DR. JAISHRI LAXMANRAO PATIL versus THE CHIEF MINISTER & ORS.
[2021] 15 S.C.R. 715, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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   [2021] 15 S.C.R. 715
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 DR. JAISHRI LAXMANRAO PATIL
v.
THE CHIEF MINISTER & ORS.
(Civil Appeal No.3123 of 2020)
MAY 05, 2021
[ASHOK BHUSHAN, L. NAGESWARA RAO, 
S. ABDUL NAZEER, HEMANT GUPTA AND 
S. RAVINDRA BHAT, JJ.]
Reservation – Constitution of India – Arts. 15 and 16 –
Constitution (Eighty-first Amendment) Act, 2000 – Socially and
educationally backward class (SEBC) – Reservation in favour of
backward class citizens – On 16.11.1992, a nine-Judge Constitution
Bench of Supreme Court delivered a judgment in Indra Sawhney
case laying down law pertaining to principle of reservation under
the Constitution – Six separate judgments were delivered in the case
including one judgment of Justice Jeevan Reddy, which was for
himself and three other judges – Whether judgment in case of Indra
Sawhney 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. – Held, No – Held [per Ashok Bhushan, J. (for himself and S.
Abdul Nazeer, J.)] with Ravindra Bhat, J., L. Nageswara Rao, J.
and Hemant Gupta, J. concurring : The greatest common measure
of agreement in six separate judgments delivered in Indra Sawhney
is: (i) Reservation under Article 16(4) should not exceed 50%. (ii)
For exceeding reservation beyond 50%, extra-ordinary
circumstances as indicated in paragraph 810 of Justice Jeevan
Reddy should exist for which extreme caution is to
be exercised –
The 50% rule affirmed in Indra Sawhney is to fulfill the objective of
equality as engrafted in Article 14 of which Articles 15 and 16 are
facets – 50% is reasonable and it is to attain the object of equality
– To change the 50% limit is to have a society which is not founded
on equality but based on caste rule – The cap on percentage of
reservation as laid down in Indra Sawhney is with the object of
striking a balance between the rights under Article 15(1) and 15(4)
as well as Articles 16(1) and 16(4) – The cap on percentage is to
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achieve principle of equality and with the object to strike a balance
which cannot be said to be arbitrary or unreasonable – The
Constitution (Eighty-first Amendment) Act, 2000 by which sub-
clause (4B) was inserted in Art.16 makes it clear that ceiling of
50% “has now received constitutional recognition” – The judgment
of Indra Sawhney has stood the test of the time and has never been
doubted by any judgment of Supreme Court – No substance in any
of the grounds urged for revisiting and referring the judgment of
Indra Sawhney to a larger Bench – Held (per S. Ravindra Bhat, J.
supplementing, with Hemant Gupta, J. concurring therewith): The
ceiling of 50% with the “extraordinary circumstances” exception,
is the just balance that allows the State sufficient latitude to ensure
meaningful affirmative action, to those who deserve it, and at the
same time ensure that the essential content of equality, and its
injunction not to discriminate on various proscribed grounds (caste,
religion, sex, place of residence) is retained – To dilute the 50%
benchmark further, would be to effectively destroy the guarantee
of equality, especially the right not to be discriminated against on
the grounds of caste (under Articles 15 and 16).
Reservation – Constitution of India – Arts. 15 and 16 – Socially
and educationally backward class (SEBC) – Reservation in favour
of backward class citizens – Identification of Maratha community
as SEBCs –
State Government set up a backward class commission
to ascertain the social and educational status of the community –
By its report (the Gaikwad Commission Report), the Commission
recommended that the Maratha community be declared as SEBC –
This led to enactment of the SEBC Act, 2018 giving effect to the
recommendations of the Gaikwad Commission, resulting in
reservation in favour of that community; consequent to which, the
aggregate reservations exceeded 50% – Whether the SEBC Act,
2018 as amended in 2019 granting reservation for the Maratha
community in addition to 50% social reservation in educational
institutions and in public services and posts is covered by exceptional
circumstances as contemplated by Constitution Bench in Indra
Sawhney’s case – Held, No – The High Court found existence of the
extra-ordinary situations with regard to exceeding 50% ceiling in
respect to grant of separate reservation to Maratha because the
population of backward class is 80% and reservation limit is only
50%, and containing the Maratha in pre-existing reservation for
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OBC shall not be justice to them, which circumstances is not covered
under the parameters indicated in Indra Sawhney’s case as extra-
ordinary circumstance to breach 50% ceiling – No extraordinary
circumstances made out in granting separate reservation of Maratha
Community by exceeding the 50 per cent ceiling limit of reservation
– Maharashtra State Reservation (of Seats for Admission in
Educational Institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018.
 Reservation – Constitution of India – Arts. 15 and 16 –
Socially and educationally backward class (SEBC) – Reservation
in favour of backward class citizens – Representation of Marathas
in State services – Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by M.C.
Gaikwad 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 – Held, No – The
Constitution pre-condition for providing reservation as mandated
by Article 16(4) is that the backward class is not adequately
represented in the public services – The Commission labored under
misconception that unless Maratha community is not represented
equivalent to its proportion, it is not adequately represented – Indra
Sawhney has categorically held that what is required by the State
for
providing reservation under Article 16(4) is not proportionate
representation but adequate representation – The constitutional
precondition as mandated by Article 16(4) being not fulfilled with
regard to Maratha class, both the Gaikwad Commission’s report
and consequential legislation are unsustainable – Sufficient and
adequate representation of Maratha community in public services
is indicator that they are not socially and educationally backward.
Reservation – Constitution of India – Arts. 15, 16 and Art.342A
r/w Art.366(26C) – Constitution 102nd Amendment – Socially and
educationally backward class (SEBC) – Reservation in favour of
backward class citizens – Whether the Constitution 102nd Amendment
deprives the State Legislature of its power to enact a legislation
determining the socially and economically backward classes and
conferring the benefits on the said community under its enabling
power and Whether, States power to legislate in relation to “any
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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backward class” under Articles 15(4) and 16(4) is anyway abridged
by Article 342A read with Article 366(26C) of the Constitution –
Held (per Ravindra Bhat, J., with L. Nageswara Rao, J. and Hemant
Gupta, J. concurring) (majority opinion): The two points of reference
are inter-related – By introduction of Articles 366(26C) and 342A
through the 102nd Constitution Amendment, the President alone, to
the exclusion of all other authorities, is empowered to identify SEBCs
and include them in a list to be published under Article 342A (1),
which shall be deemed to include SEBCs in relation to each State
and Union Territory for the purposes of the Constitution – The States
can, through their existing mechanisms, or even statutory
commissions, only make suggestions to the President or the
Commission under Art.338B, for inclusion, exclusion or modification
of castes or communities, in the list to be published under
Art.342A(1) – The States’ power to make reservations, in favour of
particular communities or castes, the quantum of reservations, the
nature of benefits and the kind of reservations, and all other matters
falling within the ambit of Arts.15 and 16 – except with respect to
identification of SEBCs, remains undisturbed – Held (per L.
Nageswara Rao, J. supplementing, with Hemant Gupta, J.
concurring therwith): There is only one list that can be issued by
the President specifying the socially and educationally backward
classes and only those classes are treated as socially and
educationally backward classes for the purposes of the Constitution
– It is apparent from Article 342A(1) and (2) that there is no scope
for any list of socially and educationally backward classes, other
than the list to be notified by the President – Held [per Ashok
Bhushan, J. (for himself and S. Abdul Nazeer, J.)](minority opinion):
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 – The use of word ‘Central’ in Article
342A(2) was only with the intent to limit the list issued by the
President to Central services.
Reservation – Constitution of India – Arts. 15(4) and 16(4) –
Socially and educationally backward class (SEBC) – Reservation
in favour of backward class citizens – Constitution (102nd
Amendment) Act challenged, on ground that it violated the basic
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structure, or essential features of the Constitution – Article 342A of
the Constitution was brought by the Constitution 102nd Amendment
– Whether, Article 342A abrogates States power to legislate or classify
in respect of “any backward class of citizens” and thereby affects
the federal policy / structure of the Constitution of India – Held
[per Ashok Bhushan, J. (for himself and S. Abdul Nazeer, J.)]:
Article 342A was brought by Constitution 102nd Amendment to give
constitutional status to National Backward Classes Commission and
for publication of list by the President of socially and educationally
backward classes which was to be Central List for governing
employment under Government of India and the organisations under
it – The Constitution 102nd Amendment Act does not violate any
basic feature of the Constitution and is constitutionally valid – Held
(per Ravindra Bhat, J., with L. Nageswara Rao, J. and Hemant
Gupta, J. concurring): Alteration of the content of state legislative
power in an oblique and peripheral manner would not constitute a
violation of the concept of federalism – It is only if the amendment
takes away the very essence of federalism or effectively divests the
federal content of the constitution, and denudes the states of their
effective power to legislate or frame executive policies (co-extensive
with legislative power) that the amendment would take away an
essential feature or violate the basic structure of the Constitution –
Applying such a benchmark, the power of identification of SEBCs
hitherto exercised by the States and now shifted to the domain of
the President (and for its modification, to Parliament) by virtue of
Article 342A does not in any manner violate the essential features
or basic structure of the Constitution – The 102nd Amendment is
also not contrary to or violative of proviso to Article 368 (2) of the
Constitution – Article 342A of the Constitution by denuding States
power to legislate or classify in respect of “any backward class of
citizens” does not affect or damage the federal polity and does not
violate the basic structure of the Constitution of India.
Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.2(j) – Held:
s.2(j) of the Act, 2018 insofar as it declares Maratha community
Educationally and Socially Backward Category is ultra vires to the
Constitution and struck down.
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 Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.4(1)(a) –
Held: s.4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it
grants reservation under Art.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 ultra vires to the Constitution and struck down –
Constitution of India – Art.15(4).
Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.4(1)(b) –
Held: s.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 ultra vires to the Constitution and struck down.
In the instant matters, questions of seminal importance
relating to contours and extent of special provisions for the
advancement of socially and educationally backward class (SEBC)
of citizens as contemplated under Article 15(4) of the Constitution
and contours and extent of provisions of reservation in favour of
the
backward class citizens under Article 16(4) of the Constitution,
arose for consideration.
The State of Maharashtra promulgated an Ordinance in the
year 2014, which granted reservation to the Maratha community
in public employment and in the field of education. Later, the
Ordinance was given the shape of an Act, which was challenged
before the High Court. The court 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. By its report dated 13.11.2018 (the Gaikwad
Commission Report), the Commission recommended that the
Maratha class of citizens be declared as a Socially and
Educationally Backward Class (“SEBC”). This soon led to the
enactment of the Maharashtra State Reservation (of Seats for
Admission in Educational Institutions in the State and for
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appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018, giving effect to the recommendations of the Gaikwad
Commission, resulting in reservation in favour of that community;
consequent to which, the aggregate reservations exceeded 50%.
Subsequently, writ petitions were filed before the Bombay
High Court, challenging the identification of Marathas as SEBCs,
the conclusions of the Commission, which culminated in its
adoption by the State of Maharashtra and enactment of the SEBC
Act, the quantum of reservations, and the provisions of the Act
itself, on diverse grounds. By the impugned judgment, the High
Court turned down the challenge and upheld the identification of
Marathas as SEBCs, and further upheld the reasons presented
before it, that extraordinary circumstances existed, warranting
the breach of the 50% mark, which was held to be the outer limit
in the nine-judge decision of this court in Indra Sawhney case.
Six separate judgments were delivered in the case including one
judgment of Justice Jeevan Reddy, which was for himself and
three other judges. The Constitution (102nd Amendment) Act,
2018 also came to be challenged before this Court, on the ground
that it violated the basic structure, or essential features of the
Constitution. The Constitution (102nd Amendment) Act, 2018
was brought into force on 15.08.2018 adding Article 338B, 342A
and 366(26C).
The following six questions
accordingly arose for
consideration before this Court:
1. Whether judgment in case of Indra Sawhney needs to be
referred to larger bench or require re-look by the larger bench
in the light of subsequent Constitutional Amendments, judgments
and changed social dynamics of the society etc.?
2. Whether Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting 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?
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3. Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has made out a case of existence of extraordinary
situation and exceptional circumstances in the State to fall within
the exception carved out in the judgment of Indra Sawhney?
4. Whether the Constitution One Hundred and Second
Amendment deprives the State Legislature of its power to enact
a legislation determining the socially and economically backward
classes and conferring the benefits on the said community under
its enabling power?
5. Whether, States power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway abridged
by Article 342(A) read with Article 366(26C) of the Constitution
of India?
6. Whether, Article 342A of the Constitution abrogates
States power to legislate or classify in respect of “any backward
class of citizens” and thereby affects the federal policy / structure
of the Constitution of India?
Disposing of the matters, the Court
per Ashok Bhushan, J. (for himself and for S. Abdul Nazeer,
J.)
HELD:1.1. The greatest common measure of agreement
in six separate judgments delivered in Indra Sawhney is: (i)
Reservation under Article 16(4) should not exceed 50%. (ii)For
exceeding reservation beyond 50%, extra-ordinary circumstances
as indicated in paragraph 810 of Justice Jeevan Reddy should
exist for which extreme caution is to be exercised. [Para
444][940-
C-D]
1.2. The 50% rule spoken in Balaji and affirmed in Indra
Sawhney is to fulfill the objective of equality as engrafted in Article
14 of which Articles 15 and 16 are facets. 50% is reasonable and
it is to attain the object of equality. To change the 50% limit is to
have a society which is not founded on equality but based on
caste rule.
1.3. The cap on percentage of reservation as has been laid
down by Constitution Bench in Indra Sawhney is with the object
of striking a balance between the rights under Article 15(1) and
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15(4) as well as Articles 16(1) and 16(4). The cap on percentage
is to achieve principle of equality and with the object to strike a
balance which cannot be said to be arbitrary or unreasonable.
[Para 444][940-D-F]
1.4. Providing reservation for advancement of any socially
and educationally backward class in public services is not the
only means and method for improving the welfare of backward
class. The State ought to bring other measures including
providing educational facilities to the members of backward class
free of cost giving concession in fee, providing opportunities for
skill development to enable the candidates from the backward
class to be self-reliant. [Para 444][940-G]
1.5. There can be no quarrel that society changes, law
changes, people changes but that does not mean that something
which is good and proven to be beneficial in maintaining equality
in the society should also be changed in the name of change alone.
[Para 444][940-H; 941-A]
1.6. When the Constitution Bench in Indra Sawhney held
that 50% is upper limit of reservation under Article 16(4), it is
the law which is binding under Article 141 and to be implemented.
[Para 444][941-A-B]
1.7. The Constitution Bench judgment in Indra Sawhney is
also fully applicable in reference to Article 15(4) of the
Constitution of India. [Para 444][941-B]
1.8. The setting aside of 50% ceiling by eleven Judge
Bench in T.M.A. Pai Foundation case as was laid down by St.
Stephen’s case i.e. 50% ceiling in
admission in aided Minority
Instructions has no bearing on the principle of 50% ceiling laid
down by Indra Sawhney with respect to reservation. The judgment
of T.M.A. Pai was in reference to rights of minority under Article
30 and is not relevant for Reservation under Articles 16(4) and
15(4) of the Constitution. [Para 444][941-C-D]
1.9. The Constitution (Eighty-first Amendment) Act, 2000
by which sub-clause (4B) was inserted in Article 16 makes it clear
that ceiling of 50% “has now received constitutional recognition”.
[Para 444][941-D]
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1.10. The extraordinary situations indicated in paragraph
810 were only illustrative and cannot be said to be exhaustive.
However, it cannot be said 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. [Para 444][941-
E-F]
1.11. There is no substance in any of the 10 grounds urged
for revisiting and referring the judgment of Indra Sawhney to a
larger Bench. [Para 444][941-F-G]
1.12. What was held by the Constitution Bench in Indra
Sawhney on the relevance and significance of the principle of stare
decisis is clearly binding. 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. [Para 444][941-G-H]
1.13. The Constitution Bench in M. Nagaraj does not
contain any ratio that ceiling of 50% reservation may be exceeded
by showing quantifiable contemporary data relating to
backwardness. The Commission has completely misread the ratio
of the judgment, when the Commission took the view that on the
quantifiable data ceiling of 50% can be breached. [Para 444][942-
A-B]
1.14. The Commission and the High Court found existence
of the extra-ordinary situations with
regard to exceeding 50%
ceiling in respect to grant of separate reservation to Maratha
because the population of backward class is 80% and reservation
limit is only 50%, containing the Maratha in pre-existing
reservation for OBC shall not be justice to them, which
circumstances is not covered under the parameters indicated in
Indra Sawhney’s case as extra-ordinary circumstance to breach
50% ceiling. [Para 444][942-C]
1.15. No extraordinary circumstances were made out in
granting separate reservation of Maratha Community by
exceeding the 50 per cent ceiling limit of reservation. The Act,
2018 violates the principle of equality as enshrined in Article 16.
The exceeding of ceiling limit without there being any extra-
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ordinary circumstances clearly violates Article 14 and 16 of the
Constitution which makes the enactment ultra vires. [Para
444][942-D-E]
1.16. The proposition is well settled that Commissions’
reports are to be looked into with deference. However, one of
the parameter of scrutiny of Commission’s report as approved
by this Court is that on the basis of data and materials referred to
in the report whether conclusions arrived by the Commission
are justified. [Para 444][942-E-F]
1.17. The measures taken under Article 15(4) and 16(4)
can be examined as to whether they violate any constitutional
principle, and are in conformity with the rights under Article 14,
15 and 16 of the Constitution. The scrutiny of measures taken by
the State, either executive or legislative, thus, has to pass test of
the constitutional scrutiny. [Para 444][942-F-G]
1.18. The word ‘adequate’ is a relative term used in relation
to representation of different caste and communities in public
employment. The objective of Article 16(4) is that backward class
should also be put in mainstream to enable to share power of the
State by affirmative action. To be part of public service, as accepted
by the Society of today, is to attain social status and play a role in
governance. [Para 444][942-G-H; 943-A]
1.19. 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. [Para
444][943-B-C]
1.20. 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
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that what is required by the State for providing reservation under
Article 16(4) is not proportionate representation but adequate
representation. [Para 444][943-C-D]
1.21. The constitutional precondition as mandated by
Article 16(4) being not fulfilled with regard to Maratha class, both
the Gaikwad Commission’s report and consequential legislation
are unsustainable. [Para 444][943-E]
1.22. Having disapproved the grant of reservation under
Article 16(4) to Maratha community, the said decision becomes
relevant and shall certainly have effect on the decision of the
Commission holding Maratha to be socially and educationally
backward. Sufficient and adequate representation of Maratha
community in public services is indicator that they are not socially
and educationally backward. From the facts and figures as noted
by Gaikwad Commission in its report regarding representation
of Marathas in public services, the percentage of Marathas in
admission to Engineering, Medical Colleges and other
disciplines, their representation in higher academic posts, it is
seen that conclusion drawn by the Commission is not supportable
from the data collected. The data collected and tabled by the
Commission as noted in the report clearly proves that Marathas
are not socially and educationally backward class. [Para 444][943-
F-H; 944-A]
1.23. The elementary principle of interpreting the
Constitution or statute is to look into the words used in
the
statute, when the language is clear, the intention of the Legislature
is to be gathered from the language used. The aid to
interpretation is resorted to only when there is some ambiguity
in words or expression used in the statute. The rule of
harmonious construction, the rule of reading of the provisions
together as also rule of giving effect to the purpose of the statute,
and few other principles of interpretation are called in question
when aids to construction are necessary in particular context.
