Coram- Ashok Bhushan, S. Abdul Nazeer, L. Nageswara Rao, Hemant Gupta, Ravindra Bhat JJ
The constitutional bench was convened to decide on the issue of
- Special provisions related to socially and educationally backward class of citizen under Art. 15(4) of the constitution
- Reservation of backward class under Art. 16(4) of the constitution
- Discussion on 102nd amendment Act, 2018
[Bombay High Court by the impugned judgment upheld Act, 2018, except to the extent of quantum of reservation provided under Section 4(1)(a), 4(1)(b) of the Maharashtra State ESBC Act, 2018 over and above 12% and 13% respectively as recommended by Maharashtra State Backward Class Commission. Later, on the constitutional amendment 102nd was challenged in Shiv Sangram & Anr. vs. Union of India & Anr. and a three-judge bench of the Supreme Court upheld the judgment of the High Court subject to the outcome of a SLP filed against the HC judgment and referred the matter to a five-judge bench. Finally Supreme Court decided on the matter in this case]
- Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?
- Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
- Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made 12 out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
- Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
- Whether State’s power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
- Whether Article 342A of the Constitution abrogates State’s power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?
Judgment – Ashok Bhushan
- Status of reservation at the time of enactment of the Act, 2018
- The State of Maharashtra has issued a unified list of OBC consisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgment of this Court in Indra Sawhney case, the Central List of OBC was issued by the Ministry of Welfare, Government of India notifying the Central List of OBC consisting of more than 200 castes. The Central List of OBC as on date contains about 252 OBC. The Government of Maharashtra by its Government decision dated 07.12.1994 created special backward category containing several castes and communities.
- The Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and other Backward Classes) Act, 2001 was enacted which was published in the Maharashtra Government Gazette on 22.01.2004. Section 2(b) defines De-notified Tribes. Section 2(f) defines Nomadic Tribes. Section 2(g) defines Other Backward Classes and Section 2(k) defines reservation and Section 2(m) defines Special Backward Category.
- Section 4 provides for reservation and percentage of above categories.
|De-notified Tribes (A)||3%|
|Nomadic Tribes (B)||2.5%|
|Nomadic Tribes (C)||3.5%|
|Nomadic Tribes (D)||2%|
|Special Backward Category||2%|
|Other Backward Classes||19%|
- The Maharashtra State Commission for Backward Classes Act, 2005 was enacted by the State Legislature providing for constitution of State level Commission for Backward Classes other than the Scheduled Castes and Scheduled Tribes and to provide for matters connected therewith. Section 9 of the Act deals with functions of the Commission.
- Maharashtra Private Professional Educational Institutions (Reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes) Act, 2006 was enacted which was published in Maharashtra Gazette on 01.08.2006. Section 2 defines various expressions including Nomadic Tribes and Other Backward Classes in other words. Section 4 provided that in every Aided Private Professional Educational Institution, seats equal to 50% shall be reserved for candidates belonging to the Reserved Category.
- At the time of enactments of above 2001 and 2006 Acts, list containing Other Backward Classes had been existing which was issued by the State Government from time to time. By GR dated 26.09.2008, the State of Maharashtra extended the list of OBC to include 346 castes.
- Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014 was enacted by the State Legislature which received the assent of the Governor on 09.01.2015. In the said Act Maratha community was declared as Educationally and Socially Backward Category (ESBC).
- The implementation of the Act was stayed by the High Court by its order dated 07.04.2015 passed in Writ Petition No.3151 of 2014 which continued in operation till the writ petition was dismissed as infructuous by the impugned judgment.
- it is clear that the percentage of reservation in the State of Maharashtra in Public Services was 52% whereas percentage of reservation of seats for admission for SC and ST, De-notified Tribes and Nomadic Tribes and Other Backward Classes in Private Professional Educational Institutions was 50% at the time of enactment of Act, 2018.
- Section 2(1)(j) of the act provides that Socially and Educationally Backward Classes of Citizens (SEBC) includes the Maratha community.
- Consideration of 10 Grounds urged for revisiting and referring the judgment of Indra Sawhney to a larger Bench.
- First ground- only three Judges, Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai who held that 50% reservation cannot be breached whereas other six Judges have held that 50% can be breached, hence, majority opinion in Indra Sawhney does not hold that 50% is the ceiling limit for reservation.
- The Constitution Bench of this Court in Rajnarain Singh vs. Chairman, Patna Administration Committee, Patna and another, AIR 1954 SC 569, had occasion to find out the majority opinion of a seven-Judge Bench judgment delivered by this Court in Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of Laws) Act, 1947 vs. Part ‘C’ States (Laws) Act, 1950, AIR 1951 SC 332. The Constitution Bench laid down that opinion which embodies the greatest common measures of the agreement among the Bench is to be accepted the decision of the Court.
- Culling out the decision of the Court in a case where there are several opinions, on which there is greatest common measure of agreement is the decision of the Court
- In Indra Sawhney, Justice B.P. Jeevan Reddy for himself, M.H. Kania CJ, M.N.Venkatachaliah, A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation under Article 16(4 ) à conclusion was recorded by the Court that reservations contemplated under Article 16(4) should not exceed 50%.
- It was observed that in certain extraordinary circumstances, some relaxation in this strict rule of 50% may become imperative.
- Justice S. Ratnavel Pandian while delivering a separate judgment has expressed his disagreement with the proposition of fixing the reservation for socially and educationally backward classes at 50% as a maximum limit.
- Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai took the view that reservation in all cases should remain below 50% of total number of seats.
- Justice R.M. Sahai held that reservation should in no case exceed 50%
- Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai delivered dissenting opinion.
- Justice Sawant observed that there is no legal infirmity in keeping the reservations under clause (4) alone or under clause (4) and clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of excess of reservations over 50% would depend upon the facts and circumstances of each case but reservation under Article 16(4) shall be confined to minority of seats.
- Hence, the majority opinion is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. Hence, the greatest common measure of agreement of Indra Sawheny
- Reservation under Article 16(4) should not exceed 50%.
- For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.
- Hence, Indra Sawhaney need not be revisited.
- Second Ground- Different Judges from 1993 till date have spoken in different voices with regard to reservation under Article 15(4) and 16(4) which is a good ground to refer Indra Sawhney to a larger Bench.
- in M.R. Balaji and others vs. State of Mysore and others, AIR 1963 SC 649, in which this Court while considering Article 15(4) had laid down that reservation under Article 15(4) ordinarily, speaking generally and in a broad manner special provision should be less than 50%, how much less than 50% would depend upon the prevailing circumstances in each case. M.R. Balaji referring General Manager, Southern Railway, Personnel Officer (Reservation), Southern Railway vs. Rangachari, AIR 1962 SC 36, observed that what is true in regard to Article 15(4) is equally true in Article 16(4). T. Devadasanfollowed Balaji
- In State of Kerala and another vs. N.M. Thomas and others, 1976 (2) SCC 310 50% ceiling limit was not discussed by majority. Only two dissenting opinions opposed it.
- In T. Devadasn vs. Union of India and another, AIR 1964 SC 179, a Constitution Bench had occasion to examine the carry forward rule in a recruitment under the Union of India. Court had noticed M.R. Balaji and held that what was laid down in M.R. Balaji would apply in the above case.
- In Akhil Bharatiya Sochit Karamchari Sangh (Railway) Represented by its Assistant General Secretary on behalf of the Association vs. Union of India and others, (1981) 1 SCC 246, Justice O. Chinnappa Reddy observed that there is no fixed ceiling to reservation or preferential treatment to the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50%
- In K.C. Vasanth Kumar and another vs. State of Karnata, 1985 (Supp) SCC 714, O. Chinnappa Reddy, J. after noticing the Balaji observed that percentage of reservations is not a matter upon which a court may pronounce with no material at hand.
- The contradictory and different judgment of Supreme Court in N.M. Thomas, Akhil Bharatiya Karamchari Sangh and State of Punjab and even dissenting judgment of Justice Krishna Iyer in Devadasan and Akhil Bharatiya Kaamchari Sangh have been referred to and considered by nine-Judge Constitution Bench of Court in Indra Sawhney and concluded that reservation contemplated in clause (4) of Article 16 should not exceed 50%.
