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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31.12.2020 ` 24.03 crores were spent on 1550 beneficiaries.51 For the
previous years, i.e. 2016-17 to 2019-2020, the total allocated budget was
` 131.50 crores, with a total expenditure of ` 127.62 crores, on 6676
beneficiaries.52
49. Similar pre-matric and post-matric scholarships are also
available to ST students. At the state level too, various such scholarship
schemes are made available to SC and ST students, and students
belonging to minority communities and backward classes.53 Similar pre-
matric and post-matric scholarships are also available to ST students. At
the state level too, various such scholarship schemes are made available
to SC and ST students, and students belonging to minority communities
and backward classes.54 In respect of the post-matric scholarship for
ST students, for the financial year 2020-21, an amount of ` 1833 crores
was budgeted, out of which ` 1829.08 crore was released.55 For the
pre-matric scholarship for ST students, for the financial year 2020-21,
an amount of ` 250 crores was budgeted, out of which ` 248.9 crores
were released.
50. Under the Central Scholarship Scheme of Top-Class for ST
students, in the year 2020-2021, a total budget of ` 29.31 Crores was
allocated, out of which ` 20 Crore was disbursed among 2449 (1973
male and 512 female) beneficiaries.56 In the year 2019-2020, a total
budget of ` 20 Crores was allocated, with disbursement of ` 19.1 Crores
to 1914 beneficiaries.57 The State of Telangana had the
highest number
of beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradesh
at 147. The States of Chattisgarh and Madhya Pradesh had 69 and 49
beneficiaries respectively.58
51 Annual Report, 2020-2021, pg. 68, Department of Social Justice & Empowerment,
Ministry of Social Justice and Empowerment, available athttp://socialjustice.nic.in/
writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed on
23.04.2021)
52 Ibid
53See generally, https://pib.gov.in/PressReleaseP age.aspx?PRID=1593767 (Last
accessed on 21.04.2021).
54 See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767(Last accessed
on 21.04.2021).
55 Post-Matric Scholarship, Ministry of Tribal Affairs, data available at
https://dashboard.tribal.gov.in/(Last accessed on 23.04.2021).
56 Ibid.
57 Ibid.
58 Ibid.
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51. Under the National Fellowship Scheme for ST students (at
higher levels of education such as Ph.D., M.Phil), an amount of ` 90.78
Cr was disbursed to 2525 fellowship scholars.59 Under the National
Overseas Scholarship for ST students, for post-graduate study abroad,
in the year 2020-21, an amount of ` 4.76 crore was disbursed to 30
beneficiaries.60
52. In respect of Other Backward Classes (OBCs), central
government pre-matric and post-matric (Class 11-12th and above) are
available, for students whose parents’/guardian’s income from all sources
does not exceed ` 2.5 lakhs. Under the pre-matric scholarship, ` 100/-
per month for 10 months is given to day scholars and ` 500/- per month
for 10 months is given to hostellers. For the year 2020-2021 (as on
31.12.2020) a total budget of ` 175 crore was allocated, out of which
` 118.09 crore was provided to 200 lakh beneficiaries. In the previous
years, from 2015-16 to 2019-20, a total of ` 759.9 crore was allocated,
out of which ` 701.42 Crores was released to 463.08 lakh beneficiaries.61
53. Under the post-matric scholarship for OBCs, for the year
2020-2021, a total budget of ` 1100 crore was allocated, out of which, `
802.27 crores were provided to 80 lakh beneficiaries. In the previous
years, from 2015-16 to 2019-20, a total budget of ` 5,035.75 crore was
allocated, out of which ` 4,827.89 crore was released for 207.96 lakh
beneficiaries.62
54. A national fellowship is
also available to OBC students at the
degree levels of M.Phil and Ph.D. Fellowships are awarded to research
students, at ` 31,000 per month for junior research fellows and at
` 35,000 per month for senior research fellows. Under this fellowship,
for the year 2020-21, a budget of ` 45 crore was allocated, out of which
` 18 crore is expected to be provided to 2900 anticipated beneficiaries.
In the previous years, from 2016-17 to 2019-20, ` 149.5 crore was
allocated, out of which approx. ` 154 crore was provided to 7,200
beneficiaries (5,100 provisional).63
59 Ibid.
60 Ibid.
61 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry
of Social Justice and Empowerment, p. 104-105, available at http://socialjustice.nic.in/
writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf(Last accessed on
23.04.2021).
62 Ibid., at p. 105.
63 Ibid., at p. 107-108.
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55. A report of the NITI Aayog64, based on data from the 2001
Census, analysed that the gap between literacy rates of the general
population and that of the SC population had not reduced over the years.
The rate of school drop-outs was seen as a crucial indicator of lack of
educational development. The dropout rates for SC children were seen
to be very high – 32.7% in Classes I to V; 55.2% in Classes I to VIII;
and 69.1% in classes I to X in 2004–05. The gap between the SC
population and the general category was seen to increase at higher levels
of schooling. Data on dropout rates for ST students in the year 2006-07
shows that the primary level (Class I-V), 33.2% ST students drop out.
At the elementary level (Class I – VIII), this increases to 62.5%, while
at the secondary level (Class I- X), the drop-out rate is 78.7%.65 For the
same time frame, the drop out rates for SC students at the primary level
was 36%; at the elementary level, 53.1%; and at the secondary level,
69%.66According to the Annual Report (Periodic Labour Force Survey)
for the year 2018-19, the literacy rate for age 7 and above was 69.4%
for STs, 72.2% for SCs, 77.5% for OBCs, and 85.9% for others.67
56. This data makes a case for an intensive study into diverse
areas such as the adequacy or otherwise of scholarships, quantum
disbursed, eligibility criteria (the maximum family income limit of
` 2,50,000/- possibly excludes large segments of beneficiaries, given
that even Group D
employment in the Central Government can result in
exclusion of any scholarships to children of such employees), and
reconsideration about introducing other facilities, such as incentivising
scholarships, grants and interest free or extremely low interest education
loans to widen the net of recipients and beneficiaries. States and the
Union government may also revisit the threshold limits and their tendency
to exclude otherwise deserving candidates. For instance, even if an SC/
64 Available at https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/11th/
11_v1/11v1_ch6.pdf (Last accessed on 21.04.2021).
65 Reports and Publications, Ministry of Statistics and Program Implementation, available
athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /
c s o _ r e s e a r c h _ a n d _ p u b l i c a t i o n _ u n i t / C O S I O I E S I O T S D V O L - 2 /
Pages%20from%20educations-1.13.pdf (Last accessed on 22.04.2021).
66 Reports and Publications, Ministry of Statistics and Program Implementation, available
athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /
c s o _ r e s e a r c h _ a n d _ p u b l i c a t i o n _ u n i t / C O S I O I E S I O T S D V O L - 2 /
Pages%20from%20educations-1.12.pdf (Last accessed on 22.04.2021).
67 Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at http://
m o s p i . n i c . i n / s i t e s / d e f a u l t / f i l e s / p u b l i c a t i o n _ r e p o
r t s /
Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last accessed on 22.04.2021).
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ST or SEBC household has an income of ` 6,00,000/- year, the denial of
scholarship to a deserving student from that background cannot equate
her or him with another candidate, whose family income might be four
times that amount, and who might be able to pay annual fees for medical
education, in private educational institutions. In other words, there needs
to be constant scrutiny, review and revision of these policies and their
effectiveness, besides the aspect of increasing funding, etc.
The wider possibilities of affirmative action- USA, South Africa
and Canada
The US Experience
57. In the US, in Fullilove v. Klutznick,68  the US Supreme Court
rejected a challenge to the constitutionality of a federal law demanding
preferential treatment of minority-owned businesses through a racial
quota system. The challenged law69 prescribed pre-conditions for receipt
of state and local government public works grants upon the private entity’s
assurance that at least 10% of the amount of each grant would be spent
on contracts with minority business enterprises (MBEs). Public contracts
normally were awarded to the lowest bidder; the provision operated to
grant public works contracts to the lowest bidder who complied with the
10% set-aside (quota) goal. The executive policy framed pursuant to
the Act imposed upon those receiving grants and their prime contractors
an affirmative duty to seek out and employ available, qualified, and
bona
fide MBEs. As the objective of the MBE provision was to overcome
longstanding barriers to minority participation in public contracting
opportunities, the set-aside provision i.e. condition favoured a higher MBE
bid as long as the higher price reflected inflated costs resulting from past
disadvantage and discrimination. The administrative program therefore
authorized the Economic Development Agency to waive the minority
participation requirement where a high minority business bid is not
attributable to the present effects of past discrimination. The plaintiffs in
Fullilove were non-minority associations of construction contractors and
subcontractors. They alleged that enforcement of the Public Works Act’s
MBE requirement caused economic injury to the non-minority business
plaintiffs. In addition, the plaintiffs asserted that the MBE 10% quota
provision violated the equal protection clause of the fourteenth amendment
and the equal protection element of the due process clause of the fifth
amendment.
68 448 U.S. 448 (1980).
69 Section 103(f)(2), Public Works Employment Act of 1977
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58. The US Supreme Court held that the interference with the
business opportunities of non-minority firms caused by the 10% set-
aside program did not render the Act constitutionally defective. The Court
rejected the alleged equal protection violation on the grounds that the
Act ensured equal protection of the laws by providing minority businesses
an equal opportunity to participate in federal grants. The later decision
Adarand Constructors, Inc. v. Penal70 held that federal affirmative
action programs are now subject to strict scrutiny, just as state and local
programs were since 1989. The court held that “federal racial
classifications, like those of a state, must serve a compelling
governmental interest, and must be narrowly tailored to further that
interest.”
South Africa
59. Under South Africa’s Constitution of 1998, Chapter 2, Article
9(3) dealing with “Equality” reads thus:
“The state may not unfairly discriminate directly or indirectly
against any one on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth”.
Chapter 10 says that public administration “must be broadly
representative of the South African people, with objectivity
[and] fairness,” and it needs “to redress the imbalances of
the past to achieve broad representation”.
60. In furtherance of these provisions, in October 1998, the
Employment
Equity Act was legislated. The Act starts with the premise
that “pronounced disadvantages” created by past policies cannot be
redressed by a simple repeal of past discriminatory laws, and there was
a need to enforce “employment equity to redress the effects of
discrimination,” and “achieve a diverse workforce broadly
representative” of the people of South Africa. The Act has two purposes:
(1) to promote “equal opportunity and fair treatment in employment
through the elimination of unfair discrimination,” and (2) to implement
“affirmative action measures to redress the disadvantages in
employment experienced by designated groups, in order to ensure
their equitable representation in all occupational categories and
70 515 U.S. 200 (1995)
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levels in the workforce.” Designated groups are defined as black people
(who include Africans, Coloureds and Indians), women, and people with
disabilities.
61. Affirmative action measures for designated groups must include
identification and removal of barriers adversely affecting them, actions
to further diversity, reasonable accommodations to ensure equal
opportunity and equitable representation, and efforts at training to retain
and develop them. Representation is extended to all occupational
categories and levels in the workforce and this is to be ensured through
preferential treatment and numerical goals, but not with quotas. The
Employment Equity Plan itself must state the objectives to be achieved
each year, the affirmative action measures with timetables and strategies
to be implemented to accomplish them, and the procedure to evaluate
the plan. Each plan ought not to be for a period of less than one year, and
not longer than five years. (At the expiration of one plan, another may
follow.) While preferential treatment is meant for only suitably qualified
people, such suitability may be a product of formal qualifications, prior
learning, relevant experience, or capacity to acquire, within a reasonable
time, the ability to do the job.
62. Under the Employment Equity Act, employers must consult
with their employees and representative trade unions, after which an
audit of employment policies and practices in the
workplace must be
undertaken. Analysis of the information garnered in the audit is meant to
assist in developing demographic profiles of the work force, and identifying
barriers to the employment or advancement of designated groups. Under-
representation of designated groups in all categories of work must also
be identified. Quotas are expressly prohibited under Section 15(3) of the
Act. In 2003, the Black Economic Empowerment Act was legislated.
This Act has as its purpose the “economic empowerment of all black
people, including women, workers, youth, people with disabilities
and people living in rural areas”. To measure compliance with black
economic empowerment (BEE) requirements, the Department of Trade
and Industry uses a balanced scorecard, consisting of three broad
components. The scorecard will be used for government procurement,
public-private partnerships, sale of state-owned enterprises, when licenses
are applied for, and for any other relevant economic activity. Strategies
aimed at levelling the playing field may include the elimination of
employment barriers such as adapting testing requirements to compensate
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for educational disadvantage or lack of work experience71; reviewing
recruitment, selection and promotion procedures to ensure fairness in
job competition72; accelerated and corrective training; and the
transformation of work environments that exclude or otherwise
disadvantage designated groups, e.g. measures aimed at integrating career
and family responsibilities73 (flexible work schedules, child care structures,
facilitating career breaks, etc).
Canada
63. In Canadian National Railway Co v. Canada (Canadian
Human Rights Commission)74, Dickson J. reasoned that the purpose of
an affirmative action programme is to break a continuing cycle of
systemic discrimination. The goal is not to compensate past victims or
even to provide new opportunities for specific individuals who have been
unfairly refused jobs or promotion in the past, but to ensure that future
applicants and workers from the affected groups will not face the same
insidious barriers that blocked their forebears.
64. In Ontario (Human Rights Commission) v Ontario (Ministry
of Health)75, the Ontario Court of Appeal interpreted the affirmative
action provisions of the Ontario Human Rights Code 1990 and the
Canadian Human Rights Act 1985, to reinforce the important insight
that substantive equality requires positive action to ameliorate the
conditions of disadvantaged groups. One of the important purposes of
the provisions is to protect affirmative action programmes from being
challenged as
violating the formal equality provisions contained elsewhere
in the Code or Act. Affirmative action, according to the court, is aimed
at
“achieving substantive equality by enabling or assisting
disadvantaged persons to acquire skills so that they can
compete equally for jobs on a level playing field with those
71 Durban City Council (Physical Environment Service Unit) v. Durban Municipal
Employees’ Society (DMES) (1995) 4 ARB 6.9.14.
72 Durban Metro Council (Consolidated Billing) v. IMATU obo Van Zyl and Another
(1998) 7 ARB 6.14. 1.
73 Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1996] 1 CMLR 175 (ECJ) at
181.
74 [1987] 1 SCR 1114 at 1143.
75 (1994) 21 CHRR (Ont CA) D/259 at D/265, quoting with approval Sheppard
‘Litigating the relationship between equity and equality’ (Study paper of the Ontario
Law Reform Commission) Toronto (1993) 28.
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who do not have the disadvantage. The purpose of s. 14(l) is
not simply to exempt or protect affirmative action programs
from challenge. It is also an interpretative aid that clarifies
the full meaning of equal rights by promoting substantive
equality”.76
Possibilities for Affirmative Action other than Reservation in
India
65. The US practice of encouraging diversity by incentivising it
by for instance, the award of government contracts to firms that have a
good record of recruiting members from racially or ethnically
disadvantaged groups, has found echo in policies in Madhya Pradesh.
Other States such as UP, Bihar, Karnataka, AP and Telangana have
followed a policy of affirmative action in awarding contracts and in that
manner protecting SC and ST entrepreneurs’ entry into trade, business
and other public works as contractors. Recently, Karnataka enacted a
legislation, namely, the Karnataka Transparency in Public Procurement
(Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts
in all Government works, public contracts up to ` 50 lakh. This law aims
to ensure the presence of SC and ST contractors and to get the award
of Government work without rigid tender process. Orissa, too provides
for a price preference to SC/ST entrepreneurs to the extent of 10% of
contracts of a certain value.
66. There is empirical evidence, in India, in different sectors that
access to productive employment is confined to a
few sections of the
workforce, among the most backward of classes, while the rest eke out
a living in the informal economy. The faultlines of division between those
who are employed in good jobs and those who are “excluded” run deep,
and are based on caste, religion, region, and other sectarian divisions all
of which overlap with class and gender, such that even within the small
section of the workforce which is productively employed in decent jobs,
some groups are better represented than others, placed higher than others,
while some castes and communities are practically absent in the top
echelons of the private corporate sector. While private employers firmly
believe that jobs should be allocated on the basis of individual merit,
their views about how merit is distributed overlaps strongly with existing
stereotypes around caste, religion, gender and regional differences.
76 (1994) 21 CHRR (Ont CA) D/259 at D/265.
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67. A method by which the private sector can substantively
contribute to alleviate discrimination and inequality, is through its corporate
social responsibility (CSR) programmes. CSR has been compulsory in
India since 2013. These initiatives have taken two major forms: education
of the under-privileged either through special schools or other programmes
to support school-going children, and support to poor women through
home-based work or micro-finance. While these measures are significant,
there are other spheres where CSR could be directed, with even greater
benefits. The definition and scope of CSR needs to be broadened to
include measures to counteract the natural tendencies towards exclusion
of certain groups. Private sector managements need to show sensitivity
to societal patterns of exclusion and must consciously make an attempt
not to fall prey dominant social stereotypes, which penalize people due
to their birth into stigmatizing jobs, even if they might be individually
qualified and competent.
68. In addition to being sensitized to the problem of under-
representation at the time of employment (by actively pursuing policies
to promote and/or by equal opportunity employment policies), private
companies can also pay attention to supplier diversity in matters of
procurement. By encouraging supplies from firms owned by SCs, STs,
or those from backward class or deprived classes, the large organized
private sector in India could give a huge boost to
the micro, medium and
small enterprises owned by entrepreneurs from such marginalized groups.