[Para 444][944-B-C]
1.24. The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
Constitution is not to be interpreted in static and rigid manner,
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the Constitution is an organic and living document which needs
to be interpreted with cardinal principals and objectives of the
Constitution. The shift from literal to purposive method of
interpretation has been now more and more, being adopted for
interpreting a constitutional document. [Para 444][944-D-E]
1.25. The law is well settled in this country that
Parliamentary Committee reports including speech given by the
Minister in the Parliament are relevant materials to ascertain
the intention of Parliament while construing constitutional
provisions. [Para 444][944-E-F]
1.26. 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. [Para 444][944-F-H]
1.27. 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. [Para 444][945-A-B]
1.28. When the Parliamentary intention is discernable and
admissible as aid to statutory interpretation, there is no reason
not to interpret Article 342A in manner as per the intention of
the Parliament noticed above. [Para 444][945-B]
1.29. The word ‘Central’ in Article 342A (2) was used for
purpose and object. The use of ‘Central’ was only with the intent
to limit the list issued by the President to Central services. It is
well settled rule of interpretation that no word in a statute or
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Constitution is used without any purpose. Word ‘Central’ has to
be given meaning and purpose. [Para 444][945-C-D]
1.30. When Article 342A is interpreted to mean that Article
342A refers to ‘Central List’ which is prepared for services under
the Government of India and organisations under the Government
of India, the definition given under Article 366(26C) which
specifically refer to Article 342A has to be read together and list
of backward classes which is not Central List shall not be
governed by the definition under Article 366(26C). Since, (26C)
has been inserted in the context of Article 342A, if the context is
list prepared by the State and it is State List, definition under
(26C) shall not govern. [Para 444][945-D-F]
1.31. Article 342A was brought by Constitution 102nd
Amendment to give constitutional status to National Backward
Classes Commission and for publication of list by the President
of socially and educationally backward classes which was to be
Central List for governing employment under Government of
India and the organisations under it. [Para 444][945-F-G]
1.32. The Constitution 102nd Amendment Act does not
violate any basic feature of the Constitution. The constitutional
validity of Constitution (One Hundred and second Amendment)
Act is upheld. [Para 444][945-G-H]
2.1. Section 2(j) of the Act, 2018 insofar as it declares
Maratha community Educationally and Socially Backward
Category is held to be
ultra vires to the Constitution and struck
down. [Para 444][946-C-D]
2.2. Section 4(1)(a) of Act, 2018 as amended by Act, 2019
insofar as it grants reservation under Article 15(4) to the extent
of 12% of total seats in educational institutions including private
institutions whether aided or unaided by the State, other than
minority educational institutions, is declared ultra vires to the
Constitution and struck down. [Para 444][946-D-E]
2.3. 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. [Para 444][946-F]
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T.M.A. Pai Foundation and others v. State of Karnataka
and others, (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587 and S.V.Joshi v. State of Karnataka, (2012) 7 SCC
41 – distinguished.
M. Nagraj and others v. Union of India & Ors. (2006)
8 SCC 212 and M.R. Balaji v. State of Mysore, AIR
1963 SC 649 : [1963] Suppl. SCR 439 – explained.
Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : [1965]
SCR 908 – held applicable.
Ram Singh and others v. Union of India, (2015) 4 SCC
697 : [2015] 5 SCR 670 – affirmed.
Indra Sawhney v. Union of India 1992 Suppl. (3) SCC
217 : [1992] 2 Suppl. SCR 454]; Jarnail Singh and
others v. Lachhmi Narain Gupta and others, 2018 (10)
SCC 396 : [2018] 10 SCR 663; Barium Chemicals ltd.
and another v. The Company Law Board and others,
AIR 1967 SC 295 : [1966] Suppl. SCR 311; Dinesh B.
v. Union of India and others, T. Devadasan v. Union of
India and another, AIR (1964) SC 179 : [1964] SCR
680; State of Punjab v. Hiralal and others, (1970) 3
SCC 567 : [1971] 3 SCR 267; State of Kerala and
others v. N.M. Thomas and others, (1976) 2 SCC 310 :
[1976] 1 SCR 906; Akhil Bharatiya Soshit Karamchari
Sangh, (Railway) v. Union of India and others, (1981)
1 SCC 246 : [1981] 2 SCR 185; K.C. Vasant Kumar
and another v. State of Karnataka, (1985) Supp. (1)
SCC 714; Union of India and others v. Rakesh Kumar
and others, (2010) 4 SCC 50: [2010] 1 SCR 483; Vikas
kishanrao Gawali v. The State of Maharashtra, (2021)
SCC Online SC 170; St. Stephen’s College v.
University
of Delhi, (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121;
Kalpana Mehta and others v. Union of India and others,
(2018) 7 SCC 1 : [2018] 4 SCR 1; Rajnarain Singh v.
Chairman, Patna Administration Committee, Patna and
another, AIR 1954 SC 569 : [1955] SCR 290; Re Delhi
Laws Act, 1912, Ajmer-Merwara (Extension of Laws)
Act, 1947 v. Part ‘C’ States(Laws) Act, 1950, AIR 1951
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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SC 332 : [1951] SCR 747; General Manager, Southern
Railway, Personnel Officer (Reservation), Southern
Railway v. Rangachari, AIR 1962 SC 36 :[1962]
SCR 586; State of Kerala and another v. N.M. Thomas
and others, 1976 (2) SCC 310 : [1976] 1 SCR 906; T.
Devadasn v. Union of India and another, AIR 1964 SC
179 : [1964] SCR 680; Akhil Bharatiya Sochit
Karamchari Sangh (Railway) Represented by its
Assistant General Secretary on behalf of the Association
v. Union of India and others, (1981) 1 SCC 246 : [1981]
2 SCR 185; K.C. Vasanth Kumar and another v. State
of Karnataka, 1985 (Supp) SCC 714 : [1985] Suppl.
SCR 352; State of Punjab and Hira Lal and others,
1970 (3) SCC 567 : [1971] 3 SCR 267; N.M. Thomas,
Akhil Bharatiya Karamchari Sangh and State of Punjab
S.V. Joshi and others v. State of Karnataka and others,
(2012) 7 SCC 41; Post Graduate Institute of Medical
Education & Research, Chandigarh and others v. Faculty
Association and others; Chebrolu Leela Prasad Rao &
Ors. v. State of A.P. & Ors., 2020 (7) SCALE 162; Smt.
Indira Nehru Gandhi v. Raj Narain, (1975) Suppl. SCC
1 : [1976] SCR 347; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another, (1973)
4 SCC 225 : [1973] Suppl. SCR 1; K.S. Puttaswamy
and another v. Union of India and others, 2017 (10)
SCC 1 : [2017] 10 SCR 569; Supreme Court Advocates-
on-Record Association and others v. Union of India,
1993 (4) SCC 441 : [1993] 2 Suppl. SCR 659;
Ashoka
Kumar Thakur v. Union of India and others, 2008 (6)
SCC 1 : [2008] 4 SCR 1; All India Reporter Karamchari
Sangh and others v. All India Reporter Limited and
others, 1988 Supp SCC 472 : [1988] SCR 774; Nand
Kishore v. State of Punjab, 1995 (6) SCC 614 : [1995]
4 Suppl. SCR 16; The State of Madras v. Champakam
Dorairajan, AIR 1951 SC 226 : [1951] SCR 525; B.
Venkataramana v. State of Tamil Nadu and Another, AIR
1951 SC 229; Minerva Mills limited and others v. Union
of India and others, (1980) 3 SCC 625 : [1981]
1 SCR 206; St. Stephen’s College case, (1992) 1 SCC
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B
C
D
E
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558 : [1991] 3 Suppl. SCR 121; Society for Un-aided
Private Schools of Rajasthan v. Union of India and
another, (2012) 6 SCC 1: [2012] 2 SCR 715; K. Krishna
Murthy and others v. Union of India and another, (2010)
7 SCC 202 : [2010] 6 SCR 972; Jarnail Singh and others
v. Lachhmi Narain Gupta and others, 2018 (10) SCC
396 : [2018] 10 SCR 663; State of Gujarat v. Mirzapur,
Moti Kureshi Kassab Jamat and others, (2005) 8 SCC
534 : [2005] 4 Suppl. SCR 582; Union of India and others
v. Rakesh Kumar and others, (2010) 4 SCC 50 : [2010]
1 SCR 483; M.R. Balaji v. The State of Mysore and
others, AIR (1963) SC 649 : [1963] Suppl. SCR 439;
The State of Andhra Pradesh and others v. U.S.V.
Balram, etc., (1972) 1 SCC 660 : [1972] 3 SCR  247;
Barium Chemicals v. Company Law Board, AIR 1967 SC
295 : [1966] Suppl. SCR 311; B.K. Pavitra and others
v. Union of India and others, (2019) 16 SCC 129 : [2019]
7 SCR 1086; Mukesh Kumar and another v. State of
Uttarakhand and others, (2020) 3 SCC 1; ITC Ltd. v.
Agricultural Produce Market Committee and others, (2002)
9 SCC 232 : [2002] 1 SCR 441; State of Travancore,
Cochin and others v. Bombay Company Ltd., AIR 1952
SC 366 : [1952] SCR 1112 ; Aswini Kumar Ghose and
another v. Arabinda Bose and another, AIR 1952 SC 369
: [1953] SCR 1; His Holiness Kesvananda Bharati v.
State of Kerala and another, (1973) 4 SCC 225 : [1973]
Suppl. SCR 1; R.S. Nayak v. A.R. Antulay, 1984 (2)
SCC 183 : [1984] 2 SCR  495; Minerva Mills Ltd. and
others v.
Union of India and others, (1980) 3 SCC 625
: [1981] 1 SCR 206; Chandramouleshwar Prasad v.
The Patna High Court and others, (1969) 3 SCC 56 :
[1970] 2 SCR 666; Union of India v. Shankalchand
Himatlal Sheth and another, (1977) 4 SCC 193 : [1978]
1 SCR 423; Indian Administrative Services (S.C.S.)
Association, U.P. and Others, (1993) Suppl. 1 SCC 730:
[1992] 2 Suppl. SCR 389; Supreme Court Advocates
on Record Association and others v. Union of India,
(1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; State
(NCT) of Delhi v. Union of India and another, 2018 (8)
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SCC 501 : [2018] 7 SCR 1 and Abhiram Singh v. C.C.
Commachen (Dead) By Legal Representatives and
others, (2017) 2 SCC 629 : [2017] 1 SCR 158 –
referred to.
The Central Province and Berar Sales of Motor Spirit
and Lubricants Taxations Act, 1938, AIR 1939 Federal
Court 1 – referred to.
Granville Austin in “The Indian Constitution: Cornerstone
of a Nation” and Justice G.P. Singh in 296 ‘Principles
of Statutory Interpretation’, 14th Edition – referred to.
per S. Ravindra Bhat, J. [Concurring with Ashok Bhushan,
J. on question Nos.1,2,3 and also supplementing in relation to
question No.1]
1.1. Re Point No. 1: Indra Sawhney does not require to be
referred to a larger bench nor does it require reconsideration in
the light of subsequent constitutional amendments, judgments
and changed social dynamics of the society, for the reasons set
out by Ashok Bhushan, J. and my reasons, in addition. [Para
188][1064-F-G]
1.2. A careful reading of the judgments in Indra Sawhney,
clarifies that seven out of nine judges concurred that there exists
a quantitative limit on reservation – spelt out @ 50%. In the
opinion of four judges, therefore, per the judgment of B.P. Jeevan
Reddy, J., this limit could be exceeded under extraordinary
circumstances and in conditions for which separate justification
has to be forthcoming by the State or the concerned agency.
However, there is unanimity in the conclusion by all seven judges
that an outer limit
for reservation should be 50%. Undoubtedly,
the other two judges, Ratnavel Pandian and P.B. Sawant, JJ.
indicated that there is no general rule of 50% limit on reservation.
In these circumstances, given the general common agreement
about the existence of an outer limit, i.e. 50%, the petitioner’s
argument about the incoherence or uncertainty about the
existence of the rule or that there were contrary observations
with respect to absence of any ceiling limit in other judgments
(the dissenting judgments of K. Subbarao, in T. Devadasan v
Union of India, the judgments of S.M. Fazal Ali and Krishna Iyer,
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JJ. in State of Kerala v N.M. Thomas and the judgment of
Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka)
is not an argument compelling a review or reconsideration of
Indra Sawhney rule. [Para 10][951-F-H; 952-A-B]
1.3. The idea of a definitive and objective principle, in the
form of a 50% ceiling on limitation, emerges on an overall reading
of Indra Sawhney. The argument made by the respondents was
that this court should not go by such a ceiling limit, but rather,
while exercising its judicial review power, proceed on a case-by-
case approach, and resting its conclusions on fact dependent
exercises, using other criteria, such as reasonableness,
proportionality, etc. for judging excessive reservations. However,
what constitutes reasonableness and what is proportionate in a
given case, would be unchartered and indeterminate areas. It is
one thing to try persuading the court to discard a known principle,
in the light of its loss of relevance, yet for that argument to prevail,
not only should the harm caused by the existing principle be
proved, but also a principle that is sought to be substituted, should
have clarity, or else, the argument would be one asking the court
to take a leap in the dark. It is not enough, therefore to resort to
observations such as “the length of the leap to be provided
depends upon the gap to be covered” or the proportionality
doctrine (deployed to judge validity of an executive or legislative
measure), because
they reveal no discernible principle.
Reasonableness is no doubt a familiar phrase in the constitutional
lexicon; yet there is considerable subjectivity and relativity in its
practise. [Para 31][962-G; 963-A-C]
1.4. The ceiling of 50% with the “extraordinary
circumstances” exception, is the just balance- what is termed as
the “Goldilocks solution” - i.e. the solution containing the right
balance that allows the state sufficient latitude to ensure
meaningful affirmative action, to those who deserve it, and at the
same time ensures that the essential content of equality, and its
injunction not to discriminate on the various proscribed grounds
(caste, religion, sex, place of residence) is retained. This court
in M. Nagaraj v. Union of India observed that “a numerical
benchmark is the surest immunity against charges of
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discrimination.” To dilute the 50% benchmark further, would be
to effectively destroy the guarantee of equality, especially the
right not to be discriminated against on the grounds of caste
(under Articles 15 and 16). [Para 34][964-D-F]
2. Re Point No 2: The Maharashtra State Reservation (of
seats for admission in educational institutions in the State and for
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting 12% and 13% reservation for
Maratha community in addition to 50% social reservation is not
covered by exceptional circumstances as contemplated by
Constitution Bench in Indra Sawhney’s case. [Para 188][1064-G-
H; 1065-A-B]
3. Re Point No. 3: The State Government, on the strength
of Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has not made out a case of existence of
extraordinary situation and exceptional circumstances in the State
to fall within the exception carved out in Indra Sawhney. [Para
188][1065-B-C]
4. Re Point No 4: Whether the Constitution One Hundred
and Second Amendment deprives the State Legislature of its
power to enact a legislation determining the socially and
economically backward classes and conferring the benefits on
the said community under its enabling power?; and 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, 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. [Para
188]
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(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). [Para 188][1065-D-H]
(iii) The reference to the Central List in Article 342A(2) is
the one notified by the President under Article 342A(1). It is to
be the only list for all purposes of the Constitution, in relation to
each state and in relation to every union territory. The use of the
term “the Central List” is only to refer to the list prepared and
published under Article 342A (1), and no other; it does not imply
that the states have any manner of power to publish their list of
SEBCs. Once published, under Article 342A (1), the list can only
be amended through a law enacted by Parliament, by virtue of
Article 342A (2). [Para 188][1066-A-C]
(iv) In the task of identification of SEBCs, the President
shall be guided by the Commission set up under Article 338B;
its advice shall also be sought by the state in regard to policies
that might be framed by it. If the commission prepares a report
concerning matters of identification, such a report has to be shared
with the state government, which is bound to deal with it, in
accordance with provisions of Article 338B. However, the final
determination culminates in the exercise undertaken by the
President (i.e. the Central Government,
under Article 342A (1),
by reason of Article 367 read with Section 3 (8) (b) General
Clauses Act). [Para 188][1066-C-E]
(v) The states’ power to make reservations, in favour of
particular communities or castes, the quantum of reservations,
the nature of benefits and the kind of reservations, and all other
matters falling within the ambit of Articles 15 and 16 – except
with respect to identification of SEBCs, remains undisturbed.
[Para 188][1066-E-F]
(vi) The Commission set up under Article 338B shall
conclude its task expeditiously, and make its recommendations
after considering which, the President shall expeditiously publish
the notification containing the list of SEBCs in relation to states
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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[2021] 15 S.C.R.
and union territories, for the purpose of the Constitution. [Para
188][1066-F-G]
(vii) Till the publication of the notification mentioned in
direction (vi), the existing lists operating in all states and union
territories, and for the purposes of the Central Government and
central institutions, continue to operate. This direction is issued
under Article 142 of the Constitution of India. [Para 188][1066-
G-H]
5. Re Point No. 6: The alteration of the content of state
legislative power in an oblique and peripheral manner would not
constitute a violation of the concept of federalism. It is only if the
amendment takes away the very essence of federalism or
effectively divests the federal content of the constitution, and
denudes the states of their effective power to legislate or frame
executive policies (co-extensive with legislative power) that the
amendment would take away an essential feature or violate the
basic structure of the Constitution. Applying such a benchmark,
this court is of the opinion that the power of identification of SEBCs
hitherto exercised by the states and now shifted to the domain of
the President (and for its modification, to Parliament) by virtue
of Article 342A does not in any manner violate the essential
features or basic structure of the Constitution. The 102nd
Amendment is also not contrary to or violative of proviso to
Article 368 (2) of the Constitution of India. Article 342A of the
Constitution by denuding States power to legislate or classify in
respect of “any backward class of citizens” does not affect or
damage the federal polity and does not violate the basic structure
of the Constitution of India. [Paras 187, 188][1064-C-E; 1067-A-
B]
6. The appeals and writ petitions are therefore, disposed
of in terms of the operative order of Bhushan, J. in para 444 of
his Judgment. [Para 189][1067-B-C]
Indra Sawhney v Union of India (1992) 3 Supp SCC
217 : [1992] 2 Suppl. SCR 454; T. Devadasan v Union
of India [1964] 4 SCR 680; State of Kerala v N.M.
Thomas 1976 (2) SCC 310 : [1992] 2 Suppl. SCR 454;
K.C. Vasanth Kumar v. State of Karnataka [1985] 1
Suppl. SCR 352; M.R. Balaji v. State of Mysore 1963
Suppl. 1 SCR 439; P. Rajendran v. State of T.N. [1968]
A
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C
D
E
F
G
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737
2 SCR 786; A Peeriakaruppan v. State of T.N. (1971) 1
SCC 38: [1971] 2 SCR  430; State of A.P. v. USV Balram
(1972) 1 SCC 660: [1972] 3  SCR  247; State of U.P.
v. Pradeep Tandon (1975) 1 SCC 267 : [1975] 2 SCR 
761; Janki Prasad Parimoo v. State of J&K (1973) 1
SCC 420 : [1973] 3 SCR 236; Krishena Kumar and
Anr. v. Union of India & Ors. (1990) 4 SCC 207 : [1990]
3 SCR  352; Union of India v Raghubir Singh [1989] 3
SCR 316; Barium Chemicals v. Company Law Board
[1966] Suppl. 3 S.C.R. 311; Mukesh Kumar v. State of
Uttarakhand (2020) 3 SCC 1; In re Kerala Education
Bill [1959] SCR 995; T.M.A Pai Foundation v. State of
Karnataka 2002 (8) SCC 481 : [2002] 3 Suppl.
SCR 587; R.C. Poudyal v. Union of India 1994 Supp
(1) SCC 324 : [1993] 1 SCR  891; State of Punjab v.
Hiralal [1971] 3 SCR 267; M. Nagaraj v. Union of
India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;
Pramati Educational & Cultural Trust v. Union of India
2014 (8) SCC 1 : [2014] 11 SCR 712; B.K. Pavitra v.
Union of India (2019) 16 SCC 129:  [2019]
7 SCR 1086; State of Travancore-Cochin v. Bombay
Company Ltd, [1952] SCR 1112; Aswini Kumar Ghose
& Anr. v. Arabinda Ghose & Anr. AIR 1953 SC 75:
[1953] SCR 215 P.V. Narasimha Rao v. State (1998) 4
SCC 626 : [1998] 2 SCR 870;
Sanjeev Coke
Manufacturing v. Bharat Coking Coal Ltd. & Anr.
