing v. Bharat Coking CoalLtd. &Anr[83].It was submitted that the consistent opinion of this Courthas been the one adopted in Pepper v. Hart[84], which permits referenceCto the statements made in the House at the time of the introduction ofBill as an aid to construction of legislation which is ambiguous or obscure,and not in any other circumstances. It was thus submitted that theintention of the amendment was to ensure that uniform standard andone aware of looking at backwardness in an objective manner, was tobe adopted and applied, for the purposes of the Constitution. This alsoDwas aimed at eliminating the mischief that led to the introduction ofcommunities as consequence of protests – having been triggered bypolitical considerations on the eve of elections.

80. The submissions articulated on behalf of the respondent Statesby Mr. Mukul Rohatgi, Mr. Kapil Sibal, Dr. A.M. Singhvi and Mr.ENaphade, Additional Advocates General and Standing Counsel appearingon behalf of the various States, was that the interpretation suggested bythe appellants is drastic. It was emphasized that the States’ responsibilityunder Article 15(4) and 16(4) to make special provisions includingreservations is undeniable. In the absence of any amendment to these

Fprovisions, learned counsel submitted that the Constitution(102[nd]Amendment) Act, 2018 cannot be so interpreted as to denude theStates of their powers altogether. Learned counsel submitted thatpursuant 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 asGbackward classes for the purpose of Constitution. Those Commissions80 1952 SCR 111281 AIR 1953 SC 7582 (1998) 4 SCC 626.83 (1983) 1 SCR 1000.H84 1993 (1) All. ER 42.

were set up in exercise of legislative powers traceable to one or theother Entry in List II of the Seventh Schedule to the Constitution. Theplenary legislative power of the States remains unaltered. That beingthe case, this Court should not accept the appellants’ submission thatArticles 338B and 342A place fetters upon the exercise of such legislativepower as well as executive power of the States.

81. Learned counsel submitted that this Court should closelyexamine the contents of the report of the Select Committee of the RajyaSabha, and the statements made by the Government, particularly thatthe power and jurisdiction of the States would remain unaffected. It wasfurther urged that this Court can and should and ought to have lookedinto the contents of these reports to discern the true meaning and intentbehind the Constitution (One Hundred and Second Amendment) Act,2018, which was not to disrupt the existing legislative arrangementbetween the Centre and the State. In this regard, learned counsel placedreliance 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 aidof reports of Parliamentary Committees for the purpose of appreciatingthe historical background of statutory provisions, and also to resolve theambiguity in the legislation.82. It was submitted that if the matter were to be considered inthe true perspective and the report of the Select Committee, examinedas an aid to interpretation of the Constitution (102[nd]Amendment) Act,2018, especially Article 342A, it would be apparent that the Parliamentnever intended, by the amendment, to disturb the existing order and denudethe States of their executive or legislative power to identity backwardclasses while making special provisions under Articles 15(4) and 16(4).It was submitted that Indra Sawhney (supra) only created largermovement for the setting-up of Commissions by the Union and the States.Learned counsel emphasized that even while identifying the communitiesfor the purpose of the Central List, the views of the States were alwaysascertained. Parliament merely sought to replicate the amendment bywhich collection of data has been undertaken under Article 338 (in relationto SCs). The introduction of Article 338B was in line with the introductionof Articles 338A and 338 – which enables the setting-up of NationalCommissions for Scheduled Castes and Scheduled Tribes(the latterthrough another amendment which was brought into force on 19.02.2004).

A83. 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 keepingwith the debates and assurances held out in the Select Committee reportthat States’ power would continue to remain unaffected. It was submittedthat such construction would result in harmonious interpretation of allBprovisions of the Constitution.

84. The learned Attorney General, appearing on account of noticeissued by this Court, urged that the 102[nd] Amendment did not bring abouta radical change in the power of identification of backward classes, inrelation to states, and that this power continues to remain with states.CHe submitted that the comparison by the appellants, with the powersconferred by Article 338 and the Presidential power under Article 341and Article 342, is inapt, because those were original provisions of theConstitution, having historical background. It was submitted that thestates’ responsibilities to uplift the lot of weaker sections, apparent fromDthe directive principle under Article 46, is through affirmative policiesunder Articles 15(4) and 16(4). To alter this balance, which had existedfrom the beginning of the coming into force of the Constitution, is toodrastic, and nothing in the debates leading to the 102[nd] Amendment, or inany material, such as the Select Committee Report, suggests that end.

E85. The learned Attorney General also submitted that the objectof the 102[nd] amendment was to ensure that commission withconstitutional status would periodically examine the needs of sociallyand educationally backward classes (“SEBC” hereafter), and suggestinclusion or exclusion of such classes, in list for the purposes of CentralGovernment, or central public sector corporation employment, andFextension of other benefits under union educational and other institutions,under Articles 15 (4) and 16 (4). In case such list is drawn and publishedunder Article 342A (1), it is only Parliament that has the power to modifyit. This does not, in any manner disturb or take away the states’ powerto identify or include communities as backward classes of citizens forGthe purposes of benefits that they wish to extend to them, through statepolicies and legislation, or for reservation in state employment underArticle 16 (4). He highlighted that the term “Unless the contextotherwise requires” is the controlling phrase, which precedes thedefinition of various terms under Article 366 of the Constitution. Therefore,if the context is different- as is evident from Article 342A (2), by the useH

of the term “Central List”, that should be given meaning, and theinterpretation based on that meaning should prevail in the constructionof the entire provision (i.e. Article 342A).

86. The learned Attorney General further argued that this courthad specifically recognized the states’ power to identify, make specialprovisions, and reservations, in Indra Sawhney. He urged that the 102[nd]Amendment was not meant to limit this constitutional obligation of thestates, but rather to streamline the method of identification of sociallyand educationally backward class of citizens, for the purpose of centralemployment, and centrally funded and sponsored schemes, institutionsand facilities. It was urged that this is apparent from the use of theexpression “Central List” in Article 342A (2), which has to guide theinterpretation of the list referred to in Article 342A (1).

III. Provisions relating to Scheduled Castes and ScheduledTribes, in the Constitution of India

87. Before proceeding with the interpretation of the provisions ofthe 102[nd] Amendment, it would be useful to briefly recapitulate theprovisions that existed for the identification of SCs and STs. Before theConstitution was framed, the Government of India Act, by Section 26defined SCs[86]. One Dr. J.H. Hutton, Census Commissioner of India,framed list of the depressed classes systematically, and that list wasmade the basis of an order promulgated by the British Government inIndia called the Government of India (Scheduled Castes) Order, 1936.This court, in one of its decisions noticed that such list became the basisfor the Constitution (Scheduled Castes) Order, 1950.[87] Article 338 asoriginally enacted, provided for appointment of special officer for theSCs and STs to investigate all matters relating to the safeguards providedfor the SCs and STs under the Constitution and to report to the Presidenton their working. In 1990, this position changed, and the Constitution(Sixty Fifth) Amendment Act was enacted to create five-membercommission under Article 338. The statement of objects[88] envisionedthat such commission would be

86 “the scheduled castes” means such castes, races or tribes or parts of or groupswithin castes, races or tribes, being castes, races, tribes, parts or groups, which appearto His Majesty in Council to correspond to the classes of persons formerly known as“ the depressed classes”, as His Majesty in Council may specify”

87 Soosai Etc vs Union of India 1985 Supp (3) SCR 242.

88 Statement of Objects and Reasons, Constitution Sixty fifth Amendment Act, 1990

A“a more effective arrangement in respect of the constitutionalsafeguards for Scheduled Castes and Scheduled Tribes thana single Special Officer as at present. It is also felt that it isnecessary to elaborate the functions of the said Commissionso as to cover measures that should be taken by the Union orany State for the effective implementation of those safeguardsBand other measures for the protection, welfare and socio-economic development of the Scheduled Castes and ScheduledTribes.”

88. The composite Commission for SCs and STs was bifurcatedby another amendment- the Constitution (Eighty Ninth Amendment) Act,C2003, which inserted Article 338A, enabling the creation of commissionexclusively to consider measures and make recommendations foramelioration of STs. Article 338B has now been introduced through the102[nd] amendment, which is in issue.

89. The relevant provisions relating to SCs and STs under theDConstitution are extracted below:

“Article 366

366. Definitions.-In this Constitution, unless the contextotherwise requires, the following expressions have themeanings hereby respectively assigned to them, that is to say-

E(1)xxxxxxxxxxxxxxxxxx(24) “Scheduled Castes” means such castes, races or tribesor parts of or groups within such castes, races or tribes asare deemed under Article 341 to be Scheduled Castes for thepurposes of this Constitution;”

F(25) “Scheduled Tribes” means such tribes or tribalcommunities or parts of or groups within such tribes or tribalcommunities as are deemed under article 342 to be ScheduledTribes for the purposes of this Constitution;”

Article 338

338. [National Commission for Scheduled Castes] (1) Thereshall be Commission for the Scheduled Castes to be knownas the National Commission for the Scheduled Castes.

(2) Subject to the provisions of any law made in this behalfby Parliament, the Commission shall consist of Chairperson,Vice-Chairperson and three other Members and the conditionsH

of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be suchas the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Membersof the Commission shall be appointed by the President bywarrant under his hand and seal.

(4) The Commission shall have the power to regulate its ownprocedure.

(5) It shall be the duty of the Commission —

(a) to investigate and monitor all matters relating to thesafeguards provided for the Scheduled Castes under thisConstitution or under any other law for the time being inforce or under any order of the Government and to evaluatethe working of such safeguards;

(b) to inquire into specific complaints with respect to thedeprivation 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 toevaluate the progress of their development under the Unionand any State;

(d) to present to the President, annually and at such othertimes as the Commission may deem fit, reports upon theworking of those safeguards;

(e) to make in such reports recommendations as to themeasures that should be taken by the Union or any State forthe effective implementation of those safeguards and othermeasures for the protection, welfare and socio-economicdevelopment of the Scheduled Castes; and

(f) to discharge such other functions in relation to theprotection, welfare and development and advancement of theScheduled Castes as the President may, subject to theprovisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid beforeeach House of Parliament along with memorandumexplaining the action taken or proposed to be taken on the

Arecommendations relating to the Union and the reasons forthe non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to anymatter with which any State Government is concerned, copyof such report shall be forwarded to the Governor of the StateBwho shall cause it to be laid before the Legislature of theState along with memorandum explaining the action takenor proposed to be taken on the recommendations relating tothe State and the reasons for the non-acceptance, if any, ofany of such recommendations.

(8) The Commission shall, while investigating any matterreferred to in sub-clause (a) or inquiring into any complaintreferred to in sub-clause (b) of clause (5), have all the powersof civil court trying suit and in particular in respect of thefollowing matters, namely :—

(a) summoning and enforcing the attendance of any personfrom 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 anyEcourt or office;

(e) issuing commissions for the examination of witnesses anddocuments;

(f) any other matter which the President may, by rule,Fdetermine.

(9) The Union and every State Government shall consult theCommission on all major policy matters affecting ScheduledCastes.”

Before the 102[nd] Amendment Act, the following sub-Article formedGpart of Article 338:

“(10) In this article, references to the Scheduled Castes andto such other backward classes as the President may, onreceipt of the report of Commission appointed under clause(1) of article 340, by order specify and also shall be construedHas including references to the Anglo-Indian community.”

By the 102[nd] Amendment Act, the words “and to such otherbackward classes as the President may, on receipt of the report of aCommission appointed under clause (1) of article 340, by orderspecify” were deleted[89]. The other provisions relating to SCs and STsare as follows:

“338A. National Commission for Scheduled Tribes.—

(1) There shall be Commission for the Scheduled Tribes tobe known as the National Commission for the ScheduledTribes.

(2) Subject to the provisions of any law made in this behalfby Parliament, the Commission shall consist of Chairperson,Vice-Chairperson and three other Members and the conditionsof service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be suchas the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Membersof the Commission shall be appointed by the President bywarrant under his hand and seal.

(4) The Commission shall have the power to regulate its ownprocedure.

(5) It shall be the duty of the Commission— (a) to investigateand monitor all matters relating to the safeguards providedfor the Scheduled Tribes under this Constitution or underany other law for the time being in force or under any orderof the Government and to evaluate the working of suchsafeguards;

(b) to inquire into specific complaints with respect to thedeprivation of rights and safeguards of the Scheduled Tribes;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluatethe progress of their development under the Union and anyState;

89 By 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 Commission appointed under clause (1) of article 340, byorder specify and also” shall be omitted”.

(d) to present to the President, annually and at such othertimes as the Commission may deem fit, reports upon theworking of those safeguards;

(e) to make in such reports recommendation as to the measuresthat should be taken by the Union or any State for the effectiveBimplementation of those safeguards and other measures forthe protection, welfare and socio-economic development ofthe Scheduled Tribes; and

(f) to discharge such other functions in relation to theprotection, welfare and development and advancement of theCScheduled Tribes as the President may, subject to the provisionsof any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid beforeeach House of Parliament along with memorandumexplaining the action taken or proposed to be taken on therecommendations relating to the Union and the reasons forDthe non-acceptance, if any, of any such recommendations.

(7) Where any such report, or any part thereof, relates to anymatter with which any State Government is concerned, copyof such report shall be forwarded to the Governor of the Statewho shall cause it to be laid before the Legislature of theEState along with memorandum explaining the action takenor proposed to be taken on the recommendations relating tothe State and the reasons for the non-acceptance, if any, ofany of such recommendations.

(8) The Commission shall, while investigating any matterFreferred to in sub-clause (a) or inquiring into any complaintreferred to in sub-clause (b) of clause (5), have all the powersof civil court trying suit and in particular in respect of thefollowing matters, namely:—

(a) summoning and enforcing the attendance of any personGfrom 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 anycourt or office;

(e) issuing commissions for the examination of witnesses anddocuments;

(f) any other matter which the President may, by rule,determine.

(9) The Union and every State Government shall consult theCommission on all major policy matters affecting ScheduledTribes.]

Article 341

341. Scheduled Castes-(1) The President may with respect toany State or Union territory, and where it is State afterconsultation with the Governor thereof, by public notification,specify the castes, races or tribes or parts of or groups withincastes, races or tribes which shall for the purposes of thisConstitution be deemed to be Scheduled Castes in relation tothat State or Union territory, as the case may be

(2)Parliament may by law include in or exclude from the listof Scheduled Castes specified in notification issued underclause ( 1 ) any caste, race or tribe or part of or group withinany caste, race or tribe, but save as aforesaid notificationissued under the said clause shall not be varied by anysubsequent notification

Article 342

342. Scheduled Tribes -(1)The President may with respect toany State or Union territory, and where it is State, afterconsultation with the Governor thereof, by public notification,specify the tribes or tribal communities or parts of or groupswithin tribes or tribal communities which shall for the purposesof this Constitution be deemed to be Scheduled Tribes inrelation to that State or Union territory, as the case may be.

(2)Parliament may by law include in or exclude from the listof Scheduled Tribes specified in notification issued underclause ( 1 ) any tribe or tribal community or part of or groupwithin any tribe or tribal community, but save as aforesaid anotification issued under the said clause shall not be variedby any subsequent notification.”

IV. Previous commissions set up to identify SEBCs

90. It would be useful at this stage to recollect that before IndraSawhney, two commissions were set up at the national level, to examine

Aand make suitable recommendations in respect of identification of otherbackward classes. These were the Kaka Kalelkar Commission[90] andthe B.P. Mandal Commission[91]. The Kalelkar Commission, after anexhaustive survey and study, through its report, identified 2399 backwardgroups and recommended several measures for their advancement, assteps that could be taken by the Union and the states. The MandalBCommission report identified individuals belonging to 3,743 different castesand communities, as “backward”.

V. Interpretation of provisions similar to Article 342A- i.e.Articles 341 and 342 of the Constitution of India

91. The consistent view while interpreting Articles 341 and 342Chas been that the power which the Constitution conferred is initiallyupon the President, who, after the introduction of the 65[th] and 89[th]Amendments and the insertion of Articles 338 and 338A, is aided in thetask 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

Dthis Court has been that once determination has been done, no courtcan, by interpretive process, or even the executive through its policies,include members of other communities as falling within particular classor described community or even in any manner extend the terms of thedetermination under Articles 341 or 342. The power to further include,or modify contents of the existing list (of SC/STs) is with ParliamentEonly [by reason of Article341 (2) and Article 342 (2)] This position hasbeen consistently followed in series of decisions. Likewise, in theinterpretation as to which communities are categorized as SCs or STs,this Court has been definite, i.e. that only such classes or communitieswho specifically fall within one or the other lists, that constitute SCs or

Fsuch STs for the purpose of this Constitution under Article 366(24) andArticle 366 (25). This has been established in the decision of this Courtin Bhaiya Lal v. Harikishan Singh[92]; Basavalingappav Munichinnappa[93]and Kishori Lal Hans v. Raja Ram Singh[94 ]Therecent Constitution Bench decision in Bir Singh v. Delhi Jal Board[95],

reiterated this position clearly:G

90 Set up by the Central Government, in January 1953.91 Set up by the Central Government on 1 January, 1979.92 1965 (2) SCR 877.93 1965 (1) SCR 316.94 1972 (3) SCC 1.H95 (2018) 10 SCC 312.

“36. The upshot of the aforesaid discussion would lead us tothe conclusion that the Presidential Orders issued under Article341 in regard to Scheduled Castes and under Article 342 inregard to Scheduled Tribes cannot be varied or altered byany authority including the Court. It is Parliament alone whichhas been vested with the power to so act, that too, by lawsmade. Scheduled Castes and Scheduled Tribes thus specifiedin relation to State or Union Territory does not carry thesame status in another State or Union Territory. Anyexpansion/deletion of the list of Scheduled Castes/ScheduledTribes by any authority except Parliament would be againstthe constitutional mandate under Articles 341 and 342 of theConstitution of India.

****************

38. It is an unquestionable principle of interpretation thatinterrelated statutory as well as constitutional provisions haveto be harmoniously construed and understood so as to avoidmaking any provision nugatory and redundant. If the list ofScheduled Castes/Scheduled Tribes in the Presidential Ordersunder Articles 341/342 is subject to alteration only by lawsmade by Parliament, operation of the lists of Scheduled Castesand Scheduled Tribes beyond the classes or categoriesenumerated under the Presidential Order for particular State/Union Territory by exercise of the enabling power vested byArticle 16(4)would have the obvious effect of circumventingthe specific constitutional provisions in Articles 341/342. Inthis regard, it must also be noted that the power under Article16(4) is not only capable of being exercised by legislativeprovision/enactment but also by an Executive Order issuedunder Article 166 of the Constitution. It will, therefore, be inconsonance with the constitutional scheme to understand theenabling provision under Article 16(4) to be available toprovide reservation only to the classes or categories ofScheduled Castes/Scheduled Tribes enumerated in thePresidential Orders for particular State/Union Territorywithin the geographical area of that State and not beyond. Ifin the opinion of State it is necessary to extend the benefitof reservation to class/category of Scheduled Castes/

AScheduled Tribes beyond those specified in the Lists for thatparticular State, constitutional discipline would require theState to make its views in the matter prevail with the centralauthority so as to enable an appropriate parliamentaryexercise to be made by an amendment of the Lists of ScheduledCastes/Scheduled Tribes for that particular State. UnilateralBaction by States on the touchstone of Article 16(4) of theConstitution could be possible trigger point of constitutionalanarchy and therefore must be held to be impermissible underthe Constitution.”