Indeed, this is also one of the planks used in the USA, for instance,
where minority-owned businesses are not only given active financial
incentives by the government, but larger firms are expected to source a
part of their supplies from minority-owned businesses. Given that
typically, SC, ST and backward class individuals owned micro enterprises
are likely to employ greater proportion of persons from these communities
(as compared to enterprises owned by upper-caste groups), an active
supplier diversity programme would also boost employment.
69. In view of all these developments, it is time that the states and
the Union government gather data about the extent and reach of the
existing schemes for employment, and in the field of education, take
steps to ensure greater access, by wherever necessary, increasing funding,
increasing the number and extent of coverage of scholarships, and setting
up all manner of special institutions which can train candidates aspiring
for higher education, to increase their chances of entry in admission
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tests, etc. Likewise, innovative employment incentives to the private
sector, especially in the manner of employment in contracts or projects
awarded by the state or its instrumentalities, need to be closely examined
and implemented. These welfare measures can also include giving tax
incentives to schemes that fund scholarships and easy (or interest free)
loans to SC, ST and SEBC students, which can enhance their access to
educational institutions. Today, even if an SC, or SEBC candidate secures
admission in a common entrance examination for a medical seat, in a
private institution, the amounts charged as annual fees would exclude
most of such candidates (even those who are ineligible to government
scholarships, as being marginally above the threshold of ` 2,50,000/- per
annum annual family income). Other incentives, such as awarding marks
while evaluating private entities for the purpose of public tenders, and
giving them appropriate scores or advantage, if their workforce employs
defined percentages of SC/ST or SEBC individuals, etc. too would make
a substantial difference.
Re Point No (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?
and Re Point No (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?
70. I agree, with respect, with the reasoning and conclusions of
Ashok Bhushan, J. on the above two points of reference and have nothing
to add.
Re: Point No. 4 Whether Article 342 of the Constitution
abrogates State power to legislate or classify in respect of “any
backward class of citizens” and thereby affect the federal policy/
structure of the Constitution of India? And
Point No. 5 Whether, States’ power to legislate in relation to
“any backward class” under Articles 15(4) and 16(4) is anyway
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abridged by Article 342(A) read with Article 366(26c) of the
Constitution of India?
I.Relevant provisions in consideration
71. Both the above points of reference, by their nature, have to be
and therefore, are considered together. The Constitution (123rd
Amendment) Bill, 2017, after its passage became the Constitution (One
Hundred and Second Amendment) Act, 2018; it received the assent of
the President of India and came into force on 15.08.2018. The amendment
inserted Articles 338B and 342A. These are reproduced below:
“338B. (1) There shall be a Commission for the socially and
educationally backward classes to be known as the National
Commission for Backward Classes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice-
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
of the Commission shall be appointed by the President by
warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission— (a) to investigate
and monitor all matters relating to the safeguards provided
for the socially and educationally backward classes under
this Constitution or under any other law for the time being in
force or under any order of the Government and to evaluate
the working of such safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the socially and
educationally backward classes;
(c) to participate and advise on the socio-economic
development of the socially and educationally backward
classes and to evaluate the progress of their development
under the Union and any State;
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(d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
(e) to make in such reports the recommendations as to the
measures that should be taken by the Union or any State for
the effective implementation of those safeguards and other
measures for the protection, welfare and socio-economic
development of the socially and educationally backward
classes; and
(f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the
socially and educationally backward classes as the President
may, subject to the provisions of any law made by Parliament,
by rule specify.
(6) The President shall cause all such reports to be laid before
each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for
the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any
matter with which any State Government is concerned, a copy
of such report shall be forwarded to the State Government
which shall cause it to be laid before the Legislature of the
State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of
any of such
recommendations.
(8) The Commission shall, while investigating any matter
referred to in sub-clause (a) or inquiring into any complaint
referred to in sub-clause (b) of clause (5), have all the powers
of a civil court trying a suit and in particular in respect of the
following matters, namely:—
(a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
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(d) requisitioning any public record or copy thereof from any
court or office;
(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule,
determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting the socially
and educationally backward classes.”
xxxxxx
xxxxxx
xxxxxx
“342A. (1) The President may with respect to any State or
Union territory, and where it is a State, after consultation
with the Governor thereof, by public notification, specify the
socially and educationally backward classes which shall for
the purposes of this Constitution be deemed to be socially
and educationally backward classes in relation to that State
or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the
Central List of socially and educationally backward classes
specified in a notification issued under clause (1) any socially
and educationally backward class, but save as aforesaid a
notification issued under the said clause shall not be varied
by any subsequent notification.”
72. Article 366(26C), which defined “socially and educationally
backward classes “too was inserted; it is reproduced below, for the sake
of reference:
‘366. Definitions.-In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say-
(1) ….
xxxxxx
xxxxxx
xxxxxx
(26C) “socially and educationally backward classes” means
such backward classes as are so deemed under article 342A
for the purposes of this Constitution;’
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73. The Bill which was moved in Parliament by which the
102ndamendment was introduced, interalia, stated as follows:
“STATEMENT OF OBJECTS AND REASONS
xxxxxx
   xxxxxx
xxxxxx
2.  Vide the Constitution (Eighty-ninth Amendment) Act, 2003,
a separate National Commission for Scheduled Tribes was
created by inserting a new article 338A in the Constitution.
Consequently, under article 338 of the Constitution, the
reference was restricted to the National Commission for the
Scheduled Castes. Under clause (10) of article 338 of the
Constitution, the National Commission for Scheduled Castes
is presently empowered to look into the grievances and
complaints of discrimination of Other Backward Classes also.
3.  In the year 1992, the Supreme Court of India in the matter
of Indra Sawhney and others Vs. Union of India and others
(AIR 1993, SC 477) had directed the Government of India to
constitute a permanent body for entertaining, examining and
recommending requests for inclusion and complaints of over-
inclusion and under-inclusion in the Central List of Other
Backward Classes. Pursuant to the said Judgment, the
National Commission for Backward Classes Act was enacted
in April, 1993 and the National Commission for Backward
Classes was constituted on 14th August, 1993 under the said
Act. At present the functions of the National Commission for
Backward Classes is limited to examining the requests for
inclusion of any class of
citizens as a backward class in the
Lists and hear complaints of over-inclusion or under-inclusion
of any backward class in such lists and tender such advice to
the Central Government as it deems appropriate. Now, in order
to safeguard the interests of the Socially and Educationally
Backward Classes more effectively, it is proposed to create a
National Commission for Backward Classes with constitutional
status at par with the National Commission for Scheduled
Castes and the National Commission for Scheduled Tribes.
4.  The National Commission for the Scheduled Castes has
recommended in its Report for 2014-15 that the handling of
the grievances of the Socially and Educationally Backward
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Classes under clause (10) of article 338 should be given to
the National Commission for Backward Classes.
5.  In view of the above, it is proposed to amend the Constitution
of India, inter alia, to provide the following, namely:—
(a) to insert a new article 338 so as to constitute the National
Commission for Backward Classes which shall consist of a
Chairperson, Vice-Chairperson and three other Members. The
said Commission will hear the grievances of Socially and
Educationally Backward Classes, a function which has been
discharged so far by the National Commission for Scheduled
Castes under clause (10) of article 338; and
(b) to insert a new article 342A so as to provide that the
President may, by public notification, specify the Socially and
Educationally Backward Classes which shall for the purposes
of the Constitution be deemed to be Socially and
Educationally Backward Classes.”
II. Contentions of parties
74. The appellants argue that the Maharashtra SEBC Act (which
was enacted and brought into force on 30.11.2018), could not have been
enacted, and is clearly void. It is argued that on a plain reading of Article
342A read with Article 366(26C), it is clear that States were denuded of
their power to identify backward classes and the task was to be performed
exclusively by the National Commission for Backward Classes set up
under Article 338B (hereafter “NCBC”). Mr. Arvind Datar, Mr. Shyam
Divan and Mr. Gopal Sankaranarayanan, learned senior counsel
emphasized that the expression “for the purposes of this Constitution”
under Article 366(26C) and Article 342A(1) can only imply that the
States’ jurisdiction and power to identify a community as a backward
class stood denuded. Consequently, it is only upon the recommendation
of the NCBC that any community can henceforth be included in the list
of SEBCs. It was submitted that by virtue of Article 342A, even the
Union or the Central Government ceases to have any power to modify,
add to or delete from the list so notified under Article 342A(1). It is
Parliament alone which can make such modification, deletion or alteration.
The term ‘Central List’ in Article 342(2) is not the list published by the
Union for the affairs of the Union. The Constitution has used the word
“Union” wherever the reference is made to the Government of India or
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Central Government, i.e., Articles 53, 73, 79, 309, List I of Schedule VII
whereas the word ‘Central Government’ has been used recently in certain
amendments which is not the expression used in the Constitution originally
adopted. Thus, the reference to “Central List” means only the List in
relation to states and union territories, for the purpose of the Constitution
notified under Article 342A (1).
75. Learned senior counsel argued that the decision in Indra
Sawhney (supra)77 had required the setting up of permanent
Commissions for identifying communities or castes such as backward
classes to enable their notification by their respective governments. In
the light of this recommendation and having regard to the principal existing
provision under Article 340, Parliament had enacted the National
Commission for Backward Classes Act, 1993 (hereafter “the NCBC
Act”). That enactment used the expression, “Central list” in Section
2(c)78.
76. Learned counsel for the appellants submitted that while
amending the Constitution, the expression “Central List” meant the List
to be published by the President on the aid and advice of the Council of
Ministers, after consultation with the Governors, i.e., the aid and advice
of the State Governments. Thus, having regard to plain language of Article
366(26C) and Article 342A as well as the provisions in Article 338B (7),
(8) and (9), there is no question of the State Governments or State
Legislatures retaining any power to identify backward classes. That
power is with the President.
77. It was submitted by Mr. Gopal Sankaranarayan, learned senior
counsel that the object which impelled the Constitution
(102ndAmendment) Act, 2018 appears to be to set up a national body for
evolving scientific criteria of uniform application with regard to the
identification of communities as backward classes. It was submitted
that the frequent demands by various communities to be included in the
list of backward classes to garner/gain access to State funded institutions
and for public employment meant that States either succumb to such
77 Paras 847, 855 (c) and 859 (13)- SCC report.
78 Defined as “lists”means lists prepared by the Government of India from time to time
for purposes of making provision for the reservation of appointments or posts in
favour of backward classes of citizens which, in the opinion of that Government, are not
adequately represented in the services under the Government of India and any local or
other authority within the territory of India or under the control of the Government of
India;
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pressure or apply ad-hoc criteria and set up ad-hoc bodies which did
not or could not consider issues in a dispassionate and holistic manner.
Learned counsel relied upon the decision of this Court in Ram Singh
&Ors. v. Union of India (supra)79 to say that demands made by such
communities led to States providing special reservation, which became
the subject matter of judicial scrutiny.
78. Learned counsel also referred to agitations for inclusion of
communities in other States such as Rajasthan which also led to repeated
litigation. It was, therefore, argued that to avoid these instances, and to
ensure that a national standard for considering the relevant indicia for
backwardness is constitutionally applied, an amendment to the
Constitution was made. Learned counsel urged that the position adopted
by the States, i.e., that they were not denuded of executive and legislative
power and that the amendment only sought to give additional constitutional
status to the existing NCBC is unfounded. It was pointed out that before
the coming into force of the Constitution (102ndAmendment) Act, 2018,
Article 340 existed under the original Constitution. Parliament, in exercise
of its legislative power, enacted the NCBC Act. The NCBC had existed
for 27 years and had conducted surveys and identified several
communities as backward. The lists published by it were in existence
and were in use by the Central Government for its purposes, including in
public employment.
Undoubtedly, not all communities included in the
States’ lists were part of the NCBC list. However, the list was broadly
common to a large extent. Learned counsel emphasized that there was
no necessity for bringing any constitutional amendment if the new
Commission were to be given constitutional status and the lists published
by it, made binding only on the Central Government which was to acquire
such high degree of status that it could be modified by Parliament alone.
It was submitted that surely, State interference with the Central list did
not warrant such a drastic measure as a constitutional amendment.
79 “54. The perception of a self-proclaimed socially backward class of citizens or even
the perception of the “advanced classes” as to the social status of the “less fortunates”
cannot continue to be a constitutionally permissible yardstick for determination of
backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution.
Neither can any longer backwardness be a matter of determination on the basis of
mathematical formulae evolved by taking into account social, economic and educational
indicators. Determination of backwardness must also cease to be relative; possible
wrong inclusions cannot be the basis for further inclusions but the gates would be
opened only to permit entry of the most distressed. Any other inclusion would be a
serious abdication of the constitutional duty of the State.”
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79. Mr. Sankaranarayanan submitted that although there are
passages in the report of the Select Committee of the Rajya Sabha,
Parliament had discussed the amendment and taken into account the
views of certain individuals; the fact remains that it is the text of the
Constitution as amended, which is to be interpreted. Learned counsel
relied upon the decisions reported as State of Travancore-Cochin v.
Bombay Company Ltd80; Aswini Kumar Ghose & Anr. v. Arabinda
Ghose & Anr.81 and P.V. Narasimha Rao v. State82. He also referred to
the decision in Sanjeev Coke Manufacturing v. Bharat Coking Coal
Ltd. &Anr83.It was submitted that the consistent opinion of this Court
has been the one adopted in Pepper v. Hart84, which permits reference
to the statements made in the House at the time of the introduction of
Bill as an aid to construction of legislation which is ambiguous or obscure,
and not in any other circumstances. It was thus submitted that the
intention of the amendment was to ensure that a uniform standard and
one aware of looking at backwardness in an objective manner, was to
be adopted and applied, for the purposes of the Constitution. This also
was aimed at eliminating the mischief that led to the introduction of
communities as a consequence of protests – having been triggered by
political considerations on the eve of elections.
80. The submissions articulated on behalf of the respondent States
by Mr. Mukul Rohatgi,
Mr. Kapil Sibal, Dr. A.M. Singhvi and Mr.
Naphade, Additional Advocates General and Standing Counsel appearing
on behalf of the various States, was that the interpretation suggested by
the appellants is drastic. It was emphasized that the States’ responsibility
under Article 15(4) and 16(4) to make special provisions including
reservations is undeniable. In the absence of any amendment to these
provisions, learned counsel submitted that the Constitution
(102ndAmendment) Act, 2018 cannot be so interpreted as to denude the
States of their powers altogether. Learned counsel submitted that
pursuant to the recommendations and directions in Indra Sawhney
(supra), not only was the NCBC Act enacted; in addition, different
States also set up permanent commissions to identify communities as
backward classes for the purpose of Constitution. Those Commissions
80 1952 SCR 1112
81 AIR 1953 SC 75
82 (1998) 4 SCC 626.
83 (1983) 1 SCR 1000.
84 1993 (1) All. ER 42.
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were set up in exercise of legislative powers traceable to one or the
other Entry in List II of the Seventh Schedule to the Constitution. The
plenary legislative power of the States remains unaltered. That being
the case, this Court should not accept the appellants’ submission that
Articles 338B and 342A place fetters upon the exercise of such legislative
power as well as executive power of the States.
81. Learned counsel submitted that this Court should closely
examine the contents of the report of the Select Committee of the Rajya
Sabha, and the statements made by the Government, particularly that
the power and jurisdiction of the States would remain unaffected. It was
further urged that this Court can and should and ought to have looked
into the contents of these reports to discern the true meaning and intent
behind the Constitution (One Hundred and Second Amendment) Act,
2018, which was not to disrupt the existing legislative arrangement
between the Centre and the State. In this regard, learned counsel placed
reliance upon the judgment of this Court in Kalpana Mehta and Ors. v.
Union of India and Ors.85, and submitted that the Court can take aid
of reports of Parliamentary Committees for the purpose of appreciating
the historical background of statutory provisions, and also to resolve the
ambiguity in the legislation.
82. It was submitted that if the matter were to be considered in
the true perspective and the report of the Select Committee, examined
as an aid to interpretation of the Constitution (102ndAmendment) Act,
2018, especially Article 342A, it would be apparent that the Parliament
never intended, by the amendment, to disturb the existing order and denude
the States of their executive or legislative power to identity backward
classes while making special provisions under Articles 15(4) and 16(4).
It was submitted that Indra Sawhney (supra) only created a larger
movement for the setting-up of Commissions by the Union and the States.
Learned counsel emphasized that even while identifying the communities
for the purpose of the Central List, the views of the States were always
ascertained. Parliament merely sought to replicate the amendment by
which collection of data has been undertaken under Article 338 (in relation
to SCs). The introduction of Article 338B was in line with the introduction
of Articles 338A and 338 – which enables the setting-up of National
Commissions for Scheduled Castes and Scheduled Tribes(the latter
through another amendment which was brought into force on 19.02.2004).
85 (2018) 7 SCC 1
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83. It was submitted that Articles 366(26C), 338B and 342A(1)
have to, therefore, be read harmoniously in the light of the expression
“Central List” which occurs in Article 342A(2). This would be in keeping
with the debates and assurances held out in the Select Committee report
that States’ power would continue to remain unaffected. It was submitted
that such construction would result in a harmonious interpretation of all
provisions of the Constitution.
84. The learned Attorney General, appearing on account of notice
issued by this Court, urged that the 102nd Amendment did not bring about
a radical change in the power of identification of backward classes, in
relation to states, and that this power continues to remain with states.
He submitted that the comparison by the appellants, with the powers
conferred by Article 338 and the Presidential power under Article 341
and Article 342, is inapt, because those were original provisions of the
Constitution, having a historical background. It was submitted that the
states’ responsibilities to uplift the lot of weaker sections, apparent from
the directive principle under Article 46, is through affirmative policies
under Articles 15(4) and 16(4). To alter this balance, which had existed
from the beginning of the coming into force of the Constitution, is too
drastic, and nothing in the debates leading to the 102nd Amendment, or in
any material, such as the Select Committee
Report, suggests that end.