- The larger Bench in Indra Sawhney has settled the law after considering all earlier decisions of this Court as well as reliance of opinion of few judges cannot furnish any ground to refer judgment of Indra Sawhney to a larger Bench.
- It is normally observed that the Constitution Bench in M. Nagaraj has laid down that if a State wants to exceed 50% reservation, then it is required to base its decision on a quantifiable data, which is clear misreading of judgment of the Constitution Bench in M. Nagaraj. The Constitution Bench of this Court in M. Nagaraj has reiterated the numerical benchmark like 50% rule in Indra Sawhney’s case.
- The Constitution Bench judgment in Ashok Kumar Thakur has also not laid down any proposition.
- Hence, there is no reason to refer Indra Sawheny. In fact, the judgment of Indra Sawhney has been followed in (i) Post Graduate Institute of Medical Education & Research, Chandigarh and others vs. Faculty Association and others (ii) M. Nagaraj and others vs. Union of India and others, 2006(8) SCC 212 (iii) Krishna Murthy (Dr.) and others vs. Union of India and anoter 2010 (7) SCC 202 (iv) Chebrolu Leela Prasad Rao & Ors. vs. State of A.P. & Ors., 2020(7) Scale 162
- Ground 3 and 4 – Referring to a larger bench
- Justice Y.V. Chandrachud in Smt. Indira Nehru Gandhi vs. Raj Narain, (1975) Supp.SCC 1 has referred to equality of status and opportunity as forming part of the basic structure of the Constitution.
- Articles 15 and 16 of the Constitution which are facets of right of equality were incorporated as fundamental rights to translate the ideals and objectives of the Constitution and to give opportunities to the backward class of the society so as to enable them to catch up those who are ahead of them. Article 15(1) and Article 16(1) of the Constitution are the provisions engrafted to realize substantive equality where Articles 15(4) and 16(4) are to realize the protective equality. Articles 15(1) and 16(1) are the fundamental rights of the citizens whereas Articles 15(4) and 16(4) are the obligations of the States.
- In Indra Sawhney it was held Article 16(4) is not an exception to Article 16(1). It is also held that Article 16(4) is a facet to Article 16(1) and permits reasonable classification as is permitted by Article 14
- In Balaji, the Constitution Bench did not base its decision only on the observation that Article 15(4) is exception and proviso to Article 15(1). Article 15(4) was referred to as a special provision.
- In Balaji it is also laid down that special provision contemplated by Article 15(4) like reservation of posts by Article 16(4) must be within the reasonable limitation.
- The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer to the question
- Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality.
- To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.
- The time fleets, generations grow, society changes, values and needs also change by time. There can be no denial that law should change with the changing time and changing needs of the society. However, the proposition of law as noted above does not render any help to the submission of Shri Rohtagi that in view of needs of the society which are changing 50% rule should be given up.
- The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially and educationally backward class are all affirmative measures.
- In Ashoka Kumar Thakur vs. Union of India and others, 2008(6) SCC 1 held that any provision for reservation is a temporary crutch, such crutch by unnecessary prolonged use, should not become a permanent liability.
- In Ashoka Kumar Thakur vs. Union of India has also laid down that the balance should be struck to ensure that reservation would remain reasonable.
- The cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable.
- Justice Mathew, in Keshavananda Bharati (Supra), reiterated that judicial function is both creation and application of law. The principle of Indra Sawhney is creation and application of law.
- In All India Reporter Karamchari Sangh and others vs. All India Reporter Limited and others, 1988 Supp SCC 472 held that the decisions of the Supreme Court, which is a Court of record, constitute a source of law apart from being a binding precedent under Article 141
- Court again in Nand Kishore vs. State of Punjab, 1995(6) SCC 614, laid down that under Article 141 law declared by this Court is of a binding character and as commandful as the law made by legislative body or authorized delegate of such body.
- When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.
- Hence, there is no point in referring Indra Sawheny to higher bench
- Ground-5: Indra Sawhney judgment being judgment on Article 16(4), its ratio cannot be applied with regard to Article 15(4).
- The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney
- It has been laid down in Indra Sawhney that expression “Backward Class” used in Article 16(4) is wider that the expression “Socially and Educationally Backward Class” used in Article 15(5).
- Hence the ground-5 not valid.
- Ground -6: In Indra Sawney the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46 have not been considered while interpreting Article 14, 16(1) and 16(4).
- The Directive Principles of State Policy enshrined in Part-IV of the Constitution are fundamental in governance of the country. The State while framing its policy, legislation, had to take measures to give effect to the Constitutional Objective as contained in Part-IV of the Constitution. The Fundamental Rights are rights which the Constitution guarantees to the Citizen whereas Part-IV of the Constitution is the obligation of the State which it has to discharge for securing Constitutional objective.
- Court in Keshavananda Bharati Sripadagalvaru and others versus State of Kerala and another, (1973) 4 SCC 225, in several of the opinions, the Part-III and Part-IV of the Constitution has been dealt with. It is held that:
It is impossible to equate the directive principles with fundamental rights though it cannot be denied that they are very important. But to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to me a contradiction in terms
- Minerva Mills limited and others versus Union of India and others, (1980) 3 SCC 625, has also elaborately dealt both Fundamental Rights and Directive Principles of State Policy. The question which arose before the Constitution bench in context of Fundamental Rights and Directive Principles of State Policy. It was held, both Part-III and Part-IV of the Constitution are two kinds of State’s obligation i.e., negative and positive. The harmony and balance between Fundamental Rights and Directive Principles of State Policy is an essential feature of the Basic Structure of the Constitution.
- Article 38 of Directive Principles of State Policy oblige the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Article 15(4) and Article 16(4) of the Constitution are nothing but steps in promoting and giving effect to policy under Article 38 of the Constitution.
- Indra Sawheny has considered this. Hence the ground is discarded.
- Ground- 7: T.M.A. Pai foundation and others versus State of Karnataka and others, (2002) 8 SCC 481, has struck down the law laid down in St. Stephen’s College case, (1992) 1 SCC 558 which had held that aided minority educational institutions although entitled to preferably admit their community candidate, but intake should not be more than 50 percent.
- T.M.A. Pai foundation case was a judgment of this Court interpreting Article 29 and 30 of the Constitution. Article 30 of the Constitution gives a Fundamental Right to the minorities to establish and administer educational institutions
- The Right of minority is different and distinct right as recognized in the Constitution.
- The 93rdConstitutional Amendment Act, 2005, by which sub-clause (5) has been added in Article 15 excludes the minority educational institutions referred to in clause (1) of Article 30. Sub-clause (5) of Article 15 is clear constitutional indication that with regard to rights of minority regarding admission to educational institutions, the minority educational institutions referred to in clause (1) of Article 30 are completely excluded.
- 50 percent ceiling as put in St. Stephen’s College case was struck off by T.M.A. Pai Foundation case to give effect to content and meaning of Article 30. The striking of the cap of 50 percent with regard to minority institutions is an entirely different context and can have no bearing with regard to 50 percent cap which has been approved in the reservation under Article 16(4) in the Indra Sawhey’s case.
- Hence, T.M.A. Pai Foundation case has no bearing on the ratio of Indra Sawhney’s case.
- Ground- 8: 77th and 81st amendment have the effect of undoing in part the judgment of Indra Sawhney which necessitates revisiting of the judgment. By the 77th Constitutional Amendment Act, 1995, sub-clause (4A) was inserted in Article 16 of the Constitution. The above Constitutional Amendment was brought to do away the law laid down by this Court in Indra Sawhney that no reservation in promotion can be granted. By virtue of sub-clause 4A of Article 16 now, the reservation in promotion is permissible in favor of Scheduled Caste, Scheduled Tribe. The ratio of Indra Sawhney to the above effect no longer survives and the Constitutional provisions have to be given effect to.
- 81st Constitutional Amendment Act, 2000, by which sub-clause (4B) was inserted in Article 16. The above provision was also to undo the ratio laid down by the Indra Sawhney judgment regarding carry forward vacancies.