[1983] 1 SCR 1000; Kalpana Mehta and Ors. v. Union
of India and Ors. (2018) 7 SCC 1 : [2018] 4 SCR 1;
Soosai Etc v. Union of India [1985] Suppl 3 SCR 242;
Bhaiya Lal v.
Harikishan Singh [1965] 2 SCR 877;
Basavalingappa v Munichinnappa [1965] 1 SCR 316;
Kishori Lal Hans v. Raja Ram Singh 1972 (3) SCC 1 :
[1972] 2 SCR 632; Bir Singh v. Delhi Jal Board (2018)
10 SCC 312 : [2018] 10 SCR 513; Champakam
Dorairajan v. State of Madras AIR 1951 SC 226 :
[1951] SCR  525; State of Karnataka v. Union of India
[1978] 2 SCR 1; GVK Industries Ltd. v. Income Tax
Officer (2011) 4 SCC 36 : [2011] 3 SCR 366; Kuldip
Nayar v. Union of India (2006) 7 SCC 1 : [2006]
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5 Suppl. 
SCR 1;
G. 
Narayanaswami v. G.
Panneerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172;
Pushpa Devi v. Milkhi Ram (1990) 2 SCC 134: [1990]
1 SCR  278; Karnataka State Financial Corporation.
v. N. Narasimahaiah (2008) 5 SCC 176 : [2008] 4
SCR 853; Laurel Energetics (P) Ltd. v. Securities
Exchange Board of India (2017) 8 SCC 541 : [2017]
5 SCR 1005; Kihoto Hollohan v. Zachillhu (1992) 2
Suppl. SCC 651 : [1992] 1 SCR  686; Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College (1990)
3 SCC 130 : [1990] 2 SCR  843; State of Maharashtra
& Anr v. Union of India & Anr. (1994) 5 SCC 244 :
[1994] 1 Suppl.  SCR 714; 20th Century Finance
Corpn. Ltd. v. State of Maharashtra (2000) 6 SCC 12:
[2000] 1 Suppl.  SCR 120; Builders’ Association of
India v. Union of India (1989) 2 SCC 645 : [1989]
2 SCR 320; Commissioner of Income Tax v. Willamson
Financial Services (2008) 2 SCC 202 : [2007]
13 SCR 376; Tata Consultancy Services v. State of A.P.
(2005) 1 SCC 308 : [2004] 5 Suppl.  SCR 1040;
Bimolangshu Roy v. State of Assam (2018) 14 SCC 408
:  [2017] 13 SCR 301; Ashoka Kumar Thakur v. Union
of India (2008) 6 SCC 1 : [2008] 4 SCR 1; New Delhi
Municipal Council v. State of Punjab (1997) 7 SCC
339 : [1996] 10 Suppl.  SCR 472; Shivraj Singh
Chauhan v. Speaker, Madhya Pradesh Legislative
Assembly 2020 SCC Online SC 363 141; DTC Mazdoor
Congress v. Delhi Transport Corporation [1990] 1
Suppl. SCR 142; Balram Kumawat v. Union of
India
(2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24; Abhiram
Singh v. C.D. Commachen (2017) 2 SCC 629 : [2017]
1 SCR 158;
Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court, (1990) 3 SCC 682 : [1990] 3 SCR  111; P.
Kasilingam v PSG College of Technology 1995 Supp
(2) SCC 348 : [1995] 2 SCR 1061; Black Diamond
Beverages v Commercial Tax Officer 1998 (1) SCC 458
: [1997] 4 Suppl. SCR 133; Godrej and Boyce
Manufacturing Co v State of Maharashtra 2014 (3) SCC
A
B
C
D
E
F
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739
430 : [2014] 2 SCR 203; K. Lakshminarayanan v.
Union of India (2020) 14 SCC 664 : [2018]
14 SCR 689; Raghunathrao Ganpatrao v. Union of
India 1994 Suppl. (1) SCC 191 : [1993] 1 SCR 480;
Jindal Stainless Ltd. v. State of Haryana, 2016 SCC
OnLine SC 1260; State of Rajasthan v. Union of India
1978 1 SCR 1; Kesavananda Bharti v. State of Kerala
[1973] Suppl. SCR 1; Sajjan Singh v. State of Rajasthan
[1965] 1 SCR 933; and Maharao Sahib Shri Bhim
Singhji v. Union of India (1981) 1 SCC 166 : [1985]
1 Suppl. SCR 862 – referred to.
Harksen v. Lane 1997 (11) BCLR 1489 (CC); BBC
Enterprises v. Hi-Tech Xtravision Ltd., 1990) 2 All ER
118; City Council of Pretoria v. Walker 1998 (3) BCLR
257 (CC); Fullilove v. Klutznick, 448 U.S. 448 (1980);
Adarand Constructors, Inc. v. Penal 515 U.S. 200
(1995); Canadian National Railway Co v. Canada
(Canadian Human Rights Commission) [1987] 1 SCR
1114; Ontario (Human Rights Commission) v Ontario
(Ministry of Health) (1994) 21 CHRR (Ont CA) D/
259 and R. (Baiai) v. Home Secretary, [2006] EWHC
823 (Admin). – referred to.
Rabindranath Tagore’s Gitanjali, Verse 35; Aharon
Barak, The Judge in a Democracy, p.132; Michael
Kirby, Indian and Australian Constitutional Law: A
Recent Study in Contrasts’, 60 JILI (2018) 1, p. 30 and
Herbert Weschler, ‘Towards Neutral Principles of
Constitutional Law’, (1959) 73 Harv. L. Rev. 1 –
referred to.
per L. Nageswara Rao, J. [Concurring with Ashok Bhushan,
J. on question Nos.1, 2 and 3, and concurring
with S. Ravindra
Bhat, J. on question Nos.4, 5 and 6]
1. It is difficult to agree with the submissions made on behalf
of the Respondents that the use of words ‘central list’ would
restrict the scope and amplitude of the notification to be issued
under Article 342A(1). There is only one list that can be issued
by the President specifying the socially and educationally
backward classes and only those classes are treated as socially
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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and educationally backward classes for the purposes of the
Constitution. Taking cue from the National Commission for
Backward Classes Act, 1993, the Respondents argued that the
words ‘Central list’ is with reference only to appointments to
Central services and admission in Central educational institutions.
Reading ‘Central list’ in that manner would be curtailing the width
of Article 342A(1). If so read, the sweep of Sub-Clause (1) shall
be minimized. Moreover, to achieve the said meaning, words which
are not in Article 342A(1) have to be read into it. Contextually,
the words Central list in Article 342A(2) can be only with reference
to the list contained in the notification which may be issued under
Article 342A(1). It is well settled law that the provisions of the
Constitution have to be harmoniously construed and it is apparent
from Article 342A(1) and (2) that there is no scope for any list of
socially and educationally backward classes, other than the list
to be notified by the President. As the other expressions ‘for the
purposes of the Constitution’ and ‘unless the context otherwise
requires’ have been dealt with by Justice Bhat, there is nothing
more to add to the construction placed by him on the said
expressions. [Para 25][1077-F-G; 1078-A-C]
2. Only those backward classes included in the public
notification under Article 342A shall be socially and educationally
backward classes for the purposes of the
Constitution. [Para
26][1078-E]
Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006]
5 Suppl.  SCR 1; G. Narayanaswami v. G. Pannerselvam
(1972) 3 SCC 717 : [1973] 1 SCR 172; South Asia
Industries Private Ltd v. S. Sarup Singh and others
[1965] 3 SCR 829; Institute of Chartered Accountants
of India v. Price Waterhouse (1997) 6 SCC 312 : [1997]
2 Suppl. SCR 267; J.P. Bansal v. State of Rajasthan
(2003) 5 SCC 134 : [2003] 2 SCR  933; Kanai Lal Sur
v. Paramnidhi Sadhukhan, [1958] 1SCR 360; State
(NCT of Delhi) v. Union of India (2018) 8 SCC 501 :
[2018] 7  SCR 1; R.S. Nayak v. A.R. Antulay (1984) 2
SCC 183 : [1984] 2 SCR 495; Grasim Industries Ltd.
v. Collector of Customs, Bombay (2002) 4 SCC 297 :
[2002] 2 SCR 945; Workmen of Dimakuchi Tea Estate
A
B
C
D
E
F
G
H
741
v Managenment of Dimakuchi Tea Estate, [1958] SCR
1156; M/s New India Sugar Mills Ltd v. Commissioner
of Sales Tax, Bihar [1963] 2 SCR Suppl. 459; C. I. T v.
N. C. Budharaja and Co.(1994)1 SCC Suppl. 280:
[1993] 2 Suppl. SCR 185; Kalpana Mehta and Ors. v.
Union of India and Ors. (2018) 7 SCC 1 : [2018]
4 SCR 1; Punjab Land Development and Reclamation
Corporation Ltd. v. Presiding Officer, Labour Court
(1990) 3 SCC 682 : [1990] 3  SCR  111; P. Kasilingam
v. P.S.G. College of Technology, (1995) 2 Suppl. SCC 
348; Indra Sarma v. V. K. V. Sarma (2013) 15 SCC 755
: [2013] 14 SCR 1019; Sudha Rani Garg v. Jagdish
Kumar (2004) 8 SCC 329; Nyadar Singh v. Union of
India (1988) 4 SCC 170 : [1988] 2 Suppl. SCR  546
and Union of India v. Sankalchand Himmat Lal Seth
[1977) 4 SCC 193 : [ 1978] 1 SCR  423 – referred to.
McCulloch v. Maryland, 17 U.S. 316 (1819); Adams
Express Company v. Commonwealth of Kentucky 238
US 190 (1915); United States v. Goldenberg 168 US 95
(1897); Jones v D.P.P. [1962] AC. 635; R. v. Oakes
[1959] 2 Q.B. 350; Aron Soloman v. Soloman & Co.
1897 AC 22; Pepper (Inspector of Taxes) v Hart 1993
AC 593; R v. DPP ex-parte Duckenfield [1999] 2 All
ER 873; Black-Clawson International Ltd. 1975 AC
591; Assam Railways and Trading Co Ltd v. Inland
Revenue, 1935 AC 445; Letang v. Cooper [1965] 1 QB
232; Gough v. Gough, (1891) 2 QB 665; Collins
v. Texas, 223 U.S. 288; East End Dwellings Co. Ltd v.
Finsbury Borough Council [1952] AC 109 and Towne
v. Eisner
245 U.S. 425 (1918) – referred to.
Purposive Interpretation in Law by Aharon Barak;
Benjamin Cardozo, the Nature of Judicial Process,
(New Haven: Yale University Press, 13th Edn., 1946),
141; Craies on Legislation, 9th Edition and Bennion
on Statutory Interpretation, 5th Edition – referred to.
Case Law Reference
In the judgment of Ashok Bhushan, J.
[1992] 2 Suppl. SCR 454
referred to
Para 14
(2006) 8 SCC 212
explained
Para 21
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[2021] 15 S.C.R.
[2018] 10 SCR 663
referred to
Para 45
[1963] Suppl. SCR 439
explained
Para 55
[1966] Suppl. SCR 311
referred to
Para 63
[1964] SCR 680
referred to
Para 84
[1971] 3 SCR 267
referred to
Para 84
[1976] 1 SCR 906
referred to
Para 84
[1981] 2 SCR 185
referred to
Para 84
(1985) Supp. (1) SCC 714
referred to
Para 84
[2002] 3 Suppl. SCR 587
distinguished
Para 84
(2012) 7 SCC 41
distinguished
Para 84
[2010] 1 SCR 483
referred to
Para 84
[1991] 3 Suppl. SCR 121
referred to
Para 85(vii)
[2018] 4 SCR 1
referred to
Para 101
[1955] SCR 290
referred to
Para 122
[1951] SCR 747
referred to
Para 122
[1962] SCR 586
referred to
Para 136
[1976] 1SCR 906
referred to
Para 138
[1964] SCR 680
referred to
Para 141
[1981] 2 SCR 185
referred to
Para 143
[1985] Suppl. SCR 352
referred to
Para 144
[1971] 3 SCR 267
referred to
Para 146
(2012) 7 SCC 41
referred to
Para 148
2020 (7) SCALE 162
referred to
Para 152
[1976] SCR 347
referred to
Para 154
[1973] Suppl. SCR  1
referred to
Para 166
[2017] 10 SCR 569
referred to
Para 167
[1993] 2 Suppl. SCR 659
referred to
Para 168
[2008] 4 SCR 1
referred to
Para 171
[1988] SCR 774
referred to
Para 178
[1995] 4 Suppl. SCR 16
referred to
Para 179
[1951] SCR 525
referred to
Para 186
AIR 1951 SC 229
referred to
Para 186
[1981] 1 SCR 206
referred to
Para 192
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[1991] 3 Suppl. SCR 121
referred to
Para 199
[2012] 2 SCR 715
referred to
Para 201
[2010] 6 SCR 972
referred to
Para 211
[1965] SCR 908
held applicable
Para 216
[2018] 10 SCR 663
referred to
Para 217
[2005] 4 Suppl. SCR 582
referred to
Para 218
[2010] 1 SCR 483
referred to
Para 239
[1972] 3 SCR 247
referred to
Para 265
[1966] Suppl. SCR 311
referred to
Para 269
[2019] 7 SCR 1086
referred to
Para 273
(2020) 3 SCC 1
referred to
Para 274
[2015] 5 SCR 670
affirmed
Para 311
[2002] 1 SCR 441
referred to
Para 345
[1952] SCR 1112 
referred to
Para 350
[1953] SCR 1
referred to
Para 351
[1973] Suppl. SCR 1
referred to
Para 352
[1984] 2 SCR 495
referred to
Para 356
[1981] 1 SCR 206
referred to
Para 359
[1970] 2 SCR 666
referred to
Para 392
[1978] 1 SCR 423
referred to
Para 393
[1992] 2 Suppl. SCR 389
referred to
Para 394
[1993] 2 Suppl. SCR 659
referred to
Para 395
[2018] 7 SCR 1
referred to
Para 402
[2017] 1 SCR 158
referred to
Para 407
In the judgment of S. Ravindra Bhat, J.
[1992] 2 Suppl. SCR 454
referred to
Para 7
[1964] 4 SCR 680
referred to
Para 10
[1985]1 Suppl. SCR 352
referred to
Para 10
[1963] Supp. 1 SCR 439
referred to
Para 13
[1968] 2 SCR 786
referred to
Para 13
[1971] 2 SCR 430
referred to
Para 13
[1972] 3 SCR 247
referred to
Para 13
[1975] 2 SCR 761
referred to
Para 13
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[1973] 3 SCR 236
referred to
Para 13
[1990] 3 SCR 352
referred to
Para 15
[1989] 3 SCR 316
referred to
Para 21
[1966] Suppl. 3 SCR 311
referred to
Para 22
(2020) 3 SCC 1
referred to
Para 23
[1959] SCR 995
referred to
Para 29
[2002] 3 Suppl.  SCR 587
referred to
Para 29
[1993] 1 SCR  891 
referred to
Para 30
[1971] 3 SCR 267
referred to
Para 31
[2006] 7 Suppl.  SCR 336
referred to
Para 34
[2014] 11 SCR 712
referred to
Para 38
[2019] 7 SCR 1086
referred to
Para 41
[1987] 1 SCR 1114
referred to
Para 63
[1952] SCR 1112
referred to
Para 79
[1953] SCR  215
referred to
Para 79
[1998] 2 SCR  870
referred to
Para 79
[1983] 1 SCR 1000
referred to
Para 79
[2018] 4 SCR 1 
referred to
Para 81
[1985] Suppl 3 SCR 242 
referred to
Para 87
[1965] 2 SCR 877
referred to
Para 91
[1965] 1 SCR 316
referred to
Para 91
[1972] 2 SCR 632
referred to
Para 91
[2018] 10 SCR 513
referred to
Para 91
[1951] SCR  525
referred to
Para 93
[1978] 2 SCR 1
referred to
Para 108
[2011] 3 SCR 366
referred to
Para 109
[2006] 5 Suppl.  SCR 1
referred to
Para 109
[1973] 1 SCR 172 
referred to
Para 109
[1990] 1 SCR  278
referred to
Para 110
[2008]4  SCR 853
referred to
Para 111
[2017] 5 SCR 1005
referred to
Para 112
[1992] 1 SCR  686
referred to
Para 114
[1990] 2 SCR  843 
referred to
Para 116
[1994] 1 Suppl. SCR  714
referred to
Para 117
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[2000] 1 Suppl. SCR  120
referred to
Para 121
[1989] 2 SCR  320 
referred to
Para 122
[2007] 13 SCR 376
referred to
Para 123
[2004] 5 Suppl. SCR 1040 
referred to
Para 125
[2017] 13 SCR 301  
referred to
Para 129
[2008] 4 SCR 1
referred to
Para 130
[1996] 10 Suppl. SCR  472 
referred to
Para 131
[1990] 1 Suppl. SCR 142
referred to
Para 142
[2003] 3 Suppl. SCR 24 
referred to
Para 145
[2017] 1 SCR 158 
referred to
Para 146
[1990] 3 SCR  111 
referred to
Para 150
[1995] 2 SCR 1061 
referred to
Para 150
[1997] 4 Suppl. SCR 133
referred to
Para 150
[2014] 2 SCR 203
referred to
Para 150
[2018] 14 SCR 689
referred to
Para 153
[1993] 1 SCR 480
referred to
Para 168
[1978] 1 SCR 1
referred to
Para 175
[1973] Suppl. SCR 1
referred to
Para 179
[1965] 1 SCR 933
referred to
Para 180
[1985] 1 Suppl. SCR 862
referred to
Para 186
In the judgment of L. Nageswara Rao, J.
[2006] 5 Suppl. SCR 1
referred to
Para 6
[1973] 1 SCR 172  
referred to
Para 6
[1965] 3 SCR 829
referred to
Para 6
[1997] 2 Suppl. SCR 267
referred to
Para 6
[2003] 2 SCR 933 
referred to
Para 6
[1958] 1SCR 360
referred to
Para 6
[2018] 7 SCR 1 
referred to
Para 9
[1984] 2 SCR 495
referred to
Para 10
[2002] 2 SCR 945
referred to
Para 10
[1958] SCR 1156
referred to
Para 11
[1963] 2 SCR Suppl. 459
referred to
Para 12
[1993] 2 Suppl. SCR 185
referred to
Para 12
[2018] 4 SCR 1
referred to
Para 15
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[1990] 3 SCR 111
referred to
Para 19
(1995) 2 Suppl. SCC 348
referred to
Para 19
[2013] 14 SCR 1019
referred to
Para 19
(2004) 8 SCC 329
referred to
Para 21
[1988] 2 Suppl. SCR 546
referred to
Para 23
[1978] 1 SCR 423
referred to
Para 23
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No. 3123 of 2020.
From the Judgment and Order dated 27.06.2019 of the High Court
of Judicature at Bombay in PIL No. 175 of 2018.
With
Civil Appeal Nos. 3124, 3133, 3134, 3131, 3129 Of 2020, Writ
Petition (C) Nos. 915, 504, 914 of 2020, Civil Appeal Nos. 3127, 3126,
3125, 3128, 3130 of 2020, Writ Petition (C) No. 938 of 2020.
K. K. Venugopal, S.C. Verma, Sathish Chanda Verma, Vivek Kolhi,
Amit Kumar, AGs., Ravindra Lokhande, Nalin Kohli, Abhinav Mukerji,
Arunabh Choudhary, Krishnaraj Thakker, AAGs., Vinay Arora, DAG.,
Tushar Mehta, SG., N. Venketaraman, ASG., Sathish Chanda Verma,
Rajiv Ranjan, Prabhuling Navadgi, Advs. Gen., Baldev Raj Mahajan, Sr.
Adv.(AG)., K.N. MohamBalgopal, Sr. Adv.(A.G.)., Vijay Narayan, Sr.
