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TMI Blog2021 (5) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashutosh Dubey, Siddhartha Chowdhury, Samir Malik, Amol B. Karande, Rishi Kumar Singh Gautam, AORs, S.B. Talekar, Adv., Vipin Nair, AOR, P.B. Suresh, Karthik Jayashankar, Pradnya Talekar, Madhavi Ayyapan, Arindam Ghosh, Anshumaan Bahadur, Sanjay V. Kharde, Satyajeet S. Kharde, Advs., Kailas Bajirao Autade, AOR, Sheetal Patil, Prashant Shantaram Chaudhari, Gunratan Sadvarte, Advs., Raj Singh Rana, AOR, Pawan Kumar Shukla, Pankaj Kumar Singh, Makrand Pratap Singh, Mukesh Verma, Kamal Kumar Pandey, Rakesh Kumar Mudgal, Govind Jee, Advs., Krishna Kumar Singh, AOR, Durga Dutt, Adv., K.K. Venugopal, Ld. AG, Tushar Mehta, Ld. SG, N. Venkataraman, Ld. ASG, Shraddha Deshmukh, Chinmayee Chandra, Rajat Nair, Kanu Agrawal, Navanjay Mahapatra, Advs., Amrish Kumar, AOR, Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, V.A. Thorat, Sr. Advs., Sachin Patil, AOR, Rahul Chitnis, Akshay Shinde, Vaibhav Sugdhare, Misha Rohatgi Mohta, Harshika Verma, S. Lakshmi Iyer, Aaditya A. Pande, Geo Joseph, Advs., Kanu Agarwal, Adv., Aniruddha P. Mayee, AOR, Jishnu M.L., Priyanka Prakash, Beena Prakash, Advs., G. Prakash, AOR, Ruchira Gupta, Adv., Shishir Deshpande, AOR, Anurag Sharma, Abhishek Kumar Srivastava, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Adv., Ajit Pravin Wagh, AOR, Astha Prasad, Prabhleen Kaur, Ishita Farsaiya, Apurv Shukla, Pranav P. Patil, Krishna Kumar, Advs., Vipin Gupta, AOR, Ashok Arora, Adv., Rajeev Kumar Bansal, AOR, Suhaskumar kadam, Adv., Manju Jetley, AOR, Sanjay Kharde, Satyajeet Kharde, Advs., Samrat Krishnarao Shinde, AOR, Somya Chakraborti, Sr. Adv., Rajsaheb Patil, Ravi Prakash Jadhav, Akshata Jadav, Advs., Swati Vaibhav, Amol Nirmalkumar Suryawanshi, AORs, U.A. Rana, Himanshu Mehta, Advs., Gagrat & Co., Sathish Chanda Verma, Adv. General, Rajesh Pandey, Adv., Prachi Mishra, AAG, Chaitanya, Karthik Pant, Advs., Aswathi M.k., AOR, Smrithi Suresh, Arsh Khan, Sreepriya K., A.P. Singh, Advs., Sadashiv, AOR, V.P. Singh, Geeta Chauhan, Richa Singh, Sharwan Kumar Goyal, Jai Gopal Saboo, Abdulrahiman Tamboli, Advs., Rahul Joshi, V.K. Biju, AORs, Nishant Sharma, Adviteeya, Advs., Rakesh K. Sharma, Shivaji M. Jadhav, AORs, Brij Kishor Sah, Anish R. Shah, Qurratulain, Nicholas Choudhury, Aditya S. Jadhav, Joyshree Barman, Advs., Tapesh Kumar Singh, AOR, Aditya Pratap Singh, Bhaswati Singh, Advs., T.R.B. Sivakumar, Rajat Joseph, Shriram P. Pingle, Sandeep Sudhakar Deshmukh, Nishant Ramakantrao Katneshwarkar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 32 of the Constitution of India, namely, Writ Petition(C) No. 938 of 2020 (Shiv Sangram and Anr. v. Union of India and Anr.) has been filed questioning the Constitution (102nd Amendment) Act, 2018. 5. While issuing notice on 12.07.2019, a three-Judge Bench of this Court directed that the action taken pursuant to the impugned judgment of the High Court shall be subject to the result of the SLP. It was made clear that the judgment of the High Court and the reservation in question shall not have any retrospective effect. The three-Judge Bench after hearing the parties, on 09.09.2020, while granting leave passed following order: 17. In view of the foregoing, we pass the following orders: (A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon'ble The Chief Justice of India for suitable orders. (B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation to Maratha community exceeding 50% limit? (10) Whether the Act, 2018 as amended in 2019 granting separate reservation for Maratha community by exceeding the ceiling limit of 50% makes out exceptional circumstances as per the judgment of Indra Sawhney? (11) Gaikwad Commission Report-a scrutiny. (12) Whether the data of Marathas in public employment as found out by Gaikwad Commission makes out cases for grant of reservation Under Article 16(4) of the Constitution of India to Maratha community? (13) Social and Educational Backwardness of Maratha Community. (14) The Constitution (102nd Amendment) Act, 2018. (15) Conclusions. (16) Order. 9. On 08.03.2021 the six questions which were proposed to be considered were enumerated in the following manner: (1) Questions Framed. 1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.? 2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icts of Vidharbha (Madhya Bharat) and 5 districts of Marathwada (Hyderabad State). On 14.08.1961 through Ministry of Home Affairs while declining to act on the Kaka Kalelkar Commission Report informed all the State Governments that they had discretion to choose their own criteria in defining backward classes and it would be open for State Governments to draw its own list of other backward classes. On 14.11.1961 acting on the directives of the Government of India, the Government of Maharashtra appointed B.D. Deshmukh Committee for defining OBC and to take steps for their developments. The B.D. Deshmukh Committee submitted its report on OBC to the Government of Maharashtra on 11.01.1964. It did not find Maratha as backward class. On 13.08.1967, the State of Maharashtra issued unified list of OBC consisting of 180 castes for the entire State which did not include Maratha. At serial No. 87, Kunbi was shown. The President of India on 31.12.1979 appointed the second National Backward Classes Commission within the meaning of Article 340 of the Constitution popularly known as Mandal Commission. In the report of second National Backward Classes Commission with regard to the State of Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 217] (hereinafter referred to as "Indra Sawhney's case"), apart from laying down law pertaining to principle of reservation under Constitution this Court also issued directions to the Government of India, each of the State Governments to constitute a permanent body for entertaining, examining and recommending upon on requests for inclusion and complaints of over inclusion of other backward classes of citizens. 15. The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008 conclusively recording that Maratha could not be included in the OBC list because it is a forward caste. The report in the end concluded: It was agreed with majority that the resolution, stating that it would not be appropriate from social justice perspective to include Maratha community in the 'Other Backward Class' category, has been passed with majority in the commission's meeting convened in Pune on 25/07/2008. And it was agreed with majority that such a recommendation should be sent to the government. The opposite opinion in relation to this has been separately recorded and it has been attached herewith. 16. The Maharashtra State Other Backward Clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bombay High Court passed an order on 07.04.2015 staying the implementation of the provisions of the Act 1 of 2015 providing 16% reservation to Maratha. The interim order, however, directed that appointment to 16% reservation for Maratha under Act 1 of 2015 in the advertisements already issued shall be made from open merit candidates till final disposal of the writ petition and appointment shall be made subject to the outcome of the writ petition. 20. On 30.06.2017 the State Government made a reference to State Backward Classes Commission to submit a report on the facts and the observation made in the reference to the Government regarding Maratha. On 02.11.2017 Justice M.G. Gaikwad came to be appointed as Chairman of State Backward Classes Commission. On 14.08.2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993. On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was brought into force adding Article 338B, 342A and 366(26C). Article 338, Sub-clause (10) was also amended. On 15.11.2018, the State Backward Classes Commission submitted its report on social and educational and economic statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for intervention and impleadment have been filed seeking to justify the Act, 2018. The High Court allowed the applications for intervention and they were directed to be added as party Respondents. C.A. No. 3124 of 2020 (Sanjeet Shukla v. The State of Maharashtra) 22. This appeal arises out of the judgment in Writ Petition (C) No. 4100 of 2018. In the writ petition an extensive challenge was made to the Backward Classes Commission report which was basis for Act, 2018. The same writ Petitioner i.e. Sanjeet Shukla has earlier filed Writ Petition (C) No. 3151 of 2014 challenging the Ordinance promulgated by the Government of Maharashtra in the year 2014. The interim order dated 14.11.2014 was passed in the Writ Petition No. 3151 of 2014. The Petitioner has also pleaded that the Act, 2014 was also stayed by the High court on 07.04.2015. It was pleaded that Maratha community is a powerful community in the State of Maharashtra with proved dominance in Government Service, Co-operatives, Sugar Cooperatives etc. reference of earlier National Backward Class Commission and State Backward Class Commission was made wherein the claim of Maratha to be included in OBC was rejected. The commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appropriate writ, order or direction of that nature that no admission in educational institutions should be made under reserved category as per Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018; b5. during pendency Court be pleased to issue an appropriate writ, order or direction of that nature that no Caste Certificates should be issued under Maharashtra State Socially and Educationally Backward (SEBC) Class (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018; C.A. No. 3125 of 2020 (Dr. Uday Govindraj Dhople and Anr. v. State of Maharashtra and Anr.) 23. This appeal arises out of Writ Petition (LD.) No. 4128 of 2018 filed by Dr. Udai Govindraj Dhople. The writ petition was filed in representative capacity on behalf of the similarly situated medical students/medical aspirants who are adversely affected by the Act, 2018. 24. The writ Petitioners seek quashing of Act, 2018 and in the alternative quashing and setting aside Sections 2(j), 3(2), 3(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the medical admission process for Post-graduate students for the academic year 2020-21 in the State of Maharashtra. 30. C.A. No. 3127 of 2020 arises out of Writ Petition (C) No. 4128 of 2018. The prayer of which writ petition has already been noticed by C.A. No. 3125 of 2020. 31. C.A. No. 3126 of 2020 has been filed against the impugned judgment of the High Court in Writ Petition (C) No. 3846 of 2019 (Mohammad Sayeed Noori Shafi Ahmed and Ors. v. The State of Maharashtra and Ors.). Writ Petitioners were challenging the Act, 2018 as well as the Maharashtra State Backward Class Commission Report on the Social, Educational, Economic Status of the Marathas and Allied Aspects, 2018. The question was also raised about inaction on the part of the State of Maharashtra in not acting upon the report of Maharashtra State Minority Commission (2011) recommending special reservation to certain Muslim communities and failure to introduce a Bill on the floor of the State Legislature providing for 5% reservation to 52 Muslim communities in Maharashtra. 32. C.A. No. 3128 of 2020 arising out of Writ Petition (C) No. 4269 of 2018(Vishnuji P. Mishra v. The State of Maharashtra) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners, Chamber Summons and supporting other materials and after hearing counsel appearing for the respective parties has broadly capitulated following points for consideration: (3) Points for consideration before the High Court. 35. "(III) Whether the impugned Act of 2018 is constitutionally invalid on account of lack of legislative competence on the following sub-heads: (a) The subsisting interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra (WP 3151/2014) thereby granting stay to a similar enactment and ordinance of the State, which is pending for adjudication before this Court. (b) The 102nd (Constitution) Amendment, 2018 deprives the State legislature of its power to enact a legislation determining the Socially and Educationally Backward Class and conferring the benefits on the said class in exercise of its enabling power Under Article 15(4) and 16(4) of the Constitution. (C) The limitation of 50% set out by the Constitution bench in Indra Sawhney in form of constitutional principle do not permit reservation in excess of 50%. (IV) Whether the State has been able to establish the social and educational backwardness and inadequacy of repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Maratha community and it has also established the inadequacy of representation of the Maratha community in public employment/posts under the State. Accordingly we uphold the MSBCC report. [3] We hold and declare that the classification of the Maratha class into "Socially and Educationally Backward Class" complies the twin test of reasonable classification permissible Under Article 14 of the Constitution of India, namely, (a) intelligible differentia and (b) rational nexus to the object sought to be achieved. [4] We hold and declare that the limit of reservation should not exceed 50%, however in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration. [5] We hold and declare that the report of the Gaikwad Commission has set out the exceptional circumstances and extraordinary situations justifying crossing of the limit of 50% reservation as set out in Indra Sawhney's case. [6] We hold and declare that the State Government in exercise of its enabling power Under Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 937 of 2017 2] Writ Petition No. 1208 of 2019 3] PIL No. 209 of 2014 4] PIL (Stamp No.) 1914 of 2019. [E] WP No. 11368 of 2016:The Petition is dismissed as far as prayer Clause (A) is concerned. As far as prayer (B) is concerned the Petitioner is at liberty to file an appropriate Writ Petition seeking said relief. [F] PIL (Stamp No.) 36115 of 2018:The is disposed of since the recommendation of the commission are implemented in form of the impugned SEBC Act, 2018. [G] In the light of disposal of above writ petitions and PILs, all pending civil applications/notice of motions/Chamber Summons taken out in these writ petitions and PILs do not survive and the same are accordingly disposed of. 37. Aggrieved with the impugned judgment of the High Court dated 27.06.2019, the Appellants have filed the Civil Appeals noted above in this Court. 38. We have heard Shri Arvind P. Datar, learned Senior Counsel, Shri Shyam Divan, learned Senior Counsel, Shri Gopal Sankaranarayanan, learned Senior Counsel, Shri Pradeep Sancheti, learned Senior Counsel, Dr. Rajiv Dhawan, learned Senior Counsel, Shri Sidharth Bhatnagar, learned Senior Counsel, Shri B.H. Marlapalle, learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chitaley, learned Counsel, Shri Mr. Kaleeswaram Raj, learned Counsel, and Shri Ashok Arora for intervenors. Mr. Akash Avinash Kakade has also appeared for the interveners. 42. Learned Counsel for the parties have made elaborate submissions on the six questions as noted above. Learned Counsel for the parties have also made their respective submissions on the points for consideration as was formulated by the High Court in the impugned judgment. The elaborate submissions have also been made by the Petitioners challenging the various provisions of Act, 2018. Learned Counsel appearing for the Petitioners have made scratching attack on the Gaikwad Commission's report, various data and details have been referred to by the Petitioners to support their submissions that Maratha community is not a socially and educationally backward class. 43. We shall now proceed to notice the submission advanced by learned Counsel including submissions of Attorney General for India in seriatim. (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 Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be set aside as it is contrary to the clear principle laid down in the Indra Sawhney's case. The High Court has not given any reason as to how extra-ordinary situations as mentioned in paragraph 810 in Indra Sawhney case is made out in the context of reservation for the Maratha caste/community in Maharashtra. Exception and certain extra-ordinary situations to the 50% principle carved out in Indra Sawhney does not cover the case of Maratha since such "rule is confined to far flung and remote areas, where they are out of main stream of national life". Indra Sawhney has also mandated extreme caution for going beyond 50%. The reservation limit of 50% has also been applied in the decisions rendered in the context of Article 243D and 243T of the Constitution of India relating to Panchayats and Municipalities. The earlier reports of National Commission for Backward Classes has rejected claim of Maratha to be included in backward class. The opinion of National Commission for Backward Classes cannot be disregarded by the State and in the event it had any grievance remedy of review was provided. 47. The Maratha community has been found to be socially advanced and prestigious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nore determination by National Commission and State Committees/Commission until June 2013 holding that Maratha are forward class in the State of Maharashtra. The report failed to recognize the consequences of Maratha Community being politically organised and being the dominant political class in Maharashtra for several decades. Politically organised classes that dominate government are not backward in any Constitutional sense. 51. Coming to the Constitution (One Hundred and Second Amendment), 2018, Shri Divan submits that 102nd Constitution Amendment now contemplates identification by National Commission of Backward Classes. The Constitutional scheme which is delineated by Article 341 and 342 has also been borrowed in Article 342A. The identification of backward classes is now centralized. Shri Divan has also highlighted adverse impact of the impugned act on medical admission in the State of Maharashtra. 52. Law laid down by Constitution Bench in Indra Sawhney's case that reservation Under Article 15(4) 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 Gaikw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , educationally and backward classes. Article 342A has been brought in the Constitution to achieve uniformity and certainty and not due to any political reasons. There is no ambiguity in Article 342A which requires any external aid for interpretation. 