- The Constitutional Amendment laid down that in unfilled vacancies of year which was reserved shall be treated as separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determine the ceiling of 50 percent.
- The above Constitutional Amendment makes it very clear that ceiling of 50 percent “has now received Constitutional recognition.” Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney
- Ground -9: Indra Swahney held that the States cannot identify the backward classes solely on the basis of economic criteria as Indra Sawhney has set aside the O.M. dated 13.08.1990 which provided 10 percent reservation to economically weaker section. It is submitted that in view of the 10 percent reservation as mandated by 103rd Constitutional amendment, 50 percent reservation as laid down by Indra Sawhney is breached.
- This matter is sub judice in constitutional bench judgment W.P. (Civil) No.55 of 2019, Janhit Abhiyan versus Union of India.
- Ground -10: paragraph 810 of judgment of Indra Sawhney, provides certain extraordinary circumstances for breaching the 50% ceiling. But they cannot be said to be cast in stone. The extra-ordinary circumstances provided in paragraph 810 i.e., of far flung and remote area cannot be cast in stone and forever unchanging. It is geographical test which may not apply in every State.
- In Union of India and others versus Rakesh Kumar and others, (2010) 4 SCC 50 Court had occasion to consider the provisions of Fifth Schedule of the Constitution. Article 243B and provisions of Part-IX of the Constitution inserted by 73rd Constitutional Amendment Act, 1992. Reservation of seats was contemplated in the statutory provisions. The judgment of Indra Sawhney especially paragraphs 809 and 810 were also noted and extracted by this Court. This Court noted that even the judgment of Indra Sawhney did recognize the need for exception treatment in such circumstances. Court held that the case of Panchayats in Scheduled Areas is a fit case that warrant exceptional treatment with regard to reservation and the rationale of upper ceiling of 50 percent for reservation in higher education and public employment can be readily extended to the domain of vertical representation at the Panchayat level in the Scheduled Area.
- The Constitution Bench of Court in K. Krishna Murthy and others versus Union of India and another, (2010) 7 SCC 202 applied 50 percent ceiling in vertical reservation in favour of Scheduled Caste/Scheduled Tribe/ Other Backward Class in context of local self-government. However, it was held that exception can be made in order to safeguard the interest of Scheduled Tribes located in Scheduled Area.
Hence, Indra Sawhney need not be revisited.
- Principle of Stare Decisis
- The seven-Judge Constitution Bench judgment in Keshav Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 has unanimously held that before reviewing and revising its earlier decision the Court must itself satisfy whether it is necessary to do so in the interest of public good or for any other compelling reason. Court must maintain a continuity and certainty in interpretation of law.
- The Constitution Bench in Indra Sawhney speaking through Justice Jeevan Reddy has held that the relevance and significance of the principle of stare decisis have to be kept in mind. It was reiterated that in law certainty, consistency and continuity are highly desirable features.
- Judgment of Indra Sawhney has stood the test of time and has never been doubted. On the clear principle of stare decisis, judgment of Indra Sawhney neither need to be revisited nor referred to larger bench of this Court.
- Whether Gaikwad Commission Report has made out a case of extra-ordinary situation for grant of separate reservation to Maratha community exceeding 50% limit?
- term of reference to the State Backward Classes Commission included a specific reference, i.e., “to define exceptional circumstances and/or extra-ordinary situations to be applied for the benefit of reservation in the present context”.
- The Gaikwad Commission has separately and elaborately considered the above term of reference. A separate Chapter, Chapter-X has been devoted in the Commission’s Report. The heading of the Chapter-X is “EXCEPTIONAL CIRCUMSTANCES AND/OR EXTRA ORDINARY SITUATIONS”.
- the Commission has noted the Constitution Bench judgment in M. Nagaraj & Ors. vs. Union of India & Ors. (supra) observing that Court has again considered the aspect of ceiling of 50% reservation. The Commission, however, proceeded with an assumption that in Nagaraj this Court has ruled that for relaxation, i.e., 50%, there should be quantifiable and contemporary data.
- it is clear that the Commission read the Constitution Bench judgment in Nagaraj laying down that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to the backwardness. The above reading of Constitution Bench judgment by the Commission was wholly incorrect.
- observation regarding quantifiable data was in relation to enabling power of the State to grant reservation in promotion to the Scheduled Caste and Scheduled Tribes. The Constitution Bench in Nagraj, clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. The Commission has completely erred in understanding the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached. There is no such ratio laid down by this Court in M. Nagaraj. Hence, the very basis of the Commission to proceed to examine quantifiable data for exceeding the limit of 50% is unfounded.
- It is clear that the entire basis of the Commission to exceed 50% limit is that since the population of backward class is between 80% to 85%, reservation to them within the ceiling 50% will be injustice to them.
- Whether the Act, 2018, as amended in 2019 granting separate reservation for Maratha Community by exceeding ceiling of 50 percent makes out exceptional circumstances as per the judgment of Indra Sawhney case?
- The report of the Maharashtra State Backward Class Commission dated 15.11.2018 became the basis for granting separate reservation to the Maratha community by exceeding the 50 percent ceiling limit.
- The Government after considering the report, its conclusion and findings and recommendations formed the opinion for giving separate reservation to the Maratha community as socially and educationally backward classes (SEBC).
- It has already been discussed the report of the Commission and have held that no extraordinary circumstances have been made out on the basis of reasoning given in the report.
- While the foundation itself is unsustainable, the formation of opinion by the State Government to grant separate reservation to the Marathas exceeding 50 percent limit is unsustainable.
- no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.
- Hence, the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation.
- Gaikwad Commission Report – a scrutiny
- in M.R. Balaji vs. The State of Mysore and others, AIR (1963) SC 649 the court had occasion to consider Nagan Gowda Committee which has submitted a report in 1961 and made a recommendation for reservation. In pursuance of the report, the State of Mysore had issued an order dated 31.07.1961 deciding to reserve 15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50% for backward class totaling to 68% of seats available for admission to the Engineering and Medical Colleges and to other technical institutions in the State. The Constitution Bench elaborated the extent of judicial review to an executive action and struck down the committee report.
- in B.K. Pavitra and others vs. Union of India and others, (2019) 16 SCC 129, where Court had after referring to earlier judgment laid down that Committee/commission has carried out an exercise for collecting data, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.
- in Mukesh Kumar and another vs. State of Uttarakhand and others, (2020) 3 SCC 1, it was held, Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether.
- Court has to look into the report of the Commission or Committee with deference but scrutiny to the extent as to whether any constitutional principle has been violated or any constitutional requirement has not been taken into consideration is fully permissible. As laid down in V. Balram case (supra) the judicial scrutiny is also permissible as to whether from the material collected by the Commission or committee the conclusion on which the Commission has arrived is permissible and reasonable.
- Whether the data of Marathas in public employment as found out by Gaikwad Commission makes out cases for grant of reservation under Article 16(4) of the Constitution of India to Maratha community?
- The reservation under Article 16(4) of the Constitution is enabling power of the State to make any provision for reservation of appointment or posts in favour of other backward class of citizens who in the opinion of the State is not adequately represented in the services under the State. The conditions precedent for exercise of power under Article 16(4) is that the backward class is not adequately represented in the services under the State.
- The objective behind clause (4) of Article 16 is sharing the power by those backward classes of the society who had no opportunities in the past to be part of the State services or to share the power of the State.
- The State, when provides reservation under Article 16(4) by executive action or by legislation, condition precedent, that the backward class is not adequately represented in the service has to be fulfilled.
- The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties
- The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented.
- For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services.
- The Maratha community is only one community among the numerous castes and communities in the State of Maharashtra. The principal caste and communities in the State of Maharashtra consists of Scheduled Castes/Scheduled Tribes, de-notified tribes, nomadic tribes (B, C and D), special backward category and other backward classes, general categories and the minorities.
- A large number of castes and communities are included in the above class of castes. We may refer to number of caste and communities included in different groups.
