TMI Blog2021 (5) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2014 as well as Act, 2014 were dismissed as having become infructuous. Few writ petitions were also allowed and few detagged and other writ petitions have been disposed of. HELD THAT:- Following conclusions have been reached:- 1. Indra Sawhney [ 1992 (11) TMI 277 - SUPREME COURT ] 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. 2. The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney's case. 3. 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 except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Article 367 read with Section 3(8)(b) General Clauses Act). (v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16-except with respect to identification of SEBCs, remains undisturbed. (vi) The Commission set up Under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution. (vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued Under Article 142 of the Constitution of India. 5. Article 342A of the Constitution by denuding States power to legislate or classify in respect of any backward class of citizens does not affect or damage the federal polity and does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Manu T. Ramachandran, Sameer Abhyankar, AORs, Amit Kumar, Sr. Adv., Avijit Mani Tripathi, AOR, Shaurya Sahay, Aditya Shankar Pandey, T.K. Nayak, Advs., S. Niranjan Reddy, Sr. Adv., Mahfooz Ahsan Nazki, AOR, Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shreya Sharma, Advs., Manish Singhvi, Sr. Adv., D.K. Devesh, AOR, Ravindra Lokhande, AAG, Abhimanyu Tewari, AOR, Eliza Bar, Adv., K.N. Balgopal, Sr. Adv.-AG, K. Enatoli Sema, AOR, Amit Kumar Singh, Nitya Nambiar, Visto Rio, Advs., Shuvodeep Roy, AOR, Arun Bhardwaj, Sr. Adv., Monika Gusain, M. Yogesh Kanna, AORs, Raja Rajeshwaran S., Suhaan Mukerji, Vishal Prasad, Nikhil Parikshit, Abhishek Manchanda, Sayandeep Pahari, Advs., Plr Chambers Co., S.C. Verma, Adv. General, Prachi Mishra, Adv., Sumeer Sodhi, AOR, Manoj Kumar Singh, Hussain Ali, Chaitanya Bansal, Kartik Pant, Advs., Abhinav Mukerji, AAG, Bihu Sharma, Pratishtha Vij, K.V. Jagdishvaran, Advs., G. Indira, Taruna Ardhendumauli Prasad, AORs, Parth Awasthi, Sudhanshu S. Choudhari, Mahesh P. Shinde, Rucha A. Pande, Anil Golegaonkar, Rajesh Tekale, Ashish Gaikwad, Madhur Golegaonkar, Bhavana Khichi, Bhagwan Gavali, Vatsalya Vigya, Advs., Abhish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions of seminal importance relating to contours and extent of special provisions for the advancement of socially and educationally backward class (SEBC) of citizens as contemplated Under Article 15(4) and contours and extent of provisions of reservation in favour of the backward class citizens Under Article 16(4) of the Constitution of India. The challenge/interpretation of the Constitution (102nd Amendment) Act, 2018 is also up for consideration. 2. All the above appeals have been filed challenging the common judgment of the High Court dated 27.06.2019 by which judgment several batches of writ petitions have been decided by the High Court. Different writ petitions were filed before the High Court between the years 2014 to 2019, apart from other challenges following were under challenge: The Ordinance No. XIII of 2014 dated 09.07.2014 providing 16% reservation to Maratha. The Ordinance No. XIV of 2014 dated 09.07.2014 providing for 5% reservation to 52 Muslim Communities. The Maharashtra State Reservation (of seats for appointment in educational institutions in the State and for appointment or posts for public services under the State) for educationally and socially backwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter shall be placed before the Chief Justice for the suitable orders. Referring order although mention that the interpretation of Constitution (One Hundred and Second Amendment) Act, 2018 is substantial question of law as to the interpretation of the Constitution but the reference was not confined to the above question. The learned Counsel for the parties have made elaborate submissions in all the appeals as well as the writ petitions filed Under Article 32. Elaborate submissions were addressed on the impugned judgment of the High Court. We thus have proceeded to hear the parties and decide all the appeals and writ petitions finally. 7. After appeals being referred to a larger Bench by order dated 09.09.2020, Hon'ble the Chief Justice of India has constituted this Constitution Bench before whom these appeals and writ petitions are listed. This Constitution Bench after hearing learned Counsel for the parties passed an order on 08.03.2021 issuing notice to all the States. The Bench by order further directed the States to file brief notes of their submissions. 8. The hearing commenced on 15.03.2021 and concluded on 26.03.2021. At this stage, we may indicate the headings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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? 4. Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 5. Whether, States power to legislate in relation to any backward class Under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? 6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of any backward class of citizens and thereby affects the federal policy/structure of the Constitution of India? (2) Background Facts. 10. We need to first notice certain background facts relevant for the present case and details of various writ petitions filed in the High Court. The Maratha is a Hindu community which mainly resides in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu classes as 8.40 per cent and total approximate backward class of Hindu including non-Hindu castes was estimated as 52%. At page 56 of volume of report under heading percentage of the castes and religious groups Under Sub-heading forward Hindu castes and communities following table given: III. Forward Hindu Castes Communities S.NO. Group Name Percentage of total population C-1 Brahmins (including Bhumihars 5.52 C-2 Rajputs 3.90 C-3 Marathas 2.21 C-4 Jats 1.00 C-5 Vaishyas-Bania, etc. 1.88 C-6 Kayasthas 1.07 C-7 Other forward Hindu castes/groups 2.00 Total of C 17.58 12. The Maratha, thus, was included in forward Hindu c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment. The opposite opinion in relation to this has been separately recorded and it has been attached herewith. 16. The Maharashtra State Other Backward Classes Commission on 03.06.2013 rejected the request of the State Government to review the findings recorded by the State OBC Commission in its report dated 25.07.2008 holding the Maratha caste as forward community. Despite the existence of statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane to submit a report on the Maratha Caste. On 26.02.2014 Rane Committee submitted its report to the State and recommended that for the Maratha special reservation Under Article 15(4) and 16(4) of the Constitution of India be provided. On 09.07.2014 Maharashtra Ordinance No. XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha caste. Writ Petition No. 2053 of 2014 (Shri Sanjeet Shukla v. State of Maharashtra) along with other writ petitions were filed where two separate Ordinances promulgated on 09.07.2014 providing for reservation for seats for admissions in aided and non-aided institutions of the State and appointment to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Article 338, Sub-clause (10) was also amended. On 15.11.2018, the State Backward Classes Commission submitted its report on social and educational and economic status of Maratha. The Commission recommended for declaring Maratha caste of citizens as social and economic backward class of citizens with inadequate representation in services. The Commission also opined that looking to the exceptional circumstances and extraordinary situations on declaring Maratha class as SEBC and their consequential entitlement to the reservation benefits, the Government may take decision within the constitutional provisions. The Government after receipt of the above report enacted Act, 2018 which was published on 30.11.2018 and came into force from that day. PIL No. 175 of 2018 (Dr. Jaishri Laxmanrao Patil v. The Chief Minister and Ors.) and other writ petitions and PILs were filed challenging the Act, 2018. The High Court in the impugned judgment has noticed the pleadings in three writ petitions being PIL No. 175 of 2018 giving rise to C.A. No. 3123 of 2020, W.P.(LD.) No. 4100 of 2018 (Sanjeet Shukla v. The State of Maharashtra) giving rise to C.A. No. 3124 of 2020 and PIL No. 4128 of 2018 (Dr. Ud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference of earlier National Backward Class Commission and State Backward Class Commission was made wherein the claim of Maratha to be included in OBC was rejected. The comments have also been made on the aggressive tactics adopted by the Maratha community by agitation, dharna for the grant of reservation to them. It was also pleaded that Act, 2018 is passed without complying with the requirement of Constitution (102nd Amendment) Act, 2018. In the writ petition following prayers have been made: (a) Issue a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction of that nature thereby quashing and striking down Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018, as being invalid and violative of the provisions of the Constitution of India; (b) During pendency of the petition, this Hon'ble Court be pleased to say to the operation, implementation and effect of the Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal aspirants who are adversely affected by the Act, 2018. 24. The writ Petitioners seek quashing of Act, 2018 and in the alternative quashing and setting aside Sections 2(j), 3(2), 3(4), 4, 5, 9(2),10 and 12 of the Act, 2018. The Petitioner pleads that reservation system has become a tool of convenience for the Government and politicians in power for their vote bank. It is further pleaded that Maratha was never treated as backward class community and earlier their claim was rejected. It was further pleaded that the impugned enactment seriously prejudices the chances of open candidates in all fields of education as well as in service. It was further pleaded that Gaikwad Commission's report is not based on fiscal data. There was inadequacy of data base. A community which was found not to be backward for last 50 years is now declared as backward class without any change of circumstances. The writ Petitioner, pleads that enactment shall have an adverse effect which shall divide the society by caste basis on communal line. The impugned enactment is claimed to be violative of the basic structure and fundamental value of the Constitution capitulated in Article 14, 16 and 19 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature providing for 5% reservation to 52 Muslim communities in Maharashtra. 32. C.A. No. 3128 of 2020 arising out of Writ Petition (C) No. 4269 of 2018(Vishnuji P. Mishra v. The State of Maharashtra) wherein similar reliefs have been claimed as in PIL No. 175 of 2018. 33. Writ Petition (C) No. 938 of 2018 has been filed Under Article 32 of the Constitution of India challenging the validity of Constitution (102nd Amendment) Act, 2018. Writ Petition notices that issue regarding Constitution (102nd Amendment) Act, 2018 is pending in SLP(C) No. 15737 of 2019(C.A. No. 3123 of 2020). The writ Petitioner also claimed to have filed an I.A. No. 66438 of 2020 for impleadment in SLP(C) No. 15737 of 2019. The Petitioner's submission is that if the effect of Constitution (102nd Amendment) Act, 2019 is to take away power of State Legislature with respect to identification of OBC/SEBC, it is obvious that Constitution (102nd Amendment) Act, 2018 has taken away the legislative powers of State Legislature with respect to some areas of law making power. The Petitioner, further, submits that the procedure prescribed by the proviso to Clause (2) of Article 368 of the Constitution of India h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion bench in Indra Sawhney in form of constitutional principle do not permit reservation in excess of 50%. (IV) Whether the State has been able to establish the social and educational backwardness and inadequacy of representation of the Maratha community in public employment on the basis of the report of MSBCC under the Chairmanship of Justice Gaikwad on the basis of quantifiable and contemporaneous data? (V) Scope of Judicial Review for interference in the findings, conclusions and recommendation of the MSBCC. (VI) Whether the reservation carved out for Maratha community by the State Government in form of impugned legislation satisfies the parameters of reasonable classification Under Article 14 of the Constitution? (VII) Whether the ceiling of 50% laid down by the Hon'ble Apex Court in case of Indra Sawhney v. Union of India, is to be taken as a constitutional principle and deviation thereof violates the basic tenet of equality enshrined in the Constitution? (VIII) Whether the State is able to justify existence of exceptional circumstances or extra-ordinary situation to exceed the permissible limit of 50% within the scope of guiding principles laid down in Indr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal circumstances and extraordinary situations justifying crossing of the limit of 50% reservation as set out in Indra Sawhney's case. [6] We hold and declare that the State Government in exercise of its enabling power Under Articles 15(4)(5) and 16(4) of the Constitution of India is justified, in the backdrop of report of MSBCC, in making provision for separate reservation to Maratha community. We, however, hold that the quantum of reservation set out by the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) SEBC Act, 2018, in Section 4(1)(a) and 4(1)(b) as 16% is not justifiable and resultantly we quash and set aside the quantum of reservation under the said provisions over and above 12% and 13% respectively as recommended by the Commission. In view of the conclusions, the High Court passed following order in the batch of writ petitions: :ORDER: [A] In the light of summary of conclusions above, we dispose of the following writ petitions/PILs by upholding the Impugned Act of 2018 except to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel, Shri Shyam Divan, learned Senior Counsel, Shri Gopal Sankaranarayanan, learned Senior Counsel, Shri Pradeep Sancheti, learned Senior Counsel, Dr. Rajiv Dhawan, learned Senior Counsel, Shri Sidharth Bhatnagar, learned Senior Counsel, Shri B.H. Marlapalle, learned Senior Counsel, Shri R.K. Deshpande, learned Counsel, Dr. Gunratan Sadavarte, learned Senior Counsel, Shri Amit Anand Tiwari, learned Counsel and Shri S.B. Talekar, learned Counsel for the Appellants. Shri Amol B. Karande, learned Counsel, has been heard in support of Writ Petition No. 938 of 2020. 39. We have heard Shri K.K. Venugopal, learned Attorney General for India and Shri Tushar Mehta, learned Solicitor General. Shri Mukul Rohatgi, learned Senior Counsel, has appeared for the State of Maharashtra and Chhattisgarh. Shri Shekhar Naphade, learned Senior Counsel, and Shri P.S. Patwalia, learned Senior Counsel, have also appeared for the State of Maharashtra. Shri Kapil Sibal, learned Senior Counsel, has appeared for the State of Jharkhand. Dr. Abhishek Manu Singhvi, learned Senior Counsel, has also appeared for the Respondent No. 3 in C.A. No. 3123 of 2020. 40. We have also heard several learned Counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel including submissions of Attorney General for India in seriatim. (4) Submissions of the parties. 44. Shri Arvind Datar, learned Senior Counsel, led the arguments on behalf of the Appellant. Shri Datar submits that there is no need to refer the judgment of Constitution Bench of this Court in Indra Sawhney to an Eleven-Judge Bench. Reference to larger Bench can be made only for compelling reasons. No judgment of this Court has doubted the correctness of nine-Judge Constitution Bench of this Court in Indra Sawhney's case. On the other hand 50% limit for reservation has been reiterated at least by four Constitution Bench judgments of this Court rendered after judgment in Indra Sawhney's case. All the High Courts have uniformly accepted the limit of 50% reservation. In some States where for political reasons 50% limit had been breached, it was struck down repeatedly. The limit of 50% reservation laid down by the Constitution Bench of this Court in Indra Sawhney is now an integral part of the trinity of Article 14, 15 and 16 of the Constitution. Any legislative or executive legislations against it are void and have to be struck down. Shri Datar has specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted claim of Maratha to be included in backward class. The opinion of National Commission for Backward Classes cannot be disregarded by the State and in the event it had any grievance remedy of review was provided. 47. The Maratha community has been found to be socially advanced and prestigious caste. It is submitted that limit of 50% is essential right on part of equality which is part of basic structure. Even members of Scheduled Tribes and Other Backward Classes who qualify on merit can continue to enjoy the benefit of merit quota. The limit of 50% as laid down in Indra Sawhney, only a Parliamentary amendment is contemplated. Whenever Parliament wanted to get over 50% ceiling limit laid down by Indra Sawhney, the constitutional Amendments were brought, namely, Constitution 77th Amendment and Constitution 81st Amendment. 48. Shri Datar has referred to various paragraphs of judgment of this Court in Indra Sawhney. In support of his submission that majority has laid down upper ceiling of 50% for providing reservation Under Article 16(4) and 15(4), Shri Datar submits that the judgment of Indra Sawhney cannot be confined only to Article 16(4) but the law was laid down taking in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Maharashtra. 52. Law laid down by Constitution Bench in Indra Sawhney's case that reservation Under Article 15(4) and 16(4) should not exceed the upper limit of 50 percent has been followed and reiterated by several judgments of this Court including Constitution Bench judgments. The Gaikwad Commission report and the reason given by the report does not make out any case for exception regarding Maratha Community to fall in extraordinary circumstances as contemplated in paragraph 810 of the judgment in Indra Sawhney's case. 53. Shri Gopal Sankaranarayanan, learned Senior Counsel has made his submission on the Constitution (One Hundred and Second Amendment), 2018. Shri Narayanan submits that after the Constitution (One Hundred and Second Amendment), 2018, the State legislature could not have passed the 2018 Act. Article 338B and 342A brought by the Constitution (One Hundred and Second Amendment), mark see change in the entire regime regarding identification of backward classes. The power of the National Commission of Backward Classes as per Article 338B Sub-clause (5) includes power to make reports and recommendations on measures that should be taken by the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has confined his submissions to the Gaikwad Commission Report. He submits that due difference to the opinion of the Commission does not mean that opinion formed is beyond the judicial scrutiny. He submits that backwardness has to be based on objective factors where inadequacy has to factually exist. The Court while exercising power of Judicial Review has to consider the substance of the matter and not its form, the appearance or the cloak, or the veil of the executive action is to be carefully scrutinized and if it appears that Constitutional power has been transgressed, the impugned action has to be struck down. 57. Shri Sancheti submitted that three National Backward Class Commissions and three State Backward Class Commissions did not include Maratha Community as backward community which findings and reasons could not have been given a goby by Gaikwad Commission constituted in the year 2017. The Gaikwad Commission (hereinafter referred to as Commission), survey, data results, analysis suffers from various inherent flaws. The sample survey conducted by the Commission is skewed, unscientific and cannot be taken as a representative sample. Sample size is very small. Out of 43,62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commission's report is only paperwork which could not be accepted by the Court, while the Act, 2018, purports to create reservation for socially and economically Backward Classes but in effect the enactment is reservation for only Maratha which enactment is not sustainable. 61. Shri Sancheti submits that from the various data regarding representation in jobs of Maratha community itself make it clear that Maratha community is adequately represented in Public Services and there is no Constitutional requirement for providing reservation Under Article 16(4). Shri Sancheti submits that the Commission has given undue importance to the suicide by the Maratha farmers. He submits that from the data given in the report, the proportion of suicide of Maratha comes to 23.56 percent which is even less from the proportion of 30 percent as claimed by the Commission. The High Court by wrong appreciation of facts concludes that those who committed suicide, 80.28 percent were Marathas. There is no basis to attribute farmer suicide to Maratha Backwardness. Shri Sancheti submits that undue weightage has been given to the percentage of Maratha in 'Dubbeywala class' which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Services and leaving the identification and implementation power of the States intact. Dr. Dhavan, however, submits that Maharashtra legislature had the competence to enact the 2018 Act, even though the Constitution (One Hundred and Second Amendment) had come by that time. He, however, submits that any legislation which is enacted will still be subject to Indra Sawhney and Nagraj principles. 66. Dr. Dhavan submits that various reports of Maharashtra in fact found that it is not necessary to include Maratha despite their persistent efforts. He submits that the test to be applied is what has happened since the last report negating inclusion of Maratha that now requires a change to include them . He submits that the logic of the principle is that if the Marathas were not backward for over Seventy years, how they have suddenly become backward now. Dr. Dhavan reiterates his submission that there is no judgment which has questioned Indra Sawhney's case. He submits that reservation under political pressure, social pressure need not to be taken. A political obligation to the electorate is not a constitutional obligation. He further submits that object of Article 16(4) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as a backward class. There has been no change in the circumstances to include Maratha Community in the list of Backward Classes. With respect to 102nd Constitutional Amendment, shri Tiwari submits that now States are not empowered to notify a class of persons as socially and educationally backward for the purposes of the Constitution. However, State's power to confer benefits on an already identified class of persons as SEBC as identified Under Article 342A remains intact. The High Court committed an error in holding that States still have power to identify class as SEBC. The High Court erred in not appreciating the import of Article 366(26C). 71. We may also notice the submission of writ Petitioner in W.P.(civil) No. 938 of 2020, challenging the 102nd Constitutional Amendment Act, 2018. 72. Shri Amol B. Karande, learned Counsel for the Petitioner submits that in event Article 342A read with Article 366(26C) of the Constitution of India takes away the power of the State to identify a backward class, the said Constitutional Amendment shall be violative of basic feature of the Constitution, i.e. Federalism. 73. He further submits that by the Constitutional Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central list. Learned Attorney General has also referred to Maharashtra Act No. 34 of 2006, especially Section 2(c), 2(E) and Section 9(1) which refers to State List. He submits that Article 342A was to cover the Central list alone, the 1993 Act, having been repealed on 14.08.2018. The Attorney General has also referred to Select Committee Report dated 17.07.2017, paragraph 12, 18, 19 and 55 and submits that Select Committee Report indicate that the intention of Constitutional Amendment was not to take away the State's power to identify the Backward Class, the Select Committee Report clearly indicate that State's Commission shall continue to perform their duties. 78. Learned Attorney General submits that Central List as contemplated Under Article 342A(2) relates to employment under the Union Government, Public Sector Corporation, Central institutions in States where Central list was to be utilized. He submits that State Government identification of Backward Class/Socially and Educationally Backward Classes is not touched by Article 342A. 79. Referring to Scheduled Castes and Scheduled Tribes learned Attorney General submits that the power was given to the President u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the lists under Schedule VII; hence, there is no requirement of ratification by the States. 