55. Shri Sidharth Bhatnagar, learned Counsel appearing for the Appellant also adopts the submissions of Mr. Datar and Mr. Gopal Sankaranarayanan and submits that the judgment of this Court in M.R. Balaji v. State of Mysore, AIR 1963 SC 649, had laid down that reservation Under Article 15(4) shall be less than 50 percent which principle finds its approval in Indra Sawhney's Case. In Indra Sawhney's Case, Eight out of Nine Judges took the view that reservation cannot exceed 50 percent. He submits that judgment of Indra Sawhney need not be referred to a larger Bench. 56. Mr. Pradeep Sancheti, learned senior Advocate, has confined his submissions to the Gaikwad Commission Report. He submits that due difference to the opinion of the Commission does not mean that opinion formed is beyond the judicial scrutiny. He submits that backwardness has to be based on objective factors where inadequacy has to factually exist. The Court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary situation as contemplated in paragraph 810 of judgment of Indra Sawhney's case could be made out, even if all the findings given by the Commission are accepted to be true. The Commission has relied on outdated data for holding that 'Marathas' were 'Shudras'. When an unscientific survey is done, an unrealistic result is bound to come. There has been adequate representation of Maratha Community in the Public Services. The Commission erred in holding that the representation is not proportionate and recommended reservation Under Article 16(4). The Commission has not even adverted to the requirement regarding efficiency as contemplated Under Article 335 of the Constitution of India. 60. Shri Sancheti submits that more than 40 percent Members of Parliament and 50 percent of Members of Legislative Assembly are Marathas. Shri Sancheti submits that the Commission's report is only paperwork which could not be accepted by the Court, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being followed. Dr. Dhavan, however, submits that the entire power of reservation has not been taken away from the State. 64. Elaborating his submissions on the Constitution (One Hundred and Second Amendment) Act, 2018, Dr. Dhavan submits that the essence of 102nd Amendment as exemplified in Article 342A results in the monopoly of identification even though implementation is left to the State. His submission is that this is contrary to the basic structure of federalism of the Constitution. In that it deprived the States of the crucial power of identification which was a very important power of the State Under Article 15, 16 and 46. The obligation of the State in Article 15, 16 and 46 continue to be comprehensive. 65. Alternate submissions advanced by Dr. Dhavan is that Article 342A can be read down to describe the power of the Centre in relation to the Central Services and leaving the identification and implementation power of the States intact. Dr. Dhavan, however, submits that Maharashtra legislature had the competence to enact the 2018 Act, even though the Constitution (One Hundred and Second Amendment) had come by that time. He, however, submits that any legislation which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any State list of 'Socially and Educationally Backward Class' after the 102nd Constitutional Amendment. He submits that identification of the caste was never the exclusive domain of the States. 70. Shri Amit Anand Tiwari, appearing in writ petition i.e. W.P. No. 504 of 2020, referring to the Order dated 09.09.2020 contends that Three-Judge Bench having refused the prayer to refer the Indra Sawhney judgment to a larger Bench, the Said prayer needs no further consideration. Shri Tiwari submits that present is not a case covered by any exceptional circumstances as mentioned in the Indra Sawhney's judgment. Historically, Marathas have been treated as a forward class who are socially, economically and politically well-of. Prior to the report of Gaikwad Commission, as many as six Commissions have held Marathas are not entitled to be treated as a backward class. There has been no change in the circumstances to include Maratha 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. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Government and the State Government to constitute such permanent mechanism in the nature of a Commission. 77. Learned Attorney General submits that it is inconceivable that no State shall have power to identify backward class, the direction issued by the Nine-Judge Bench still continuing. He has referred to the judgment delivered by Justice Jeevan Reddy for himself and three other Judges and judgment delivered by Justice Thommen and submits that the above directions were the directions of the majority. Learned Attorney General submits that no such amendment has been made by which the effect of Article 15(4) and 16(4) have been impacted. He submits that National Backward Class Commission Act, 1993 was passed in obedience of direction of this Court in Indra Sawhney's case. He submits that Section 2(c) of 1993 Act refers to a Central list. Learned Attorney General has also referred to Maharashtra Act No. 34 of 2006, especially Section 2(c), 2(E) and Section 9(1) which refers to State List. He submits that Article 342A was to cover the Central list alone, the 1993 Act, having been repealed on 14.08.2018. The Attorney General has also referred to Select Committee Report dated 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y General submits that the question of validity of the Constitution (One Hundred and Second Amendment) shall arise only when the State's power is taken away. Replying to the submissions made by the learned Counsel for the writ Petitioner in W.P. No. 938 of 2020, learned Attorney General submits that in the Constitution (One Hundred and Second Amendment), there was no applicability of proviso to Article 368(2). He submits that insofar as legislation under List-III is concerned, since Parliament by legislation can override the States, hence, by Constitutional Amendment, the same can very well be taken away. 82. Referring to Entry number 41 of List-II, the learned Attorney General submits that Entry 41 has no concern with identification of backward class. The Constitution (One Hundred and Second Amendment) does not amend the lists under Schedule VII; hence, there is no requirement of ratification by the States. 83. Shri Mukul Rohtagi, learned Senior Counsel, appearing for the State of Maharashtra has led the arguments. Shri Rohtagi has articulated his submissions in a very effective manner. Shri Rohtagi states that his submission shall be principally confined to question No. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be breached. He submits that the judgment of majority opinion in Indra Sawhney is being wrongly read as holding that 50 percent is the ceiling limit for reservation. ii) Different judges from 1963 till date have spoken in different voice with regard to reservation under 15(4) and 16(4) which is a good ground to refer Indra Sawhney judgment to a larger Bench. iii) The Balaji has held that Article 15(4) is an exception to Article 15(1) which theory has not been accepted by this Court in N.M. Thomas as well as Indra Sawhney, the very basis of fixing the ceiling of 50 percent has gone. Shri Rohtagi submits that the Constitution of India is a living document. The ideas cannot remain frozen, even the thinking of framers of the Constitution cannot remain frozen for times immemorial. iv) Neither Article 16(4) nor Article 15(4) contains any percentage. The Court cannot read a 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 Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fit in 27 percent OBC reservation, we will be giving them a complete mirage. Shri Patwalia has taken us to the different chapters of the report and submits that the Commission has mentioned about procedure, investigations and evidence collected. He submits that quantifiable data was collected by the Commission through experts and three agencies appointed by the Commission. Experts were also engaged to marshal the data and submit their opinion. Chapter 10 of the report dealt with the exceptional circumstances regarding Marathas justifying exceeding 50 percent ceiling limit for reservation. He submits that the Commission has assessed the Maratha population as 30 percent. 87. Shri Patwalia submits that the scope of judicial review of a Commission's report is very limited. This Court shall not enter into assessment of evidence to come to a different conclusion. He submits that the Gaikwad Commission report is a unanimous report. After the receipt of the report, the Act, 2018 was passed unanimously by the 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submits that today there is no central list, hence, there is no question of affecting the State list. He submits that it is premature to set aside the said action. 92. Shri Shekhar Naphade, learned Senior Counsel, appearing for the State of Maharashtra, has elaborately dealt with the judgment of this Court in M.R. Balaji (Supra). He submits that all subsequent judgments providing a ceiling of 50 percent are based on Balaji's Case and there being several flaws in the said judgment, the case needs to be referred to larger Bench. He submits that 50 percent ceiling on reservation for Scheduled Caste, Scheduled Tribes and Other Backward Class is a judicial legislation which is impermissible. He further submits that reservation cannot exceed 50 percent is not the ratio of judgment of Balaji. It is submitted that Balaji has not considered the effect of the non obstante Clause contained in Article 15(4). Shri Naphade has also dealt with the judgments of this Court in T. Devadasan (Supra), N.M. Thomas (Supra) and Indra Sawhney. 93. Shri Naphade elaborating his submissions on Article 342A submits that the State has legislative competence to prescribe reservation to backward class. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of this Court in N.M. Thomas, the basis of Balaji Case that Article 15(4) is an exception to Article 15(1) has gone. The whole judgment could not be relied on as a precedent anymore. Whether a particular quota of reservation is violative of Article 15(1) depends on facts of each case. The State ought to be given a free hand to pick the percentage as per need and requirement of each State. There is no judicial power to pick a percentage. 95. Shri Sibal giving illustration of Kendriya Vidyalaya submitted that General students cannot come and those institutions cater only to the employees of Government, Army; and the General can only come when the seats are vacant. He submits that the balance has to be done by the executive and not by the Court. These are the issues which need to be decided by a larger Bench. These issues having never been addressed before this Court in Indra Sawhney's 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 103 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hta, submits that he adopts the submissions made by learned Attorney General. He submits that 102nd Constitutional Amendment shall not dilute the power of the State. Article 342A (1) is only enabling provision. The Act, 2018, does not violate 102nd Constitutional Amendment. 101. Dr. Abhishek Manu Singhvi, appearing for the Respondent submits that State's power was never intended to be taken away. He submits that material including discussion in reports of Parliamentary Committee are fully admissible and has to be relied for finding the intent and purpose of a Constitutional provision. Dr. Singhvi has elaborately taken us to the proceedings of the Select Committee and its report. Dr. Singhvi has cited the Constitution Bench judgment of this Court in Kalpana Mehta and 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) u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judgment. 105. Shri Vinay Arora, learned Counsel appearing for State of Uttarakhand, submits that State has two lists one drawn by State and another Central list. He adopts the arguments of learned Attorney General. Shri Vinay Arora submits that judgment of Indra Sawhney need not to be referred to a larger Bench. He submits that affirmative action Under Articles 16(4) and 15(4) are facets of Article 14. 106. We have also heard various counsel appearing for interveners. Most of the interveners have adopted the submissions of the State of Maharashtra. However, learned Counsel Shri A.P. Singh and Shri B.B. Biju, appearing for different interveners submits that judgment of Indra Sawhney need not be referred to larger Bench. They submitted that after seventy years, there has been upliftment. The reservation is affecting the merit as well as the society. 107. We have heard learned Counsel for the parties and perused the records. 108. All the relevant materials which were before the High Court have been compiled in different volumes and filed for convenience. Learned Counsel for the parties during submissions have referred various materials including necessary relevant enactments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Backward Category" means socially and educationally backward classes of citizens declared as a Special Backward Category by the Government. 110. Section 4 provides for reservation and percentage. Section 4(2) is as follows: Section 4(2) Subject to other provisions of this Act, there shall be posts reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes, at the stage of direct recruitment in public services and posts specified under Clause (j) of Section 2, as provided below: Description of Caste/ Tribe/Category/Class Percentage of vacancies reservation Or seats to be reserved (1) Scheduled Castes . . 13 per cent. (2) Scheduled Tribes . . 7 per cent. (3) De-notified Tribes (A) . . 3 per cent. (4) Nomadic Tribes (B) . . 2.5 per cent. (5) Nomadic Tribes (C) . . 3.5 per cent. (6) Nomadic Tribes (D) . . 2 per cent. (7) Special Backward Category . . 2 per cent. (8) Other Backward Classes . . 19 per cent. Total . . 52 per cent. 111. The Maharashtra State Commission for Backward Classes Act, 2005 was enacted by the State Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 provided that in every Aided Private Professional Educational Institution, seats equal to 50% shall be reserved for candidates belonging to the Reserved Category. Section 4 of the Act is as follows: Section 4. (1) In every Aided Private Professional Educational Institution, seats equal to fifty per cent. of the Sanctioned Intake of each Professional Course shall be reserved for candidates belonging to the Reserved Category. (2) The seats reserved for candidates belonging to the Reserved Category Under 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 2001 and 2006 Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially 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 educational institutions referred to in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have held that 50% can be breached, hence, majority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liar 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 so as not to unduly sacrifice merits. The number of seats or pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) of Article 16 should not exceed 50%. (b) Justice Thommen, Justice Kuldip S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 general competition in a large field and by creating wide-spread dissatisfaction amongst the employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 percentage of reservation should not exceed 50 per cent. As I read the authorities, this is, however, a Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnappa 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 Article 15(4). ...... We should think that that is a matter for experts in management and administration. There might be pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70(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 cannot be relied any further. The larger Bench in Indra Sawhney has settled the law after considering all earlier decisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept 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 Ors. 2006(8) SCC 212; (3) Krishna Murthy (Dr.) and Ors. v. Union of India and Anr. 2010 (7) SCC 202 Which judgment though was considering re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Ambedkar which speech has been time and again referred to remind us the objective of the above fundamental right. 156. Dr. Ambedkar referred to Article 10(1) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 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 Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who knew what domination of a foreign Rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution 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 contribution to country's GDP, 38.88%. The goal of the Constitution framers was to bring a caste-less society. The directive principles of the State Policy cast onerous obligation on the States to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary 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 society and backward class to develop skills for employment not necessary the public service. The objectives engrafted in our Constituted and ideals set by the Constitution for the society and the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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 courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply pre-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 noted two early cases on Article 15 namely The State of Madras v. Champakam Dorairajan AIR 1951 SC 226 and B. Venkataramana v. State of Tamil Nadu and Anr. AIR 1951 SC 229. Justice Jeevan Reddy in paragraph 757 has observed that although Bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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). The Directive Principles of State Policy enshrined in Part-IV of the Constitution are fundamental in governance of the country. The State while framing its policy, legislation, had to take measures to give effect to the Constitutional Objective as containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every other consideration and all other contentions are in the nature of byproducts of that central theme of the case. The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by Section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or The 42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles. 193. It was held that both Part-III and Part-IV of the Constitution are two kinds of State's obligation i.e. negative and positive. The harmony and balance between Fundamental Rights and Directive Principles of State Policy is an essential feature of the Basic Structure of the Constitution. Justice Chandrachud elaborating the relation between Part-III and Part-IV stated in paragraph 57: 57. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. 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 paragraph 841, following has been observed: 841. We may add that we see no particular relevance of Article 38(2) in this context. Article 16(4) is also a measure a measure to ensure equality of status besides equality of opportunity. 196. Mr. Rohtagi has referred to Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen's endeavoured to strike a balance between the two Articles. Though we accept the ratio of St. Stephen's, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. 388. I agree with the view as expressed by the Learned Chief Justice that there is no question of fixing a percentage when the need may be variable. I would only add that in fixing a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preservation of culture, language and script via establishment of educational institutions for religious and charitable purposes [See: Article 26]. 62. Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the vacancies of the year in which they are being filled up for determine the ceiling of 50 percent. Article (4B) is for any reference is quoted as below: 16(4B). Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. 206. The above Constitutional Amendment makes it very clear that ceiling of 50 percent "has now received Constitutional recognition." Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney's case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney's case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney. Ground-9 207. Shri Rohtagi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 warrant exceptional treatment with regard to reservation and the rationale of upper ceiling of 50 percent for reservation in higher education and public employment can be readily extended to the domain of vertical representation at the Panchayat level in the Scheduled Area. Paragraphs 43 and 44 are extracted below: 43. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SC/ST/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. When this Court decides questions of law, its decisions are, Under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it. Where, however, such uniformity is not found, we have tried to answer the question on principle keeping in mind the scheme and goal of our Constitution and the material placed before us. 220. What was said by Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RA 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 provided to each of the backward classes i.e. Scheduled Castes, Scheduled Tribes and Backward Classes. However, reservations to be provided to the Scheduled Castes and Scheduled Tribes has already been provided by the Government of India, i.e. 15% Scheduled Castes and 7.5% for Scheduled Tribes. Excluding that 22.5% reservations, the existing Bus provisions for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 be quantifiable and contemporary data. We may notice the exact words of the Commission in paragraph 234 which is to the following effect: The Honourable the Supreme Court has again considered this aspect of ceiling of 50% reservation in its next decision in M. Nagaraj and Ors. v. Union of India and Ors. Reported in (2006) 8 SCC 212, wherein the Honourable the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted 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 of the rural areas. 48.6% population of the existing reserved category including Scheduled Castes, Scheduled Tribes and all Backward Classes have been already identified as socially and educationally backward. The Maratha caste has been identified socially, educationally and economically backward by this Commission. So as total 84.3% population can be said to be of backward classes. 235. Regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 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-ordinary situations as indicated in paragraph 810 of Indra Sawhney. The Marathas are in the main stream of the National Life. It is not even disputed that Marathas are politically dominant caste. 239. This Court in several judgments has noticed that what can be the extra-ordinary situations as contemplated in paragraph 810 in few other cases. We have referred above the three-Judge Bench judgment in Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics 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 equality is the moot question. The situation of extra-ordinary circumstances as set out though by way of illustration in Indra Sawhney would thus get attracted and the theme of the Indian Constitution to achieve equality can be attained. Once we have accepted that the Maratha community is a backward class, then it is imperative on the part of the State to uplift the said community and if the State does so, and in extra o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent. As open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. 244. The illustration given by Dr. Ambedkar that supposing 70% posts are reserved and 30% may retain as unreserved, can anybody say that 30% as open to general competition would be satisfactory from point of view of giving effect to the first principle of equality, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 dated 29.11.2018 publishing the bill No. 78(LXXVIII) of 2018. Paragraph 6 of the Statement of object and reasons notices the earlier 2014 Act and the stay by the High Court and further reference to the Commission. Paragraph 6 of the Statement of objects and reasons is as follows: 6. Thereafter, the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments or posts in the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Maharashtra has considered the report, conclusions, findings and recommendations of the said Commission. On the basis of the exhaustive study of the said Commission on various aspects regarding the Marathas, like public employment, education, social status, economical status, ratio of population, living conditions, small size of land holdings by families, percentage of suicide of farmers in the State, type of works done for living, migration of families, etc., analysed by data, the Government is of opinion that,- (a) The Maratha Community is socially and educationally backward and a backward class for the purposes of Article 15(4) and (5) and Article 16(4), on the basis of quantifiable data showing backwardness, inadequacy in representation by the said Commission; (b) Having regard to the exceptional circumstances and extraordinary situation generated on declaring Maratha as socially and educationally backward and their consequential entitlement to the reservations benefits and also having regard to the backward class communities already included in the OBC list, if abruptly asked to share their well established entitlement of reservation with a 30% of Maratha citizenry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the report of the Commissions and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out. We have already in detail analyze and noticed the report of the Commission and have held that no extraordinary circumstances have been made out on the basis of reasoning given in the report. While the foundation itself is unsustainable, the formation of opinion by the State Government to grant separate reservation to the Marathas exceeding 50 percent limit is unsustainable. 254. It is well settled that all legislative Act and executive acts of the Government have to comply with the Fundamental Rights. The State's legislative or any executive action passed in violation of Fundamental Rights is ultra vires to the Constitution. The 50 percent ceiling limit for reservation laid down by Indra Sawhney case is on the basis of principle of equality as enshrined in Article 16 of the Constitution. In paragraph 808, Indra Sawhney laid down: 808. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achievi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation. (11) Gaikwad Commission Report-a scrutiny 258. Shri Pradeep Sancheti, learned Senior Counsel, appearing for the Appellant elaborating his submissions has questioned the Gaikwad Commission's Report on numerous grounds. Shri Patwalia, learned Senior Counsel, appearing for the State of Maharashtra has refuted the challenge. 259. Shri Sancheti submits that judicial scrutiny of a quantifiable data claimed by the State is an essential constitutional safeguard. He submits that though the Court has to look into the report with judicial deference but judicial review is permissible on several counts. A report which violates the constitutional principle and Rule of law can very well be interfered with in exercise of judicial review. Shri Sancheti submits that three National Backward Classes Commissions as well as three State Backward Classes Commissions for the last 60 years have considered the claim of Marathas to be included in Other Backward Community which claim was repeatedly negatived. He submits that the report of National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 persons are in favour of reservation to Maratha whereas 1523 were in favour of reservation of Maratha community by creating separate percentage. The Commission also recorded evidence, obtained information from the Government departments and other organisations, Universities and after fixing parameters allocated 10 marks for socially backward class, 8 marks out of 25 marks has been allocated for educational backwardness, 7 marks to the economically backward class and after fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Article 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 was held by the Constitution Bench in Indra Sawhney that opinion formed with respect to grant of reservation is not beyond judicial scrutiny altogether. The Constitution Bench referred to an earlier judgment of this Court in Barium Chemicals v. Company Law Board AIR 1967 SC 295. In the above regard paragraph 798 is extracted for ready reference: 798. ...It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute 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 of judicial review to re-evaluate the factual material on record. 274. We may also notice a recent judgment of this Court in Mukesh Kumar and Anr. v. State of Uttarakhand and Ors. (2020) 3 SCC 1, in which one of us Justice L. Nageswara Rao speaking for the Bench laid down following in paragraph 13: 13......The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequate representation and not proportionate representation in paragraph 807: 807. We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Article 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant... 278. The objective behind Clause (4) of Article 16 is sharing the power by those backward classes of the society who had no opportunities in the past to be part of the State services or to share the power of the State. Indra Sawhney has noted the above objective in paragraph 694 of the judgment (by Justice Jeevan Reddy), which is to the following effect: 694. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation Under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services. The Maratha community is only one community among the numerous castes and communities in the State of Maharashtra. The principal caste and communities in the State of Maharashtra consists of Scheduled Castes/Scheduled Tribes, de-notified tribes, nomadic tribes (B, C and D), special backward category and other backward classes, general categories and the minorities. 282. A large number of castes and communities are included in the above class of castes. We may refer to number of caste and communitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 correctly represent the representation of different classes in public services. 289. Now, we take the representation of Marathas grade wise as reflected by Table A. GRADE-A 290. Posts filled are 49,190 out of which open category posts are 28,048 and posts filled from Maratha classes are 9,321. The Maratha Community obviously has been competing in the open category and has obtained the post as open category candidates. The Chart also mentioned below each class the percentage against the column of posts filled from Maratha class, percentage 11.16% has been ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitutional pre-condition that backward class is not adequately represented is not fulfilled. The State Government has formed opinion on the basis of the above figures submitted by the Gaikwad Commission. The opinion of the State Government being based on the report, not fulfilling the Constitutional requirement for granting reservation to Maratha community becomes unsustainable. 293. Now we also look into Table B and C given in paragraphs 220 and 224 are as follows: 294. Table B contains all details including posts filled from open category, posts filled from Maratha officers. Taking the post of IAS in the open category filled are 161. Maratha IAS officers are 25, percentage of which comes to 15.52 percent. Similarly, in IPS out of 140 filled up posts, Marathas are 39, percentage of which comes to 27.85 percent and similarly, in IFS, out of 89, 16 were Marathas, percentage of which comes to 17.97 percent. 295. With regard to percentage mentioned in each column, error has been committed by the Commission in reflecting less percentage which is incorrect and erroneous. Following is a tabular chart of posts filled in open category, posts filled by Maratha and percentage is as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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. We may notice what has been said by the Commission in paragraph 219 while recording its conclusion emerging from the analysis of information contained in Table A, B, C and D. In paragraph 219(c), the Commission states: 219(C)...The obvious conclusion that emerges from the above information is that in none of the four grades the strength of Maratha Class employees is touching the proportion to their population in the State which is based on various sources is estimated at an average 30%. So also, their presence in administration is more at the lower grades of "C" and "D" and have a comparatively lesser existence and role in decision making levels of State administration in "A" and "B" grades... 303. Indra Sawhney has categorically held that what is required by the State for providing reservation Under Article 16(4) is not proportionate representation but adequate representation. The Commission thus proceeds to examine the entitlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence and eventually became rulers and members of ruling classes at different levels cannot in any way be thought to have suffered any social disadvantages. The Bench is aware that in what is identified as a ruling class/caste, every member of it does not rule, but the fact that those who Rule come from a distinct caste community imparts a certain amount of prestige and self-confidence even to those from the same caste/community who personally belong to the ruling functionaries and to the totality of that caste/community. It is significant to note that Marathas have sought and received recognition of as of Kshatriya Varna category and therefore does not secure them status or caste upgradation Examples are Vanniakula Kshatriya in Tamil Nadu, the adoption of the umbrella name "Kshatriya" by all BCs in Gujarat, Paundra-Kshatriya (an SC) in West Bengal and so on. But no community which is recognized generally, i.e. by the rest of the society as of "Kshatriya" category and correctly finds place in a BC list. 19. The modern history of Maharashtra is witness to the continued dominance of Marathas in its society and polity as evident from the fact, for example, that in the post-Indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the reality of caste-identities as they occur in society. 22. In view of the above facts and position, the Bench finds that Maratha is not a socially backward community but is a socially advanced and prestigious community and therefore the Request for Inclusion of "Maratha" in the Central List of Backward Classes for Maharashtra along with Kunbhi should be rejected. In fact "Maratha" does not merit inclusion in the Central list of Backward Classes for Maharashtra either jointly with "Kunbhi" or under a separate entity of it's own. 307. We may also refer now to the three State Backward Classes Commissions appointed by the State. In the year 1961, Deshmukh Committee appointed by the State of Maharashtra did not include the Maratha community in the list of backward communities. In the year 2001, Khatri Commission rejected the demand of Maratha to be included in backward class communities. On 25.07.2008, Bapat Commission in its report rejected the demand to include Maratha community in the other backward class communities by majority. 308. After the Bapat Commission's report, the State Government had appointed Rane Committee to be headed by a Cabinet Minister who collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a part of the report Clause (1) and Clause (3) clearly indicate that the Commission was to collect contemporaneous data. Quantifiable data collected by the State which have been referred in the report were of the data collected period after 2014. The Commission's observations made in the report that it does not agree with the earlier reports cannot be approved. 