- The above details indicate that in a rough estimate in the State of Maharashtra, there are more than 500 castes and communities which are living in the State and earning their livelihood which include Scheduled Caste, Scheduled Tribe to have representation in the public services. The State cannot take any measure which violates the balance. The expression ‘inadequacy’ has to be understood in above manner.
- There is one more fundamental error which has been committed by the Commission. The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented.
- The Government committed an error in accepting the recommendation without scrutinizing the report with regard to correct percentage of representation of Marathas in services. The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.
- Hence, it is held that, Maratha class was not entitled for any reservation under Article 16(4) and grant of reservation under Article 16(4) is unconstitutional and cannot be sustained.
- Social and Educational Backwardness of Maratha Community
- three National Backward Classes Commissions and three State Backward Classes Commissions considered the claim of Maratha community to be included in the other backward community, but all Commissions rejected such claim rather they were held to be belonging to forward community.
- In the year 1961, Deshmukh Committee appointed by the State of Maharashtra did not include the Maratha community in the list of backward communities
- In the year 2001, Khatri Commission rejected the demand of Maratha to be included in backward class communities.
- On 25.07.2008, Bapat Commission in its report rejected the demand to include Maratha community in the other backward class communities by majority.
- the State Government had appointed Rane Committee to be headed by a Cabinet Minister who collected data and observed that Maratha may not be socially and educationally backward but recommended grant of reservation as educationally and financially backward class.
- This Court in Ram Singh and others vs. Union of India, (2015) 4 SCC 697, has categorically laid down in paragraph 49 that a decision which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on contemporaneous inputs.
- Any study of Committee or Commission is with regard to present status since object is to take affirmative actions in present or in future to help the particular community.
- it is always open to the State to collect relevant data to find out as to whether a particular caste or community is to be included in the list of other backward classes or excluded from the same despite any decision to the contrary taken earlier. The Constitution Bench in Indra Sawhney has also laid down for periodical review which is for the purpose and object that those communities who were earlier backward and advanced should be excluded and those communities who were earlier advanced and might have degraded into backward class should be included.
- Thus, the State was fully entitled to appoint backward classes commission to collect relevant data and submit the report.
- Maratha community has adequate and sufficient representation in the public services. representation of Maratha in public services is present in all categories i.e. Group A, Group B, Group C and Group D posts, and the Marathas have occupied the posts by competing with open categories. The representation of Marathas as noticed above has in many grades about 30% against all filled posts of open category. When a community is able to compete with open category candidates and obtain substantial number of seats (about 30%), this was relevant fact to be noticed while considering the social and educational backwardness of the community. Even if grant and non-grant of reservation to backward under Article 16(4) may not be considered as decisive for socially and educationally backward class for grant under Article 15(4) but grant or non-grant under Article 16(4) certainly is relevant for consideration which reflects on backward class or classes both in favour and against such backward class. Hence finding of the commission was erroneous.
- The Constitution (One Hundred and Second Amendment) Act, 2018 [The Constitution (102nd Amendment) Act, 2018].
- (page 281) onwards
- The Constitution 102nd Amendment had brought change for backward class to fall in line with Articles 341 and 342 of the Constitution.
- In view of Article 342A the SEBCs are those who are specified by the President by public notification for the purposes of a State or Union Territory under sub-clause (1) of Article 342A. Article 342A being analogous to Articles 341 and 342 must be interpreted exactly in the same manner.
- Objective and reason of the amendment bill is that: in order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes.
- The court present in the present case is concerned with Constitutional Amendment brought by the Constitution (One Hundred and Second Amendment) Act, 2018. The Central Province and Berar Sales of Motor Spirit and Lubricants Taxations Act, 1938, AIR 1939 Federal Court 1, held that rules which apply to the interpretation of other statute applies equally to the interpretation of the constitutional enactment.
- On the interpretation of the Constitution of India, a Constitution Bench of Supreme Court in ITC Ltd. vs. Agricultural Produce Market Committee and others, (2002) 9 SCC 232, held that constitution should be interpreted in such a manner that, it does not water down the power of state legislature.
- In the Constitution Bench in R.S. Nayak vs. A.R. Antulay, 1984(2) SCC 183, The argument was advanced that debates in Parliament or the report of the Commission or Committee which proceed the enactment is not permissible aid to construction. Court rejected the submission raised and held that the reports of the Committee were admissible.
- Minerva Mills Ltd. and others vs. Union of India and others, (1980) 3 SCC 625. CJ, Y.V. Chandrachud speaking for the Constitution Bench referred to speech of Law Minister made in the Parliament and held that the constitutional provisions cannot be read contrary to its proclaimed purpose as was stated by the Law Minister in the floor of the House.
- in Kalpana Mehta and others vs. Union of India and others, (2018) 7 SCC 1 the Constitution Bench elaborately dealt with the role of Parliamentary Committee. One of the questions which was referred to before the Constitution Bench to answer was “whether in a litigation filed before this Court under Article 32 and our Court can refer to and place reliance upon the report of the Parliamentary Standing Committee. The Constitution Bench referring to earlier judgment in R.S. Nayak v. A.R. Antulay and held,
“the Court can take aid of the report of the Parliamentary Committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment”
- The minister on the floor of parliament has stated that, the proposed amendment (102nd) does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward Classes. The existing powers of the State Backward Classes Commission would continue to be there even after the passage of the Constitution
- Prior to Constitution (One Hundred and Second Amendment), there was already existing a National Commission for Backward Classes under the National Commission for Backward Classes, Act, 1993(in short 1993 Act), which was a statutory commission. The Act, 1993, indicates that functions of the Commission were confined to only examine requests for inclusion or exclusion from the list of backward classes. The list “was defined in Section 2C of the Act, 1993 to mean the list for reservation for appointment of backward class in the services under the Government of India. Article 338B now inserted provides a much larger and comprehensive role to the Commission. The Act, 1993 required the Commission to give advice only to the Central Government. Article 338B now requires the Commission to give advice both to the Central Government and to the States
- The most important difference which is now brought by Article 338B is sub-clause (9), which mandates that every State Government to consult the Commission on all major policy decisions affecting socially and educationally backward classes. Subclause (9) is engrafted in mandatory form by using expression “shall”. The States thus are now bound to consult the Commission on all major policy matters affecting socially and educationally backward class.
- Court already found that reports of the Parliamentary Committee and the statement made by the Minister while moving the Bill are relevant aids for a construction of constitutional provision. The Parliamentary Committee report makes it clear that after obtaining the clarification from the Ministry that the Constitutional Amendment is not intended to take away the right of identification of backward class from a State. It submitted its report to the effect that rights of State Backward Classes Commission shall continue unhindered. The Parliamentary Standing Committee further noticed that the list which is contemplated under Article 342A is only Central List of the backward classes for a particular State for the purposes of services under the Government of India and its organizations.
- The Parliamentary intention was further discernible that the list which was contemplated to be issued by President under Article 342A was only the Central List which was to govern the services under the Government of India and organizations under the Government of India. When the Parliamentary intention is discernable and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above.
- The National Commission for Backward Classes by the Constitutional 102nd Amendment was, thus, given constitutional status which was available to the Commission which as a statutory Commission under 1993 enactment.
- Article 366(26C) makes it clear that definition provides that socially and educationally backward class means such backward classes as are deemed under Article 342A for the purposes of this Constitution. When we have interpreted Article 342A to mean that Article 342A refers to ‘Central List’ which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the 26C has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern. Article 366(26C), thus, has to be read contextually with Article 342A and for no other purpose
- There is no merit in the challenge to the Constitution 102nd Amendment. The Constitution 102nd Amendment does not violate any basic feature of the Constitution. The Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 sub-clause (2), hence, the same did not require any ratification. Hence, 102nd amendment is correct and valid
- The greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is:
- Reservation under Article 16(4) should not exceed 50%.
- For exceeding reservation beyond 50%, extra-ordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy should exist for which extreme caution is to be exercised.
- The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.
- the cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable.
- Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant.
- There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone
- When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.
- The Constitution Bench judgment in Indra Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India.