85. The learned Attorney General also submitted that the object
of the 102nd amendment was to ensure that a commission with
constitutional status would periodically examine the needs of socially
and educationally backward classes (“SEBC” hereafter), and suggest
inclusion or exclusion of such classes, in a list for the purposes of Central
Government, or central public sector corporation employment, and
extension of other benefits under union educational and other institutions,
under Articles 15 (4) and 16 (4). In case such a list is drawn and published
under Article 342A (1), it is only Parliament that has the power to modify
it. This does not, in any manner disturb or take away the states’ power
to identify or include communities as backward classes of citizens for
the purposes of benefits that they wish to extend to them, through state
policies and legislation, or for reservation in state employment under
Article 16 (4). He highlighted that the term “Unless the context
otherwise requires” is the controlling phrase, which precedes the
definition of various terms under Article 366 of the Constitution. Therefore,
if the context is different- as is evident from Article 342A (2), by the use
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of the term “Central List”, that should be given meaning, and the
interpretation based on that meaning should prevail in the construction
of the entire provision (i.e. Article 342A).
86. The learned Attorney General further argued that this court
had specifically recognized the states’ power to identify, make special
provisions, and reservations, in Indra Sawhney. He urged that the 102nd
Amendment was not meant to limit this constitutional obligation of the
states, but rather to streamline the method of identification of socially
and educationally backward class of citizens, for the purpose of central
employment, and centrally funded and sponsored schemes, institutions
and facilities. It was urged that this is apparent from the use of the
expression “Central List” in Article 342A (2), which has to guide the
interpretation of the list referred to in Article 342A (1).
III. Provisions relating to Scheduled Castes and Scheduled
Tribes, in the Constitution of India
87. Before proceeding with the interpretation of the provisions of
the 102nd Amendment, it would be useful to briefly recapitulate the
provisions that existed for the identification of SCs and STs. Before the
Constitution was framed, the Government of India Act, by Section 26
defined SCs86. One Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes systematically, and that list was
made the basis of an order promulgated by the British Government in
India called the
Government of India (Scheduled Castes) Order, 1936.
This court, in one of its decisions noticed that such list became the basis
for the Constitution (Scheduled Castes) Order, 1950.87 Article 338 as
originally enacted, provided for appointment of a special officer for the
SCs and STs to investigate all matters relating to the safeguards provided
for the SCs and STs under the Constitution and to report to the President
on their working. In 1990, this position changed, and the Constitution
(Sixty Fifth) Amendment Act was enacted to create a five-member
commission under Article 338. The statement of objects88 envisioned
that such a commission would be
86 “the scheduled castes”  means such castes, races or tribes or parts of or groups
within castes, races or tribes, being castes, races, tribes, parts or groups, which appear
to His Majesty in Council to correspond to the classes of persons formerly known as
“ the depressed classes”, as His Majesty in Council may specify”
87 Soosai Etc vs Union of India 1985 Supp (3) SCR 242.
88 Statement of Objects and Reasons, Constitution Sixty fifth Amendment Act, 1990
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“a more effective arrangement in respect of the constitutional
safeguards for Scheduled Castes and Scheduled Tribes than
a single Special Officer as at present. It is also felt that it is
necessary to elaborate the functions of the said Commission
so as to cover measures that should be taken by the Union or
any State for the effective implementation of those safeguards
and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes and Scheduled
Tribes.”
88. The composite Commission for SCs and STs was bifurcated
by another amendment- the Constitution (Eighty Ninth Amendment) Act,
2003, which inserted Article 338A, enabling the creation of a commission
exclusively to consider measures and make recommendations for
amelioration of STs. Article 338B has now been introduced through the
102nd amendment, which is in issue.
89. The relevant provisions relating to SCs and STs under the
Constitution are extracted below:
“Article 366
366. Definitions.-In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say-
(1)
xxxxxx
xxxxxx
xxxxxx
(24) “Scheduled Castes” means such castes, races or tribes
or parts of or groups within such castes, races or tribes as
are deemed under Article 341 to be Scheduled Castes for the
purposes of this Constitution;”
(25) “Scheduled Tribes” means such tribes or
tribal
communities or parts of or groups within such tribes or tribal
communities as are deemed under article 342 to be Scheduled
Tribes for the purposes of this Constitution;”
Article 338
338. [National Commission for Scheduled Castes] (1) There
shall be a Commission for the Scheduled Castes to be known
as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and the conditions
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of service and tenure of office of the Chairperson, Vice-
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
of the Commission shall be appointed by the President by
warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission —
(a) to investigate and monitor all matters relating to the
safeguards provided for the Scheduled Castes under this
Constitution or under any other law for the time being in
force or under any order of the Government and to evaluate
the working of such safeguards;
 (b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the Scheduled Castes;
 (c) to participate and advise on the planning process of socio-
economic development of the Scheduled Castes and to
evaluate the progress of their development under the Union
and any State;
 (d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
 (e) to make in such reports recommendations as to the
measures that should be taken by the Union or any State for
the effective implementation of those safeguards and other
measures for the protection, welfare and socio-economic
development of the Scheduled Castes; and
 (f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the
Scheduled Castes as the President may, subject to the
provisions of any law made by Parliament, by rule specify.
 (6) The President shall cause all such reports to be laid before
each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
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recommendations relating to the Union and the reasons for
the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any
matter with which any State Government is concerned, a copy
of such report shall be forwarded to the Governor of the State
who shall cause it to be laid before the Legislature of the
State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of
any of such recommendations.
 (8) The Commission shall, while investigating any matter
referred to in sub-clause (a) or inquiring into any complaint
referred to in sub-clause (b) of clause (5), have all the powers
of a civil court trying a suit and in particular in respect of the
following matters, namely :—
 (a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
 (b) requiring the discovery and production of any documents;
 (c) receiving evidence on affidavits;
 (d) requisitioning any public record or copy thereof from any
court or office;
 (e) issuing commissions for the examination of witnesses and
documents;
 (f) any other matter which the President may, by rule,
determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled
Castes.”
Before the 102nd Amendment Act,
the following sub-Article formed
part of Article 338:
“(10) In this article, references to the Scheduled Castes and
to such other backward classes as the President may, on
receipt of the report of a Commission appointed under clause
(1) of article 340, by order specify and also shall be construed
as including references to the Anglo-Indian community.”
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By the 102nd Amendment Act, the words “and to such other
backward classes as the President may, on receipt of the report of a
Commission appointed under clause (1) of article 340, by order
specify” were deleted89. The other provisions relating to SCs and STs
are as follows:
“338A. National Commission for Scheduled Tribes.—
(1) There shall be a Commission for the Scheduled Tribes to
be known as the National Commission for the Scheduled
Tribes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice-
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
of the Commission shall be appointed by the President by
warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission— (a) to investigate
and monitor all matters relating to the safeguards provided
for the Scheduled Tribes under this Constitution or under
any other law for the time being in force or under any order
of the Government and to evaluate the working of such
safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning
process of socio-
economic development of the Scheduled Tribes and to evaluate
the progress of their development under the Union and any
State;
89 By Section 2 which is as follows:“2. In article 338 of the Constitution, in clause (10),
the words, brackets and figures “to such other backward classes as the President may,
on receipt of the report of a Commission appointed under clause (1) of article 340, by
order specify and also” shall be omitted”.
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(d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
(e) to make in such reports recommendation as to the measures
that should be taken by the Union or any State for the effective
implementation of those safeguards and other measures for
the protection, welfare and socio-economic development of
the Scheduled Tribes; and
(f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the
Scheduled Tribes as the President may, subject to the provisions
of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before
each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for
the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any
matter with which any State Government is concerned, a copy
of such report shall be forwarded to the Governor of the State
who shall cause it to be laid before the Legislature of the
State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of
any of such recommendations.
(8) The Commission shall, while investigating any matter
referred to in sub-clause (a) or inquiring into any complaint
referred to in sub-clause (b) of clause (5), have all the powers
of a civil court trying a suit and in particular in respect of the
following matters, namely:—
 (a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
 (b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
court or office;
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(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule,
determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled
Tribes.]
Article 341
341. Scheduled Castes-(1) The President may with respect to
any State or Union territory, and where it is a State after
consultation with the Governor thereof, by public notification,
specify the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to
that State or Union territory, as the case may be
(2) Parliament may by law include in or exclude from the list
of Scheduled Castes specified in a notification issued under
clause ( 1 ) any caste, race or tribe or part of or group within
any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification
Article 342
342. Scheduled Tribes -(1) The President may with respect to
any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for the purposes
of this Constitution be deemed to be Scheduled Tribes in
relation to that State or Union territory, as the case may be.
(2)
Parliament may by law include in or exclude from the list
of Scheduled Tribes specified in a notification issued under
clause ( 1 ) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied
by any subsequent notification.”
IV. Previous commissions set up to identify SEBCs
90. It would be useful at this stage to recollect that before Indra
Sawhney, two commissions were set up at the national level, to examine
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and make suitable recommendations in respect of identification of other
backward classes. These were the Kaka Kalelkar Commission90 and
the B.P. Mandal Commission91. The Kalelkar Commission, after an
exhaustive survey and study, through its report, identified 2399 backward
groups and recommended several measures for their advancement, as
steps that could be taken by the Union and the states. The Mandal
Commission report identified individuals belonging to 3,743 different castes
and communities, as “backward”.
V. Interpretation of provisions similar to Article 342A- i.e.
Articles 341 and 342 of the Constitution of India
91. The consistent view while interpreting Articles 341 and 342
has been that the power which the Constitution conferred is initially
upon the President, who, after the introduction of the 65th and 89th
Amendments and the insertion of Articles 338 and 338A, is aided in the
task of identification of the SCs and STs, by two separate Commissions,
to include or exclude members claiming to be SCs or STs. The view of
this Court has been that once a determination has been done, no court
can, by interpretive process, or even the executive through its policies,
include members of other communities as falling within a particular class
or described community or even in any manner extend the terms of the
determination under Articles 341 or 342. The power to further include,
or modify contents of the existing list
(of SC/STs) is with Parliament
only [by reason of Article341 (2) and Article 342 (2)] This position has
been consistently followed in a series of decisions. Likewise, in the
interpretation as to which communities are categorized as SCs or STs,
this Court has been definite, i.e. that only such classes or communities
who specifically fall within one or the other lists, that constitute SCs or
such STs for the purpose of this Constitution under Article 366(24) and
Article 366 (25). This has been established in the decision of this Court
in 
Bhaiya 
Lal v. Harikishan 
Singh92; 
Basavalingappa
v Munichinnappa93 and Kishori Lal Hans v. Raja Ram Singh94 The
recent Constitution Bench decision in Bir Singh v. Delhi Jal Board95,
reiterated this position clearly:
90 Set up by the Central Government, in January 1953.
91 Set up by the Central Government on 1 January, 1979.
92 1965 (2) SCR 877.
93 1965 (1) SCR 316.
94 1972 (3) SCC 1.
95 (2018) 10 SCC 312.
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“36. The upshot of the aforesaid discussion would lead us to
the conclusion that the Presidential Orders issued under Article
341 in regard to Scheduled Castes and under Article 342 in
regard to Scheduled Tribes cannot be varied or altered by
any authority including the Court. It is Parliament alone which
has been vested with the power to so act, that too, by laws
made. Scheduled Castes and Scheduled Tribes thus specified
in relation to a State or a Union Territory does not carry the
same status in another State or Union Territory. Any
expansion/deletion of the list of Scheduled Castes/Scheduled
Tribes by any authority except Parliament would be against
the constitutional mandate under Articles 341 and 342 of the
Constitution of India.
********
********
38. It is an unquestionable principle of interpretation that
interrelated statutory as well as constitutional provisions have
to be harmoniously construed and understood so as to avoid
making any provision nugatory and redundant. If the list of
Scheduled Castes/Scheduled Tribes in the Presidential Orders
under Articles 341/342 is subject to alteration only by laws
made by Parliament, operation of the lists of Scheduled Castes
and Scheduled Tribes beyond the classes or categories
enumerated under the Presidential Order for a particular State/
Union Territory by exercise of the enabling power vested by
Article 16(4)would have the obvious effect of circumventing
the specific constitutional provisions in
Articles 341/342. In
this regard, it must also be noted that the power under Article
16(4) is not only capable of being exercised by a legislative
provision/enactment but also by an Executive Order issued
under Article 166 of the Constitution. It will, therefore, be in
consonance with the constitutional scheme to understand the
enabling provision under Article 16(4) to be available to
provide reservation only to the classes or categories of
Scheduled Castes/Scheduled Tribes enumerated in the
Presidential Orders for a particular State/Union Territory
within the geographical area of that State and not beyond. If
in the opinion of a State it is necessary to extend the benefit
of reservation to a class/category of Scheduled Castes/
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Scheduled Tribes beyond those specified in the Lists for that
particular State, constitutional discipline would require the
State to make its views in the matter prevail with the central
authority so as to enable an appropriate parliamentary
exercise to be made by an amendment of the Lists of Scheduled
Castes/Scheduled Tribes for that particular State. Unilateral
action by States on the touchstone of Article 16(4) of the
Constitution could be a possible trigger point of constitutional
anarchy and therefore must be held to be impermissible under
the Constitution.”
VI. Pre-102nd Amendment position in the Constitution in
relation to SEBCs
92. The original Constitution did not contain any special provision
of like manner as Articles 341 and 342. It did not define SEBCs. The
only reference to SEBCs was in Article 340, which enabled the Central
Government to setup a Commission for recommending measures for
the progress and upliftment of backward classes of citizens. That
provision is as follows:
“340. Appointment of a Commission to investigate the
conditions of backward classes
(1) The President may by order appoint a Commission
consisting of such persons as he thinks fit to investigate the
conditions of socially and educationally backward classes
within the territory of India and the difficulties under which
they labour and to make recommendations as to the steps that
should be taken by the Union or any State to remove
such
difficulties and to improve their condition and as to the grants
that should be made for the purpose by the Union or any
State the conditions subject to which such grants should be
made, and the order appointing such Commission shall define
the procedure to be followed by the Commission
(2) A Commission so appointed shall investigate the matters
referred to them and present to the President a report setting
out the facts as found by them and making such
recommendations as they think proper
(3) The President shall cause a copy of the report so presented
together with a memorandum explaining the action taken
thereon to be laid before each House of Parliament”
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93. After the decision of this Court in Champakam Dorairajan
v. State of Madras96, Article 15 was amended and Article 15 (4) was
introduced. The term “socially and educationally backward class of
citizens” was inserted, conferring power upon the State to make special
provisions for their advancement. This term “socially and educationally
backward” has been held to also provide colour the term “backward
class” in the decision in Indra Sawhney – as indeed in the earlier decision
in NM Thomas (supra). This court noticed that ‘backward class’ of
citizens, though wider in context, has to take colour from social
backwardness, which also results in educational backwardness.
94. Indra Sawhney in para 859 (13)97, had issued directions with
regard to the desirability of setting up Commissions by the Central and
State Governments, to ascertain the position and identification of backward
class of citizens, evaluation of rational criteria and periodic review of
such lists. Pursuant to this direction, Parliament introduced the NCBC
Act, 1993. This Act defined ‘Central List’ under Section 2(c). The terms
of this enactment make it clear that the lists of backward class of citizens
prepared by the Commission and recommended to the Central
Government were to be for the purposes of providing reservations in
employment under Article 16(4), and for reservations and other ameliorate
measures that the Central Government can initiate and introduce under
Article 15(4). Acting on
the recommendations of this court, post Indra
Sawhney, several State Governments appeared to have enacted other
laws for setting up commissions for backward class and backward caste
groups98. In four States – Tamil Nadu, Gujarat, Punjab and Haryana, the
Commissions were set up by executive action.
95. This Court had at the earlier part of this section, set out the
provisions of Article 366(26C), Article 338B and Article 342A. The
96 AIR 1951 SC 226.
97 SCC report.
98 The Maharashtra SCBC Act, 2006 is one such institution. The others are Karnataka
State Commission for Backward Classes, 1995; A.P. Commission for Backward Classes
Act, 1995; U.P. State Commission for Backward Classes Act, 1996; Kerala State
Commission for Backward Classes Act, 1993; Madhya Pradesh Rajya
PichdaVargAdhiniyam, 1995; Bihar State Commission for Backward Classes Act, 1993;
Assam Backward Classes Commission Act, 1993; Orissa State Commission for
Backward Classes Act, 1993; West Bengal Commission for Backward Classes Act,
1993; J&K State Commission for Backward Classes Act, 1997; Chhatisgarth Rajya
Pichhda Varga Adhiniyam, 1993 & Telangana Commission for Backward Classes Act,
1993.
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Statement of Objects and Reasons for the introduction of these provisions
– referred to compendiously as the 102nd Amendment – do not indicate
any concrete purpose for the insertion of those provisions, except the
general comment that Parliament wished to confer constitutional status
on the Commission for determination of SEBCs.
VII. The Constitution 123rd Amendment Bill, the 102nd
Amendment Act and report of the Parliamentary Standing
Committee
96. Learned counsel for the respondents as indeed the appellants
referred extensively to the deliberations recorded in and assurances given,
and reflected in the Report of the Select Committee of the Rajya Sabha,
submitted to the Parliament at the time when the 123rd amendment bill
was introduced. A brief reference of this can now be made. The
introduction (to the Report dated (July 2017) disclosed that in all, seven
meetings were held by the Select Committee. The committee comprised
25 members, with a Secretariat of 7 officials. It took note of statements
made by three representatives of the Ministry of Social Justice, two
from the Department of Legal Affairs and three from the Legislative
Department.