VI. Pre-102[nd] Amendment position in the Constitution inCrelation to SEBCs

92. The original Constitution did not contain any special provisionof like manner as Articles 341 and 342. It did not define SEBCs. Theonly reference to SEBCs was in Article 340, which enabled the CentralGovernment to setup Commission for recommending measures forDthe progress and upliftment of backward classes of citizens. Thatprovision is as follows:

“340. Appointment of Commission to investigate theconditions of backward classes

(1)The President may by order appoint CommissionEconsisting of such persons as he thinks fit to investigate theconditions of socially and educationally backward classeswithin the territory of India and the difficulties under whichthey labour and to make recommendations as to the steps thatshould be taken by the Union or any State to remove suchdifficulties and to improve their condition and as to the grantsFthat should be made for the purpose by the Union or anyState the conditions subject to which such grants should bemade, and the order appointing such Commission shall definethe procedure to be followed by the Commission

(2)A Commission so appointed shall investigate the mattersGreferred to them and present to the President report settingout the facts as found by them and making suchrecommendations as they think proper

(3)The President shall cause copy of the report so presentedtogether with memorandum explaining the action takenHthereon to be laid before each House of Parliament”

93. After the decision of this Court in Champakam Dorairajanv. State of Madras[96], Article 15 was amended and Article 15 (4) wasintroduced. The term “socially and educationally backward class ofcitizens” was inserted, conferring power upon the State to make specialprovisions for their advancement. This term “socially and educationallybackward” has been held to also provide colour the term “backwardclass” in the decision in Indra Sawhney – as indeed in the earlier decisionin NM Thomas (supra). This court noticed that ‘backward class’ ofcitizens, though wider in context, has to take colour from socialbackwardness, which also results in educational backwardness.

94. Indra Sawhney in para 859 (13)[97], had issued directions withregard to the desirability of setting up Commissions by the Central andState Governments, to ascertain the position and identification of backwardclass of citizens, evaluation of rational criteria and periodic review ofsuch lists. Pursuant to this direction, Parliament introduced the NCBCAct, 1993. This Act defined ‘Central List’ under Section 2(c). The termsof this enactment make it clear that the lists of backward class of citizensprepared by the Commission and recommended to the CentralGovernment were to be for the purposes of providing reservations inemployment under Article 16(4), and for reservations and other amelioratemeasures that the Central Government can initiate and introduce underArticle 15(4). Acting on the recommendations of this court, post IndraSawhney, several State Governments appeared to have enacted otherlaws for setting up commissions for backward class and backward castegroups[98]. In four States – Tamil Nadu, Gujarat, Punjab and Haryana, theCommissions were set up by executive action.

95. This Court had at the earlier part of this section, set out theprovisions of Article 366(26C), Article 338B and Article 342A. The

96 AIR 1951 SC 226.

97 SCC report.

98 The Maharashtra SCBC Act, 2006 is one such institution. The others are KarnatakaState Commission for Backward Classes, 1995; A.P. Commission for Backward ClassesAct, 1995; U.P. State Commission for Backward Classes Act, 1996; Kerala StateCommission for Backward Classes Act, 1993; Madhya Pradesh RajyaPichdaVargAdhiniyam, 1995; Bihar State Commission for Backward Classes Act, 1993;Assam Backward Classes Commission Act, 1993; Orissa State Commission forBackward Classes Act, 1993; West Bengal Commission for Backward Classes Act,1993; J&K State Commission for Backward Classes Act, 1997; Chhatisgarth RajyaPichhda Varga Adhiniyam, 1993 & Telangana Commission for Backward Classes Act,1993.

AStatement of Objects and Reasons for the introduction of these provisions– referred to compendiously as the 102[nd] Amendment – do not indicateany concrete purpose for the insertion of those provisions, except thegeneral comment that Parliament wished to confer constitutional statuson the Commission for determination of SEBCs.BVII. The Constitution 123[rd] Amendment Bill, the 102[nd]Amendment Act and report of the Parliamentary Standing

Committee

96. Learned counsel for the respondents as indeed the appellantsreferred extensively to the deliberations recorded in and assurances given,Cand reflected in the Report of the Select Committee of the Rajya Sabha,submitted to the Parliament at the time when the 123[rd] amendment billwas introduced. brief reference of this can now be made. Theintroduction (to the Report dated (July 2017) disclosed that in all, sevenmeetings were held by the Select Committee. The committee comprised25 members, with Secretariat of 7 officials. It took note of statementsDmade by three representatives of the Ministry of Social Justice, twofrom the Department of Legal Affairs and three from the LegislativeDepartment.

97. The Report noted the background of introduction of the 123[rd]Amendment Bill including the amendments to Article 338 and theEintroduction of Article 338B. It traces the history of the Backward ClassCommissions set up under Article 340, the office memoranda which ledto the Judgment in Indra Sahwney, as well as the direction by thisCourt in that Judgment regarding setting up of commissions. It furthernoted the existing legal regime i.e., the NCBC Act, and noted that severalFexperts felt that there was no change or amendment needed to alter theexisting regime for identification of backward classes. In Para 20 of theReport, it was noted that in the Fifth Consultation Meeting, the membershad raised the concern as to whether Article 342A(1) would excludestate consultation. The relevant para reads as follows:

G“18. It was also submitted that the powers and functions ofthe State Government and the State Backward ClassesCommissions with regard to identification, exclusion andinclusion of classes in the State List should be clarified.Further, the process of consultation with the Governor shouldalso be clarified in the Bill.

19. In response to the above issues raised, the Ministryclarified that sub-clause (9) of article 338B does not in anyway interfere with the powers of the State Governments toprepare their own list. The Committee was further informedthat classes so included in the State Backward Classes Listdo not automatically come in the Central List of OBCs.

20. In its fifth meeting representatives/Members raised aconcern about clause (1) of Article 342A, whether the listwould be issued by the President after consultation with theState Government or consultation with only Governor of theState. It was clarified by the Ministry that clause (1) of Article154 and Article 163 of the Constitution clearly state that theGovernor shall act on the advice of the Council of Ministers.It is also clarified that under the above Constitutionalprovisions, the Governor shall exercise his authority eitherdirectly or indirectly through officers of respective StateGovernment. Article 341 of Constitution provides forconsultation with Governor of State with respect to ScheduledCastes and Article 342 of the Constitution providesconsultation of President with Governor of State in respect ofScheduled Tribes. As is the practice, at not time has the StateGovernment been excluded in the consultation process. It isalways invariably the State Government which recommendsto the President the category of inclusion/exclusion inScheduled Castes and Scheduled Tribes. Similar provision isprovided for in the case of conferring of constitutional statusfor backward classes for inclusion in Central list of sociallyand educationally backward classes. Consultation withGovernor thereby implies consultation with the StateGovernment.”

98. In its clause-by-clause consideration of the Bill, the Committeenoted the apprehension with respect to setting up of new Commissionin Article 342B instead of creating it under Article 340. In this context, aclarification was issued that Article 340 enabled setting up of adhocbodies like the Kaka Kalelkar Commission and Mandal Commission,whereas Article 338B sought to confer Constitutional status on multi-member permanent body. Paras 31-34 of the Report discussed themembership of the composition of the Commission under Article 338B

Aand also whether the NCBC Act would be repealed. Interestingly, Para47 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 inarticle 338B new sub-clause (10) was proposed to beBinserted. This sub-clause (10) would read as follows:

‘Notwithstanding anything provided in clause 9, the StateGovernment shall continue to have powers to identify Sociallyand Educationally Backward Classes’.

99. The Committee was satisfied, in the Report with theCclarification issued by the concerned Ministry in the following terms:

“48. It was clarified by the Ministry of Social Justice andEmpowerment to the Committee that the proposed amendmentdoes not interfere with the powers of the State Governmentsto identify the Socially and Educationally Backward Classes.DThe existing powers of the State Backward ClassesCommission would continue to be there even after the passageof the Constitution (One Hundred and Twenty-thirdAmendment) Bill, 2017.”

100. Para 50-53 (of the Report) set out proposals to amend ArticleE342A which limited it to making provisions for reservations inappointments or posts under the Government of India or under theauthority of the Government of India and also consequential amendmentto Article 342A (2). Further, proposed Article 342A(3) sought toempower the State Government - i.e. the Governor which could by publicFnotification, specify SEBCs for the purposes of reservation of posts underthe State or under any authority of the State. like amendment wasproposed, i.e., Article 342A (4) that:“the Governor may on the advice of the State Commission ofBackward Classes include or exclude from the State list ofsocially and educationally backward classes specified in aGnotification issued under Clause (3)”.

101. The other set of amendments discussed were firstly, to Article342A(1) that with respect to State or Union Territory, the Presidentcould make inclusions “with prior recommendation of the StateGovernment, given due regard to such recommendations”, andH

secondly, for the introduction of Article 342A(3) and (4) enabling theState to issue public notifications - like in the case of Article 342A(1)and the consequential amendment thereof through legislation alone, viaproposed Article 342A (4).

102. Other amendments with respect to placing the report of theCommission under Article 338B before both Houses of Parliament,consultation with the governor to be based upon advice given to thegovernor by the state commission for backward classes, and amendmentof the list under Article 342A (1) being only through law based uponrecommendations of the Commission under Article 338A and 338B andalso obliging and revision of the list in ten year periods, were suggested.

103. All these were duly considered in the Committee’s Reportand not accepted, stating as follows:

“54. The Ministry, on the amendments moved, clarified thattime bound decadal revision of lists by the proposedCommission, is continuous process. The Commissionhowever, is empowered to enquire into specific complaintswith respect to the deprivation of right and safeguards of thesocially and educationally backward classes.

55. The Ministry clarified that the aspect of reservation ofposts under that State or under any other authority of theState or under the control of the State, or seats in theeducational institutions within that State was beyond thepurview of the instant Bill and hence the amendmentsproposed are not allowed.

56. It was clarified by the Ministry that clause (1) of article154 and article 163 of the Constitution clearly state thatGovernor shall act on the advice of the Council of Ministers.It was informed that under the above Constitutional provisionsthe Governor shall exercise his authority either directly orindirectly through officers of respective State Government.Article 341 of Constitution provides for consultation by thePresident with Governor of State with respect to ScheduledCastes and article 342 of the Constitution providesconsultation by the President with Governor of State in respectof Scheduled Tribes. As is the practice at no time has theState Government been excluded in the consultation process.

AIt is always invariably the State Government whichrecommends to the President the category of inclusion /exclusion in Scheduled Castes and Scheduled Tribes. Similarprovision is provided for in the case of conferring ofconstitutional status for backward classes for inclusion inCentral list of SEBC. Consultation with Governor therebyBimplies 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 342of the Constitution. The setting up of the proposed CommissionCwill not be retrograde to the interest of the socially andeducationally backward classes. The article 342A will providefor comprehensive examination of each case of inclusion/exclusion from the Central List. The ultimate power for suchinclusion/exclusion would stand vested with the Parliament.

D58. The Committee held discussion on the proposedamendments and in view of the detailed explanationsfurnished by the Ministry, the Committee adopted the Clause4 of the Bill without any amendments.

E104. The section dealing with the amendment to Article 366 readsas follows:

“Clause 5:Provides for amendment of article 366

59. This Clause proposes to insert new clause (26C) in articleF366 which reads as under:-

“(26C) socially and educationally backward classes” meanssuch backward classes as are so deemed under article 342Afor the purposes of this Constitution;”

105. The Report of the Select Committee, made certain concludinggeneral observations, part of which stated that:

“66. The Committee feels that the Constitutional Amendmentsproposed in this Bill would further strengthen affirmativeHaction in favour of socially and educationally backward

classes as well as further boost concept of cooperativefederalism between the Centre and States.

67. The Committee observes that the amendments do not inany way affect the independence and functioning of StateBackward Classes Commissions’ and they will continue toexercise unhindered their powers of inclusion/exclusion ofother backward classes with relation to State List.

68. The Committee also took note of the concerns raised bysome Members regarding the composition of the Commissionand would like to impress upon the Ministry that whileaddressing the concerns of the Members the rules framed forthe Chairperson and Members of the National Commissionfor Scheduled Casts and National Commission for ScheduledTribes may be taken into consideration. The Committee is ofthe view that while framing the rules for composition of theproposed Commission and selection of its Chairperson itshould be ensured that the persons belonging to socially andeducationally backward classes be given due representationto inspire confidence amongst the socially and educationallybackward 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 seachange by putting in place effective and efficient deliverymechanism for the welfare of socially and educationallybackward classes.”

VIII Extrinsic aids to interpretation of statutes: the extent towhich they can be relied upon

106. The parties presented rival submissions with respect tointerpretation of the words of the statute in the light of the reports of theSelect Committee report as well as the debates in Parliament at the timeof introduction of the amendment, or the law as enacted. The appellantsasserted that such debates are of limited assistance only as external aidsin the case of an ambiguity and had relied upon line of decisions startingwith State of Travancore-Cochin v. Bombay Trading Company(supra) and culminating in P.V. Narasimha Rao (supra). On the otherhand, the respondent States alluded to the larger bench decision of thisCourt in Kalpana Mehta (supra) which emphatically held that Standing

ACommittee reports and statements made on the floor of House can belimited extrinsic aids for considering and interpreting express terms of astatute, or even the Constitution.

107. In the present case, the Statement of Objects and Reasonsdo not throw much light on why the provisions of the 102[nd ]AmendmentBAct were introduced. No doubt, there are certain passages in the SelectCommittee Report suggestive of the fact that the power of identificationcarved out through the newly inserted Articles 338B and 342A wouldnot in any manner disturb the powers of the State to carry on their workin relation to special provisions or reservations for backward classes(through appropriate measures, be it legislative or executive). holisticCreading of the report also suggests that the Select Committee reflectedboth points of view and recorded the assurances given by the Ministrythat the State’s power would not be disturbed. At the same time, inconclusion, it was emphatically stated that the States’ concerns wouldbe given due regard and that the exercise would be in line with the

Dexisting procedure under Articles 341 and 342.[99] The report also containsnotes of dissent, which highlight that the amendments would deprive theStates of their existing power to identify, and provide reservations andother special provisions for the benefit of SEBCs.

108. There cannot be disagreement with the proposition thatwhere the provisions of the statute or its wordings are ambiguous, theEfirst attempt should be to find meaning, through internal aids, in the statuteitself. Failing this, it is open to the court to find meaning, and resolve theambiguity, by turning to external aids, which include the statements ofobjects and reasons, as well as Parliamentary reports, or debates inParliament. To this Court, it appears that the task of interpreting theFprovisions of 102[nd ]Amendment does not begin by relying on externalaids such as Statement of Objects and Reasons (which throw practicallyno light on the meaning of the provisions), or even the Select CommitteeReport. The task of interpretation is first to consider the overall schemeof the provisions, and secondly, after considering the provision, proceed

to resolve anyperceived ambiguity, if found, by resorting to aids withinG99“57. The Ministry also clarified to the Committee that the phrase “for the purpose ofthis Constitution” as provided under clause (1) of article 342A is on lines similar toarticles 341 and 342 of the Constitution. The setting up of the proposed Commission willnot be retrograde to the interest of the socially and educationally backward classes. Thearticle 342A will provide for comprehensive examination of each case of inclusion/exclusion from the Central List. The ultimate power for such inclusion/exclusion wouldHstand vested with the Parliament.”

the statute. It is at the third stage, when such resolution is impossible,that external aids are to be looked into. Thus, in seven-judge benchdecision, this court, in State of Karnataka v. Union of India[100]administered the following caution, while outlining the court’s task ofinterpreting the Constitution:

“The dynamic needs of the nation, which Constitution mustfulfil, leave no room for merely pedantic hair-splitting playwith words or semantic quibblings. This, however, does notmean that the Courts, acting under the guise of judicialpower, which certainly extends to even making theConstitution, in the sense that they may supplement it in thoseparts of it where the letter of the Constitution is silent or mayleave room for its development by either ordinary legislationor judicial interpretation, can actually nullify, defeat, ordistort the reasonably clear meaning of any part of theConstitution in order to give expression to some theories oftheir own about the broad or basic scheme of the Constitution.The theory behind the Constitution which can be taken intoaccount for purposes of interpretation, by going even so faras to fill what have been called the “interstices” or spacesleft unfilled, due perhaps to some deliberate vagueness orindefiniteness in the letter of the Constitution, must itself begathered from express provisions of the Constitution. Thedubiousness of expressions used may be cured by Court bymaking their meanings clear and definite if necessary in thelight of the broad and basic purposes set before themselvesby the Constitution makers. And, these meanings may, inkeeping with the objectives or ends which the Constitution ofevery nation must serve, change with changing requirementsof the times. The power of judicial interpretation, even if itincludes what may be termed as “interstitial” law making,cannot extend to direct conflict with express provisions of theConstitution or to ruling them out of existence.”

109. The primary duty of this court, while interpreting aconstitutional provision(in the present case, an amendment to theConstitution, no less) was underlined thus, in GVK Industries Ltd. v.Income Tax Officer[101]

100 1978 (2) SCR 1.101 (2011) 4 SCC 36.

DEF

“37. In interpreting any law, including the Constitution, thetext of the provision under consideration would be the primarysource for discerning the meanings that inhere in theenactment. However, in light of the serious issues it wouldalways be prudent, as matter of constitutional necessity, towiden the search for the true meaning, purport and ambit ofthe provision under consideration. No provision, and indeedno word or expression, of the Constitution exists in isolation—they are necessarily related to, transforming and in turn beingtransformed by, other provisions, words and phrases in theConstitution.

38. Our Constitution is both long and also an intricate matrixof meanings, purposes and structures. It is only by locating aparticular constitutional provision under consideration withinthat constitutional matrix could one hope to be able to discernits true meaning, purport and ambit. As Prof. Laurence Tribepoints out:

“[T]o understand the Constitution as legal text, it is essentialto recognize the … sort of text it is: constitutive text thatpurports, in the name of the people…, to bring into being anumber of distinct but inter-related institutions and practices,at once legal and political, and to define the rules governingthose institutions and practices.” (See Reflections on Free-Form Method in Constitutional Interpretation. [108 Harv LRev 1221, 1235 (1995)]).”

39. It has been repeatedly appreciated by this Court that ourConstitution is one of the most carefully drafted ones, whereevery situation conceivable, within the vast experience,expertise and knowledge of our framers, was considered,deliberated upon, and appropriate features and text chosento enable the organs of the State in discharging their roles.While indeed dynamic interpretation is necessary, if themeaning necessary to fit the changed circumstances could befound in the text itself, we would always be better served bytreading path as close as possible to the text, by gatheringthe plain ordinary meaning, and by sweeping our vision andcomprehension across the entire document to see whether thatmeaning is validated by the constitutional values and scheme.”

In examining provisions of the Constitution, courts should adoptthe primary rule, and give effect to the plain meaning of the expressions;this rule can be departed, only when there are ambiguities. In KuldipNayar v. Union of India[102]after quoting from G. Narayanaswami v. G. Panneerselvam[103] this court held that

“201. … We endorse and reiterate the view taken in the abovequoted paragraph of the judgment. It may be desirable togive broad and generous construction to the constitutionalprovisions, 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 “literalconstruction” is the safe rule unless the language used iscontradictory, ambiguous, or leads really to absurd results.”

110. Whilst dealing the task of the court, and the permissible extentto which it can resort to internal and extrinsic aids to construction of astatute, this court remarked, in Pushpa Devi v. Milkhi Ram[104 ]that:

“18. It is true when word has been defined in theinterpretation clause, prima facie that definition governswherever that word is used in the body of the statute unlessthe context requires otherwise. “The context” as pointed outin the book Cross-Statutory Interpretation (2nd edn. p. 48)“is both internal and external”. The internal context requiresthe interpreter to situate the disputed words within the sectionof which they are part and in relation to the rest of the Act.The external context involves determining the meaning fromordinary linguistic usage (including any special technicalmeanings), from the purpose for which the provision waspassed, and from the place of the provisions within the generalscheme 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 atthe words but also to examine the context and collocation inthe light of the object of the Act and the purpose for which aparticular provision was made by the legislature.”

102 (2006) 7 SCC 1.

103 (1972) 3 SCC 717.