Adv. (AG)., Arvind P. Datar, Pradeep Sancheti, Gopal Sankaranarayanan,
Shyam Divan, Sidharth Bhatnagar, Dr. Rajiv Dhawan, B.H. Marlapalle,
Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, V.A. Thorat, Kapil
Sibal, C.U. Singh, A.M. Singhvi, Rafique A. Dada, Ms. Mahalakshmi
Pavani, Ranjit Kumar, Ms. Somya Chakraborti, Ms. Malvika Trivedi, S.
Niranjan Reddy, Jaideep Gupta, Dr. Manish Singhvi, Jayanth Muth Raj,
Sr. Advs., Ms.
Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,
Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, Ms. Janvi
Dubey, Vishal Sinha, Amit Anand Tiwari, Vivek Singh, Rahul Arya, S.
Mahesh Sahasranaman, Pratap Shankar, Ms. Mary Mitzy, K.K. Singh,
Sagar Saxena, Ms. Devyani Gupta, Premlal Krishnan, Utsav Trivedi,
Anurag Mankar, Vinayak Bhandari, Ashish Choudhary, Aditya Sidhra,
Nadeem Afroz, Ms. Bharti Tyagi, Rameshwar F. Totla, Ashutosh Dubey,
Ms. Rajshri Dudey, Arun Nagar, Rahul Totla, Abhishek Chauhan, Ms.
Ravleen Chhabra, V.S. Rawat, Samrudhi Bendbhar, Amit Kumar,
Siddhartha Chowdhury, Dr. Gunratan Sadavarte, Pankaj Kumar Singh,
Makrand Pratap Singh, Pawan Kumar Shukla, Kamal Kumar Pandey,
Raj Singh Rana, S.B. Talekar, Vipin Nair, P.B. Suresh, Karthik
Jayashankar, Sughosh Subramanyam, Ms. Pradyna Talekar, Ms. Madhavi
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Ayyappan, Anshumaan Bahadur, R.K. Deshpande, Hrishikesh S. Chitaley,
Ashwin Deshpande, Vijay Kari Singh, Samir Malik, Govind Jee, Krishna
Kumar Singh, Sanjay V. Kharde, Satyajeet S. Kharde, Kailas Bajirao
Autade, Ms. Sheetal Patil, Prashant Shantaram Chaudhari, Amol B.
Karande, Dilip B. Rode, Sandesh R. Patil, Mahesh B. Karande, Pritam
C. Rajput, Dilip Annasaheb Taur, Rajesh Tekale, Ashish Gaikwad,
Ramesh Dube Patil, Rishi Kumar Singh Gautam, Sanjay Kharde, Vishal
Kadam, Satyajeet Kharde, Samrat Shinde, Ms. Shraddha Deshmukh,
Ms. Chinmayee Chandra, Rajat Nair, Kanu Agrawal, Navanjay
Mahapatra, Amrish Kumar, Sachin Patil, Rahul Chitnis, Akshay Shinde,
Vaibhav Sugdare, Ms. Misha Rohatgi Mohta, Ms. Harshika Verma, Ms.
S. Lakshmi Iyer, Aaditya A. Pande, Geo Joseph, Sudhanshu S. Choudhari,
Mahesh P. Shinde, Anil Golegaonkar, Rajesh Tekale, Ashish Gaikwad,
Madhur Golegaonkar, Ms. Rucha Pande, Ms. Bhavana Khichi, Bhagwan
Gavali, Ms. Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,
Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, Abdulrahiman
Tamboli, Rahul Joshi, Tapesh Kumar Singh, Aditya Pratap Singh, Ms.
Bhaswati Singh, Nishant Sharma, Ms. Adviteeya, Rakesh K. Sharma,
Prashant Shrikant Kenjale, Sandeep Sudhakar Deshmukh, Nishant
Ramakantrao Katneshwarkar, Shriram P. Pingle, Ms. Rashmi D.
Dhongde, Abhijit Patil, Sandeep Dere, Ms. Pooja Thorat, Nilesh Lonkar,
Ms. Manisha Jain, Rajesh Inamdar, Ms. Namisha Jain, Shivaji M. Jadhav,
Brij Kishor Sah,
Anish R. Shah, Ms. Qurratulain, Aditya S. Jadhav,
Nicholas Choudhury, Ms. Joyshree Barman, Rajat Joseph, Ravi Bharuka,
Ajit Pravin Wagh, Ms. Astha Prasad, Ms. Prabhleen Kaur, Ms. Ishita
Farsaiya, Apoorv Shukla, Dhairyashil Salunkhe, Ms. Buva Mrunal
Dattatraya, Manu T. Ramachandran, Suhas Kumar Kadam, Ms. Manju
Jetley, Samrat Krishnarao Shinde, Amol Nirmalkumar Suryawanshi,
Mareesh Pravir Sahay, Pranav P. Patil, Krishna Kumar, Dr. Vipin Gupta,
V.K. Biju, Neeleshwar Pawani, Amlendu Kumar Akhilesh Kumar Jha,
Abhay Pratap Singh, Shaji George, Ms. Vijay Laxmi, Ms. Rubina Jawed,
Shreyas Gacche, Anerao Pandit, T.R.B. Sivakumar, Yadav Narender
Singh, Rajsaheb Patil, Ravi Prakash Jadhav, Ms. Akshata Jadav, Ms.
Swati Vaibhav, Prashant Shrikant Kenjale, Farrukh Rasheed, A. Karthik,
Ms. Smrithi Suresh, Arsh Khan, Ms. Sreepriya K., Ravindra Keshavrao
Adsure, Jaiprakash Babasaheb Chavan, Sideshwar Namdev Biradar,
Yash Prashant Sonawane, Yogesh Ramesh Joshi, Ashok Arora, Rajeev
Kumar Bansal, Girish Patel, Abhishek Sharma, Dinesh P. Rajbhar, Ms.
Anzu K. Varkey, Akash Avinash Kakade, Somanatha Padhan, Swetab
Kumar, Ms. Sukhada Omprakash Kakade, Dr. Rajesh Pandey, Sumeer
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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SUPREME COURT REPORTS
[2021] 15 S.C.R.
Sodhi, Ms. Prachi Misra, Chaitanya, Kartik Pant, Ms. Aswathi M.K.,
Ms. Jaikriti S. Jadeja, S. Hari Haran, Amit A. Pai, Ms. Pankhuri
Bharadwaj, Ms. Bhavana Duhoon, Ms. Ranu Purohit, Shakul R. Ghatole,
Dr. A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,
Sharwan Kumar Goyal, Jai Gopal Saboo, Sadashiv, Shankar Chillarge,
Kaleeswaram Raj, Mohammed Sadique T.A., Ms. Thulasi K. Raj, Ms.
Maitreyi S. Hegde, Ms. Uttara P.V., Ms. Sheryl Sebastian, Ms. Sneha
Ravi Iyer, Amol B. Karande, Vikrant Yadav, Mahesh B. Karande,
Sandesh R. Patil, Ankit Yadav, Mahfooz A. Nazki, Polanki Gowtham,
Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey
Sharma, Abhimanyu Tewari, Ms. Eliza Bar, Ms. Diksha Rai, Shuvodeep
Roy, Ms. Palak Mahajan, Shuvodeep Roy,
Rahul Raj Mishra, Manish Kumar, Harpreet Singh, Sahil Raveen, Sahil
Chandra, S.C. Verma, Ms. Prachi Mishra, Sumeer Sodhi, Hussain Ali,
Chaitanya, Kartik Pant, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant
Dogra, Kanu Agarwal, Aniruddha P. Mayee, Mrs. Bihu Sharma, Ms.
Pratishtha Vij, Arun Bhardwaj, Dilbag Singh, Dr. Monika Gusain, Vishwa
Pal Singh, Ms. Pragya Baghel, Vishnu Sharma, Kumar Anurag Singh,
Parthiv Goswami, Abhishek Roy, Ms. Aastha Shreshtha, Ms. Tulika
Mukherjee, Ms. Taruna Ardhendumauli Prasad, Aman Bhatnagar, Parth
Awasthi, Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash, Ms.
Anandita Mitra, Supratik Sarkar, G. Prakash, Shubhranshu Padhi, Ashish
Yadav, Rakshit Jain, Vishal Banshal, Pukhrambam Ramesh Kumar, Ms.
Anupama Ngangom, Karun Sharma, Siddhesh Kotwal, Ms. Bansuri
Swaraj, Divyansh Tiwari, Ms. Ana Upadhyay, Ms. Manya Hasija,
Nirnimesh Dube, Mrs. K. Enatoli Sema, Amit Kumar Singh, Nitya
Nambair, Vitso Rio, Karan Bharihoke, Ms. Neha Sahai Bharihoke,
Siddhant Sharma, D.K. Devesh, Sameer Abhyankar, Nalin Talwar, Amish
Tandon, Ayush Beotra, Varun Tandon, Dipin Tamang, Uddhav Khanna,
Ms. Shafali Jain, M. Yogesh Kanna, Raja Rajeshwaran S., Ms. Lakshmi
Iyer, Aditya Chadha, Ms. Uma Prasuna Bachu, P. Venkat Reddy, Prashant
Tyagi, P. Srinivas Reddy, M/s Venkat Palwai Law Associates, Shuvodeep
Roy, Rahul Raj Mishra, Apoorv Singhal, Aashish Prasad, Suhaan Mukerji,
Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda, Sayandeep Pahari
for M/s PLR Chambers & Co., Avijit Mani Tripathi, Shaurya Sahay,
Aditya Shankar Pandey, Pradeep Misra, Suraj Singh, Amit Tiwari, Amit
Yadav, Amit Sharma, Ms. Ruchira Gupta, Shishir Deshpande, Anurag
Sharma, Ms. Mona Sinha, Abhishek Kumar Srivastava, K.V.
Jagdishvaran, Mrs. G. Indira, V.G. Pragasam, S. Prabhu
Ramasubramanian, Advs. for the appearing parties.
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The Judgments of the Court were delivered by
ASHOK BHUSHAN, J. (for himself and S. Abdul Nazeer,
J.), L. Nageswara Rao, J. Hemant Gupta, J. and S. Ravindra Bhat
have also concurred on Question Nos. 1, 2 and 3.
1. This Constitution Bench has been constituted to consider
questions of seminal importance relating to contours and extent of special
provisions for the advancement of socially and educationally backward
class (SEBC) of citizens as contemplated under Article 15(4) and
contours and extent of provisions of reservation in favour of the backward
class citizens under Article 16(4) of the Constitution of India. The
challenge/interpretation of the Constitution (102nd Amendment) Act, 2018
is also up for consideration.
2. All the above appeals have been filed challenging the common
judgment of the High Court dated 27.06.2019 by which judgment several
batches of writ petitions have been decided by the High Court. Different
writ petitions were filed before the High Court between the years 2014
to 2019, apart from other challenges following were under challenge:
The Ordinance No. XIII of 2014 dated 09.07.2014 providing
16% reservation to Maratha. The Ordinance No.XIV of 2014
dated 09.07.2014 providing for 5% reservation to 52 Muslim
Communities. The Maharashtra State Reservation (of seats for
appointment in educational institutions in the State and for
appointment or posts for public services under the State) for
educationally and socially backward category
(ESBC) Act, 2014
and Maharashtra State Socially and Educationally Backward Class
(SEBC) (Admission in Educational Institutions in the State and
for posts for appointments in public service and posts) Reservation
Act, 2018 (hereinafter referred to as the “Act, 2018”).
3. The High Court by the impugned judgment upheld Act, 2018,
except to the extent of quantum of reservation provided under Section
4(1)(a), 4(1)(b) over and above 12% and 13% respectively as
recommended by Maharashtra State Backward Class Commission. The
writ petitions challenging the Ordinance XIII and XIV of 2014 as well
as Act, 2014 were dismissed as having become infructuous. Few writ
petitions were also allowed and few detagged and other writ petitions
have been disposed of.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR
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4. Writ petition under Article 32 of the Constitution of India, namely,
Writ Petition(C) No. 938 of 2020 (Shiv Sangram & Anr. vs. Union of
India & Anr.) has been filed questioning the Constitution (102nd
Amendment) Act, 2018.
5. While issuing notice on 12.07.2019, a 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 it clear that the
Admissions made to Post-Graduate Medical Courses shall not
be altered.
(C) Appointments to public services and posts under the
Government shall be made without implementing the
reservation as provided in the Act.
Liberty to mention for early hearing. “
6. A Three-Judge Bench referring the matter to Constitution Bench
has referred all the appeals and the order contemplated that the matter
shall be placed before the Chief Justice for the suitable orders. Referring
order although mention that the interpretation of Constitution (One
Hundred and Second Amendment) Act, 2018 is substantial question of
law as to the interpretation of the Constitution but the reference was not
confined to the above question. The learned counsel for the parties have
made elaborate submissions in all the appeals as well as the writ petitions
filed under Article 32. Elaborate submissions were addressed on the
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impugned judgment of the High Court. We thus have proceeded to hear
the parties and decide all the appeals and writ petitions finally.
7. After appeals being referred to a larger Bench by order dated
09.09.2020, Hon’ble the Chief Justice of India has constituted this
Constitution Bench before whom these appeals and writ petitions are
listed. This Constitution Bench after hearing learned counsel for the
parties passed an order on 08.03.2021 issuing notice to all the States.
The Bench by order further directed the States to file brief notes of their
submissions.
8. The hearing commenced on 15.03.2021 and concluded on
26.03.2021. At this stage, we may indicate the headings in which we
have divided to comprehensively understand the issues, submissions, our
consideration, our conclusion and operative part of the judgment. The
following are the heads of subjects under which we have treated the
entire batch of cases:
(1)
Questions Framed.
(2)
Background Facts.
(3)
Points for consideration before the High Court.
(4)
Submissions of the parties.
(5)
The 10 grounds urged for referring Indra Sawhney
judgment to a larger Bench.
(6)
The status of Reservation at the time of Enactment of
Act, 2018.
(7)
Consideration of 10 grounds urged for revisiting and
referring the judgment of Indra Sawhney to a larger
Bench.
(8)
Principle of Stare Decisis.
(9)
Whether Gaikwad Commission Report has made out a
case of extra-ordinary situation for grant of separate
reservation to
Maratha community exceeding 50%
limit?
(10) Whether the Act, 2018 as amended in 2019 granting
separate reservation for Maratha community by
exceeding the ceiling limit of 50% makes out exceptional
circumstances as per the judgment of Indra Sawhney?
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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(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
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting 12% and 13% reservation
for Maratha community in addition to 50% social reservation
is covered by exceptional circumstances as contemplated by
Constitution Bench in Indra Sawhney’s case?
3. Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has made 12 out a case of existence of
extraordinary
situation and exceptional circumstances in the
State to fall within the 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
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a legislation determining the socially and economically backward
classes and conferring the benefits on the said community
under its enabling power?
5. Whether, States power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway
abridged by Article 342(A) read with Article 366(26c) of the
Constitution of India?
6. Whether, Article 342A of the Constitution abrogates States
power to legislate or classify in respect of “any backward class
of citizens” and thereby affects the federal policy / structure
of the Constitution of India?”
(2)Background Facts.
10. We need to first notice certain background facts relevant for
the present case and details of various writ petitions filed in the High
Court. The “Maratha” is a Hindu community which mainly resides in
the State of Maharashtra. After the enforcement of the Constitution of
India, the President of India in exercise of power under Article 240
appointed a Commission to investigate the conditions of all such socially
and educationally backward classes, known as Kaka Kalelkar
Commission, the first National Commission for backward classes. The
Kaka Kalelkar Commission submitted its report on 30.03.1955 where it
observed - Vol.I “In Maharashtra, besides the Brahman it is the Maratha
who claimed to be the ruling community in the villages, and the Prabhu,
that dominated all other communities”. Thus, the first Backward Classes
Commission did not find Maratha as other backward class
community in
the State of Bombay.
11. On 01.11.1956, a bilingual State of Bombay under the State
Re-organisation Act was formed with the addition of 8 districts of
Vidharbha (Madhya Bharat) and 5 districts of Marathwada (Hyderabad
State). On 14.08.1961 through Ministry of Home Affairs while declining
to act on the Kaka Kalelkar Commission Report informed all the State
Governments that they had discretion to choose their own criteria in
defining backward classes and it would be open for 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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submitted its report on OBC to the Government of Maharashtra on
11.01.1964. It did not find Maratha as backward class. On 13.08.1967,
the State of Maharashtra issued unified list of OBC consisting of 180
castes for the entire State which did not include Maratha. At serial No.87,
Kunbi was shown. The President of India on 31.12.1979 appointed the
second National Backward Classes Commission within the meaning of
Article 340 of the Constitution popularly known as Mandal Commission.
In the report of second National Backward Classes Commission with
regard to the State of Maharashtra while distributing percentage of Indian
population by castes and religious groups, estimated other backward
classes as 43.70 per cent, whereas in the category of forward Hindu
castes and communities the Marathas were included with 2.2 per cent.
The population of other backward classes of remaining Hindu Castes
groups was estimated as 43.7% and backward non-Hindu classes as
8.40 per cent and total approximate backward class of Hindu including
non-Hindu castes was estimated as 52%. At page 56 of volume of report
under heading percentage of the castes and religious groups under sub-
heading forward Hindu castes and communities following table given:
III. Forward Hindu Castes & Communities
12. The Maratha, thus, was included in forward Hindu caste, by
the second National Backward Classes Commission.
13. A request was received by the National
Commission for
Backward Classes for inclusion of “Maratha” in the Central List of
Backward Classes for Maharashtra along with Kunbi as backward class
of Maharashtra. The National Commission for Backward Classes
conducted public hearing at Mumbai and after hearing Government
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officials, Chairman of the Maharashtra State Backward Classes
Commission submitted a detailed report dated 25.02.1980 holding that
Maratha is not a socially and educationally backward class community
but a socially advanced and prestigious community. It is useful to refer
to paragraph 22 of the report (last paragraph) which is to the following
effect:
“22. In view of the above facts and position, the Bench finds that
Maratha is not a socially backward community but is a socially
advanced and prestigious community and therefore the Request
for Inclusion of “Maratha” in the Central List of Backward Classes
for Maharashtra along with Kunbi should be rejected. In fact,
“Maratha” does not merit inclusion in the Central List of Backward
Classes for Maharashtra either jointly with “Kunbi” or under a
separate entry of its own.”
14. On 16.11.1992 a nine-Judge Constitution Bench of this Court
delivered a judgment in Indra Sawhney v. Union of India [1992 Suppl.
(3) SCC 217] (hereinafter referred to as “Indra Sawhney’s case”),
apart from laying down law pertaining to principle of reservation under
Constitution this Court also issued directions to the Government of India,
each of the State Governments to constitute a permanent body for
entertaining, examining and recommending upon on requests for inclusion
and complaints of over inclusion of other backward classes of citizens.
15. The Maharashtra State OBC Commission headed by Justice
R.M. Bapat submitted a report on
25.07.2008 conclusively recording
that Maratha could not be included in the OBC list because it is a forward
caste. The report in the end concluded:
“It was agreed with majority that the resolution, stating that it
would not be appropriate from social justice perspective to include
Maratha community in the ‘Other Backward Class’ category, has
been passed with majority in the commission’s meeting convened
in Pune on 25/07/2008. And it was agreed with majority that such
a recommendation should be sent to the government. The opposite
opinion in relation to this has been separately recorded and it has
been attached herewith.”
16. The Maharashtra State Other Backward Classes Commission
on 03.06.2013 rejected the request of the State Government to review
the findings recorded by the State OBC Commission in its report dated
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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25.07.2008 holding the Maratha caste as forward community. Despite
the existence of statutory State OBC Commission, the Government of
Maharashtra appointed a special Committee headed by a sitting Minister,
Shri Narayan Rane to submit a report on the Maratha Caste. On
26.02.2014 Rane Committee submitted its report to the State and
recommended that for the Maratha special reservation under Article
15(4) and 16(4) of the Constitution of India be provided. On 09.07.2014
Maharashtra Ordinance No.XIII of 2014 was promulgated providing
for 16% reservation in favour of the Maratha caste. Writ Petition No.2053
of 2014 (Shri Sanjeet Shukla vs. State of Maharashtra) along with other
writ petitions were filed where two separate Ordinances promulgated
on 09.07.2014 providing for reservation for seats for admissions in aided
and non-aided institutions of the State and appointment to the post to
public service under the State a separate 16% reservation in which
Maratha was included, was challenged. The Government resolution dated
15.07.2014 specifying the Maratha community as the community socially
and economically backward entitled for 16% reservation was challenged.