97. The Report noted the background of introduction of the 123rd
Amendment Bill including the amendments to Article 338 and the
introduction of Article 338B. It traces the history of the Backward Class
Commissions set up under Article 340, the office memoranda which led
to the
Judgment in Indra Sahwney, as well as the direction by this
Court in that Judgment regarding setting up of commissions. It further
noted the existing legal regime i.e., the NCBC Act, and noted that several
experts felt that there was no change or amendment needed to alter the
existing regime for identification of backward classes. In Para 20 of the
Report, it was noted that in the Fifth Consultation Meeting, the members
had raised the concern as to whether Article 342A(1) would exclude
state consultation. The relevant para reads as follows:
“18. It was also submitted that the powers and functions of
the State Government and the State Backward Classes
Commissions with regard to identification, exclusion and
inclusion of classes in the State List should be clarified.
Further, the process of consultation with the Governor should
also be clarified in the Bill.
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19. In response to the above issues raised, the Ministry
clarified that sub-clause (9) of article 338B does not in any
way interfere with the powers of the State Governments to
prepare their own list. The Committee was further informed
that classes so included in the State Backward Classes List
do not automatically come in the Central List of OBCs.
20. In its fifth meeting representatives/Members raised a
concern about clause (1) of Article 342A, whether the list
would be issued by the President after consultation with the
State Government or consultation with only Governor of the
State. It was clarified by the Ministry that clause (1) of Article
154 and Article 163 of the Constitution clearly state that the
Governor shall act on the advice of the Council of Ministers.
It is also clarified that under the above Constitutional
provisions, the Governor shall exercise his authority either
directly or indirectly through officers of respective State
Government. Article 341 of Constitution provides for
consultation with Governor of State with respect to Scheduled
Castes and Article 342 of the Constitution provides
consultation of President with Governor of State in respect of
Scheduled Tribes. As is the practice, at not time has the State
Government been excluded in the consultation process. It is
always invariably the State Government which recommends
to the President the category of inclusion/exclusion in
Scheduled Castes and Scheduled Tribes. Similar
provision is
provided for in the case of conferring of constitutional status
for backward classes for inclusion in Central list of socially
and educationally backward classes. Consultation with
Governor thereby implies consultation with the State
Government.”
98. In its clause-by-clause consideration of the Bill, the Committee
noted the apprehension with respect to setting up of a new Commission
in Article 342B instead of creating it under Article 340. In this context, a
clarification was issued that Article 340 enabled setting up of adhoc
bodies like the Kaka Kalelkar Commission and Mandal Commission,
whereas Article 338B sought to confer Constitutional status on a multi-
member permanent body. Paras 31-34 of the Report discussed the
membership of the composition of the Commission under Article 338B
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and also whether the NCBC Act would be repealed. Interestingly, Para
47 reflects the discussion regarding an amendment by which new Sub-
Article 10 was proposed to Article 338B. It read as follows:
“47. The Committee discussed the amendment wherein in
article 338B a new sub-clause (10) was proposed to be
inserted. This sub-clause (10) would read as follows:
‘Notwithstanding anything provided in clause 9, the State
Government shall continue to have powers to identify Socially
and Educationally Backward Classes’.
99. The Committee was satisfied, in the Report with the
clarification issued by the concerned Ministry in the following terms:
“48. It was clarified by the Ministry of Social Justice and
Empowerment to the Committee that the proposed amendment
does not interfere with the powers of the State Governments
to identify the Socially and Educationally Backward Classes.
The existing powers of the State Backward Classes
Commission would continue to be there even after the passage
of the Constitution (One Hundred and Twenty-third
Amendment) Bill, 2017.”
100. Para 50-53 (of the Report) set out proposals to amend Article
342A which limited it to making provisions for reservations in
appointments or posts under the Government of India or under the
authority of the Government of India and also consequential amendment
to Article 342A (2). Further, a proposed Article 342A(3) sought to
empower the State Government - i.e. the
Governor which could by public
notification, specify SEBCs for the purposes of reservation of posts under
the State or under any authority of the State. A like amendment was
proposed, i.e., Article 342A (4) that:
“the Governor may on the advice of the State Commission of
Backward Classes include or exclude from the State list of
socially and educationally backward classes specified in a
notification issued under Clause (3)”.
101. The other set of amendments discussed were firstly, to Article
342A(1) that with respect to a State or Union Territory, the President
could make inclusions “with prior recommendation of the State
Government, given due regard to such recommendations”, and
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secondly, for the introduction of Article 342A(3) and (4) enabling the
State to issue public notifications - like in the case of Article 342A(1)
and the consequential amendment thereof through legislation alone, via
proposed Article 342A (4).
102. Other amendments with respect to placing the report of the
Commission under Article 338B before both Houses of Parliament,
consultation with the governor to be based upon advice given to the
governor by the state commission for backward classes, and amendment
of the list under Article 342A (1) being only through a law based upon
recommendations of the Commission under Article 338A and 338B and
also obliging and revision of the list in ten year periods, were suggested.
103. All these were duly considered in the Committee’s Report
and not accepted, stating as follows:
“54. The Ministry, on the amendments moved, clarified that
time bound decadal revision of lists by the proposed
Commission, is a continuous process. The Commission
however, is empowered to enquire into specific complaints
with respect to the deprivation of right and safeguards of the
socially and educationally backward classes.
55. The Ministry clarified that the aspect of reservation of
posts under that State or under any other authority of the
State or under the control of the State, or seats in the
educational institutions within that State was beyond the
purview of the instant Bill and hence the amendments
proposed are not allowed.
56. It was
clarified by the Ministry that clause (1) of article
154 and article 163 of the Constitution clearly state that
Governor shall act on the advice of the Council of Ministers.
It was informed that under the above Constitutional provisions
the Governor shall exercise his authority either directly or
indirectly through officers of respective State Government.
Article 341 of Constitution provides for consultation by the
President with Governor of State with respect to Scheduled
Castes and article 342 of the Constitution provides
consultation by the President with Governor of State in respect
of Scheduled Tribes. As is the practice at no time has the
State Government been excluded in the consultation process.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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It is always invariably the State Government which
recommends to the President the category of inclusion /
exclusion in Scheduled Castes and Scheduled Tribes. Similar
provision is provided for in the case of conferring of
constitutional status for backward classes for inclusion in
Central list of SEBC. Consultation with Governor thereby
implies consultation with the State Government.
57. The Ministry also clarified to the Committee that the phrase
“for the purpose of this Constitution” as provided under clause
(1) of article 342A is on lines similar to articles 341 and 342
of the Constitution. The setting up of the proposed Commission
will not be retrograde to the interest of the socially and
educationally backward classes. The article 342A will provide
for a comprehensive examination of each case of inclusion/
exclusion from the Central List. The ultimate power for such
inclusion/exclusion would stand vested with the Parliament.
58. The Committee held discussion on the proposed
amendments and in view of the detailed explanations
furnished by the Ministry, the Committee adopted the Clause
4 of the Bill without any amendments.
***
104. The section dealing with the amendment to Article 366 reads
as follows:
“Clause 5:Provides for amendment of article 366
59. This Clause proposes to insert a new clause (26C) in article
366 which reads as under:-
“(26C) socially and educationally backward classes” means
such backward
classes as are so deemed under article 342A
for the purposes of this Constitution;”
***
105. The Report of the Select Committee, made certain concluding
general observations, a part of which stated that:
“66. The Committee feels that the Constitutional Amendments
proposed in this Bill would further strengthen affirmative
action in favour of socially and educationally backward
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classes as well as further boost concept of cooperative
federalism between the Centre and States.
67. The Committee observes that the amendments do not in
any way affect the independence and functioning of State
Backward Classes Commissions’ and they will continue to
exercise unhindered their powers of inclusion/exclusion of
other backward classes with relation to State List.
68. The Committee also took note of the concerns raised by
some Members regarding the composition of the Commission
and would like to impress upon the Ministry that while
addressing the concerns of the Members the rules framed for
the Chairperson and Members of the National Commission
for Scheduled Casts and National Commission for Scheduled
Tribes may be taken into consideration. The Committee is of
the view that while framing the rules for composition of the
proposed Commission and selection of its Chairperson it
should be ensured that the persons belonging to socially and
educationally backward classes be given due representation
to inspire confidence amongst the socially and educationally
backward classes. It may further be ensured that at least one-
woman member is part of the Commission.
69. The Committee hopes that the Bill would bring a sea
change by putting in place effective and efficient delivery
mechanism for the welfare of socially and educationally
backward classes.”
VIII Extrinsic aids to interpretation of statutes: the extent to
which they can be relied upon
106. The
parties presented rival submissions with respect to
interpretation of the words of the statute in the light of the reports of the
Select Committee report as well as the debates in Parliament at the time
of introduction of the amendment, or the law as enacted. The appellants
asserted that such debates are of limited assistance only as external aids
in the case of an ambiguity and had relied upon a line of decisions starting
with State of Travancore-Cochin v. Bombay Trading Company
(supra) and culminating in P.V. Narasimha Rao (supra). On the other
hand, the respondent States alluded to the larger bench decision of this
Court in Kalpana Mehta (supra) which emphatically held that Standing
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Committee reports and statements made on the floor of House can be
limited extrinsic aids for considering and interpreting express terms of a
statute, or even the Constitution.
107. In the present case, the Statement of Objects and Reasons
do not throw much light on why the provisions of the 102nd Amendment
Act were introduced. No doubt, there are certain passages in the Select
Committee Report suggestive of the fact that the power of identification
carved out through the newly inserted Articles 338B and 342A would
not in any manner disturb the powers of the State to carry on their work
in relation to special provisions or reservations for backward classes
(through appropriate measures, be it legislative or executive). A holistic
reading of the report also suggests that the Select Committee reflected
both points of view and recorded the assurances given by the Ministry
that the State’s power would not be disturbed. At the same time, in
conclusion, it was emphatically stated that the States’ concerns would
be given due regard and that the exercise would be in line with the
existing procedure under Articles 341 and 342.99 The report also contains
notes of dissent, which highlight that the amendments would deprive the
States of their existing power to identify, and provide reservations and
other special provisions for the benefit of SEBCs.
108. There cannot be a disagreement with the proposition that
where the
provisions of the statute or its wordings are ambiguous, the
first attempt should be to find meaning, through internal aids, in the statute
itself. Failing this, it is open to the court to find meaning, and resolve the
ambiguity, by turning to external aids, which include the statements of
objects and reasons, as well as Parliamentary reports, or debates in
Parliament. To this Court, it appears that the task of interpreting the
provisions of 102nd Amendment does not begin by relying on external
aids such as Statement of Objects and Reasons (which throw practically
no light on the meaning of the provisions), or even the Select Committee
Report. The task of interpretation is first to consider the overall scheme
of the provisions, and secondly, after considering the provision, proceed
to resolve any perceived ambiguity, if found, by resorting to aids within
99“57. The Ministry also clarified to the Committee that the phrase “for the purpose of
this Constitution” as provided under clause (1) of article 342A is on lines similar to
articles 341 and 342 of the Constitution. The setting up of the proposed Commission will
not be retrograde to the interest of the socially and educationally backward classes. The
article 342A will provide for a comprehensive examination of each case of inclusion/
exclusion from the Central List. The ultimate power for such inclusion/exclusion would
stand vested with the Parliament.”
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the statute. It is at the third stage, when such resolution is impossible,
that external aids are to be looked into. Thus, in a seven-judge bench
decision, this court, in State of Karnataka v. Union of India100
administered the following caution, while outlining the court’s task of
interpreting the Constitution:
“The dynamic needs of the nation, which a Constitution must
fulfil, leave no room for merely pedantic hair-splitting play
with words or semantic quibblings. This, however, does not
mean that the Courts, acting under the guise of a judicial
power, which certainly extends to even making the
Constitution, in the sense that they may supplement it in those
parts of it where the letter of the Constitution is silent or may
leave room for its development by either ordinary legislation
or judicial interpretation, can actually nullify, defeat, or
distort the reasonably clear meaning of any part of the
Constitution in order to give expression to some theories of
their own about the broad or basic scheme of the Constitution.
The theory behind the Constitution which can be taken into
account for purposes of interpretation, by going even so far
as to fill what have been called the “interstices” or spaces
left unfilled, due perhaps to some deliberate vagueness or
indefiniteness in the letter of the Constitution, must itself be
gathered from express provisions of the Constitution. The
dubiousness of expressions used may be cured by Court by
making their meanings
clear and definite if necessary in the
light of the broad and basic purposes set before themselves
by the Constitution makers. And, these meanings may, in
keeping with the objectives or ends which the Constitution of
every nation must serve, change with changing requirements
of the times. The power of judicial interpretation, even if it
includes what may be termed as “interstitial” law making,
cannot extend to direct conflict with express provisions of the
Constitution or to ruling them out of existence.”
109. The primary duty of this court, while interpreting a
constitutional provision(in the present case, an amendment to the
Constitution, no less) was underlined thus, in GVK Industries Ltd. v.
Income Tax Officer101
100 1978 (2) SCR 1.
101 (2011) 4 SCC 36.
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“37. In interpreting any law, including the Constitution, the
text of the provision under consideration would be the primary
source for discerning the meanings that inhere in the
enactment. However, in light of the serious issues it would
always be prudent, as a matter of constitutional necessity, to
widen the search for the true meaning, purport and ambit of
the provision under consideration. No provision, and indeed
no word or expression, of the Constitution exists in isolation—
they are necessarily related to, transforming and in turn being
transformed by, other provisions, words and phrases in the
Constitution.
38. Our Constitution is both long and also an intricate matrix
of meanings, purposes and structures. It is only by locating a
particular constitutional provision under consideration within
that constitutional matrix could one hope to be able to discern
its true meaning, purport and ambit. As Prof. Laurence Tribe
points out:
“[T]o understand the Constitution as a legal text, it is essential
to recognize the … sort of text it is: a constitutive text that
purports, in the name of the people…, to bring into being a
number of distinct but inter-related institutions and practices,
at once legal and political, and to define the rules governing
those institutions and practices.” (See Reflections on Free-
Form Method in Constitutional Interpretation. [108 Harv L
Rev 1221, 1235 (1995)]).”
39. It has been repeatedly
appreciated by this Court that our
Constitution is one of the most carefully drafted ones, where
every situation conceivable, within the vast experience,
expertise and knowledge of our framers, was considered,
deliberated upon, and appropriate features and text chosen
to enable the organs of the State in discharging their roles.
While indeed dynamic interpretation is necessary, if the
meaning necessary to fit the changed circumstances could be
found in the text itself, we would always be better served by
treading a path as close as possible to the text, by gathering
the plain ordinary meaning, and by sweeping our vision and
comprehension across the entire document to see whether that
meaning is validated by the constitutional values and scheme.”
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In examining provisions of the Constitution, courts should adopt
the primary rule, and give effect to the plain meaning of the expressions;
this rule can be departed, only when there are ambiguities. In Kuldip
Nayar v. Union 
of 
India 102 
after 
quoting 
from 
G. Narayanaswami v. G. Panneerselvam103 this court held that
“201. … We endorse and reiterate the view taken in the above
quoted paragraph of the judgment. It may be desirable to
give a broad and generous construction to the constitutional
provisions, but while doing so the rule of “plain meaning” or
“literal” interpretation, which remains “the primary rule”,
has also to be kept in mind. In fact the rule of “literal
construction” is the safe rule unless the language used is
contradictory, ambiguous, or leads really to absurd results.”
110. Whilst dealing the task of the court, and the permissible extent
to which it can resort to internal and extrinsic aids to construction of a
statute, this court remarked, in Pushpa Devi v. Milkhi Ram104 that:
“18. It is true when a word has been defined in the
interpretation clause, prima facie that definition governs
wherever that word is used in the body of the statute unless
the context requires otherwise. “The context” as pointed out
in the book Cross-Statutory Interpretation (2nd edn. p. 48)
“is both internal and external”. The internal context requires
the interpreter to situate the disputed words within the section
of which they are part and in relation
to the rest of the Act.
The external context involves determining the meaning from
ordinary linguistic usage (including any special technical
meanings), from the purpose for which the provision was
passed, and from the place of the provisions within the general
scheme of statutory and common law rules and principles.
19. The opening sentence in the definition of the section states
“unless there is anything repugnant in the subject or context”.
In view of this qualification, the court has not only to look at
the words but also to examine the context and collocation in
the light of the object of the Act and the purpose for which a
particular provision was made by the legislature.”
102 (2006) 7 SCC 1.
103 (1972) 3 SCC 717.
104 (1990) 2 SCC 134.
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111. Again, in Karnataka State Financial Corporation. v. N.
Narasimahaiah105 it was observed that:
“42. Interpretation of a statute would not depend upon a
contingency. It has to be interpreted on its own. It is a trite
law that the court would ordinarily take recourse to the golden
rule of literal interpretation. It is not a case where we are
dealing with a defect in the legislative drafting. We cannot
presume any. In a case where a court has to weigh between a
right of recovery and protection of a right, it would also lean
in favour of the person who is going to be deprived therefrom.
It would not be the other way round. Only because a speedy
remedy is provided for that would itself (sic not) lead to the
conclusion that the provisions of the Act have to be extended
although the statute does not say so. The object of the Act
would be a relevant factor for interpretation only when the
language is not clear and when two meanings are possible
and not in a case where the plain language leads to only one
conclusion.”