104 (1990) 2 SCC 134.

A111. Again, in Karnataka State Financial Corporation. v. N.Narasimahaiah[105 ]it was observed that:

“42. Interpretation of statute would not depend upon acontingency. It has to be interpreted on its own. It is tritelaw that the court would ordinarily take recourse to the goldenBrule of literal interpretation. It is not case where we aredealing with defect in the legislative drafting. We cannotpresume any. In case where court has to weigh between aright of recovery and protection of right, it would also leanin favour of the person who is going to be deprived therefrom.It would not be the other way round. Only because speedyCremedy is provided for that would itself (sic not) lead to theconclusion that the provisions of the Act have to be extendedalthough the statute does not say so. The object of the Actwould be relevant factor for interpretation only when thelanguage is not clear and when two meanings are possibleDand not in case where the plain language leads to only oneconclusion.”

112. In another recent decision, Laurel Energetics (P) Ltd. v.Securities Exchange Board of India[106] this court observed that:

“24. In Utkal Contractors and Joinery (P) Ltd. v. State ofOrissa [Utkal Contractors and Joinery (P) Ltd. v. State ofEOrissa, 1987 Supp SCC 751] , similar argument was turneddown in the following terms: (SCC pp. 757-58, paras 11-12)‘11. Secondly, the validity of the statutory notification cannotbe judged merely on the basis of Statement of Objects andReasons accompanying the Bill. Nor it could be tested by theFgovernment policy taken from time to time. The executive policyof the Government, or the Statement of Objects and Reasonsof the Act or Ordinance cannot control the actual words usedin the legislation. In Central Bank of India v. Workmen [CentralBank of India v. Workmen, AIR 1960 SC 12] S.K. Das, J. said:G(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.’

105 (2008) 5 SCC 176.106 (2017) 8 SCC 541H

DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER

& ANR. [S. RAVINDRA BHAT, J.]

12. In State of W.B. v. Union of India [State of W.B. v. Unionof India, AIR 1963 SC 1241] , Sinha, C.J. observed: (AIR p.1247, para 13)

‘13. … It is however, well settled that the Statement of Objectsand Reasons accompanying Bill, when introduced inParliament, cannot be used to determine the true meaningand effect of substantive provisions of the statute. They cannotbe used except for the limited purpose of understanding thebackground and the antecedent state of affairs leading up tothe legislation. But we cannot use this statement as an aid tothe construction of the enactment or to show that the legislaturedid not intend to acquire the proprietary right vested in theState or in any way to affect the State Governments’ rights asowner of minerals. statute, as passed by Parliament, is theexpression of the collective intention of the legislature as awhole, and any statement made by an individual, albeit aMinister, of the intention and objects of the Act cannot beused to cut down the generality of the words used in thestatute.”

25. In the factual scenario before us, having regard to theaforesaid judgment, it is not possible to construe theRegulation in the light of its object, when the words used areclear. This statement of the law is of course with the well-known caveat that the object of provision can certainly beused as an extrinsic aid to the interpretation of statutes andsubordinate legislation where there is ambiguity in the wordsused.”

113. The position in UK is that that the report of Select Committeemay be considered as background to the construction of an Act; however,such reports could not be invested with any kind of interpretiveauthority.[107] In R. (Baiai) v. Home Secretary,[108 ]a report of theParliamentary Joint Committee on Human Rights was considered. Thecommittee’s opinions on compatibility and other matters of law were

107 See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410.

108 [2006] EWHC 823 (Admin).

Aheld to have persuasive value, however, they could have no greater weightthan, for example, the views of distinguished academic writers.[109]

IX Interpretation of the Constitution, the definition clauseunder Article 366 and Amendments to the Constitution

114. The Court has to interpret provisions of the Constitution, inBthis case, introduced through an amendment. The proper method ofinterpreting such an amendment was indicated by five-judge bench inKihoto Hollohan v. Zachillhu[110], where it was held that:

“26. In expounding the processes of the fundamental law, theConstitution must be treated as logical whole. WestelCWoodbury Willoughby in The Constitutional Law of the UnitedStates (2nd edn., Vol. 1, p. 65) states:

“The Constitution is logical whole, each provision of whichis an integral part thereof, and it is, therefore, logically proper,and indeed imperative, to construe one part in the light of theDprovisions of the other parts.”

“28. In considering the validity of constitutional amendmentthe changing and the changed circumstances that compelledthe amendment are important criteria. The observations ofEthe U.S. Supreme Court in Maxwell v. Dow [176 US 581 : 44L Ed 597, 605 (1899)] are worthy of note: (L Ed p. 605)

“… to read its language in connection with the knowncondition of affairs out of which the occasion for its adoptionmay have arisen, and then to construe it, if there be thereinFany doubtful expressions, in way so far as is reasonablypossible, to forward the known purpose or object for whichthe amendment was adopted ….”

115. Recollecting these principles, this court is mindful of the firstcircumstance that the 102[nd]Amendment brought in an entirely newGdimension - an attempt to identify backward classes, firstly by insertingSub-Article (26C) into the definition clause under Article 366. This

insertion, in the opinion of the court, accords with the statutory scheme

109 Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell)2017 Chap. 27 @ para 27.1.13.1, page 952H110 1992 Supp (2) SCC 651

of defining terms for the purposes of the Constitution. This term “forthe purposes of this Constitution” occurs twelve times[111] in theConstitution.

116. The interpretation of the definition in relation to the Constitution,is truly indicative that for the purpose of the entire constitution, themeaning ascribed in the definition clause – in this case, by Article 366(26C), has to prevail. While interpreting whether members of SCs/ STswho communities find mention in the Presidential notification in two states,could claim reservation benefits in both states, this court had occasion toconsider parimateria provision, i.e. Articles 366 (24) and (25) whichdefined SCs “for the purposes of this constitution”. In Marri ChandraShekhar Rao v. Dean, Seth G.S. Medical College[112], ConstitutionBench of this Court held as follows:“12. It is, however, necessary to give proper meaning to theexpressions ‘for the purposes of this Constitution’ and ‘inrelation to that State’ appearing in Articles 341 and 342 ofthe Constitution.”

This court then noticed the divergent views of the High Courtsand then observed:

“13. It is trite knowledge that the statutory and constitutionalprovisions should be interpreted broadly and harmoniously.It is trite saying that where there is conflict between twoprovisions, these should be so interpreted as to give effect toboth. Nothing is surplus in Constitution and no part shouldbe made nugatory. This is well settled. See the observationsof this Court in Venkataramana Devaru v. State ofMysore [1958 SCR 895, 918 : AIR 1958 SC 255] , whereVenkatarama Aiyer, J. reiterated that the rule of constructionis well settled and where there are in an enactment twoprovisions which cannot be reconciled with each other, theseshould be so interpreted that, if possible, effect could be givento both. It, however, appears to us that the expression ‘for thepurposes of this Constitution’ in Article 341 as well as in Article342 do imply that the Scheduled Caste and the ScheduledTribes so specified would be entitled to enjoy all the111 Articles 108 (4); 299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366(26C) and 367 (3)

112 1990 SCC (3) 130.

constitutional rights that are enjoyable by all the citizens assuch. Constitutional right, e.g., it has been argued that rightto migration or right to move from one part to another is aright given to all — to Scheduled Castes or Tribes and tonon-scheduled castes or tribes. But when Scheduled Casteor Tribe migrates, there is no inhibition in migrating but whenhe migrates, he does not and cannot carry any special rightsor privileges attributed to him or granted to him in the originalState specified for that State or area or part thereof. If thatright is not given in the migrated State it does not interferewith his constitutional right of equality or of migration or ofcarrying on his trade, business or profession. Neither Article14, 16, 19 nor Article 21 is denuded by migration but he mustenjoy those rights in accordance with the law if they areotherwise followed in the place where he migrates. Thereshould be harmonious construction, harmonious in the sensethat both parts or all parts of constitutional provision shouldbe so read that one part does not become nugatory to theother or denuded to the other but all parts must be read in thecontext in which these are used. It was contended that theonly way in which the fundamental rights of the petitionerunder Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could begiven effect to is by construing Article 342 in manner bywhich member of Scheduled Tribe gets the benefit of thatstatus for the purposes of the Constitution throughout theterritory of India. It was submitted that the words “for thepurposes of this Constitution” must be given full effect. Thereis no dispute about that. The words “for the purposes of thisConstitution” must mean that Scheduled Caste so designatedmust have right under Articles 14, 19(1)(d), 19(1)(e) and19(1)(f) inasmuch as these are applicable to him in his areawhere he migrates or where he goes. The expression “inrelation to that State” would become nugatory if in all Statesthe special privileges or the rights granted to ScheduledCastes or Scheduled Tribes are carried forward. It will alsobe inconsistent with the whole purpose of the scheme ofreservation. In Andhra Pradesh, Scheduled Caste or aScheduled Tribe may require protection because boy or achild who grows in that area is inhibited or is at disadvantage.

In Maharashtra that caste or that tribe may not be so inhibitedbut other castes or tribes might be. If boy or child goes tothat atmosphere of Maharashtra as young boy or childand goes in completely different atmosphere or Maharashtrawhere this inhibition or this disadvantage is not there, thenhe cannot be said to have that reservation which will denudethe children or the people of Maharashtra belonging to anysegment of that State who may still require that protection.After all, it has to be borne in mind that the protection isnecessary for the disadvantaged castes or tribes ofMaharashtra as well as disadvantaged castes or tribes ofAndhra Pradesh. Thus, balancing must be done as betweenthose who need protection and those who need no protection,i.e., who belong to advantaged castes or tribes and who donot. Treating the determination under Articles 341 and 342of the Constitution to be valid for all over the country wouldbe in negation to the very purpose and scheme and languageof Article 341 read with Article 15(4) of the Constitution.

14. Our attention was drawn to certain observationsin Elizabeth Warburton v. James Loveland [1832 HL 499] .It is true that all provisions should be read harmoniously. It isalso true that no provision should be so read as to make otherprovisions nugatory or restricted. But having regard to thepurpose, it appears to us that harmonious construction enjoinsthat we should give to each expression —”in relation to thatState” or “for the purposes of this Constitution” — its fullmeaning and give their full effect. This must be so construedthat one must not negate the other. The construction thatreservation made in respect of the Scheduled Caste or Tribeof that State is so determined to be entitled to all the privilegesand rights under the Constitution in that State would be themost correct way of reading, consistent with the language,purpose and scheme of the Constitution. Otherwise, one hasto bear in mind that if reservations to those who are treatedas Scheduled Caste or Tribe in Andhra Pradesh are also givento boy or girl who migrates and gets deducted(sic inducted) in the State of Maharashtra or other Stateswhere that caste or tribe is not treated as Scheduled Caste orScheduled Tribe then either reservation will have the effect

1018SUPREME COURT REPORTS

Aof depriving the percentage to the member of that caste ortribe in Maharashtra who would be entitled to protection orit would denude the other non-Scheduled Castes or non-Scheduled Tribes in Maharashtra to the proportion that theyare entitled to. This cannot be logical or correct resultdesigned by the Constitution.”

(emphasis supplied)

117. This Constitution Bench decision was followed in anotherdecision, 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 CIndia & 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 aparticular caste or tribe or class for inclusion in the list ofScheduled Castes/Schedule Tribes or backward classes in aDgiven State would depend on the nature and extent ofdisadvantages and social hardships suffered by that caste,tribe or class in that State which may be totally non est inanother State to which persons belonging thereto may migrate.Coincidentally it may be that caste or tribe bearing the samenomenclature is specified in two States but the considerationsEon the basis of which they have been specified may be totallydifferent. So also the degree of disadvantages of variouselements which constitute the input for specification may alsobe totally different. Therefore, merely because given casteis specified in State as Scheduled Caste does notnecessarily mean that if there be another caste bearing theFsame nomenclature in another State the person belonging tothe former would be entitled to the rights, privileges andbenefits admissible to member of the Scheduled Caste ofthe latter State “for the purposes of this Constitution”. This isan aspect which has to be kept in mind and which was veryGmuch in the minds of the Constitution-makers as is evidentfrom the choice of language of Articles 341 and 342 of theConstitution.”

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 observedthat

“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 withinsuch tribes or tribal communities as are deemed under Article342 to be “Scheduled Tribes” for the purposes of thisConstitution”.

81. Article 341(1) of the Constitution empowers the President,in consultation with the Governor of the State concerned, tospecify 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 isa State, after consultation with the Governor thereof, by publicnotification, specify the tribes or tribal communities or partsof or groups within tribes or tribal communities which shallfor 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

“Parliament, by law, to include in or exclude from the list of“Scheduled Tribes” specified in notification issued underclause (1), any tribe or tribal community or part of or groupwithin any tribe or tribal community, but save as aforesaid anotification issued under the said clause shall not be variedby any subsequent notification.”

Until the Presidential Notification is modified by appropriateamendment by Parliament in exercise of the power underArticle 341(2) of the Constitution, the Presidential Notificationissued under Article 341(1) is final and conclusive and anycaste or group cannot be added to it or subtracted by anyaction either by the State Government or by court onadducing of evidence. In other words, it is the constitutionalmandate that the tribes or tribal communities or parts of orgroups within such tribes or tribal communities specified by

Athe President, after consultation with the Governor in thepublic notification, will be “Scheduled Tribes” subject to thelaw made by Parliament alone, which may, by law, include inor exclude from the list of “Scheduled Tribes” specified bythe President. Thereafter, it cannot be varied except by lawmade by Parliament.B

82. The President of India alone is competent or authorisedto issue an appropriate notification in terms of Articles 341(1)and 342(1). Cumulative reading of Articles 338, 341 and 342indicate that:

C(a) Only the President could notify castes/tribes as ScheduledCastes/Tribes and also indicate conditions attaching to suchdeclaration. public notification by the President specifyingthe particular castes or tribes as SC/ST shall be final for thepurpose of Constitution and shall be exhaustive.

D(b) Once notification is issued under clause (1) of Articles341 and 342 of the Constitution, Parliament can by lawinclude in or exclude from the list of Scheduled Castes orScheduled Tribes, specified in the notification, any caste ortribe but save for that limited purpose the notification issuedunder clause (1), shall not be varied by any subsequentEnotification [ Ref. Action Committee on Issue of CasteCertificate to SCs/STs in State of Maharashtra v. Union ofIndia, (1994) 5 SCC 244] .”

119. These three Constitution Bench judgments, Marri (supra),Action Committee (supra) and Bir Singh (supra) therefore, have setFthe tone as it were, for the manner in which determination by the Presidentis to be interpreted, having regard to the definition clause in Article 366,which has to apply for interpreting the particular expression in consistentmanner, for the purpose of the Constitution. Thus, the expression SCs inrelation to State for the “purpose of this Constitution”, means themember of SC declared to be so under the Presidential Notification.GThe terms of such Presidential Notification insist that such citizenought to be resident of that concerned State or Union Territory. Thisaspect is of some importance, given that there are large number ofcommunities which are common in several States. However, the decisionsof this Court are uniform since Marri (supra) stated that it is only theHcitizens residing in particular state who can claim the benefit of

reservation – either of that State or of the Centre for the purposes of theConstitution in relation to that State. Necessarily, therefore, the residentof State is entitled to claim reservation benefits under Articles 15(4)and 16(4) if he or she resides (the residential qualification that needs tobe fulfilled is that specified by the concerned State) in that State, (i.e. A)and none else. As sequitur, if such person or community or caste (ofstate A) is also described as Scheduled Caste in State B, for the purposesof State services or admission to State institutions, he cannot claim thebenefits of reservation as scheduled caste in such State. However,Bir Singh (supra) has made it clear that for the purposes of Unionemployment and admissions to Union institutions the position is differentbecause SCs living within the territory of India in relation to one State orthe other, are deemed to be SCs or STs for the purposes of this Constitutionin 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 theguiding factors in interpreting Article 366 (26C), which follows similarpattern, i.e. of defining, for the purpose of the entire constitution,with reference to the determination of those communities who are notifiedas SEBCs, under Article 342A (which again uses the expression “forthe purpose of this constitution”).

121. Quite similarly, when Article 366 was amended by the FortySixth amendment Act, and Article 366(29A) was introduced to Article366, this Court considered the previous amendments, which are the6[th]Amendment to the Constitution and the 46[th]Amendment whichamended Article 269 and Article 286, besides introducing Entry 92A tothe Union List. The Court went on to hold in five-judge bench decisionin 20th Century Finance Corpn. Ltd. v. State of Maharashtra[114], thatthe interpretation adopted by this Court led to the inexorable conclusionthat limitation was placed upon the States’ power of taxation. Article366(29A) on the one hand, expanded the specie of sale which could bethe legitimate subject of taxation by the State, but at the same time, onthe other hand, the amendment also introduced limitations upon the Statepower which was subjected to controls by Parliament. Therefore, in thecontext of the amendment the expression”sale” underwent alteration,partly allowing and partly restricting states’ power to tax goods. Thiscourt, after recounting the history of the previous litigation, held that:

A“19. Following the decisions referred to above, we are of theview that the power of State Legislatures to enact law to levytax on the transfer of right to use any goods under Entry 54of List II of the Seventh Schedule has two limitations — onearising out of the entry itself; which is subject to Entry 92-Aof List I, and the other flowing from the restrictions embodiedBin Article 286. By virtue of Entry 92-A of List I, Parliamenthas power to legislate in regard to taxes on sales or purchaseof goods other than newspapers where such sale or purchasetakes place in the course of inter-State trade or commerce.Article 269 provides for levy and collection of such taxes.CBecause of these restrictions, State Legislatures are notcompetent to enact law imposing tax on the transactions oftransfer of right to use any goods which take place in thecourse of inter-State trade or commerce. Further, by virtue ofclause (1) of Article 286, the State Legislature is precludedfrom making law imposing tax on the transactions of transferDof right to use any goods where such deemed sales take place(a) outside the State; and (b) in the course of import of goodsinto the territory of India. Yet, there are other limitations onthe taxing power of the State Legislature by virtue of clause(3) of Article 286. Although Parliament has enacted law underEclause (3)(a) of Article 286 but no law so far has been enactedby Parliament under clause (3)(b) of Article 286. When suchlaw is enacted by Parliament, the State Legislature would berequired to exercise its legislative power in conformity withsuch law. Thus, what we have stated above, are the limitationson the powers of State Legislatures on levy of sales tax onFdeemed sales envisaged under sub-clause (d) of clause (29-A) of Article 366 of the Constitution.”

122. In similar manner, the expression, “unless the contextotherwise provides”[which is the controlling expression in Article 366(1)]was interpreted by an earlier Constitution Bench in Builders’ AssociationGof India v. Union of India[115 ]when the amendment to Article 366 wasconsidered:

“32. Before proceeding further, it is necessary to understandwhat sub-clause (b) of clause (29-A) of Article 366 of the

Constitution means. Article 366 is the definition clause of theConstitution. It says that in the Constitution unless the contextotherwise requires, the expressions defined in that article havethe meanings respectively assigned to them in that article.The expression ‘goods’ is defined in clause (12) of Article366 of the Constitution as including all materials, commoditiesand articles.”