17. The Division Bench of the High Court by an elaborate order
considering the relevant materials including the reports of National
Backward Classes Commission and State Backward Classes
Commission and other materials on record stayed the operation of
Maharashtra
Ordinance No.XIII of 2014 and Resolution dated
15.07.2014. However, it was directed that in case any admission has
already been granted in educational institution till that date based on
Ordinance No.XIII of 2014 the same shall not be disturbed and the
Students shall allow to complete their respective courses.
18. The SLP(C)Nos.34335 and 34336 were filed in this Court
challenging interim order dated 14.11.2014 which SLPs were not
entertained by this Court with request to decide the writ petitions at an
early date.
19. The Maharashtra Legislature passed the Act, 2014 on
23.12.2014 which received the assent of the Governor on 09.01.2015,
and was deemed to have come into force with effect from 09.07.2014.
In Writ Petition (C)No. 3151 of 2014 and other connected matters the
Division Bench of the Bombay High Court passed an order on 07.04.2015
staying the implementation of the provisions of the Act 1 of 2015 providing
16% reservation to Maratha. The interim order, however, directed that
appointment to 16% reservation for Maratha under Act 1 of 2015 in the
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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 status of Maratha. The Commission recommended for declaring
Maratha caste of citizens as social and economic backward class of
citizens with inadequate representation in services. The Commission also
opined that looking to the exceptional circumstances and extraordinary
situations on declaring Maratha class as SEBC and their consequential
entitlement to the reservation benefits, the Government may take decision
within the constitutional provisions. The Government after receipt of the
above report enacted Act, 2018 which was published on
30.11.2018 and
came into force from that day. PIL No.175 of 2018 (Dr. Jaishri
Laxmanrao Patil Vs. The Chief Minister and Ors.) and other writ
petitions and PILs were filed challenging the Act, 2018. The High Court
in the impugned judgment has noticed the pleadings in three writ petitions
being PIL No.175 of 2018 giving rise to C.A.No.3123 of 2020, W.P.(LD.)
No.4100 of 2018 (Sanjeet Shukla vs. The State of Maharashtra)
giving rise to C.A.No.3124 of 2020 and PIL No.4128 of 2018 (Dr.
Uday Govindraj Dhople & Anr. vs. The State of Maharashtra &
Anr.) giving rise to C.A.No.3125 of 2020. Before us in C.A.No.3123 of
2020 and C.A.No.3124 of 2020 most of the volumes and written
submissions have been filed. It shall be sufficient to notice these three
Civil Appeals, apart from the details of few other cases which shall be
noted hereinafter.
C.A.No. 3123 of 2020 (Dr. Jaishri Laxmanrao Patil Vs. The
Chief Minister and Ors.)
21. This appeal has been filed against the judgment of the High
Court in PIL NO.175 of 2018 filed by Dr. Jaishri Laxmanrao Patil
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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questioning the 16% separate reservation given to Maratha under Act,
2018 published on 30.11.2018. The writ petitioner pleaded that providing
reservation to Maratha community to the extent of 16% amounts to
breach of Article 14, 16 and 21 of the Constitution of India and also
bypassing ceiling of reservation of 50%. Referring to judgment of this
Court in Indra Sawhney’s case and law laid down in Mr. Nagraj and
others vs. Union of India & Ors. (2006) 8 SCC 212, it was pleaded
that the reservation is not permissible beyond 50%. Various grounds had
been taken in the writ petition questioning the 16% reservation for
Maratha. During the pendency of the writ petition subsequent events
occurred resulting into enlarging the scope of the petition, in the writ
petition several applications for intervention and impleadment have been
filed seeking to justify the Act, 2018. The High Court allowed the
applications for intervention and they were directed to be added as party
respondents.
C.A.No. 3124 of 2020 (Sanjeet Shukla vs. The State of
Maharashtra)
22. This appeal arises out of the judgment in Writ Petition (C)
No.4100 of 2018. In the writ petition an extensive challenge was made
to the Backward Classes Commission report which was basis for Act,
2018. The same writ petitioner i.e. Sanjeet Shukla has earlier filed Writ
Petition (C) No.3151 of 2014 challenging the Ordinance promulgated by
the Government of Maharashtra in the
year 2014. The interim order
dated 14.11.2014 was passed in the Writ Petition No.3151 of 2014. The
petitioner has also pleaded that the Act, 2014 was also stayed by the
High court on 07.04.2015. It was pleaded that Maratha community is a
powerful community in the State of Maharashtra with proved dominance
in Government Service, Co-operatives, Sugar Co-operatives 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 comments have also been
made on the aggressive tactics adopted by the Maratha community by
agitation, dharna for the grant of reservation to them. It was also pleaded
that Act, 2018 is passed without complying with the requirement of
Constitution (102nd Amendment) Act, 2018. In the writ petition following
prayers have been made:
“(a) Issue a writ, order or direction in the nature of certiorari or
any other appropriate writ, order or direction of that nature thereby
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quashing and striking down Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018, as being invalid and
violative of the provisions of the Constitution of India;
(b) During pendency of the petition, this Hon’ble Court be pleased
to say to the operation, implementation and effect of the
Maharashtra State Socially and Educationally Backward (SEBC)
Class (Admission in Educational Institutions in the State and for
posts for appointments in public service and posts) Reservation
Act, 2018;
b1. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction that no
appointments should be made under Maharashtra State Socially
and Educationally Backward (SEBC) Class (Admission in
Educational Institutions in the State and for posts for appointments
in public service and posts) Reservation Act, 2018;
b2. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction of that
nature that no posts should be kept vacant by reference to the
Maharashtra State Socially and Educationally Backward (SEBC)
Class (Admission in Educational Institutions in the State and for
posts for appointments in public service and posts) Reservation
Act, 2018;
b3. during pendency of the present petition, this Hon’ble Court be
pleased to
issue an appropriate writ, order or direction of that
nature that no advertisements for vacancies should be placed
reserving any posts under Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;
b4. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction of that
nature that no admission in educational institutions should be made
under reserved category as per Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;
b5. during pendency Court be pleased to issue an appropriate
writ, order or direction of that nature that no Caste Certificates
should be issued under Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;”
C.A.No.3125 of 2020 (Dr. Uday Govindraj Dhople & Anr.
vs. State of Maharashtra & Anr.)
23. This appeal arises out of Writ Petition (LD.)No.4128 of 2018
filed by Dr. Udai Govindraj Dhople. The writ petition was filed in
representative capacity on behalf of the similarly situated medical
students/medical aspirants who are adversely affected by the Act, 2018.
24. The writ petitioners seek quashing of Act, 2018 and in the
alternative quashing and setting aside Sections 2(j), 3(2), 3(4), 4,5,9(2),10
and 12 of the Act, 2018. The petitioner pleads that reservation system
has become a tool of convenience for the Government and politicians in
power for their vote bank. It is further pleaded that Maratha was never
treated as backward class community and earlier their claim was rejected.
It was further pleaded that the impugned enactment seriously prejudices
the chances of open candidates in all fields of education as well as in
service. It was further pleaded that Gaikwad
Commission’s report is not
based on fiscal data. There was inadequacy of data base. A community
which was found not to be backward for last 50 years is now declared
as backward class without any change of circumstances. The writ
petitioner, pleads that enactment shall have an adverse effect which
shall divide the society by caste basis on communal line. The impugned
enactment is claimed to be violative of the basic structure and fundamental
value of the Constitution capitulated in Article 14, 16 and 19 of the
Constitution.
C.A.Nos. 3133, 3134 and 3131 of 2020
25. These appeals have been filed by the appellants who were
not parties in the PIL No.175 of 2018, against the High Court judgment
praying for permission to file SLP which has already been granted.
26. C.A.No. 3129 arising out of PIL(ST)No.1949 of 2019
whereby 16% reservation to Maratha under Act, 2018 has been
challenged.
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27. Writ Petition (C)No. 915 of 2020 has been filed under
Article 32 of the Constitution of India praying for directing the respondents
that all the admission to Post Graduate Medical & Dental Courses in the
State of Maharashtra for the academic year 2020-21 shall be made
subject to the outcome of the SLP(C)No.15735 of 2019 and connected
petitions.
28. Writ Petition (C) No. 504 of 2020 filed under Article 32
has been filed seeking mandamus direction to the respondents that
provisions of Act, 2018 should not be made applicable to the admission
to Post Graduate Medical & Dental Courses in the State of Maharashtra
for the academic year 2020-21.
29. Writ Petition (C) No. 914 of 2020 filed under Article 32
prays for writ in the nature of certiorari or any other writ or order or
direction to hold the impugned Socially and Educationally Backward
Classes (SEBC) Act, 2018 as unconstitutional and violative of Article
14, 16 & 19 of the Constitution of India and further Act, 2018 should not
be made available to the medical admission process for Post-graduate
students for the academic year 2020-21 in the State of Maharashtra.
30. C.A.No. 3127 of 2020 arises out of Writ Petition (C)No.4128
of 2018. The prayer of which writ petition has already been noticed by
C.A.No.3125 of 2020.
31. C.A.No. 3126 of 2020 has been filed against the impugned
judgment of the High Court in Writ Petition (C)No.3846 of 2019
(Mohammad Sayeed Noori Shafi Ahmed & Ors. vs. The State of
Maharashtra & Ors.). Writ Petitioners were challenging the Act, 2018
as well as the Maharashtra State Backward Class Commission Report
on the Social, Educational, Economic Status of the Marathas and Allied
Aspects, 2018. The question was also raised about inaction on the part
of the State of Maharashtra in not acting upon the report of Maharashtra
State Minority Commission (2011) recommending special reservation to
certain Muslim communities and failure to introduce a Bill on the floor of
the State Legislature providing for 5% reservation to 52 Muslim
communities in Maharashtra.
32. C.A.No. 3128 of 2020 arising out of Writ Petition (C)
No.4269 of 2018(Vishnuji P. Mishra vs. The State of Maharashtra)
wherein similar reliefs have been claimed as in PIL No.175 of 2018.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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33. Writ Petition (C) No. 938 of 2018 has been filed under
Article 32 of the Constitution of India challenging the validity of
Constitution (102nd Amendment) Act, 2018. Writ Petition notices that
issue regarding Constitution (102nd Amendment) Act, 2018 is pending in
SLP(C)No.15737 of 2019(C.A.No.3123 of 2020). The writ petitioner
also claimed to have filed an I.A.No.66438 of 2020 for impleadment in
SLP(C) No. 15737 of 2019. The petitioner’s submission is that if the
effect of Constitution (102nd Amendment) Act, 2019 is to take away
power of State Legislature with respect to identification of OBC/SEBC,
it is obvious that Constitution (102nd Amendment) Act, 2018 has taken
away the legislative powers of State Legislature with respect to some
areas of law making power. The petitioner, further, submits that the
procedure prescribed by the proviso to clause (2) of Article 368 of the
Constitution of India has not been followed since no ratification by the
legislatures of not less than one-half of the States by Resolution was
obtained. In the writ petition following prayers have been made:
“a) This Hon’ble Court be pleased to hold and declare that the
102nd Amendment of the Constitution of India published in the
Gazette of India dated 11.08.2018 is unconstitutional being in
violation of proviso to clause (2) of Article 368 and also being
violative of the right guaranteed under Article 14 and 21 of the
Constitution of India.
b) This Hon’ble Court please to issue a writ of mandamus or a
writ in the nature of mandamus or any other writ, order or direction
directing that the 102nd Amendment of the Constitution of India
shall not be enforced hereafter as a result of its being violative of
Article 368 as also the basic structure of the Constitution of India
and also being violative of Article 14 and 21 of the Constitution of
India.”
34. In the writ petitions before the High Court, the State of
Maharashtra has filed affidavit in reply dated 16.01.2018 in Writ Petition
No.4100 of 2018 supporting the Act, 2018, which has been extensively
relied by the High Court in the impugned judgment. The affidavits were
also filed by the intervenors and affidavits were filed in support of
Chamber Summons. The High Court after perusing the writ petitions,
affidavits, applications filed by the interveners, Chamber Summons and
supporting other materials and after hearing counsel appearing for the
respective parties has broadly capitulated following points for
consideration:
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(3) Points for consideration before the High Court.
35. “(III) Whether the impugned Act of 2018 is constitutionally
invalid on account of lack of legislative competence on the
following sub-heads:-
(a) The subsisting interim order passed by the Bombay
High Court in Sanjeet Shukla vs. State of Maharashtra (WP
3151/2014) thereby granting stay to a similar enactment and
ordinance of the State, which is pending for adjudication before
this Court.
(b) The 102nd (Constitution) Amendment, 2018 deprives
the State legislature of its power to enact a legislation
determining the Socially and Educationally Backward Class
and conferring the benefits on the said class in exercise of its
enabling power under Article 15(4) and 16(4) of the Constitution.
(C) The limitation of 50% set out by the Constitution
bench in Indra Sawhney in form of constitutional principle do
not permit reservation in excess of 50%.
(IV) Whether the State has been able to establish the social and
educational backwardness and inadequacy of representation of
the Maratha community in public employment on the basis of the
report of MSBCC under the Chairmanship of Justice Gaikwad on
the basis of quantifiable and contemporaneous data ?
(V) Scope of Judicial Review for interference in the findings,
conclusions and recommendation of the MSBCC.
(VI) Whether the reservation carved out for Maratha community
by the State Government in form of impugned legislation satisfies
the parameters of reasonable
classification under Article 14 of
the Constitution ?
(VII) Whether the ceiling of 50% laid down by the Hon’ble Apex
Court in case of Indra Sawhney vs. Union of India, is to be
taken as a constitutional principle and deviation thereof violates
the basic tenet of equality enshrined in the Constitution?
(VIII) Whether the State is able to justify existence of exceptional
circumstances or extra-ordinary situation to exceed the permissible
limit of 50% within the scope of guiding principles laid down in
Indra Sawhney ?
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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(IX) Whether in the backdrop of the findings, conclusions and
recommendations of the MSBCC report, whether the State
Government has justified exercise of its enabling power under
Article 15(4) and 16(4) of the Constitution ?”
36. The High Court in paragraph 177 of the judgment has
summarised its conclusion to the following effect:
“177. In the light of the discussion above, we summarize
our conclusions to the points which we have formulated in the
proemial of the judgment and deliberated in the judgment. We
summarize our conclusions in the same sequence :
[1] We hold and declare that the State possess the legislative
competence to enact the Maharashtra State Reservation for Seats
for Admission in Educational Institutions in the State and for
appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018
and State’s legislative competence is not in any way affected by
the Constitution (102nd Amendment) Act 2018 and the interim
order passed by this Court in Writ Petition No. 3151 of 2014. We
resultantly uphold the impugned enactment except to the extent
of quantum of reservation as set out in point no. 6.
[2] We conclude that the report of the MSBCC under the
Chairmanship of Justice Gaikwad is based on quantifiable and
contemporaneous data and it has conclusively established the
social, economical and educational backwardness of the Maratha
community and
it has also established the inadequacy of
representation of the Maratha community in public employment /
posts under the State. Accordingly we uphold the MSBCC report.
[3] We hold and declare that the classification of the Maratha
class into “Socially and Educationally Backward Class” complies
the twin test of reasonable classification permissible under Article
14 of the Constitution of India, namely, (a) intelligible 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 extra-
ordinary situations, this limit can be crossed subject to availability
of quantifiable and contemporaneous data reflecting
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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 extra-ordinary
situations justifying crossing of the limit of 50% reservation as set
out in Indra Sawhney’s case.
[6] We hold and declare that the State Government in exercise of
its enabling power under Articles 15(4)(5) and 16(4) of the
Constitution of India is justified, in the backdrop of report of
MSBCC, in making provision for separate reservation to Maratha
community. We, however, hold that the quantum of reservation
set out by the Maharashtra State Reservation for Seats for
Admission in Educational Institutions in the State and for
appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018,
in section 4(1)(a) and 4(1)(b) as 16% is not justifiable and
resultantly we quash and set aside the quantum of reservation
under the said provisions over and above 12% and 13%
respectively as recommended by the Commission.”
In view of the conclusions, the High Court passed following order
in the batch of writ petitions:
“: O R D E R :
[A] In the light of summary of conclusions above, we dispose of
the following writ petitions / PILs by upholding the Impugned Act
of 2018 except to the extent of quantum of reservation prescribed
by section 4(1)(a) and 4(1)(b) of the said Act :
1] PIL No.
175 of 2018,
2] WP (stamp No.) 2126 of 2019
3] WP (stamp No.) 2668 of 2019
4] WP (stamp No.) 3846 of 2019
5] PIL No. 140 of 2014
6] WP (Lodg. No.) 4100 of 2018
7] WP (Lodg. No.) 4128 of 2018.
8] WP (Lodg. No.) 4269 of 2018
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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9] PIL No. 6 of 2019.
10] WP (Lodg No.) 969 of 2019.
[B] The following writ petitions / PILs seeking implementation of
the Impugned Act of 2018, are also disposed of in view of the
Impugned Act being upheld except to the extent of quantum of
reservation prescribed by section 4(1)(a) and 4(1)(b).
1] PIL No.19 of 2019 :- The petition is allowed in terms of
prayer clause (a).
2] PIL No.181 of 2018 :- The petition is allowed in terms of
prayer clause (a). As far as prayer clause (b) is concerned,
we grant liberty to the petitioner to file a fresh petition in case
cause of action survives.
[C] The following writ petitions are rendered infructuous on
account of the passing of SEBC Act of 2018 which has repealed
the earlier ESBC Act of 2015.
1] Writ Petition (Stamp No.) 10755 of 2017
2] PIL No. 105 of 2015
3] PIL No. 126 of 2019
4] PIL No. 149 of 2014
5] PIL No. 185 of 2014
6] PIL No. 201 of 2014
7] Writ Petition No. 3151 of 2014.”
[D] The following writ petitions are de-tagged from the present
group of petitions as they claim reservation for the Muslim
communities.
1] Writ Petition No. 937 of 2017
2] Writ Petition No. 1208 of 2019
3] PIL No.209 of 2014
4] PIL (Stamp No.) 1914 of 2019.
[E] WP No.11368 of 2016:- The Petition is dismissed as far as
prayer clause (A) is concerned. As far as prayer (B) is concerned
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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 counsel,
Shri R.K. Deshpande, learned counsel, Dr. Gunratan Sadavarte, learned
senior counsel, Shri Amit Anand Tiwari, learned counsel and Shri S.B.
Talekar, learned counsel for the appellants. Shri Amol B. Karande, learned
counsel, has been heard in support of Writ Petition No.938 of 2020.
39. We have heard Shri K.K. Venugopal, learned Attorney General
for India and Shri Tushar Mehta, learned Solicitor General. Shri Mukul
Rohatgi, learned senior counsel, has appeared for the State of
Maharashtra and Chhattisgarh.
Shri Shekhar Naphade, learned senior
counsel, and Shri P.S. Patwalia, learned senior counsel, have also
appeared for the State of Maharashtra. Shri Kapil Sibal, learned senior
counsel, has appeared for the State of Jharkhand. Dr. Abhishek Manu
Singhvi, learned senior counsel, has also appeared for the respondent
No.3 in C.A. No.3123 of 2020.