311. We, however, hasten to add that it is always open to the State to collect relevant data to find out as to whether a particular caste or community is to be included in the list of other backward classes or excluded from the same despite any decision to the contrary taken earlier. The Constitution Bench in Indra Sawhney has also laid down for periodical review which is for the purpose and object that those communities who were earlier backward and advanced should be excluded and those communities who were earlier advanced and might have degraded into backward class should be included. Thus, the State was fully entitled to appoint backward classes commission to collect relevant data and submit the report. 312. When in earlier period of about 60 years, right from 1955 to 2008, repeatedly it was held that Maratha co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 enactment, writ petition was filed in the High Court challenging 2014, enactment by which Maratha community was declared as socially and educationally backward class and separate reservation was provided for. The Ordinance XIII of 2014 was issued to that effect; writ petition was filed in the High Court challenging the Ordinance and inclusion of Maratha as other backward category. The High Court elaborately heard all parties and passed a detailed interim order in Writ Petition No. 2053 of 2014 on 14.11.2014 where it set out various facts which were placed before the Court for staying the Ordinance and staying the grant of separate reservation to Maratha community. We may refer to paragraph 40(e) of the order dated 14.11.2014 of the High Court which is to the following effect: 40. In the context of 16% reservation for Marathas upon their classifications as Educationally and Socially Backward Classes, he following position emerges: .................. (e) The Petitioner in Public Interest Litigation No. 140 of 2014 placed on record some statistics by reference to data compiled by Dr. Suhas Palshikar in the book on "Politics of Maharashtra: Local Context of the Political Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to backward Under Article 16(4) may not be considered as decisive for socially and educationally backward class for grant Under Article 15(4) but grant or non-grant Under Article 16(4) certainly is relevant for consideration which reflects on backward class or classes both in favour and against such backward class. We have noticed that the Commission has taken erroneous view that the representation of Maratha community in public services is not proportionate to their population and has recommended for grant of reservation Under Article 16(4). We having disapproved the grant of reservation Under Article 16(4) to Maratha community, the said decision becomes relevant and shall have certainly effect on the decision of the Commission holding Maratha to be socially and educationally backward. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward. 316. The Commission in its report while discussing, in Chapter VIII has analysed the various data including data of students belonging to Maratha community who are pursuing Engineering, Medical and other disciplines. In paragraph 178 the Commission h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of open category seats, since 50% seats are for reserved category and only 50% are open, the percentage of the Maratha, thus, shall substantially increase as per table given by the Commission itself. 319. The Commission has also made studies with regard to representation of Maratha in prestigious Central services, namely, IAS, IPS and IFS with regard to State of Maharashtra. In the State of Maharashtra out of 161 posts filled from open category candidates, there are 25 IAS belonging from Maratha. Similarly out of 140 posts filled from open category, 39 of IPS belong to Maratha and in IFS out of 97, 89 posts filled from open category, there are 16 IAS belong to Maratha community. When we compute the percentage of IAS, IPS and IFS, percentage of Maratha out of the posts filled from open category candidates comes to 15.52, 27.85 and 17.97 percentage respectively, which is substantial representation of Marathas in prestigious Central services. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed sample survey collected representations and other information, data and has allotted marks on social and educational and economic backward class and in the marking Marathas were found to be backward. However, data and facts which have been collected by the Commission noted above clearly indicate that Marathas are neither socially nor educationally backward and the conclusion recorded by the Gaikwad Commission on the basis of its marking system, indicator and marking is not sufficient to conclude that Marathas are socially and educationally backward. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(4) and 16(4), 338B, 342A and in other Articles of the Constitution of India. In view of Article 342A the SEBCs are those who are specified by the President by public notification for the purposes of a State or Union Territory Under Sub-clause(1) of Article 342A. Article 342A being analogous to Articles 341 and 342 must be interpreted exactly in the same manner. The Parliament inserted phrase "Central List" in Clause (2) of Article 342A only to emphasize the fact that after Constitution 102nd Amendment, the only list that shall be drawn for the purposes of SEBCs is the Central List drawn by the President. 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 socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and Sections in the lists of Other Backward Classes can be made. He submitted that the Constitution Bench in Indra Sawhney directed the Government of India, each of the State Governments and the Administrations of Union Territories to constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being Under Articles 15 and 16, there is no occasion to examine the list of 7th Schedule to find the source of power. He submits that no amendments have been made in any of the Lists of 7th Schedule so as to attract the proviso to Article 368(2). He submits that the Constitution 102nd Amendment did not require ratification by the State Legislature. 336. Before coming to the Articles in the Constitution inserted by the Constitution 102nd Amendment, we need to notice the Statement of Objects and Reasons contained in the Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017 which was introduced in the Lok Sabha on 4th April, 2017 and some details regarding legislative process which culminated into passing of the Constitution (One Hundred and Second Amendment) Act, 2018. When Bill came for discussion to amend the Constitution of India, it was passed by Lok Sabha on 10.04.2017. Rajya Sabha on motion adopted by the House on 11.4.2017 referred the Bill to the Select Committee for examination of the Bill and report thereon to the Rajya Sabha. The Select Committee of Rajya Sabha examined the Bill by holding 7 meetings. The Select Committee asked clarification on various issues f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Commission for Backward Classes was constituted on 14th August, 1993 under the said Act. At present the functions of the National Commission for Backward Classes is limited to examining the requests for inclusion of any class of citizens as a backward class in the Lists and hear complaints of over-inclusion or 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case are concerned with Constitutional Amendment brought by the Constitution (One Hundred and Second Amendment) Act, 2018. The Constitutional Amendment is not a normal legislative exercise and it is always carried out with an object and the purpose. The Constitution of India is a grand norm given to us by the Framers of the Constitution with great deliberations and debates. The Constitution contained the objectives and goals of the nation and contains ideals For the governance by the State. Justice G.P. Singh in '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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was moved by Thawarchand Gehlot, Minister of Social Justice and Empowerment. 345. Learned Counsel for both the parties have advanced the respective submissions on the interpretation of words "Central List" as used in Clause (2) of Article 342A. Both the parties having advanced divergent submissions on the true and correct interpretation of "Central List", it becomes necessary to take aid of interpretation. What was the purpose and object of uses of expression 'Central List', Sub-clause (2) of Article 342A has to be looked into to find a correct meaning of the constitutional provisions. 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see Craies on Statute Law, 5th Ed., p. 122. 349. It is relevant to notice that in paragraph 16 it was also observed that Rule of exclusion has not always been upheld to in America and sometime distinction is made between using such material to ascertaining purpose of a statute and using it for ascertaining its meaning. The judgment itself indicated that the said material is sometime used to ascertain the purpose of a statute. The law has been explained and elaborated in subsequent judgments of this Court which we shall notice hereinafter. One more judgment on which reliance has been placed by Shri Gopal Sankaranarayanan is the judgment of this Court in Aswini Kumar Ghose and 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, namely, I.C. Golak Nath v. State of Punjab, H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC 85: (1971) 3 SCR 9] and Union of India v. H.S. Dhillon [(1971) 2 SCC 779: (1972) 2 SCR 33] taken the view that such speeches can be taken into account. In Golak Nath case Subba Rao, C.J., who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on p. 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat, J. in that case on p. 924. In the case of Madhav Rao, Shah, J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see P. 83). Reference was also made to the speeches in the Constituent Assembly by Mitter, J. on pages 121 and 122. More recently in H.S. Dhilion case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the conclusion arrived at. It can, therefore, be said that this Court has now accepted the view in its decisions since Golak Nath case that speeches made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statute are held legitimate external aids to construction. The modern approach has to a considerable extent eroded the exclusionary Rule even in England. ...... 356. Ultimately, this Court rejected the submission raised and held that the reports of the Committee were admissible. Following was laid down in paragraph 34: 34. ....Further even in the land of its birth, the exclusionary Rule has received a serious jolt in Black-Clawson International Ltd. v. Papierwerke 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 guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose. 358. We may conclude the discussion on the topic by referring to a subsequent Constitution judgment of this Court in Kalpana 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were sought to be remedied and the object and purpose of the law. For understanding this, the court may seek recourse to background parliamentary material associated with the framing of the law. 361. Justice Ashok Bhushan, one of us, in his concurring judgment has observed that Committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Following was observed in paragraph 335: 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a Standing Committee of petitions. Another case relied on is Gujarat Electricity Board v. Hind Mazdoor Sabha [Gujarat Electricity Board v. Hind Mazdoor Sabha, (1995) 5 SCC 27: 1995 SCC (L & S) 1166]. In State of Maharashtra v. Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4: 2001 SCC (L & S) 117], the Court has referred to and relied on a Joint Parliamentary Committee report. In Federation of Railway Officers Assn. v. Union of India [Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289: AIR 2003 SC 1344], the Court has referred to a report of the Standing Committee of Parliament on Railways. In Aruna Roy v. Union of India [Aruna 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced certain clarification of the Minister which was noticed and incorporated in paragraph 6 of the Minutes which is to the following effect: 6. Secretary, Ministry of Social Justice and Empowerment further clarified that under the Backward Classes, unlike the SCs & STs, there are two lists i.c. the Central List and the State List. The Central List provides for education and employment opportunities in Central Government Institutions. In the State 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral list of socially and educationally backward classes specified in a notification issued under Clause (1)."; (iii) In Article 342A insert Clause (3) as follows: The Governor of a State, by public notification specify the socially and educational backward classes for the purposes of making provisions for reservation of posts under that State or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State. Shri B.K. Hari Prasad speaking on the Bill stated following: SHRI B.K. HARIPRASAD: Sir, repealing the Act of 1993 means that nothing would stay as it is and, again, the directions of the Supreme Court are being negated. So, this Commission would not help the Backward Classes and would take away the powers of the States too. They want to centralize all the powers, as they have done in other cases. This cannot happen in the case of OBCS. As I have already said, though the Act was passed in Parliament way back in 1993 for purposes of employment, etc. and way back in 2007 for education, nothing has been implemented so far. If they centralize all things like employment, identification of castes, etc., they would be doing gross injustice to the OBCS. They should think twice before scrapping the powers of the States because, as I have already mentioned, it is the States which identify various castes and communities. They know better than the people sitting here in Delhi. Hence, amending Article 342 and equating identification of OBC List to the SC/ST List should not be done.... 375. Shri Bhupender Yadav has also stated in his speech that Amendment Bill cast threat to federalis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l notify them. Sir, this is the opinion of our party that the power of notification of OBC castes should remain with the States only because only the concerned state thoroughly knows the fact of number of castes in their States and what is their condition. Only the government knows thoroughly. They may face problems with central list. Therefore, I would like to appeal to Hon'ble Minister and the House to add such a provision in the Bill whereby the work of adding or deleting any caste from the OBC list should be strictly done only on the recommendation of the state government to which it relates to. Sir, you can make national list after the uniformity comes gradually. When S.C., S.T., National Commission was formed, it also took much time. In my opinion, after the separate S.C., S.T. Commission was formed, it got the status of Constitutional body in 2003. Therefore, 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave constituted OBC Commission in their respective territories since long ago. When the Kaka Kalelkar Committee was constituted and when it submitted its report, at that time also many States had constituted such Commission. The State List deals with work concerned with OBC category and notifies them. Thereafter, on the basis of Mandal Commission Report as well many States have constituted such Commissions. Supreme Court had also given 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Vice-Chairperson and other Members so appointed shall be such as the President may by Rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission-- (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the 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 recomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.". 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 338B now inserted provides a much larger and comprehensive role to the Commission. The Act, 1993 required the Commission to give advice only to the Central Government. Article 338B now requires the Commission to give advice both to the Central Government and to the States, which is clear from Sub-clauses (5), (7) and (9) of Article 338B, which is quoted as below: (5) It shall be the duty of the Commission-- (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression 'consultation'. 388. The Black's Law Dictionary, 10th Edition, defines 'consultation' as follows: Consultation, n.(15c) 1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int'l law. The interactive methods by which states seek to prevent or resolve disputes.- consult, vb.-consulting, consultative, adj. Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, defines 'consult': Consult. 'Consult implies a conference of two or more persons or the impact of two or more minds brought about in respect of a topic with a view to evolve a correct or atleast a satisfactory solution. It must be directed to the essential points of the subject under 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word 'consult' is frequently defined as meaning 'to discuss something together, or to deliberate'. Quoting Rollo v. Minister of Town and Country Planning 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Record Association and Ors. v. Union of India, (1993) 4 SCC 441. Justice Ratnavel Pandian delivering a concurring opinion has elaborately dealt with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me scheme as is delineated in Articles 341 and 342 of the Constitution. It is submitted that when Article 342A borrows the same scheme which is clear from the fact that Sub-clause (1) of Article 342A is 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to principles of the constitutional objectivity, federal functionalism, democracy and pragmatic federalism. Justice Dipak Misra, CJ, speaking for himself, A.K. Sikri and A.M. Khanwilkar, JJ., laid down that although, primarily, it is a literal Rule which is considered to be the norm while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provisions, sometimes, does not serve the purpose of 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the same are used and the purpose which they seek to achieve. (emphasis supplied) 155. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal Rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in R. (Quintavalle) v. Secy. of State for Health [R. (Quintavalle) v. Secy. of State for Health, (2003) 2 AC 687 : (2003) 2 WLR 692 : 2003 UKHL 13 (HL)] ruled: (AC p. 700, para 21) 21. ... The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 611, paras 145 & 766) 145. ... '468. The Rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with whom Justice T.S. Thakur, CJ and Justice S.A. Bobde, concurred noticed the conflict between a literal interpretation or purposive interpretation. It was held that interpretation has, therefore, to consider not only the context of the law but the context in which the law is enacted. Justice Lokur extracted Bennion on Statutory Interpretation in paragraph 38 to the following effect: 38. In Bennion on Statutory Interpretation [6th Edn. (Indian Reprint) p. 847] it is said that: General judicial adoption of the term "purposive construction" is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognized since the seventeenth century. [Stock v. Frank Jones (Tipton) Ltd., (1978) 1 WLR 231 at p. 234] In fact the recognition goes considerable further back than that. The difficulties over statutory interpretation belong to the language, and there is unlikely to be anything very novel or recent about their solution ... Little has changed over problems of verbal meaning since the Barons of the Exchequer arrived at their famous resolution in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has the effect of eroding or diluting the constitutional objective of keeping the State and its activities free from religious considerations, therefore, must be avoided. This Court has in several pronouncements ruled that while interpreting an enactment, the Courts should remain cognizant of the constitutional goals and the purpose of the Act and interpret the provisions accordingly. 76. Extending the above principle further one can say that if two constructions of a statute were possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so. 77. To somewhat similar effect is the decision of this Court in State of Karnataka v. Appa Balu Ingale [State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762] wherein this Court held that as the vehicle of transforming the nation's life, the Court should respond to the nation's need and interpret the law with pragmatism to further public welfare and to make the constitutional animations a reality. The Court held that Judges should be cognizant of the constitutional goals and remind themselves of the purpose of the Act while interpreting any legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve no effect on the right of the State and State Backward Classes Commission to identify the backward classes. We have extracted above the relevant statement of Minister in the foregoing paragraphs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enforcement of the Constitution. There was already Scheduled Castes list in existence when the Constitution was enforced. We may refer to Government of India Act, 1935, Schedule (1), paragraph 26 which defines the Scheduled Castes in the following words: 26.-(1) In the foregoing provisions of this Schedule the following expressions have the meanings hereby assigned to them, that is to say: ...... ...... ... the scheduled castes" means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty in Council to correspond to the classes of persons formerly known as "the depressed classes", as His Majesty in Council may specify; and... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Act defines the functions of the Commission. Section 9 provides as follows: 9. Functions of the Commission.-(1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory, as the case may be. 342. Scheduled Tribes.-(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and change in the exercise, if any, 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical factor to play with regard to list of backward class issued by Government of India from time to time under 1993 Act, the Constitution Amendment was brought as was brought by Constituent Assembly by Draft Article 341 and 342. Now, by virtue of Article 342A, the list once issued by the President Under Article 342A(1) cannot be tinkered with except by way of Parliamentary enactment. Thus, the above was the objective of the Constitutional Amendment and not the taking away the power of the States to identify the Backward Class in State with regard to reservation for employment in the State services and reservation in educational institution in the States. A laudable objective of keeping away political pressure in amending the list of Backward class issued by President once has been achieved, hence, it cannot be said that the 102nd Constitutional Amendment was without any purpose if the power of State to identify Backward classes in their State was to remain as it is. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by each local Government. The determination, i.e., identification of the backward classes was, thus, left to the local Government as was clearly and categorically stated by Dr. Ambedkar in the Constituent Assembly debates. It is most relevant for the present discussion to quote the exact words used by Dr. Ambedkar while answering the debate on draft sub-clause, Article 10(3) which is Article 16(4) of the present Constitution: Somebody asked me: "What is a backward community"? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. The Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 Sub-clause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above. 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 810 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment) Act, 2000 by which Sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% "has now received constitutional recognition". (10) We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression "on being out of the main stream of national life", is a social test, which also needs to be fulfilled for a case to be covered by exception. (11) We do not find any substance in any of the 10 grounds urged by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring the judgment of Indra Sawhney to a larger Bench. (12) What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration. (13) The Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues regarding representation of Marathas in State services on the basis of facts and materials compiling by Commission and obtained from States and other sources. The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services. (20) The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented. Indra Sawhney has categorically held that what is required by the State for providing reservation Under Article 16(4) is not proportionate representation but adequate representation. (21) The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 intention is discernable and admissible a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2018 as amended by Act, 2019 insofar as it grants reservation Under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or unaided by the State, other than minority educational institutions, is declared ultra vires to the Constitution and struck down. (c) Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down. (d) That admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue. (e) The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation 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 is also relevant is as under: 366. Definitions. Unless the context otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 recommendation. On the other hand, the language of the Constitution is a source for its purpose. There a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preting 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 language of the statutory provision is ambiguous, not clear or where two views are possible or where the provision g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 identify socially and educationally backward classes is not taken away. Ergo, Article 342A requires to be interpreted accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions 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 principles of interpretation of legislation: 1. Legislation is always to be understood first in accordance with its plain meaning. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Constitution, except those backward classes as are so deemed Under Article 342A of the Constitution. 465. This Court in Sudha Rani Garg v. Jagdish Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 issued Under Sub-Clause 1 can be done only by the Parliament. A plain reading of the provision can lead to the following deduction: a. There is a notification issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 whether we provide enough for those who have too little." In these batch of appeals arising from a common judgment of the Bombay High Court In WP No. 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and the analysis of the data collected during its proceedings, recommended that the Maratha class of citizens be declared as a Socially and Educationally Backward Class ("SEBC" hereafter). This soon led to the enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney's case? (3) Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney? (4) Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? (5) Whether, States' power to legislate in relation to "any backward class" Under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? (6) Whether Article 342A of the Constitution abrogates States' power to legislate or classify in respect of "any backward class of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 appellate courts in the superior in vertical hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally-in the sense that a larger bench formation ruling, would be binding and prevail upon the ruling of a smaller bench formation. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, to characterize its conclusions and the considerations through the judgments of various judges, as not ratios but mere obiter or observations not binding upon the states is an over-simplification. The OM did lead to widespread protests and discontent. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit 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 are bound to meet and consider, while framing policies. In view of these factors, the fixed limit of 50% on reservations, requires to be reconsidered. Counsel submitted that whether reservations in a given case are unreasonable and excessive, can always be considered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. The question then is not whether the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-one, to correct the existing imbalance which existed, due to past discriminatory practices that kept large Sections of the society backward; two, the quest for achieving the balance between the guarantee of equality to all, and the positive or affirmative discrimination sanctioned by Article 15 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "heavily value-laden, and necessarily so, since value premises (other than the values of "equality" and "rationality") are necessary to the determination that the Clause requires." Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf. C. PERELMAN, THE IDEA OF JUSTICE AND THE PRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the one hand, and the principle of equality and its command against practising inequality in proscribed areas (caste being one, in both Articles 15 and 16). It was suggested during the hearing that the quantitative criteria (50% limit on reservation) is too restrictive leaving no breathing room for democratically elected g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that case, the question for judicial review was whether a local authority in a period of transition, could impose a lower flat rate tariff in one locality (inhabited by the historically discriminated black community, with poor infrastructure) and a higher metered tariff in a locality with better infrastructure, inhabited by the white comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 young adults are unable to secure admissions in institutions of higher learning. 507. It would be, in this context, relevant to notice that two important amendments to the Constitution of India, which have the effect of transforming the notion of equality, were made in the last 15 years. The first was the eighty sixth amendment - which inserted Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erit in this manner: Let us take merit to mean performance on tests (examinations, interview, character references or whatever) thought to be related to performance relevant to the position (or other opportunity) in question and commonly used as a measure of qualification for that position. (In every case it is an empirical question whether the test performance is actually a good predictor of performance in the position, much less of subsequent positions for which it is a preparation.) Performance on these tests is presumably a composite of native ability, situational advantages (stimulation in the family setting, good schools, sufficient wealth to avoid malnutrition or exhausting work, etc.), and individual effort. The latter may be regarded as evidence of moral desert, but neither native ability nor situational advantages would seem to be. The common forms of selection by merit do not purport to measure the moral desert dimension of performance. Unless one is willing to assume that such virtue is directly proportionate to the total performance, the argument for merit selection cannot rest on the moral deservingness of individual candidates..... 509. In his judgment, (in Indra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 some detail, in the recent ruling in B.K. Pavitra v. Union of India (2019) 16 SCC 129, "Merit" must not be limited to narrow and inflexible criteria such as one's rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. This Court also noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Rs. 2,50,000 per annum. Eligible students must also not be covered by any other central government scholarships or funding, but may be eligible for the National Means-cum-Merit Scholarship Scheme. Scheme List, Ministry of Social Justice and Empowerment, available at http://socialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). See also, Notification dated 06.09.2019, 'Funding pattern for Pre-Matric Scholarship Scheme for SC Students studying in Class 9th and 10th for the year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urces to be less than Rs. 8,00,000 per annum. Under this scheme, in 2020-21, the total budget allocation was Rs. 40 crores; of this, as on 31.12.2020 Rs. 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 Rs. 131.50 crores, with a total expenditure of Rs. 127.62 crores, on 6676 beneficiaries. Ibid 518. Similar pre-matric and post-matric scholarships are also available to ST students. At the state level too, various such scholarship schemes are made available to SC and ST students, and students belonging to minority communities and backward classes. See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767 (Last accessed on 21.04.2021). Similar pre-matric and post-matric scholarships are also available to ST students. At the state level too, various such scholarship schemes are made available to SC and ST students, and students belonging to minority com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Rs. 1100 crore was allocated, out of which, Rs. 802.27 crores were provided to 80 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total budget of Rs. 5,035.75 crore was allocated, out of which Rs. 4,827.89 crore was released for 207.96 lakh beneficiaries. Ibid., at p. 105. 523. A national fellowship is also available to OBC students at the degree levels of M. Phil and Ph.D. Fellowships are awarded to research students, at Rs. 31,000 per month for junior research fellows and at Rs. 35,000 per month for senior research fellows. Under this fellowship, for the year 2020-21, a budget of Rs. 45 crore was allocated, out of which Rs. 18 crore is expected to be provided to 2900 anticipated beneficiaries. In the previous years, from 2016-17 to 2019-20, Rs. 149.5 crore was allocated, out of which approx. Rs. 154 crore was provided to 7,200 beneficiaries (5,100 provisional). Ibid., at p. 107-108. 524. A report of the NITI Aayog Ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arships 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 Rs. 6,00,000/- year, the denial of scholarship to a deserving student from that background cannot equate her or him with another candidate, whose family income might be four times that amount, and who might be able to pay annual fees for medical education, in private educational institutions. In other words, there needs to be constant scrutiny, review and revision of these policies and their effectiveness, besides the aspect of increasing funding, etc. The wider possibilities of affirmative action-USA, South Africa and Canada The US Experience 526. In the US, in Fullilove v. Klutznick 448 U.S. 448 (1980), the US Supreme Court rejected a challenge to the constitutionality of a federal law demanding preferential treatment of minority-owned bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssifications, 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, culture, language and birth". Chapter 10 says that public administration "must be broadly representative of the South African people, with objectivity [and] fairness," and it needs "to redress the imbalances of the past to achieve broad representation". 