After discussing the previous decisions in respect of theunamended provisions, the court stated that:

“The emphasis is on the transfer of property in goods (whetheras goods or in some other form). The latter part of clause(29-A) of Article 366 of the Constitution makes the positionvery clear. While referring to the transfer, delivery or supplyof any goods that takes place as per sub-clauses (a) to (f) ofclause (29-A), the latter part of clause (29-A) says that “suchtransfer, delivery or supply of any goods” shall be deemed tobe sale of those goods by the person making the transfer,delivery or supply and purchase of those goods by theperson to whom such transfer, delivery or supply is made.Hence, transfer of property in goods under sub-clause (b)of clause (29-A) is deemed to be sale of the goods involvedin the execution of works contract by the person makingthe transfer and purchase of those goods by the person towhom such transfer is made. The object of the new definitionintroduced in clause (29-A) of Article 366 of the Constitutionis, therefore, to enlarge the scope of ‘tax on sale or purchaseof goods’ wherever it occurs in the Constitution so that it mayinclude within its scope the transfer, delivery or supply ofgoods that may take place under any of the transactionsreferred to in sub-clauses (a) to (f) thereof wherever suchtransfer, delivery or supply becomes subject to levy of salestax. So construed the expression ‘tax on the sale or purchaseof goods’ in Entry 54 of the State List, therefore, includes atax on the transfer of property in goods (whether as goods orin some other form) involved in the execution of workscontract also. The tax leviable by virtue of sub-clause (b) ofclause (29-A) of Article 366 of the Constitution thus becomessubject 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 theConstitution. Clause (1) of Article 286 says that no law of aState shall impose, or authorise the imposition of, tax onthe sale or purchase of goods where such sale orpurchase takes place — (a) outside the State; or (b) in thecourse of the import of the goods into, or export of the goodsout of, the territory of India. Here again we have to read theexpression “a tax on the sale or purchase of goods” found inArticle 286 as including the transfer of goods referred to insub-clause (b) of clause (29-A) of Article 366 which is deemedto be sale of goods and the tax leviable thereon would besubject to the terms of clause (1) of Article 286. Similarly therestrictions mentioned in clause (2) of Article 286 of theConstitution which says that Parliament may by law formulateprinciples for determining when sale or purchase of goodstakes place in any of the ways mentioned in clause (1) ofArticle 286 would also be attracted to transfer of goodscontemplated under Article 366(29-A)(b). Similarly clause (3)of Article 286 is also applicable to tax on transfer ofproperty referred to in sub-clause (b) of clause (29-A) of Article366. Clause (3) of Article 286 consists of two parts. Sub-clause (a) of clause (3) of Article 286 deals with tax on thesale or purchase of goods declared by Parliament by law tobe of special importance in inter-State trade or commerce,which is generally applicable to all sales including thetransfer, supply or delivery of goods which are deemed to besales under clause (29-A) of Article 366 of the Constitution.If any declared goods which are referred to in Section 14 ofthe Central Sales Tax Act, 1956 are involved in such transfer,supply or delivery, which is referred to in clause (29-A) ofArticle 366, the sales tax law of State which provides forlevy of sales tax thereon will have to comply with therestrictions mentioned in Section 15 of the Central Sales TaxAct, 1956.

…. We are of the view that all transfers, deliveries and suppliesof goods referred to in clauses (a) to (f) of clause (29-A) ofArticle 366 of the Constitution are subject to the restrictionsand conditions mentioned in clause (1), clause (2) and sub-

clause (a) of clause (3) of Article 286 of the Constitution andthe transfers and deliveries that take place under sub-clauses(b), (c) and (d) of clause (29-A) of Article 366 of theConstitution are subject to an additional restriction mentionedin sub-clause (b) of Article 286(3) of the Constitution.”

123. In Commissioner of Income Tax v. Willamson FinancialServices[116], this court had to interpret “agricultural income”, termdefined in Article 366(1) as follows:

“366. Definitions.—In this Constitution, unless the contextotherwise requires, the following expressions have themeanings hereby respectively assigned to them, that is to say—(1) ‘agricultural income’ means agricultural income as definedfor the purposes of the enactments relating to Indian incometax;”

124. Noticing that the definition (Article 366 (1) (1)) itself referredto the term as defined by the Income tax Act, and after considering thedefinition in the existing enactment, this court held that:

“30. The expression “agricultural income”, for the purposeof abovementioned entries, means agricultural income asdefined for the purpose of the enactments relating to Indianincome 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 forcefrom time to time to define “agricultural income” in anyparticular manner and that would be the meaning not onlyfor tax enactments but also for the Constitution. Thismechanism has been devised to avoid conflict with thelegislative power of States in respect of agricultural income.”125. Another important decision is Tata Consultancy Services v.State of A.P.[117 ]The issue involved was interpretation of the expressionin Article 366(12), i.e. “goods” which reads as follows:

“(12) “goods” includes all materials, commodities, andarticles”.

126. This court expansively interpreted the definition and heldthat the it includes software programmes, observing that the term“goods” included intangible property:

116 (2008) 2 SCC 202.117 (2005) 1 SCC 308.

A“27. In our view, the term “goods” as used in Article 366(12)of the Constitution and as defined under the said Act is verywide and includes all types of movable properties, whetherthose properties be tangible or intangible. We are in completeagreement with the observations made by this Courtin Associated Cement Companies Ltd. [(2001) 4 SCC 593] ABsoftware program may consist of various commands whichenable the computer to perform designated task. Thecopyright in that program may remain with the originator ofthe program. But the moment copies are made and marketed,it becomes goods, which are susceptible to sales tax. EvenCintellectual property, once it is put on to media, whether itbe in the form of books or canvas (in case of painting) orcomputer discs or cassettes, and marketed would become“goods”. …… The term “all materials, articles andcommodities” includes both tangible and intangible/incorporeal property which is capable of abstraction,Dconsumption and use and which can be transmitted,transferred, delivered, stored, possessed, etc. The softwareprograms 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 consistentlyEgiven effect to the express terms, and in the broadest manner. Whenevernew definitions were introduced, full effect was given, to the plain andgrammatical terms, often, limiting existing legislative powers conferredupon the states.

128. Before proceeding to examine whether the term “the CentralFList” in Article 342A indicates an expression to the contrary, [per Article366 (1)] it is also necessary to consider some decisions that haveinterpreted amendments which introduced entirely new provisions, eitheraffecting state’s legislative powers, or limiting fundamental rights.

129. In Bimolangshu Roy v. State of Assam[118] the state’sGlegislative competence to enact law providing for appointment ofParliamentary Secretaries, in the context of provisions of the Constitution(Ninety-First Amendment) Bill, 2003 which was passed by both theHouses of Parliament and after receiving the assent of the President,became provision of the Constitution. It introduced Article 164(1-A),H118 (2018) 14 SCC 408

which had the effect of limiting the total number of Ministers in theCouncil of Ministers in State, including the Chief Minister, to fifteenper cent of the total number of members of the Legislative Assembly ofthat State; the minimum number of ministers was to be 12. The stateassembly sought to create offices that had the effect of exceeding thenumber mandated (15%). Upon challenge, it was argued that the statehad 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 existenceof dedicated article in the Constitution authorising themaking of law on particular topic would certainly eliminatethe possibility of the existence of the legislative authority tolegislate in Article 246 read with any entry in the SeventhSchedule indicating field of legislation which appears tobe closely associated with the topic dealt with by the dedicatedarticle. For example, even if the Constitution were not tocontain Entries 38, 39, 40 in List II the State Legislatureswould still be competent to make laws w.r.t. the topics indicatedin those three entries, because of the authority contained inArticles 164(5), 186, 194, 195, etc. Therefore, to place aconstruction on those entries which would have the effect ofenabling the legislative body concerned to make law notwithin the contemplation of the said articles would be plainlyrepugnant to the scheme of the Constitution.”

“39. The distinction between the scheme of Article 262 Entry56 of List I and Entry 17 of List II and the scheme of Article194 and Entry 39 of List II is this that in the case of inter-State water disputes neither of the abovementioned two entriesmake any mention of the adjudication of water disputes andonly Article 262 deals with the topic. In the case on hand, therelevant portion of the text of Article 194(3) and Entry 39 ofList II are almost identical and speak about the “powers,privileges and immunities” of the House, its Members andcommittees.

40. The question therefore is — Whether the text of Article194(3) and Entry 39 is wide enough to authorise thelegislature to make the Act?

41. In view of the fact that the text of both Article 194(3) andthe relevant portion of Entry 39 are substantially similar, themeaning of the clause “the powers, privileges and theimmunities of House of the legislature of State … and ofthe Members of House of such legislature” must beexamined.”

“43. Article 194 deals exclusively with the powers andprivileges of the legislature, its Members and committeesthereof. While clause (1) declares that there shall be freedomof speech in the legislature subject to the limitationsenumerated therein, clause (2) provides immunity in favourof the Members of the legislature from any legal proceedingsin any court for anything said or any vote given by suchMembers in the legislature or any committees, etc. Clause (3)deals with the powers, privileges and immunities of Houseof the Legislature and its Members with respect to mattersother than the ones covered under clauses (1) and (2).44. Thus, it can be seen from the scheme of Article 194 that itdoes not expressly authorise the State Legislature to createoffices such as the one in question. On the other hand, Article178 speaks about the offices of Speaker and Deputy Speaker.Article 179 deals with the vacation of those offices orresignations of incumbents of those offices whereas Articles182 and 183 deal with the Chairman and Deputy Chairmanof the Legislative Council wherever the Council exists. In ouropinion, the most crucial article in this Chapter is Article 187which makes stipulations even with reference to the secretarialstaff of the legislature. On the face of such elaborate andexplicit constitutional arrangement with respect to thelegislature and the various offices connected with thelegislature and matters incidental to them to read the authorityto create new offices by legislation would be whollyirrational way of construing the scope of Article 194(3) andEntry 39 of List II. Such construction would be enablingthe legislature to make law which has no rational connectionwith the subject-matter of the entry. “The powers, privilegesand immunities” contemplated by Article 194(3) and Entry39 are those of the legislators qua legislators.”

130. In Ashoka Kumar Thakur v. Union of India[119] the issuewhich arose for consideration was the correct interpretation of Article15(5)(extracted below in footnote)[120], introduced by virtue of theConstitution (Ninety Third Amendment) Act, 2005. It enabled the stateto make special provisions for the advancement of any SEBCs or forSCs or STs as far as they related to “their admission to educationalinstitutions including private educational institutions, whether aidedor unaided by the State, other than the minority educationalinstitutions referred to in clause (1) of article 30”. This court heldthat on true construction, special provisions for admission to suchcategory of candidates, even in private educational institutions, waspermissible. 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.” inthe State of Madras was struck down by this Courtin Champakam Dorairajan case [1951 SCR 525] . In UnniKrishnan [(1993) 1 SCC 645] this Court held that Article19(1)(g) is not attracted for establishing and runningeducational institutions. However, in T.M.A. Pai Foundationcase [(2002) 8 SCC 481] it was held that the right to establishand run educational institutions is an occupation within themeaning of Article 19(1)(g). The scope of the decisionin T.M.A. Pai Foundation case [(2002) 8 SCC 481] was laterexplained in P.A. Inamdar case [(2005) 6 SCC 537] . It washeld that as regards unaided institutions, the State has nocontrol and such institutions are free to admit students of theirown choice. The said decision necessitated the enactment ofthe Constitution (Ninety-third Amendment) Act, 2005. Thus,both Articles 15(4) and 15(5) operate in different areas. The“nothing in this article” [mentioned at the beginning of Article15(5)] would only mean that the nothing in this article whichprohibits the State on grounds which are mentioned in Article

119 (2008) 6 SCC 1.

120 [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall preventthe State from making any special provision, by law, for the advancement of any sociallyand educationally backward classes of citizens or for the Scheduled Castes or theScheduled Tribes in so far as such special provisions relate to their admission toeducational institutions including private educational institutions, whether aided orunaided by the State, other than the minority educational institutions referred to inclause (1) of article 30.]

A15(1) alone be given importance. Article 15(5) does notexclude Article 15(4) of the Constitution.

126. It is well-settled principle of constitutional interpretationthat while interpreting the provisions of the Constitution, effectshall be given to all the provisions of the Constitution and noBprovision shall be interpreted in manner as to make anyother provision in the Constitution inoperative or otiose. Ifthe intention of Parliament was to exclude Article 15(4), theycould have very well deleted Article 15(4) of the Constitution.Minority institutions are also entitled to the exercise offundamental rights under Article 19(1)(g) of the Constitution,Cwhether they be aided or unaided. But in the case of Article15(5), the minority educational institutions, whether aided orunaided, are excluded from the purview of Article 15(5) ofthe Constitution. Both, being enabling provisions, wouldoperate in their own field and the validity of any legislationDmade on the basis of Article 15(4) or 15(5) has to be examinedon the basis of provisions contained in such legislation orthe special provision that may be made under Article 15(4) or15(5)….”

131. The Court, similarly, gave full effect to the definition clauseEin Article 366 [in the definition of Union territory, under Article 366(30)]while examining the soundness of the argument that immunity fromintergovernmental taxation (i.e., under Article 289 which exempts statesfrom Union taxation), extends to Union Territories and municipalities. Itwas argued that in many cases, the Union Territories had LegislativeAssemblies, by statutory enactments, or special provisions, and in theFcase of municipalities, the Constitution had, through amendment, andintroduction of Article 243X, authorized states to authorize municipallevies. The court repelled this argument, in New Delhi MunicipalCouncil v. State of Punjab[121 ]in nine-judge ruling, stating as follows:

“53. Before dealing with the specific circumstances of, andGthe decision in, each of these cases, it is necessary that fewprovisions which figure prominently be dealt with. Article246(4) of the Constitution, as it stood on 26-1-1950, allowedParliament to “make laws with respect to any matter for anypart of the territory of India not included in Part or Part BH121 (1997) 7 SCC 339at page 370.

of the First Schedule”. The Seventh Amendment Act broughtabout number of changes affecting Union Territories, someof which have already been noticed by us. The other changesbrought about by it are also relevant; it caused Article 246 tobe changed to its present form where Parliament is empoweredto make laws with respect to “any part of the territory ofIndia not included in State”. The word “State” has not beendefined in the Constitution. Article 1(3) defines the territoryof 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 “UnionTerritory” has been defined in Article 366(30) to mean “anyUnion Territory specified in the First Schedule and includesany other territory comprised within the territory of India butnot specified in that Schedule54. Though not defined in the Constitution, the word “State”has been defined in the General Clauses Act, 1897 (hereinaftercalled “the General Clauses Act”). Article 367 of theConstitution states that the General Clauses Act, 1897 shall,unless the context otherwise requires and subject to anyadaptations and modifications made under Article 372, applyfor the interpretation of the Constitution. Therefore, on plainreading of the provisions involved, it would appear that thedefinition of “State” in the General Clauses Act would beapplicable for the purposes of interpreting the Constitution.Article 372 is the saving clause of the Constitution whichenables all laws in force before the commencement of theConstitution to continue in the territory of India. Article 372-A, which, once again, owes its origin to the SeventhAmendment Act, empowers the President to make furtheradaptations in particular situations.

***********

“99. It is, therefore, clear that even under the new scheme,Municipalities do not have an independent power to levytaxes. Although they can now be granted more substantialpowers than ever before, they continue to be dependent upontheir parent legislatures for the bestowal of such privileges.In the case of Municipalities within States, they have to be

Aspecifically delegated the power to tax by the State Legislatureconcerned. In Union Territories which do not have LegislativeAssemblies of their own, such power would have to bedelegated by Parliament. Of the rest, those which haveLegislative Assemblies of their own would have to specificallyempower Municipalities within them with the power to levyBtaxes.

100. We have already held that despite the fact that certainUnion Territories have Legislative Assemblies of their own,they are very much under the supervision of the UnionGovernment and cannot be said to have an independentCstatus. Under our constitutional scheme, all taxation must fallwithin either of two categories: State taxation or Uniontaxation. Since it is axiomatic that taxes levied by authoritieswithin State would amount to State taxation, it would appearthat the words “or by any authority within State” have beenDadded in Article 285(1) by way of abundant caution. It couldalso be that these words owe their presence in the provisionto historical reasons; it may be noted that Section 154 of the1935 Act was similarly worded. The fact that Article 289(1),which in its phraseology is different from Section 155 of the1935 Act having been drafted by the Drafting Committee to

meet specific objections, does not contain words similar tothose in Article 285(1), will not in any way further the case ofthe appellant, because the phrase “Union taxation” willencompass municipal taxes levied by Municipalities in UnionTerritories.”

FIt is noteworthy that the court was inter alia, guided by thedefinition of “State” in Article 367 of the Constitution of India.

X. Interpreting provisions of the 102[nd] Amendment- Article366 (26C), 338B and 342A

132. What is noticeable in the lines of decisions preceding thissection, including those dealing with constitutional amendments- is thatwhenever the definition clause (Article 366) arose for consideration, thecourt gave full effect to the substantive amendments as well as thedefinition (as in the case of Builders Association [supra] and TwentiethCentury Leasing [supra]), as well as the newly introduced provisions

(as in the case of Bimolangshu Roy [supra] and Ashoka Kumar Thakur[supra]). In Williamson Financial Services (supra)and New DelhiMunicipal Council (supra), this court gave full effect to the plainmeaning of the definition clause, in Article 366 (1) (1) and (30)respectively.

133. In this background, the crucial point to be decided is - didParliament, acting in its constituent capacity, whereby any amendmentneeded special majority of two thirds of its members present and voting,in both the Houses separately, wish to bring about change in statusquo or not?

134. Parliament was aware that the procedure for identificationof SCs and STs, culminated with the final decision by the President onthe aid and advice of the Union Council of Ministers. This position in lawunderwent little change, despite the Constitution (Sixty Fifth) andConstitution (Eighty Ninth)Amendment Acts, which set up commissionsfor SCs and STs, replacing the provisions of the original constitutionwhich had created an authority called the “Special Officer”. Throughthe amended Articles 338 and 338A, consultation with the states in thematter of inclusion or exclusion, was and continues to be given dueconsideration. It is also possible for states to initiate the process andpropose the inclusion (or deletion of) new communities or castes, bysending their proposals, duly supported by relevant material, forconsideration. This constitutional procedure, so to say, culminating in thefinal word of Parliament was well known, in relation to SCs and STs.The states were, and are, bound to consult these two commissions, forSCs and STs (under Articles 338 and 338A).Till the 102[nd] Amendment,when it came to backward classes, or SEBCs, the Constitution wassilent- definitionally, as well as the manner by which their identificationcould take place.

135. The interpretive exercise carried out in Indra Sawhney sawthis court enjoining the Central and State governments to set up somepermanent mechanisms in the form of commissions, to identify SEBCsthrough systematic and scientific manner and carry on regular periodicreviews. The respondent states emphasize that pursuant to this direction,state enactments were framed and brought into force. The argumentson their behalf as well as the Attorney General was that given thesedirections by nine-judge bench, it could not be inferred that the 102[nd]Amendment was ever intended to bring about such drastic change as

Ato exclude the state’s role altogether, in the task of making specialprovisions under Article 15 (4) and Article 16 (4), in regard to identificationof SEBCs.

136. It is correct that Indra Sawhney clearly voiced the need forthe Central Government and the states to take measures for setting upBpermanent commissions or bodies, if need be through legislation, to carryout the task of identification of communities as SEBCs for the purposesof Articles 15 and 16. However, that articulation or even direction, couldnot have, in the opinion of this court, been an injunction never to departfrom the existing mechanisms of setting standards for identification ofsuch classes, nor was it to be direction in perpetuity, that status quoCremain forever. It cannot be seriously assumed that if Parliament wereso minded, it cannot bring about changes at all to the Constitution, inregard to how identification of backward classes is to take place. Theexistence of the provision in Article 368, enabling amendments, and theinapplicability of the proviso to Article 368(2) in relation to the kind ofDchanges to the Constitution, brought about by introduction of Articles366 (26C), Article 338B and Article 342A, negates this argument.137. reading of the Select Committee’s Report (in relation tothe 102[nd] Amendment) bears out that various changes to the proposedamendments were suggested on the ground that on fair and reasonableEinterpretation of its terms, State’s powers to make reservations could beimpacted. The Central Government’s representatives and officials assuredthat the State’s role in the process of backward class identification andlisting, would be maintained. None of the amendments proposed,expressly preserving the state power, were accepted. The dissentingmembers were aware that fair and reasonable interpretation of theF’terms of the amendment clearly ousted the States powers to identifybackward classes of citizens. This emerges on reading of note byShri Sukhendu Shekhar Roy, Member of Parliament who relied onextracts of the judgment in Indra Sawhney and observed that theamendments prescribed “for the unitary authority which in effectGshall encroach upon the jurisdiction of the States in the matter ofidentifying and specifying the socially and educationally backwardclasses”. Three Members, Shri Digvijaya Singh, Shri B.K. Hariprasad,and Shri Hussain Dalwai, submitted joint note of dissent which dealtwith the powers of the commission under Article 342A, and also suggestedchanges in its composition. Shri Sharad Yadav, another Member ofH

Parliament, was of the view that there was no need of any inclusion orexclusion of the castes and approval thereof should not be left to theGovernor, Parliament and President as it will be step backward. Dr.DalipKumar Tirkey, Member of the Rajya Sabha, proposed sub-articles (3)and (4) to Article 342A, enabling the State to publish list which couldbe modified by State Assemblies. Ms. Kanimozhi in her long letter ofdissent, also highlighted the effect of proposed amendment and insertionof Article 342A which had the effect of ousting the states’ power, whichthey had hitherto exercised to identify SEBCs.