83. Shri Mukul Rohtagi, learned Senior Counsel, appearing for the State of Maharashtra has led the arguments. Shri Rohtagi has articulated his submissions in a very effective manner. Shri Rohtagi states that his submission shall be principally confined to question No. 1. 84. Shri Rohtagi submits that there are several reasons which require that the Constitution Bench judgment in Indra Sawhney be revisited, necessitating reference to the larger Bench of Eleven Judges. Shri Rohtagi during course of submission has handed over a chart giving history of judgments on reservation. The chart makes reference of the relevant paragraphs of judgments of this Court in M.R. Balaji v. State of Mysore (Supra), T. Devadasan v. Union of India and Anr. AIR (1964) SC 179, State of Punjab v. Hiralal and Ors. (1970) 3 SCC 567; State of Kerala and Ors. v. N.M. Thomas and Ors. (1976) 2 SCC 310; Akhil Bharatiya Soshit Karamchari Sangh, (Railway) v. Union of India and Ors. (1981) 1 SCC 246; K.C. Vasant Kumar and Anr. v. State of Karnataka, (1985) supp. (1) SCC 714; T.M.A. Pai Foundation and Ors. v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) nor Article 15(4) contains any percentage. The Court cannot read a percentage i.e. 50 percent for effecting reservation Under Article 15(4) and Article 16(4), providing a ceiling by number is cutting down the Constitutional provisions of Part-III and Part-IV. Indra Sawhney's judgment has restricted the sweep of Article 15 and Article 16 of the Constitution. The Constitutional provisions cannot be read down which principle is applicable only with regard to statutes. v) Judgment of Indra Sawhney is a judgment on Article 16(4) and not on Article 15(4), hence, the ratio of judgment cannot be applied with regard to Article 15(4). He submits that Indra Sawhney itself states that Article 15(4) and Article 16(4) are distinct and different provisions. vi) The judgment of Indra Sawhney does not consider the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46, While interpreting Article 14, 16(1) and 16(4). vii) The 50 percentage ceiling limit was followed by Constitution Bench of this Court in St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, by upholding the procedure for admission of students in aided minority educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter into assessment of evidence to come to a different conclusion. He submits that the Gaikwad Commission report is a unanimous report. After the receipt of the report, the Act, 2018 was passed unanimously by the Legislative Assembly. The subjective satisfaction of the State Government to declare a community as socially and educationally backward is not to be easily interfered by the Courts in exercise of Judicial Review Jurisdiction. 88. On the basis of the Commission's report, the State Government arrived at the satisfaction that Maratha are socially and educationally backward class which satisfaction need not be tested in Judicial Review Jurisdiction. Formation of the opinion by the State is purely a subjective process. This Court has laid down in several judgments that the Commission's report needs to be treated with deference. The High Court in the impugned judgment has elaborately considered the Gaikwad Commission's report and the other material including the reservation which was granted to Other Backward Community in the year 1902 by Sahuji Maharaj. He submits that the High Court had considered the effect of reports given by the earlier Commissions in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laji. It is submitted that Balaji has not considered the effect of the non obstante Clause contained in Article 15(4). Shri Naphade has also dealt with the judgments of this Court in T. Devadasan (Supra), N.M. Thomas (Supra) and Indra Sawhney. 93. Shri Naphade elaborating his submissions on Article 342A submits that the State has legislative competence to prescribe reservation to backward class. He has referred to Entry 25 of List-III and Entry 41 of List-II. He submits that a careful perusal of Article 342A indicates that the scheme of this Article is substantially different from Article 341 and 342. The difference in the language of Clause (2) of Article 342A as compared to Clause (2) of Article of 341 and 342 makes all the difference. The view canvas by Petitioners that 102nd Constitutional Amendment takes away the legislative competence and legislative power of the States runs counter to the basic structure of the Constitution and the scheme of distribution of power between the State and Centre. It is settled principle of interpretation that by construing any provision of Act of Parliament or Constitution, the legislative history of the relevant subject is necessary to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to be decided by a larger Bench. These issues having never been addressed before this Court in Indra Sawhney's case, the matter needs to be referred to a larger Bench. 96. The Constitution of India is a living, transformative document. The Court cannot shackle the legislature. Shri Sibal submits that 50 percent limit for reservation prescribed in Indra Sawhney is no longer a good law after 103rd Constitutional Amendment which inserted Article 15(6) and Article 16(6) into the Constitution. Several States have already provided for reservation beyond 50 percent to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward class. In the above circumstances, it is necessary that these matters may be referred to a larger Bench for fresh adjudication. 97. Shri Sibal on Article 342A submits that Under Articles 15(4) and 16(4) the Union and the States have co-equal powers to advance the interest of socially and educationally backward classes. Any exercise of power by the Union cannot encroach upon the power of the State to identify and empower the socially and educationally backward classes and determine the extent of reservation required. The expression, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. v. Union of India and Ors. (2018) 7 SCC 1. He has also referred to the Statements of objects of 123rd Bill which notices that there were State lists prior to Indra Sawhney. The Central list was confined to Central Institutions and Central Government posts. Shri Singhvi has also referred to 1993 Act and submits that in the said Act Section 2(c) referred to a list which was only a Central list. Article 342A(2) uses the same Central list and interpretation of Article 342A(2) has to be made taking the same meaning of Central list as was known and understood under the regime prior to 102nd Constitutional Amendment Act. This Court shall not annotate the State's power under some interpretive exercise. Dr. Singhvi further submits that today there is no Central list Under Article 342A, there being no occupied field, it its premature and academic. 102. Shri C.U. Singh, learned senior Advocate, appearing for Respondents has referred to Gaikwad Commission's report in detail. He has referred to data collected and reflected in the report and submit that the Commission on the basis of quantifiable data has determined Maratha as socially and educationally backward community. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, there has been upliftment. The reservation is affecting the merit as well as the society. 107. We have heard learned Counsel for the parties and perused the records. 108. All the relevant materials which were before the High Court have been compiled in different volumes and filed for convenience. Learned Counsel for the parties during submissions have referred various materials including necessary relevant enactments and reports. From various volumes a master index containing all details of volumes has also been prepared and submitted. Before we enter into submissions of the learned Counsel for the parties on six questions framed by us and the impugned judgment of the High Court including points for consideration noted in the judgment of the High Court, we need to first look into the statutory provisions pertaining to reservation in force at the time when Act, 2018 was enacted. (6) The status of Reservation at the time of commencement of Enactment of Act, 2018 109. The State of Maharashtra has issued a unified list of OBC consisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgment of this Court in Indra Sawhney case, the Central List of OBC was issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to be reserved (1) Scheduled Castes . . 13 per cent. (2) Scheduled Tribes . . 7 per cent. (3) De-notified Tribes (A) . . 3 per cent. (4) Nomadic Tribes (B) . . 2.5 per cent. (5) Nomadic Tribes (C) . . 3.5 per cent. (6) Nomadic Tribes (D) . . 2 per cent. (7) Special Backward Category . . 2 per cent. (8) Other Backward Classes . . 19 per cent. Total . . 52 per cent. 111. The Maharashtra State Commission for Backward Classes Act, 2005 was enacted by the State Legislature providing for constitution of State level Commission for Backward Classes other than the Scheduled Castes and Scheduled Tribes and to provide for matters connected therewith or incidental thereto. Section 2(e) defined the Lists in following words: Section 2(e) Lists means the Lists prepared by the State Government, from time to time, for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake of each Professional Course shall be reserved for candidates belonging to the Reserved Category. (2) The seats reserved for candidates belonging to the Reserved Category Under Sub-section (1) shall be filled in by admitting candidates belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes, respectively, in the proportion specified in the Table below: Description of Caste/Tribe/Category/ Class of Reserved Category Percentage of reservation (1) Scheduled Castes and Scheduled Castes converts to Buddhism 13% (2) Scheduled Tribes 7% (3) De-notified Tribes(A) 3% (4) Nomadic Tribes(B) 2.5% (5) Nomadic Tribes(C) 3.5% (6) Nomadic Tribes(D) 2% (7) Other Backward Classes 19% Total 50% 114. As noted above, at the time of enactments of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: 2(1)(j) Socially and Educationally Backward Classes of Citizens (SEBC) includes the Maratha Community declared to be Educationally and Socially Backward Category (ESBC) in pursuance of the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014. 116. Section 3 provides for applicability to all the direct recruitments, appointments made in public services and posts in the State which is as follows: 3. (1) This Act shall apply to all the direct recruitments, appointments made in public services and posts in the State except,-- (a) the super specialized posts in Medical, Technical and Educational field; (b) the posts to be filled by transfer or deputation; (c) the temporary appointments of less than forty-five days duration; and (d) the post which is single (isolated) in any cadre or grade. (2) This Act shall also apply, for admission in educational institutions including private educational institutions, whether aided or un-aided by the State, other than the minority educationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose persons who are below Creamy Layer. Explanation.--For the purposes of this Sub-section, the expression Creamy Layer means the person falling in the category of Creamy Layer as declared by the Government in the Social Justice and Special Assistance Department, by general or special orders issued in this behalf, from time to time. 118. We have already noticed that in the writ petitions filed before the High Court, Act, 2018 was challenged being invalid and violative of the provisions of the Constitution of India. (7) Consideration of 10 Grounds urged for revisiting and referring the judgment of Indra Sawhney to a larger Bench. 119. Shri Mukul Rohtagi as well as Shri Kapil Sibal, learned Senior Counsel have submitted that judgment of Indra Sawhney needs to be revisited and refer to a larger Bench of eleven Judges. 120. We shall proceed to consider the grounds given by Shri Mukul Rohtagi in seriatim which shall also cover the grounds raised by Shri Sibal. 121. First ground of Shri Rohatgi is that it is only three Judges, Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai who held that 50% reservation cannot be breached whereas other six Judges ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict Rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. 124. Justice S. Ratnavel Pandian while delivering a separate judgment has expressed his disagreement with the proposition of fixing the reservation for socially and educationally backward classes at 50% as a maximum limit. In paragraph 243(9) following was laid down by Justice Pandian: 243(9) No maximum ceiling of reservation can be fixed Under Article 16(4) of the Constitution for reservation of appointments or posts in favour of any backward class of citizens in the services under the State . The decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable. 125. Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai took the view that reservation in all cases should remain below 50% of total number of seats. Paragraph 323(8) of Justice Thommen's opinion is as follows: 323(8) Reservation in all cases must be confined to a minority of available posts or seats s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that ordinarily, the reservations Under Article 16(1) and 16(4) should not exceed 50% and it is only in extra-ordinary circumstances that this percentage may be exceeded which is also the opinion expressed by Justice B.P. Jeevan Reddy. Applying the principle of Constitution Bench of this Court in Rajnarain Singh (supra), the opinion embodies the greatest common measure of agreement between the opinions expressed. Thus, the majority opinion, the ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy. The submission of Shri Mukul Rohtagi cannot be accepted that majority opinion of Indra Sawhney is that 50% can be breached. The majority opinion as noted above is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810. 130. Alternatively if we again look to the opinion in all six judgments, we notice: (a) Justice B.P. Jeevan Reddy (for himself and three other Judges) held in paragraph 809 that the reservation contemplated in Clause (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly a difficult matter, but if under the guise of making a special provision, State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the present prevailing circumstances in each case. 136. The Constitution Bench also after noticing the judgment of this Court in General Manager, Southern Railway, Personnel Officer(Reservation), Southern Railway v. Rangachari AIR 1962 SC 36, observed that what is true in regard to Article 15(4) is equally true in Article 16(4). Following observations were made in paragraph 37: 37. ....Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation Under Article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leness. No opinion of his own was expressed by Justice Beg. Justice Fazal Ali also in his judgment had noted 50% ceiling of reservation but observed that the above is only Rule of caution and does not exhaust all categories. In paragraph 191 Justice Fazal Ali considered the question and following was laid down: 191. This means that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast Rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the two previous years, we would have a total of 45 reserved vacancies out of 50, that is, a percentage of 90. In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to about 64.4% of reservation. Such being the result of the operation of the carry forward Rule we must, on the basis of the decision in Balaji case [AIR 1963 SC 649] hold that the Rule is bad. Indeed, even in General Manager Southern Railway v. Rangachari [(1962) 2 SCR 586] which is a case in which reservation of vacancies to be filled by promotion was upheld by this Court, Gajendragadkar, J., who delivered the majority judgment observed: It is also true that the reservation which can be made Under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers Under Article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant General Secretary on behalf of the Association v. Union of India and Ors. (1981) 1 SCC 246, Justice O. Chinnappa Reddy observed that there is no fixed ceiling to reservation or preferential treatment to the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50%. Following words were spoken in paragraph 135: 135. There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about the fifty per cent Rule which is only a convenient guideline laid down by Judges. 144. In K.C. Vasanth Kumar and Anr. v. State of Karnataka, 1985 (Supp) SCC 714, O. Chinnappa Reddy, J. after noticing the Balaji observed 0that percentage of reservations is not a matter upon which a court may pronounce with no material at hand. Following observations were made by Justice O. Chinnappa Reddy in paragraph 57: 57. The Balaji [M.R. Balaji v. State of Mysore AIR 1963 SC 649, Court then considered the question of the extent of the special provision which the State would be competent to make Under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50% rule. Another judgment which has been referred to is the judgment of this Court in State of Punjab and Hira Lal and Ors. 1970(3) SCC 567, where K.S. Hegde, J. speaking for a three-Judge Bench had observed that the question of reservation to be made is primarily matter for the State to decide. However, no observation was made by Justice Hegde in the above case regarding M.R. Balaji case. 147. The judgment of this Court in N.M. Thomas, Akhil Bharatiya Karamchari Sangh and State of Punjab and even dissenting judgment of Justice Krishna Iyer in Devadasan and Akhil Bharatiya Karamchari Sangh have been referred to and considered by nine-Judge Constitution Bench of this Court in Indra Sawhney. In Indra Sawhney, Justice B.P. Jeevan Reddy while considering the question No. 6 noted M.R. Balaji, Devadasan, N.M. Thomas and concluded that reservation contemplated in Clause (4) of Article 16 should not exceed 50%. After considering all the above cases which according to Shri Rohtagi are discordant notes, a larger nine-Judge Constitution Bench having held that the reservation contemplated in Clause (4) of Article 16 should not exceed 50% of earlier doubt raised by the Judges as noted above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept of replacement to provide immunity against the charge of discrimination. 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 150. The Constitution Bench judgment of this Court in Ashok Kumar Thakur has also not laid down any proposition which has been referred in paragraph 4 of S.V. Joshi. This Court's judgment of three-Judge Bench in S.V. Joshi case does not support the contention of Shri Rohtagi. 151. In view of the foregoing discussion, we do not find any substance in the second ground of Shri Rohtagi that this Court's judgment of Indra Sawhney to be referred to a larger Bench. 152. The judgment of Indra Sawhney has been followed by this Court in a number of cases including at least in the following four Constitution Bench judgments: (1) Post Graduate Institute of Medical Education Research, Chandigarh and Ors. v. Faculty Association and Ors.; (2) M. Nagaraj and Ors. v. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution 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 realise substantive equality where Articles 15(4) and 16(4) are to realise the protective equality. Articles 15(1) and 16(1) are the fundamental rights of the citizens whereas Articles 15(4) and 16(4) are the obligations of the States. Justice B.P. Jeevan Reddy in Indra Sawhney in paragraph 641 has said that the equality has been single greatest craving of all human beings at all points of time. For finding out the objectives and the intention of the framers of the Constitution we need to refer to Constituent Assembly debates on draft Article 10 (Article 16 of the Constitution) held on 30.11.1948 (Book 2 Volume No. VII), Dr. Ambedkar's reply on draft Article 10 has been referred to and quoted in all six judgments delivered in Indra Sawhney case. What was the objective of Article 10, 10(1) and 10(3) has been explained by Dr. Ambedka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Articles 10(1) and 10(3) equivalent to Articles 16 and 16(4) have been referred to and relied by this Court in Indra Sawhney as well as in other cases. 158. Shri Rohtagi submits that this Court in Balaji has held Sub-clause (4) of Article 16 as exception to Article 16(1) which was the premise for fixing 50%. In N.M. Thomas and Indra Sawhney now it is held that Article 16 Sub-clause (4) is not exception to Article 16(1), the submission is that in view of the above holding in N.M. Thomas and Indra Sawhney the ceiling of 50% has to go. It is true that seven-Judge Constitution Bench in N.M. Thomas held that Article 16(4) is not an exception to Article 16(1) which was noticed in paragraph 713 of the judgment of Indra Sawhney. Justice B.P. Jeevan Reddy in paragraph 733 said At this stage, we see to clarify one particular aspect. Article 16(1) is a facet of Article 14, just as Article 14 permits reasonable classification, so does Article 16(1) . In paragraph 741 following was laid down: 741.....In our respectful opinion, the view taken by the majority in Thomas [(1976) 2 SCC 310, 380] is the correct one. We too believe that Article 16(1) does permit reasonable classification for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the present prevailing circumstances in each case... 161. Both Shri Mukul Rohtagi and Shri Kapil Sibal submits that constitutional provisions contained in Articles 15 and 16 do not permit laying down any percentage in measures to be taken Under Articles 15(4) and 16(4). It is submitted that fixation of percentage of 50% cannot be said to be constitutional. We need to answer the question from where does 50% Rule come from? 162. The 50% Rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. In paragraph 807 Justice Jeevan Reddy states: 807. We must, however, point out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets. 165. We may notice one more submission of Shri Rohtagi in the above context. Shri Rohtagi submits that the Constitution of India is a living document, ideas cannot remain frozen, even the thinking of the framers of the Constitution cannot remain frozen for time immemorial. Shri Rohtagi submits that due to change in need of the society the law should change. 166. Justice J.M. Shalet and Justice K.N. Grover, JJ. Speaking in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225, laid down following in paragraph 482 and 634: 482. These petitions which have been argued for a very long time raise momentus issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom had taken an active part in the struggle for freedom from the British yoke and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the Framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time. 169. The time fleets, generations grow, society changes, values and needs also change by time. There can be no denial that law should change with the changing time and changing needs of the society. However, the proposition of law as noted above does not render any help to the submission of Shri Rohtagi that in view of needs of the society which are changing 50% Rule should be given up. 170. The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially and educationally backward class are all affirmative measures. We have completed more than 73 years of independence, the Maharashtra is one of the developed States in the country which has highest share in the country's GST i.e. 16%, higher share in Direct Taxes-38% and higher contribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society. 172. We have no doubt that all Governments take measures to improve the welfare of weaker Sections of the society but looking to the increased requirement of providing education including higher education to more and more Sections of society other means and measures have to be forged. In view of the privatisation and liberalisation of the economy public employment is not sufficient to cater the needs of all. More avenues for providing opportunities to members of the weaker Sections of the socie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and application of law. The principle of Indra Sawhney is both creation application of law. In paragraph, 1705, Justice Mathew says: 1705. The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs, and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted to be so. It does not only 'seek' and 'find' the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Both in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the law does not commend us. When the law is laid down by this Court that reservation ought not to exceed 50% except in extraordinary circumstances all authorities including legislature and executive are bound by the said law. There is no question of putting any shackle. It is the law which is binding on all. 182. This Court has laid down in a large number of cases that reservation in super-specialties and higher technical and in disciplines like atomic research etc. are not to be given which is law developed in the national interest. In paragraph 838, Indra Sawhney has noticed certain posts where reservations are not conducive in public interest and the national interest. Following has been held in paragraph 838: 838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by Indra Sawhney in paragraphs 839, 840 and 859 as noted above is being understood as a law and being implemented, this reinforces our view that ceiling limit of 50% for reservation as approved by Indra Sawhney's case is a law within the meaning of Article 141 and is to be implemented by all concerned. 