112. In another recent decision, Laurel Energetics (P) Ltd. v.
Securities Exchange Board of India106 this court observed that:
“24. In Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa [Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa, 1987 Supp SCC 751] , a similar argument was turned
down in the following terms: (SCC pp. 757-58, paras 11-12)
‘11. Secondly, the validity of the statutory
notification cannot
be judged merely on the basis of Statement of Objects and
Reasons accompanying the Bill. Nor it could be tested by the
government policy taken from time to time. The executive policy
of the Government, or the Statement of Objects and Reasons
of the Act or Ordinance cannot control the actual words used
in the legislation. In Central Bank of India v. Workmen [Central
Bank of India v. Workmen, AIR 1960 SC 12] S.K. Das, J. said:
(AIR p. 21, para 12)
‘12. … The Statement of Objects and Reasons is not admissible,
however, for construing the section; far less can it control
the actual words used.’
105 (2008) 5 SCC 176.
106 (2017) 8 SCC 541
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12. In State of W.B. v. Union of India [State of W.B. v. Union
of India, AIR 1963 SC 1241] , Sinha, C.J. observed: (AIR p.
1247, para 13)
‘13. … It is however, well settled that the Statement of Objects
and Reasons accompanying a Bill, when introduced in
Parliament, cannot be used to determine the true meaning
and effect of substantive provisions of the statute. They cannot
be used except for the limited purpose of understanding the
background and the antecedent state of affairs leading up to
the legislation. But we cannot use this statement as an aid to
the construction of the enactment or to show that the legislature
did not intend to acquire the proprietary right vested in the
State or in any way to affect the State Governments’ rights as
owner of minerals. A statute, as passed by Parliament, is the
expression of the collective intention of the legislature as a
whole, and any statement made by an individual, albeit a
Minister, of the intention and objects of the Act cannot be
used to cut down the generality of the words used in the
statute.”
***
25. In the factual scenario before us, having regard to the
aforesaid judgment, it is not possible to construe the
Regulation in the light of its object, when the words used are
clear. This statement of the law is of course with the well-
known caveat that the object of a provision can certainly be
used as an extrinsic aid to the interpretation of statutes and
subordinate legislation where there is ambiguity
in the words
used.”
113. The position in UK is that that the report of a Select Committee
may be considered as background to the construction of an Act; however,
such reports could not be invested with any kind of interpretive
authority.107 In R. (Baiai) v. Home Secretary,108 a report of the
Parliamentary Joint Committee on Human Rights was considered. The
committee’s opinions on compatibility and other matters of law were
107 See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410.
108 [2006] EWHC 823 (Admin).
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held to have persuasive value, however, they could have no greater weight
than, for example, the views of distinguished academic writers.109
IX Interpretation of the Constitution, the definition clause
under Article 366 and Amendments to the Constitution
114. The Court has to interpret provisions of the Constitution, in
this case, introduced through an amendment. The proper method of
interpreting such an amendment was indicated by a five-judge bench in
Kihoto Hollohan v. Zachillhu110, where it was held that:
“26. In expounding the processes of the fundamental law, the
Constitution must be treated as a logical whole. Westel
Woodbury Willoughby in The Constitutional Law of the United
States (2nd edn., Vol. 1, p. 65) states:
“The Constitution is a logical whole, each provision of which
is an integral part thereof, and it is, therefore, logically proper,
and indeed imperative, to construe one part in the light of the
provisions of the other parts.”
***
“28. In considering the validity of a constitutional amendment
the changing and the changed circumstances that compelled
the amendment are important criteria. The observations of
the U.S. Supreme Court in Maxwell v. Dow [176 US 581 : 44
L Ed 597, 605 (1899)] are worthy of note: (L Ed p. 605)
“… to read its language in connection with the known
condition of affairs out of which the occasion for its adoption
may have arisen, and then to construe it, if there be therein
any
doubtful expressions, in a way so far as is reasonably
possible, to forward the known purpose or object for which
the amendment was adopted ….”
115. Recollecting these principles, this court is mindful of the first
circumstance that the 102ndAmendment brought in an entirely new
dimension - an attempt to identify backward classes, firstly by inserting
Sub-Article (26C) into the definition clause under Article 366. This
insertion, in the opinion of the court, accords with the statutory scheme
109 Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell)
2017 Chap. 27 @ para 27.1.13.1, page 952
110 1992 Supp (2) SCC 651
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of defining terms for the purposes of the Constitution. This term “for
the purposes of this Constitution” occurs twelve times111 in the
Constitution.
116. The interpretation of the definition in relation to the Constitution,
is truly indicative that for the purpose of the entire constitution, the
meaning ascribed in the definition clause – in this case, by Article 366
(26C), has to prevail. While interpreting whether members of SCs/ STs
who communities find mention in the Presidential notification in two states,
could claim reservation benefits in both states, this court had occasion to
consider a parimateria provision, i.e. Articles 366 (24) and (25) which
defined SCs “for the purposes of this constitution”. In Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College112, a Constitution
Bench of this Court held as follows:
“12. It is, however, necessary to give proper meaning to the
expressions ‘for the purposes of this Constitution’ and ‘in
relation to that State’ appearing in Articles 341 and 342 of
the Constitution.”
This court then noticed the divergent views of the High Courts
and then observed:
“13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously.
It is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give effect to
both. Nothing is surplus in a Constitution and no part should
be made nugatory. This is well settled. See
the observations
of this Court in Venkataramana Devaru v. State of
Mysore [1958 SCR 895, 918 : AIR 1958 SC 255] , where
Venkatarama Aiyer, J. reiterated that the rule of construction
is well settled and where there are in an enactment two
provisions which cannot be reconciled with each other, these
should be so interpreted that, if possible, effect could be given
to both. It, however, appears to us that the expression ‘for the
purposes of this Constitution’ in Article 341 as well as in Article
342 do imply that the Scheduled Caste and the Scheduled
Tribes so specified would be entitled to enjoy all the
111 Articles 108 (4); 299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366
(26C) and 367 (3)
112 1990 SCC (3) 130.
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constitutional rights that are enjoyable by all the citizens as
such. Constitutional right, e.g., it has been argued that right
to migration or right to move from one part to another is a
right given to all — to Scheduled Castes or Tribes and to
non-scheduled castes or tribes. But when a Scheduled Caste
or Tribe migrates, there is no inhibition in migrating but when
he migrates, he does not and cannot carry any special rights
or privileges attributed to him or granted to him in the original
State specified for that State or area or part thereof. If that
right is not given in the migrated State it does not interfere
with his constitutional right of equality or of migration or of
carrying on his trade, business or profession. Neither Article
14, 16, 19 nor Article 21 is denuded by migration but he must
enjoy those rights in accordance with the law if they are
otherwise followed in the place where he migrates. There
should be harmonious construction, harmonious in the sense
that both parts or all parts of a constitutional provision should
be so read that one part does not become nugatory to the
other or denuded to the other but all parts must be read in the
context in which these are used. It was contended that the
only way in which the fundamental rights of the petitioner
under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be
given effect to is by construing Article 342 in a manner by
which a member of a
Scheduled Tribe gets the benefit of that
status for the purposes of the Constitution throughout the
territory of India. It was submitted that the words “for the
purposes of this Constitution” must be given full effect. There
is no dispute about that. The words “for the purposes of this
Constitution” must mean that a Scheduled Caste so designated
must have right under Articles 14, 19(1)(d), 19(1)(e) and
19(1)(f) inasmuch as these are applicable to him in his area
where he migrates or where he goes. The expression “in
relation to that State” would become nugatory if in all States
the special privileges or the rights granted to Scheduled
Castes or Scheduled Tribes are carried forward. It will also
be inconsistent with the whole purpose of the scheme of
reservation. In Andhra Pradesh, a Scheduled Caste or a
Scheduled Tribe may require protection because a boy or a
child who grows in that area is inhibited or is at disadvantage.
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In Maharashtra that caste or that tribe may not be so inhibited
but other castes or tribes might be. If a boy or a child goes to
that atmosphere of Maharashtra as a young boy or a child
and goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there, then
he cannot be said to have that reservation which will denude
the children or the people of Maharashtra belonging to any
segment of that State who may still require that protection.
After all, it has to be borne in mind that the protection is
necessary for the disadvantaged castes or tribes of
Maharashtra as well as disadvantaged castes or tribes of
Andhra Pradesh. Thus, balancing must be done as between
those who need protection and those who need no protection,
i.e., who belong to advantaged castes or tribes and who do
not. Treating the determination under Articles 341 and 342
of the Constitution to be valid for all over the country would
be in negation to the very purpose and scheme and language
of Article 341 read with Article 15(4) of the Constitution.
14. Our attention was drawn to certain observations
in Elizabeth Warburton v. James Loveland [1832 HL 499] .
It is true that all provisions should be read harmoniously. It is
also true that no provision should be so read as to make other
provisions nugatory or restricted. But having regard to the
purpose, it appears to us that harmonious construction enjoins
that we should give to each expression
—”in relation to that
State” or “for the purposes of this Constitution” — its full
meaning and give their full effect. This must be so construed
that one must not negate the other. The construction that
reservation made in respect of the Scheduled Caste or Tribe
of that State is so determined to be entitled to all the privileges
and rights under the Constitution in that State would be the
most correct way of reading, consistent with the language,
purpose and scheme of the Constitution. Otherwise, one has
to bear in mind that if reservations to those who are treated
as Scheduled Caste or Tribe in Andhra Pradesh are also given
to a boy or a girl who migrates and gets deducted
(sic inducted) in the State of Maharashtra or other States
where that caste or tribe is not treated as Scheduled Caste or
Scheduled Tribe then either reservation will have the effect
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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of depriving the percentage to the member of that caste or
tribe in Maharashtra who would be entitled to protection or
it would denude the other non-Scheduled Castes or non-
Scheduled Tribes in Maharashtra to the proportion that they
are entitled to. This cannot be logical or correct result
designed by the Constitution.”
(emphasis supplied)
117. This Constitution Bench decision was followed in another
decision, again by five judges in Action   Committee   on   Issue   of  
Caste Certificate to Scheduled  Castes  & Scheduled 
Tribes in the State of  Maharashtra & Anr v. Union  of 
India & Anr.113, when  this court reiterated its previous view in Marri
(supra) and observed further as follows:
“16. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Schedule Tribes or backward classes in a
given State would depend on the nature and extent of
disadvantages and social hardships suffered by that caste,
tribe or class in that State which may be totally non est in
another State to which persons belonging thereto may migrate.
Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations
on the basis of which they have been specified may be totally
different. So also the degree of disadvantages of various
elements which constitute the input for specification may also
be totally
different. Therefore, merely because a given caste
is specified in State A as a Scheduled Caste does not
necessarily mean that if there be another caste bearing the
same nomenclature in another State the person belonging to
the former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste of
the latter State “for the purposes of this Constitution”. This is
an aspect which has to be kept in mind and which was very
much in the minds of the Constitution-makers as is evident
from the choice of language of Articles 341 and 342 of the
Constitution.”
118. The recent judgment in Bir Singh v. Delhi Jal Board (supra)
reiterated the previous two Constitution Bench judgments. It is useful to
113 (1994) 5 SCC 244.
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notice the partly concurring judgment of Bhanumati, J. who observed
that
“80. Clause (24) of Article 366 defines “Scheduled Castes”
and clause (25) of Article 366 defines “Scheduled Tribes”.
The latter means
“such tribes or tribal communities or parts of or groups within
such tribes or tribal communities as are deemed under Article
342 to be “Scheduled Tribes” for the purposes of this
Constitution”.
81. Article 341(1) of the Constitution empowers the President,
in consultation with the Governor of the State concerned, to
specify Scheduled Castes by public notification. Equally,
Article 342(1) of the Constitution empowers the President
“with respect to any State or Union Territory, and where it is
a State, after consultation with the Governor thereof, by public
notification, specify the tribes or tribal communities or parts
of or groups within tribes or tribal communities which shall
for the purposes of this Constitution be deemed to be
“Scheduled Tribes” in relation to that State or Union Territory,
as the case may be”.
Article 342(2) of the Constitution empowers
“Parliament, by law, to include in or exclude from the list of
“Scheduled Tribes” specified in a notification issued under
clause (1), any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied
by any subsequent notification.”
Until the Presidential Notification is modified by
appropriate
amendment by Parliament in exercise of the power under
Article 341(2) of the Constitution, the Presidential Notification
issued under Article 341(1) is final and conclusive and any
caste or group cannot be added to it or subtracted by any
action either by the State Government or by a court on
adducing of evidence. In other words, it is the constitutional
mandate that the tribes or tribal communities or parts of or
groups within such tribes or tribal communities specified by
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the President, after consultation with the Governor in the
public notification, will be “Scheduled Tribes” subject to the
law made by Parliament alone, which may, by law, include in
or exclude from the list of “Scheduled Tribes” specified by
the President. Thereafter, it cannot be varied except by law
made by Parliament.
82. The President of India alone is competent or authorised
to issue an appropriate notification in terms of Articles 341(1)
and 342(1). Cumulative reading of Articles 338, 341 and 342
indicate that:
(a) Only the President could notify castes/tribes as Scheduled
Castes/Tribes and also indicate conditions attaching to such
declaration. A public notification by the President specifying
the particular castes or tribes as SC/ST shall be final for the
purpose of Constitution and shall be exhaustive.
(b) Once a notification is issued under clause (1) of Articles
341 and 342 of the Constitution, Parliament can by law
include in or exclude from the list of Scheduled Castes or
Scheduled Tribes, specified in the notification, any caste or
tribe but save for that limited purpose the notification issued
under clause (1), shall not be varied by any subsequent
notification [ Ref. Action Committee on Issue of Caste
Certificate to SCs/STs in State of Maharashtra v. Union of
India, (1994) 5 SCC 244] .”
119. These three Constitution Bench judgments, Marri (supra),
Action Committee (supra) and Bir Singh (supra)
therefore, have set
the tone as it were, for the manner in which determination by the President
is to be interpreted, having regard to the definition clause in Article 366,
which has to apply for interpreting the particular expression in a consistent
manner, for the purpose of the Constitution. Thus, the expression SCs in
relation to a State for the “purpose of this Constitution”, means the
member of a SC declared to be so under the Presidential Notification.
The terms of such Presidential Notification insist that such a citizen
ought to be a resident of that concerned State or Union Territory. This
aspect is of some importance, given that there are a large number of
communities which are common in several States. However, the decisions
of this Court are uniform since Marri (supra) stated that it is only the
citizens residing in a particular state who can claim the benefit of
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reservation – either of that State or of the Centre for the purposes of the
Constitution in relation to that State. Necessarily, therefore, the resident
of State A is entitled to claim reservation benefits under Articles 15(4)
and 16(4) if he or she resides (the residential qualification that needs to
be fulfilled is that specified by the concerned State) in that State, (i.e. A)
and none else. As a sequitur, if such a person or community or caste (of
state A) is also described as a Scheduled Caste in State B, for the purposes
of State services or admission to State institutions, he cannot claim the
benefits of reservation as a scheduled caste in such B State. However,
Bir Singh (supra) has made it clear that for the purposes of Union
employment and admissions to Union institutions the position is different
because SCs living within the territory of India in relation to one State or
the other, are deemed to be SCs or STs for the purposes of this Constitution
in relation for the purposes of Union employment.
120. The interpretation of Articles 341 and 342 of the Constitution,
read with Articles 366 (24) and 366 (25), have to, in our opinion, be the
guiding factors in interpreting Article 366 (26C), which follows a similar
pattern, i.e. of defining, for the purpose of the entire constitution,
with reference to the determination of those communities who are notified
as SEBCs, under Article 342A (which again uses the expression “for
the purpose of this
constitution”).
121. Quite similarly, when Article 366 was amended by the Forty
Sixth amendment Act, and Article 366(29A) was introduced to Article
366, this Court considered the previous amendments, which are the
6thAmendment to the Constitution and the 46thAmendment which
amended Article 269 and Article 286, besides introducing Entry 92A to
the Union List. The Court went on to hold in a five-judge bench decision
in 20th Century Finance Corpn. Ltd. v. State of Maharashtra114, that
the interpretation adopted by this Court led to the inexorable conclusion
that a limitation was placed upon the States’ power of taxation. Article
366(29A) on the one hand, expanded the specie of sale which could be
the legitimate subject of taxation by the State, but at the same time, on
the other hand, the amendment also introduced limitations upon the State
power which was subjected to controls by Parliament. Therefore, in the
context of the amendment the expression”sale” underwent alteration,
partly allowing and partly restricting states’ power to tax goods. This
court, after recounting the history of the previous litigation, held that:
114 (2000) 6 SCC 12
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“19. Following the decisions referred to above, we are of the
view that the power of State Legislatures to enact law to levy
tax on the transfer of right to use any goods under Entry 54
of List II of the Seventh Schedule has two limitations — one
arising out of the entry itself; which is subject to Entry 92-A
of List I, and the other flowing from the restrictions embodied
in Article 286. By virtue of Entry 92-A of List I, Parliament
has power to legislate in regard to taxes on sales or purchase
of goods other than newspapers where such sale or purchase
takes place in the course of inter-State trade or commerce.
Article 269 provides for levy and collection of such taxes.
Because of these restrictions, State Legislatures are not
competent to enact law imposing tax on the transactions of
transfer of right to use any goods which take place in the
course of inter-State trade or commerce. Further, by virtue of
clause (1) of Article 286, the State Legislature is precluded
from making law imposing tax on the transactions of transfer
of right to use any goods where such deemed sales take place
(a) outside the State; and (b) in the course of import of goods
into the territory of India. Yet, there are other limitations on
the taxing power of the State Legislature by virtue of clause
(3) of Article 286. Although Parliament has enacted law under
clause (3)(a) of Article 286 but no law so far has been enacted
by Parliament under
clause (3)(b) of Article 286. When such
law is enacted by Parliament, the State Legislature would be
required to exercise its legislative power in conformity with
such law. Thus, what we have stated above, are the limitations
on the powers of State Legislatures on levy of sales tax on
deemed sales envisaged under sub-clause (d) of clause (29-
A) of Article 366 of the Constitution.”