138. The debates in Parliament also witnessed members voicingapprehensions that the power hitherto enjoyed by the states, would bewhittled down drastically. These fears were allayed by the concernedMinister who piloted the Bill before both Houses of Parliament. Extractsof these statements have been set out in extenso in the judgment ofAshok Bhushan, J.; they are not reproduced here, for the sake of brevity.

139. These materials show that there was on the one hand, anassumption that the changes ushered by the amendments would not disturbany part of states’ powers; however, sizeable number- 8 members,after careful reading of the terms of the amendment, dissented, sayingthat state power would be adversely impacted. In these circumstances,the debate which ensued at the time of passing of the Bill into the 102[nd]Amendment was by way of an assurance by the Minister concernedthat the existing power of the states would not be affected. To the sameeffect, are debates on the floor of the Houses of Parliament. Given allthese circumstances, it is difficult to accept the contention that the SelectCommittee’s Report, to the extent it holds out an assurance, should beused as determinative external aidfor interpretation of the actual termsof the 102nd Amendment. Likewise, debates and statements cannot beconclusive about the terms of the changes brought about by an amendmentto the Constitution. The duty of the court always is to first interpret thetext, and only if there is ambiguity in the meaning, to resort first to internalaids, before seeking external aids outside the text.

140. It would be useful to recollect that this Court had, through aseven-judge bench, held that the words of the statute are to be construedon their own terms and that the task of interpretation should not bedetermined by statements made by Ministers and Members ofParliament. In Sanjeev Coke Manufacturing (supra) it was held that:

1036SUPREME COURT REPORTS

A“No one may speak for the Parliament and Parliament is neverbefore the Court. After Parliament has said what it intends tosay, only the Court may say what the Parliament meant tosay. None else. Once statute leaves Parliament House, theCourt’s is the only authentic voice which may echo (interpret)the Parliament. This the court will do with reference to theBlanguage of the statute and other permissible aids.”141. This aspect was highlighted somewhat more vividly in recentdecision of this Court in Shivraj Singh Chauhan v. Speaker, MadhyaPradesh Legislative Assembly[122], where it was held that:

C“In interpreting the Constitution, it would be not be correctto rely on the speeches Constituent Assembly of India, VolumeVIII (debate of 1 June 1949) made by individual members ofthe Constituent Assembly. Each speech represents the view ofone individual in the Assembly which taken as whole formeda kaleidoscope of competing political ideologies. There mayDarise instances where the court is of the independent opinionthat the views raised by individual Members of the ConstituentAssembly in their speeches lay down considerations thatwarrant examination and approval by the Court. The generalrule however, would be to examine the decisions taken byEConstituent Assembly taken by majority vote. The votes of theConstituent Assembly represent equally the views of all themembers of the Assembly and are the final and dispositiveexpressions of the constitutional choices taken in framing ourConstitution.”

F142. The use of external aids such as speeches and parliamentaryreports was commented upon earlier, rather strongly, by SabyasachiMukherjee, CJ in the decision reported as DTC Mazdoor Congress v.Delhi Transport Corporation:[123]

“Construction or interpretation of legislative or rule provisionsGproceeds on the assumption that courts must seek to discoverand translate the intention of the legislature or the rule-makingbody. This is one of the legal fictions upon the hypothesis ofwhich the framework of adjudication of the intention of

122 2020 SCC Online SC 363H123 1990 SCR Supp. (1) 142

piece of legislation or rule proceeds. But these are fictionalmyths to large extent as experience should tell us. In mostof the cases legislature, that is to say, vast majority of thepeople who are supposed to represent the views and opinionsof the people, do not have any intention, even if they have,they cannot and do not articulate those intentions. On mostof these issues their is no comprehension or understanding.Reality would reveal that it is only those who are able to exerttheir view- points, in common parliamentary jargon, thepower lobby, gets what it wants, and the machinery is of abureaucratic set up who draft the legislation or rule or law.So, there- fore, what is passed on very often as the will of thepeople in particular enactment is the handy work of abureaucratic machine produced at the behest of power lobbycontrol- ling the corridors of power in particular situation.This takes the mythical shape of the ‘intention of the people’in the form of legislation. Again, very often, the bureaucraticmachine is not able to correctly and properly transmute whatwas intended to be conveyed. In such situation, is it or is itnot better, one would ponder to ask, whether the courts shouldattribute to the law-making body the knowledge of the valuesand limitations of the Constitution, and knowledge of the evilsthat should be remedied at particular time and in situationthat should be met by particular piece of legislation, andthe court with the experience and knowledge of law, with theassistance of lawyers trained in this behalf, should endeavourto find out what will be the correct and appropriate solution,and construe the rule of the legislation within the ambit ofconstitutional limitations and upon reasonable judgment ofwhat should have been expressed. In reality, that happens inmost of the cases. Can it be condemned as judicial usurpationof law-making functions of the legislature thereby deprivingthe people of their right to express their will? This is practicaldilemma which Judges must always, in cases of interpretationand construction, face and question which they mustanswer.”

143. The polyvocality of parliamentary proceedings where theviews expressed by Ministers or Parliamentarians may not be commonor unanimous and the danger of attributing particular intention to the

Aterms of statute, through the words of Minister or other functionarywhich may be at odds with the plain words, cannot be lost sight of.

144. In the decision reported as BBC Enterprises v.Hi-TechXtravision Ltd.,[124] the court cautioned against the use of the purposiveinterpretation rule, saying thatB

“the courts should now be very reluctant to hold thatParliament 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. Unionof India[125] where it was held as follows:C

“26. The courts will therefore reject that construction whichwill defeat the plain intention of the legislature even thoughthere may be some inexactitude in the languageused.[See Salmon v. Duncombe [Salmon v. Duncombe, (1886)LR 11 AC 627 (PC)] (AC at p. 634).] Reducing the legislationDfutility shall be avoided and in case where the intention ofthe legislature cannot be given effect to, the courts wouldaccept the bolder construction for the purpose of bringingabout an effective result. The courts, when rule of purposiveconstruction is gaining momentum, should be very reluctantEto hold that Parliament has achieved nothing by the languageit 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 ER118 : 1990 Ch 609 : (1990) 2 WLR 1123 (CA)] (All ER at pp.122-23).]”F

146. Taking into consideration the amendment to Section 123 ofthe Representation of People’s Act, which introduced new corruptpractice, i.e. the candidate making an appeal on the basis of his religionor caste, this court took the aid of the doctrine of purposive construction,in Abhiram Singh v. C.D. Commachen[126]. The majority judgmentGadopted wide interpretation, whereby any appeal on proscribed grounds,by the candidate, for himself, against his rival, or to the voter, wouldconstitute corrupt practice:

124 1990) 2 All ER 118125 (2003) 7 SCC 628H126 (2017) 2 SCC 629

“47. There is no doubt in our mind that keeping in view thesocial context in which clause (3) of Section 123 of the Actwas enacted and today’s social and technological context, itis absolutely necessary to give purposive interpretation tothe provision rather than literal or strict interpretation assuggested by the learned counsel for the appellants, which,as he suggested, should be limited only to the candidate’sreligion or that of his rival candidates. To the extent that thisCourt has limited the scope of Section 123(3) of the Actin Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. PratapSingh Daulta, (1964) 6 SCR 750 : AIR 1965 SC 183] , KantiPrasad Jayshanker Yagnik [Kanti Prasad JayshankerYagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC455] and Ramesh Yeshwant Prabhoo [Ramesh YeshwantPrabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 :(1995) 7 Scale 1] to an appeal based on the religion of thecandidate or the rival candidate(s), we are not in agreementwith the view expressed in these decisions. We have nothingto say with regard to an appeal concerning the conservationof language dealt with in Jagdev Singh Sidhanti [JagdevSingh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 :AIR 1965 SC 183] . That issue does not arise for ourconsideration.

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Conclusion

50. On consideration of the entire material placed beforeus by the learned counsel, we record our conclusions asfollows:

50.1. The provisions of clause (3) of Section 123 of theRepresentation of the People Act, 1951 are required to beread and appreciated in the context of simultaneous andcontemporaneous amendments inserting clause (3-A) inSection 123 of the Act and inserting Section 153-A in thePenal Code, 1860.

50.2. So read together, and for maintaining the purity of theelectoral process and not vitiating it, clause (3) of Section123 of the Representation of the People Act, 1951 must be

Agiven broad and purposive interpretation thereby bringingwithin the sweep of corrupt practice any appeal made to anelector by candidate or his agent or by any other personwith the consent of candidate or his election agent to voteor refrain from voting for the furtherance of the prospects ofthe election of that candidate or for prejudicially affectingBthe 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 appealwith the consent of the candidate, or (iv) the elector.

50.3. It is matter of evidence for determining whether anCappeal has at all been made to an elector and whether theappeal 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 wasenacted by Parliament in 1993. The scheme of that enactment showedDthat the NCBC was tasked with making recommendations for variouspurposes; especially, (by Section 9 (1)) to “examine requests forinclusion of any class of citizens as backward class in the listsand hear complaints of over-inclusion or under-inclusion of anybackward class in such lists and tender such advice to the CentralGovernment as it deems appropriate”. By all accounts, that commissionEembarked on its task and identified SEBCs in all the 31 states and unionterritories in India. According to the information available[127], as many as2479 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

Ffunctioning properly, or that there was any interference with its work.Nor is there any suggestion that states voiced resentment at the decisionsor recommendations of the NCBC. Given these, the important questionthat hangs in the air- if one can say so- is why did Parliament have to goto such great lengths, to merely confer constitutional status, upon the

NCBC, and at the same time, tie the hands of the Union Government,Grobbing it of the flexibility it always had, of modifying or amending thelist of OBCs for the purposes of the Union Government and Centralpublic sector employment, and for purposes of schemes and admissionto institutions, under Article 15(4).

127 Website of the Ministry of Social Justice, Central Government: http://Hsocialjustice.nic.in/UserView/index?mid=76674 accessed on 12.04.2012 at 22.02 hrs.

148. It was asserted by the Attorney General and the states, thatthe move to amend the Constitution was only to empower the CentralGovernment to publish list, for union employment and Central PSUposts. That power always existed- under the NCBC Act. Concededly,the states were not interfering with those lists. The Union always hadand exercised power to add or vary the contents of such lists for centralposts, PSUs and institutions, whether it enacted law or not.There is noreason why rigidity had to be imparted to the position with regard topreparation of list, by taking away the flexibility of the President toamend the lists, and requiring it to approach Parliament, after initiallypublishing list under Article 342A. Again, if this court’s direction inIndra Sawhney is the reason, then there is no enabling legislation in allstates, for setting up commissions. Rather, to require the President onthe aid and advice of the Union Council of Ministers to issue notificationwhich can be only changed by Parliament (by reason of Article 342A),is mystifying.149. The interpretation suggested by the respondents, and by AshokBhushan, J., that the power of the states, which existed till the 102[nd]Amendment was made, continues unimpeded, is not borne out. Such aninterpretation amounts to saying that Parliament went to great lengthsby defining, for the first time, the term SEBC[128] in the Constitution, andprovided for one notification under Article 342Aissued by the President,which would “specify the socially and educationally backwardclasses which shall for the purposes of this Constitution be deemedto be socially and educationally backward classes in relation tothat State or Union territory”, and then, restricted the width of theterm “deemed for purposes of this Constitution” by giving primacy tothe term “Central List”. Such an interpretation restricts the specificationof community as backward, in relation to that State or Unionterritory, only for purposes of the Central List, i.e., for purposes ofcentral government employment and Central Institutions.Such aninterpretation with respect, is strained; it deprives plain and grammaticalmeaning to the provisions introduced by the 102[nd] Amendment, has theeffect of tying the hands of the Central Government, and at the sametime, grants the states unlimited latitude in the manner of inclusion ofany class of citizens as backward.

128 which per Article 366 (26C) “means such backward classes as are so deemed underarticle 342A for the purposes of this Constitution”

A150. The claim that the interpretation suggested by the respondentsis pragmatic and conforms to the doctrine of purposive interpretation,with respect, cannot be accepted. It completely undermines the widthand amplitude of the following:

(a)The deeming fiction introduced by the 102[nd] Amendment,Bwhile inserting Article 366 (26C);

(b)The use of the term “means” which has been interpretedto imply an exhaustive definitional expression, in severaldecisions of this court[129], as device to place the matterbeyond the pale of interpretation, to ensure that the onlyCmeaning attributable is the one directed by the provision.Thus, SEBCs are, by reason of Article 366 (26C) only thosedeemed to be so under Article 342A.

(c)The emphasis is on the community- upon being included,under Article 342A, for the purposes of this Constitutionbeing “deemed to be” socially and educationally backwardclasses, in Article 366 (26C). Thus, for all purposes underthe Constitution, such communities are deemed to beSEBCs.

(d)The logical corollary is that such inclusion is for the purposesof the constitution, to enable state and central governmentEbenefits, i.e. welfare measures, special provisions underArticles 15 (4) and 15 (5), as well as employment, underArticle 16 (4). The enactment of this provision excludes allother methods of identification, by any other body - eitherthe state, or any state commission or authority.

(e)The use of the expression for the purposes of thisConstitution, - in Article 342A (1), also emphasizes theidea that for all purposes, i.e under Article 15 (4), 15 (5),

129 Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, LabourCourt, (1990) 3 SCC 682 where Constitution Bench stated:

“72. The definition has used the word ‘means’. When statute says that wordGor phrase shall “mean”— not merely that it shall “include” — certain things or acts,“the definition is hard-and-fast definition, and no other meaning can be assigned tothe expression than is put down in definition” (per Esher, M.R.,Gough v. Gough[(1891)2 QB 665] ). definition is an explicit statement of the full connotation of 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 andHBoyce Manufacturing Co v State of Maharashtra 2014 (3) SCC 430.

and 16 (4), only the communities or classes deemed to beSEBCs under Article342A would be treated as such, inrelation to the State or Union territory concerned.

(f)Article 338 (10) was amended, to delete references tobackward class of citizens. It originally stated that scheduledcastes also included references “to such other backwardclasses as the President may, on receipt of the report ofa Commission appointed under clause (1) of article 340,by order specify and also”. These expressions wereomitted and an entirely new provision, exclusively forpurpose of socially and educationally backward classes, wasinserted (Article 338B), which has to independently considerall aspects relating to SCBCs, in manner identical to SCsand STs.

151. If all these factors are kept in mind, there can be no room fordoubt that “the Central List” in Article 342A (2) is none other than thelist published in Article 342A(1) for the purposes of the Constitution.This means that after the introduction of these provisions, the final say inregard to inclusion or exclusion (or modification of lists) of SEBCs isfirstly with the President, and thereafter, in case of modification orexclusion from the lists initially published, with the Parliament.

152. This sequitur is the only reason why change was envisionedin the first placeby Parliament, sitting in its constituent capacity, noless, which is to alter the entire regime by ensuring that the final say inthe matter of identification of SEBCs would follow the same pattern asexists, in relation to the most backward classes among all citizens, (i.e.the SCs and STs, through Articles 338, 338A, 341 and 342). Too muchcannot be read into the use of the expression the Central list for thesimple reason that it is list, prepared and published by the President, onthe aid and advice of the Union Council of Ministers. The term Centralis no doubt, unusual, but it occurs in the Constitution in several places. Atthe same time, the Council of Ministers headed by the Prime Ministeradvices the President and provides information relating to theadministration of the affairs of the Union and proposals forlegislation (Article 78). Similarly, Article 77 uses the term “theGovernment of India”. Given that these terms are used interchangeably,and mean the same, “the Central List” carries no other significationthan the list notified under Article 342A(1), by the President at the behestof the Central Government.

A153. It is noticeable that Article 367 of the Constitution of Indiaincorporates, by reference, the definitions set out in the General ClausesAct, 1897, as those operating in relation to expressions not definedexpressly in the Constitution itself[130]. By Section 3 (8) (b) of that Act,“Central Government” means, after commencement of theConstitution, the President of India.131 In recent decision, K.BLakshminarayanan v. Union of India[132] this court held that

130 367. Interpretation.—(1) Unless the context otherwise requires, the General ClausesAct, 1897, shall, subject to any adaptations and modifications that may be made thereinunder article 372, apply for the interpretation of this Constitution as it applies for theinterpretation 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,Cor to Acts or laws of, or made by, the Legislature of State, shall be construed asincluding reference to an Ordinance made by the President or, to an Ordinance madeby Governor, as the case may be.

(3) For the purposes of this Constitution ¯ “foreign State” means any Stateother than India:

Provided that, subject to the provisions of any law made by Parliament, thePresident may by order4 declare any State not to be foreign State for such purposes asmay be specified in the order.”D131General Clauses Act

“3. Definitions—In this Act, and in all Central Acts and Regulations made afterthe 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,Emean 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 theGovernment of India Act, 1935, to the Government of Province, the ProvincialGovernment acting within the scope of the authority given to it under that subsection;and

(ii) in relation to the administration of Chief Commissioner’s Province, theChief Commissioner acting within the scope of the authority given to him under sub-Fsection (3) of section 94 of the said Act; and

(b) in relation to anything done or to be done after the commencement of theConstitution, mean the President; and shall include—

(i) in relation to functions entrusted under clause (1) of article 258 of theConstitution, to the Government of State, the State Government acting within the scopeof the authority given to it under that clause; 1 ***

(ii) in relation to the administration of Part State 2 before the commencementGof the Constitution (Seventh Amendment) Act, 1956], the Chief Commissioner or theLieutenant Governor or the Government of neighbouring State or other authorityacting within the scope of the authority given to him or it under article 239 or article 243of the Constitution, as the case may be; and

(iii) in relation to the administration of Union territory, the administratorthereof acting within the scope of the authority given to him under article 239 of theConstitution”H132 (2020) 14 SCC 664

“24. Thus, it is clear that the definition of Central Government,which means the President is not controlled by the secondexpression “and shall include the Administrator”. The ordinaryor popular meaning of the words “the President” occurringin Section 3(8)(b) has to be given and the second part of thedefinition shall not in any way control or affect the first partof the definition as observed above. In the definition ofCentral Government, an Administrator shall be read when hehas been authorised or delegated particular function underthe circumstances as indicated above. No statutory rules orany delegation has been referred to or brought on recordunder which the Administrator is entitled or authorised tomake nomination in the Legislative Assembly of the UnionTerritory of Puducherry. Thus, in the present case, thedefinition of Central Government, as occurring in Section3(3) of the 1963 Act has to be read as to mean the Presidentand not the Administrator. The issue is answered accordingly.”