185. In view of the above discussion, ground Nos. 3 and 4 as urged by Shri Mukul Rohtagi do not furnish any ground to review Indra Sawhney or to refer the said judgment to the larger Constitution Bench. REASON No. 5 186. Shri Rohtagi submits that Indra Sawhney judgment being judgment on Article 16(4), its ratio cannot be applied with regard to Article 15(4). Justice Jeevan Reddy before proceeding to answer the questions framed clearly observed that the debates of the Constituent Assembly on Article 16 and the decision of this Court on Articles 15 and 16 and few decisions of US Supreme Court are helpful. The observations of the Court that decision of this Court on Article 16 and Article 15 are helpful clearly indicate that principles which have been discerned for interpreting Article 16 may also be relevant for interpretation of Article 15. Justice Jeevan Reddy has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is nothing but reinstatement of the principles of equality enshrined in Article 14. The principles which have been laid down in paragraph 808 with respect to Article 16(4) are clearly applicable with regard to Article 15(4) also. In the majority judgment of this Court in Indra Sawhney, the Balaji principle i.e. the 50 percent Rule has been approved and not departed with. The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney. We failed to see as to how prepositions laid down by this Court in Indra Sawhney shall not be applicable for Article 15. It has been laid down in Indra Sawhney that expression Backward Class used in Article 16(4) is wider that the expression Socially and Educationally Backward Class used in Article 15(5). 189. We thus do not find any substance in submissions of Mukul Rohtagi that the judgment of this Court in Indra Sawhney need not be applied in reference to Article 15. REASON-6 190. Shri Rohtagi submits that in Indra Sawhney judgment, the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46 have not been considered while interpreting Article 14, 16(1) and 16(4). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directive Principles of State Policy was noticed by Justice Chandrachud, C.J., in paragraph 40 as: 40. The main controversy in these petitions centres round the question whether the directive principles of State policy contained in Part IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every other consideration and all other contentions are in the nature of byproducts of that central theme of the case. The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by Section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or The 42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles. 193. It was held that both Part-III and Part-IV of the Constitution are two kinds of State's obligation i.e. negative and positive. The harmony and balance between Fundamental Rights and Directive Principles of State Policy is an essential feature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Article 15(4) and Article 16(4) of the Constitution are nothing but steps in promoting and giving effect to policy Under Article 38 of the Constitution. Justice Jeevan Reddy in his judgment of Indra Sawhney has noted Article 38 and Article 46 of Part-IV of the Constitution. In paragraph 647, Article 38 and 46 has been notice in following words: 647. The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. 195. The criticism mounted by Mr. Rohtagi that Indra Sawhney judgment does not consider the impact of Directive Principles of State Policy while interpreting Article 16 is thus not correct. Further in paragraph 841, it has been held that there is no particular relevance of Article 38 in context of Article 16(4). In parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the state may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen's endeavoured to strike a balance between the two Articles. Though we accept the ratio of St. Stephen's, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court had occasion to consider Article 14, 15 16 as well as 21A of the Constitution. Shri Kapadia, C.J., speaking for majority, held that reservation of 25 percent in unaided minority schools result in changing character of schools holding that Section 12(1)(c) of Right to Education Act, 2009 violates right conferred under minority school Under Article 31. Paragraphs 61 and 62 of the judgment are as follows: 61. Article 15(5) is an enabling provision and it is for the respective States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection Under Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).In a sense, it is absolute as the Constitution framers thought that it was the duty of the Government of the day to protect the minorities in the matter of preserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Article (4B) is for any reference is quoted as below: 16(4B). Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. 206. The above Constitutional Amendment makes it very clear that ceiling of 50 percent has now received Constitutional recognition. Ceiling of 50 percent is ceiling which was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a special case made out. 210. We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression on being out of the main stream of national life , is a social test, which also needs to be fulfilled for a case to be covered by exception. 211. We may refer to a Three-Judge Bench judgment of this Court in Union of India and Ors. v. Rakesh Kumar and Ors. (2010) 4 SCC 50, this Court had occasion to consider the provisions of Fifth Schedule of the Constitution. Article 243B and provisions of Part-IX of the Constitution inserted by 73rd Constitutional Amendment Act, 1992. Reservation of seats was contemplated in the statutory provisions. The judgment of Indra Sawhney especially paragraph 809 and 810 were also noted and extracted by this Court. This Court noted that even the judgment of Indra Sawhney did recognize the need for exception treatment in such circumstances. In paragraph 44, this Court held that the case of Panchayats in Scheduled Areas is a fit case that war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied 50 percent ceiling in vertical reservation in favour of Scheduled Caste/Scheduled Tribe/Other Backward Class in context of local self government. However, it was held that exception can be made in order to safeguard the interest of Scheduled Tribes located in Scheduled Area. Paragraph 82(iv) is as follows: 82.(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas. 213. The judgment of the Constitution Bench in the above case had approved the Three-Judge Bench judgment of this Court in Union of India and Ors. Rakesh Kumar(supra) in paragraph 67, which is to the following effect: 67. In the recent decision reported as Union of India v. Rakesh Kumar, (2010) 4 SCC 50, this Court has explained why it may be necessary to provide reservations in favour of Scheduled Tribes that exceed 50% of the seats in panchayats located in Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier decision [Ed.: The reference is to New Jehangir Vakil Mills Ltd. v. CIT AIR 1959 SC 1177 and Petlad Turkey Red Dye Works Co. Ltd. v. CIT, 1963 Supp (1) SCR 871, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, Under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vol. 4, P. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. 118. The doctrine of stare decisis is generally to be adhered to, because well-settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances, dictated by forceful factors supported by logic, amply justify the need for a fresh look. 219. The Constitution Bench in Indra Sawhney speaking through Justice Jeevan Reddy has held that the relevance and significance of the principle of stare decisis have to be kept in mind. It was reiterated that in law certainty, consistency and continuity are highly desirable features. Following are the exact words in paragraph 683: 683... Though, we are sitting in a larger Bench, we have kept in mind the relevance and significance of the principle of Stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal circumstances and/or extra-ordinary situations to be applied for the benefit of reservation in the present context . The Gaikwad Commission has separately and elaborately considered the above term of reference. A separate Chapter, Chapter-X has been devoted in the Commission's Report. The heading of the Chapter-X is EXCEPTIONAL CIRCUMSTANCES AND/OR EXTRA ORDINARY SITUATIONS . 224. We have already noticed the submission of Shri Mukul Rohtagi with reference to exceptional circumstances while considering the Ground No. 10 as emphasized by him for referring the case to a larger Bench. We have observed that the exceptional circumstances as indicated in paragraph 810 of Indra Sawhney were not exhaustive but illustrative. The Constitution Bench, however, has given indication of what could be the extra-ordinary circumstances for exceeding the limit of 50%. The Commission has noticed the majority opinion in Indra Sawhney. We may notice paragraph 234-Chapter X of the Report which is to the following effect: 234. The Constitutional provisions relating to the reservations, either Under Article 15 or Article 16 of the Constitution do not prescribe percentage of reservation to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assage from para 94A (of AIR) the judgment of the Honourable the Supreme Court in Indra Sawhney's case majority view is reproduced and that runs as under: While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict Rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. 225. After noticing the above proposition of law the Commission proceeded to deal with the subject. In paragraph 234 the Commission has noted the Constitution Bench judgment in M. Nagaraj and Ors. v. Union of India and Ors. (supra) observing that this Court has again considered the aspect of ceiling of 50% reservation. The Commission, however, proceeded with an assumption that in Nagaraj this Court has ruled that for relaxation, i.e., 50%, there should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h held that majority opinion in Indra Sawhney has held that Rule of 50% was a binding Rule and not a mere Rule of prudence. Paragraph 58 of the Constitution Bench judgment in Nagaraj is as follows: 58. However, in Indra Sawhney [1992 Supp (3) SCC 217 the majority held that the Rule of 50% laid down in Balaji [AIR 1963 SC 649] was a binding Rule and not a mere Rule of prudence. 229. In paragraph 107, the Constitution Bench observed: 107....If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335..... 230. The Constitution Bench noted its conclusion in paragraphs 121, 122 and 123. In paragraph 123 following has been laid down: 123. However, in this case, as stated above, the main issue concerns the extent of reservation . In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 236. As per the Census of the year 2011 population of Scheduled Castes and Scheduled Tribes in the State of Maharashtra is 11,81% and 9.35% respectively. The percentage of Backward Classes, Maratha and Kunbi, have not been found to have been specified in the Census of the year 2011. On the instructions of the Government of Maharashtra, the Gokhale Institute of Politics and Economics, Pune, conducted Socio-Economic Caste Census. It was the survey of rural population in the State of Maharashtra. On the detailed survey the Gokhale Institute of Politics and Economics recorded the findings on specific percentage of the Maratha community with Kunbi community as 35.7%. Percentage of all the reserved Backward Classes to be 48.6%. The percentage of other Classes or the population, who have not disclosed their castes, is shown to be 15.7%, From this survey report though it relates to the rural area, total percentage of the exiting Backward Classes, Maratha and Kunbi, who claim to be backward, comes to 48.6% plus 35.7% equivalent to 84.3% of the total population. There is no dispute that large population of the Maratha and Kunbi castes as well as existing Backward Classes are inhabitants o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to paragraph 810 where Indra Sawhney has given illustration which illustration is regarding certain extra-ordinary situations. The exact words used in paragraph 810 are: It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict Rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. 238. Shri Rohtagi had submitted that the test laid down in paragraph 810 is only geographical test which was an illustration. It is true that in Indra Sawhney the expression used was far flung and remote areas but the social test which was a part of the same sentence stated the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them . Thus, one of the social conditions in paragraph 810 is that being within the main stream of National Life, the case of Maratha does not satisfy the extra-ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on emerge that more than 80% population was found backward in the census of 1872. The commission categorizes this as an extra-ordinary situation since the majority of the unequals are living with the minority of the equals. The figures available on record on the basis of 2011 census disclose that the State population is about 11.24 crores out of which 3,68,83,000 is the population of OBC (VJNT, OBC SBC) The statistics of Ministry of Social Justice and Empowerment, Government of India has given the State wise percentage of OBCs in India and for Maharashtra it is 33.8% whereas SC-ST is 22%. The Gaikwad commission has patil-sachin.::: Uploaded on-27/06/2019::: Downloaded on-05/04/2021 16:43:36::: 433 Marata(J) final.doc therefore deduced that the population of Marathas is 30%. Therefore, in terms of the population, if we look at the figures then the situation which emerges is that almost 85% of the population is of the backward classes and to suggest that if 85% of people are backward and they get only a reservation of 50%, it would be travesty of justice. When we speak of equality-equality of status and opportunity, then whether this disparity would be referred to as achieving equali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At this stage, we may notice that what was said by Dr. Ambedkar in the Constituent Assembly debates dated 30.11.1948 while debating draft Article 103 (Article 16(4) of the Constitution). Dr. Ambedkar by giving an illustration said: Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent. As open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Backward commissions as well as State Backward Commissions which have repeatedly rejected the claim of Maratha to be included in Other Backward Communities. After receipt of Bapat Commission Report which rejected the claim of Maratha to be Other Backward Classes, the State Government appointed a Committee under the chairmanship of a sitting Minister i.e. Narayan Rane Committee. On the basis of said Rane Committee report, the State enacted 2014, Act, constitutional validity of which Act was challenged in the High Court and was stayed by the High Court vide its order dated 07.04.2015. During pendency of the writ petition, the State Government made a reference to the Maharashtra Backward Class Commission in June, 2017 and one of the term of the Reference was to the following effect: ii) defines the exceptional circumstances and extraordinary situations applied for the benefits of the reservation in the contemporary scenario. 248. The Maharashtra Backward Class Commission submitted its report in 15.11.2018, which report became the basis for 2018 enactment. 249. The Statements of objects and reasons for 2018 enactment have been published in the Maharashtra Government Gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already in detail has dealt the report of the Commission especially Chapter 10 where Commission dealt with extraordinary situation. 252. The Government after considering the report, its conclusion and findings and recommendations formed the opinion for giving separate reservation to the Maratha community as socially and educationally backward classes (SEBC). Paragraph 9 of the statement of objects and reasons is as follows: 9. The Government of Maharashtra has considered the report, conclusions, findings and recommendations of the said Commission. On the basis of the exhaustive study of the said Commission on various aspects regarding the Marathas, like public employment, education, social status, economical status, ratio of population, living conditions, small size of land holdings by families, percentage of suicide of farmers in the State, type of works done for living, migration of families, etc., analysed by data, the Government is of opinion that,- (a) The Maratha Community is socially and educationally backward and a backward class for the purposes of Article 15(4) and (5) and Article 16(4), on the basis of quantifiable data showing backwardness, inadequacy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w for the above purposes. In view of the above, the State Government is of the opinion that the persons belonging to such category below the Creamy layer need special help to advance further, in the contemporary period, so that they can move to a stage of equality with the advanced Sections of the society, wherefrom they can proceed on their own. 253. The statement and object of the bill clearly indicates that the State has formed the opinion on the basis of the report of the Commissions and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out. We have already in detail analyze and noticed the report of the Commission and have held that no extraordinary circumstances have been made out on the basis of reasoning given in the report. While the foundation itself is unsustainable, the formation of opinion by the State Government to grant separate reservation to the Marathas exceeding 50 percent limit is unsustainable. 254. It is well settled that all legislative Act and executive acts of the Government have to comply with the Fundamental Rights. The State's legislative or any executive action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 257. We thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation. (11) Gaikwad Commission Report-a scrutiny 258. Shri Pradeep Sancheti, learned Senior Counsel, appearing for the Appellant elaborating his submissions has questioned the Gaikwad Commission's Report on numerous grounds. Shri Patwalia, learned Senior Counsel, appearing for the State of Maharashtra has refuted the challenge. 259. Shri Sancheti submits that judicial scrutiny of a quantifiable data claimed by the State is an essential constitutional safeguard. He submits that though the Court has to look into the report with judicial deference but judicial revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as adequate representation in public service which fact is apparent from data collected by the Commission itself. On the basis of data collection by the Commission no conclusion could have been arrived that Maratha community is not adequately represented in services in the State. 261. Shri Patwalia refuting the submissions of the learned Counsel for the Appellant submits that Gaikwad Commission has considered conclusions arrived by all earlier Commissions and thereafter it had recorded its conclusion. The Commission before proceeding further has laid down procedure for investigation. The Commission decided to conduct survey as to collect information in respect of the social and educational backwardness. The Commission has surveyed to collect information of all families in two villages in each District and the Commission decided to collect information by selecting one Municipal Corporation and one Municipal Council from each of six regions of the State of Maharashtra. For the purpose of sample survey five different Agencies have been nominated. The Commission also conducted public hearing, collected representations from persons, numbering 195174. Out of representations, 193651 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the State of Mysore had issued an order dated 31.07.1961 deciding to reserve 15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50% for backward class totaling to 68% of seats available for admission to the Engineering and Medical Colleges and to other technical institutions in the State. The Constitution Bench elaborated the extent of judicial review to an executive action. In paragraph 35 of the judgment, the Constitution Bench laid down following: 35. The Petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Article 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived by the Commission are justified. 267. In Indra Sawhney, one of the questions framed by the Constitution Bench to answer was question No. 9, which is to the following fact: 9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage? 268. In paragraph 842 of Indra Sawhney following was laid down: 842. It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising Under Article 16(4) or for that matter, Under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made Under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the executive--a co-equal wing--in these matters...... 269. In paragraph 798, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice Hidayatullah has agreed in paragraph 63 laid down following: 63......Therefore, the words, reason to believe or in the opinion of do not always lead to the construction that the process of entertaining reason to believe or the opinion is an altogether subjective process not lending itself even to a limited scrutiny by the court that such a reason to believe or opinion was not formed on relevant facts or within the limits or as Lord Redcliff and Lord Reid called the restraints of the statute as an alternative safeguard to Rules of natural justice where the function is administrative. 272. Dr. Rajiv Dhavan, learned Senior Counsel, during his submission has contended that Indra Sawhney in its judgment has relied on a very weak test. He contended that the constitutional reservations are required to be subjected to strict scrutiny tests. 273. We may also notice two-Judge Bench judgment of this Court in B.K. Pavitra and Ors. v. Union of India and Ors. (2019) 16 SCC 129, where this Court had after referring to earlier judgment laid down that Committee/commission has carried out an exercise for collecting data, the Court must be circumspect in exercising the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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. 277. The Constitution Bench of this Court in Indra Sawhney while elaborating on Article 16(4) has held that Clause (4) of Article 16 speaks of adequate representation and not proportionate representation in paragraph 807: 807. We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Article 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the theory of guided power . We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. 281. The word 'adequate' is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation Under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reservation should be consistent with the maintenance of efficiency in the administration. (sic) in Central services namely IAS, IPS, IFS and Table C deals with position of employees and officers in Mantralaya Cadre. The tables A and C enumerated the details grade wise from Grade-A to Grade-D. We proceed to examine the issue on the basis of facts and figures compiled by the Commission obtained from State and other sources. The figures compiled relates as on 01.08.2018. Figures having obtained from the State, there is no question of doubting the facts and figures compiled by the Commission. 287. Table A is part of paragraph 219 of the report. We need to extract entire table A for appreciating the question. 288. The relevant figures pertaining to posts filled as on 01.08.2018, includes posts filled from open category, posts filled from Maratha classes from out of open category posts, posts filled from SCs, posts filled from STs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic Tribes NT-B, posts filled from Nomadic Tribes NT-C, NT-D and posts filled from the backward classes (OBC) and posts filled from special backward classes(SBC). The above figures c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts is as follows: Grade No. of open category posts filled No. of filled from Maratha Class Percentage of Maratha in open category post. Grade A 28048 9321 33.23% Grade B 31193 9057 29.03% Grade C 413381 153224 37.06% Grade D 99592 36387 36.53% 292. The above representation of Marathas in public services in Grade-A, B, C and D are adequate and satisfactory. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services. The Constitutional pre-condition that backward class is not adequately represented is not fulfilled. The State Government has formed opinion on the basis of the above figures submitted by the Gaikwad Commission. The opinion of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. of open category posts filled No. of posts filled from Maratha Class Percentage of Maratha in open category post. A 248 93 37.5% B 793 415 52.33% C 808 421 52.1% D 333 185 55.55% 301. All the three tables A, B and C and percentage of Marathas who have competed from open category make it abundantly clear that they are adequately represented in the services. The Commission although noted all the figures correctly in all the columns but committed error in computing the percentage adding posts available for open category as well as posts available for reserved categories. Maratha cannot claim to compete for the reserved category posts; hence, there is no question of computing their representation including the reserved category posts. The representation of Marathas has to be against open category pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained. (13) Social and Educational Backwardness of Maratha Community 305. We have noted above that three National Backward Classes Commissions and three State Backward Classes Commissions considered the claim of Maratha community to be included in the other backward community but all Commissions rejected such claim rather they were held to be belonging to forward community. The first National Backward Classes Commission on 30.03.1955, i.e., Kaka Kalelkar Commission did not include Maratha commission in the list of backward communities. The Commission observed: In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages and the Prabhu that dominated all other communities. 306. The second National Backward Classes Commission, i.e., Mandal Commission in its report included Maratha community as forward Hindu community. The National Commission on Backward Classes in the year 2000 elaborately examined the claim of Maratha community to be included in other backward class. The entire Commission heard the claim of Maratha, including the members of State Backward Classes Commission representing the claim of Maratha communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of BCs what the fact of the origin of Marathas from Kunbis and the alleged use of the name Maratha by some members of Kunbi caste in some areas of the State. The Bench is of the view that since there, undoubtedly, is a distinct class/community Called Maratha and since it is obviously an advanced community in society and polity as already noted, it cannot be included in the list of Backward Classes. The Bench cannot accept the claim of the representatives of the community that many known Maratha leaders including one whose name they mentioned have got caste certificates as Kunbi as a valid ground for inclusion of Marathas in the list of BCs with Kunbis. The Bench has no ground to believe that any known Maratha leaders would have sought such certificates, nor have those who have made this allegations presented any evidence in support of this claim. But even if, for argument's sake, claim or argument is it does not prove that Maratha is the same as Kunbi or synonym of Kunbi. Leaving aside the allegations made by some of the representatives of the community, the Bench is aware that some shortsighted individuals belonging to different non-backward castes unfortunately resort to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f investigation and report. 309. This Court in Ram Singh and Ors. v. Union of India, (2015) 4 SCC 697, has categorically laid down in paragraph 49 that a decision which impacts the rights of many Under Articles 14 and 16 of the Constitution must be taken on contemporaneous inputs. Following observations were made by two-Judge Bench of this Court in paragraph 49: 49....... A decision as grave and important as involved in the present case which impacts the rights of many Under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data. In fact, Under Section 11 of the Act revision of the Central Lists is contemplated every ten years. The said provision further illuminates on the necessity and the relevance of contemporaneous data to the decision-making process. 310. We fully endorse the above view of this Court. 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. Three National Backward Classes Commissions reports as noted above in the year 1955, 1980 and 2000, were the reports regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jat is politically dominant class and need not to be included in OBC. The Union disregarding the said report had issued a notification including Jat as OBC in the different States in the Central List. It was challenged in this Court by way of writ petition. This Court held that the report of National Backward Classes Commission could not have been disregarded and ought to have been given due weight. This Court held that Jat community is politically organised class which was rightly not included in the category of other backward classes. In paragraph 55 following was laid down: 55. The perception of a self-proclaimed socially backward class of citizens or even the perception of the advanced classes as to the social status of the less fortunates cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can backwardness any longer be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative: possible wrong inclusions canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout 75 to 90% of the land in the State is owned by Maratha community. None of the aforesaid was disputed by or on behalf of the Respondents in any of the affidavits or at the hearing. It was also stated by the Petitioner at the hearing that ever since the establishment of the State of Maharashtra on 1 November 1956, out of 17 Chief Ministers, 12 have been Marathas. The last non-Maratha Chief Minister was during the period January 2003 to October 2004. This statement was also not disputed. 314. The above stated facts were not disputed before the High Court, and before this Court also in the submissions of the parties above facts have been repeated and it has been submitted that those facts clearly prove that Maratha are not socially backward. The Commission in its report does not dispute that Maratha is politically dominant class. In this context, following is extracted from the report: Political dominance cannot be ground to determine social and educational backwardness of any community. 315. We have already found that Maratha community has adequate and sufficient representation in the public services. We have also noted that representation of Maratha in public serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similarly details have been given about the Graduation and Post-Graduation Medical Courses for three years. In MBBS out of 4720 in the year 2015-16 Maratha received 428 seats, in other streams out of 14360 they secured 2620 seats, in the above regards table is produced hereunder: Academic Year Total Intake Marathas Percentage Remarks 2015-16 MBBS-4720 MBBS-428 9.1% The other ourses include Dental AYUSH (Aurveda Unani Sidhh Homeopathy Nursing) Other-14360 Other-2620 18.2% Total 19080 3048 16% 2016-17 MBBS-5170 MBBS-270 5.2% other-14098 other-1059 7.5% Total 19268 1329 6.9% 2017-18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led from open category candidates, there are 25 IAS belonging from Maratha. Similarly out of 140 posts filled from open category, 39 of IPS belong to Maratha and in IFS out of 97, 89 posts filled from open category, there are 16 IAS belong to Maratha community. When we compute the percentage of IAS, IPS and IFS, percentage of Maratha out of the posts filled from open category candidates comes to 15.52, 27.85 and 17.97 percentage respectively, which is substantial representation of Marathas in prestigious Central services. 320. We may further notice that the above numbers of Maratha officers are only in the State of Maharashtra on the posts of the IPS, IAS and IFS being Central services. Similarly, the members of Maratha community must have occupied the above posts in the other States of the Country of which details are not there. 321. The Commission has also collected data regarding engagement of Maratha in Higher Academic and Educational Fields of University Assignments in the State in paragraph 226. The Table D has been compiled by the Commission. In the said paragraph where Marathas occupied all categories of posts, including Head of Department, Professor, Associate Profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of its marking system, indicator and marking is not sufficient to conclude that Marathas are socially and educationally backward. 324. The facts and figures as noted above indicate otherwise and on the basis of the above data collected by the Commission, we are of the view that the conclusion drawn by the Commission is not supportable from the data collected. The data collected and tabled by the Commission as noted above clearly proves that Marathas are not socially and educationally backward. 325. We have completed more than 70 years of independence, all governments have been making efforts and taking measures for overall developments of all classes and communities. There is a presumption unless rebutted that all communities and castes have marched towards advancement. This Court in Ram Singh v. Union of India and Ors. (Supra) has made such observations in paragraph 52: 52...This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and educational. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such negative gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List in Clause (2) of Article 342A only to emphasize the fact that after Constitution 102nd Amendment, the only list that shall be drawn for the purposes of SEBCs is the Central List drawn by the President. 329. Learned Counsel for the Appellant contends that Maharashtra Legislature had no competence to enact 2018 Legislation after Constitution 102nd Amendment. Learned Senior Counsel, Shri Gopal Sankaranarayanan, submitted that for interpreting Article 342A reliance on Select Committee report of Rajya Sabha is unwarranted. 330. The above submissions of the Appellant have been stoutly refuted by the learned Counsel for the State of Maharashtra as well as other States. Under Articles 15(4) and 16(4), the Union and the States have co-equal powers to advance the interest of the socially and educationally backward classes; therefore, any exercise of power by the Union cannot encroach upon the power of the State to identify socially and educationally backward classes. The expression for the purpose of the Constitution can, therefore, only to be construed with the contours of the power that Union is entitled to exercise with respect to entities, institutions, authorities and publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. 333. Learned Attorney General submits that in view of the above nine-Judge Bench judgment of this Court it is inconceivable that any such amendment can be brought in the Constitution that no State shall have competency to identify the backward classes, Article 15(4) necessarily includes the power of identification. Under Article 12 of the Constitution, the State includes the Government and Parliament, and Government and Legislature of each State. In event the States have to deprive their rights Under Articles 15(4) and 16(4) of the Constitution, a proviso had to be added. Article 15(4) and 16(4) are the source of power to identify SEBC. The Constitution 102nd amendment has not made any such amendment by which the effect of Articles 15(4) and 16(4) has been impacted. He submits that the National Commission for Backward Classes Act, 1993 was passed by the Parliament in obedience of direction of Indra Sawhney. Section 2(c) of the Act defines lists which is clearly limited to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution inserted by the Constitution 102nd Amendment, we need to notice the Statement of Objects and Reasons contained in the Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017 which was introduced in the Lok Sabha on 4th April, 2017 and some details regarding legislative process which culminated into passing of the Constitution (One Hundred and Second Amendment) Act, 2018. When Bill came for discussion to amend the Constitution of India, it was passed by Lok Sabha on 10.04.2017. Rajya Sabha on motion adopted by the House on 11.4.2017 referred the Bill to the Select Committee for examination of the Bill and report thereon to the Rajya Sabha. The Select Committee of Rajya Sabha examined the Bill by holding 7 meetings. The Select Committee asked clarification on various issues from the Ministry and after receipt of clarifications submitted the report on 17.07.2017. The Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017 with the Select Committee report came for consideration before the Rajya Sabha. The Bill was passed with certain amendments on 31.07.2017 by the Rajya Sabha. After passing of the Bill, it was again taken by the Lok Sabha and it was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch advice to the Central Government as it deems appropriate. Now, in order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes. (Underlined by us) 4. The National Commission for the Scheduled Castes has recommended in its Report for 2014-15 that the handling of the grievances of the socially and educationally backward classes under Clause (10) of Article 338 should be given to the National Commission for Backward Classes. 5. In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following, namely: (a) to insert a new Article 338 so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice-Chairperson and three other Members. The said Commission will hear the grievances of socially and educationally backward classes, a function which has been discharged so far by the National Commission for Scheduled Castes under Clause (10) of Article 338 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations and debates. The Constitution contained the objectives and goals of the nation and contains ideals For the governance by the State. Justice G.P. Singh in 'Principles of Statutory Interpretation', 14th Edition under the heading 'Intention of the Legislature' explains the statutory interpretation in following words: A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according 'to the intent of those that make it' and 'the duty of judicature is to act upon the true intention of the Legislature-the mens or sententia legis'. The expression 'intention of the Legislature' is a shorthand reference to the meaning of the words used by the Legislature objectively determined with the guidance furnished by the accepted principles of interpretation. If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the Legislature, in other words the legal meaning' or 'true meaning' of the statutory provision. 342. Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t , it becomes necessary to take aid of interpretation. What was the purpose and object of uses of expression 'Central List', Sub-clause (2) of Article 342A has to be looked into to find a correct meaning of the constitutional provisions. 346. We have noticed above that learned Attorney General as well as learned Counsel for the State of Maharashtra and other States have relied on Select Committee report, debates in Parliament and the Statement of Minister to find out the intention of the Parliament in inserting Article 342A of the Constitution. 347. Shri Gopal Sankaranarayanan, learned Senior Counsel for the Petitioner has questioned the admissibility of Parliamentary Committee report. He submits that Parliamentary Committee report is not admissible and cannot be used as aid to interpretation which submission has been refuted by Shri P.S. Patwalia, learned Senior Counsel as well Dr. A.M. Singhvi, learned Senior Counsel, who state that Parliamentary Committee report as well the Statement made by the Minister in the Parliament are admissible aids to the interpretation and are necessary to find out the intention of the Parliament in bringing the 102nd Amendment to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated that the said material is sometime used to ascertain the purpose of a statute. The law has been explained and elaborated in subsequent judgments of this Court which we shall notice hereinafter. One more judgment on which reliance has been placed by Shri Gopal Sankaranarayanan is the judgment of this Court in Aswini Kumar Ghose and Anr. v. Arabinda Bose and Anr. AIR 1952 SC 369, in which this Court referring to earlier judgment of this Court in State of Travancore, Cochin and Ors. v. Bombay Company Ltd.(supra) laid down in paragraph 31: 31. As regards the speeches made by the Members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the interpretation of statutory provisions: (State of Travancore-Cochin v. Bombay Co. Ltd. etc. [CA Nos. 25, 28 and 29 of 1952] 350. With regard to speeches in the Constituent Assembly, the Constitution Bench of this Court, in His Holiness Kesvananda Bharati v. State of Kerala and Anr. (1973) 4 SCC 225, several Hon'ble Judges in their separate judgments have relied and referred to Constituent Assembly debates for the interpretation of provisions of Part III and Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on p. 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat, J. in that case on p. 924. In the case of Madhav Rao, Shah, J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see P. 83). Reference was also made to the speeches in the Constituent Assembly by Mitter, J. on pages 121 and 122. More recently in H.S. Dhilion case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the conclusion arrived at. It can, therefore, be said that this Court has now accepted the view in its decisions since Golak Nath case that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution. 353. Justice K.K. Mathew in paragraph 1598 had held that the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 34: 34. ....Further even in the land of its birth, the exclusionary Rule has received a serious jolt in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG:[(1975) 1 All ER 810, 843] Lord Simon of Claisdale in his speech while examining the question of admissibility of Greer Report observed as under: At the very least, ascertainment of the statutory objective can immediately eliminate many of the possible meanings that the language of the Act might bear; and, if an ambiguity still remains, consideration of the statutory objective is one of the means of resolving it. The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity -- it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions. As to the statutory objective of these, a report leading to the Act is likely to be the most potent aid; and, in my judgment, it would be mere obscurantism not to avail oneself of it. There is, indeed clear and high aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Mehta and Ors. v. Union of India and Ors. (2018) 7 SCC 1, in which one of us Justice Ashok Bhushan was also a member. In the above case, the Constitution Bench elaborately dealt with the role of Parliamentary Committee. One of the questions which was referred to before the Constitution Bench to answer was whether in a litigation filed before this Court Under Article 32 and our Court can refer to and place reliance upon the report of the Parliamentary Standing Committee. The Constitution Bench referring to earlier judgment of this Court in R.S. Nayak v. A.R. Antulay (supra) laid down following in paragraphs 123 and 134: 123. A Constitution Bench in R.S. Nayak v. A.R. Antulay [R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, after referring to various decisions of this Court and development in the law, opined that the exclusionary Rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court. The Constitution Bench further observed that the basic purpose of all canons of the Constitution is to ascertain with reasonable certainty the intention of Parliament and for the said purpose, external aids such as reports of Special Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Following was observed in paragraph 335: 335. Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Maitland in Constitutional History of England while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following words: ... Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms. 362. After noticing the relevant Rules, it was held that parliamentary materials including reports and other documents are per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 SCC (L S) 117], the Court has referred to and relied on a Joint Parliamentary Committee report. In Federation of Railway Officers Assn. v. Union of India [Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289: AIR 2003 SC 1344], the Court has referred to a report of the Standing Committee of Parliament on Railways. In Aruna Roy v. Union of India [Aruna Roy v. Union of India, (2002) 7 SCC 368 : 5 SCEC 310], report of a Committee, namely, S.B. Chavan Committee, which was appointed by Parliament was relied and referred. M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (2017) 7 SCC 243] was again a case where report of a Standing Committee of Parliament on Petroleum and Natural Gas has been referred to and relied. Other judgments where Parliamentary Committee reports have been relied are Kishan Lal Gera v. State of Haryana [Krishan Lal Gera v. State of Haryana, (2011) 10 SCC 529], Modern Dental College and Research Centre v. State of M.P. [Modern Dental College Research Centre v. State of M.P., (2016) 7 SCC 353: 7 SCEC 1] and Lal Babu Priyadarshi v. Amritpal Singh [Lal Babu Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795: (2016) 3 SCC (Civ) 649] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re two lists i.c. the Central List and the State List. The Central List provides for education and employment opportunities in Central Government Institutions. In the State List, the States are free to include or exclude, whoever they wish to, in their Backward Classes List. As a result, if there is a certain category which is not in the Central List, it may still be found in the State List. That is the freedom and prerogative of the State Backward Classes Commission and that would continue to be there. 368. The Committee in its meeting held on 22.05.2017 asked several clarifications. One of the clarifications asked was To what extent the rights of the States would be affected after coming into by the Bill under the Constitution of the Select Committee. 