529. In furtherance of these provisions, in October 1998, the Employment Equity Act was legislated. The Act starts with the premise that "pronounced disadvantages" created by past policies cannot be redressed by a simple repeal of past discriminatory laws, and there was a need to enforce "employment equity to redress the effects of discrimination," and "achieve a diverse workforce broadly representative" of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities and people living in rural areas". To measure compliance with black economic empowerment (BEE) requirements, the Department of Trade and Industry uses a balanced scorecard, consisting of three broad components. The scorecard will be used for government procurement, public-private partnerships, sale of state-owned enterprises, when licenses are applied for, and for any other relevant economic activity. Strategies aimed at levelling the playing field may include the elimination of employment barriers such as adapting testing requirements to compensate for educational disadvantage or lack of work experience Durban City Council (Physical Environment Service Unit) v. Durban Municipal Employees' Society (DMES) (1995) 4 ARB 6.9.14.; reviewing recruitment, selection and promotion procedures to ensure fairness in job competition Durban Metro Council (Consolidated Billing) v. IMATU obo Van Zyl and Anr. (1998) 7 ARB 6.14. 1.; accelerated and corrective training; and the transformation of work environments that exclude or otherwise disadvantage designated groups, e.g. measures aimed at integrating career and family responsibilities Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of Government work without rigid tender process. Orissa, too provides for a price preference to SC/ST entrepreneurs to the extent of 10% of contracts of a certain value. 535. There is empirical evidence, in India, in different sectors that access to productive employment is confined to a few Sections of the workforce, among the most backward of classes, while the rest eke out a living in the informal economy. The fault lines of division between those who are employed in good jobs and those who are "excluded" run deep, and are based on caste, religion, region, and other sectarian divisions all of which overlap with class and gender, such that even within the small Section of the workforce which is productively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 extent of coverage of scholarships, and setting up all manner of special institutions which can train candidates aspiring for higher education, to increase their chances of entry in admission tests, etc. Likewise, innovative employment incentives to the private sector, especially in the manner of employment in contracts or projects awarded by the state or its instrumentalities, need to be closely examined and implemented. These welfare measures can also include giving tax incentives to schemes that fund scholarships and easy (or interest free) loans to SC, ST and SEBC students, which can enhance their access to educational institutions. Today, even if an SC, or SEBC candidate secures admission in a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 President may by Rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission--(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes. xxxxxx xxxxxx xxxxxx 342A. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. 541. Article 366(26C), which defined "socially and educationally backward classes "too was inserted; it is reproduced below, for the sake of reference: '366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be given to the National Commission for Backward Classes. 5. In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following, namely: (a) to insert a new Article 338 so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice-Chairperson and three other Members. The said Commission will hear the grievances of Socially and Educationally Backward Classes, a function which has been discharged so far by the National Commission for Scheduled Castes under Clause (10) of Article 338; and (b) to insert a new Article 342A so as to provide that the President may, by public notification, specify the Socially and Educationally Backward Classes which shall for the purposes of the Constitution be deemed to be Socially and Educationally Backward Classes. II. Contentions of parties 543. The Appellants argue that the Maharashtra SEBC Act (which was enacted and brought into force on 30.11.2018), could not have been enacted, and is clearly void. It is argued that on a plain reading of Article 342A read with Article 366(26C), it is clear that States were denuded of their power to identify backward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Governments. Thus, having regard to plain language of Article 366(26C) and Article 342A as well as the provisions in Article 338B (7), (8) and (9), there is no question of the State Governments or State Legislatures retaining any power to identify backward classes. That power is with the President. 546. It was submitted by Mr. Gopal Sankaranarayan, learned Senior Counsel that the object which impelled the Constitution (102nd Amendment) Act, 2018 appears to be to set up a national body for evolving scientific criteria of uniform application with regard to the identification of communities as backward classes. It was submitted that the frequent demands by various communities to be included in the list of backward classes to garner/gain access to State funded institutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the States' lists were part of the NCBC list. However, the list was broadly common to a large extent. Learned Counsel emphasized that there was no necessity for bringing any constitutional amendment if the new Commission were to be given constitutional status and the lists published by it, made binding only on the Central Government which was to acquire such high degree of status that it could be modified by Parliament alone. It was submitted that surely, State interference with the Central list did not warrant such a drastic measure as a constitutional amendment. 548. Mr. Sankaranarayanan submitted that although there are passages in the report of the Select Committee of the Rajya Sabha, Parliament had discussed the amendment and taken into account the views of certain individuals; the fact remains that it is the text of the Constitution as amended, which is to be interpreted. Learned Counsel relied upon the decisions reported as State of Travancore-Cochin v. Bombay Company Ltd. 1952 SCR 1112; Aswini Kumar Ghose and Anr. v. Arabinda Ghose and Anr. AIR 1953 SC 75 and P.V. Narasimha Rao v. State (1998) 4 SCC 626. He also referred to the decision in Sanjeev Coke Manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of the States would remain unaffected. It was further urged that this Court can and should and ought to have looked into the contents of these reports to discern the true meaning and intent behind the Constitution (One Hundred and Second Amendment) Act, 2018, which was not to disrupt the existing legislative arrangement between the Centre and the State. In this regard, learned Counsel placed reliance upon the judgment of this Court in Kalpana Mehta and Ors. v. Union of India and Ors. (2018) 7 SCC 1, and submitted that the Court can take aid of reports of Parliamentary Committees for the purpose of appreciating the historical background of statutory provisions, and also to resolve the ambiguity in the legislation. 551. It was submitted that if the matter were to be considered in the true perspective and the report of the Select Committee, examined as an aid to interpretation of the Constitution (102nd Amendment) Act, 2018, especially Article 342A, it would be apparent that the Parliament never intended, by the amendment, to disturb the existing order and denude the States of their executive or legislative power to identity backward classes while making special provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of socially and educationally backward classes ("SEBC" hereafter), and suggest inclusion or exclusion of such classes, in a list for the purposes of Central Government, or central public sector corporation employment, and extension of other benefits under union educational and other institutions, Under Articles 15 (4) and 16 (4). In case such a list is drawn and published Under Article 342A (1), it is only Parliament that has the power to modify it. This does not, in any manner disturb or take away the states' power to identify or include communities as backward classes of citizens for the purposes of benefits that they wish to extend to them, through state policies and legislation, or for reservation in state employment Under Article 16 (4). He highlighted that the term "Unless the context otherwise requires" is the controlling phrase, which precedes the definition of various terms Under Article 366 of the Constitution. Therefore, if the context is different-as is evident from Article 342A (2), by the use of the term "Central List", that should be given meaning, and the interpretation based on that meaning should prevail in the construction of the entire provision (i.e. Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion would be a more effective arrangement in respect of the constitutional safeguards for Scheduled Castes and Scheduled Tribes than a single Special Officer as at present. It is also felt that it is necessary to elaborate the functions of the said Commission so as to cover measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes. 557. The composite Commission for SCs and STs was bifurcated by another amendment-the Constitution (Eighty Ninth Amendment) Act, 2003, which inserted Article 338A, enabling the creation of a commission exclusively to consider measures and make recommendations for amelioration of STs. Article 338B has now been introduced through the 102nd amendment, which is in issue. 558. The relevant provisions relating to SCs and STs under the Constitution are extracted below: Article 366 366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (1) xxxxxx xxxxxx xxxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of any law made by Parliament, by Rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. (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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendation as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by Rule specify. (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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. IV. Previous commissions set up to identify SEBCs 559. It would be useful at this stage to recollect that before Indra Sawhney, two commissions were set up at the national level, to examine and make suitable recommendations in respect of identification of other backward classes. These were the Kaka Kalelkar Commission Set up by the Central Government, in January 1953. and the B.P. Mandal Commission Set up by the Central Government on 1 January, 1979. The Kalelkar Commission, after an exhaustive survey and study, through its report, identified 2399 backward groups and recommended several measures for their advancement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate Under Articles 341 and 342 of the Constitution of India. ******** ******** 38. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders Under Articles 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power Under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 in Champakam Dorairajan v. State of Madras AIR 1951 SC 226, Article 15 was amended and Article 15 (4) was introduced. The term "socially and educationally backward class of citizens" was inserted, conferring power upon the State to make special provisions for their advancement. This term "socially and educationally backward" has been held to also provide colour the term "backward class" in the decision in Indra Sawhney-as indeed in the earlier decision in N.M. Thomas (supra). This Court noticed that 'backward class' of citizens, though wider in context, has to take colour from social backwardness, which also results in educational backwardness. 563. Indra Sawhney in para 859 (13) SCC report, had issued directions with regard to the desirability of setting up Commissions by the Central and State Governments, to ascertain the position and identification of backward class of citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament at the time when the 123rd amendment bill was introduced. A brief reference of this can now be made. The introduction (to the Report dated (July 2017) disclosed that in all, seven meetings were held by the Select Committee. The committee comprised 25 members, with a Secretariat of 7 officials. It took note of statements made by three representatives of the Ministry of Social Justice, two from the Department of Legal Affairs and three from the Legislative Department. 566. The Report noted the background of introduction of the 123rd Amendment Bill including the amendments to Article 338 and the introduction of Article 338B. It traces the history of the Backward Class Commissions set up Under Article 340, the office memoranda which led to the judgment in Indra Sawhney, as well as the direction by this Court in that judgment regarding setting up of commissions. It further noted the existing legal regime i.e., the NCBC Act, and noted that several experts felt that there was no change or amendment needed to alter the existing regime for identification of backward classes. In Para 20 of the Report, it was noted that in the Fifth Consultation Meeting, the members had raised the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 the Commission Under Article 338B and also whether the NCBC Act would be repealed. Interestingly, Para 47 reflects the discussion regarding an amendment by which new Sub-article 10 was proposed to Article 338B. It read as follows: 47. The Committee discussed the amendment wherein in Article 338B a new Sub-clause (10) was proposed to be inserted. This Sub-clause (10) would read as follows: 'Notwithstanding anything provided in Clause 9, the State Government shall continue to have powers to identify Socially and Educationally Backward Classes'. 568. The Committee was satisfied, in the Report with the clarification issued by the concerned Ministry in the following terms: 48. It was clarified by the Ministry of Social Justice and Empowerment to the Committee that the proposed amendment does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd classes. 55. The Ministry clarified that the aspect of reservation of posts under that State or under any other authority of the State or under the control of the State, or seats in the educational institutions within that State was beyond the purview of the instant Bill and hence the amendments proposed are not allowed. 56. It was clarified by the Ministry that Clause (1) of Article 154 and Article 163 of the Constitution clearly state that Governor shall act on the advice of the Council of Ministers. It was informed that under the above Constitutional provisions the Governor shall exercise his authority either directly or indirectly through officers of respective State Government. Article 341 of Constitution provides for consultation by the President with Governor of State with respect to Scheduled Castes and Article 342 of the Constitution provides consultation by the President with Governor of State in respect of Scheduled Tribes. As is the practice at no time has the State Government been excluded in the consultation process. It is always invariably the State Government which recommends to the President the category of inclusion/exclusion in Scheduled Castes and Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Scheduled Tribes may be taken into consideration. The Committee is of the view that while framing the Rules for composition of the proposed Commission and selection of its Chairperson it should be ensured that the persons belonging to socially and educationally backward classes be given due representation to inspire confidence amongst the socially and educationally backward classes. It may further be ensured that at least one-woman member is part of the Commission. 69. The Committee hopes that the Bill would bring a sea change by putting in place effective and efficient delivery mechanism for the welfare of socially and educationally backward classes. VIII Extrinsic aids to interpretation of statutes: the extent to which they can be relied upon 575. The parties presented rival submissions with respect to interpretation of the words of the statute in the light of the reports of the Select Committee report as well as the debates in Parliament at the time of introduction of the amendment, or the law as enacted. The Appellants asserted that such debates are of limited assistance only as external aids in the case of an ambiguity and had relied upon a line of decisions starting wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. Failing this, it is open to the court to find meaning, and resolve the ambiguity, by turning to external aids, which include the statements of objects and reasons, as well as Parliamentary reports, or debates in Parliament. To this Court, it appears that the task of interpreting the provisions of 102nd Amendment does not begin by relying on external aids such as Statement of Objects and Reasons (which throw practically no light on the meaning of the provisions), or even the Select Committee Report. The task of interpretation is first to consider the overall scheme of the provisions, and secondly, after considering the provision, proceed to resolve any perceived ambiguity, if found, by resorting to aids within the statute. It is at the third stage, when such resolution is impossible, that external aids are to be looked into. Thus, in a seven-judge bench decision, this Court, in State of Karnataka v. Union of India 1978 (2) SCR 1 administered the following caution, while outlining the court's task of interpreting the Constitution: The dynamic needs of the nation, which a Constitution must fulfil, leave no room for merely pedantic hair-splitting play with words or seman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within that constitutional matrix could one hope to be able to discern its true meaning, purport and ambit. As Prof. Laurence Tribe points out: [T]o understand the Constitution as a legal text, it is essential to recognize the ... sort of text it is: a constitutive text that purports, in the name of the people..., to bring into being a number of distinct but inter-related institutions and practices, at once legal and political, and to define the Rules governing those institutions and practices. (See Reflections on Free-Form Method in Constitutional Interpretation. [108 Harv L Rev 1221, 1235 (1995)]). 