Article 342A (1) does not use the expression “CentralGovernment”. Nevertheless, Article 342A (2) uses the expression“Central List” which has led to an elaborate interpretive discourse. Ifthe 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 preparedby the President, for the purpose of the Constitution. The otherinterpretation, with respect, would be unduly narrow and restrictive; itwould have the effect of adding words such as to the effect that theCentral List, would “apply in relation to the Central Government”.Such an addition of terms, with respect, cannot be resorted to, wheninterpreting Constitutional amendment, The amended provisions clearlystate that the determination is for the purpose of the Constitution andthat SEBCs (per Article 366 (26C) are deemed to be as determined inArticle 342A; Article 342A states that the President shall by notificationpublish SEBCs in relation to states and union territories, for the purposeof the Constitution.

154. There are other compelling reasons too, why the restrictiveinterpretation of Article 342A, limiting the exercise of identification forthe purpose of central employment and central benefits(and not madeapplicable to states) is to be avoided as opposed to the interpretation

Abased on the plain language of the new provisions, which has to beadopted.

155. Parliament, through the 102[nd]Amendment clearly intendedthat the existing legal regime for identification of communities as SCsand STs and for their inclusion in the list of SCs and STs under ArticlesB341 and 342, which had hitherto existed, ought to be replicated in relationto identification of SEBCs.To achieve that, Parliament inserted Article338B – which is mirror image of Articles 338 and 338A. The tasksassigned to the new Commission for Backward Classes which isenvisioned as multi-member Commission, are radically different fromthe duties which were assigned by Parliament in the NCBC Act. UnderCSection 9 of the erstwhile NCBC Act, which was repealed just beforethe commencement of the 102[nd] amendment, the NCBC was to examinerequests for inclusion of any class of citizens as backward classes in thelist and the advice of the Commission was ordinarily binding upon theCentral Government. Section 11 provided for periodical revision ofDlists. As noticed by Ashok Bhushan, J., Article 338B envisions largerrole for the new Commission. This Commission not only advises theCentral Government but also the States. It is impossible to read Article338B in isolation from the pre-existing parimateria provisions; it mustbe interpreted in the light of the other two provisions which had existedall this while – Articles 338 and 338A. Those provisions clearlyEcontemplate the same consultative role with the Commission on policymatters, of the Central Government as well as the State Governments.This is evident from sub-article (9) of these Articles. Thus, theCommission – under Article 338B is not only assigned constitutionalrole but is also expected to act as an expert and engage with experts in

Fthe determination of the communities. Article 338B(5) uses the term“SEBC” no less than on six occasions. The expression also occurs inArticle 338B(9). Thus, for the purposes of the Constitution, theCommission newly established under Article 338B, i.e., the NationalCommission for Backward Classes shall be the only body to whom boththe Central Government and the State Governments have to turn, in allGmatters of policy. Necessarily, the question of matters of policy wouldalso include identification of castes or communities as backward classes.

156. If the intention of the Parliament in amending the Constitutionwere to merely confer or clothe the National Commission withconstitutional status, the matter would have ended by inserting ArticleH

338B. To that end, the argument of the respondents is understandable.Short of the task of identification, (which could have continued with thestates), if the amendment had not inserted Article 342A, the States wouldhave been duty bound to consult the Commission under Article 338B.The interpretation by Ashok Bhushan, J. to that extent might have beenacceptable. However, that the Constitution was amended further tointroduce Article 342A, containing the phraseology that it does, addingan entirely new dimension which the court has to interpret, afterconsidering the light of the previous authorities, as also whenever newprovisions were added to the Constitution and more importantly, whensuch amendments were also accompanied by changes in the definitionclause.157. The previous part of this judgment has discussed variousauthorities which had considered one or the other clauses of Article 366,i.e the NDMC case, Tata Consultancy (supra), Willamson FinancialServices (supra). The NDMC case was decided by nine-judge bench;in all the other decisions, this court gave the fullest latitude to theexpressions in the definition clause while interpreting them in the peculiarfacts of the case. Similarly, when constitutional amendments introducednew definitions such as in Article 366(29A), judicial interpretation leanedin favour of giving literal meaning to the terms used which had led tochange in the existing tax regime. Such changes too limited the State’slegislative powers. Thus, for instance, in the Constitution bench judgmentsin Builders Association (supra) and in 20[th] Century Leasing (supra),this Court had decisively ruled that the taxing power of the States wasexplained by the amendment but at the same time was limited in morethan one manner by the express terms which had introduced newentry in the Central or Union legislative field. Furthermore, the principleson which taxation could be resorted to by the States too had to be definedby the Union Government. In other cases, whenever constitutionalamendments brought about changes in the existing status quo like inKihoto Hollohan (supra) or limited the legislative power constrainingthe state from expanding its council of ministers beyond certainpercentage as with the introduction of Article 164(1A)in BimolangshuRoy(supra). This Court gave full literal effect to the terms of theamendment 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

Amatter of interpretation. In Nagaraj, they were also the subject matterof challenge on the ground that the amendments violated the basicstructure of the Constitution. There too, the Court interpreted the termsof the amendment by adopting plain and literal meaning and not bycutting down or reading down any term or phrase. In Ashok KumarThakur (supra), the introduction of the new and radical Article 15(5)Benabled States to make special provisions for socially and educationallybackward classes of citizens, in unaided private educational institutions.

159. Given the weight of such precedents- which point to thiscourt(i) giving full effect to newly added provisions, (ii) by adopting theliteral meaning in the definition, set out in the Constitution (iii) as well asCin the amendments to the definition clause, and (iv) all of which noticedthe changes brought about through the amendments, and gave themplain effect, it is difficult to accept that the power of amendment of theConstitution, in accordance with the special procedure set out in Article368 – was used to about bring cosmetic changes conferring constitutionalDstatus to NCBC. The conferment of constitutional status – as was noticedpreviously, is achieved by only inserting Article 338B. However, the factthat it mirrors the previous two provisions of Articles 338 and 338A andborrows from that pattern clearly suggests that the new Commission isto have an identical role much like the Commissions that advice theCentral Government and Parliament with respect to all matters pertainingEto SCs and STs. Therefore, the new Commission is expected to play adecisive role in the preparation of lists, which the Constitution set apartas one list, deemed to be the list of SEBCs for the purposes of Constitutionin relation to every State and Union Territory. The interplay betweenArticles 366(26C) and 338B is therefore crucial. The term “deemed toFbe for the purposes of this Constitution” and reference to Article342A would necessarily mean that even the provision under Article 338B,is to be interpreted in the same light. In other words, were the intentionmerely to confer constitutional status, that would have been achieved byan 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.G

160. The change brought about by the 102[nd]Amendment byintroducing Sub-Article (26C) to Article 366 and inserting new provision- Article 342A, to my mind, brings about total alignment with the existingconstitutional scheme for identification of backward classes, with themanner and the way in which identification of SCs and STs has beenH

undertaken hitherto, by the Central Government culminating in Presidentialnotifications. That task is aided by two Commissions - respectively forSCs and STs, much as in the case of the new National Commission forBackward Classes which will undertake the task of aiding and advisingthe Central Government for issuing the notification for the purposes ofthe Constitution under Article 342A. The pattern of finality and singlelist, in relation to every State and UT – which exists in relation to SCsand STs (Articles 341 and 342) now has been replicated with theintroduction of Article 342A.

161. There have to be strong, compelling reasons for this Court todepart from the interpretation which has been hitherto placed on thedefinition clause. As has been demonstrated in more than one case, theinterpretation of the definition clause in its own terms in respect of theoriginal constitutional provisions as well as the new terms brought in byway of amendment (which also brought in substantive amendments)have consistently shown particular trend. If one keeps in mind theinterpretation of Articles 341 and 342 from the earliest decision inBhayalal (supra) and Bir Singh (supra), the only conclusion is that thetask of examining requests or demands for inclusion or exclusion is inthe 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 theCommissions set up under Articles 338 and 338A. Upon the publicationof the list containing the notification under Articles 341(1) and 342(1),for the purposes of the Constitution in relation to the concerned State orthe concerned UT, the list of SCs and STs is conclusive. Undoubtedly,these were the original provisions. Yet, one must be mindful of crucialfact, which is that the task for making special provisions under Article15 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 noresentment or friction. Once the concerned community or caste isreflected in the list of one or the other State or Union Territory, theextent of the benefits to be provided to members of such community is amatter that lies entirely in the States’ domain. The amendment ormodification of any State list, can be undertaken only by Parliament, noteven by the President.

162. Much like in the case of the alignment of Article 338B withthe other two previously existing provisions of the Constitution, Article

A342A aligns the function (of identification of SEBCs and publishing thelist, by the President) with Articles 341 and 342. These three sets ofconsecutive provisions, share their umbilical cord with the definition clause[Article 366(24) in relation to SCs; Article 366(25) in relation to STs andthe new 366(26C) in relation to SEBCs]. This two-way linkage betweenthe definition clause with the substantive provisions is not withoutBsignificance. As has been held in Marri Chandra Shekar (supra);Action Committee (supra) and Bir Singh (supra), the expression “forthe purposes of the Constitution” has to be given fullest weight.Therefore, whenever lists are prepared under these three provisions inrelation to States or UTs, the classes and castes included in such list andCno otherare deemed to be castes or classes falling within the one or theother category (SCs, STs, SEBCs) in relation to the particular State orUT for the purposes of the Constitution.

163. If one were to, for the sake of argument, consider thedeliberations before the Select Committee reflected in its report, it isDevident that amendments at three places were moved to place the matterbeyond controversy and clarify that States’ jurisdiction and power toidentify SEBCs would remain undisturbed. To achieve this, proposedArticles 342A(3) & (4) were introduced. These proposed amendmentswere not accepted; and were dropped. No doubt, the rationale fordropping (the amendments) was the impression given in the form of anEassurance that the express terms of the amendment did not divest theStates of their power. Further, paras 56 and 57 of the Select Committeereport clearly state that the Governor acts on the aid and advice of theCouncil of Ministers of the State and that Articles 341 and 342 providefor consultation with the Governor in relation to SCs and STs of theFconcerned States. The assurance held out was that, “at no time has theState been excluded in the consultation process. It is by way of theState Government invariably which recommends to the Presidentthe category of inclusion/exclusion in the SCs and STs. Similarprovision is provided for in the case of conferring of constitutionalstatus to backward classes for inclusion in Central List of SEBCs inGconsultation with Governor” thereby implying consultation with theState Government. It was also stated in para 57 (of the report)that “theexpression ‘for the purpose of this Constitution’ is identical to thatphrase in Article 341 and Article 342.”

164. The deliberations of the Select Committee report only showHthat the existing pattern of identification and inclusion of SCs and STs

which entailed the active involvement of the States was sought to bereplicated for the purpose of preparing the list, of OBCs, by the President.It was emphasised during the course of arguments, an aspect that findsdue reflection in the draft judgment of Ashok Bhushan, J. that the term,“the Central List” is of crucial significance because it in fact controlsthe entire provision, i.e., Article 342A, that it is in line with the SelectCommittee Report as well as Parliamentary debates and that this Courthas to give it purposive interpretation. In my respectful opinion, anisolated consideration of the expression, “the Central List” containingclasses and communities which are deemed to be backward for thepurpose of the Constitution, would undermine the entire constitutionalscheme. 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 anotherway of looking at the matter is that Article 342A(1) is the only provisionwhich enables the publication of one list of SEBCs. This provision clearlytalks of publication of list through Presidential notification for thepurpose of the Constitutionafter the process of identification. It is thislist which contains members of classes or communities which can becalled as SEBCs by virtue of Article 366(26C). In other words, the subjectof Article 342A(1) determines the subject of Article 366(26C)which inturn controls and guides the definition of the term “SEBCs” for the entireConstitution. This is achieved by using emphatic terms such as “means”and “deemed to be”. 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 termsindicative of restriction as to the extent to which such inclusion is tooperate. Thus, like in the case of Articles 341 and 342, those classes andcastes included in the list of SEBCs in relation to every State and everyUT are:

(i) For the purposes of the Constitution;

(ii) deemed to be SEBCs in relation to concerned State or UnionTerritory.

165. The width and amplitude of the expression “shall be deemedto be” of the expression cannot be diluted or cut down in any mannerwhatsoever. If one understands that this list in fact identifies SEBCs forthe purposes of the Constitution, all that follows in Article 342A(2) isthat such list can only be amended by Parliament. The Court, therefore,

Ahas to see the object and content of the entire Article to determine whatit means. So viewed, firstly it is linked with Article 366(26C) and the useof the terms “means” and “deemed” in the definition is decisive, i.e.,that there can be no class or caste deemed for the purposes ofConstitution other than those listed under Article 342A. Secondly, Article342A(1) is the only provision conferring power by whichBidentification is undertaken by the President in the first instance.This identification and publication of the list containing the cases andcommunities is in relation to each State and each Union Territory. Third,after publication of this notification, if changes are brought about to it byinclusion or exclusion from that list, (called the “Central List” of SEBCsCfor the first time), Parliament alone can amend it. It is important that theexpression “the Central List” is clarified by the phrase “socially andeducationally backward classes specified in notification underClause (1)” which is reinforced subsequently by the use of the term“aforesaid notification”. Thus, the subject matter of initial identificationand publication of the list for the purposes of the Constitution is by theDpublished President alone (under the aid and advice of the Union Councilof Ministers) and any subsequent variation by way of inclusion orexclusion can be achieved only through an amendment by law, of thatlist.

166. If one interprets the entire scheme involving ArticlesE366(26C), 342A(1) and 342A(2), the irresistible conclusion that followsis that the power of publishing the list of SEBCs, in relation to everyState and Union Territoryfor the purposes of the Constitution is with thePresident only. Such notification is later called as the Central List byArticle 342A(2); it can only be amended by the Parliament. The contraryFinterpretation virtually reads into the provisions of the Constitutionamendments which were proposed and expressly rejected in theproceedings of the Select Committee; it also has the effect of reading inwhat certain dissenting members had proposed. Furthermore, by theinterpretive process of taking into account the deliberations before theSelect Committee, and speeches on the floor of the Parliament this CourtGwould be reading into the Constitution provisions which no longer existi.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 theprecedents of this Court with respect to (i) interpretation of the definitionH

clause under Article 366; (ii) interpretation of new definitions inserted inArticle 366 and (iii) interpretation of amendments made to the Constitutionwhich inserted new provisions, where the Court always leant in favourof giving fullest effect to the substantive provisions, this court has toadopt the same approach, to usher change, by plain, literal construction.This court never whittled down the terminology through extrinsic aidssuch as speeches made on the floor of the Parliament or SelectCommittee reports. In this instance, doing so would be giving effect towhat Parliamentarians said or Ministers said, ignoring thereby, the plainterms of the Constitution. As stated earlier, the Court cannot assumethat Parliament merely indicated cosmetic change by conferment ofconstitutional changes which could have been best achieved by introducingArticle 338B.168. Besides the judgment in Kihoto Hollohan (supra), this court,in Raghunathrao Ganpatrao v. Union of India[133], dwelt on the dutyof this court, to discern the meaning, and give effect to amendments tothe Constitution. The court quoted from Walter F. Murphy, whoin Constitutions, Constitutionalism and Democracy explained whatan ‘amendment’ meant:

“Thus an amendment corrects errors of commission oromission, modifies the system without fundamentally changingits nature — that is, an amendment operates within thetheoretical parameters of the existing Constitution.”

This court then observed as follows:

“86. In our Constitution, there are specific provisions foramending the Constitution. The amendments had to be madeonly under and by the authority of the Constitution strictlyfollowing the modes prescribed, of course subject to thelimitations either inherent or implied. The said power cannotbe limited by any vague doctrine of repugnancy. There aremany outstanding interpretative decisions delineating thelimitations so that the constitutional fabric may not be impairedor damaged. The amendment which is change or alterationis only for the purpose of making the Constitution moreperfect, effective and meaningful. But at the same time, oneshould keep guard over the process of amending any

Aprovision of the Constitution so that it does not result inabrogation or destruction of its basic structure or loss of itsoriginal identity and character and render the Constitutionunworkable. The court is not concerned with the wisdombehind or propriety of the constitutional amendment becausethese are the matters for those to consider who are vestedBwith the authority to make the Constitutional amendment. Allthat the court is concerned with are (1) whether the procedureprescribed by Article 368 is strictly complied with? and (2)whether the amendment has destroyed or damaged the basicstructure or the essential features of the Constitution.”C169. In his article Statutory Interpretation and ConstitutionalLegislation (sourced from the Cambridge Repository’s InterpretingConstitutional Legislation David Feldman[134] states that at times, thereis no clear indication why statute or amendment is introduced:

“Statutes usually carry on their faces no indication of theDmischief at which they are aimed; they do not tell story.Looking at the statute as whole will not always help: manystatutes are collections of knee-jerk reactions to number ofdifferent stimuli, and the degree of coherence is furtherreduced where changes in government policy are given effectEby amending earlier legislation drafted to give effect todifferent policies.”

The article then goes on to emphasize that the context, and thepre-existing regime has to be considered, while interpreting theamendment or provision:F“Constitutional provisions establishing the state and its maininstitutions will often not be response to particularmischief. state’s institutional design is more likely to reflecta political theory and idea of good government, as in theUSA., or to be result of gradual accretion, as in the UK,Gthan to be reaction to an identifiable problem. On the otherhand, problems arising in the pre-constitutional period may

134 Professor of law, Cambridge University and QC. Also former international judge inthe Constitutional Court of Bosnia and Herzegovna-https://aspace.repository.cam.ac.uk/bitstream/handle/1810/246176/OA1838_Statutoryi n t r p r t t i o n - n - o n s t i t u t i o n l - l i s l t i o n - I N L - 1 9 - 0 3 -H14.pdf?sequence=1&isAllowed=y

have directly influenced the choice of political theory, and sohave indirectly affected the distribution of responsibilitiesbetween institutions, the powers allocated to each institution,their relationships with each other, their powers, and formsof accountability.”

170. As to what was the rationale for introducing Article 366(26C) and the other substantive amendments by the 102[nd] Amendment,the statement of objects and reasons is not precise. Even the SelectCommittee Report only voices that constitutional status is to be conferredupon the new Commission which would undertake its task and that thepattern existing with respect to SCs and STs would be followed. In thesecircumstances, given that the limited interpretation would virtually continuethe status quo, this Court has to take into account the state of affairswhich existed at the time of introduction of the amendment.

171. The rationale for the amendment, highlighting the need forprovisions such as Article 338B, 342A read with Article 366(26C) is thatParliament had the experience of about 71 years’ working of theConstitution and the system with respect to matters regardingidentification of the most backward classes of communities, i.e., SCsand STs. By the 102[nd] Amendment, one commission for SEBCs was setup to meet the aspirations and expectations of the population of thecountry who might have become SEBCs for various reasons, to voicetheir concerns directly for consideration by the National Commissionunder Article 338B, which could then become the subject matter ofinclusion under Article 342A.

172. An offshoot of the 102[nd ]Amendment possibly would be thatdominant groups or communities, once included, as SEBCs by stateswould, due to their relative “forward” status, likely take disproportionateshare of state benefits of reservation in employment and admissionbenefits to state institutions. Their inclusion can well result in shrinkageof the real share of reservation benefits for the most backward. Thisconsequence can be avoided, if commission or body, such as the oneunder Article 338B evolves and applies rational and relevant criteria.