369. The Committee held sixth meeting on 03.07.2017. One of the proposed amendments have been noted in paragraph 21 of the Minutes, clarification on which was also noted in paragraph and the amendment was not accepted. The amendment proposed was notwithstanding in any ... in Clause (9), the State Government shall continue to have power ... socially and educationally backward classes. The above proposed amendment in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lasses for the purposes of making provisions for reservation of posts under that State or under any other authority of the State or under the central of the State, or seats in the educational institutions within that State and (iv) In Article 342A insert Clause (4) as follows: The Governor may, on the advice of the State Commission of Backward Classes include or exclude from the State list of socially and educationally backward classes specified in a notification issued under Clause (3) 371. The Committee, however, did not accept any of the amendments in view of explanation furnished by the Ministry. The 7th meeting was held on 14.07.2017. The clarification issued by the Secretary of Ministry of Social Justice and Empowerment has been noticed in paragraph 29 which is to the following effect: 29. .........She also clarified that conferring of constitutional status on the National Commission for Backward Classes would in no way take away the existing powers of the State Backward Classes Commissions. The only difference would be with regard to the Central List, where the power of exclusion or inclusion, after the Constitutional amendment, it would come to the Parliament w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would not help the Backward Classes and would take away the powers of the States too. They want to centralize all the powers, as they have done in other cases. This cannot happen in the case of OBCS. As I have already said, though the Act was passed in Parliament way back in 1993 for purposes of employment, etc. and way back in 2007 for education, nothing has been implemented so far. If they centralize all things like employment, identification of castes, etc., they would be doing gross injustice to the OBCS. They should think twice before scrapping the powers of the States because, as I have already mentioned, it is the States which identify various castes and communities. They know better than the people sitting here in Delhi. Hence, amending Article 342 and equating identification of OBC List to the SC/ST List should not be done.... 375. Shri Bhupender Yadav has also stated in his speech that Amendment Bill cast threat to federalism and the State interest. In his statement (translated from Hindi) he said: ...... that this will be a big threat to the federalism of the country and what will happen to the rights of the States? Here I want to say that at least this subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their condition. Only the government knows thoroughly. They may face problems with central list. Therefore, I would like to appeal to Hon'ble Minister and the House to add such a provision in the Bill whereby the work of adding or deleting any caste from the OBC list should be strictly done only on the recommendation of the state government to which it relates to. Sir, you can make national list after the uniformity comes gradually. When S.C., S.T., National Commission was formed, it also took much time. In my opinion, after the separate S.C., S.T. Commission was formed, it got the status of Constitutional body in 2003. Therefore, I would like to appeal to the House and the government to reconsider and think on this point. Further, I would like to add one more thing that in the observation of Hon'ble Supreme Court, there was a provision of review after every 10 years so that other castes are not left, therefore, it should be reviewed after every 10 years. In my opinion, do the needful keeping it in view also, thank you. 377. Similar apprehension was expressed by T.K. Rangarajan and Shri Pradeep Tamta that Article 342A takes away the existing powers of the State to notify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List deals with work concerned with OBC category and notifies them. Thereafter, on the basis of Mandal Commission Report as well many States have constituted such Commissions. Supreme Court had also given verdict in 1992-1993, on that ground also many States had constituted OBC Commission in their respective territories. At present as many as 30-31 States have constituted such Commissions. Complete list of it is with me. Right to include or remove in the States List concerned with OBCS will remain as it is and it will not be violated in any manner. In addition, keeping in view the sentiments of Article 15 and 16, States have also exercised their powers pertaining to making schemes in the interest of OBC category and making provisions in this behalf and such power will remain as it is. We are not making any amendment in Article 15 and Article 16. It simply means that State Commissions will not be affected in any way by this Constitutional amendment. Maximum number of Hon'ble Members have shared their views expressing their fear on this point. I, sincerely want to make it clear that State Governments have right and will remain as it is in future as well. No attempt will be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission-- (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral List of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. . 366(26C) socially and educationally backward classes means such backward classes as are so deemed Under Article 342A for the purposes of this Constitution;'. 381. After noticing the principles of statutory interpretation of Constitution and aids which can be resorted to in case of any ambiguity in a word, we now proceed to look into the constitutional provisions inserted by the Constitution (102nd Amendment) Act. 382. The first Article which has been inserted by the Constitution (One Hundred and Second Amendment) Act is Article 338B. The statement of objects and reasons of the Constitution (One Hundred and Twenty Third Amendment) Bill, 2017, we had noticed above, in which one of the objects of the Constitutional amendment was: ...in order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires the Commission to give advice both to the Central Government and to the States, which is clear from Sub-clauses (5), (7) and (9) of Article 338B, which is quoted as below: (5) It shall be the duty of the Commission-- (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int'l law. The interactive methods by which states seek to prevent or resolve disputes.- consult, vb.-consulting, consultative, adj. Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, defines 'consult': Consult. 'Consult implies a conference of two or more persons or the impact of two or more minds brought about in respect of a topic with a view to evolve a correct or atleast a satisfactory solution. It must be directed to the essential points of the subject under discussion and enable the consulter to consider the pros and cons before coming to a decision. The consultation may be between an uninformed person and an expert or between two experts. 389. The 'consultation' or deliberation is not complete or effective unless parties there to makes their respective points of view known to the others and examine the relative merit of their view. The consultation is a process which requires meeting of minds between the parties involves in the process of consultation on the material facts and points involved. The consultation has to be meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng together, or to deliberate'. Quoting Rollo v. Minister of Town and Country Planning and Fletcher v. Minister of Town and Country Planning Stroud's Judicial Dictionary (Volume 1' Third Edition, 1952, page 596) says in the context of the expression consultation with any local authorities that Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice . Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. 39. It may not be a happy analogy, but it is commonsense that he who wants to 'consult' a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for diagnosis of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consultation. In paragraph 112, following has been stated: 112. It is clear that Under Article 217(1), the process of 'consultation' by the President is mandatory and this Clause does not speak of any discretionary 'consultation' with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in Clause (2) of Article 124. The word 'consultation' is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many tough questions, one of them being, what is the meaning of the expression 'consultation' in the context in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions in which the expression 'consultation' is used...... 394. When the Constitutional provision uses the expression 'consultation' which 'consultation' is to be undertaken by a Constitutional authority like National Commission for Backward Classes in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear from the fact that Sub-clause (1) of Article 342A is pari materia with Articles 341(1) and 342(1), it is clearly meant that power to identify educationally and socially backward classes is only with the President but after consultation with the Governor of the State. It is submitted that expression the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory has to be given meaning and it is only list issued by public notification Under Sub-clause (1) which is the list of backward classes of a State or Union territory. No other list is contemplated. Hence, the State has no authority or jurisdiction to identify backward classes or issue any list that is so called State List. Further interpreting Sub-clause (2) of Article 342A, it is submitted that use of expression Central List in Sub-clause (2) is only to refer the list specified by the notification in Sub-clause (1) of Article 342A and expression Central List has been used in the above context. 398. Elaborating the argument, it is further contended that the definition given i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J, speaking for himself, A.K. Sikri and A.M. Khanwilkar, JJ., laid down that although, primarily, it is a literal Rule which is considered to be the norm while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provisions, sometimes, does not serve the purpose of a living document. In paragraph 135 following was laid down: 135. The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The constitutional courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty-bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal Rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreting constitutional provisions has burgeoned this shift from the literal Rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in R. (Quintavalle) v. Secy. of State for Health [R. (Quintavalle) v. Secy. of State for Health, (2003) 2 AC 687 : (2003) 2 WLR 692 : 2003 UKHL 13 (HL)] ruled: (AC p. 700, para 21) 21. ... The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson [River Wear Commissioners v. Adamson, (1877) LR 2 AC 743, at p. 763 (HL)]. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context.... (emphasis supplied) 156. Emphasising on the importance of dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and Integrated to make the system workable in a satisfactory manner.' [Ed.: As observed in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, p. 699, para 468.] * * * 766. It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so. 403. Justice Dipak Misra in the Constitution Bench further laid down in paragraph 284.11: 284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation or purposive interpretation. It was held that interpretation has, therefore, to consider not only the context of the law but the context in which the law is enacted. Justice Lokur extracted Bennion on Statutory Interpretation in paragraph 38 to the following effect: 38. In Bennion on Statutory Interpretation [6th Edn. (Indian Reprint) p. 847] it is said that: General judicial adoption of the term purposive construction is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognized since the seventeenth century. [Stock v. Frank Jones (Tipton) Ltd., (1978) 1 WLR 231 at p. 234] In fact the recognition goes considerable further back than that. The difficulties over statutory interpretation belong to the language, and there is unlikely to be anything very novel or recent about their solution ... Little has changed over problems of verbal meaning since the Barons of the Exchequer arrived at their famous resolution in Heydon case [Heydon Case, (1584) 3 Co Rep 7a: 76 ER 637]. Legislation is still about remedying what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities free from religious considerations, therefore, must be avoided. This Court has in several pronouncements ruled that while interpreting an enactment, the Courts should remain cognizant of the constitutional goals and the purpose of the Act and interpret the provisions accordingly. 76. Extending the above principle further one can say that if two constructions of a statute were possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so. 77. To somewhat similar effect is the decision of this Court in State of Karnataka v. Appa Balu Ingale [State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762] wherein this Court held that as the vehicle of transforming the nation's life, the Court should respond to the nation's need and interpret the law with pragmatism to further public welfare and to make the constitutional animations a reality. The Court held that Judges should be cognizant of the constitutional goals and remind themselves of the purpose of the Act while interpreting any legislation. The Court said: (SCC p. 486, para 35) 35. The Judges, therefore, should respond to the hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e backward classes. We have extracted above the relevant statement of Minister in the foregoing paragraphs. 410. We may further notice that the above statement was made by the Minister of Social Justice and Empowerment in the background of several members of the Parliament expressing their apprehension that the Constitution 102nd Amendment shall take away rights of the States to identify backward classes in each State. The Minister of Social Justice and Empowerment for allaying their apprehension made a categorical statement that the Constitutional Amendment shall not affect the power of the State, the State Backward Classes Commission to identify the backward classes in the State. 411. Learned Attorney General for India in his submission has referred to the statement of Minister of Social Justice and Empowerment as well as Parliamentary Select Committee report and has emphasised that the Parliamentary intention was never to take away the rights of the States to identify backward classes in their respective States. Learned Attorney General has referred to and relied on the Union's stand taken in Writ Petition (C) No. 12 of 2021-Dinesh B. v. Union of India and Ors., where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence when the Constitution was enforced. We may refer to Government of India Act, 1935, Schedule (1), paragraph 26 which defines the Scheduled Castes in the following words: 26.-(1) In the foregoing provisions of this Schedule the following expressions have the meanings hereby assigned to them, that is to say: ...... ...... ... the scheduled castes means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty in Council to correspond to the classes of persons formerly known as the depressed classes , as His Majesty in Council may specify; and... 416. The Government of India has also issued a Scheduled Castes List under the Government of India Scheduled Castes Order 1936. The Constitution framers were, thus, well aware with the concept of Scheduled Casts and Scheduled Tribes and hence the same scheme regarding SC was continued in the Constitution by way of Article 341 of the Constitution. 417. The expression 'backward class' does not find place in the Government of India Act, 1935. The Constitution framers recognising that backward classes of citizens nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides as follows: 9. Functions of the Commission.-(1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. (2) The advice of the Commission shall ordinarily be binding upon the Central Government. 420. The National Commission for Backward Classes Act, 1993 clearly indicates that the Parliamentary enactment was related to services under the Government of India and the Act, 1993 was not to govern or regulate identification of backward classes by the concerned State. The States had also enacted State Legislation constituting Backward Classes Commission. In the State of Maharashtra, Maharashtra State Backward Classes Commission, act was enacted in 2005. Along with passing of the Constitution 102nd Amendment, the National Commission for Backward Classes (Repeal) Act, 2018 was passed which received the assent of the President of India on 14.08.2018. We may notice Section 2 of the Repeal Act which is to the following effect: Section 2.(1) The National Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribes.-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. 423. Article 341(1) uses expression 'Scheduled Castes' and the same expression finds place in Sub-clause (2) when the Sub-clause (2) of the Article uses expression list of Scheduled Castes specified in notification. Similarly, Article 342(2) also uses expression 'list of Scheduled Tribes' specified in the notification. 424. Article 342A(2) uses an extra word Central before the expression 'List' of socially and educationally backward classes. If it is to be accepted that the constitutional scheme of Articles 341 and 342 was to be followed and carried in Article 342A also, the same expression, which was necessary to be used i.e. list of socially and educationally backward classes which use would have been in line of the expression occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 102nd Constitutional Amendment. 428. We have already noticed Section 2(c) and 9 of 1993 Act. We may also notice Section 11 of 1993 Act which provides: 11. Periodic revision of lists by the Central Government.-(1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes. (2) The Central Government shall, while undertaking any revision referred to in Sub-section (1), consult the Commission. 429. Section 2(c), 9 and 11 makes it clear that list prepared by the Central Government from time to time for reservation of appointments or posts in favour of backward classes in the services under the Government of India and any local or other authority, within the territory of India or under the control of Government of India was an statutory exercise of the Government of India under the 1993 Act. All the lists which were issued after 1993 Act by the Government of India were by executive or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to list of backward class issued by Government of India from time to time under 1993 Act, the Constitution Amendment was brought as was brought by Constituent Assembly by Draft Article 341 and 342. Now, by virtue of Article 342A, the list once issued by the President Under Article 342A(1) cannot be tinkered with except by way of Parliamentary enactment. Thus, the above was the objective of the Constitutional Amendment and not the taking away the power of the States to identify the Backward Class in State with regard to reservation for employment in the State services and reservation in educational institution in the States. A laudable objective of keeping away political pressure in amending the list of Backward class issued by President once has been achieved, hence, it cannot be said that the 102nd Constitutional Amendment was without any purpose if the power of State to identify Backward classes in their State was to remain as it is. 434. The above also sufficiently explain the stand taken by Minister of Social Justice and Empowerment on the floor of House. The Minister clarified that the Constitutional Amendment is not to take away the power of the State to identif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Government. The determination, i.e., identification of the backward classes was, thus, left to the local Government as was clearly and categorically stated by Dr. Ambedkar in the Constituent Assembly debates. It is most relevant for the present discussion to quote the exact words used by Dr. Ambedkar while answering the debate on draft sub-clause, Article 10(3) which is Article 16(4) of the present Constitution: Somebody asked me: What is a backward community ? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. 438. The framers of the Constitution, thus, had contemplated that determination of backward class as occurring in draft Article 10(3), i.e., present Article 16(4) is to be done by the local Government. The constitutional scheme, thus, was framed in accordance with the above background. After the Constitution, it is for the last 68 years backward class was being identified by the respective State Governments and they were preparing their respective lists and granting reservation Under Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. The Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 Sub-clause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above. 441. The High Court in the impugned judgment has correctly interpreted the Constitution 102nd Amendment and the opinion of the High Court that the Constitution 102nd Amendment does not take away the legislative competence of Maharashtra Legislature is correct and we approve the same. (15) Conclusions. 442. From our foregoing discussion and finding we arrive at following conclusions: (1) The greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is: (i) Reservation Under Article 16(4) should not exceed 50%. (ii) For exceeding reservation beyond 50%, extra-ordinary circumstances as indicated in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eighty-first Amendment) Act, 2000 by which Sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% has now received constitutional recognition . (10) We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression on being out of the main stream of national life , is a social test, which also needs to be fulfilled for a case to be covered by exception. (11) We do not find any substance in any of the 10 grounds urged by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring the judgment of Indra Sawhney to a larger Bench. (12) What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have examined the issues regarding representation of Marathas in State services on the basis of facts and materials compiling by Commission and obtained from States and other sources. The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services. (20) The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented. Indra Sawhney has categorically held that what is required by the State for providing reservation Under Article 16(4) is not proportionate representation but adequate representation. (21) The constitutional precondition as mandated by Article 16(4) being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional provisions. (26) We are of the considered opinion that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per Sub-clause(9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision. Sub-clause (9) of Article 338B uses the expression 'consultation'. It is true that the expression 'consultation' is not to be read as concurrence but the 'consultation' has to be effective and meaningful. The object of consultation is that 'consultee' shall place the relevant material before person from whom 'consultation' is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation. (27) It is, thus, clear as sun light that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State. (28) When the Parliamentary intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d struck down. (b) Section 4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation Under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or unaided by the State, other than minority educational institutions, is declared ultra vires to the Constitution and struck down. (c) Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down. (d) That admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue. (e) The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4, 5 and 6. 447. In view of the cleavage of opinion on the interpretation of Article 342A of the Constitution, it is my duty to give reasons for my views in accord with the judgment of Justice S. Ravindra Bhat. In proceeding to do so, I am not delving into those aspects which have been dealt with by him. 448. Article 342A 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. 449. Article 366(26C) which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 (1) SCR 360 . Oliver Wendell Holmes Jr. has famously said in a letter, I do not care what their intention was. I only want to know what the words mean. Cited in Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law Review, Vol. 47, No. 4, 527-546 (1947), 538. If the language of the meaning of the statute is plain, there is no need for construction as legislative intention is revealed by the apparent meaning Adams Express Company v. Commonwealth of Kentucky, 238 US 190 (1915) . Legislative intent must be primarily ascertained from the language used in statute itself. United States v. Goldenberg, 168 US 95 (1897) 451. In his book Purposive Interpretation in Law, Aharon Barak, Purposive Interpretation in Law, (Sari Bashi transl.), (Princeton: Princeton University Press, 2005). Aharon Barak says that constitutional language like the language of any legal text plays a dual role. On the one hand, it sets the limits of interpretation. The language of the Constitution is not clay in the hands of the interpreter, to be molded as he or she sees ft. A Constitution is neither a metaphor nor a non-binding recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and purpose of constitutional amendment always throw light on the constitutional provisions but for interpreting a particular constitutional provision, the constitutional scheme and the express language employed cannot be given a go-by. He further held that the purpose and intent of the constitutional provisions have to be found from the very constitutional provisions which are up for interpretation. 454. 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 Anr. aspect conveys the concept of 'purpose' and 'object' or 'reason' or 'approach' pervading through the statute. The process of construction, therefore, combines both liberal and purposive approaches. However, necessity of interpretation would arise only where a languag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re intended can be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. A construction which furthers the purpose or object of an enactment is described as purposive construction. A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose. Bennion on Statutory Interpretation, Fifth Edition Pg. 944 If that is the case, there is no gainsaying that purposive interpretation based on the literal meaning of the enactment must be preferred. 