40. We have also heard several learned counsel appearing for
different States. Shri Manish Kumar, learned counsel has appeared for
the State of Bihar, Shri Karan Bharihok, has appeared for the State of
Punjab, Dr. Manish Singhvi, learned senior counsel, has appeared for
the State of Rajasthan. Shri C.U. Singh, learned senior counsel, has
appeared for the respondents. Shri Sudhanshu S. Choudhari, learned
counsel has appeared for some of the respondents, Shri V. Shekhar,
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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learned senior counsel has appeared for the State of Maharashtra, Shri
S. Niranjan Reddy, learned senior counsel, has appeared for the State of
Andhra Pradesh, Shri Shekhar Nephade, learned senior counsel and
Shri Jayanth Muth Raj, learned senior counsel have appeared for the
State of Tamil Nadu. Shri Jaideep Gupta, learned senior counsel has
appeared for the State of Karnataka. Shri Vinay Arora, learned counsel,
has appeared for the State of Uttarakhand. Shri Arun Bhardwaj, learned
counsel, has appeared for the State of Haryana. Shri Amit Kumar, learned
counsel, has appeared for the State of Meghalaya. Shri Pradeep Misra,
learned counsel, has appeared for the State of U.P. and Shri Tapesh
Kumar Singh, learned counsel, has appeared for the Madhya Pradesh
Public Service Commission. Ms. Diksha Rai, learned counsel, has
appeared for the State of Assam.
41. We have also heard Mrs. Mahalakshmi Pavani, learned senior
counsel, Shri A.P. Singh, learned counsel, Mr. Shriram Pingle, learned
counsel, Shri V.K. Biju, learned counsel, Shri Hrishikesh s. Chitaley,
learned counsel, Shri Mr. Kaleeswaram Raj, 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 Bench of this Court in Indra Sawhney
to an Eleven-Judge Bench. Reference to larger Bench can be made
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only for compelling reasons. No judgment of this Court has doubted the
correctness of nine-Judge Constitution Bench of this Court in Indra
Sawhney’s case. On the other hand 50% limit for reservation has been
reiterated at least by four Constitution Bench judgments of this Court
rendered after judgment in Indra Sawhney’s case. All the High Courts
have uniformly accepted the limit of 50% reservation. In some States
where for political reasons 50% limit had been breached, it was struck
down repeatedly. The limit of 50% reservation laid down by the
Constitution Bench of this Court in Indra Sawhney is now an integral
part of the trinity of Article 14, 15 and 16 of the Constitution. Any
legislative or executive legislations against it are void and have to be
struck down. Shri Datar has specifically referred to the Constitution
Bench judgment of this Court in M. Nagaraj vs. Union of India, (2006)
8 SCC 212 in which case the Constitution Bench of this Court laid
down that the State cannot obliterate the Constitutional requirement of
ceiling limit of 50%. It was held that if the ceiling limit of 50% is breached
the structure of quality and equality in Article 16 would collapse.
45. It was further held that even the State has compelling reason,
the State has to see that its reservation provision does not lead to
excessiveness so as to breach the limit of 50%. The request to refer the
judgment of Nagaraj has been refused by subsequent Constitution Bench
judgment of
this Court in Jarnail Singh and others vs. Lachhmi Narain
Gupta and others, 2018(10) SCC 396. The parameters, when this
Court revisits its judgments have been clearly laid down in which the
present case does not fall. The judgment delivered by nine-Judge Bench
needs to be followed under the principle of stare decisis. More so for
the last more than 28 years no judgment of this Court had expressed any
doubt about the law laid down by this Court in Indra Sawhney’s case.
A very high threshold is to be crossed when reference is to be made to
eleven-Judge Bench. In law, certainty, consistency and continuity are
highly desirable. The Parliament has not touched 50% limit laid down
under Article 15(4) and 16(4) of the Constitution for the last several
decades.
46. The impugned judgment of the Bombay High Court is liable to
be set aside as it is contrary to the clear principle laid down in the Indra
Sawhney’s case. The High Court has not given any reason as to how
extra-ordinary situations as mentioned in paragraph 810 in Indra Sawhney
case is made out in the context of reservation for the Maratha caste/
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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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 caste. It is submitted that limit of 50% is
essential right on part of equality which is part of basic structure. Even
members of Scheduled Tribes and Other Backward Classes who qualify
on merit can continue to enjoy the benefit of merit quota. The limit of
50% as laid down in Indra Sawhney, only a Parliamentary amendment
is contemplated. Whenever Parliament wanted to get over 50% ceiling
limit laid down by Indra Sawhney, the constitutional Amendments were
brought, namely, Constitution 77th Amendment and Constitution 81st
Amendment.
48. Shri Datar has referred to various paragraphs of judgment of
this Court in Indra Sawhney. In support of his submission that majority
has laid down upper ceiling of 50% for providing reservation under Article
16(4) and 15(4), Shri Datar submits that the judgment of Indra Sawhney
cannot be confined only to Article 16(4) but the law was laid down
taking into consideration Article 15(4) and 16(4).
49. Shri Shyam Divan, learned senior counsel for the appellant/
writ petitioner submits that social and financial status of Maratha
community has been examined by successive Commissions or
Committees up to June 2013 and each of the Commission and Committee
did not recognise members of Maratha community as deserving for
reservation as backward class. Shri Divan has referred to Kalelkar
Commission Report (1955), Mandal Commission Report (1980) and
National Backward Class Commission Report (2000). He has also
referred to the Deshmukh Committee report which did not include the
Maratha Community in the list of backward communities. Reference
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has also been made to the Khatri Commission (1995) and Bapat
Commission (2008).
50. It is submitted that when the Maharashtra State Commission
for backward class declined to reconsider in the matter of reservation of
Maratha, the State Government appointed Narayan Rane Committee
who was a Minister in the State Government which submitted a report
in 2014 that although Maratha Community may not be socially backward
but it recommended a new Socially and Economically Backward Class
(SEBC). Shri Divan has submitted that Gaikwad Commission which
submitted its Report on 15.11.2018 concluding that Maratha Community
in Maharashtra are socially, educationally and economically backward
and are eligible to be included in backward class category is completely
flawed. It was not open for the Gaikwad Commission to ignore
determination by 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
Gaikwad Commission report and the reason given by the report does not
make out any case for exception regarding Maratha Community to fall
in extraordinary circumstances as contemplated in paragraph 810 of the
judgment in Indra Sawhney’s case.
53. Shri Gopal Sankaranarayanan, learned senior Counsel has
made his submission on the Constitution (One Hundred and Second
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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Amendment), 2018. Shri Narayanan submits that after the Constitution
(One Hundred and Second Amendment), 2018, the State legislature could
not have passed the 2018 Act. Article 338B and 342A brought by the
Constitution (One Hundred and Second Amendment), mark see change
in the entire regime regarding identification of backward classes. The
power of the National Commission of Backward Classes as per Article
338B sub-clause (5) includes power to make reports and
recommendations on measures that should be taken by the Union or any
State. The National Commission for Backward Class is also required to
be now consulted both by the Union and the State. Article 366(26) states
that the phrase ‘Socially, Educationally and Backward Classes’ means
such Backward Classes as are so deemed under Article 342A, for the
purposes of this Constitution which provision does not permit Socially,
Educationally and Backward Classes to have any other meaning. The
purposes of this Constitution, as occurring in Article 366(26C) shall also
apply to Article 16(4). After the Constitution (One Hundred and Second
Amendment), the States have no power to identify socially, educationally
and backward classes. The State Governments are still left free to decide
the nature or extent of provision that may be made in favour of socially
and educationally backward classes identified in accordance with Article
342A. When the power to determine SCs and STs have
always been
centralized, it is absurd to suggest that allowing the same procedure for
identification of socially, educationally and backward classes shall violate
federalism.
54. Shri Gopal Sankaranarayanan further submitted that the reliance
on Select Committee Report of Rajya Sabha is unwarranted. In the
Select Committee Report which was submitted in July 2018, there were
several dissents, since many members of the Select Committee
understood that the Constitution (One Hundred and Second Amendment),
shall take away the power of the State to prepare their own list of socially,
educationally and backward classes. Article 342A has been brought in
the Constitution to achieve uniformity and certainty and not due to any
political reasons. There is no ambiguity in Article 342A which requires
any external aid for interpretation.
55. Shri Sidharth Bhatnagar, learned counsel appearing for the
appellant also adopts the submissions of Mr. Datar and Mr. Gopal
Sankaranarayanan and submits that the judgment of this Court in M.R.
Balaji versus State of Mysore, AIR 1963 SC 649, had laid down that
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reservation under Article 15(4) shall be less than 50 percent which
principle finds its approval in Indra Sawhney’s Case.In Indra
Sawhney’s Case, Eight out of Nine Judges took the view that reservation
cannot exceed 50 percent. He submits that judgment of Indra Sawhney
need not be referred to a larger Bench.
56. Mr. Pradeep Sancheti, learned senior Advocate, has confined
his submissions to the Gaikwad Commission Report. He submits that
due difference to the opinion of the Commission does not mean that
opinion formed is beyond the judicial scrutiny. He submits that
backwardness has to be based on objective factors where inadequacy
has to factually exist. The Court while exercising power of Judicial Review
has to consider the substance of the matter and not its form, the
appearance or the cloak, or the veil of the executive action is to be
carefully scrutinized and if it appears that Constitutional power has been
transgressed, the impugned action has to be struck down.
57. Shri Sancheti submitted that three National Backward Class
Commissions and three State Backward Class Commissions did not
include Maratha Community as backward community which findings
and reasons could not have been given a goby by Gaikwad Commission
constituted in the year 2017. The Gaikwad Commission (hereinafter
referred to as Commission), survey, data results, analysis suffers from
various inherent flaws. The sample survey conducted by the Commission
is skewed, unscientific and
cannot be taken as a representative sample.
Sample size is very small. Out of 43,629 persons surveyed, only 950
persons were from the Urban Area. Mumbai was excluded from the
Survey. Sample size of total population was well below 0.02 percent.
The Commission assumes that the Maratha form 30 percent of the State’s
population. Without there being any quantifiable data, the Commission
picked up and chose certain parameters whereas conveniently left out
many of the parameters where Maratha Community is better off. The
Commission has not provided a comparable State average for at least
28 of the parameters used in the study. When the State Average is not
on the record, treating those parameters as parameters of backwardness
is wholly unfounded. The High Court in the impugned judgment has also
not met the submissions which were brought on record before the High
Court regarding the serious flaws committed by the Commission. 
58. The marking system adopted by the Commission was not
rational; the Constitution of the Commission and experts was loaded in
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favour of the Maratha community since the majority of the members of
the Commission were all Marathas. It is submitted that Marathas are
the most dominant community not only in politics but also in other fields
such as educational institutions, sugar factories, agriculture etc. which
aspects are relevant criteria for identifying backwardness of a community.
The sample size was so small that no quantifiable data could have been
found.
59. Referring to Chapter 10 of the Commission’s report, Shri
Sancheti submits that no extraordinary situation as contemplated in
paragraph 810 of judgment of Indra Sawhney’s case could be made
out, even if all the findings given by the Commission are accepted to be
true. The Commission has relied on outdated data for holding that
‘Marathas’ were ‘Shudras’. When an unscientific survey is done, an
unrealistic result is bound to come. There has been adequate
representation of Maratha Community in the Public Services. The
Commission erred in holding that the representation is not proportionate
and recommended reservation under Article 16(4). The Commission has
not even adverted to the requirement regarding efficiency as contemplated
under Article 335 of the Constitution of India. 
60. Shri Sancheti submits that more than 40 percent Members of
Parliament and 50 percent of Members of Legislative Assembly are
Marathas. Shri Sancheti submits that the Commission’s report is only
paperwork which
could not be accepted by the Court, while the Act,
2018, purports to create reservation for socially and economically
Backward Classes but in effect the enactment is reservation for only
Maratha which enactment is not sustainable. 
61. Shri Sancheti submits that from the various data regarding
representation in jobs of Maratha community itself make it clear that
Maratha community is adequately represented in Public Services and
there is no Constitutional requirement for providing reservation under
Article 16(4). Shri Sancheti submits that the Commission has given undue
importance to the suicide by the Maratha farmers. He submits that from
the data given in the report, the proportion of suicide of Maratha comes
to 23.56 percent which is even less from the proportion of 30 percent as
claimed by the Commission. The High Court by wrong appreciation of
facts concludes that those who committed suicide, 80.28 percent were
Marathas. There is no basis to attribute farmer suicide to Maratha
Backwardness. Shri Sancheti submits that undue weightage has been
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given to the percentage of Maratha in ‘Dubbeywala class’ which cannot
be any relevant consideration.
62. Dr. Rajeev Dhavan, appearing on behalf of the appellant,
submits that no case has been made out to review or refer the judgment
of this Court in Indra Sawhney’s case which is based on principles of
equality and reasonableness. Dr. Dhavan submits that in fact Indra
Sawhney should be strengthened to make 50 percent strict subject to
dire restrictions and stronger judicial review. The Indra Sawhney should
be treated as a comprehensive decision on various aspects of reservation
as a whole and the attempt of the respondents to distinguish Indra
Sawhney on the basis that it was a decision only on Article 16(4) is
spurious.
63. Dr. Dhavan, however, submits that in the judgment of Indra
Sawhney, a weak test for judicial scrutiny in matters within the subjective
satisfaction of the scrutiny was laid down i.e. test as laid down by this
Court in Barium Chemicals ltd. and another versus The Company
Law Board and others, AIR 1967 SC 295. Dr. Dhavan submits that
there ought to be a strict scrutiny test and this Court may tweak this
aspect of Indra Sawhney so that the strict scrutiny test applies. The 50
percent test as has been articulated in the Indra Sawhney is based on
the principle of giving everyone a fair chance. 50 percent ceiling is based
on principle of equality to prevent reverse discrimination which is as
much a principle that the Constitution records to
equality as anything
else. The direction of Indra Sawhney that list of Other Backward Classes
be reviewed periodically is not being followed. Dr. Dhavan, however,
submits that the entire power of reservation has not been taken away
from the State.
64. Elaborating his submissions on the Constitution (One Hundred
and Second Amendment) Act, 2018, Dr. Dhavan submits that the essence
of 102nd Amendment as exemplified in Article 342A results in the
monopoly of identification even though implementation is left to the State.
His submission is that this is contrary to the basic structure of 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
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to the Central Services and leaving the identification and implementation
power of the States intact. Dr. Dhavan, however, submits that
Maharashtra legislature had the competence to enact the 2018 Act, even
though the Constitution (One Hundred and Second Amendment) had
come by that time. He, however, submits that any legislation which is
enacted will still be subject to Indra Sawhney and Nagraj principles.
66. Dr. Dhavan submits that various reports of Maharashtra in
fact found that it is not necessary to include Maratha despite their
persistent efforts. He submits that the test to be applied is “what has
happened since the last report negating inclusion of Maratha that now
requires a change to include them”. He submits that the logic of the
principle is that if the Marathas were not backward for over Seventy
years, how they have suddenly become backward now. Dr. Dhavan
reiterates his submission that there is no judgment which has questioned
Indra Sawhney’s case. He submits that reservation under political
pressure, social pressure need not to be taken. A political obligation to
the electorate is not a constitutional obligation. He further submits that
object of Article 16(4) is empowerment i.e. sharing of the State power.
He submits that Maratha are not deprived of sharing power; hence, no
case is made out for granting reservation under Article 16(4).
67. Shri B.H. Marlapalle, learned senior counsel, has also
submitted
that doctrine of extraordinary circumstances cannot be applied to a
dominant class of Society. He submits that the representation of Maratha
in the Legislative Assembly of the State is more than 50 percent and in
the Cabinet of the State they are more than 50 percent. After enforcement
of the Constitution, Marathas were never regarded as an Other
Backward Community. Three Central Commission and three State
Commissions have rejected the claim of the Marathas to be backward.
68. Shri S.B. Talekar, appearing in Civil Appeal No.3126 of 2020
has submitted that Writ Petition No.3846 of 2019 was filed by Mohd.
Saeed Noori & Others, claiming reservation for Muslims. The High Court
although noted the submissions but had made no consideration. Learned
Counsel contended that the State has no legislative competence to enact
the 2018 Act. He submits that power to legislate on the subject has been
taken away by virtue of 102nd Constitutional Amendment by adding
Article 342A in the Constitution of India. He also questioned the
composition of Gaikwad Commission.
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69. Shri R.K. Deshpande, appearing for the appellant has also
contended that by Article 342A, a separate mechanism has been
introduced for the purpose of identification of backward class. He submits
that there cannot be any State list of ‘Socially and Educationally Backward
Class’ after the 102nd Constitutional Amendment. He submits that
identification of the caste was never the exclusive domain of the States.
70. Shri Amit Anand Tiwari, appearing in writ petition i.e. W.P.
No.504 of 2020, referring to the Order dated 09.09.2020 contends that
Three-Judge Bench having refused the prayer to refer the Indra
Sawhney judgment to a larger Bench, the Said prayer needs no further
consideration. Shri Tiwari submits that present is not a case covered by
any exceptional circumstances as mentioned in the Indra Sawhney’s
judgment. Historically, Marathas have been treated as a forward class
who are socially, economically and politically well-of. Prior to the report
of Gaikwad Commission, as many as six Commissions have held
Marathas are not entitled to be treated as a backward class. There has
been no change in the circumstances to include Maratha Community in
the list of Backward Classes. With respect to 102nd Constitutional
Amendment, shri Tiwari submits that now States are not empowered to
notify a class of persons as socially and educationally backward for the
purposes of the Constitution. However, State’s power to confer benefits
on an already identified class of
persons as SEBC as identified under
Article 342A remains intact. The High Court committed an error in holding
that States still have power to identify class as SEBC. The High Court
erred in not appreciating the import of Article 366(26C).
71. We may also notice the submission of writ petitioner in
W.P.(civil) No.938 of 2020, challenging the 102nd Constitutional
Amendment Act, 2018.
72. Shri Amol B. Karande, learned counsel for the petitioner submits
that in event Article 342A read with Article 366(26C) of the Constitution
of India takes away the power of the State to identify a backward class,
the said Constitutional Amendment shall be violative of basic feature of
the Constitution, i.e. Federalism.
73. He further submits that by the Constitutional Amendment, the
power of the State to legislate under various Entries under List-II and
List-III have been taken away, hence, it was obligatory to follow the
procedure as prescribed in Proviso to Article 368(2) of the Constitution
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of India, which having not done, the Constitutional Amendment is not
valid. 
74. Learned Counsel submits that Article 366(26C) requires certain
clarification since there is no clarity regarding Central List and State
List. He submits that States shall have still power to legislate on the
identification of the backward class. 
75. Learned Attorney General, Shri K.K.Venugopal, has made
submissions on the 102nd Constitutional Amendment. Shri Venugopal
submits that he shall confine his arguments on the 102nd Constitutional
Amendment only. Referring to Article 12 of the Constitution, the learned
Attorney General submits that the definition of the “State includes
Government and Parliament of India and Government and Legislature
of each State.” Under Article 15(4) and 16(4), the State has power to
identify the ‘Socially and Educationally Backward Class/Backward Class’
and take affirmative action in favour of such classes which power has
been regularly exercised by the State.
76. Learned Attorney General submits that the Constitution Bench
in Indra Sawhney held that there ought to be a permanent body, in the
nature of a Commission or a Tribunal to which inclusion and non-inclusion
of groups, classes and Sections in the list of Other Backward Classes
can be made. The Constitution Bench directed both the Union
Government and the State Government to constitute such permanent
mechanism in the nature of a Commission.
77. Learned
Attorney General submits that it is inconceivable that
no State shall have power to 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
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repealed on 14.08.2018. The Attorney General has also referred to Select
Committee Report dated 17.07.2017, paragraph 12, 18, 19 and 55 and
submits that Select Committee Report indicate that the intention of
Constitutional Amendment was not to take away the State’s power to
identify the Backward Class, the Select Committee Report clearly indicate
that State’s Commission shall continue to perform their duties.
78. Learned Attorney General submits that Central List as
contemplated under Article 342A (2) relates to employment under the
Union Government, Public Sector Corporation, Central institutions in
States where Central list was to be utilized. He submits that State
Government identification of Backward Class/Socially and Educationally
Backward Classes is not touched by Article 342A.