173. The existence of permanent body, which would objectively,without being pressurised by the dust and din of electoral politics, considerthe claims for inclusion, not based on ad-hoc criteria, but upon uniformlyevolved criteria, with the aid of experts, in scientific manner, be in

Aconsonance with the constitutional objectives of providing benefits toSEBCs, having regard to relative regional and intra state levels of progressand development. Given all these factors, this Court is of the opinion thatthe 102[nd]Amendment, by inserting 366(26C), 342A, 338B and 342A alignedthe mechanism for identification of SEBCs with the existing mechanismfor identification of SCs/STs.B

174. At this stage, word about Article 338B is necessary. Earlier,it was noticed that this provision mirrors Articles 338 and 338A and setsout various provisions for setting up National Commission which is likeits counterparts, in relation to SCs and STs (Articles 338 and 338A).The consultative provisions under Articles 338B(7) and 338B(9) in theCopinion of this Court, only imply that in matters of identification, theStates can make their recommendations. However, by reason of Article342A, it is the President, i.e. the Union Government only, whose decisionis final and determinative. The determination made for inclusion orexclusion can be amended through law made by Parliament alone.DGiven that Article 338(B)(9) enjoins the State/UT to consult theCommission on all major policy matters affecting SEBCs, this consultationcannot imply that the States’ view would be of such weight, as to bedeterminative or final and submit. The States can by virtue of Article338(7) consider the report of the Commission and are obliged to tablethe recommendations relating to them before their legislature. The StateEcan 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 thelist of SCBCs is that of the Union Government, i.e. the President.

175. This Court is also of the opinion that the change broughtFabout by the 102[nd] Amendment, especially Article 342A is only withrespect to the process of identification of SEBCs and their list.Necessarily, the power to frame policies and legislation with regard toall other matters, i.e. the welfare schemes for SEBCs, setting up ofinstitutions, grants, scholarships, extent of reservations and specialGprovisions under Article 15(4), 15(5) and 16(4) are entirely with by theState Government in relation to its institutions and its public services(including services under agencies and corporations and companiescontrolled by the State Government). In other words, the extent ofreservations, the kind of benefits, the quantum of scholarships, the numberof schools which are to be specially provided under Article 15(4) or anyH

other beneficial or welfare scheme which is conceivable under Article15(4) can all be achieved by the State through its legislative and executivepowers. This power would include making suggestions and collectingdata – if necessary, through statutory commissions, for makingrecommendations towards inclusion or exclusion of castes andcommunities to the President on the aid and advice of the Union Councilof Ministers under Article 342A. This will accord with the spirit of theConstitution under Article 338B and the principle of cooperativefederalism[135] which guides the interpretation of this Constitution.176. The President has not thus far prepared and published listunder Article 342A (1). In view of the categorical mandate of Article342A – which has to be necessarily read along with Article 366(26C),on and from the date of coming into force of the 102[nd] Amendment Act,only the President, i.e. the Central Government has the power of ultimatelyidentifying the classes and castes as SEBCs. This court is consciousthat though the amendment came into force more than two years ago,as yet no list has been notified under Article 342A. It is also noteworthythat the NCBC Act has been repealed. In these circumstances, the Courtholds that the President should after due consultation with the Commissionset up under Article 338B expeditiously, publish comprehensive listunder 342A(1). This exercise should preferably be completed with utmostexpedition given the public importance of the matter. Till such time, theSEBC lists prepared by the states would continue to hold the field. Thesedirections are given under Article 142, having regard to the drasticconsequences which would flow if it is held that all State lists wouldcease to operate. The consequences of Article 342A would then be sosevere as to leave vacuum with respect to SEBCs’ entitlement toclaim benefits under Articles 15 and 16 of the Constitution.

Re: Point No. 6 Whether, Article 342A of the Constitutionabrogates States power to legislate or classify in respect of “anybackward 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 102[nd] Amendment, especiallyArticle 366(26C) and Article 342A violate the essential features or thebasic structure of the Constitution. It was argued that these provisions

135 Jindal Stainless Ltd. v. State of Haryana, 2016 SCC OnLine SC 1260; State ofRajasthan v. Union of India 1978 1 SCR 1

Aimpact the federal structure by denuding the State of its power to fullylegislate in favour of SEBCs under Entry 25 and Entry 41 of List II, andprovide for reservations in favour of SEBCs. It was argued that thepower to identify and make suitable provisions in favour of SEBCs hasalways been that of the States. This constitutional position was recognizedin Indra Sawhney (supra), when the Court required the StateBGovernment to set up permanent Commissions. Through the impugnedprovisions, the President has now been conferred exclusive power toundertake the task of identification of SEBCs for the purposes of theConstitution. It was submitted that this strikes at the root of the federalstructure because it is the people who elect the members of the StateClegislatures, 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 setapart the power to identify SCs and STs and conferred it upon thePresident – after which, amendment could be carried out by theDParliament. However, such power was advisably retained so far asthe States were concerned, with their executives and legislatures. Thedeprivation of the States’ power strikes at the root of its jurisdiction toensure that its residents get suitable welfare measures in the form ofschemes applicable to SEBCs as well as reservations.

E179. Learned counsel relied upon certain passages of the judgmentof this Court in Kesavananda Bharti v. State of Kerala[136] to supportthe argument that without submitting the amendment for rectificationunder the proviso to Article 368(2), to the extent it denuded the Statelegislatures of their powers to make laws in respect of various fieldsunder the State List too, the amendment would be void.F

180. The Learned Attorney General who represented the Unionargued that there is no question of the 102[nd] Amendment Act or any ofits provisions violating any essential feature of the Constitution. It wassubmitted that unless the amendment in question directly affects (i.e.takes away the legislative power altogether in the list rather than partGof its content by amending any of the provisions in List II or List III ofthe Seventh Schedule to the Constitution), there is no need for seekingrectification of majority of the statutes. The Attorney General reliedupon judgment of this Court in Sajjan Singh v. State of Rajasthan[137].

136 1973 Supp. SCR 1H137 1965 SCR (1) 933

181. Two issues arise with respect to the validity of provisionsinserted by the 102[nd] Amendment Act. The first is facial challengeinasmuch as the petitioner urges that without following the procedureindicated in the proviso to Article 368(2), i.e. seeking approval orratification of atleast one half of the legislative assemblies of all theStates, the amendment is void. In this regard what is noticeable is thatdirect amendments to any of the legislative entries in the three lists ofthe Seventh Schedule to the Constitution requires ratification. Thus, theinsertion of substantive provisions that might impact future legislation bythe State in an indirect or oblique manner would not necessarily fallafoul of the Constitution for not complying with the procedure spelt outin the proviso to Article 368(2). In Sajjan Singh (supra), this Courtheld as follows:

“The question which calls for our decision is: what would bethe requirement about making an amendment in aconstitutional provision contained in Part III, if as result ofthe said amendment, the powers conferred on the High Courtsunder 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 theamendment made by the impugned Act, it would be clear thatParliament is seeking to amend fundamental rights solely withthe object of removing any possible obstacle in the fulfilmentof the socio-economic policy in which the party in powerbelieves. If that be so, the effect of the amendment on thearea over which the High Courts’ powers prescribed by Article226 operate, is incidental and in the present case can bedescribed as of an insignificant order. The impugned Act doesnot purport to change the provisions of Article 226 and itcannot be said even to have that effect directly or in anyappreciable measure. That is why we think that the argumentthat the impugned Act falls under the proviso, cannot besustained.

182. The majority judgment, therefore decisively held that aninterpretation which hinges on indirect impact of provision, theamendment of which needs ratification of the states, does not violate theConstitution and that unless the amendment actually deletes or alters

Aany of the Entries in the three lists of the Seventh Schedule, or directlyamends an Article for which ratification is necessary, recourse to theproviso to Article 368 (2) was not necessary.

183. More recently, this issue was gone into in Kihoto Hollohan,where challenge on the ground that all provisions of an amendmentBwhich introduced the Tenth Schedule were void for not following theprocedure under the proviso to Article 368, were questioned. The Courtproceeded to analyse every provision of the Tenth Schedule and heldthat para 7, which excluded the jurisdiction of all Courts, had the effectof divesting the jurisdiction of Courts under Articles 226 and 32 of theConstitution. In other words, the direct result of the amendment was toCbar the jurisdiction of High Courts and thus, it directly impacted Chapter5 of Part VI; ratification was required by majority of the States.Since that procedure was not followed, para 7 was held to be violativeof the basic structure of the Constitution. The Court applied the doctrineof severability and held that the other parts of the amendment, containedDin the Tenth Schedule did not need any such ratification and that para 7alone would be severed on the ground of its being contrary to expressconstitutional provisions. This court ruled as follows:

“59. In Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC845] similar contention was raised against the validity ofEthe Constitution (Seventeenth Amendment) Act, 1964 by whichArticle 31-A was again amended and 44 statutes were addedto the Ninth Schedule to the Constitution. The question againwas whether the amendment required ratification under theproviso to Article 368. This Court noticed the question thus:(SCR p. 940)

xxxxxx xxxxxx xxxxxx

76. The test of severability requires the Court to ascertainwhether the legislature would at all have enacted the law ifthe severed part was not the part of the law and whether afterseverance what survives can stand independently and isworkable. If the provisions of the Tenth Schedule areconsidered in the background of the legislative history, namely,the report of the ‘Committee on Defections’ as well as theearlier Bills which were moved to curb the evil of defection itwould be evident that the main purpose underlying theconstitutional amendment and introduction of the Tenth

Schedule is to curb the evil of defection which was causingimmense mischief in our body politic. The ouster of jurisdictionof courts under Paragraph 7 was incidental to and to lendstrength to the main purpose which was to curb the evil ofdefection. It cannot be said that the constituent body wouldnot have enacted the other provisions in the Tenth Scheduleif it had known that Paragraph 7 was not valid. Nor can it besaid that the rest of the provisions of the Tenth Schedule cannotstand on their own even if Paragraph 7 is found to beunconstitutional. The provisions of 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 provision on accountof the inclusion of which the Bill containing the amendmentrequires ratification from the rest of the provisions of suchBill which do not attract and require such ratification. Havingregard to the mandatory language of Article 368(2) that‘thereupon the Constitution shall stand amended’ theoperation of the proviso should not be extended toconstitutional amendments in Bill which can stand bythemselves without such ratification.That accordingly, the Constitution (Fifty-second Amendment)Act, 1985, insofar as it seeks to introduce the Tenth Schedulein the Constitution of India, to the extent of its provisionswhich are amenable to the legal-sovereign of the amendingprocess of the Union Parliament cannot be overborne by theproviso which cannot operate in that area. There is nojustification for the view that even the rest of the provisionsof the Constitution (Fifty-second Amendment) Act, 1985,excluding Paragraph 7 of the Tenth Schedule becomeconstitutionally infirm by reason alone of the fact that one ofits severable provisions which attracted and requiredratification under the proviso to Article 368(2) was not soratified.

That Paragraph 7 of the Tenth Schedule contains provisionwhich is independent of, and stands apart from, the mainprovisions of the Tenth Schedule which are intended to provide

Aa remedy for the evil of unprincipled and unethical politicaldefections and, therefore, is severable part. The remainingprovisions of the Tenth Schedule can and do standindependently of Paragraph 7 and are complete in themselvesworkable and are not truncated by the excision ofParagraph 7.B

184. As far as the question of whether the amendment has theeffect of violating the basic or essential features so far as it impacts thefederal structure of the Constitution is concerned, what is noticeable isthat past decisions have emphasized that mere change brought aboutthrough amendments howsoever serious the impact, cannot per se beCregarded as violative of the basic structure. In Raghunathrao Ganpatrao(supra)[138] the deletion of Articles 291 and 362 of the Constitution, byamendment, was questioned on the ground that they affected the basicstructure, or essential features of the Constitution. This court rejectedthe argument and held that:D

“107. On deep consideration of the entire scheme andcontent of the Constitution, we do not see any force in theabove submissions. In the present case, there is no questionof change of identity on account of the Twenty-sixthAmendment. The removal of Articles 291 and 362 has not madeEany change in the personality of the Constitution either in itsscheme or in its basic features, or in its basic form or in itscharacter. The question of identity will arise only when thereis change in the form, character and content of theConstitution. In fact, in the present case, the identity of theConstitution even on the tests proposed by the counsel of theFwrit petitioners and interveners, remains the same andunchanged.”

185. In N. Nagaraj (supra), this aspect was analysed in thefollowing terms:

G“For constitutional principle to qualify as an essentialfeature, it must be established that the said principle is partof the constitutional law binding on the legislature. Onlythereafter, the second step is to be taken, namely, whether theprinciple is so fundamental as to bind even the amending

H138 Ref. f.n. 104

power of the Parliament, i.e. to form part of the basicstructure. The basic structure concept accordingly limits theamending power of the Parliament……………………….

xxxxxx xxxxxx xxxxxx

……………..The values impose positive duty on the State toensure their attainment as far as practicable. The rights,liberties and freedoms of the individual are not only to beprotected against the State, they should be facilitated by it.They are to be informed. Overarching and informing of theserights and values is the principle of human dignity under theGerman basic law. Similarly, secularism is the principle whichis the overarching principle of several rights and values underthe Indian Constitution. Therefore, axioms like secularism,democracy, reasonableness, social justice etc. are overarchingprinciples which provide linking factor for principle offundamental rights like Articles 14, 19 and

These principles are beyond the amending power of theParliament.

xxxxxx xxxxxx xxxxxx

Under the Indian Constitution, the word ‘federalism’ does notexist in the preamble. However, its principle (not in the strictsense as in U.S.A.) is delineated over various provisions ofthe Constitution. In particular, one finds this concept inseparation of powers under Articles 245 and 246 read withthe three lists in the seventh schedule to the Constitution.

To conclude, the theory of basic structure is based on theconcept of constitutional identity. The basic structurejurisprudence is pre-occupation with constitutional identity.

xxxxxx xxxxxx xxxxxx

The word ‘amendment’ postulates that the old constitutionsurvives without loss of its identity despite the change and itcontinues even though it has been subjected to alteration.This is the constant theme of the opinions in the majoritydecision in Kesavananda Bharati. To destroy its identity is toabrogate the basic structure of the Constitution. This is theprinciple of constitutional sovereignty.”

A186. Along similar lines, Krishna Iyer, J. had remarked as to whatkind of an amendment would be abhorrent and violate the basic structurein Maharao Sahib Shri Bhim Singhji v. Union of India[139] in thefollowing terms:

“Therefore, what is betrayal of the basic feature is not aBmere violation of Article 14 but shocking, unconscionableor unscrupulous travesty of the quintessence of equal justice.”

187. By these parameters, the alteration of the content of statelegislative power in an oblique and peripheral manner would not constitutea violation of the concept of federalism. It is only if the amendmentCtakes away the very essence of federalism or effectively divests thefederal content of the constitution, and denudes the states of their effectivepower to legislate or frame executive policies (co-extensive withlegislative power) that the amendment would take away an essentialfeature or violate the basic structure of the Constitution. Applying sucha benchmark, this court is of the opinion that the power of identificationDof SEBCs hitherto exercised by the states and now shifted to the domainof the President (and for its modification, to Parliament) by virtue ofArticle 342A does not in any manner violate the essential features orbasic structure of the Constitution. The 102[nd] Amendment is also notcontrary to or violative of proviso to Article 368 (2) of the Constitution ofEIndia. As result, it is held that the writ petition is without merit; it isdismissed.

Conclusions

188. In view of the above discussion, my conclusions are asfollows:F

(1)Re Point No. 1: Indra Sawhney (supra) does not requireto be referred to larger bench nor does it requirereconsideration in the light of subsequent constitutionalamendments, judgments and changed social dynamics ofthe society, for the reasons set out by Ashok Bhushan, J.Gand my reasons, in addition.

(2)Re Point No 2: The Maharashtra State Reservation (of seatsfor admission in educational institutions in the State and forappointments in the public services and posts under the

State) for Socially and Educationally Backward Classes(SEBC) Act, 2018 as amended in 2019 granting 12% and13% reservation for Maratha community in addition to 50%social reservation is not covered by exceptionalcircumstances as contemplated by Constitution Bench inIndra Sawhney’s case. I agree with the reasoning andconclusions of Ashok Bhushan, J. on this point.

(3) Re Point No. 3: I agree with Ashok Bhushan, J. that theState Government, on the strength of Maharashtra StateBackward Commission Report chaired by M.C. Gaikwadhas notmade out case of existence of extraordinarysituation and exceptional circumstances in the State to fallwithin the exception carved out in Indra Sawhney.

(4)Re Point No 4:Whether the Constitution One Hundred andSecond Amendment deprives the State Legislature of itspower to enact legislation determining the socially andeconomically backward classes and conferring the benefitson the said community under its enabling power?; and

(5)Re. Point No. 5 Whether, States’ power to legislate in relationto “any backward class” under Articles 15(4) and 16(4) isanyway abridged by Article 342(A) read with Article366(26c) of the Constitution of India. On these twointerrelated points of reference, my conclusions are asfollows:

(i)By introduction of Articles 366 (26C) and 342A throughthe 102[nd] Constitution of India, the President alone, to theexclusion of all other authorities, is empowered to identifySEBCs and include them in list to be published underArticle 342A (1), which shall be deemed to include SEBCsin relation to each state and union territory for the purposesof the Constitution.

(ii)The states can, through their existing mechanisms, or evenstatutory commissions, only make suggestions to thePresident or the Commission under Article 338B, forinclusion, exclusion or modification of castes or communities,in the list to be published under Article 342A (1).

BCDE

A(iii)The reference to the Central List in Article 342A (2) is theone notified by the President under Article 342A (1). It is tobe the only list for all purposes of the Constitution, in relationto each state and in relation to every union territory. Theuse of the term “the Central List” is only to refer to the listprepared and published under Article 342A (1), and no other;Bit does not imply that the states have any manner of powerto publish their list of SEBCs. Once published, under Article342A (1), the list can only be amended through law enactedby Parliament, by virtue of Article 342A (2).

(iv)In the task of identification of SEBCs, the President shallCbe guided by the Commission set up under Article 338B; itsadvice shall also be sought by the state in regard to policiesthat might be framed by it. If the commission prepares areport concerning matters of identification, such reporthas to be shared with the state government, which is boundDto deal with it, in accordance with provisions of Article338B. However, the final determination culminates in theexercise undertaken by the President (i.e. the CentralGovernment, under Article 342A (1), by reason of Article367 read with Section 3 (8) (b) General Clauses Act).

E(v)The states’ power to make reservations, in favour ofparticular communities or castes, the quantum ofreservations, the nature of benefits and the kind ofreservations, and all other matters falling within the ambitof Articles 15 and 16 – except with respect to identificationof SEBCs, remains undisturbed.F

(vi)The Commission set up under Article 338B shall concludeits task expeditiously, and make its recommendations afterconsidering which, the President shall expeditiously publishthe notification containing the list of SEBCs in relation tostates and union territories, for the purpose of theGConstitution.

(vii) Till the publication of the notification mentioned in direction(vi), the existing lists operating in all states and unionterritories, and for the purposes of the Central Governmentand central institutions, continue to operate. This directionHis issued under Article 142 of the Constitution of India.

& ANR. [S. RAVINDRA BHAT, J.]

(6)Re Point No. 6: Article 342A of the Constitution by denudingStates power to legislate or classify in respect of “anybackward class of citizens” does not affect or damagethefederal polity and does not violate the basic structure of theConstitution of India.

189. The reference is answered in the above terms. The appealsand writ petitions are therefore, disposed of in terms of the operativeorder of Bhushan, J. in para 444 of his Judgment.

L. NAGESWARA RAO, J.

1. I have carefully gone through the erudite and scholarly opinionsof Justice Ashok Bhushan and Justice S. Ravindra Bhat. So far as thequestion Nos.1, 2 and 3 are concerned, they are in unison. There is adifference of opinion in relation to question Nos. 4, 5 and 6. I am inagreement with the opinion of Justice Ashok Bhushan in respect ofquestion Nos.1, 2 and 3. As these issues have been dealt with exhaustivelyby Justice Ashok Bhushan, I do not have anything further to add.

2. Question Nos.4, 5 and 6 pertain to the interpretation of Article342 of the Constitution of India. On these questions, I am unable topersuade myself to accept the conclusion reached by Justice AshokBhushan. 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 Article342 of the Constitution, it is my duty to give reasons for my views inaccord with the judgment of Justice S. Ravindra Bhat. In proceeding todo so, I am not delving into those aspects which have been dealt with byhim.