458. In case of ambiguity this Court has adopted purposive interpretation of statutory provisions by applying Rule of purposive construction. In the instant case, the deliberations before the Select Committee and its report and Parliamentary Debates were relied upon by the Respondents in their support to asseverate that the object of Article 342A is to the effect that the power of the State legislature to ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and rely upon the legislative history to construe Article 342A contrary to the language. I am not persuaded to agree with the submissions of the learned Attorney General and the other counsel for the States that Article 342A has to be interpreted in light of the Select Committee report and discussion in the Parliament, especially when the legislative language is clear and unambiguous. 461. 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 Section 309, Bennion on Statutory Interpretation, 5th Edition. . There is no dispute that the statement of objects and reasons do not indicate the purpose for which Article 342A was inserted. During the course of the detailed hearing of these matters, we repeatedly probed from counsel representing both sides about the purpose for inserting Article 342A in the Constitution. No satisfactory answer was forthcoming. In spite of our best efforts, we could not unearth the reason for introduction of Article 342A. As the purpose is not clear, literal construction of Article 342A should be resorted to. 462. Craies culled out the following p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mean such backward classes as are so deemed Under Article 342A 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. (See: Cough v. Gough, (1891) 2 QB 665, Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990) 3 SCC 682 and P. Kasilingam v. P.S.G. College of Technology, 1995 SCC Supl. (2) 348.) When a definition Clause is defined to mean such and such, the definition is prima facie restrictive and exhaustive. Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 464. The legislature can define its own language and prescribe Rules for its construction which will generally be binding on the Courts Collins v. Texas, 223 U.S. 288 . Article 366 (26) (c) makes it clear that, it is only those backward classes as are so deemed Under Article 342A which shall be considered as socially and educationally backward classes for the purposes of the Constitution and none else. No other class can claim to belong to 'socially and educationally backward classes' for the purposes of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e text, but it cannot add lines to the text. To do so would be to fill a gap or lacuna, using interpretative doctrines . Barak supra, 374. There is no reason for reading Article 342A(1) in any other manner except, according to the plain legal meaning of the legislative language. The words 'Central list' is used in Article 342A(2) have created some controversy in construing Article 342A. To find out the exact connotation of a word in a statute, we must look to the context in which it is used Nyadar Singh v. Union of India 1988 4 SCC 170 . No words have an absolute meaning, no words can be defined in vacuo, or without reference to some context Professor HA Smith cited in Union of India v. Sankalchand Himmat Lal Seth (1977) 4 SCC 193 . Finally, the famous words of Justice Oliver Wendell Holmes Jr. the word is not a crystal transparent and unchanged; it is a skin of a living thought and may vary in colour and content according to the circumstances and the time in which it is used . Towne v. Eisner, 245 U.S. 425 (1918) 468. Article 342A(2) provides that inclusion or exclusion from Central list of socially and educationally backward classes specified in a notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the opinion of Justice S. Ravindra Bhat. 470. A conspectus of the above discussion would be that only those backward classes included in the public notification Under Article 342A shall be socially and educationally backward classes for the purposes of the Constitution. Hemant Gupta, J. I have gone through the judgments authored by learned Hon'ble Shri Ashok Bhushan, J., Hon'ble Shri S. Ravindra Bhat, J. and also the order authored by Hon'ble Shri L. Nageswara Rao, J. I am in agreement with the reasoning and the conclusion on the Question Nos. 1, 2 and 3 in the judgment rendered by Hon'ble Shri Ashok Bhushan, J., as well as additional reasons recorded by Hon'ble Shri S. Ravindra Bhat, J. and by Hon'ble Shri L. Nageswara Rao, J. I entirely agree with the reasoning and the conclusions in the judgment and order authored by Hon'ble Shri S. Ravindra Bhat, J. and Hon'ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6. S. Ravindra Bhat, J. 471. Franklin D. Roosevelt, the great American leader, once said that The test of our progress is not whether we add more to the abundance of those who have much; it is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Maharashtra Act No. I of 2015. , which was challenged before the Bombay High Court. In Writ Petition No. 3151/2014. 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) Report of the Committee, page 10. , the Commission, on the basis of the surveys and studies it commissioned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty about the existence of the Rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subbarao, in T. Devadasan v. Union of India 1964 (4) SCR 680, the judgments of S.M. Fazal Ali and Krishna Iyer, JJ. in State of Kerala v. N.M. Thomas 1976 (2) SCC 310 and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 1985 SCR Suppl. (1) 352) is not an argument compelling a review or reconsideration of Indra Sawhney rule. 480. The Respondents had urged that discordant voices in different subjects (Devadasan, N.M. Thomas and Indra Sawhney) should lead to re-examination of the ratio in Indra Sawhney. It would be useful to notice that unanimity in a given bench (termed as a supermajority ) - denoting a 5-0 unanimous decision in a Constitution Bench cannot be construed as per se a strong or compelling reason to doubt the legitimacy of a larger bench ruling that might contain a narrow majority (say, for instance with a 4-3 vote, resulting in overruling of a previous unanimous precedent). The principle of stare decisis operates both vertically-in the sense that decisions of appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts shows the anxiety of this Court to decisively Rule on the subject of reservations under the Constitution - in regard to backward classes and socially and educationally backward classes. This is also evident from the history of Article 15(4) which was noticed and the phraseology adopted (socially and educationally backward classes) which was held to be wider than backward classes though the later expression pointed to social backwardness. Such conclusions cannot be brushed aside by sweeping submission pointing to the context of the adjudication in Indra Sawhney. 484. The argument on behalf of the States -that a decision is to be considered as a ratio only as regards the principles decided, having regard to the material facts, in the opinion of this Court, the reliance upon a judgment of this Court in Krishena Kumar and Anr. v. Union of India and Ors. (1990) 4 SCC 207 in the opinion of this Court is insubstantial. The reference of the dispute, i.e. notification of various backward classes for the purpose of Union public employment Under Article 16(4) and the issuance of the OM dated 1990 no doubt provided the context for the Court to decide as it did in Indra Sawhney. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution. 486. Both show that the extent of whether a 50% limit is applicable, was considered by all the judges. Therefore, the arguments on behalf of the States and the contesting Respondents in this regard are unmerited. Likewise, to say that whether a 50% limit of reservation existed or not was not an issue or a point of reference, is without basis; clearly that issue did engage the anxious consideration of the court. 487. The States had argued that providing a ceiling (of 50%) amounts to restricting the scope of Part III and Part IV of the Constitution. A provision of the constitution cannot be read down as to curtail its width, or shackle state power, which is dynamic. The state legislatures and executives are a product of contemporary democratic processes. They not only are alive to the needs of the society, but are rightfully entitled to frame policies for the people. Given the absence of any caste census, but admitted growth of population, there can be no doubt that the proportion of the backward classes has swelled, calling for greater protection Under Articles 15 (4) and 16 (4). Also, every generation has aspirations, which democratically elected governments ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. 490. Identical observations were made in Jindal Stainless (supra). In Union of India v. Raghubir Singh 1989 (3) SCR 316, a Constitution Bench articulated the challenges often faced by this Court: ....The social forces which demand attention in the cauldron of change from which a new society is emerging appear to call for new perceptions and new perspectives.....The acceptance of this principle ensured the preservat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of classification vested in the state, to adopt protective discrimination policies, there is an element of obligation, or a duty, to equalize those Sections of the population who were hitherto, invisible or did not matter. The reach of the equalizing principle, in that sense is compelling. Thus while, as explained by this Court in Mukesh Kumar v. State of Uttarakhand (2020) 3 SCC 1 there is no right to claim a direction that reservations should be provided (the direction in that case being sought was reservation in promotions in the state of Uttarakhand), the court would intervene if the state acts without due justification, but not to the extent of directing reservations. As this Court did, in P T Scheduled Caste/Tribe Employee Welfare Association v. Union of India and Ors. 1988 SCR Suppl. (2) 623, when, upon withdrawal of a government order resulted in denial of reservation in promotion, hitherto enjoyed by the employees. The court held: While it may be true that no writ can be issued ordinarily competing the Government to make reservation Under Article 16 (4) which PG No. 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he glass ceiling-in short, imparting dimensions in democratic governance which were absent. The idea of empowerment is articulated in the judgment of Jeevan Reddy, in Indra Sawhney firstly in Para 694: The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted thereinto and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities -- to give them a share in the administrative apparatus and in the governance of the community. and then, in Para 788. that the object of Article 16(4) was empowerment of the backward classes. The idea was to enable them to share the state power. 494. A constant and recurring theme in the several judgments of Indra Sawhney was the concept of balance. This expression was used in two senses-on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented. Objective being to remove disparity and enable the unfortunate ones in the society to share the services to secure equality in, 'opportunity and status' any State action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. Absence of either renders the action suspect. Both must exist in fact to enable State to assume jurisdiction to enable it to take remedial measures....States' latitude is further narrowed when on existence of the two primary, basic or jurisdictional facts it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of equality pledged and guaranteed to every citizen and tested on the anvil of reasonableness to smoke out any illegitimate use and restrict the State from crossing the clear constitutional limits. 496. Constitutional adjudication involves making choices, which necessarily means that lines have to be drawn, and at times re-drawn-depending on the cauldron of change A phrase used in Raghubir Singh (supra). It has been remarked that decisions dealing with fundamental concepts such as the equality Clause are he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plays a role in this process. Interpretation involves an element of line drawing, of making choices. This Court's decisions are replete with such instances. The doctrine of classification is the first instance where this Court drew a line, and indicated a choice of interpretation of Article 14; likewise, right from In re Kerala Education Bill 1959 SCR 995 to T.M.A. Pai Foundation v. State of Karnataka 2002 (8) SCC 481, a textually absolute fundamental right, i.e. Article 30 has been interpreted not to prevent Regulation for maintenance of educational standards, and legislation to prevent mal-administration. Yet, whenever a choice is made in the interpretation of a provision of this constitution, and a limit indicated by a decision, it is on the basis of principle and principle alone. 499. As noticed previously, the search of this Court, in Indra Sawhney - after an exhaustive review of all previous precedents, was to indicate an enduring principle for application by courts, that would strike the just balance between the aspirational rights - and the corresponding duty of the states to introduce affirmative measures to combat inequality (Under Articles 15 [4] and 16 [4]) on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are zones of reasonableness The Judge in a Democracy, Aharon Barak at p. 248. This places the court in a difficult situation, where the state's choices require greater deference, and a corresponding narrowing of judicial review, given that the standard of review is the one indicated in Barium Chemicals. The South African Constitutional Court voiced a similar idea, in connection with an affirmative action program, when it observed that: The fairness of a measure differentiating on any prohibited ground depends not only on its purpose, but on the cumulative effect of all relevant factors, including the extent of its detrimental effects on non-designated groups . Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C. 501. In another case, City Council of Pretoria v. Walker, 1998 (3) BCLR 257 (CC) at para. 123. Sachs J.(of the South African Constitutional Court) remarked that: [p]rocesses of differential treatment which have the legitimate purpose of bringing about real equality should not be undertaken in a manner which gratuitously and insensitively offends and marginalises persons identified as belonging to groups who previously enjoyed advantage. 502. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be referred to a larger bench, is hereby rejected. Affirmative Action and the Reservation Paradigm Special Provisions 505. Before parting with this section, this opinion would dwell upon affirmative action, and possibilities under the Constitution, from a larger perspective. Most debates, and precedents in the country have centred round the extent of reservation and administration of quotas (reservations) Under Articles 15 (4) and 16(4). The term special provision in Article 15 (4) is of wider import, than reservations. Unlike the United States of America which - in the absence of a provision enabling such special provisions, and which has witnessed a turbulent affirmative action policy jurisprudence, the 1960s and 1970s witnessing the framing of policies and legislation, and the subsequent narrowing of minority and racial criteria, to support affirmative action, our Constitution has a specific provision. 506. During the hearing, it was pointed out that there are not enough opportunities for education of backward classes of citizens, and that schools and educational institutions are lacking. It was argued by the states that sufficient number of backward classes of y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e better off or would reap any automatic benefits. Here, it is relevant to consider that often, any debate as to the efficacy or extent of reservation, invariably turns to one stereotypical argument-of merit. Long ago, in his important work Marc Galanter, Competing Equalities - Law and the Backward Classes in India. - Marc Galanter had dealt with the issue of merit in this manner: Let us take merit to mean performance on tests (examinations, interview, character references or whatever) thought to be related to performance relevant to the position (or other opportunity) in question and commonly used as a measure of qualification for that position. (In every case it is an empirical question whether the test performance is actually a good predictor of performance in the position, much less of subsequent positions for which it is a preparation.) Performance on these tests is presumably a composite of native ability, situational advantages (stimulation in the family setting, good schools, sufficient wealth to avoid malnutrition or exhausting work, etc.), and individual effort. The latter may be regarded as evidence of moral desert, but neither native ability nor situational advantag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to judge the suitability. The basic problems of this country are mass-oriented. India lives in villages, and in slums in towns and cities. To tackle their problems and to implement measures to better their lot, the country needs personnel who have firsthand knowledge of their problems and have personal interest in solving them. What is needed is empathy and not mere sympathy. One of the major reasons why during all these years after Independence, the lot of the downtrodden has not even been marginally improved and why majority of the schemes for their welfare have remained on paper, is perceptibly traceable to the fact that the implementing machinery dominated as it is by the high classes, is indifferent to their problems.... There were observations earlier in the judgment of Chinnappa Reddy, J, in K.C. Vasant Kumar (supra). Anatole France had - in his ironic (and iconic) observations remarked once, that In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. 510. The previous rulings in Vasant Kumar (supra), and the comments of Dr. Amartya Sen in his work Merit and Justice were considered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 514. 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. 515. Central government scholarships are available to students from SC communities, for studies in Class IX and X, conditional to income of parents/guardians being less than ₹ 2,50,000 per annum. Eligible students must also not be covered by any other central government scholarships or fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry of Social Justice and Empowerment, available at http://socialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021). The scholarship covers tuition fee (capped at ₹ 2 lakhs per annum for private institutions), living expenses at ₹ 2220 per month, allowance for books and stationery, and a computer and accessories (capped at ₹ 45,000, as one time assistance). Eligibility criteria require total family income from all sources to be less than ₹ 8,00,000 per annum. Under this scheme, in 2020-21, the total budget allocation was ₹ 40 crores; of this, as on 31.12.2020 ₹ 24.03 crores were spent on 1550 beneficiaries. Annual Report, 2020-2021, pg. 68, Department of Social Justice Empowerment, Ministry of Social Justice and Empowerment, available at http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf, (Last accessed on 23.04.2021) For the previous years, i.e. 2016-17 to 2019-2020, the total allocated budget was ₹ 131.50 crores, with a total expenditure of ₹ 127.62 crores, on 6676 beneficiaries. Ibid 518. Similar pre-matric and post-matric scholarships are also available to ST stude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ric scholarship, ₹ 100/- per month for 10 months is given today scholars and ₹ 500/- per month for 10 months is given to hostellers. For the year 2020-2021 (as on 31.12.2020) a total budget of ₹ 175 crore was allocated, out of which ₹ 118.09 crore was provided to 200 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total of ₹ 759.9 crore was allocated, out of which ₹ 701.42 Crores was released to 463.08 lakh beneficiaries. Annual Report, 2020-2021, Department of Social Justice Empowerment, Ministry of Social Justice and Empowerment, p. 104-105, available at http://socialjustice.nic.in/writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf (Last accessed on 23.04.2021). 522. Under the post-matric scholarship for OBCs, for the year 2020-2021, a total budget of ₹ 1100 crore was allocated, out of which, ₹ 802.27 crores were provided to 80 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total budget of ₹ 5,035.75 crore was allocated, out of which ₹ 4,827.89 crore was released for 207.96 lakh beneficiaries. Ibid., at p. 105. 523. A national fellowship is also available to OBC s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69.4% for STs, 72.2% for SCs, 77.5% for OBCs, and 85.9% for others. Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at http://mospi.nic.in/sites/default/files/publication_reports/Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last accessed on 22.04.2021). 525. This data makes a case for an intensive study into diverse areas such as the adequacy or otherwise of scholarships, quantum disbursed, eligibility criteria (the maximum family income limit of ₹ 2,50,000/- possibly excludes large segments of beneficiaries, given that even Group D employment in the Central Government can result in exclusion of any scholarships to children of such employees), and reconsideration about introducing other facilities, such as incentivising scholarships, grants and interest free or extremely low interest education loans to widen the net of recipients and beneficiaries. States and the Union government may also revisit the threshold limits and their tendency to exclude otherwise deserving candidates. For instance, even if an SC/ST or SEBC household has an income of ₹ 6,00,000/- year, the denial of scholarship to a deserving student from that background cannot eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment. 527. The US Supreme Court held that the interference with the business opportunities of non-minority firms caused by the 10% set-aside program did not render the Act constitutionally defective. The Court rejected the alleged equal protection violation on the grounds that the Act ensured equal protection of the laws by providing minority businesses an equal opportunity to participate in federal grants. The later decision Adarand Constructors, Inc. v. Penal 515 U.S. 200 (1995) held that federal affirmative action programs are now subject to strict scrutiny, just as state and local programs were since 1989. The court held that federal racial classifications, like those of a state, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. South Africa 528. Under South Africa's Constitution of 1998, Chapter 2, Article 9(3) dealing with Equality reads thus: The state may not unfairly discriminate directly or indirectly against any one on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, cult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and representative trade unions, after which an audit of employment policies and practices in the workplace must be undertaken. Analysis of the information garnered in the audit is meant to assist in developing demographic profiles of the work force, and identifying barriers to the employment or advancement of designated groups. Under-representation of designated groups in all categories of work must also be identified. Quotas are expressly prohibited Under Section 15(3) of the Act. In 2003, the Black Economic Empowerment Act was legislated. This Act has as its purpose the economic empowerment of all black people, including women, workers, youth, people with disabilities and people living in rural areas . To measure compliance with black economic empowerment (BEE) requirements, the Department of Trade and Industry uses a balanced scorecard, consisting of three broad components. The scorecard will be used for government procurement, public-private partnerships, sale of state-owned enterprises, when licenses are applied for, and for any other relevant economic activity. Strategies aimed at levelling the playing field may include the elimination of employment barriers such as adapti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The purpose of Section 14(l) is not simply to exempt or protect affirmative action programs from challenge. It is also an interpretative aid that clarifies the full meaning of equal rights by promoting substantive equality . (1994) 21 CHRR (Ont CA) D/259 at D/265. Possibilities for Affirmative Action other than Reservation in India 534. The US practice of encouraging diversity by incentivising it by for instance, the award of government contracts to firms that have a good record of recruiting members from racially or ethnically disadvantaged groups, has found echo in policies in Madhya Pradesh. Other States such as UP, Bihar, Karnataka, AP and Telangana have followed a policy of affirmative action in awarding contracts and in that manner protecting SC and ST entrepreneurs' entry into trade, business and other public works as contractors. Recently, Karnataka enacted a legislation, namely, the Karnataka Transparency in Public Procurement (Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts in all Government works, public contracts up to ₹ 50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of Government work w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also pay attention to supplier diversity in matters of procurement. By encouraging supplies from firms owned by SCs, STs, or those from backward class or deprived classes, the large organized private sector in India could give a huge boost to the micro, medium and small enterprises owned by entrepreneurs from such marginalized groups. Indeed, this is also one of the planks used in the USA, for instance, where minority-owned businesses are not only given active financial incentives by the government, but larger firms are expected to source a part of their supplies from minority-owned businesses. Given that typically, SC, ST and backward class individuals owned micro enterprises are likely to employ greater proportion of persons from these communities (as compared to enterprises owned by upper-caste groups), an active supplier diversity programme would also boost employment. 