39. It has been repeatedly appreciated by this Court that our Constitution is one of the most carefully drafted ones, where every situation conceivable, within the vast experience, expertise and knowledge of our framers, was considered, deliberated upon, and appropriate features and text chosen to enable the organs of the State in discharging their roles. While indeed dynamic interpretation is necessary, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. N. Narasimahaiah (2008) 5 SCC 176 it was observed that: 42. Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden Rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself (sic not) lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject 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 report of a Select Committee may be considered as background to the construction of an Act; however, such reports could not be invested with any kind of interpretive authority. See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410. In R. (Baiai) v. Home Secretary, [2006] EWHC 823 (Admin) a report of the Parliamentary Joint Committee on Human Rights was considered. The committee's opinions on compatibility and other matters of law were held to have persuasive value, however, they could have no greater weight than, for example, the views of distinguished academic writers. Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell) 2017 Chap. 27 @ para 27.1.13.1, page 952 IX Interpretation of the Constitution, the definition Clause Under Article 366 and Amendments to the Constitution 583. The Court has to interpret provisions of the Constitution, in this case, introduced through an amendment. The proper method of interpreting such an amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of this Constitution' and 'in relation to that State' appearing in Articles 341 and 342 of the Constitution. This Court then noticed the divergent views of the High Courts and then observed: "13. It is trite knowledge that the statutory and constitutional provisions should be interpreted broadly and harmoniously. It is trite saying that where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. This is well settled. See the observations of this Court in Venkataramana Devaru v. State of Mysore [1958 SCR 895, 918: AIR 1958 SC 255], where Venkatarama Aiyer, J. reiterated that the Rule of construction is well settled and where there are in an enactment two provisions which cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that the expression 'for the purposes of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination Under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentally 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 different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. 587. The recent judgment in Bir Singh v. Delhi Jal Board (supra) reiterated the previous two Constitution Bench judgments. It is useful to notice the partly concurring judgment of Bhanumati, J. who observed that 80. Clause (24) of Article 366 defines "Scheduled Castes" and Clause (25) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public notification by the President specifying the particular castes or tribes as SC/ST shall be final for the purpose of Constitution and shall be exhaustive. (b) Once a notification is issued under Clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under Clause (1), shall not be varied by any subsequent notification [Ref. Action Committee on Issue of Caste Certificate to SCs/STs in State of Maharashtra v. Union of India, (1994) 5 SCC 244]. 588. These three Constitution Bench judgments, Marri (supra), Action Committee (supra) and Bir Singh (supra) therefore, have set the tone as it were, for the manner in which determination by the President is to be interpreted, having regard to the definition Clause in Article 366, which has to apply for interpreting the particular expression in a consistent manner, for the purpose of the Constitution. Thus, the expression SCs in relation to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 led to the inexorable conclusion that a limitation was placed upon the States' power of taxation. Article 366(29A) on the one hand, expanded the specie of sale which could be the legitimate subject of taxation by the State, but at the same time, on the other hand, the amendment also introduced limitations upon the State power which was subjected to controls by Parliament. Therefore, in the context of the amendment the expression "sale" underwent alteration, partly allowing and partly restricting states' power to tax goods. This Court, after recounting the history of the previous litigation, held that: 19. Following the decisions referred to above, we are of the view that the power of State Legislatures to enact law to levy tax on the transfer of right to use any goods under Entry 54 of List II of the Seventh Schedule has two limitations--one arising out of the entry itself; which is subject to Entry 92-A of List I, and the other flowing from the restrictions embodied in Article 286. By virtue of Entry 92-A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether as goods or in some other form). The latter part of Clause (29-A) of Article 366 of the Constitution makes the position very clear. While referring to the transfer, delivery or supply of any goods that takes place as per Sub-clauses (a) to (f) of Clause (29-A), the latter part of Clause (29-A) says that "such transfer, delivery or supply of any goods" shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. Hence, a transfer of property in goods Under Sub-clause (b) of Clause (29-A) is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and a purchase of those goods by the person to whom such transfer is made. The object of the new definition introduced in Clause (29-A) of Article 366 of the Constitution is, therefore, to enlarge the scope of 'tax on sale or purchase of goods' wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in Sub-clauses (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (29-A) of Article 366, the sales tax law of a State which provides for levy of sales tax thereon will have to comply with the restrictions mentioned in Section 15 of the Central Sales Tax Act, 1956. .... We are of the view that all transfers, deliveries and supplies of goods referred to in Clauses (a) to (f) of Clause (29-A) of Article 366 of the Constitution are subject to the restrictions and conditions mentioned in Clause (1), Clause (2) and Sub-clause (a) of Clause (3) of Article 286 of the Constitution and the transfers and deliveries that take place Under Sub-clauses (b), (c) and (d) of Clause (29-A) of Article 366 of the Constitution are subject to an additional restriction mentioned in Sub-clause (b) of Article 286(3) of the Constitution. 592. In Commissioner of Income Tax v. Willamson Financial Services (2008) 2 SCC 202, this Court had to interpret "agricultural income", a term defined in Article 366(1)as follows: 366. Definitions.--In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say-- (1) 'agricultural income' means agricultural income as defined fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred, delivered, stored, possessed, etc. The software programs have all these attributes. 596. It is therefore, apparent that whenever the definition clause, i.e. Article 366 has arisen for interpretation, this Court has consistently given effect to the express terms, and in the broadest manner. Whenever new definitions were introduced, full effect was given, to the plain and grammatical terms, often, limiting existing legislative powers conferred upon the states. 597. Before proceeding to examine whether the term "the Central List" in Article 342A indicates an expression to the contrary, [per Article 366 (1)] it is also necessary to consider some decisions that have interpreted amendments which introduced entirely new provisions, either affecting state's legislative powers, or limiting fundamental rights. 598. In Bimolangshu Roy v. State of Assam (2018) 14 SCC 408 the state's legislative competence to enact a law providing for appointment of Parliamentary Secretaries, in the context of provisions of the Constitution (Ninety-First Amendment) Bill, 2003 which was passed by both the Houses of Parliament and after receiving the assent of the President, became a provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar, the meaning of the Clause "the powers, privileges and the immunities of a House of the legislature of a State ... and of the Members of a House of such legislature" must be examined. *** 43. Article 194 deals exclusively with the powers and privileges of the legislature, its Members and committees thereof. While Clause (1) declares that there shall be freedom of speech in the legislature subject to the limitations enumerated therein, Clause (2) provides immunity in favour of the Members of the legislature from any legal proceedings in any court for anything said or any vote given by such Members in the legislature or any committees, etc. Clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its Members with respect to matters other than the ones covered under Clauses (1) and (2). 44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 speaks about the offices of Speaker and Deputy Speaker. Article 179 deals with the vacation of those offices or resignations of incumbents of those offices whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by this Court in Champakam Dorairajan case [1951 SCR 525]. In Unni Krishnan [(1993) 1 SCC 645] this Court held that Article 19(1)(g) is not attracted for establishing and running educational institutions. However, in T.M.A. Pai Foundation case [(2002) 8 SCC 481] it was held that the right to establish and run educational institutions is an occupation within the meaning of Article 19(1)(g). The scope of the decision in T.M.A. Pai Foundation case [(2002) 8 SCC 481] was later explained in P.A. Inamdar case [(2005) 6 SCC 537]. It was held that as regards unaided institutions, the State has no control and such institutions are free to admit students of their own choice. The said decision necessitated the enactment of the Constitution (Ninety-third Amendment) Act, 2005. Thus, both Articles 15(4) and 15(5) operate in different areas. The "nothing in this article" [mentioned at the beginning of Article 15(5)] would only mean that the nothing in this Article which prohibits the State on grounds which are mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude Article 15(4) of the Constitution. 126. It is a well-settled principle of constitutional interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aused Article 246 to be changed to its present form where Parliament is empowered to make laws with respect to "any part of the territory of India not included in a State". The word "State" has not been defined in the Constitution. Article 1(3) defines the territory of India as comprising: (a) the territories of the States; (b) the Union Territories specified in the First Schedule; and (c) such other territories as may be acquired. The word "Union Territory" has been defined in Article 366(30) to mean "any Union Territory specified in the First Schedule and includes any other territory comprised within the territory of India but not specified in that Schedule 54. Though not defined in the Constitution, the word "State" has been defined in the General Clauses Act, 1897 (hereinafter called "the General Clauses Act"). Article 367 of the Constitution states that the General Clauses Act, 1897 shall, unless the context otherwise requires and subject to any adaptations and modifications made Under Article 372, apply for the interpretation of the Constitution. Therefore, on a plain reading of the provisions involved, it would appear that the definition of "State" in the General Clauses A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India. X. Interpreting provisions of the 102nd Amendment-Article 366 (26C), 338B and 342A 601. What is noticeable in the lines of decisions preceding this section, including those dealing with constitutional amendments-is that whenever the definition Clause (Article 366) arose for consideration, the court gave full effect to the substantive amendments as well as the definition (as in the case of Builders Association [supra] and Twentieth Century Leasing [supra]), as well as the newly introduced provisions (as in the case of Bimolangshu Roy [supra] and Ashoka Kumar Thakur [supra]). In Williamson Financial Services (supra) and New Delhi Municipal Council (supra), this Court gave full effect to the plain meaning of the definition clause, in Article 366 (1) (1) and (30) respectively. 602. In this background, the crucial point to be decided is-did Parliament, acting in its constituent capacity, whereby any amendment needed a special majority of two thirds of its members present and voting, in both the Houses separately, wish to bring about a change in status quo or not? 603. Parliament was aware that the procedure for identification of SCs and STs, culminated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depart from the existing mechanisms of setting standards for identification of such classes, nor was it to be a direction in perpetuity, that status quo remain forever. It cannot be seriously assumed that if Parliament were so minded, it cannot bring about changes at all to the Constitution, in regard to how identification of backward classes is to take place. The existence of the provision in Article 368, enabling amendments, and the inapplicability of the proviso to Article 368(2) in relation to the kind of changes to the Constitution, brought about by introduction of Articles 366 (26C), Article 338B and Article 342A, negates this argument. 606. A reading of the Select Committee's Report (in relation to the 102nd Amendment) bears out that various changes to the proposed amendments were suggested on the ground that on a fair and reasonable interpretation of its terms, State's powers to make reservations could be impacted. The Central Government's representatives and officials assured that the State's role in the process of backward class identification and listing, would be maintained. None of the amendments proposed, expressly preserving the state power, were ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates would not be affected. To the same effect, are debates on the floor of the Houses of Parliament. Given all these circumstances, it is difficult to accept the contention that the Select Committee's Report, to the extent it holds out an assurance, should be used as a determinative external aid for interpretation of the actual terms of the 102nd Amendment. Likewise, debates and statements cannot be conclusive about the terms of the changes brought about by an amendment to the Constitution. The duty of the court always is to first interpret the text, and only if there is ambiguity in the meaning, to resort first to internal aids, before seeking external aids outside the text. 609. It would be useful to recollect that this Court had, through a seven-judge bench, held that the words of the statute are to be construed on their own terms and that the task of interpretation should not be determined by statements made by Ministers and Members of Parliament. In Sanjeev Coke Manufacturing (supra) it was held that: No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are able to exert their view-points, in a common parliamentary jargon, the power lobby, gets what it wants, and the machinery is of a bureaucratic set up who draft the legislation or Rule or law. So, there-fore, what is passed on very often as the will of the people in a particular enactment is the handy work of a bureaucratic machine produced at the behest of a power lobby control-ling the corridors of power in a particular situation. This takes the mythical shape of the 'intention of the people' in the form of legislation. Again, very often, the bureaucratic machine is not able to correctly and properly transmute what was intended to be conveyed. In such a situation, is it or is it not better, one would ponder to ask, whether the courts should attribute to the law-making body the knowledge of the values and limitations of the Constitution, and knowledge of the evils that should be remedied at a particular time and in a situation that should be met by a particular piece of legislation, and the court with the experience and knowledge of law, with the assistance of lawyers trained in this behalf, should endeavour to find out what will be the correct and appropriate soluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal on the basis of his religion or caste, this Court took the aid of the doctrine of purposive construction, in Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629. The majority judgment adopted a wide interpretation, whereby any appeal on proscribed grounds, by the candidate, for himself, against his rival, or to the voter, would constitute a corrupt practice: 47. There is no doubt in our mind that keeping in view the social context in which Clause (3) of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the learned Counsel for the Appellants, which, as he suggested, should be limited only to the candidate's religion or that of his rival candidates. To the extent that this Court has limited the scope of Section 123(3) of the Act in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750: AIR 1965 SC 183], Kanti Prasad Jayshanker Yagnik [Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC 455] and Ramesh Yeshwant Prabhoo [Ramesh Yeshwant Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advice to the Central Government as it deems appropriate". By all accounts, that commission embarked on its task and identified SEBCs in all the 31 states and union territories in India. According to the information available Website of the Ministry of Social Justice, Central Government: http://socialjustice.nic.in/UserView/index?mid=76674 accessed on 12.04.2012 at 22.02 hrs., as many as 2479 castes and communities have been notified as backward classes, throughout the entire country, in relation to each state and union territory. It is nobody's case that the statutory commission-NCBC was not functioning properly, or that there was any interference with its work. Nor is there any suggestion that states voiced resentment at the decisions or recommendations of the NCBC. Given these, the important question that hangs in the air-if one can say so-is why did Parliament have to go to such great lengths, to merely confer constitutional status, upon the NCBC, and at the same time, tie the hands of the Union Government, robbing it of the flexibility it always had, of modifying or amending the list of OBCs for the purposes of the Union Government and Central public sector employment, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical meaning to the provisions introduced by the 102nd Amendment, has the effect of tying the hands of the Central Government, and at the same time, grants the states unlimited latitude in the manner of inclusion of any class of citizens as backward. 