4. Article 342 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 State, after consultation with the Governorthereof, by public notification, specify the socially andeducationally backward classes which shall for the purposesof this Constitution be deemed to be socially and educationally

[2021] 15 S.C.R.

Abackward classes in relation to that State or Union territory,as the case may be.

(2) Parliament may by law include in or exclude from theCentral List of socially and educationally backward classesspecified in notification issued under clause (1) any sociallyBand educationally backward class, but save as aforesaid anotification issued under the said clause shall not be variedby any subsequent notification.

5. Article 366 (26 C) which is also relevant is as under: -

C366. Definitions. Unless the context otherwise requires, thefollowing expressions have the meanings hereby respectivelyassigned to them, that is to say—

xxxx

xxxx

D[(26C) ¯socially and educationally backward classes meanssuch backward classes as are so deemed under article 342 Afor the purposes of this Constitution;]

6. Before embarking upon the exercise of construing the aboveArticles, it is necessary to refer to the cardinal principles of interpretationEof 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 expounding[1]. TheConstitution is living and organic document which requires to beconstrued broadly and liberally. I am reminded of the word of cautionby Benjamin Cardozo who said that “a Judge is not knight errant roamingFat will in pursuit of his own ideal of beauty or of goodness. Judge is notto innovate at pleasure”.[2] Rules which are applied to the interpretationof other statutes, apply to the interpretation of the Constitution[3]. It maybe desirable to give broad and generous construction to theconstitutional provisions, but while doing so the rule of “plain meaning”

1 McCulloch v. Maryland, 17 U.S. 316 (1819)

2 Benjamin Cardozo, the Nature of Judicial Process, (New Haven: Yale UniversityPress, 13th Edn., 1946), 141.

3 Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,1938

or “literal” interpretation, which remains “the primary rule”, has also tobe kept in mind. In fact, the rule of “literal construction” is the safe ruleeven while interpreting the Constitution unless the language used iscontradictory, ambiguous, or leads really to absurd results[4]. The duty ofthe judicature is to act upon the true intention of the legislature, the mensor sententialegis. (See: G. Narayanaswami v. G. Pannerselvam[5],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 ofconstruction is that the intention of the legislature must be found in thewords used by the legislature itself[9]. Oliver Wendell Holmes Jr. hasfamously said in letter, “I do not care what their intention was. I onlywant to know what the words mean.”[10 ]If the language of the meaningof the statute is plain,there is no need for construction as legislativeintention is revealed by the apparent meaning[11]. Legislative intent mustbe primarily ascertained from the language used in statute itself.[12]

7. In his bookPurposive Interpretation in Law,[13]Aharon Baraksays that constitutional language like the language of any legal text playsa dual role. On the one hand, it sets the limits of interpretation. Thelanguage of the Constitution is not clay in the hands of the interpreter, tobe molded as he or she sees fit. Constitution is neither metaphor nora non-binding recommendation. On the other hand, the language of theConstitution is source for its purpose. There are other sources, to besure, but constitutional language is an important and highly credible sourceof information. The fact that we may learn the purpose of Constitutionfrom sources external to it does not mean that we can give Constitutiona meaning that is inconsistent with its explicit or implicit language.Interpretation cannot create new constitutional text. Talk of Judges

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

9 Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 (1) SCR 360

10 Cited in Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia LawReview, 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).

Aamending the Constitution through their interpretation of the Constitutionis just metaphor. The claim that constitutional text limits but does notcommand is true only for the limited number of cases in which, afterexhausting all interpretive tools, we can still extract more than one legalmeaning from the constitutional language and must therefore leave thefinal decision to judicial discretion. In these exceptional cases, languageBprovides general direction but does not draw precise map of how toreach the destination. Usually, however, constitutional language sets notonly the limits of interpretation, but also its specific content.[14]8. It is cardinal principle applicable to all kinds of statutes thatyou may not for any reason attach to statutory provision meaningCwhich the words of that provision cannot reasonably bear. If they arecapable of more than one meaning, then you can choose between thesemeanings, but beyond that the Court must not go.[15 ]Lord Parker, CJobserved in R. v. Oakes[16] there is no ground for reading in wordsaccording to what may be ‘the supposed intention of Parliament’.D9. Justice Ashok Bhushan in his opinion at para 346 rightly heldthat the elementary principle of interpreting the Constitution or statuteis to look into the words used in the statute and when the language isclear, the intention of the legislature is to be gathered from the languageused. He further opined that aid to interpretation is resorted to only whenEthere is some ambiguity in words or expression used in the statute. JusticeBhushan in State (NCT of Delhi) v. Union of India[17 ]held that theconstitutional interpretation has to be purposive taking into considerationthe need of the times and constitutional principles. The intent of framersof the Constitution and object and purpose of constitutional amendmentalways throw light on the constitutional provisions but for interpreting aFparticular constitutional provision, the constitutional scheme and theexpress language employed cannot be given go-by. He further heldthat the purpose and intent of the constitutional provisions have to befound from the very constitutional provisions which are up forinterpretation.G

10. In the 183[rd] Report of the Law Commission of India, JusticeM. Jagannadha Rao observed that statute is will of legislature

14 Id, 374-375.15 Jones v D.P.P. [1962] AC. 63516 [1959] 2 Q.B. 350H17 (2018) 8 SCC 501

conveyed in the form of text. It is well settled principle of law that as astatute is an edict of the legislature, the conventional way of interpretingor construing the statute is to see the intent of the legislature. The intentionof legislature assimilates two aspects. One aspect carries the conceptof ‘meaning’ i.e. what the word means and another aspect conveys theconcept of ‘purpose’ and ‘object’ or ‘reason’ or ‘approach’ pervadingthrough the statute. The process of construction, therefore, combinesboth liberal and purposive approaches. However, necessity ofinterpretation would arise only where language of the statutory provisionis ambiguous, not clear or where two views are possible or where theprovision gives different meaning defeating the object of the statute.He supported his view by referring to two judgments of this Court inR.S. Nayak v. A.R. Antulay[18] and Grasim Industries Ltd. v. Collectorof Customs, Bombay[19]. It was held in R.S. Nayak (supra) that theplainest duty of the Court is to give effect to the natural meaning of thewords used in the provision if the words of the statute are clear andunambiguous.

11. The words of statute, when there is doubt about theirmeaning, are to be understood in the sense in which they best harmonisebetween the subject of the enactment and the object which the legislaturehas used. Their meaning is found not so much in strictly grammaticalor etymological propriety of language, nor even in its popular use, as inthe subject or in the occasion on which they are used, and the object tobe attained.[20]

12. It is recognised rule of interpretation of statutes that theexpressions used therein should ordinarily be understood in sense inwhich they best harmonise with the object of the statute, and whicheffectuate the object of the legislature[21]. However, the object-orientedapproach cannot be carried to the extent of doing violence to the plainlanguage used by re-writing the section or structure words in place ofthe actual words used by the legislature[22]. The logical 1corollary that

18 (1984) 2 SCC 18319 (2002) 4 SCC 29720 Workmen of Dimakuchi Tea Estate v Managenment of Dimakuchi Tea Estate, 1958SCR 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

Aflows from the judicial pronouncements and opinion of reputed authorsis that the primary rule of construction is literal construction. If there isno ambiguity in the provision which is being construed there is no needto look beyond. Legislative intent which is crucial for understanding theobject and purpose of provision should be gathered from the language.The purpose can be gathered from external sources but any meaningBinconsistent with the explicit or implicit language cannot be given.

13. In Aron Soloman v. Soloman & Co.[23 ]the House of Lordsobserved that the intention of legislature is ‘slippery phrase’. Whatthe legislature intended can be legitimately ascertained from that whichit has chosen to enact, either in express words or by reasonable andCnecessary implication. construction which furthers the purpose or objectof an enactment is described as purposive construction. purposiveconstruction of an enactment is one which gives effect to the legislativepurpose by (a) following the literal meaning of the enactment where thatmeaning is in accordance with the legislative purpose or (b) applying aDstrained meaning where the literal meaning is not in accordance with thelegislative purpose.[24 ]If that is the case, there is no gainsaying thatpurposive interpretation based on the literal meaning of the enactmentmust be preferred.

14. In case of ambiguity this Court has adopted purposiveEinterpretation of statutory provisions by applying rule of purposiveconstruction. In the instant case, the deliberations before the SelectCommittee and its report and Parliamentary Debates were relied uponby the Respondents in their support to asseverate that the object ofArticle 342 is to the effect that the power of the State legislature toidentify socially and educationally backward classes is not taken away.FErgo, Article 342 requires to be interpreted accordingly.

15. The exclusionary rule by which the historical facts of legislationwere not taken into account for the purpose of interpreting legislationwas given decent burial by the House of Lords in Pepper (Inspectorof Taxes) v Hart[25]. In Kalpana Mehta and Ors. v. Union of IndiaGand Ors.[26],a five Judge Bench of this Court held that the Parliamentary

23 1897 AC 22

24 Bennion on Statutory Interpretation, Fifth Edition Pg. 944

25 1993 AC 593

26 (2018) 7 SCC 1

Standing Committee report can be taken as anaid of for the purpose ofinterpretation of statutory provision. Wherever the reliance on suchreports is necessary, they can be used for assisting the court in gatheringhistorical facts. In accord with the said judgment, the deliberations ofthe report of the Select Committee can be utilisedas an extrinsic aid forinterpretation of Article 342 A, in case there is any ambiguity in theprovision.

16. In R v. DPP ex-parte Duckenfield[27], Laws, CJ, cautionedabout the great dangers in treating government pronouncements, however,helpful, as an aid to statutory construction. In Black-ClawsonInternational Ltd.[28 ]taking the opinion of minister, or an official or acommittee, as to the intended meaning in particular application of clauseor phrase was held to be stunting of the law and not healthydevelopment. The crucial consideration when dealing with enactinghistoricalmaterials is the possibility that Parliament changed its mind, orfor some reason departed from it[29]. In Letang v. Cooper[30 ]it was heldthat enacting history must be inspected with great care and caution. Asan indication of legislative intention, it is very far behind the actual wordsof the Act. While setting out the relevant portions of the report of theSelect Committee, Justice Bhat pointed out that the report reflected theopinions of both sides before concluding that the concern of the Stateswill be considered in accordance with the procedure under Article 341& Article 342. There is no doubt that the Minister was assuaging theconcerns of the Members by stating that the power of the States toidentify backward classes is not being disturbed. I am convinced thatthere is no reason to depart from the text which is in clear terms and relyupon the legislative history to construe Article 342 contrary to thelanguage. I am not persuaded to agree with the submissions of the learnedAttorney General and the other counsel for the States that Article 342 Ahas to be interpreted in light of the Select Committee report and discussionin the Parliament, especially when the legislative language is clear andunambiguous.

17. Where the Court is unable to find out the purpose of anenactment, or is doubtful as to its purposes, the Court is unlikely to depart

27 [1999] 2 All ER 87328 1975 AC 591

29 Assam Railways and Trading Co Ltd v. Inland Revenue, 1935 AC 445

30 [1965] 1 QB 232

Afrom the literal meaning[31]. There is no dispute that the statement ofobjects and reasons do not indicate the purpose for which Article 342 Awas inserted. During the course of the detailed hearing of these matters,we repeatedly probed from counsel representingboth sides about thepurpose for inserting Article 342 in the Constitution. No satisfactoryanswer was forthcoming. In spite of our best efforts, we could not unearthBthe reason for introduction of Article 342 A. As the purpose is not clear,literal construction of Article 342A should be resorted to.

18. Craies culled out the following principles of interpretation oflegislation: -

1.Legislation is always to be understood first in accordancewith its plain meaning.

2.Where the plain meaning is in doubt, the Courts will startthe process of construction by attempting to discover, fromthe provisions enacted, to the broad purpose of the legislation.

3.Where particular reading would advance the purposeidentified, and would do no violence to the plain meaning ofthe provisions enacted, the Courts will be prepared to adoptthat reading.

E4.Where particular reading would advance the purposeidentified but would strain the plain meaning of the provisionsenacted, the result will depend on the context and, inparticular, on balance of the clarity of the purpose identifiedand the degree of strain on the language.

F5.Where the Courts concluded that the underlined purposeof the legislation is insufficiently plain, or cannot be advancedwithout an unacceptable degree of violence to the languageused, they will be obligated, however regretfully in thecircumstances of the particular case, to leave to theGlegislature the task of extending or modifying the legislation[32].

19. To ascertain the plain meaning of the legislative language, weproceed to construe Article 342 of the Constitution of India. Article342 was inserted in the Constitution by the Constitution (102[nd]

31 Section 309, Bennion on Statutory Interpretation, 5th Edition.H32 Craies on Legislation, 9th Edition Pg. 643

Amendment) Act, 2017. plainreading of Article 342 (1) would disclosethat the President shall specify the socially and educationally backwardclasses by public notification after consultation with the Governor.Those specified as socially and educationally backward classes in thenotification shall be deemed to be socially and educationally backwardclasses in relation to that State or Union Territory for the purposes of theConstitution. Article 342 (2) provides that inclusion or exclusion fromthe list of socially and educationally backward classes specified in thenotification under Article 342 (1) can be only done by law made by theParliament. The word ‘Central list’ used in Article 342 (1) had givenrise to conflicting interpretations. Article 366 deals with definitions. Sub-Article 26 (C) was inserted in Article 366 of the Constitution by theConstitution (102[nd] Amendment) Act, 2017according to which, sociallyand educationally backward classes shall mean such backward classesas are so deemed under Article 342 for the purposes of the Constitution.The use of words ‘means’ indicates that the definition is hard-and-fastdefinition, and no other meaning can be assigned to the expression thatis 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. Kasilingamv. P.S.G. College of Technology, 1995 SCC Supl. (2) 348.) When adefinition clause is defined to “mean” such and such, the definition isprima facie restrictive and exhaustive.[33]

20. The legislature can define its own language and prescriberules for its construction which will generally be binding on the Courts[34].Article 366 (26) (c) makes it clear that, it is only those backward classesas are so deemed under Article 342 which shall be considered associally and educationally backward classes for the purposes of theConstitution and none else. No other class can claim to belong to ‘sociallyand educationally backward classes’ for the purposes of the Constitution,except those backward classes as are so deemed under Article 342 ofthe Constitution.

21. This Court in Sudha Rani Garg v. Jagdish Kumar[35] dealtwith the word ‘deemed’ in the following manner: -

33 Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755

34 Collins v. Texas, 223 U.S. 288

35 (2004) 8 SCC 329

A“The word ‘deemed’ is sometimes used to impose for the purposesof statute an artificial construction of word or phrase thatwould not otherwise prevail. Sometimes it is used to put beyonddoubt particular construction that might otherwise be certain.Sometimes it is used to give comprehensive description thatBincludes what is obvious, what is uncertain and what is, in theordinary sense, impossible”.

22. Lord Asquith in East End Dwellings Co. Ltd v. FinsburyBorough Council[36] held that, “if one is bidden to treat imaginary stateof affairs as real, one must surely, unless prohibited from doing so, alsoCimagine as real the consequences and incidents which, if the putativestate of affairs had in fact existed, must inevitably have flowed from itor accompanied it. The use of the word ‘deemed’ in the definition clauseas well as in Article 342 puts it beyond doubt that it is only thosebackward classes which are specified in the notification that may beDissued by the President, who can claim to be socially and educationallybackward classes for the purposes of the Constitution.

23. There is no equivocacy in the legislative language used inArticle 342 A. The ordinary meaning that flows from simple reading ofArticle 342 is that the President after consultation with the GovernorEof State or Union Territory may issue public notification specifyingsocially and educationally backward classes. It is those socially andeducationally backward classes who shall be deemed as socially andeducationally backward classes in relation to that State or Union Territoryfor the purposes of the Constitution. There is no obscurity in Article 342FA (1) and it is crystal clear that there shall be one list of socially andeducationally backward classes which may be issued by the President.Restricting the operation of list to be issued under Article 342 (1) asnot being applicable to States can be done only by reading words whichare not there in the provision. According to Aharon Barak,”the structureGof the Constitution can be given implicit meaning to what is writtenbetween the lines of the text, but it cannot add lines to the text. To do sowould be to fill gap or lacuna, using interpretative doctrines”.[37] Thereis no reason for reading Article 342 (1) in any other manner except,

36 [1952] AC 109H37 Barak supra, 374.

according to the plain legal meaning of the legislative language. Thewords ‘Central list’ is used in Article 342 (2) have created somecontroversy in construing Article 342 A. To find out the exact connotationof word in statute, we must look to the context in which it is used[38].No words have an absolute meaning, no words can be defined in vacuo,or without reference to some context[39]. Finally, the famous words ofJustice Oliver Wendell Holmes Jr. “the word is not crystal transparentand unchanged; it is skin of living thought and may vary in colour andcontent according to the circumstances and the time in which it is used”.[40]

24. Article 342 (2) provides that inclusion or exclusion fromCentral list of socially and educationally backward classes specified in anotification issued under Sub-Clause 1 can be done only by the Parliament.A plain reading of the provision can lead to the following deduction: -

a.There is notification issued by the President under clause(1).

b.The notification specifies socially and educationallybackward classes.

c.Inclusion or exclusion can be done only by law made by theParliament.

d.Save otherwise, the notification shall not be varied by anysubsequent notification.

e.The list notified is referred to as “Central list”.

25. I find it difficult to agree with the submissions made on behalfof the Respondents that the use of words ‘central list’ would restrict thescope 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 specifyingthe socially and educationally backward classes and only those classesare treated as socially and educationally backward classes for thepurposes of the Constitution. Taking cue from the National Commission

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 19340 Towne v. Eisner, 245 U.S. 425 (1918)

1078SUPREME COURT REPORTS

Afor Backward Classes Act, 1993, the Respondents argued that the words‘Central list’ is with reference only to appointments to Central servicesand admission in Central educational institutions. Reading ‘Central list’in that manner would be curtailing the width of Article 342 (1). If soread, the sweep of Sub-Clause (1) shall be minimized. Moreover, toachieve the said meaning, words which are not in Article 342 (1) haveBto be read into it. Contextually, the words Central list in Article 342 (2)can be only with reference to the list contained in the notification whichmay be issued under Article 342 (1). It is well settled law that theprovisions of the Constitution have to be harmoniously construed and itis apparent from Article 342 (1) and (2) that there is no scope for anylist of socially and educationally backward classes, other than the list toCbe notified by the President. As the other expressions ‘for the purposesof the Constitution’ and ‘unless the context otherwise requires’ havebeen dealt with by Justice Bhat, I have nothing more to add to theconstruction placed by him on the said expressions. To avoid anyconfusion, I endorse the conclusion of Justice Ashok Bhushan on questionDNos. 1, 2 and 3 and the final order proposed in Para No. 444 of hisjudgment. Insofar as question Nos. 4, 5 and 6 are concerned, I am inagreement with the opinion of Justice S. Ravindra Bhat.

26. conspectus of the above discussion would be that only thosebackward classes included in the public notification under Article 342 AEshall be socially and educationally backward classes for the purposes ofthe Constitution.

HEMANT GUPTA, J.

I have gone through the judgments authored by learned Hon’bleShri Ashok Bhushan, J., Hon’ble Shri S. Ravindra Bhat, J. and also theForder authored by Hon’ble Shri L. Nageswara Rao, J. I am in agreementwith the reasoning and the conclusion on the Question Nos. 1, 2 and 3 inthe judgment rendered by Hon’ble Shri Ashok Bhushan, J., as well asadditional reasons recorded by Hon’ble Shri S. Ravindra Bhat, J. and byHon’ble Shri L. Nageswara Rao, J.G

I entirely agree with the reasoning and the conclusions in theJudgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. andHon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.

HBibhuti Bhushan Bose