538. In view of all these developments, it is time that the states and the Union government gather data about the extent and reach of the existing schemes for employment, and in the field of education, take steps to ensure greater access, by wherever necessary, increasing funding, increasing the number and ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect the federal policy/structure of the Constitution of India? And Point No. 5 Whether, States' power to legislate in relation to any backward class Under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? I. Relevant provisions in consideration 540. Both the above points of reference, by their nature, have to be and therefore, are considered together. The Constitution (123rd Amendment) Bill, 2017, after its passage became the Constitution (One Hundred and Second Amendment) Act, 2018; it received the assent of the President of India and came into force on 15.08.2018. The amendment inserted Articles 338B and 342A. These are reproduced below: 338B. (1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) The Commission shall, while investigating any matter referred to in Sub-clause (a) or inquiring into any complaint referred to in Sub-clause (b) of Clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes. xxxxxx xxxxxx xxxxxx 342A. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any class of citizens as a backward class in the Lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Now, in order to safeguard the interests of the Socially and Educationally Backward Classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes. 4. The National Commission for the Scheduled Castes has recommended in its Report for 2014-15 that the handling of the grievances of the Socially and Educationally Backward Classes under Clause (10) of Article 338 should be given to the National Commission for Backward Classes. 5. In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following, namely: (a) to insert a new Article 338 so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice-Chairperson and three other Members. The said Commission will hear the grievances of Socially and Educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had required the setting up of permanent Commissions for identifying communities or castes such as backward classes to enable their notification by their respective governments. In the light of this recommendation and having regard to the principal existing provision Under Article 340, Parliament had enacted the National Commission for Backward Classes Act, 1993 (hereafter the NCBC Act ). That enactment used the expression, Central list in Section 2(c) Defined as lists means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India; 545. Learned Counsel for the Appellants submitted that while amending the Constitution, the expression Central List meant the List to be published by the President on the aid and advice of the Council of Ministers, after consultation with the Governors, i.e., the aid and advice of the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the Constitution was made. Learned Counsel urged that the position adopted by the States, i.e., that they were not denuded of executive and legislative power and that the amendment only sought to give additional constitutional status to the existing NCBC is unfounded. It was pointed out that before the coming into force of the Constitution (102nd Amendment) Act, 2018, Article 340 existed under the original Constitution. Parliament, in exercise of its legislative power, enacted the NCBC Act. The NCBC had existed for 27 years and had conducted surveys and identified several communities as backward. The lists published by it were in existence and were in use by the Central Government for its purposes, including in public employment. Undoubtedly, not all communities included in the States' lists were part of the NCBC list. However, the list was broadly common to a large extent. Learned Counsel emphasized that there was no necessity for bringing any constitutional amendment if the new Commission were to be given constitutional status and the lists published by it, made binding only on the Central Government which was to acquire such high degree of status that it could be modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; in addition, different States also set up permanent commissions to identify communities as backward classes for the purpose of Constitution. Those Commissions were set up in exercise of legislative powers traceable to one or the other Entry in List II of the Seventh Schedule to the Constitution. The plenary legislative power of the States remains unaltered. That being the case, this Court should not accept the Appellants' submission that Articles 338B and 342A place fetters upon the exercise of such legislative power as well as executive power of the States. 550. Learned Counsel submitted that this Court should closely examine the contents of the report of the Select Committee of the Rajya Sabha, and the statements made by the Government, particularly that the power and jurisdiction of the States would remain unaffected. It was further urged that this Court can and should and ought to have looked into the contents of these reports to discern the true meaning and intent behind the Constitution (One Hundred and Second Amendment) Act, 2018, which was not to disrupt the existing legislative arrangement between the Centre and the State. In this regard, learned Counsel placed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower Under Article 341 and Article 342, is inapt, because those were original provisions of the Constitution, having a historical background. It was submitted that the states' responsibilities to uplift the lot of weaker sections, apparent from the directive principle Under Article 46, is through affirmative policies Under Articles 15(4) and 16(4). To alter this balance, which had existed from the beginning of the coming into force of the Constitution, is too drastic, and nothing in the debates leading to the 102nd Amendment, or in any material, such as the Select Committee Report, suggests that end. 554. The learned Attorney General also submitted that the object of the 102nd amendment was to ensure that a commission with constitutional status would periodically examine the needs of socially and educationally backward classes ( SEBC hereafter), and suggest inclusion or exclusion of such classes, in a list for the purposes of Central Government, or central public sector corporation employment, and extension of other benefits under union educational and other institutions, Under Articles 15 (4) and 16 (4). In case such a list is drawn and published Under Article 342A (1), it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itish 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. Soosai Etc v. Union of India 1985 Supp (3) SCR 242. Article 338 as originally enacted, provided for appointment of a special officer for the SCs and STs to investigate all matters relating to the safeguards provided for the SCs and STs under the Constitution and to report to the President on their working. In 1990, this position changed, and the Constitution (Sixty Fifth) Amendment Act was enacted to create a five-member commission Under Article 338. The statement of objects Statement of Objects and Reasons, Constitution Sixty fifth Amendment Act, 1990 envisioned that such a commission would be a more effective arrangement in respect of the constitutional safeguards for Scheduled Castes and Scheduled Tribes than a single Special Officer as at present. It is also felt that it is necessary to elaborate the functions of the said Commission so as to cover measures that should be taken by the Union or any State for the effective implementation of those safeguards and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by Rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commission for the Scheduled Tribes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by Rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission--(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; (c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. Article 342 342. Scheduled Tribes-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of this Constitution Under Article 366(24) and Article 366 (25). This has been established in the decision of this Court in Bhaiya Lal v. Harikishan Singh 1965 (2) SCR 877; Basavalingappa v. Munichinnappa 1965 (1) SCR 316 and Kishori Lal Hans v. Raja Ram Singh 1972 (3) SCC 1. The recent Constitution Bench decision in Bir Singh v. Delhi Jal Board (2018) 10 SCC 312, reiterated this position clearly: 36. The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued Under Article 341 in regard to Scheduled Castes and Under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate Under Articles 341 and 342 of the Constitution of India. ******** ******** 38. It is an unq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f citizens. That provision is as follows: 340. Appointment of a Commission to investigate the conditions of backward classes (1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission. (2) A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper. (3) The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament. 562. After the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nadu, Gujarat, Punjab and Haryana, the Commissions were set up by executive action. 564. This Court had at the earlier part of this section, set out the provisions of Article 366(26C), Article 338B and Article 342A. The Statement of Objects and Reasons for the introduction of these provisions-referred to compendiously as the 102nd Amendment-do not indicate any concrete purpose for the insertion of those provisions, except the general comment that Parliament wished to confer constitutional status on the Commission for determination of SEBCs. VII. The Constitution 123rd Amendment Bill, the 102nd Amendment Act and report of the Parliamentary Standing Committee 565. Learned Counsel for the Respondents as indeed the Appellants referred extensively to the deliberations recorded in and assurances given, and reflected in the Report of the Select Committee of the Rajya Sabha, submitted to the Parliament at the time when the 123rd amendment bill was introduced. A brief reference of this can now be made. The introduction (to the Report dated (July 2017) disclosed that in all, seven meetings were held by the Select Committee. The committee comprised 25 members, with a Secretariat of 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to Scheduled Castes and Article 342 of the Constitution provides consultation of President with Governor of State in respect of Scheduled Tribes. As is the practice, at not time has the State Government been excluded in the consultation process. It is always invariably the State Government which recommends to the President the category of inclusion/exclusion in Scheduled Castes and Scheduled Tribes. Similar provision is provided for in the case of conferring of constitutional status for backward classes for inclusion in Central list of socially and educationally backward classes. Consultation with Governor thereby implies consultation with the State Government. 567. In its clause-by-clause consideration of the Bill, the Committee noted the apprehension with respect to setting up of a new Commission in Article 342B instead of creating it Under Article 340. In this context, a clarification was issued that Article 340 enabled setting up of ad hoc bodies like the Kaka Kalelkar Commission and Mandal Commission, whereas Article 338B sought to confer Constitutional status on a multi-member permanent body. Paras 31-34 of the Report discussed the membership of the composition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed Article 342A (4). 571. Other amendments with respect to placing the report of the Commission Under Article 338B before both Houses of Parliament, consultation with the governor to be based upon advice given to the governor by the state commission for backward classes, and amendment of the list Under Article 342A (1) being only through a law based upon recommendations of the Commission Under Article 338A and 338B and also obliging and revision of the list in ten year periods, were suggested. 572. All these were duly considered in the Committee's Report and not accepted, stating as follows: 54. The Ministry, on the amendments moved, clarified that time bound decadal revision of lists by the proposed Commission, is a continuous process. The Commission however, is empowered to enquire into specific complaints with respect to the deprivation of right and safeguards of the socially and educationally backward classes. 55. The Ministry clarified that the aspect of reservation of posts under that State or under any other authority of the State or under the control of the State, or seats in the educational institutions within that State was beyond the purview of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general observations, a part of which stated that: 66. The Committee feels that the Constitutional Amendments proposed in this Bill would further strengthen affirmative action in favour of socially and educationally backward classes as well as further boost concept of cooperative federalism between the Centre and States. 67. The Committee observes that the amendments do not in any way affect the independence and functioning of State Backward Classes Commissions' and they will continue to exercise unhindered their powers of inclusion/exclusion of other backward classes with relation to State List. 68. The Committee also took note of the concerns raised by some Members regarding the composition of the Commission and would like to impress upon the Ministry that while addressing the concerns of the Members the Rules framed for the Chairperson and Members of the National Commission for Scheduled Casts and National Commission for Scheduled Tribes may be taken into consideration. The Committee is of the view that while framing the Rules for composition of the proposed Commission and selection of its Chairperson it should be ensured that the persons belonging to socially and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Committee that the phrase for the purpose of this Constitution as provided under Clause (1) of Article 342A is on lines similar to articles 341 and 342 of the Constitution. The setting up of the proposed Commission will not be retrograde to the interest of the socially and educationally backward classes. The Article 342A will provide for a comprehensive examination of each case of inclusion/exclusion from the Central List. The ultimate power for such inclusion/exclusion would stand vested with the Parliament. 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. 577. There cannot be a disagreement with the proposition that where the provisions of the statute or its wordings are ambiguous, the first attempt should be to find meaning, through internal aids, in the statute itself. Failing this, it is open to the court to find meaning, and resolve the ambiguity, by turning to external aids, which include the statements of objects and reasons, as well as Parliamentary reports, or debates in Parliament. To this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect conflict with express provisions of the Constitution or to ruling them out of existence. 578. The primary duty of this Court, while interpreting a constitutional provision (in the present case, an amendment to the Constitution, no less) was underlined thus, in GVK Industries Ltd. v. Income Tax Officer (2011) 4 SCC 36 37. In interpreting any law, including the Constitution, the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. However, in light of the serious issues it would always be prudent, as a matter of constitutional necessity, to widen the search for the true meaning, purport and ambit of the provision under consideration. No provision, and indeed no word or expression, of the Constitution exists in isolation--they are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution. 38. Our Constitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within that constitutional matrix could one hope to be able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body of the statute unless the context requires otherwise. The context as pointed out in the book Cross-Statutory Interpretation (2nd edn. p. 48) is both internal and external . The internal context requires the interpreter to situate the disputed words within the Section of which they are part and in relation to the rest of the Act. The external context involves determining the meaning from ordinary linguistic usage (including any special technical meanings), from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law Rules and principles. 19. The opening sentence in the definition of the Section states unless there is anything repugnant in the subject or context . In view of this qualification, the court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the legislature. 580. Again, in Karnataka State Financial Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary right vested in the State or in any way to affect the State Governments' rights as owner of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute. *** 25. In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the Regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well-known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used. 582. The position in UK is that that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Sub-article (26C) into the definition Clause Under Article 366. This insertion, in the opinion of the court, accords with the statutory scheme of defining terms for the purposes of the Constitution. This term for the purposes of this Constitution occurs twelve times Articles 108 (4);299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366 (26C) and 367 (3) in the Constitution. 585. 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 pari materia provision, i.e. Articles 366 (24) and (25) which defined SCs for the purposes of this constitution . In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College 1990 SCC (3) 130, a Constitution Bench of this Court held as follows: 12. It is, however, necessary to give proper meaning to the expressions 'for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the only way in which the fundamental rights of the Petitioner Under Articles 14, 19(1)(d), 19(1) (e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words for the purposes of this Constitution must be given full effect. There is no dispute about that. The words for the purposes of this Constitution must mean that a Scheduled Caste so designated must have right Under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression in relation to that State would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tection or it would denude the other non-Scheduled Castes or non-Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution. (emphasis supplied) 586. This Constitution Bench decision was followed in another decision, again by five judges in Action Committee on Issue of Caste Certificate to Scheduled Castes Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. (1994) 5 SCC 244, when this Court reiterated its previous view in Marri (supra) and observed further as follows: 16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of the power Under Article 341(2) of the Constitution, the Presidential Notification issued Under Article 341(1) is final and conclusive and any caste or group cannot be added to it or subtracted by any action either by the State Government or by a court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be Scheduled Tribes subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of Scheduled Tribes specified by the President. Thereafter, it cannot be varied except by law made by Parliament. 82. The President of India alone is competent or authorised to issue an appropriate notification in terms of Articles 341(1) and 342(1). Cumulative reading of Articles 338, 341 and 342 indicate that: (a) Only the President could notify castes/tribes as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public notification by the President specifying the particular castes or tribes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 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. 589. The interpretation of Articles 341 and 342 of the Constitution, read with Articles 366 (24) and 366 (25), have to, in our opinion, be the guiding factors in interpreting Article 366 (26C), which follows a similar pattern, i.e. of defining, for the purpose of the entire constitution, with reference to the determination of those communities who are notified as SEBCs, Under Article 342A (which again uses the expression for the purpose of this constitution ). 590. Quite similarly, when Article 366 was amended by the Forty Sixth amendment Act, and Article 366(29A) was introduced to Article 366, this Court considered the previous amendments, which are the 6th Amendment to the Constitution and the 46th Amendment which amended Article 269 and Article 286, besides introducing Entry 92A to the Union List. The Court went on to hold in a five-judge bench decision in 20th Century Finance Corpn. Ltd. v. State of Maharashtra (2000) 6 SCC 12, that the interpretation adopted by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -A) of Article 366 of the Constitution. 591. In a similar manner, the expression, unless the context otherwise provides [which is the controlling expression in Article 366(1)] was interpreted by an earlier Constitution Bench in Builders' Association of India v. Union of India (1989) 2 SCC 645 when the amendment to Article 366 was considered: 32. Before proceeding further, it is necessary to understand what Sub-clause (b) of Clause (29-A) of Article 366 of the Constitution means. Article 366 is the definition Clause of the Constitution. It says that in the Constitution unless the context otherwise requires, the expressions defined in that Article have the meanings respectively assigned to them in that article. The expression 'goods' is defined in Clause (12) of Article 366 of the Constitution as including all materials, commodities and articles. After discussing the previous decisions in respect of the unamended provisions, the court stated that: The emphasis is on the transfer of property in goods (whether as goods or in some other form). The latter part of Clause (29-A) of Article 366 of the Constitution makes the position very clear. While referring to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 286 of the Constitution which says that Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in Clause (1) of Article 286 would also be attracted to a transfer of goods contemplated Under Article 366(29-A)(b). Similarly Clause (3) of Article 286 is also applicable to a tax on a transfer of property referred to in Sub-clause (b) of Clause (29-A) of Article 366. Clause (3) of Article 286 consists of two parts. Sub-clause (a) of Clause (3) of Article 286 deals with a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce, which is generally applicable to all sales including the transfer, supply or delivery of goods which are deemed to be sales under Clause (29-A) of Article 366 of the Constitution. If any declared goods which are referred to in Section 14 of the Central Sales Tax Act, 1956 are involved in such transfer, supply or delivery, which is referred to in Clause (29-A) of Article 366, the sales tax law of a State which provides for levy of sales tax thereon will have to comply with the restrictions mentioned in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tangible property: 27. In our view, the term goods as used in Article 366(12) of the Constitution and as defined under the said Act is very wide and includes all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. [ (2001) 4 SCC 593] A software program may consist of various commands which enable the computer to perform a designated task. The copyright in that program may remain with the originator of the program. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become goods . ...... The term all materials, articles and commodities includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed, etc. The software programs have all these attributes. 596. It is therefore, apparent that whenever the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a construction on those entries which would have the effect of enabling the legislative body concerned to make a law not within the contemplation of the said articles would be plainly repugnant to the scheme of the Constitution. *** 39. The distinction between the scheme of Article 262 Entry 56 of List I and Entry 17 of List II and the scheme of Article 194 and Entry 39 of List II is this that in the case of inter-State water disputes neither of the abovementioned two entries make any mention of the adjudication of water disputes and only Article 262 deals with the topic. In the case on hand, the relevant portion of the text of Article 194(3) and Entry 39 of List II are almost identical and speak about the powers, privileges and immunities of the House, its Members and committees. 40. The question therefore is--Whether the text of Article 194(3) and Entry 39 is wide enough to authorise the legislature to make the Act? 41. In view of the fact that the text of both Article 194(3) and the relevant portion of Entry 39 are substantially similar, the meaning of the Clause the powers, privileges and the immunities of a House of the legislature of a State ... and of the Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30.] , introduced by virtue of the Constitution (Ninety Third Amendment) Act, 2005. It enabled the state to make special provisions for the advancement of any SEBCs or for SCs or STs as far as they related to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30 . This Court held that on a true construction, special provisions for admission to such category of candidates, even in private educational institutions, was permissible. The court inter alia, held that: 125. Both Articles 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the Communal G.O. in the State of Madras was struck down by this Court in Champakam Dorairajan case [1951 SCR 525]. In Unni Krishnan [(1993) 1 SCC 645] this Court held that Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion Territories and municipalities. It was argued that in many cases, the Union Territories had Legislative Assemblies, by statutory enactments, or special provisions, and in the case of municipalities, the Constitution had, through amendment, and introduction of Article 243X, authorized states to authorize municipal levies. The court repelled this argument, in New Delhi Municipal Council v. State of Punjab (1997) 7 SCC 339 at page 370 in a nine-judge ruling, stating as follows: 53. Before dealing with the specific circumstances of, and the decision in, each of these cases, it is necessary that a few provisions which figure prominently be dealt with. Article 246(4) of the Constitution, as it stood on 26-1-1950, allowed Parliament to make laws with respect to any matter for any part of the territory of India not included in Part A or Part B of the First Schedule . The Seventh Amendment Act brought about a number of changes affecting Union Territories, some of which have already been noticed by us. The other changes brought about by it are also relevant; it caused Article 246 to be changed to its present form where Parliament is empowered to make laws with respect to any part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment and cannot be said to have an independent status. Under our constitutional scheme, all taxation must fall within either of two categories: State taxation or Union taxation. Since it is axiomatic that taxes levied by authorities within a State would amount to State taxation, it would appear that the words or by any authority within a State have been added in Article 285(1) by way of abundant caution. It could also be that these words owe their presence in the provision to historical reasons; it may be noted that Section 154 of the 1935 Act was similarly worded. The fact that Article 289(1), which in its phraseology is different from Section 155 of the 1935 Act having been drafted by the Drafting Committee to meet specific objections, does not contain words similar to those in Article 285(1), will not in any way further the case of the Appellant, because the phrase Union taxation will encompass municipal taxes levied by Municipalities in Union Territories. It is noteworthy that the court was inter alia, guided by the definition of State in Article 367 of the Constitution of India. X. Interpreting provisions of the 102nd Amendment-Article 366 (26C), 338B and 342A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set up some permanent mechanisms in the form of commissions, to identify SEBCs through a systematic and scientific manner and carry on regular periodic reviews. The Respondent states emphasize that pursuant to this direction, state enactments were framed and brought into force. The arguments on their behalf as well as the Attorney General was that given these directions by a nine-judge bench, it could not be inferred that the 102nd Amendment was ever intended to bring about such a drastic change as to exclude the state's role altogether, in the task of making special provisions Under Article 15 (4) and Article 16 (4), in regard to identification of SEBCs. 605. It is correct that Indra Sawhney clearly voiced the need for the Central Government and the states to take measures for setting up permanent commissions or bodies, if need be through legislation, to carry out the task of identification of communities as SEBCs for the purposes of Articles 15 and 16. However, that articulation or even direction, could not have, in the opinion of this Court, been an injunction never to depart from the existing mechanisms of setting standards for identification of such classes, nor was it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a proposed amendment and insertion of Article 342A which had the effect of ousting the states' power, which they had hitherto exercised to identify SEBCs. 607. The debates in Parliament also witnessed members voicing apprehensions that the power hitherto enjoyed by the states, would be whittled down drastically. These fears were allayed by the concerned Minister who piloted the Bill before both Houses of Parliament. Extracts of these statements have been set out in extenso in the judgment of Ashok Bhushan, J.; they are not reproduced here, for the sake of brevity. 608. These materials show that there was on the one hand, an assumption that the changes ushered by the amendments would not disturb any part of states' powers; however, a sizeable number-8 members, after a careful reading of the terms of the amendment, dissented, saying that state power would be adversely impacted. In 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 Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the constitutional choices taken in framing our Constitution. 611. The use of external aids such as speeches and parliamentary reports was commented upon earlier, rather strongly, by Sabyasachi Mukherjee, CJ in the decision reported as DTC Mazdoor Congress v. Delhi Transport Corporation: 1990 SCR Supp. (1) 142 Construction or interpretation of legislative or Rule provisions proceeds on the assumption that courts must seek to discover and translate the intention of the legislature or the rule-making body. This is one of the legal fictions upon the hypothesis of which the framework of adjudication of the intention of a piece of legislation or Rule proceeds. But these are fictional myths to a large extent as experience should tell us. In most of the cases legislature, that is to say, vast majority of the people who are supposed to represent the views and opinions of the people, do not have any intention, even if they have, they cannot and do not articulate those intentions. On most of these issues their is no comprehension or understanding. Reality would reveal that it is only those who are able to exert their view-points, in a common parliamentary jargon, the power lobby, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 628 where it was held as follows: 26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [Salmon v. Duncombe, (1886) LR 11 AC 627 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. The courts, when Rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. [See B.B.C. Enterprises Ltd. v. Hi-Tech Xtravision Ltd. [B.B.C. Enterprises Ltd. v. Hi-Tech Xtravision Ltd., (1990) 2 All ER 118 : 1990 Ch 609 : (1990) 2 WLR 1123 (CA)] (All ER at pp. 122-23).] 615. Taking into consideration the amendment to Section 123 of the Representation of People's Act, which introduced a new corrupt practice, i.e. the candidate making an appeal on the basis of his religion or caste, this Court took the aid of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the grounds of the religion, race, caste, community or language of (i) any candidate, or (ii) his agent, or (iii) any other person making the appeal with the consent of the candidate, or (iv) the elector. 50.3. It is a matter of evidence for determining whether an appeal has at all been made to an elector and whether the appeal if made is in violation of the provisions of Clause (3) of Section 123 of the Representation of the People Act, 1951. 616. After the decision in Indra Sawhney, the NCBC Act was enacted by Parliament in 1993. The scheme of that enactment showed that the NCBC was tasked with making recommendations for various purposes; especially, (by Section 9 (1))) to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate . By all ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which per Article 366 (26C) means such backward classes as are so deemed Under Article 342A for the purposes of this Constitution in the Constitution, and provided for one notification Under Article 342A issued 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 Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission or authority. (e) The use of the expression for the purposes of this Constitution,-in Article 342A (1), also emphasizes the idea that for all purposes, i.e. Under Article 15 (4), 15 (5), and 16 (4), only the communities or classes deemed to be SEBCs Under Article 342A would be treated as such, in relation to the State or Union territory concerned. (f) Article 338 (10) was amended, to delete references to backward class of citizens. It originally stated that scheduled castes also included references to such other backward classes as the President may, on receipt of the report of a Commission appointed under Clause (1) of Article 340, by order specify and also . These expressions were omitted and an entirely new provision, exclusively for purpose of socially and educationally backward classes, was inserted (Article 338B), which has to independently consider all aspects relating to SCBCs, in a manner identical to SCs and STs. 620. If all these factors are kept in mind, there can be no room for doubt that the Central List in Article 342A (2) is none other than the list published in Article 342A(1) for the purposes of the Constitution. This means that after the introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Constitution-- foreign State means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order 4 declare any State not to be a foreign State for such purposes as may be specified in the order. By Section 3(8)(b) of that Act, Central Government means, after commencement of the Constitution, the President of India. General Clauses Act 3. Definitions--In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, ***** (8) Central Government shall-- (a) in relation to anything done before the commencement of the Constitution, mean the Governor General or the Governor General in Council, as the case may be; and shall include-- (i) in relation to functions entrusted Under Sub-section (1) of Section 124 of the Government of India Act, 1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that Sub-section; and (ii) in relation to the administration of a Chief Commissioner's Province, the Chief Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 623. There are other compelling reasons too, why the restrictive interpretation of Article 342A, limiting the exercise of identification for the purpose of central employment and central benefits(and not made applicable to states) is to be avoided as opposed to the interpretation based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in amending the Constitution were to merely confer or clothe the National Commission with constitutional status, the matter would have ended by inserting Article 338B. To that end, the argument of the Respondents is understandable. Short of the task of identification, (which could have continued with the states), if the amendment had not inserted Article 342A, the States would have been duty bound to consult the Commission Under Article 338B. The interpretation by Ashok Bhushan, J. to that extent might have been acceptable. However, that the Constitution was amended further to introduce Article 342A, containing the phraseology that it does, adding an entirely new dimension which the court has to interpret, after considering the light of the previous authorities, as also whenever new provisions were added to the Constitution and more importantly, when such amendments were also accompanied by changes in the definition clause. 626. The previous part of this judgment has discussed various authorities which had considered one or the other clauses of Article 366, i.e. the NDMC case, Tata Consultancy (supra), Willamson Financial Services (supra). The NDMC case was decided by a nine-jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch noticed the changes brought about through the amendments, and gave them plain effect, it is difficult to accept that the power of amendment of the Constitution, in accordance with the special procedure set out in Article 368-was used to about bring cosmetic changes conferring constitutional status to NCBC. The conferment of constitutional status-as was noticed previously, is achieved by only inserting Article 338B. However, the fact that it mirrors the previous two provisions of Articles 338 and 338A and borrows from that pattern clearly suggests that the new Commission is to have an identical role much like the Commissions that advice the Central Government and Parliament with respect to all matters pertaining to SCs and STs. Therefore, the new Commission is expected to play a decisive role in the preparation of lists, which the Constitution set apart as one list, deemed to be the list of SEBCs for the purposes of Constitution in relation to every State and Union Territory. The interplay between Articles 366(26C) and 338B is therefore crucial. The term deemed to be for the purposes of this Constitution and a reference to Article 342A would necessarily mean that even the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, these were the original provisions. Yet, one must be mindful of a crucial fact, which is that the task for making special provisions Under Article 15 and for making reservations Under Article 16(4) extends to the States. The power exercised by the President in relation to every State vis- -vis SCs and STs has been smooth and by all accounts, there has been no resentment or friction. Once the concerned community or caste is reflected in the list of one or the other State or Union Territory, the extent of the benefits to be provided to members of such community is a matter that lies entirely in the States' domain. The amendment or modification of any State list, can be undertaken only by Parliament, not even by the President. 631. Much like in the case of the alignment of Article 338B with the other two previously existing provisions of the Constitution, Article 342A aligns the function (of identification of SEBCs and publishing the list, by the President) with Articles 341 and 342. These three sets of consecutive provisions, share their umbilical cord with the definition Clause [Article 366(24) in relation to SCs; Article 366(25) in relation to STs and the new 366(26C) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e States was sought to be replicated for the purpose of preparing the list, of OBCs, by the President. It was emphasised during the course of arguments, an aspect that finds due reflection in the draft judgment of Ashok Bhushan, J. that the term, the Central List is of crucial significance because it in fact controls the entire provision, i.e., Article 342A, that it is in line with the Select Committee Report as well as Parliamentary debates and that this Court has to give it a purposive interpretation. In my respectful opinion, an isolated consideration of the expression, the Central List containing classes and communities which are deemed to be backward for the purpose of the Constitution, would undermine the entire constitutional scheme. Parliamentary intent, on the contrary, clearly was to replicate the existing pattern for inclusion in the list of SCs and STs for SEBCs-(a term that had not been defined in the Constitution till then). Yet another way of looking at the matter is that Article 342A(1) is the only provision which enables the publication of one list of SEBCs. This provision clearly talks of publication of a list through a Presidential notification for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the use of the term aforesaid notification . Thus, the subject matter of initial identification and publication of the list for the purposes of the Constitution is by the published President alone (under the aid and advice of the Union Council of Ministers) and any subsequent variation by way of inclusion or exclusion can be achieved only through an amendment by law, of that list. 635. 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 flo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should keep guard over the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. The court is not concerned with the wisdom behind or propriety of the constitutional amendment because these are the matters for those to consider who are vested with the authority to make the Constitutional amendment. All that the court is concerned with are (1) whether the procedure prescribed by Article 368 is strictly complied with? and (2) whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution. 638. In his Article Statutory Interpretation and Constitutional Legislation (sourced from the Cambridge Repository's Interpreting Constitutional Legislation David Feldman Professor of law, Cambridge University and QC. Also former international judge in the Constitutional Court of Bosnia and Herzegovna https://aspace.repository.cam.ac. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to matters regarding identification of the most backward classes of communities, i.e., SCs and STs. By the 102nd Amendment, one commission for SEBCs was set up to meet the aspirations and expectations of the population of the country who might have become SEBCs for various reasons, to voice their concerns directly for consideration by the National Commission Under Article 338B, which could then become the subject matter of inclusion Under Article 342A. 641. An offshoot of the 102nd Amendment 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. 642. The existence of a permanent body, which would objectively, without being pressurised by the dust and din of electoral politics, consider the claims for inclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(4) are entirely with by the State Government in relation to its institutions and its public services (including services under agencies and corporations and companies controlled by the State Government). In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided Under Article 15(4) or any other beneficial or welfare scheme which is conceivable Under Article 15(4) can all be achieved by the State through its legislative and executive powers. This power would include making suggestions and collecting data-if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the President on the aid and advice of the Union Council of Ministers Under Article 342A. This will accord with the spirit of the Constitution Under Article 338B and the principle of cooperative federalism Jindal Stainless Ltd. v. State of Haryana; State of Rajasthan v. Union of India 1978 1 SCR 1. which guides the interpretation of this Constitution. 645. The President has not thus far prepared and published a list Under Article 342A (1). In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that this strikes at the root of the federal structure because it is the people who elect the members of the State legislatures, who frame policies suitable for their peculiarly situated needs, having regard to the demands of the region and its people. 647. Learned Counsel argued that the original Constitution had set apart the power to identify SCs and STs and conferred it upon the President-after which, amendment could be carried out by the Parliament. However, such a power was advisably retained so far as the States were concerned, with their executives and legislatures. The deprivation of the States' power strikes at the root of its jurisdiction to ensure that its residents get suitable welfare measures in the form of schemes applicable to SEBCs as well as reservations. 648. Learned Counsel relied upon certain passages of the judgment of this Court in Kesavananda Bharti v. State of Kerala 1973 Supp. SCR 1 to support the argument that without submitting the amendment for rectification under the proviso to Article 368(2), to the extent it denuded the State legislatures of their powers to make laws in respect of various fields under the State List too, the amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. 651. The majority judgment, therefore decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters any of the Entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368 (2) was not necessary. 652. More recently, this issue was gone into in Kihoto Hollohan, where a challenge on the ground that all provisions of an amendment which introduced the Tenth Schedule were void for not following the procedure under the proviso to Article 368, were questioned. The Court proceeded to analyse every provision of the Tenth Schedule and held that para 7, which excluded the jurisdiction of all Courts, had the effect of divesting the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions. 77. We accordingly hold on contentions (C) and (D): That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that 'thereupon the Constitution shall stand amended' the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification. That accordingly, the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal as to bind even the amending power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament............................ xxxxxx xxxxxx xxxxxx .................The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed. Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and These principles are beyond the amending power of the Parliament. xxxxxx xxxxxx xxxxxx Under the Indian Constitution, the word 'federalism' does not exist in the preamble. However, its principle (not in the strict sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the above discussion, my conclusions are as follows: (1) Re Point No. 1: Indra Sawhney (supra) does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society, for the reasons set out by Ashok Bhushan, J. and my reasons, in addition. (2) Re Point No. 2: The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney's case. I agree with the reasoning and conclusions of Ashok Bhushan, J. on this point. (3) Re Point No. 3: I agree with Ashok Bhushan, J. that the State Government, on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inates in the exercise undertaken by the President (i.e. the Central Government, Under Article 342A (1), by reason of Article 367 read with Section 3(8)(b) General Clauses Act). (v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16-except with respect to identification of SEBCs, remains undisturbed. (vi) The Commission set up Under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution. (vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued Under Article 142 of the Constitution of India. (6) Re Point No. 6: Article 342A of the Constitution by denuding States power ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