619. The claim that the interpretation suggested by the Respondents is pragmatic and conforms to the doctrine of purposive interpretation, with respect, cannot be accepted. It completely undermines the width and amplitude of the following: (a) The deeming fiction introduced by the 102nd Amendment, while inserting Article 366 (26C); (b) The use of the term "means" which has been interpreted to imply an exhaustive definitional expression, in several decisions of this Court Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682 where a Constitution Bench stated: 72. The definition has used the word 'means'. When a statute says that a word or phrase shall "mean"--not merely that it shall "include"--certain things or acts, "the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition" (per Esher, M.R., Gough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. This means that after the introduction of these provisions, the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament. 621. This sequitur is the only reason why change was envisioned in the first place by Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as exists, in relation to the most backward classes among all citizens, (i.e. the SCs and STs, through Articles 338, 338A, 341 and 342). Too much cannot be read into the use of the expression the Central list for the simple reason that it is a list, prepared and published by the President, on the aid and advice of the Union Council of Ministers. The term Central is no doubt, unusual, but it occurs in the Constitution in several places. At the same time, the Council of Ministers headed by the Prime Minister advices the President and provides information relating to the administration of the affairs of the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner acting within the scope of the authority given to him Under Sub-section (3) of Section 94 of the said Act; and (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include-- (i) in relation to functions entrusted under Clause (1) of Article 258 of the Constitution, to the Government of a State, the State Government acting within the scope of the authority given to it under that clause; 1 *** (ii) in relation to the administration of a Part C State 2 before the commencement of the Constitution (Seventh Amendment) Act, 1956], the Chief Commissioner or the Lieutenant Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it Under Article 239 or Article 243 of the Constitution, as the case may be; and (iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him Under Article 239 of the Constitution In a recent decision, K. Lakshminarayanan v. Union of India (2020) 14 SCC 664 this Court held that 24. Thus, it is clear that the definition of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language of the new provisions, which has to be adopted. 624. Parliament, through the 102nd Amendment clearly intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs Under Articles 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs. To achieve that, Parliament inserted Article 338B-which is a mirror image of Articles 338 and 338A. The tasks assigned to the new Commission for Backward Classes which is envisioned as a multi-member Commission, are radically different from the duties which were assigned by Parliament in the NCBC Act. Under Section 9 of the erstwhile NCBC Act, which was repealed just before the commencement of the 102nd amendment, the NCBC was to examine requests for inclusion of any class of citizens as backward classes in the list and the advice of the Commission was ordinarily binding upon the Central Government. Section 11 provided for a periodical revision of lists. As noticed by Ashok Bhushan, J., Article 338B envisions a larger role for the new Commission. This Commission not only advises the Central Government but also the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other decisions, this Court gave the fullest latitude to the expressions in the definition Clause while interpreting them in the peculiar facts of the case. Similarly, when constitutional amendments introduced new definitions such as in Article 366(29A), judicial interpretation leaned in favour of giving literal meaning to the terms used which had led to change in the existing tax regime. Such changes too limited the State's legislative powers. Thus, for instance, in the Constitution bench judgments in Builders Association (supra) and in 20th Century Leasing (supra), this Court had decisively ruled that the taxing power of the States was explained by the amendment but at the same time was limited in more than one manner by the express terms which had introduced a new entry in the Central or Union legislative field. Furthermore, the principles on which taxation could be resorted to by the States too had to be defined by the Union Government. In other cases, whenever constitutional amendments brought about changes in the existing status quo like in Kihoto Hollohan (supra) or limited the legislative power constraining the state from expanding its council of ministers beyond a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38B, is to be interpreted in the same light. In other words, were the intention merely to confer constitutional status, that would have been achieved by an insertion of the provision in Article 338B without any other amendment, such as being in the definition Clause under 366 or the insertion of 342A. 629. The change brought about by the 102nd Amendment by introducing Sub-article (26C) to Article 366 and inserting a new provision-Article 342A, to my mind, brings about a total alignment with the existing constitutional scheme for identification of backward classes, with the manner and the way in which identification of SCs and STs has been undertaken hitherto, by the Central Government culminating in Presidential notifications. That task is aided by two Commissions-respectively for SCs and STs, much as in the case of the new National Commission for Backward Classes which will undertake the task of aiding and advising the Central Government for issuing the notification for the purposes of the Constitution Under Article 342A. The pattern of finality and a single list, in relation to every State and UT-which exists in relation to SCs and STs (Articles 341 and 342) now has been replica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This two-way linkage between the definition Clause with the substantive provisions is not without significance. As has been held in Marri Chandra Shekar (supra); Action Committee (supra) and Bir Singh (supra), the expression "for the purposes of the Constitution" has to be given fullest weight. Therefore, whenever lists are prepared under these three provisions in relation to States or UTs, the classes and castes included in such list and no other are deemed to be castes or classes falling within the one or the other category (SCs, STs, SEBCs) in relation to the particular State or UT for the purposes of the Constitution. 632. If one were to, for the sake of argument, consider the deliberations before the Select Committee reflected in its report, it is evident that amendments at three places were moved to place the matter beyond controversy and clarify that States' jurisdiction and power to identify SEBCs would remain undisturbed. To achieve this, proposed Articles 342A(3) & (4) were introduced. These proposed amendments were not accepted; and were dropped. No doubt, the rationale for dropping (the amendments) was the impression given in the form of an assurance that the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the process of identification. It is this list which contains members of classes or communities which can be called as SEBCs by virtue of Article 366(26C). In other words, the subject of Article 342A(1) determines the subject of Article 366(26C) which in turn controls and guides the definition of the term "SEBCs" for the entire Constitution. This is achieved by using emphatic terms such as "means" and "deemed to be". A similar emphasis is to be found in Article 342A(1) which uses "shall for the purposes of the Constitution". In both cases, i.e. Articles 366(26C) and 342A(1), there are no words limiting, or terms indicative of restriction as to the extent to which such inclusion is to operate. Thus, like in the case of Articles 341 and 342, those classes and castes included in the list of SEBCs in relation to every State and every UT are: (i) For the purposes of the Constitution; (ii) deemed to be SEBCs in relation to concerned State or Union Territory. 634. The width and amplitude of the expression "shall be deemed to be" of the expression cannot be diluted or cut down in any manner whatsoever. If one understands that this list in fact identifies SEBCs for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt would be reading into the Constitution provisions which no longer exist i.e., that the State can continue to carry out identification of SEBCs. This exercise would be contrary to the express terms. 636. Therefore, the above expressions, having regard to the precedents of this Court with respect to (i) interpretation of the definition Clause Under Article 366; (ii) interpretation of new definitions inserted in Article 366 and (iii) interpretation of amendments made to the Constitution which inserted new provisions, where the Court always leant in favour of giving fullest effect to the substantive provisions, this Court has to adopt the same approach, to usher change, by plain, literal construction. This Court never whittled down the terminology through extrinsic aids such as speeches made on the floor of the Parliament or Select Committee reports. In this instance, doing so would be giving effect to what Parliamentarians said or Ministers said, ignoring thereby, the plain terms of the Constitution. As stated earlier, the Court cannot assume that Parliament merely indicated a cosmetic change by conferment of constitutional changes which could have been best achieved by introducin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory-interpretation-and-constitutional-legislation-FINAL-19-03-14. pdf?sequence=1&isAllowed=y states that at times, there is no clear indication why a statute or amendment is introduced: Statutes usually carry on their faces no indication of the mischief at which they are aimed; they do not tell a story. Looking at the statute as a whole will not always help: many statutes are collections of knee-jerk reactions to a number of different stimuli, and the degree of coherence is further reduced where changes in government policy are given effect by amending earlier legislation drafted to give effect to different policies. The Article then goes on to emphasize that the context, and the pre-existing regime has to be considered, while interpreting the amendment or provision: Constitutional provisions establishing the state and its main institutions will often not be a response to a particular mischief. A state's institutional design is more likely to reflect a political theory and idea of good government, as in the USA., or to be a result of gradual accretion, as in the UK, than to be a reaction to an identifiable problem. On the other hand, problems arising in the pre-consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evolved criteria, with the aid of experts, in a scientific manner, be in consonance with the constitutional objectives of providing benefits to SEBCs, having regard to relative regional and intra state levels of progress and development. Given all these factors, this Court is of the opinion that the 102nd Amendment, by inserting 366(26C), 342A, 338B and 342A aligned the mechanism for identification of SEBCs with the existing mechanism for identification of SCs/STs. 643. At this stage, a word about Article 338B is necessary. Earlier, it was noticed that this provision mirrors Articles 338 and 338A and sets out various provisions for setting up a National Commission which is like its counterparts, in relation to SCs and STs (Articles 338 and 338A). The consultative provisions Under Articles 338B(7) and 338B(9) in the opinion of this Court, only imply that in matters of identification, the States can make their recommendations. However, by reason of Article 342A, it is the President, i.e. the Union Government only, whose decision is final and determinative. The determination made for inclusion or exclusion can be amended through a law made by Parliament alone. Given that Article 338( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly read along with Article 366(26C), on and from the date of coming into force of the 102nd Amendment Act, only the President, i.e. the Central Government has the power of ultimately identifying the classes and castes as SEBCs. This Court is conscious that though the amendment came into force more than two years ago, as yet no list has been notified Under Article 342A. It is also noteworthy that the NCBC Act has been repealed. In these circumstances, the Court holds that the President should after due consultation with the Commission set up Under Article 338B expeditiously, publish a comprehensive list under 342A(1). This exercise should preferably be completed with utmost expedition given the public importance of the matter. Till such time, the SEBC lists prepared by the states would continue to hold the field. These directions are given Under Article 142, having regard to the drastic consequences which would flow if it is held that all State lists would cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs' entitlement to claim benefits Under Articles 15 and 16 of the Constitution. Re: Point No. 6 Whether, Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union argued that there is no question of the 102nd Amendment Act or any of its provisions violating any essential feature of the Constitution. It was submitted that unless the amendment in question directly affects (i.e. takes away the legislative power altogether in the list rather than a part of its content by amending any of the provisions in List II or List III of the Seventh Schedule to the Constitution), there is no need for seeking rectification of a majority of the statutes. The Attorney General relied upon a judgment of this Court in Sajjan Singh v. State of Rajasthan 1965 SCR (1) 933. 650. Two issues arise with respect to the validity of provisions inserted by the 102nd Amendment Act. The first is a facial challenge inasmuch as the Petitioner urges that without following the procedure indicated in the proviso to Article 368(2), i.e. seeking approval or ratification of atleast one half of the legislative assemblies of all the States, the amendment is void. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the direct result of the amendment was to bar the jurisdiction of High Courts and thus, it directly impacted Chapter 5 of Part VI; a ratification was required by a majority of the States. Since that procedure was not followed, para 7 was held to be violative of the basic structure of the Constitution. The Court applied the doctrine of severability and held that the other parts of the amendment, contained in the Tenth Schedule did not need any such ratification and that para 7 alone would be severed on the ground of its being contrary to express constitutional provisions. This Court ruled as follows: 59. In Sajjan Singh case [(1965) 1 SCR 933: AIR 1965 SC 845] a similar contention was raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964 by which Article 31-A was again amended and 44 statutes were added to the Ninth Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. This Court noticed the question thus: (SCR p. 940) xxxxxx xxxxxx xxxxxx 76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. 653. As far as the question of whether the amendment has the effect of violating the basic or essential features so far as it impacts the federal structure of the Constitution is concerned, what is noticeable is that past decisions have emphasized that a mere change brought about through amendments howsoever serious the impact, cannot per se be regarded as violative of the basic structure. In Raghunathrao Ganpatrao (supra) Ref. f.n.104 the deletion of Articles 291 and 362 of the Constitution, by amendment, was questioned on the ground that they affected the basic structure, or essential features of the Constitution. This Court rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concept in separation of powers Under Articles 245 and 246 read with the three lists in the seventh Schedule to the Constitution. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. xxxxxx xxxxxx xxxxxx The word 'amendment' postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. 655. Along similar lines, Krishna Iyer, J. had remarked as to what kind of an amendment would be abhorrent and violate the basic structure in Maharao Sahib Shri Bhim Singhji v. Union of India (1981) 1 SCC 166 in the following terms: Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. 656. By these parameters, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?; and (5) Re. Point No. 5 Whether, States' power to legislate in relation to "any backward class" Under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India. On these two interrelated points of reference, my conclusions are as follows: (i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published Under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution. (ii) The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission Under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published Under Article 342A (1). ..... 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