- The setting aside of 50% ceiling by eleven Judge Bench in T.M.A. Pai Foundation case as was laid down by St. Stephen’s case i.e., 50% ceiling in admission in aided Minority Instructions has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation. The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution.
- The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”.
- The use of expression “on being out of the main stream of national life”, (exception mentioned in para 810 of Indra Sawhney) is a social test, which also needs to be fulfilled for a case to be covered by exception.
- There is no requirement for revisiting and referring the judgment of Indra Sawhney to a larger Bench.
- What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds the court
- The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness. The Commission has completely misread the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached.
- The Commission and the High Court found existence of the extra-ordinary situations with regard to exceeding 50% ceiling in respect to grant of separate reservation to Maratha because the population of backward class is 80% and reservation limit is only 50%, containing the Maratha in pre-existing reservation for OBC shall not be justice to them, which circumstances is not covered under the para meters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling.
- no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires
- The proposition is well settled that Commissions’ reports are to be looked into with deference. However, one of the parameters of scrutiny of Commission’s report as approved by this Court is that on the basis of data and materials referred to in the report whether conclusions arrived by the Commission are justified.
- The measures taken under Article 15(4) and 16(4) can be examined as to whether they violate any constitutional principle and are in conformity with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the constitutional scrutiny
- The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream to enable to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance.
- Marathas are adequately represented in state civil services
- The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented. Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.
- The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.
- Court disapproved the grant of reservation under Article 16(4) to Maratha community, the said decision becomes relevant and shall certainly have effect on the decision of the Commission holding Maratha to be socially and educationally backward. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.
- The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used. The aid to interpretation is resorted to only when there is some ambiguity in words or expression used in the statute. The rule of harmonious construction, the rule of reading of the provisions together as also rule of giving effect to the purpose of the statute, and few other principles of interpretation are called in question when aids to construction are necessary in particular context
- The law is well settled in this county that Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions
- the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per subclause (9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision
- Court interpreted Article 342A to mean that Article 342A refers to ‘Central List’ which is prepared for services under the Government of India and organizations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the (26C) has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern.
- Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.
- The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018.
- Section 2(j) of act of 2018 which says Maratha community is socially and educationally backward is ultra vires of the constitution and set aside
- Section 4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or unaided by the State, other than minority educational institutions, is declared ultra vires to the Constitution and struck down.
- Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down.
- The judgment will not have any retrospective effect.
Maratha Reservation Judgment – Dissent opinion by L. Nageswar Rao J.
Dr. Jaishri Laxmanrao Patil v The Chief Minister & Anr.
- Justice Rao agrees with the majority opinion on point 1, point 2 and point 3. But he has a difference of opinion with respect to point 4, point 5 and point 6. The point 4, 5, 6 pertain to to the interpretation of Article 342 A of the Constitution of India.
- Article 342 A which falls for interpretation is as follows:
342 A. Socially and educationally backward classes. — (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
- Article 366 (26 C) which is also relevant is as under: –
366. Definitions. Unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say— xx xx xx xx xx [(26C) ―socially and educationally backward classes means such backward classes as are so deemed under article 342 A for the purposes of this Constitution:]
- One must understand some cardinal principle of interpretation of constitution-
- The Constitution is a living and organic document which requires to be construed broadly and liberally. I
- Rules which are applied to the interpretation of other statutes, apply to the interpretation of the Constitution
- It may be desirable to give a broad and generous construction to the constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind
- In fact, the rule of “literal construction” is the safe rule even while interpreting the Constitution
- The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself
- f the language of the meaning of the statute is plain, there is no need for construction as legislative intention is revealed by the apparent meaning
- Legislative intent must be primarily ascertained from the language used in statute itself
- the language of the Constitution is a source for its purpose.
- constitutional language is an important and highly credible source of information.
- Lord Parker, CJ observed in R. v. Oakes there is no ground for reading in words according to what may be ‘the supposed intention of Parliament’
- In the 183rd Report of the Law Commission of India, Justice M. Jagannadha Rao observed that a statute is a will of legislature conveyed in the form of text.
- It is well settled principle of law that as a statute is an edict of the legislature, the conventional way of interpreting or construing the statute is to see the intent of the legislature. The intention of legislature assimilates two aspects. One aspect carries the concept of ‘meaning’ i.e., what the word means and another aspect conveys the concept of ‘purpose’ and ‘object’ or ‘reason’ or ‘approach’ pervading through the statute.
- However, necessity of interpretation would arise only where a language of the statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute
- The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonize between the subject of the enactment and the object which the legislature has used. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained
- It is a recognized rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the legislature
- In case of ambiguity this Court has adopted purposive interpretation of statutory provisions by applying rule of purposive construction.
- Where the Court is unable to find out the purpose of an enactment, or is doubtful as to its purposes, the Court is unlikely to depart from the literal meaning
- There is no dispute that the statement of objects and reasons do not indicate the purpose for which Article 342 A was inserted. As the purpose is not clear, literal construction of Article 342 A should be resorted to.
- Article 342 A was inserted in the Constitution by the Constitution (102nd Amendment) Act, 2017. A plain reading of Article 342 A (1) would disclose that the President shall specify the socially and educationally backward classes by a public notification after consultation with the Governor. Those specified as socially and educationally backward classes in the notification shall be deemed to be socially and educationally backward classes in relation to that State or Union Territory for the purposes of the Constitution. Article 342 A (2) provides that inclusion or exclusion from the list of socially and educationally backward classes specified in the notification under Article 342 A (1) can be only done by law made by the Parliament. The word ‘Central list’ used in Article 342 A (1) had given rise to conflicting interpretations. Article 366 deals with definitions. Sub-Article 26 (C) was inserted in Article 366 of the Constitution by the Constitution (102nd Amendment) Act, 2017 according to which, socially and educationally backward classes shall mean such backward classes as are so deemed under Article 342 A for the purposes of the Constitution. The use of words ‘means indicates that the definition is a hard and-fast definition, and no other meaning can be assigned to the expression that is put down in definition
- The legislature can define its own language and prescribe rules for its construction which will generally be binding on the Courts. Article 366 (26) (c) makes it clear that, it is only those backward classes as are so deemed under Article 342 A which shall be considered as socially and educationally backward classes for the purposes of the Constitution and no one else. No other class can claim to belong to ‘socially and educationally backward classes’ for the purposes of the Constitution, except those backward classes as are so deemed under Article 342 A of the Constitution.
- The ordinary meaning that flows from a simple reading of Article 342 A is that the President after consultation with the Governor of a State or Union Territory may issue a public notification specifying socially and educationally backward classes. It is those socially and educationally backward classes who shall be deemed as socially and educationally backward classes in relation to that State or Union Territory for the purposes of the Constitution. There is no obscurity in Article 342 A (1) and it is crystal clear that there shall be one list of socially and educationally backward classes which may be issued by the President. Restricting the operation of a list to be issued under Article 342 A (1) as not being applicable to States can be done only by reading words which are not there in the provision.
- Article 342 A (2) provides that inclusion or exclusion from Central list of socially and educationally backward classes specified in a notification issued under Sub-Clause 1 can be done only by the Parliament. A plain reading of the provision can lead to the following deduction: –
- There is a notification issued by the President under clause (1).
- The notification specifies socially and educationally backward classes.
- Inclusion or exclusion can be done only by law made by the Parliament.
- Save otherwise, the notification shall not be varied by any subsequent notification.
- The list notified is referred to as “Central list”.
- It is difficult to agree with the submissions made on behalf of the Respondents that the use of words ‘central list’ would restrict the scope and amplitude of the notification to be issued under Article 342 A (1). There is only one list that can be issued by the President specifying the socially and educationally backward classes and only those classes are treated as socially and educationally backward classes for the purposes of the Constitution.
- Contextually, the words “Central list” in Article 342 A (2) can be only with reference to the list contained in the notification which may be issued under Article 342 A (1). It is well settled law that the provisions of the Constitution have to be harmoniously construed and it is apparent from Article 342 A (1) and (2) that there is no scope for any list of socially and educationally backward classes, other than the list to be notified by the President.