79. Referring to Scheduled Castes and Scheduled Tribes learned
Attorney General submits that the power was given to the President
under the Constitutional Scheme and States had no concern at all with
Scheduled Castes/Scheduled Tribes. He submits that Article 342A deals
with the Central List for its own purpose whereas in every State, there
is a separate State list of Other Backward Class. There was no attempt
to modify Articles 15(4) and 16(4) by the Parliament. Unless Articles
15(4) and 16(4) are amended, the State’s power cannot be touched. 
80. Learned Attorney General had also referred to an affidavit
filed on behalf of Government of India in Writ Petition (Civil) No.12
of
2021, Dinesh B. versus Union of India and others, in which affidavit
Union of India with respect to the Constitution (One Hundred and Second
Amendment) Act, 2018 has pleaded that power to identify and specify
the Socially and Educationally Backward Class list lies with Parliament,
only with reference to Central List of Socially and Educationally
Backward Class. It is further pleaded that the State Government may
have their separate State list for Socially and Educationally Backward
Class for the purposes of providing reservation to the recruitment to
State Government Services or admission to the State Government
Educational Institutions. Learned Attorney General reiterates the above
stand in respect of the Constitution (One Hundred and Second
Amendment) Act, 2018. 
81. Referring to the Other Backward Caste list, with regard to
the State of Punjab, the learned Attorney General submits that in the
Central list, there are 68 castes and whereas in the State list, there are
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71 castes. Learned Attorney General submits that the question of validity
of the Constitution (One Hundred and Second Amendment) shall arise
only when the State’s power is taken away. Replying to the submissions
made by the learned counsel for the writ petitioner in W.P.No.938 of
2020, learned Attorney General submits that in the Constitution (One
Hundred and Second Amendment), there was no applicability of proviso
to Article 368(2). He submits that insofar as legislation under List-III is
concerned, since Parliament by legislation can override the States, hence,
by Constitutional Amendment, the same can very well be taken away. 
82. Referring to Entry number 41 of List-II, the learned Attorney
General submits that Entry 41 has no concern with identification of
backward class. The Constitution (One Hundred and Second
Amendment) does not amend the lists under Schedule VII; hence, there
is no requirement of ratification by the States.
83. Shri Mukul Rohtagi, learned senior counsel, appearing for the
State of Maharashtra has led the arguments. Shri Rohtagi has articulated
his submissions in a very effective manner. Shri Rohtagi states that his
submission shall be principally confined to question No.1. 
84. Shri Rohtagi submits that there are several reasons which
require that the Constitution Bench judgment in Indra Sawhney be
revisited, necessitating reference to the larger Bench of Eleven Judges.
Shri Rohtagi during
course of submission has handed over a chart giving
history of judgments on reservation. The chart makes reference of the
relevant paragraphs of judgments of this Court in M.R.Balaji versus
State of Mysore(Supra),T. Devadasan versus Union of India and
another, AIR (1964) SC 179, State of Punjab versus Hiralal and
others, (1970) 3 SCC 567; State of Kerala and others versus N.M.
Thomas and others, (1976) 2 SCC 310; Akhil Bharatiya Soshit
Karamchari Sangh, (Railway) versus Union of India and others,
(1981) 1 SCC 246; K.C. Vasant Kumar and another versus State of
Karnataka, (1985) supp. (1) SCC 714; T.M.A. Pai Foundation and
others versus State of Karnataka and others, (2002) 8 SCC 481, M.
Nagaraj and others versus Union of India and others, (2006) 8
SCC 212; S.V.Joshi versus State of Karnataka, (2012) 7 SCC 41;
Union of India and others versus Rakesh Kumar and others, (2010)
4 SCC 50; K. Krishnamurthy and others versus Union of India and
another ,(2010) 7 SCC 202; Chebrolu Leela Prasad Rao versus
State of Andhra Pradesh, (2020) SCC Online SC 383; Vikas
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kishanrao Gawali versus The State of Maharashtra, (2021) SCC
Online SC 170 and Constitution Bench judgment of this Court in Indra
Sawhney. The Chart also indicates the reasons why Indra Sawhney’s
judgment requires a review. The Chart in a comprehensive manner
discloses the law on reservation prior to Indra Sawhney and subsequent
thereto.
85. We may now notice the Groundswhich have been emphasized
by Shri Mukul Rohtagi for referring the judgment of Indra Sawhney to
a larger Bench.
(5)The 10 grounds urged for referring Indra Sawhney
judgment to a larger Bench.
i) 
In the judgment of Indra Sawhney, there is no unanimity,
in view of different reasoning adopted in six separate
judgments delivered in the case. He submits that the
judgments are in three groups – one containing the judgment
of Justice Jeevan Reddy, which is for himself and three
other judges, which held that while 50 percent is the rule
but in certain extraordinary situations, it can be breached.
Shri Rohtagi submits that Justice Pandian and Justice Sawant
have held that 50 percent can be breached, hence, the
majority opinion is that 50 percent can be breached. It is
only Justice Thommen, Justice Kuldip Singh and Justice
R.M. Sahai who have held that 50 percent cannot be
breached. He submits that the judgment of majority opinion
in Indra Sawhney is being wrongly read as holding that 50
percent is the ceiling limit for reservation.
ii)
Different judges from 1963 till date have spoken in different
voice with regard to reservation under 15(4) and 16(4) which
is a good ground to refer Indra Sawhney judgment to a
larger Bench.
iii)
The Balaji has held that Article 15(4) is an exception to
Article 15(1) which theory has not been accepted by this
Court in N.M. Thomas as well as Indra Sawhney, the
very basis of fixing the ceiling of 50 percent has gone. Shri
Rohtagi submits that the Constitution of India is a living
document. The ideas cannot remain frozen, even the thinking
of framers of the Constitution cannot remain frozen for
times immemorial.
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 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 Constitutional
provisions cannot be read down which principle is applicable
only with regard to statutes.
 v) 
Judgment of Indra Sawhney is a judgment on Article 16(4)
and not on Article 15(4), hence, the ratio of judgment cannot
be applied with regard to Article 15(4). He submits that
Indra Sawhney itself states that Article 15(4) and Article
16(4) are distinct and different provisions.
  vi)
The judgment of Indra Sawhney does not consider the
impact of Directive Principles of State Policy such as Article
39(b)(c) and Article 46, While interpreting Article 14, 16(1)
and 16(4).
vii)
The 50 percentage ceiling limit was followed by Constitution
Bench of this Court in St. Stephen’s College versus
University of Delhi,(1992) 1 SCC 558, by upholding the
procedure for admission of students in aided minority
educational institutions which ceiling limit of 50 percent has
been set aside by 11-Judge Bench judgment in T.M.A. Pai
Foundation (Supra). 11-Judge Bench judgment in T.M.A.
Pai judgment indicates that the ceiling of 50 percent is no
longer available to be relied on even for purposes of Article
15 and Article 16.
viii)
The Constitutional 77th and 81st  Amendment Act inserting
Article 16(4)(A) and Article 16(4)(B) have the effect of
undoing in part the judgment of Indra Sawhney and thus
mandating a re-look.
ix)
The 103rd Constitutional Amendment by which 10 percent
reservation have been provided for Economically Weaker
Sections in addition to reservation given under Article 15(4)
and Article 16(4) is a clear pointer of overruling of 50 percent
ceiling for reservation under 15(4) and 16(4).
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x)
The extraordinary circumstances as indicated in paragraph
810 of Indra Sawhney’s case is not exhaustive, far flung
and remote areas mentioned therein are only illustrative.
There may be other exceptions where states are entitled to
exceed the 50 percent ceiling limit.
86. Shri P.S. Patwalia, appearing for the State of Maharashtra
has advanced the submissions on rest of the questions. Shri Patwalia
has advanced submissions supporting the report of Gaikwad Commission.
He submits that Gaikwad Commission was appointed under the 2005
Act at the time when the challenge to 2014 Act was pending in the
Bombay High Court. He submits that there was no challenge to the
constitution of Gaikwad Commission before the High Court at any stage.
He submits that if 30 percent Maratha are to be fit in 27 percent OBC
reservation, 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 Courts in exercise of
Judicial Review Jurisdiction.
88. On the basis of the Commission’s report, the State Government
arrived at the satisfaction that Maratha are socially and educationally
backward class which satisfaction need not be tested in Judicial Review
Jurisdiction. Formation of the opinion by the State is purely a subjective
process. This Court has laid down in several judgments that the
Commission’s report needs to be treated with deference. The High Court
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in the impugned judgment has elaborately considered the Gaikwad
Commission’s report and the other material including the reservation
which was granted to Other Backward Community in the year 1902 by
Sahuji Maharaj. He submits that the High Court had considered the
effect of reports given by the earlier Commissions in the impugned
judgment and gave reasons why earlier reports cannot operate detriment
to the Marathas.
89. It is submitted that method and manner of survey is to be
decided on by the Commission. No contrary data of any expert or
technical body has been placed before this Court by the appellants to
come to the conclusion that the data considered by the Commission was
not relevant. The choice of parameters is essentially to be decided by
the expert body appointed to determine the backwardness. The statistics
of population of Maratha community is credible and rightly been accepted
by the Commission.
90. The Commission had given a common questionnaire to maintain
uniformity for social, economical and educational backwardness. The
Commission has given relevant parameters. The Commission had
considered the number of representations received and collected. The
Commission also considered the objection for inclusion of Maratha as
backward class in Other Backward classes category and otherwise. 
91. Shri Patwalia with respect to 102nd   Constitutional Amendment
states that he adopts the submissions of learned
Attorney General
completely. He submits that Article 342A and mechanism which has
been brought in force only relate to the Central list which is for the
purposes of appointment in posts under the Central Government or
Educational Institutions under the control of the Central Government.
Shri Patwalia further submits that the Select Committee report relied by
the High Court is fully admissible for deciphering the history of legislation
and the intention of the Parliament. He further submits that today there
is no central list, hence, there is no question of affecting the State list.
He submits that it is premature to set aside the said action. 
92. Shri Shekhar Naphade, learned senior counsel, appearing for
the State of Maharashtra, has elaborately dealt with the judgment of this
Court in M. R. Balaji(Supra). He submits that all subsequent judgments
providing a ceiling of 50 percent are 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
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Scheduled Caste, Scheduled Tribes and Other Backward Class is a judicial
legislation which is impermissible. He further submits that reservation
cannot exceed 50 percent is not the ratio of judgment of Balaji. It is
submitted that Balaji has not considered the effect of the non obstante
clause contained in Article 15(4). Shri Naphade has also dealt with the
judgments of this Court in T.Devadasan(Supra), N.M. Thomas (Supra)
and Indra Sawhney. 
93. Shri Naphade elaborating his submissions on Article 342A
submits that the State has legislative competence to prescribe reservation
to backward class. He has referred to Entry 25 of List-III and Entry 41
of List-II. He submits that a careful perusal of Article 342A indicates
that the scheme of this Article is substantially different from Article 341
and 342. The difference in the language of clause (2) of Article 342A as
compared to clause (2) of Article of 341 and 342 makes all the difference.
The view canvas by petitioners that 102nd Constitutional Amendment
takes away the legislative competence and legislative power of the States
runs counter to the basic structure of the Constitution and the scheme of
distribution of power between the State and Centre. It is settled principle
of interpretation that by construing any provision of Act of Parliament or
Constitution, the legislative history of the relevant subject is necessary
to be seen. 
94. Shri Kapil Sibal, senior advocate, appearing for the State of
Jharkhand has advanced the submissions on all aspects of the matters
which are under consideration in the present batch of cases. He submits
that how balance for Article 14, 15 and 16 shall be maintained is matter
within the domain of the executive/State legislature. No Court should fix
the percentage for Article 15 and 16. In Indra Sawhney’s case, there
was no data for imposing a ceiling of 50 percent. Justice Jeevan Reddy
did not rely on the Mandal Commission’s report. Mr. Sibal submits that
50 percent was not an issue in the Indra Sawhney. He submits that
parameters for Article 15(4) and Article 16(4) are entirely different where
Article 15 is eligibility and Article 16 is ability to get a job. Apart from
Balaji, all other judgments are on Article 16. He submits that question
No.VI framed in Indra Sawhney’s case could not have been answered
without looking into the statistics. The concept of equality will differ
from State to State. There cannot be a strait Jacket formula. Why stop
reservation to only 50 percent when matter relates to affirmative action
by the State which is felt required by the concerned State. Limiting
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access to education to 50 percent will cause more problems than solved.
It is the State which has to look at the relevant percentage to be followed
in a particular case. In Indra Sawhney’s case, the Court was dealing
with Office Memorandum issued by Government of India where
reservation was less than 50 percent. The observation regarding 50
percent is only an Obiter. By the judgment of this Court in N.M. Thomas,
the basis of Balaji Case that Article 15(4) is an exception to Article
15(1) has gone. The whole judgment could not be relied on as a precedent
anymore. Whether a particular quota of reservation is violative of Article
15(1) depends on facts of each case. The State ought to be given a free
hand to pick the percentage as per need and requirement of each State.
There is no judicial power to pick a percentage.
95. Shri Sibal giving illustration of Kendriya Vidyalaya submitted
that General students cannot come and those institutions cater only to
the employees of Government, Army; and the General can only come
when the seats are vacant. He submits that the balance has to be done
by the executive and not by the Court. These are the issues which need
to be decided by a larger Bench. These issues having never been
addressed before this Court in Indra Sawhney’s case, the matter needs
to be referred to a larger Bench. 
96. The Constitution of India is a living, transformative document.
The Court cannot shackle the
legislature. Shri Sibal submits that 50 percent
limit for reservation prescribed in Indra Sawhney is no longer a good
law after 103rd Constitutional Amendment which inserted Article 15(6)
and Article 16(6) into the Constitution. Several States have already
provided for reservation beyond 50 percent to Scheduled Caste,
Scheduled Tribe and Socially and Educationally Backward class. In the
above circumstances, it is necessary that these matters may be referred
to a larger Bench for fresh adjudication. 
97. Shri Sibal on Article 342A submits that under Articles 15(4)
and 16(4) the Union and the States have co-equal powers to advance
the interest of socially and educationally backward classes. Any exercise
of power by the Union cannot encroach upon the power of the State to
identify and empower the socially and educationally backward classes
and determine the extent of reservation required. The expression, “for
the purposes of this Constitution” can therefore only be construed within
the contours of power that the Union is entitled to exercise with respect
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to entities, institutions, authorities and Public Sector Enterprises under
the aegis and control of the Union.
98. The expression “Central List” in Article 342A(2) relates to
the notification under Article 342A(1), wherein the Central List will
include identification of socially and educationally backward classes for
the purposes of entities, institutions, authorities and public sector
enterprises in a State, but under the aegis or control of the Union. Any
other interpretation would allow an executive act to whittle down the
legislative power of the States to provide for the advancement of the
socially and educationally backward classes, under Articles 15(4), 15(5)
as well as in Article 16(4), which are an integral part of the chapter on
fundamental rights.
99. Article 342A and Article 342A(1) and 342A(2) must be
interpreted in the historical context and developments both pre and post
Indra Sawhney, where the identification of the socially and educationally
backward classes in the State lists was the basis for determining the
extent of reservations. In this regard, the use of the word “Central list”
is of significance, as opposed to Articles 341 and 342, which only use the
expression “list” in the context of identification of Scheduled Castes and
Scheduled Tribes. This is because historically, Scheduled Castes and
Tribes were identified by the Government of India and accepted by the
States.
100. Learned Solicitor General Shri Tushar Mehta, submits that
he adopts the submissions made by learned Attorney General. He submits
that 102ndConstitutional Amendment shall not dilute the power of the
State. Article 342A (1) is only enabling provision. The Act, 2018, does
not violate 102ndConstitutional Amendment.
101. Dr. Abhishek Manu Singhvi, appearing for the respondent
submits that State’s power was never intended to be taken away. He
submits that material including discussion in reports of Parliamentary
Committee are fully admissible and has to be relied for finding the intent
and purpose of a Constitutional provision. Dr. Singhvi has elaborately
taken us to the proceedings of the Select Committee and its report. Dr.
Singhvi has cited the Constitution Bench judgment of this Court in
Kalpana Mehta and others versus Union of India and others, (2018)
7 SCC 1.He has also referred to the Statements of objects of 123rdBill
which notices that there were State lists prior to Indra Sawhney. The
Central list was confined to Central Institutions and Central Government
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posts. Shri Singhvi has also referred to 1993 Act and submits that in the
said Act Section 2(C) referred to a list which was only a Central list.
Article 342A(2) uses the same Central list and interpretation of Article
342A(2) has to be made taking the same meaning of Central list as was
known and understood under the regime prior to 102nd Constitutional
Amendment Act. This Court shall not annotate the State’s power under
some interpretive exercise. Dr. Singhvi further submits that today there
is no Central list under Article 342A, there being no occupied field, it its
premature and academic.
102. Shri C.U. Singh, learned senior Advocate, appearing for
respondents has referred to Gaikwad Commission’s report in detail. He
has referred to data collected and reflected in the report and submit that
the Commission on the basis of quantifiable data has determined Maratha
as socially and educationally backward community. He has also referred
to Chapter 10 of the report which carves out exceptional circumstances
for exceeding 50 percent limit. Shri C.U. Singh has taken the Court to
various tables and charts regarding representation of Maratha Community
in the Public services, Universities and Higher Institutions. Shri C.U.
Singh submits that the representation in the public services is not in
accordance with the proportion of population of Maratha. He submits
that backwardness has to come from living standard, job. The
Commission
has found that Marathas to be more in Agriculture and in Agricultural
labour. He submits that we need to take into consideration the overall
situation.
103. Learned Counsel for the State of Bihar, State of Punjab,
State of Rajasthan, State of Andhra Pradesh, State of Tamil Nadu, State
of Kerala, State of Assam, State of Uttar Pradesh, State of Haryana
have also advanced the similar submissions as advanced by the State of
Maharashtra that 102nd Constitutional Amendment shall not take away
power of the legislative/executive power of the State to identify OBC
and to take measures for implementation of reservation. All State’s
counsel submitted that there has always been two lists i.e. Central List
and State List. It is submitted that any other interpretation shall violate
the federal structure as envisaged in the Constitution of India.
104. Shri Amit Kumar, learned Advocate General, Meghalaya,
submits that in State of Meghalaya there are about 85.9 percent tribal
population. He submits that reservation allowed in State of Meghalaya
is in accord with paragraph 810 of the Indra Sawhney’s judgment.
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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 and reports. From
various volumes a master index containing all details of volumes has
also been prepared and submitted. Before we enter into submissions of
the learned counsel for the parties on six questions framed by us and the
impugned judgment of the High Court including points for
consideration
noted in the judgment of the High Court, we need to first look into the
statutory provisions pertaining to reservation in force at the time when
Act, 2018 was enacted.
(6)The status of Reservation at the time of
commencement of Enactment of Act, 2018
109. The State of Maharashtra has issued a unified list of OBC
consisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgment
of this Court in Indra Sawhney case, the Central List of OBC was
issued by the Ministry of Welfare, Government of India notifying the
Central List of OBC consisting of more than 200 castes. The Central
List of OBC as on date contains about 252 OBC. The Government
of Maharashtra by its Government decision dated 07.12.1994 created
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special backward category containing several castes and communities.
The Maharashtra State Public Services Reservation for Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and other Backward Classes) Act, 2001
was enacted which was published in the Maharashtra Government
Gazette on 22.01.2004. Section 2(b) defines De-notified Tribes. Section
2(f) defines Nomadic Tribes. Section 2(g) defines Other Backward
Classes and Section 2(k) defines reservation and Section 2(m) defines
Special Backward Category. Sections 2(b), 2(f), 2(g), 2(k) and 2(m) are
as follows:
“Section 2(b) “ De-notified Tribes (Vimukta Jatis) “ means
the Tribes declared as such by the Government from time to time;
2(f) “Nomadic Tribes “ means the Tribes wandering from
place to place in search of their livelihood as declared by
Government from time to time ;
2(g) “Other Backward Classes” means any socially and
educationally backward classes of citizens as declared by the
Government and includes Other Backward Classes declared by
the Government of India in relation to the State of Maharashtra ;
2(k) “reservation” means the reservation of post in the
services for the members of Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward Classes;
2(m) “Special Backward Category” means socially and
educationally backward
classes of citizens declared as a Special
Backward Category by the Government.”