122. In a similar manner, the expression, “unless the context
otherwise provides”[which is the controlling expression in Article 366(1)]
was interpreted by an earlier Constitution Bench in Builders’ Association
of India v. Union of India115 when the amendment to Article 366 was
considered:
“32. Before proceeding further, it is necessary to understand
what sub-clause (b) of clause (29-A) of Article 366 of the
115 (1989) 2 SCC 645
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Constitution means. Article 366 is the definition clause of the
Constitution. It says that in the Constitution unless the context
otherwise requires, the expressions defined in that article have
the meanings respectively assigned to them in that article.
The expression ‘goods’ is defined in clause (12) of Article
366 of the Constitution as including all materials, commodities
and articles.”
After discussing the previous decisions in respect of the
unamended provisions, the court stated that:
“The emphasis is on the transfer of property in goods (whether
as goods or in some other form). The latter part of clause
(29-A) of Article 366 of the Constitution makes the position
very clear. While referring to the transfer, delivery or supply
of any goods that takes place as per sub-clauses (a) to (f) of
clause (29-A), the latter part of clause (29-A) says that “such
transfer, delivery or supply of any goods” shall be deemed to
be a sale of those goods by the person making the transfer,
delivery or supply and a purchase of those goods by the
person to whom such transfer, delivery or supply is made.
Hence, a transfer of property in goods under sub-clause (b)
of clause (29-A) is deemed to be a sale of the goods involved
in the execution of a works contract by the person making
the transfer and a purchase of those goods by the person to
whom such transfer is made. The object of the new definition
introduced in clause (29-A) of Article 366 of the Constitution
is,
therefore, to enlarge the scope of ‘tax on sale or purchase
of goods’ wherever it occurs in the Constitution so that it may
include within its scope the transfer, delivery or supply of
goods that may take place under any of the transactions
referred to in sub-clauses (a) to (f) thereof wherever such
transfer, delivery or supply becomes subject to levy of sales
tax. So construed the expression ‘tax on the sale or purchase
of goods’ in Entry 54 of the State List, therefore, includes a
tax on the transfer of property in goods (whether as goods or
in some other form) involved in the execution of a works
contract also. The tax leviable by virtue of sub-clause (b) of
clause (29-A) of Article 366 of the Constitution thus becomes
subject to the same discipline to which any levy under entry
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54 of the State List is made subject to under the Constitution.
The position is the same when we look at Article 286 of the
Constitution. Clause (1) of Article 286 says that no law of a
State shall impose, or authorise the imposition of, a tax on
the sale or purchase of goods where such sale or
purchase takes place — (a) outside the State; or (b) in the
course of the import of the goods into, or export of the goods
out of, the territory of India. Here again we have to read the
expression “a tax on the sale or purchase of goods” found in
Article 286 as including the transfer of goods referred to in
sub-clause (b) of clause (29-A) of Article 366 which is deemed
to be a sale of goods and the tax leviable thereon would be
subject to the terms of clause (1) of Article 286. Similarly the
restrictions mentioned in clause (2) of Article 286 of the
Constitution which says that Parliament may by law formulate
principles for determining when a sale or purchase of goods
takes place in any of the ways mentioned in clause (1) of
Article 286 would also be attracted to a transfer of goods
contemplated under Article 366(29-A)(b). Similarly clause (3)
of Article 286 is also applicable to a tax on a transfer of
property referred to in sub-clause (b) of clause (29-A) of Article
366. Clause (3) of Article 286 consists of two parts. Sub-
clause (a) of clause (3) of Article 286 deals with a tax on the
sale or purchase of goods declared by
Parliament by law to
be of special importance in inter-State trade or commerce,
which is generally applicable to all sales including the
transfer, supply or delivery of goods which are deemed to be
sales under clause (29-A) of Article 366 of the Constitution.
If any declared goods which are referred to in Section 14 of
the Central Sales Tax Act, 1956 are involved in such transfer,
supply or delivery, which is referred to in clause (29-A) of
Article 366, the sales tax law of a State which provides for
levy of sales tax thereon will have to comply with the
restrictions mentioned in Section 15 of the Central Sales Tax
Act, 1956.
…. We are of the view that all transfers, deliveries and supplies
of goods referred to in clauses (a) to (f) of clause (29-A) of
Article 366 of the Constitution are subject to the restrictions
and conditions mentioned in clause (1), clause (2) and sub-
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clause (a) of clause (3) of Article 286 of the Constitution and
the transfers and deliveries that take place under sub-clauses
(b), (c) and (d) of clause (29-A) of Article 366 of the
Constitution are subject to an additional restriction mentioned
in sub-clause (b) of Article 286(3) of the Constitution.”
123. In Commissioner of Income Tax v. Willamson Financial
Services116, this court had to interpret “agricultural income”, a term
defined in Article 366(1) as follows:
“366. Definitions.—In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say—
(1) ‘agricultural income’ means agricultural income as defined
for the purposes of the enactments relating to Indian income
tax;”
124. Noticing that the definition (Article 366 (1) (1)) itself referred
to the term as defined by the Income tax Act, and after considering the
definition in the existing enactment, this court held that:
“30. The expression “agricultural income”, for the purpose
of abovementioned entries, means agricultural income as
defined for the purpose of the enactments relating to Indian
income tax vide Article 366(1) of the Constitution. Therefore,
the definition of “agricultural income” in Article 366(1)
indicates that it is open to the income tax enactments in force
from time to time to define “agricultural income” in any
particular manner and that would be the meaning not only
for tax enactments
but also for the Constitution. This
mechanism has been devised to avoid a conflict with the
legislative power of States in respect of agricultural income.”
125. Another important decision is Tata Consultancy Services v.
State of A.P.117 The issue involved was interpretation of the expression
in Article 366(12), i.e. “goods” which reads as follows:
“(12) “goods” includes all materials, commodities, and
articles”.
126. This court expansively interpreted the definition and held
that the it includes software programmes, observing that the term
“goods” included intangible property:
116 (2008) 2 SCC 202.
117 (2005) 1 SCC 308.
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“27. In our view, the term “goods” as used in Article 366(12)
of the Constitution and as defined under the said Act is very
wide and includes all types of movable properties, whether
those properties be tangible or intangible. We are in complete
agreement with the observations made by this Court
in Associated Cement Companies Ltd. [(2001) 4 SCC 593] A
software program may consist of various commands which
enable the computer to perform a designated task. The
copyright in that program may remain with the originator of
the program. But the moment copies are made and marketed,
it becomes goods, which are susceptible to sales tax. Even
intellectual property, once it is put on to a media, whether it
be in the form of books or canvas (in case of painting) or
computer discs or cassettes, and marketed would become
“goods”. …… The term “all materials, articles and
commodities” includes both tangible and intangible/
incorporeal property which is capable of abstraction,
consumption and use and which can be transmitted,
transferred, delivered, stored, possessed, etc. The software
programs have all these attributes.”
127. It is therefore, apparent that whenever the definition clause,
i.e. Article 366 has arisen for interpretation, this court has consistently
given effect to the express terms, and in the broadest manner. Whenever
new definitions were introduced, full effect was given, to the plain and
grammatical terms, often,
limiting existing legislative powers conferred
upon the states.
128. Before proceeding to examine whether the term “the Central
List” in Article 342A indicates an expression to the contrary, [per Article
366 (1)] it is also necessary to consider some decisions that have
interpreted amendments which introduced entirely new provisions, either
affecting state’s legislative powers, or limiting fundamental rights.
129. In Bimolangshu Roy v. State of Assam118 the state’s
legislative competence to enact a law providing for appointment of
Parliamentary Secretaries, in the context of provisions of the Constitution
(Ninety-First Amendment) Bill, 2003 which was passed by both the
Houses of Parliament and after receiving the assent of the President,
became a provision of the Constitution. It introduced Article 164(1-A),
118 (2018) 14 SCC 408
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which had the effect of limiting the total number of Ministers in the
Council of Ministers in a State, including the Chief Minister, to fifteen
per cent of the total number of members of the Legislative Assembly of
that State; the minimum number of ministers was to be 12. The state
assembly sought to create offices that had the effect of exceeding the
number mandated (15%). Upon a challenge, it was argued that the state
had legislative competence to enact the law, by virtue of Article 194.
That argument was repelled by this court, which held:
“36. As rightly pointed out by the petitioners, the existence
of a dedicated article in the Constitution authorising the
making of law on a particular topic would certainly eliminate
the possibility of the existence of the legislative authority to
legislate in Article 246 read with any entry in the Seventh
Schedule indicating a field of legislation which appears to
be closely associated with the topic dealt with by the dedicated
article. For example, even if the Constitution were not to
contain Entries 38, 39, 40 in List II the State Legislatures
would still be competent to make laws w.r.t. the topics indicated
in those three entries, because of the authority contained in
Articles 164(5), 186, 194, 195, etc. Therefore, to place a
construction on those entries which would have the effect of
enabling the legislative body concerned to make a law not
within the contemplation of the said articles would be plainly
repugnant to the scheme of the Constitution.”
***
“39. The distinction between the scheme of Article 262 Entry
56 of List I and Entry 17 of List II and the scheme of Article
194 and Entry 39 of List II is this that in the case of inter-
State water disputes neither of the abovementioned two entries
make any mention of the adjudication of water disputes and
only Article 262 deals with the topic. In the case on hand, the
relevant portion of the text of Article 194(3) and Entry 39 of
List II are almost identical and speak about the “powers,
privileges and immunities” of the House, its Members and
committees.
40. The question therefore is — Whether the text of Article
194(3) and Entry 39 is wide enough to authorise the
legislature to make the Act?
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41. In view of the fact that the text of both Article 194(3) and
the relevant portion of Entry 39 are substantially similar, the
meaning of the clause “the powers, privileges and the
immunities of a House of the legislature of a State … and of
the Members of a House of such legislature” must be
examined.”
***
“43. Article 194 deals exclusively with the powers and
privileges of the legislature, its Members and committees
thereof. While clause (1) declares that there shall be freedom
of speech in the legislature subject to the limitations
enumerated therein, clause (2) provides immunity in favour
of the Members of the legislature from any legal proceedings
in any court for anything said or any vote given by such
Members in the legislature or any committees, etc. Clause (3)
deals with the powers, privileges and immunities of a House
of the Legislature and its Members with respect to matters
other than the ones covered under clauses (1) and (2).
44. Thus, it can be seen from the scheme of Article 194 that it
does not expressly authorise the State Legislature to create
offices such as the one in question. On the other hand, Article
178 speaks about the offices of Speaker and Deputy Speaker.
Article 179 deals with the vacation of those offices or
resignations of incumbents of those offices whereas Articles
182 and 183 deal with the Chairman and Deputy Chairman
of the Legislative Council wherever the Council exists. In our
opinion, the most crucial article in this Chapter is Article 187
which makes stipulations even with reference to the secretarial
staff of the legislature. On the face of such elaborate and
explicit constitutional arrangement with respect to the
legislature and the various offices connected with the
legislature and matters incidental to them to read the authority
to create new offices by legislation would be a wholly
irrational way of construing the scope of Article 194(3) and
Entry 39 of List II. Such a construction would be enabling
the legislature to make a law which has no rational connection
with the subject-matter of the entry. “The powers, privileges
and immunities” contemplated by Article 194(3) and Entry
39 are those of the legislators qua legislators.”
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130. In Ashoka Kumar Thakur v. Union of India119 the issue
which arose for consideration was the correct interpretation of Article
15(5)(extracted below in a footnote)120, introduced by virtue of the
Constitution (Ninety Third Amendment) Act, 2005. It enabled the state
to make special provisions for the advancement of any SEBCs or for
SCs or STs as far as they related to “their admission to educational
institutions including private educational institutions, whether aided
or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30”. This court held
that on a true construction, special provisions for admission to such
category of candidates, even in private educational institutions, was
permissible. The court inter alia, held that:
“125. Both Articles 15(4) and 15(5) are enabling provisions.
Article 15(4) was introduced when the “Communal G.O.” in
the State of Madras was struck down by this Court
in Champakam Dorairajan case [1951 SCR 525] . In Unni
Krishnan [(1993) 1 SCC 645] this Court held that Article
19(1)(g) is not attracted for establishing and running
educational institutions. However, in T.M.A. Pai Foundation
case [(2002) 8 SCC 481] it was held that the right to establish
and run educational institutions is an occupation within the
meaning of Article 19(1)(g). The scope of the decision
in T.M.A. Pai Foundation case [(2002) 8 SCC 481] was later
explained in P.A. Inamdar case [(2005) 6 SCC 537]
. It was
held that as regards unaided institutions, the State has no
control and such institutions are free to admit students of their
own choice. The said decision necessitated the enactment of
the Constitution (Ninety-third Amendment) Act, 2005. Thus,
both Articles 15(4) and 15(5) operate in different areas. The
“nothing in this article” [mentioned at the beginning of Article
15(5)] would only mean that the nothing in this article which
prohibits the State on grounds which are mentioned in Article
119 (2008) 6 SCC 1.
120 [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent
the State from making any special provision, by law, for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in
clause (1) of article 30.]
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15(1) alone be given importance. Article 15(5) does not
exclude Article 15(4) of the Constitution.
126. It is a well-settled principle of constitutional interpretation
that while interpreting the provisions of the Constitution, effect
shall be given to all the provisions of the Constitution and no
provision shall be interpreted in a manner as to make any
other provision in the Constitution inoperative or otiose. If
the intention of Parliament was to exclude Article 15(4), they
could have very well deleted Article 15(4) of the Constitution.
Minority institutions are also entitled to the exercise of
fundamental rights under Article 19(1)(g) of the Constitution,
whether they be aided or unaided. But in the case of Article
15(5), the minority educational institutions, whether aided or
unaided, are excluded from the purview of Article 15(5) of
the Constitution. Both, being enabling provisions, would
operate in their own field and the validity of any legislation
made on the basis of Article 15(4) or 15(5) has to be examined
on the basis of provisions contained in such legislation or
the special provision that may be made under Article 15(4) or
15(5)….”
131. The Court, similarly, gave full effect to the definition clause
in Article 366 [in the definition of Union territory, under Article 366(30)]
while examining the soundness of the argument that immunity from
intergovernmental taxation (i.e., under Article 289 which
exempts states
from Union taxation), extends to Union Territories and municipalities. It
was argued that in many cases, the Union Territories had Legislative
Assemblies, by statutory enactments, or special provisions, and in the
case of municipalities, the Constitution had, through amendment, and
introduction of Article 243X, authorized states to authorize municipal
levies. The court repelled this argument, in New Delhi Municipal
Council v. State of Punjab121 in a nine-judge ruling, stating as follows:
“53. Before dealing with the specific circumstances of, and
the decision in, each of these cases, it is necessary that a few
provisions which figure prominently be dealt with. Article
246(4) of the Constitution, as it stood on 26-1-1950, allowed
Parliament to “make laws with respect to any matter for any
part of the territory of India not included in Part A or Part B
121 (1997) 7 SCC 339at page 370.
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of the First Schedule”. The Seventh Amendment Act brought
about a number of changes affecting Union Territories, some
of which have already been noticed by us. The other changes
brought about by it are also relevant; it caused Article 246 to
be changed to its present form where Parliament is empowered
to make laws with respect to “any part of the territory of
India not included in a State”. The word “State” has not been
defined in the Constitution. Article 1(3) defines the territory
of India as comprising: (a) the territories of the States; (b)
the Union Territories specified in the First Schedule; and (c)
such other territories as may be acquired. The word “Union
Territory” has been defined in Article 366(30) to mean “any
Union Territory specified in the First Schedule and includes
any other territory comprised within the territory of India but
not specified in that Schedule
54. Though not defined in the Constitution, the word “State”
has been defined in the General Clauses Act, 1897 (hereinafter
called “the General Clauses Act”). Article 367 of the
Constitution states that the General Clauses Act, 1897 shall,
unless the context otherwise requires and subject to any
adaptations and modifications made under Article 372, apply
for the interpretation of the Constitution. Therefore, on a plain
reading of the provisions involved, it would appear that the
definition of “State” in the General Clauses Act would be
applicable for the purposes of interpreting the
Constitution.
Article 372 is the saving clause of the Constitution which
enables all laws in force before the commencement of the
Constitution to continue in the territory of India. Article 372-
A, which, once again, owes its origin to the Seventh
Amendment Act, empowers the President to make further
adaptations in particular situations.
***********
“99. It is, therefore, clear that even under the new scheme,
Municipalities do not have an independent power to levy
taxes. Although they can now be granted more substantial
powers than ever before, they continue to be dependent upon
their parent legislatures for the bestowal of such privileges.
In the case of Municipalities within States, they have to be
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specifically delegated the power to tax by the State Legislature
concerned. In Union Territories which do not have Legislative
Assemblies of their own, such a power would have to be
delegated by Parliament. Of the rest, those which have
Legislative Assemblies of their own would have to specifically
empower Municipalities within them with the power to levy
taxes.