- Rao J. held that only those backward classes included in the public notification under Article 342 A shall be socially and educationally backward classes for the purposes of the Constitution
Conclusion – he agrees with point 1, 2, 3 of Bhushan but not with point 4, 5, 6.
DR. JAISHRI LAXMANRAO PATIL v THE CHIEF MINISTER AND ORS
Hemant Gupta J.
He agrees with Point 1, 2, 3 of Ashok Bhushan and point 4, 5 ,6 of Rao
DR. JAISHRI LAXMANRAO PATIL v THE CHIEF MINISTER AND ORS
Ravindra Bhatt J.
- Background fact- [Self Reading]
The Maratha community, in the State of Maharashtra repeatedly sought reservations through diverse nature of demands through public meetings, marches etc, by members of the community. It also led to representatives and organizations of the community taking the demands to the streets, resulting in the State of Maharashtra promulgating an Ordinance for the first time in the year 2014, which granted reservation to the community in public employment and in the field of education. Later, the Ordinance was given the shape of an Act which was challenged before the Bombay High Court The court, after considering the rival submissions, including the arguments of the state stayed the operation of the enactment. The State Government then set up a backward class commission to ascertain the social and educational status of the community. Initially, the commission was headed by Justice S. B. Mhase. His demise led to the appointment of Justice MG Gaikwad (Retired) as chairperson of the commission; it comprised of 10 other members.The Committee headed by Justice Gaikwad was thus reconstituted on 3rd November, 2017. By its report dated 13.11.2018 (the Gaikwad Commission Report)7, the Commission, on the basis of the surveys and studies it commissioned, and the analysis of the data collected during its proceedings, recommended that the Maratha class of citizens be declared as a Socially and Educationally Backward Class (“SEBC” hereafter). This soon led to the enactment of the SEBC Act, giving effect to the recommendations of the Gaikwad Commission, resulting in reservation to the extent of 16% in favor of that community; consequently, the aggregate reservations exceeded 50%.
The SEBC Act was brought into force on 30th November 2018. Close on its heels a spate of writ petitions was filed before the Bombay High Court, challenging the identification of Marathas as SEBCs, the conclusions of the Commission, which culminated in its adoption by the State of Maharashtra and enactment of the SEBC Act, the quantum of reservations, and the provisions of the Act itself, on diverse grounds. All writ petitions were clubbed together and considered. By the impugned judgment, the High Court turned down the challenge and upheld the identification of Marathas as SEBCs, and further upheld the reasons presented before it, that extraordinary circumstances existed, warranting the breach of the 50% mark, which was held to be the outer limit in the nine-judge decision of this court in Indra Sawhney v. Union of India8 (hereafter variously “Indra Sawhney” or “Sawhney”).
The special leave petitions, filed against the impugned judgment, were heard, and eventually, leave granted. Some writ petitions too were filed challenging provisions of the SEBC Act. The validity of the Constitution (102nd) Amendment Act9 too is the subject matter of challenge, on the ground that it violates the basic structure, or essential features of the Constitution.10A Bench of three judges, after hearing counsel for the parties, referred the issues arising from these batch of petitions and appeals, to a Constitution bench, for consideration, as important questions arising for interpretation
- Issues- [ Self Reading]
(1) Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?
(2) Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
(3) Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
(4) Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
(5) Whether States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
(6) Whether Article 342A of the Constitution abrogates States’ power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?
- He agrees with point -1, 2, 3, 6 of the main judgment. He does not agree with the judgment on point 4 and 5.
- [Self Study] A careful reading of the judgments in Indra Sawhney v. Union of India clarifies that seven out of nine judges concurred that there exists a quantitative limit on reservation – spelt out @ 50%. In the opinion of four judges this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by the State or the concerned agency. However, there is unanimity in the conclusion by all seven judges that an outer limit for reservation should be50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50% limit on reservation.
- [ Self Study] In these circumstances, given the general common agreement about the existence of an outer limit, i.e., 50%, the petitioner’s argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments does not require review of Indra Sawheny case
- [Self Study] It would be useful to notice that unanimity in a given bench (termed as a “supermajority”) – denoting a 5-0 unanimous decision in a Constitution Bench cannot be construed as per se a strong or compelling reason to doubt the legitimacy of a larger bench ruling that might contain a narrow majority (say, for instance with a 4-3 vote, resulting in overruling of a previous unanimous precedent). The principle of stare decisis operates both vertically- in the sense that decisions of appellate courts in the superior in vertical hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally- in the sense that a larger bench formation ruling, would be binding and prevail upon the ruling of a smaller bench formation.
- [Self Study This debate- i.e., between Balaji and Indra Sawhney, saw the court’s initial declaration that a 50% ceiling on reservations should be imposed, which was questioned in three judgments, though not in majority decisions of various benches. Therefore, to decisively settle this important issue- among other issues, the nine-judge bench was constituted. Indra Sawhney decisively ruled that reservations through special provisions should not exceed 50% by a 7-2 majority. Two judges did not indicate any limit on reservations, they did not also indicate any clear guiding principle about what the court’s approach should be, when a party complains that reservations are excessive or unreasonable. Indra Sawhney is equally decisive on whether reservations can be introduced for any new class, or the quantum of reservations, when introduced, or changed, can be the subject matter of judicial review, for which according to the majority of judges, the guiding principle would be the one enunciated in Barium Chemicals v. Company Law Board
- [Self reading] It would be, in this context, relevant to notice that two important amendments to the Constitution of India, which have the effect of transforming the notion of equality, were made in the last 15 years. The first was the eighty sixth amendment – which inserted Article 21A- which had the effect of enjoining the state to provide free and compulsory education to all children in the age group 6- 14. The second was the Constitution Ninety Third Amendment Act, which inserted Article 15 (5) enabling the state to make special provisions “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided.” The transformative potential of these provisions (both of which have been upheld by this court – in Pramati Educational & Cultural Trust v. Union of India) is yet to be fully realized. Article 21A guarantees minimum universal education, whereas Article 15(5) enables access to backward classes of citizens admissions, through special provisions by the state, in private educational institutions. The Right to Education Act, 2009 provides a broad statutory framework for realization of Article 21A. The availability of these constitutional provisions, however, does not mean that those belonging to backward class of citizens would be better off or would reap any automatic benefits. Here, it is relevant to consider that often, any debate as to the efficacy or extent of reservation, invariably turns to one stereotypical argument- of merit
- [Self reading] The argument of merit thus ignores the inherent and situational inequity between those who have no access to the means of achieving the goal of meaningful education, i.e., to colleges and professional institutions, based on competitive evaluations like tests, and those who have the entire wherewithal for it. Those from low-income groups cannot join coaching programmes, which hone candidates’ skills in succeeding in an entrance test. Overemphasis on merit, therefore, ignores the burdens of the past, assumes that everything is perfectly fair now and asks the question of how the candidate fares in examinations that test only a narrow range of skills, mainly of linear-type thought. This de-contextualized, neutrality-based thinking glosses over historical and centuries old inequalities, the burdens of which continue to plague those who labour under disadvantage, and through the so called “level playing field” of a common exam, or evaluation, privileges those who had, and continue to have, access to wealth, power, premium education and other privileges, thus consolidating these advantages. Merit is a resource attractor. Those with it, accumulate more of it, more wealth and acquire more power. They use that money and power to purchase more increments of merit for themselves and their children. The eminent legal thinker, Michael Sandel, in his Tyranny of Merit, bemoans that the US has now become a sorting machine “that promises mobility on the basis of merit but entrenches privilege and promotes attitudes toward success corrosive of the commonality democracy requires” (p. 155)He further says that first, all are told that although the promise of a mobile society based on merit is better than a hereditary hierarchy, it is important to comprehend that this promise does not come with any attendant promise to attenuate inequality in society. On the contrary, this promise legitimizes “inequalities that arise from merit rather than birth” (p. 161). Second, we learn that a system that rewards the most talented is likely to undervalue the rest, either explicitly or implicitly. The context of these observations is to highlight that even when reservations are provided in education, sufficient numbers of the targeted students may not be able to achieve the goal of admission, because of the nature of the entrance criteria. Equality of opportunity then, to be real and meaningful, should imply that the necessary elements to create those conditions, should also be provided for. It would therefore be useful to examine – only by way of illustration- the schemes that exist, for advancing educational opportunities, to Scheduled Caste (“SC” hereafter)/ Scheduled Tribe (“ST” hereafter) and SEBC students.