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:-
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______________________________________________
Description of Caste/Tribe/
Percentage of
Category/Class
vacancies reservation
Or seats to be reserved
______________________________________________
(1) Scheduled Castes
. .
13 per cent.
(2) Scheduled Tribes
. .
 7 per cent.
(3) De-notified Tribes (A)
. .
3 per cent.
(4) Nomadic Tribes (B)
. .
2.5 per cent.
(5) Nomadic Tribes (C)
. .
3.5 per cent.
(6) Nomadic Tribes (D)
. .
 2 per cent.
(7) Special Backward Category
. .
 2 per cent.
(8) Other Backward Classes
. .
19 per cent.
_____________
Total
. .
52 per cent.
_____________________________________________”
111. The Maharashtra State Commission for Backward Classes
Act, 2005 was enacted by the State Legislature providing for constitution
of State level Commission for Backward Classes other than the
Scheduled Castes and Scheduled Tribes and to provide for matters
connected therewith or incidental thereto. Section 2(e) defined the Lists
in following words:
“Section 2(e) “Lists” means the Lists prepared by the State
Government, from time to time, for the purposes of making
provision for the reservation of appointments or posts, in favour
of the backward classes of citizens who, in the opinion of the
State Government, are not adequately represented in the services
under the State Government and any local or other authority within
the State or under the control of the State Government;”
112. Section 9 of the Act deals with functions of the Commission
in the
following words:
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“Section 9.(1) It shall be the function of the Commission,—
(a) to entertain and examine requests for inclusion of
any class of citizens as a backward class in the Lists ;
(b) to entertain, hear, enquire and examine complaints
of over-inclusion or under-inclusion of any backward class in
such Lists and tender such advice to the State Government as
it deems appropriate;
(c) to take periodical review and make recommendations
to the State Government regarding the criteria and methodology
of determining the backward class of citizens ;
(d) to cause studies to be conducted on a regular basis
through and in collaboration with reputed academic and research
bodies for building of data about the changing socio-economic
status of various classes of citizens;
(e) to regularly review the socio-economic progress of
the backward class of citizens ; and (f ) to perform such other
functions as may be prescribed.
(2) The advice given or recommendations made by the Commission
under this section shall ordinarily be binding on the State
Government and the State Government shall record reasons in
writing, if, it totally or partially rejects the advice or
recommendations or modifies it.”
113. Another Enactment, namely, Maharashtra Private Professional
Educational Institutions (Reservation of seats for admission for Scheduled
Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic
Tribes and Other Backward Classes) Act, 2006
was enacted which
was published in Maharashtra Gazette on 01.08.2006. Section 2 defines
various expressions including Nomadic Tribes and Other Backward
Classes in other words. Section 4 provided that in every Aided Private
Professional Educational Institution, seats equal to 50% shall be reserved
for candidates belonging to the Reserved Category. Section 4 of the Act
is as follows:
“Section 4. (1) In every Aided Private Professional Educational
Institution, seats equal to fifty per cent. of the Sanctioned Intake
of each Professional Course shall be reserved for candidates
belonging to the Reserved Category.
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(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/
Percentage of
Category/Class of Reserved
 reservation
Category
__________________________________________________
(1)
Scheduled Castes and Scheduled
13%
Castes converts to Buddhism
(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, list containing Other Backward Classes had been existing
which was issued by the State Government from time to time. By GR
dated 26.09.2008, the State of Maharashtra extended the list of OBC
to include 346 castes. We have already noticed that the Maharashtra
State Reservation (of seats for admission in educational institutions in
the State and for appointments or posts in the public services under the
State) for Educationally and Socially Backward Category (ESBC) Act,
2014 was enacted by the State Legislature which received the assent of
the Governor on
09.01.2015. In the said Act Maratha community was
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declared as Educationally and Socially Backward Category (ESBC).
The implementation of the Act was stayed by the High Court by its
order dated 07.04.2015 passed in Writ Petition No.3151 of 2014 which
continued in operation till the writ petition was dismissed as infructuous
by the impugned judgment. From the Acts 2001 and 2006 as noted above,
it is clear that the percentage of reservation in the State of Maharashtra
in Public Services was 52% whereas percentage of reservation of seats
for admission for SC and ST, De-notified Tribes and Nomadic Tribes
and Other Backward Classes in Private Professional Educational
Institutions was 50% at the time of enactment of Act, 2018. We may
also notice certain relevant provisions of Act LXII of 2018. The Preamble
of the Act reads:
“An Act to provide for reservation of seats for admission in
educational institutions in the State and for reservation of posts
for appointments in public services and posts under the State, to
Socially and Educationally Backward Classes of Citizens (SEBC)
in the State of Maharashtra for their advancement and for matters
connected therewith or incidental thereto.
WHEREAS it is expedient to provide for reservation of seats for
admission in educational institutions in the State and for reservation
of posts for appointments in public services and posts under the
State to Socially and Educationally Backward Classes of Citizens
(SEBC) in the State of
Maharashtra for their advancement and
for matters connected therewith or incidental thereto ; it is hereby
enacted in the Sixty-ninth Year of the Republic of India, as
follows:—”
115. Section 2(1)(j) provides that Socially and Educationally
Backward Classes of Citizens (SEBC) includes the Maratha community.
Section 2(1)(j) is as follows:
“2(1)(j) “Socially and Educationally Backward Classes of Citizens
(SEBC)” includes the Maratha Community declared to be
Educationally and Socially Backward Category (ESBC)in
pursuance of the Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for
appointments or posts in the public services under the State) for
Educationally and Socially Backward Category (ESBC) Act,
2014.”
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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 clause (1) of article 30 of the Constitution of India.
(3) The State Government shall, while entering into or renewing
an agreement with any educational institution or any establishment
for the grant of any aid as provided in the explanation to clauses
(d) and (e) of section 2, respectively, incorporate a condition for
compliance with the provisions of this Act, by such educational
institution or establishment.
(4) For the removal of doubts it is hereby declared that nothing in
this Act shall affect the reservation provided to the Other Backward
Classes under the Maharashtra State Public Services (Reservation
for Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic
Tribes, Special Backward Category and
Other Backward Classes) Act, 2001 and the Maharashtra Private
Professional Educational Institutions (Reservation of seats for
admission for Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward
Classes) Act, 2006.”
117. Section 4 deals with seats for admission in educational
institutions and appointments in public services and posts under the State
or SEBC. Section 4 is as follows:
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“4. (1) Notwithstanding anything contained in any judgment,
decree or order of any Court or other authority, and subject to the
other provisions of this Act,—
(a) sixteen per cent. of the total seats in educational institutions
including private educational institutions, whether aided or un-
aided by the State, other than minority educational institutions
referred to in clause (1) of article 30 of the Constitution of
India ; and
(b) sixteen per cent. of the total appointments in direct
recruitment in public services and posts under the State, shall
be separately reserved for the Socially and Educationally
Backward Classes (SEBC) including the Maratha Community:
Provided that, the above reservation shall not be
applicable to the posts reserved in favour of the Scheduled
Tribes candidates in the Scheduled Areas of the State under
the Fifth Schedule to the Constitution of India as per the
notification issued on the 9th June 2014 in this behalf.
(2) The principle of Creamy Layer shall be applicable for
the purposes of reservation to the Socially and Educationally
Backward Classes (SEBC) under this Act and reservation under
this Act shall be available only to those persons who are below
Creamy Layer.
Explanation.—For the purposes of this sub-section, the
expression “Creamy Layer” means the person falling in the
category of Creamy Layer as declared by the Government in the
Social Justice and Special Assistance Department,
by general or
special orders issued in this behalf, from time to time.”
118. We have already noticed that in the writ petitions filed before
the High Court, Act, 2018 was challenged being invalid and violative of
the provisions of the Constitution of India.
(7) Consideration of 10 Grounds urged for revisiting  and
referring the judgment of Indra Sawhney to a larger Bench.
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.
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120. We shall proceed to consider the grounds given by Shri Mukul
Rohtagi in seriatim which shall also cover the grounds raised by Shri
Sibal.
121. First ground of Shri Rohatgi is that it is only three Judges,
Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai
who held that 50% reservation cannot be breached whereas other six
Judges have held that 50% can be breached, hence, majority opinion in
Indra Sawhney does not hold that 50% is the ceiling limit for reservation.
For considering the above submission we need to notice the opinion
expressed in each of the six judgments delivered in Indra Sawhney’s
case.
122. Before we proceed to notice the relevant paragraphs of the
judgment of Indra Sawhney, we need to first notice method of culling
out the majority opinion expressed in a judgment where more than one
judgments have been delivered. The Constitution Bench of this Court in
Rajnarain Singh vs. Chairman, Patna Administration Committee,
Patna and another, AIR 1954 SC 569, had occasion to find out the
majority opinion of a seven-Judge Bench judgment delivered by this Court
in Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of
Laws)Act, 1947 vs. Part ‘C’ States(Laws) Act, 1950, AIR 1951
SC 332. The Constitution Bench laid down that opinion which
embodies the greatest common measures of the agreement among the
Bench is to be accepted the decision of the Court. Thus, for culling out
the decision of the Court in a case where there are several
opinions, on
which there is greatest common measure of agreement is the decision
of the Court.
123. We now revert back to the judgment of Indra Sawhney to
find out what is the greatest common measures of the agreement between
the Judges with regard to the reservation to the extent of 50%. Justice
B.P. Jeevan Reddy for himself, M.H. Kania, CJ, M.N.Venkatachaliah,
A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation
under Article 16(4). In paragraph 809 conclusion was recorded by the
Court that reservations contemplated under Article 16(4) should not
exceed 50%. In paragraph 810 it was observed that in certain extra-
ordinary circumstances, some relaxation in this strict rule of 50% may
become imperative. Paragraphs 809 and 810 are to following effect:
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
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810. While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen that
in far flung and remote areas the population inhabiting those areas
might, on account of their being out of the mainstream of national
life and in view of conditions peculiar to and characteristical to
them, need to be treated in a different way, some relaxation in this
strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.”
124. Justice S. Ratnavel Pandian while delivering a separate
judgment has expressed his disagreement with the proposition of fixing
the reservation for socially and educationally backward classes at 50%
as a maximum limit. In paragraph 243(9) following was laid down by
Justice Pandian:
“243(9) No maximum ceiling of reservation can be fixed under
Article 16(4) of the Constitution for reservation of appointments
or posts in favour of any backward class of citizens “in the services
under the State”. The decisions fixing the percentage of reservation
only up to the maximum of 50% are unsustainable.”
125. Justice Thommen, Justice Kuldip Singh and Justice R.M.
Sahai took the view that reservation in all cases should remain below
50% of total number of seats. Paragraph 323(8) of Justice Thommen’s
opinion is as follows:
“323(8) Reservation in all cases
must be confined to a minority of
available posts or seats so as not to unduly sacrifice merits. The
number of seats or posts reserved under Article 15 or Article 16
must at all times remain well below 50% of the total number of
seats or posts.”
126. Justice Kuldip Singh also in paragraph 384(i) expressed his
opinion in accord with Justice R.M. Sahai which is as follows:
“384(i) that the reservations under Article 16(4) must remain below
50% and under no circumstance be permitted to go beyond 50%.
Any reservation beyond 50% is constitutionally invalid.”
127. Justice R.M. Sahai in paragraph 619(i) held that reservation
should in no case exceed 50%. Justice T.K. Thommen, Justice Kuldip
Singh and Justice R.M. Sahai delivered dissenting opinion.
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128. Now, we come to the judgment delivered by Justice P.B.
Sawant who delivered concurring opinion. Two paragraphs of the
judgment of Justice Sawant are relevant to notice. In paragraph 518
justice Sawant observed that there is no legal infirmity in keeping the
reservations under clause(4) alone or under clause (4) and clause (1) of
Article 16 together, exceeding 50%. However, validity of the extent of
excess of reservations over 50% would depend upon the facts and
circumstances of each case. In the same paragraph Justice Sawant,
however, observed that it would ordinarily be wise and nothing much
would be lost, if the intentions of the Framers of the Constitution and the
observations of Dr. Ambedkar, on the subject be kept in mind. Justice
Sawant obviously referred to speech of Dr. Ambedkar dated 30.11.1948
where Dr. Ambedkar has categorically stated that reservation under
Article 16(4) shall be confined to minority of seats. However, in paragraph
552 justice Sawant has recorded his answers and in answer to Question
No.4 following was stated:
“552........
Question 4:
Ordinarily, the reservations kept both under Article 16(1) and 16(4)
together should not exceed 50 per cent of the appointments in a
grade, cadre or service in any particular year. It is only for
extraordinary reasons that this percentage may be exceeded.
However, every excess over 50 per cent will have to be justified
on valid grounds which grounds will have to be specifically made
out.”
129. The above opinion of Justice Sawant is completely in accord
with the opinion expressed by Justice B.P. Jeevan Reddy in paragraphs
809 and 810. The opinion of Justice Sawant expressed in the above
paragraph is that ordinarily, the reservations under Article 16(1) and
16(4) should not exceed 50% and it is only in extra-ordinary
circumstances that this percentage may be exceeded which is also the
opinion expressed by Justice B.P. Jeevan Reddy. Applying the principle
of Constitution Bench of this Court in Rajnarain Singh (supra), the
opinion embodies the greatest common measure of agreement between
the opinions expressed. Thus, the majority opinion, the ratio of judgment
of Indra Sawhney as expressed by the majority is one which is expressed
in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.
The submission of Shri Mukul Rohtagi cannot be accepted that majority
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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 Singh and Justice Sahai
in their separate opinion held that reservation under Article
16(4) should not exceed 50%.
131. Thus greatest common measure of agreement in six separate
judgments delivered in Indra Sawhney is that:
(i)
Reservation under Article 16(4) should not exceed 50%.
(ii)
For exceeding reservation beyond 50% extraordinary
circumstance as indicated in paragraph 810 of the judgment
of Justice Jeevan Reddy should exist, for which extreme
caution is to be exercised.
132. The above is the ratio of Indra Sawhney judgment.
133. We, thus, do not find any good ground to revisit Indra
Sawhney or to refer the same to a larger Bench on the above ground
urged.
134. Now, we come to the second ground pressed by Shri Rohtagi
is that different Judges from 1993 till date have spoken in different voices
with regard to reservation under Article
15(4) and 16(4) which is a good
ground to refer Indra Sawhney to a larger Bench.
135. We may notice the Constitution Bench judgment of this Court
in M.R. Balaji and others vs. State of Mysore and others, AIR
1963 SC 649, in which this Court while considering Article 15(4) had
laid down that reservation under Article 15(4) ordinarily, speaking
generally and in a broad manner special provision should be less than
50%, how much less than 50% would depend upon the prevailing
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circumstances in each case. The Constitution Bench in the above case
was considering the challenge to order passed by the State of Mysore
that 68% of the seats available for admission to the Engineering and
Medical Colleges and to other technical institutions were reserved and
only 32% remain available to the merit pool. The question about the
extent of the special provision which would be competent to State to
make under Article 15(4) was also examined by the Constitution Bench.
The Constitution Bench speaking through Justice P.B. Gajendra Gadkar
stated following in paragraph 34:
“34..........A special provision contemplated by Article 15(4) like
reservation of posts and appointments contemplated by Article
16(4) must be within reasonable limits. The interests of weaker
sections of society which are a first charge on the States and the
Centre have to be adjusted with the interests of the community as
a whole. The adjustment of these competing claims is undoubtedly
a difficult matter, but if under the guise of making a special
provision, State reserves practically all the seats available in all
the colleges, that clearly would be subverting the object of Article
15(4). In this matter again, we are reluctant to say definitely what
would be a proper provision to make. Speaking generally and in a
broad way, a special provision should be less than 50%; how much
less than 50% would depend upon the present prevailing
circumstances in each case.”
136. The
Constitution Bench also after noticing the judgment of
this Court in General Manager, Southern Railway, Personnel
Officer(Reservation), Southern Railway vs. Rangachari, AIR 1962
SC 36, observed that what is true in regard to Article 15(4) is equally
true in Article 16(4). Following observations were made in paragraph
37:
“37. ….Therefore, what is true in regard to Article 15(4) is equally
true in regard to Article 16(4). There can be no doubt that the
Constitution-makers assumed, as they were entitled to, that while
making adequate reservation under Article 16(4), care would be
taken not to provide for unreasonable, excessive or extravagant
reservation, for that would, by eliminating general competition in
a large field and by creating wide-spread dissatisfaction amongst
the employees, materially affect efficiency. Therefore, like the
special provision improperly made under Article 15(4), reservation
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made under Article 16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a fraud on the
Constitution. …”
137. The reservation ought to be less than 50% was spoken in the
above Constitution Bench judgment.
138. The next Constitution Bench judgment which noted the
judgment in M.R. Balaji (supra) and applied the percentage of 50% on
the carry forward rule is T. Devadasan. The first judgment in which a
discordant note with regard to 50% limit of reservation was expressed is
the judgment of this Court in State of Kerala and another vs. N.M.
Thomas and others, 1976 (2) SCC 310, In the above case the
Constitution Bench had occasion to examine Rule 13-AA of Kerala State
and Subordinate Services Rules, 1958 which empower the State to grant
exemption for a specific period to any member or member belonging to
Scheduled Castes and Scheduled Tribes from passing the test referred
to in Rule 13 and Rule 13-A. The State of Kerala granted exemption to
member of SC and ST from passing of the test, N.M. Thomas, respondent
had filed writ petition in the High Court asking for declaration that the
Rule 13-AA as unconstitutional. The grievance of the respondent was
that by virtue of exemption granted to members of the SC they have
been promoted earlier than the respondent, although they had not passed
the test. The High Court allowed the writ petition against which judgment
the State of Kerala had come up
in appeal. The appeal was allowed and
Rule 13-AA was held to be valid. The Constitution Bench judgment of
the Court was delivered by Chief Justice, A.N. Ray with whom Justice
K.K. Mathew, Justice M.H. Beg, Justice V.R. Krishna Iyer and Justice
S. Murtaza Fazal Ali concurred by delivering separate opinions. Two
Judges, namely, Justice H.R. Khanna and Justice A.C. Gupta delivered
dissenting opinion. With regard to extent of reservation upto 50% only
two Judges, namely, Justice Fazal Ali and Justice Krishna Iyer has
expressed the opinion. Justice Beg noticed the Constitution Bench
judgments of this Court in M.R. Balaji and T.Devadasan, which had
held that more than 50% reservation for backward class would violate
the principle of reasonableness. No opinion of his own was expressed
by Justice Beg. Justice Fazal Ali also in his judgment had noted 50%
ceiling of reservation but observed that the above is only rule of caution
and does not exhaust all categories. In paragraph 191 Justice Fazal Ali
considered the question and following was laid down:
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“191. This means that the reservation should be within the
permissible limits and should not be a cloak to fill all the posts
belonging to a particular class of citizens and thus violate Article
16(1) of the Constitution indirectly. At the same time clause (4) of
Article 16 does not fix any limit on the power of the Government
to make reservation. Since clause (4) is a part of Article 16 of the
Constitution it is manifest that the State cannot be allowed to
indulge in excessive reservation so as to defeat the policy contained
in Article 16(1). As to what would be a suitable reservation within
permissible limits will depend upon the facts and circumstances
of each case and no hard and fast rule can be laid down, nor can
this matter be reduced to a mathematical formula so as to be
adhered to in all cases. Decided cases of this Court have no doubt
laid down that the percentage of reservation should not exceed
50 per cent. As I read the authorities, this is, however, a rule of
caution and does not exhaust all categories. Suppose for instance
a State has a large number of backward classes of citizens which
constitute 80 per cent of the population and the Government, in
order to give them proper representation, reserves 80 per cent of
the jobs for them, can it be said that the percentage of reservation
is bad and violates the permissible limits of clause (4) of Article
16? The answer must necessarily be in the negative. The dominant
object of this provision is