100. We have already held that despite the fact that certain
Union Territories have Legislative Assemblies of their own,
they are very much under the supervision of the Union
Government and cannot be said to have an independent
status. Under our constitutional scheme, all taxation must fall
within either of two categories: State taxation or Union
taxation. Since it is axiomatic that taxes levied by authorities
within a State would amount to State taxation, it would appear
that the words “or by any authority within a State” have been
added in Article 285(1) by way of abundant caution. It could
also be that these words owe their presence in the provision
to historical reasons; it may be noted that Section 154 of the
1935 Act was similarly worded. The fact that Article 289(1),
which in its phraseology is different from Section 155 of the
1935 Act having been drafted by the Drafting Committee to
meet specific objections, does not contain words similar to
those in Article 285(1), will not in any way further the case of
the appellant, because the phrase “Union
taxation” will
encompass municipal taxes levied by Municipalities in Union
Territories.”
It is noteworthy that the court was inter alia, guided by the
definition of “State” in Article 367 of the Constitution of India.
X. Interpreting provisions of the 102nd Amendment- Article
366 (26C), 338B and 342A
132. What is noticeable in the lines of decisions preceding this
section, including those dealing with constitutional amendments- is that
whenever the definition clause (Article 366) arose for consideration, the
court gave full effect to the substantive amendments as well as the
definition (as in the case of Builders Association [supra] and Twentieth
Century Leasing [supra]), as well as the newly introduced provisions
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(as in the case of Bimolangshu Roy [supra] and Ashoka Kumar Thakur
[supra]). In Williamson Financial Services (supra)and New Delhi
Municipal Council (supra), this court gave full effect to the plain
meaning of the definition clause, in Article 366 (1) (1) and (30)
respectively.
133. In this background, the crucial point to be decided is - did
Parliament, acting in its constituent capacity, whereby any amendment
needed a special majority of two thirds of its members present and voting,
in both the Houses separately, wish to bring about a change in status
quo or not?
134. Parliament was aware that the procedure for identification
of SCs and STs, culminated with the final decision by the President on
the aid and advice of the Union Council of Ministers. This position in law
underwent little change, despite the Constitution (Sixty Fifth) and
Constitution (Eighty Ninth)Amendment Acts, which set up commissions
for SCs and STs, replacing the provisions of the original constitution
which had created an authority called the “Special Officer”. Through
the amended Articles 338 and 338A, consultation with the states in the
matter of inclusion or exclusion, was and continues to be given due
consideration. It is also possible for states to initiate the process and
propose the inclusion (or deletion of) new communities or castes, by
sending their proposals, duly supported by relevant material, for
consideration. This constitutional procedure, so to say, culminating in
the
final word of Parliament was well known, in relation to SCs and STs.
The states were, and are, bound to consult these two commissions, for
SCs and STs (under Articles 338 and 338A).Till the 102nd Amendment,
when it came to backward classes, or SEBCs, the Constitution was
silent- definitionally, as well as the manner by which their identification
could take place.
135. The interpretive exercise carried out in Indra Sawhney saw
this court enjoining the Central and State governments to set up some
permanent mechanisms in the form of commissions, to identify SEBCs
through a systematic and scientific manner and carry on regular periodic
reviews. The respondent states emphasize that pursuant to this direction,
state enactments were framed and brought into force. The arguments
on their behalf as well as the Attorney General was that given these
directions by a nine-judge bench, it could not be inferred that the 102nd
Amendment was ever intended to bring about such a drastic change as
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to exclude the state’s role altogether, in the task of making special
provisions under Article 15 (4) and Article 16 (4), in regard to identification
of SEBCs.
136. It is correct that Indra Sawhney clearly voiced the need for
the Central Government and the states to take measures for setting up
permanent commissions or bodies, if need be through legislation, to carry
out the task of identification of communities as SEBCs for the purposes
of Articles 15 and 16. However, that articulation or even direction, could
not have, in the opinion of this court, been an injunction never to depart
from the existing mechanisms of setting standards for identification of
such classes, nor was it to be a direction in perpetuity, that status quo
remain forever. It cannot be seriously assumed that if Parliament were
so minded, it cannot bring about changes at all to the Constitution, in
regard to how identification of backward classes is to take place. The
existence of the provision in Article 368, enabling amendments, and the
inapplicability of the proviso to Article 368(2) in relation to the kind of
changes to the Constitution, brought about by introduction of Articles
366 (26C), Article 338B and Article 342A, negates this argument.
137. A reading of the Select Committee’s Report (in relation to
the 102nd Amendment) bears out that various changes to the proposed
amendments were suggested on the ground that on a fair and reasonable
interpretation of its terms, State’s powers to make reservations could be
impacted. The Central Government’s representatives and officials assured
that the State’s role in the process of backward class identification and
listing, would be maintained. None of the amendments proposed,
expressly preserving the state power, were accepted. The dissenting
members were aware that a fair and reasonable interpretation of the
terms of the amendment clearly ousted the State’s powers to identify
backward classes of citizens. This emerges on a reading of a note by
Shri Sukhendu Shekhar Roy, a Member of Parliament who relied on
extracts of the judgment in Indra Sawhney and observed that the
amendments prescribed “for the unitary authority which in effect
shall encroach upon the jurisdiction of the States in the matter of
identifying and specifying the socially and educationally backward
classes”. Three Members, Shri Digvijaya Singh, Shri B.K. Hariprasad,
and Shri Hussain Dalwai, submitted a joint note of dissent which dealt
with the powers of the commission under Article 342A, and also suggested
changes in its composition. Shri Sharad Yadav, another Member of
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Parliament, was of the view that there was no need of any inclusion or
exclusion of the castes and approval thereof should not be left to the
Governor, Parliament and President as it will be a step backward. Dr.Dalip
Kumar Tirkey, Member of the Rajya Sabha, proposed sub-articles (3)
and (4) to Article 342A, enabling the State to publish a list which could
be modified by State Assemblies. Ms. Kanimozhi in her long letter of
dissent, also highlighted the effect of a proposed amendment and insertion
of Article 342A which had the effect of ousting the states’ power, which
they had hitherto exercised to identify SEBCs.
138. The debates in Parliament also witnessed members voicing
apprehensions that the power hitherto enjoyed by the states, would be
whittled down drastically. These fears were allayed by the concerned
Minister who piloted the Bill before both Houses of Parliament. Extracts
of these statements have been set out in extenso in the judgment of
Ashok Bhushan, J.; they are not reproduced here, for the sake of brevity.
139. These materials show that there was on the one hand, an
assumption that the changes ushered by the amendments would not disturb
any part of states’ powers; however, a sizeable number- 8 members,
after a careful reading of the terms of the amendment, dissented, saying
that state power would be adversely impacted. In these circumstances,
the debate which ensued at the time of passing of the Bill into the 102nd
Amendment was by way of
an assurance by the Minister concerned
that the existing power of the states would not be affected. To the same
effect, are debates on the floor of the Houses of Parliament. Given all
these circumstances, it is difficult to accept the contention that the Select
Committee’s Report, to the extent it holds out an assurance, should be
used as a determinative external aid for interpretation of the actual terms
of the 102nd Amendment. Likewise, debates and statements cannot be
conclusive about the terms of the changes brought about by an amendment
to the Constitution. The duty of the court always is to first interpret the
text, and only if there is ambiguity in the meaning, to resort first to internal
aids, before seeking external aids outside the text.
140. It would be useful to recollect that this Court had, through a
seven-judge bench, held that the words of the statute are to be construed
on their own terms and that the task of interpretation should not be
determined by statements made by Ministers and Members of
Parliament. In Sanjeev Coke Manufacturing (supra) it was held that:
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“No one may speak for the Parliament and Parliament is never
before the Court. After Parliament has said what it intends to
say, only the Court may say what the Parliament meant to
say. None else. Once a statute leaves Parliament House, the
Court’s is the only authentic voice which may echo (interpret)
the Parliament. This the court will do with reference to the
language of the statute and other permissible aids.”
141. This aspect was highlighted somewhat more vividly in a recent
decision of this Court in Shivraj Singh Chauhan v. Speaker, Madhya
Pradesh Legislative Assembly122, where it was held that:
“In interpreting the Constitution, it would be not be correct
to rely on the speeches Constituent Assembly of India, Volume
VIII (debate of 1 June 1949) made by individual members of
the Constituent Assembly. Each speech represents the view of
one individual in the Assembly which taken as a whole formed
a kaleidoscope of competing political ideologies. There may
arise instances where the court is of the independent opinion
that the views raised by individual Members of the Constituent
Assembly in their speeches lay down considerations that
warrant examination and approval by the Court. The general
rule however, would be to examine the decisions taken by
Constituent Assembly taken by majority vote. The votes of the
Constituent Assembly represent equally the views of all the
members of the Assembly and are the final and
dispositive
expressions of the constitutional choices taken in framing our
Constitution.”
142. The use of external aids such as speeches and parliamentary
reports was commented upon earlier, rather strongly, by Sabyasachi
Mukherjee, CJ in the decision reported as DTC Mazdoor Congress v.
Delhi Transport Corporation:123
“Construction or interpretation of legislative or rule provisions
proceeds on the assumption that courts must seek to discover
and translate the intention of the legislature or the rule-making
body. This is one of the legal fictions upon the hypothesis of
which the framework of adjudication of the intention of a
122 2020 SCC Online SC 363
123 1990 SCR Supp. (1) 142
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piece of legislation or rule proceeds. But these are fictional
myths to a large extent as experience should tell us. In most
of the cases legislature, that is to say, vast majority of the
people who are supposed to represent the views and opinions
of the people, do not have any intention, even if they have,
they cannot and do not articulate those intentions. On most
of these issues their is no comprehension or understanding.
Reality would reveal that it is only those who are able to exert
their view- points, in a common parliamentary jargon, the
power lobby, gets what it wants, and the machinery is of a
bureaucratic set up who draft the legislation or rule or law.
So, there- fore, what is passed on very often as the will of the
people in a particular enactment is the handy work of a
bureaucratic machine produced at the behest of a power lobby
control- ling the corridors of power in a particular situation.
This takes the mythical shape of the ‘intention of the people’
in the form of legislation. Again, very often, the bureaucratic
machine is not able to correctly and properly transmute what
was intended to be conveyed. In such a situation, is it or is it
not better, one would ponder to ask, whether the courts should
attribute to the law-making body the knowledge of the values
and limitations of the Constitution, and knowledge of the evils
that should be remedied at a particular time and in a situation
that should be met by a particular piece of
legislation, and
the court with the experience and knowledge of law, with the
assistance of lawyers trained in this behalf, should endeavour
to find out what will be the correct and appropriate solution,
and construe the rule of the legislation within the ambit of
constitutional limitations and upon reasonable judgment of
what should have been expressed. In reality, that happens in
most of the cases. Can it be condemned as judicial usurpation
of law-making functions of the legislature thereby depriving
the people of their right to express their will? This is a practical
dilemma which Judges must always, in cases of interpretation
and construction, face and a question which they must
answer.”
143. The polyvocality of parliamentary proceedings where the
views expressed by Ministers or Parliamentarians may not be common
or unanimous and the danger of attributing a particular intention to the
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terms of a statute, through the words of a Minister or other functionary
which may be at odds with the plain words, cannot be lost sight of.
144. In the decision reported as BBC Enterprises v.Hi-Tech
Xtravision Ltd.,124 the court cautioned against the use of the purposive
interpretation rule, saying that
“the courts should now be very reluctant to hold that
Parliament has achieved nothing by the language it used,
when it is tolerably plain what Parliament wished to achieve.”
145. This caution was accepted in Balram Kumawat v. Union
of India 125 where it was held as follows:
“26. The courts will therefore reject that construction which
will defeat the plain intention of the legislature even though
there may be some inexactitude in the language
used.[See Salmon v. Duncombe [Salmon v. Duncombe, (1886)
LR 11 AC 627 (PC)] (AC at p. 634).] Reducing the legislation
futility shall be avoided and in a case where the intention of
the legislature cannot be given effect to, the courts would
accept the bolder construction for the purpose of bringing
about an effective result. The courts, when rule of purposive
construction is gaining momentum, should be very reluctant
to hold that Parliament has achieved nothing by the language
it used when it is tolerably plain what it seeks to achieve.
[See B.B.C. Enterprises Ltd. v. Hi-Tech Xtravision Ltd. [B.B.C.
Enterprises Ltd. v. Hi-Tech Xtravision Ltd., (1990) 2 All ER
118 : 1990 Ch 609
: (1990) 2 WLR 1123 (CA)] (All ER at pp.
122-23).]”
146. Taking into consideration the amendment to Section 123 of
the Representation of People’s Act, which introduced a new corrupt
practice, i.e. the candidate making an appeal on the basis of his religion
or caste, this court took the aid of the doctrine of purposive construction,
in Abhiram Singh v. C.D. Commachen126. The majority judgment
adopted a wide interpretation, whereby any appeal on proscribed grounds,
by the candidate, for himself, against his rival, or to the voter, would
constitute a corrupt practice:
124 1990) 2 All ER 118
125 (2003) 7 SCC 628
126 (2017) 2 SCC 629
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“47. There is no doubt in our mind that keeping in view the
social context in which clause (3) of Section 123 of the Act
was enacted and today’s social and technological context, it
is absolutely necessary to give a purposive interpretation to
the provision rather than a literal or strict interpretation as
suggested by the learned counsel for the appellants, which,
as he suggested, should be limited only to the candidate’s
religion or that of his rival candidates. To the extent that this
Court has limited the scope of Section 123(3) of the Act
in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap
Singh Daulta, (1964) 6 SCR 750 : AIR 1965 SC 183] , Kanti
Prasad Jayshanker Yagnik [Kanti Prasad Jayshanker
Yagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC
455] and Ramesh Yeshwant Prabhoo [Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 :
(1995) 7 Scale 1] to an appeal based on the religion of the
candidate or the rival candidate(s), we are not in agreement
with the view expressed in these decisions. We have nothing
to say with regard to an appeal concerning the conservation
of language dealt with in Jagdev Singh Sidhanti [Jagdev
Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 :
AIR 1965 SC 183] . That issue does not arise for our
consideration.
************
Conclusion
50. On a consideration of the entire material placed before
us by the learned counsel, we record our conclusions as
follows:
50.1. The provisions of
clause (3) of Section 123 of the
Representation of the People Act, 1951 are required to be
read and appreciated in the context of simultaneous and
contemporaneous amendments inserting clause (3-A) in
Section 123 of the Act and inserting Section 153-A in the
Penal Code, 1860.
50.2. So read together, and for maintaining the purity of the
electoral process and not vitiating it, clause (3) of Section
123 of the Representation of the People Act, 1951 must be
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given a broad and purposive interpretation thereby bringing
within the sweep of a corrupt practice any appeal made to an
elector by a candidate or his agent or by any other person
with the consent of a candidate or his election agent to vote
or refrain from voting for the furtherance of the prospects of
the election of that candidate or for prejudicially affecting
the election of any candidate on the grounds of the religion,
race, caste, community or language of (i) any candidate, or
(ii) his agent, or (iii) any other person making the appeal
with the consent of the candidate, or (iv) the elector.
50.3. It is a matter of evidence for determining whether an
appeal has at all been made to an elector and whether the
appeal if made is in violation of the provisions of clause (3)
of Section 123 of the Representation of the People Act, 1951.”
147. After the decision in Indra Sawhney, the NCBC Act was
enacted by Parliament in 1993. The scheme of that enactment showed
that the NCBC was tasked with making recommendations for various
purposes; especially, (by Section 9 (1)) to “examine requests for
inclusion of any class of citizens as a backward class in the lists
and hear complaints of over-inclusion or under-inclusion of any
backward class in such lists and tender such advice to the Central
Government as it deems appropriate”. By all accounts, that commission
embarked on its task and identified SEBCs in all the 31 states
and union
territories in India. According to the information available127, as many as
2479 castes and communities have been notified as backward classes,
throughout the entire country, in relation to each state and union territory.
It is nobody’s case that the statutory commission – NCBC was not
functioning properly, or that there was any interference with its work.
Nor is there any suggestion that states voiced resentment at the decisions
or recommendations of the NCBC. Given these, the important question
that hangs in the air- if one can say so- is why did Parliament have to go
to such great lengths, to merely confer constitutional status, upon the
NCBC, and at the same time, tie the hands of the Union Government,
robbing it of the flexibility it always had, of modifying or amending the
list of OBCs for the purposes of the Union Government and Central
public sector employment, and for purposes of schemes and admission
to institutions, under Article 15(4).
127 Website of the Ministry of Social Justice, Central Government: http://
socialjustice.nic.in/UserView/index?mid=76674 accessed on 12.04.2012 at 22.02 hrs.
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148. It was asserted by the Attorney General and the states, that
the move to amend the Constitution was only to empower the Central
Government to publish a list, for union employment and Central PSU
posts. That power always existed- under the NCBC Act. Concededly,
the states were not interfering with those lists. The Union always had
and exercised power to add or vary the contents of such lists for central
posts, PSUs and institutions, whether it enacted a law or not. There is no
reason why rigidity had to be imparted to the position with regard to
preparation of a list, by taking away the flexibility of the President to
amend the lists, and requiring it to approach Parliament, after initially
publishing a list under Article 342A. Again, if this court’s direction in
Indra Sawhney is the reason, then there is no enabling legislation in all
states, for setting up commissions. Rather, to require the President on
the aid and advice of the Union Council of Ministers to issue a notification
which can be only changed by Parliament (by reason of Article 342A),
is mystifying.