- Before proceeding with the interpretation of the provisions of the 102nd Amendment, it would be useful to briefly recapitulate the provisions that existed for the identification of SCs and STs. Before the Constitution was framed, the Government of India Act, by Section 26 defined SCs. One Dr. J.H. Hutton, a Census Commissioner of India, framed a list of the depressed classes systematically, and that list was made the basis of an order promulgated by the British Government in India called the Government of India (Scheduled Castes) Order, 1936. This court, in one of its decisions noticed that such list became the basis for the Constitution (Scheduled Castes) Order, 1950. Article 338 as originally enacted, provided for appointment of a special officer for the SCs and STs to investigate all matters relating to the safeguards provided for the SCs and STs under the Constitution and to report to the President on their working. In 1990, this position changed, and the Constitution (Sixty Fifth) Amendment Act was enacted to create a five-member commission under Article 338.
- The composite Commission for SCs and STs was bifurcated by another amendment- the Constitution (Eighty Ninth Amendment) Act, 2003, which inserted Article 338A, enabling the creation of a commission exclusively to consider measures and make recommendations for amelioration of STs. Article 338B has now been introduced through the 102nd amendment, which is in issue
- By the 102nd Amendment Act, the words “and to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340, by order specify” were deleted
- It would be useful at this stage to recollect that before Indra Sawhney, two commissions were set up at the national level, to examine and make suitable recommendations in respect of identification of other backward classes. These were the Kaka Kalelkar Commission and the B.P. Mandal Commission. The Kalelkar Commission, after an exhaustive survey and study, through its report, identified 2399 backward groups and recommended several measures for their advancement, as steps that could be taken by the Union and the states. The Mandal Commission report identified individuals belonging to 3,743 different castes and communities, as “backward”.
- The consistent view while interpreting Articles 341 and 342 has been that the power which the Constitution conferred is initially upon the President, who, after the introduction of the 65th and 89th Amendments and the insertion of Articles 338 and 338A, is aided in the task of identification of the SCs and STs, by two separate Commissions, to include or exclude members claiming to be SCs or STs. The view of this Court has been that once a determination has been done, no court can, by interpretive process, or even the executive through its policies, include members of other communities as falling within a particular class or described community or even in any manner extend the terms of the determination under Articles 341 or 342. The power to further include, or modify contents of the existing list (of SC/STs) is with Parliament only [by reason of Article341 (2) and Article 342 (2)] This position has been consistently followed in a series of decisions
- Likewise, in the interpretation as to which communities are categorized as SCs or STs, this Court has been definite, i.e. that only such classes or communities who specifically fall within one or the other lists, that constitute SCs or such STs for the purpose of this Constitution under Article 366(24) and Article 366 (25). (in Bir Singh v. Delhi Jal Board)
- The original Constitution did not contain any special provision of like manner as Articles 341 and 342. It did not define SEBCs. The only reference to SEBCs was in Article 340, which enabled the Central Government to setup a Commission for recommending measures for the progress and upliftment of backward classes of citizens
- After the decision of this Court in Champakam Dorairajan v. State of Madras Article 15 was amended and Article 15 (4) was introduced. The term “socially and educationally backward class of citizens” was inserted, conferring power upon the State to make special provisions for their advancement. This term “socially and educationally backward” has been held to also provide colour the term “backward class” in the decision in Indra Sawhney – as indeed in the earlier decision in NM Thomas. This court noticed that ‘backward class’ of citizens, though wider in context, has to take colour from social backwardness, which also results in educational backwardness.
- The Statement of Objects and Reasons for the introduction of these provisions – referred to compendiously as the 102nd Amendment – do not indicate any concrete purpose for the insertion of those provisions, except the general comment that Parliament wished to confer constitutional status on the Commission for determination of SEBCs.
- The Statement of Objects and Reasons do not throw much light on why the provisions of the 102ndAmendment Act were introduced. No doubt, there are certain passages in the Select Committee Report ( the committee formed to study the bill constitutional amendment bill 123 which finally was passed as constitutional amendment act 102) suggestive of the fact that the power of identification carved out through the newly inserted Articles 338B and 342A would not in any manner disturb the powers of the State to carry on their work in relation to special provisions or reservations for backward classes (through appropriate measures, be it legislative or executive). A holistic reading of the report also suggests that the Select Committee reflected both points of view and recorded the assurances given by the Ministry that the State’s power would not be disturbed. At the same time, in conclusion, it was emphatically stated that the States’ concerns would be given due regard and that the exercise would be in line with the existing procedure under Articles 341 and 342.99 The report also contains notes of dissent, which highlight that the amendments would deprive the States of their existing power to identify and provide reservations and other special provisions for the benefit of SEBCs.
- where the provisions of the statute or its wordings are ambiguous, the first attempt should be to find meaning, through internal aids, in the statute itself. . Failing this, it is open to the court to find meaning, and resolve the ambiguity, by turning to external aids, which include the statements of objects and reasons, as well as Parliamentary reports, or debates in Parliament. To this Court, it appears that the task of interpreting the provisions of 102ndAmendment does not begin by relying on external aids such as Statement of Objects and Reasons (which throw practically no light on the meaning of the provisions), or even the Select Committee Report. The task of interpretation is first to consider the overall scheme of the provisions, and secondly, after considering the provision, proceed to resolve any perceived ambiguity, if found, by resorting to aids within the statute. It is at the third stage, when such resolution is impossible, that external aids are to be looked into.
- A seven-judge bench decision in State of Karnataka v. Union of India while outlining the court’s task of interpreting the Constitution held that
The dubiousness of expressions used may be cured by Court by making their meanings clear and definite if necessary, in the light of the broad and basic purposes set before themselves by the Constitution makers. And these meanings may, in keeping with the objectives or ends which the Constitution of every nation must serve, change with changing requirements of the times. The power of judicial interpretation, even if it includes what may be termed as “interstitial” law making, cannot extend to direct conflict with express provisions of the Constitution or to ruling them out of existence
- The Court has to interpret provisions of the Constitution, in this case, introduced through an amendment. The proper method of interpreting such an amendment was indicated by a five-judge bench in Kihoto Hollohan v. Zachillhu where it was held that:
“The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.
- The interpretation of the definition in relation to the Constitution, is truly indicative that for the purpose of the entire constitution, the meaning ascribed in the definition clause – in this case, by Article 366 (26C), has to prevail. While interpreting whether members of SCs/ STs who communities find mention in the Presidential notification in two states, could claim reservation benefits in both states, this court had occasion to consider a parimateria provision, i.e., Articles 366 (24) and (25) which defined SCs “for the purposes of this constitution”
- Three constitution bench judgment namely Bir Singh v. Delhi Jal Board, Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra &Anr v. Union of India & Anr and Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College have set the tone the manner in which determination by the President is to be interpreted, having regard to the definition clause in Article 366. the expression SCs in relation to a State for the “purpose of this Constitution”, means the member of a SC declared to be so under the Presidential Notification. The terms of such Presidential Notification insist that such a citizen ought to be a resident of that concerned State or Union Territory.
- it is only the citizens residing in a particular state who can claim the benefit of reservation – either of that State or of the Centre for the purposes of the Constitution in relation to that State. Necessarily, therefore, the resident of State A is entitled to claim reservation benefits under Articles 15(4) and 16(4) if he or she resides (the residential qualification that needs to be fulfilled is that specified by the concerned State) in that State, (i.e. A) and none else. As a sequitur, if such a person or community or caste (of state A) is also described as a Scheduled Caste in State B, for the purposes of State services or admission to State institutions, he cannot claim the benefits of reservation as a scheduled caste in such B State.
- However, Bir Singh has made it clear that for the purposes of Union employment and admissions to Union institutions the position is different because SCs living within the territory of India in relation to one State or the other, are deemed to be SCs or STs for the purposes of this Constitution in relation for the purposes of Union employment
- The interpretation of Articles 341 and 342 of the Constitution, read with Articles 366 (24) and 366 (25), have ton, be the guiding factors in interpreting Article 366 (26C), which follows a similar pattern, i.e., of defining, for the purpose of the entire constitution, with reference to the determination of those communities who are notified as SEBCs, under Article 342A (which again uses the expression “for the purpose of this constitution”). [ Art.366 defines what is Scheduled caste and what is Scheduled tribe in a a different context]
- In Ashoka Kumar Thakur v. Union of India 9 the issue which arose for consideration was the correct interpretation of Article 15(5), introduced by virtue of the Constitution (Ninety Third Amendment) Act, 2005. It enabled the state to make special provisions for the advancement of any SEBCs or for SCs or STs as far as they related to “their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30”. court held that on a true construction, special provisions for admission to such category of candidates, even in private educational institutions, was permissible.
- whenever the definition clause (Article 366) arose for consideration, the court gave full effect to the substantive amendments as well as the definition. The definition was not watered down, nor was the amendment. A harmonious construction was made.
- The select committee report on the 102nd amendment act show that there was on the one hand, an assumption that the changes ushered by the amendments would not disturb any part of states’ powers; however, a sizeable number- 8 members, after a careful reading of the terms of the amendment, dissented, saying that state power would be adversely impacted. In these circumstances, the debate which ensued at the time of passing of the Bill into the 102nd Amendment was by way of an assurance by the Minister concerned that the existing power of the states would not be affected. To the same effect, are debates on the floor of the Houses of Parliament. Given all these circumstances, it is difficult to accept the contention that the Select Committee’s Report, to the extent it holds out an assurance, should be used as a determinative external aid for interpretation of the actual terms of the 102nd Amendment. Likewise, debates and statements cannot be conclusive about the terms of the changes brought about by an amendment to the Constitution. The duty of the court always is to first interpret the text, and only if there is ambiguity in the meaning, to resort first to internal aids, before seeking external aids outside the text.
- The interpretation by Ashok Bhushan, J., that the power of the states, which existed till the 102nd Amendment was made, continues unimpeded, is not borne out. Such an interpretation amounts to saying that Parliament went to great lengths by defining, for the first time, the term SEBC in the Constitution, and provided for one notification under Article 342Aissued by the President, which would “specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory”, and then, restricted the width of the term “deemed for purposes of this Constitution” by giving primacy to the term “Central List”. Such an interpretation restricts the specification of a community as backward, in relation to that State or Union territory, only for purposes of the Central List, i.e., for purposes of central government employment and Central Institutions. Such an interpretation with respect, is strained; it deprives plain and grammatical meaning to the provisions introduced by the 102nd Amendment, has the effect of tying the hands of the Central Government, and at the same time, grants the states unlimited latitude in the manner of inclusion of any class of citizens as backward.
- “the Central List” in Article 342A (2) is none other than the list published in Article 342A (1) for the purposes of the Constitution. This means that after the introduction of these provisions, the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament.
- This sequitur is the only reason why change was envisioned in the first placeby Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as exists, in relation to the most backward classes among all citizens, (i.e. the SCs and STs, through Articles 338, 338A, 341 and 342). Too much cannot be read into the use of the expression the Central list for the simple reason that it is a list, prepared and published by the President, on the aid and advice of the Union Council of Ministers.
- t Article 367 of the Constitution of India incorporates, by reference, the definitions set out in the General Clauses Act, 1897, as those operating in relation to expressions not defined expressly in the Constitution itself. By Section 3 (8) (b) of that Act, “Central Government” means, after commencement of the Constitution, the President of India. Article 342A (1) does not use the expression “Central Government”. Nevertheless, Article 342A (2) uses the expression “Central List” which has led to an elaborate interpretive discourse. If the logic of Article 367 (1) of the Constitution, together with Section 3 (8) (b) of the General Clauses Act, were to be applied, “Central List” necessarily refers to the list under Article 342A (1), which is prepared by the President, for the purpose of the Constitution. The other interpretation, with respect, would be unduly narrow and restrictive; it would have the effect of adding words such as to the effect that the Central List, would “apply in relation to the Central Government”. Such an addition of terms, with respect, cannot be resorted to, when interpreting a Constitutional amendment,
- The amended provisions clearly state that the determination is for the purpose of the Constitution and that SEBCs (per Article 366 (26C) are deemed to be as determined in Article 342A; Article 342A states that the President shall by notification publish SEBCs in relation to states and union territories, for the purpose of the Constitution.
- Parliament, through the 102nd Amendment clearly intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs under Articles 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs. To achieve that, Parliament inserted Article 338B – which is a mirror image of Articles 338 and 338A. The tasks assigned to the new Commission for Backward Classes which is envisioned as a multi-member Commission, are radically different from the duties which were assigned by Parliament in the NCBC Act. Under Section 9 of the erstwhile NCBC Act, which was repealed just before the commencement of the 102nd amendment, the NCBC was to examine requests for inclusion of any class of citizens as backward classes in the list and the advice of the Commission was ordinarily binding upon the Central Government
- If one interprets the entire scheme involving Articles 366(26C), 342A (1) and 342A (2), the irresistible conclusion that follows is that the power of publishing the list of SEBCs, in relation to every State and Union Territory for the purposes of the Constitution is with the President only. Such notification is later called as the Central List by Article 342A (2); it can only be amended by the Parliament. The contrary interpretation virtually reads into the provisions of the Constitution amendments which were proposed and expressly rejected in the proceedings of the Select Committee; it also has the effect of reading in what certain dissenting members had proposed. Furthermore, by the interpretive process of taking into account the deliberations before the Select Committee, and speeches on the floor of the Parliament this Court would be reading into the Constitution provisions which no longer exist i.e., that the State can continue to carry out identification of SEBCs. This exercise would be contrary to the express terms.
- An offshoot of the 102ndAmendment possibly would be that dominant groups or communities, once included, as SEBCs by states would, due to their relative “forward” status, likely take a disproportionate share of state benefits of reservation in employment and admission benefits to state institutions. Their inclusion can well result in shrinkage of the real share of reservation benefits for the most backward. This consequence can be avoided, if a commission or body, such as the one under Article 338B evolves and applies rational and relevant criteria
- The existence of a permanent body, which would objectively, without being pressurized by the dust and din of electoral politics, consider the claims for inclusion, not based on ad-hoc criteria, but upon uniformly evolved criteria, with the aid of experts, in a scientific manner, be in consonance with the constitutional objectives of providing benefits to SEBCs, having regard to relative regional and intra state levels of progress and development. Given all these factors, this Court is of the opinion that the 102ndAmendment, by inserting 366(26C), 342A, 338B and 342A aligned the mechanism for identification of SEBCs with the existing mechanism for identification of SCs/STs
- if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution and denudes the states of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, court is of the opinion that the power of identification of SEBCs hitherto exercised by the states and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of proviso to Article 368 (2) of the Constitution of India.
- Conclusion –
- Indra Sawhney (supra) does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society, for the reasons set out by Ashok Bhushan, J
- The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case. (agreed with Ashok Bhusan)
- The State Government, on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Indra Sawhney (agreed with Bhushan)
- Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? And
- Whether States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India. (did not agree with Bhusan)
- By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution
- The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1)
- The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2).
- In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e., the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).
- The states’ power to make reservations, in favor of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed
- The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution
- Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India
- Article 342A of the Constitution by denuding State’s power to legislate or classify in respect of “any backward class of citizens” does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India. (Did not agree with Bhushan)
5 judges agree to 1, 2, 3
3 judges disagree to 4 and 5
3 judges agree to 1, 2 and 6
So majority opinion is w,r,t. issue 1, 2 , 3, and 6
Issue 4 and 5 what Ashok Bhushan says is not the ratio.
For point 6 –
Ashok bhushan and Najir has different reason
Bhat has different opinion
Rao and Gupta have different reasons to deny it
Seervai will say point 6 is also not the ratio