149. The interpretation suggested by the respondents, and by Ashok
Bhushan, J., that the power of the states, which existed till the 102nd
Amendment was made, continues unimpeded, is not borne out. Such an
interpretation amounts to saying that Parliament went to great lengths
by defining, for the first time, the term SEBC128 in the Constitution, and
provided for one notification under
Article 342Aissued by the President,
which would “specify the socially and educationally backward
classes which shall for the purposes of this Constitution be deemed
to be socially and educationally backward classes in relation to
that State or Union territory”, and then, restricted the width of the
term “deemed for purposes of this Constitution” by giving primacy to
the term “Central List”. Such an interpretation restricts the specification
of a community as backward, in relation to that State or Union
territory, only for purposes of the Central List, i.e., for purposes of
central government employment and Central Institutions. Such an
interpretation with respect, is strained; it deprives plain and grammatical
meaning to the provisions introduced by the 102nd Amendment, has the
effect of tying the hands of the Central Government, and at the same
time, grants the states unlimited latitude in the manner of inclusion of
any class of citizens as backward.
128 which per Article 366 (26C) “means such backward classes as are so deemed under
article 342A for the purposes of this Constitution”
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150. The claim that the interpretation suggested by the respondents
is pragmatic and conforms to the doctrine of purposive interpretation,
with respect, cannot be accepted. It completely undermines the width
and amplitude of the following:
(a)
The deeming fiction introduced by the 102nd Amendment,
while inserting Article 366 (26C);
(b)
The use of the term “means” which has been interpreted
to imply an exhaustive definitional expression, in several
decisions of this court129, as a device to place the matter
beyond the pale of interpretation, to ensure that the only
meaning attributable is the one directed by the provision.
Thus, SEBCs are, by reason of Article 366 (26C) only those
deemed to be so under Article 342A.
(c)
The emphasis is on the community- upon being included,
under Article 342A,  for the purposes of this Constitution
being “deemed to be” socially and educationally backward
classes, in Article 366 (26C). Thus, for all purposes under
the Constitution, such communities are deemed to be
SEBCs.
(d)
The logical corollary is that such inclusion is for the purposes
of the constitution, to enable state and central government
benefits, i.e. welfare measures, special provisions under
Articles 15 (4) and 15 (5), as well as employment, under
Article 16 (4). The enactment of this provision excludes all
other methods of identification, by any other body - either
the state, or any state commission or authority.
(e)
The use of the expression for the purposes of this
Constitution, - in Article 342A (1), also emphasizes the
idea that for all purposes, i.e under Article 15 (4), 15 (5),
129 Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court, (1990) 3 SCC 682 where a Constitution Bench stated:
“72. The definition has used the word ‘means’. When a statute says that a word
or phrase shall “mean”— not merely that it shall “include” — certain things or acts,
“the definition is a hard-and-fast definition, and no other meaning can be assigned to
the expression than is put down in definition” (per Esher, M.R.,Gough v. Gough[(1891)
2 QB 665] ). A definition is an explicit statement of the full connotation of a term.”
Also P. Kasilingam v PSG College of Technology 1995 Supp (2) SCC 348;
Black Diamond Beverages v Commercial Tax Officer 1998 (1) SCC 458; Godrej and
Boyce Manufacturing Co v State of Maharashtra 2014 (3) SCC 430.
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and 16 (4), only the communities or classes deemed to be
SEBCs under Article342A would be treated as such, in
relation to the State or Union territory concerned.
(f)
Article 338 (10) was amended, to delete references to
backward class of citizens. It originally stated that scheduled
castes also included references “to such other backward
classes as the President may, on receipt of the report of
a Commission appointed under clause (1) of article 340,
by order specify and also”. These expressions were
omitted and an entirely new provision, exclusively for
purpose of socially and educationally backward classes, was
inserted (Article 338B), which has to independently consider
all aspects relating to SCBCs, in a manner identical to SCs
and STs.
151. If all these factors are kept in mind, there can be no room for
doubt that “the Central List” in Article 342A (2) is none other than the
list published in Article 342A(1) for the purposes of the Constitution.
This means that after the introduction of these provisions, the final say in
regard to inclusion or exclusion (or modification of lists) of SEBCs is
firstly with the President, and thereafter, in case of modification or
exclusion from the lists initially published, with the Parliament.
152. This sequitur is the only reason why change was envisioned
in the first placeby Parliament, sitting in its constituent capacity, no
less, which is to alter the entire regime by ensuring that the final say in
the matter of
identification of SEBCs would follow the same pattern as
exists, in relation to the most backward classes among all citizens, (i.e.
the SCs and STs, through Articles 338, 338A, 341 and 342). Too much
cannot be read into the use of the expression the Central list for the
simple reason that it is a list, prepared and published by the President, on
the aid and advice of the Union Council of Ministers. The term Central
is no doubt, unusual, but it occurs in the Constitution in several places. At
the same time, the Council of Ministers headed by the Prime Minister
advices the President and provides information relating to the
administration of the affairs of the Union and proposals for
legislation (Article 78). Similarly, Article 77 uses the term “the
Government of India”. Given that these terms are used interchangeably,
and mean the same, “the Central List” carries no other signification
than the list notified under Article 342A(1), by the President at the behest
of the Central Government.
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153. It is noticeable that Article 367 of the Constitution of India
incorporates, by reference, the definitions set out in the General Clauses
Act, 1897, as those operating in relation to expressions not defined
expressly in the Constitution itself130. By Section 3 (8) (b) of that Act,
“Central Government” means, after commencement of the
Constitution, the President of India.131 In a recent decision, K.
Lakshminarayanan v. Union of India132 this court held that
130 367. Interpretation.—(1) Unless the context otherwise requires, the General Clauses
Act, 1897, shall, subject to any adaptations and modifications that may be made therein
under article 372, apply for the interpretation of this Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India.
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament,
or to Acts or laws of, or made by, the Legislature of a State, shall be construed as
including a reference to an Ordinance made by the President or, to an Ordinance made
by a Governor, as the case may be.
(3) For the purposes of this Constitution ¯ “foreign State” means any State
other than India:
Provided that, subject to the provisions of any law made by Parliament, the
President may by order4 declare any State not to be a foreign State for such purposes as
may be specified in the order.”
131 General Clauses Act
“3. Definitions—In this Act, and
in all Central Acts and Regulations made after
the commencement of this Act, unless there is anything repugnant i
n the subject or context,
*****
(8) “Central Government”shall—
(a) in relation to anything done before the commencement of the Constitution,
mean the Governor General or the Governor General in Council, as the case may be;
and shall include—
(i) in relation to functions entrusted under sub-section (1) of section 124 of the
Government of India Act, 1935, to the Government of a Province, the Provincial
Government acting within the scope of the authority given to it under that subsection;
and
(ii) in relation to the administration of a Chief Commissioner’s Province, the
Chief Commissioner acting within the scope of the authority given to him under sub-
section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the
Constitution, mean the President; and shall include—
(i) in relation to functions entrusted under clause (1) of article 258 of the
Constitution, to the Government of a State, the State Government acting within the scope
of the authority given to it under that clause; 1 ***
(ii) in relation to the administration of a Part C State 2 before the commencement
of the Constitution (Seventh Amendment) Act, 1956], the Chief Commissioner or the
Lieutenant Governor or the Government of a neighbouring State or other authority
acting within the scope of the authority given to him or it under article 239 or
article 243
of the Constitution, as the case may be; and
(iii) in relation to the administration of a Union territory, the administrator
thereof acting within the scope of the authority given to him under article 239 of the
Constitution”
132 (2020) 14 SCC 664
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“24. Thus, it is clear that the definition of Central Government,
which means the President is not controlled by the second
expression “and shall include the Administrator”. The ordinary
or popular meaning of the words “the President” occurring
in Section 3(8)(b) has to be given and the second part of the
definition shall not in any way control or affect the first part
of the definition as observed above. In the definition of
Central Government, an Administrator shall be read when he
has been authorised or delegated a particular function under
the circumstances as indicated above. No statutory rules or
any delegation has been referred to or brought on record
under which the Administrator is entitled or authorised to
make nomination in the Legislative Assembly of the Union
Territory of Puducherry. Thus, in the present case, the
definition of Central Government, as occurring in Section
3(3) of the 1963 Act has to be read as to mean the President
and not the Administrator. The issue is answered accordingly.”
Article 342A (1) does not use the expression “Central
Government”. Nevertheless, Article 342A (2) uses the expression
“Central List” which has led to an elaborate interpretive discourse. If
the logic of Article 367 (1) of the Constitution, together with Section 3
(8) (b) of the General Clauses Act, were to be applied, “Central List”
necessarily refers to the list under Article 342A (1), which is prepared
by the President, for the purpose of the
Constitution. The other
interpretation, with respect, would be unduly narrow and restrictive; it
would have the effect of adding words such as to the effect that the
Central List, would “apply in relation to the Central Government”.
Such an addition of terms, with respect, cannot be resorted to, when
interpreting a Constitutional amendment, The amended provisions clearly
state that the determination is for the purpose of the Constitution and
that SEBCs (per Article 366 (26C) are deemed to be as determined in
Article 342A; Article 342A states that the President shall by notification
publish SEBCs in relation to states and union territories, for the purpose
of the Constitution.
154. There are other compelling reasons too, why the restrictive
interpretation of Article 342A, limiting the exercise of identification for
the purpose of central employment and central benefits(and not made
applicable to states) is to be avoided as opposed to the interpretation
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based on the plain language of the new provisions, which has to be
adopted.
155. Parliament, through the 102ndAmendment clearly intended
that the existing legal regime for identification of communities as SCs
and STs and for their inclusion in the list of SCs and STs under Articles
341 and 342, which had hitherto existed, ought to be replicated in relation
to identification of SEBCs. To achieve that, Parliament inserted Article
338B – which is a mirror image of Articles 338 and 338A. The tasks
assigned to the new Commission for Backward Classes which is
envisioned as a multi-member Commission, are radically different from
the duties which were assigned by Parliament in the NCBC Act. Under
Section 9 of the erstwhile NCBC Act, which was repealed just before
the commencement of the 102nd amendment, the NCBC was to examine
requests for inclusion of any class of citizens as backward classes in the
list and the advice of the Commission was ordinarily binding upon the
Central Government. Section 11 provided for a periodical revision of
lists. As noticed by Ashok Bhushan, J., Article 338B envisions a larger
role for the new Commission. This Commission not only advises the
Central Government but also the States. It is impossible to read Article
338B in isolation from the pre-existing parimateria provisions; it must
be interpreted in the light of the other two provisions which had existed
all this while – Articles 338 and
338A. Those provisions clearly
contemplate the same consultative role with the Commission on policy
matters, of the Central Government as well as the State Governments.
This is evident from sub-article (9) of these Articles. Thus, the
Commission – under Article 338B is not only assigned a constitutional
role but is also expected to act as an expert and engage with experts in
the determination of the communities. Article 338B(5) uses the term
“SEBC” no less than on six occasions. The expression also occurs in
Article 338B(9). Thus, for the purposes of the Constitution, the
Commission newly established under Article 338B, i.e., the National
Commission for Backward Classes shall be the only body to whom both
the Central Government and the State Governments have to turn, in all
matters of policy. Necessarily, the question of matters of policy would
also include identification of castes or communities as backward classes.
156. If the intention of the Parliament in amending the Constitution
were to merely confer or clothe the National Commission with
constitutional status, the matter would have ended by inserting Article
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338B. To that end, the argument of the respondents is understandable.
Short of the task of identification, (which could have continued with the
states), if the amendment had not inserted Article 342A, the States would
have been duty bound to consult the Commission under Article 338B.
The interpretation by Ashok Bhushan, J. to that extent might have been
acceptable. However, that the Constitution was amended further to
introduce Article 342A, containing the phraseology that it does, adding
an entirely new dimension which the court has to interpret, after
considering the light of the previous authorities, as also whenever new
provisions were added to the Constitution and more importantly, when
such amendments were also accompanied by changes in the definition
clause.
157. The previous part of this judgment has discussed various
authorities which had considered one or the other clauses of Article 366,
i.e the NDMC case, Tata Consultancy (supra), Willamson Financial
Services (supra). The NDMC case was decided by a nine-judge bench;
in all the other decisions, this court gave the fullest latitude to the
expressions in the definition clause while interpreting them in the peculiar
facts of the case. Similarly, when constitutional amendments introduced
new definitions such as in Article 366(29A), judicial interpretation leaned
in favour of giving literal meaning to the terms used which had led to
change in the existing tax regime. Such changes too limited the
State’s
legislative powers. Thus, for instance, in the Constitution bench judgments
in Builders Association (supra) and in 20th Century Leasing (supra),
this Court had decisively ruled that the taxing power of the States was
explained by the amendment but at the same time was limited in more
than one manner by the express terms which had introduced a new
entry in the Central or Union legislative field. Furthermore, the principles
on which taxation could be resorted to by the States too had to be defined
by the Union Government. In other cases, whenever constitutional
amendments brought about changes in the existing status quo like in
Kihoto Hollohan (supra) or limited the legislative power constraining
the state from expanding its council of ministers beyond a certain
percentage as with the introduction of Article 164(1A)in Bimolangshu
Roy(supra). This Court gave full literal effect to the terms of the
amendment after understanding the rationale for the change.
158. In Ashok Kumar Thakur (supra) and N. Nagraj (supra)
the changes brought through Constitutional Amendments were the subject
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matter of interpretation. In Nagaraj, they were also the subject matter
of challenge on the ground that the amendments violated the basic
structure of the Constitution. There too, the Court interpreted the terms
of the amendment by adopting a plain and literal meaning and not by
cutting down or reading down any term or phrase. In Ashok Kumar
Thakur (supra), the introduction of the new and radical Article 15(5)
enabled States to make special provisions for socially and educationally
backward classes of citizens, in unaided private educational institutions.
159. Given the weight of such precedents- which point to this
court(i) giving full effect to newly added provisions, (ii) by adopting the
literal meaning in the definition, set out in the Constitution (iii) as well as
in the amendments to the definition clause, and (iv) all of which noticed
the changes brought about through the amendments, and gave them
plain effect, it is difficult to accept that the power of amendment of the
Constitution, in accordance with the special procedure set out in Article
368 – was used to about bring cosmetic changes conferring constitutional
status to NCBC. The conferment of constitutional status – as was noticed
previously, is achieved by only inserting Article 338B. However, the fact
that it mirrors the previous two provisions of Articles 338 and 338A and
borrows from that pattern clearly suggests that the new Commission is
to have
an identical role much like the Commissions that advice the
Central Government and Parliament with respect to all matters pertaining
to SCs and STs. Therefore, the new Commission is expected to play a
decisive role in the preparation of lists, which the Constitution set apart
as one list, deemed to be the list of SEBCs for the purposes of Constitution
in relation to every State and Union Territory. The interplay between
Articles 366(26C) and 338B is therefore crucial. The term “deemed to
be for the purposes of this Constitution” and a reference to Article
342A would necessarily mean that even the provision under Article 338B,
is to be interpreted in the same light. In other words, were the intention
merely to confer constitutional status, that would have been achieved by
an insertion of the provision in Article 338B without any other amendment,
such as being in the definition clause under 366 or the insertion of 342A.
160. The change brought about by the 102ndAmendment by
introducing Sub-Article (26C) to Article 366 and inserting a new provision
- Article 342A, to my mind, brings about a total alignment with the existing
constitutional scheme for identification of backward classes, with the
manner and the way in which identification of SCs and STs has been
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undertaken hitherto, by the Central Government culminating in Presidential
notifications. That task is aided by two Commissions - respectively for
SCs and STs, much as in the case of the new National Commission for
Backward Classes which will undertake the task of aiding and advising
the Central Government for issuing the notification for the purposes of
the Constitution under Article 342A. The pattern of finality and a single
list, in relation to every State and UT – which exists in relation to SCs
and STs (Articles 341 and 342) now has been replicated with the
introduction of Article 342A.
161. There have to be strong, compelling reasons for this Court to
depart from the interpretation which has been hitherto placed on the
definition clause. As has been demonstrated in more than one case, the
interpretation of the definition clause in its own terms in respect of the
original constitutional provisions as well as the new terms brought in by
way of amendment (which also brought in substantive amendments)
have consistently shown a particular trend. If one keeps in mind the
interpretation of Articles 341 and 342 from the earliest decision in
Bhayalal (supra) and Bir Singh (supra), the only conclusion is that the
task of examining requests or demands for inclusion or exclusion is in
the first instance only with the President [Article 342(1)]. In this task,
the President, i.e. the Central Government is aided by the work of the
Commissions set up under
Articles 338 and 338A. Upon the publication
of the list containing the notification under Articles 341(1) and 342(1),
for the purposes of the Constitution in relation to the concerned State or
the concerned UT, the list of SCs and STs is conclusive. Undoubtedly,
these were the original provisions. Yet, one must be mindful of a crucial
fact, which is that the task for making special provisions under Article
15 and for making reservations under Article 16(4) extends to the States.
The power exercised by the President in relation to every State vis-à-
vis SCs and STs has been smooth and by all accounts, there has been no
resentment or friction. Once the concerned community or caste is
reflected in the list of one or the other State or Union Territory, the
extent of the benefits to be provided to members of such community is a
matter that lies entirely in the States’ domain. The amendment or
modification of any State list, can be undertaken only by Parliament, not
even by the President.
162. Much like in the case of the alignment of Article 338B with
the other two previously existing provisions of the Constitution, Article
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342A aligns the function (of identification of SEBCs and publishing the
list, by the President) with Articles 341 and 342. These three sets of
consecutive provisions, share their umbilical cord with the definition clause
[Article 366(24) in relation to SCs; Article 366(25) in relation to STs and
the new 366(26C) in relation to SEBCs]. This two-way linkage between
the definition clause with the substantive provisions is not without
significance. As has been held in Marri Chandra Shekar (supra);
Action Committee (supra) and Bir Singh (supra), the expression “for
the purposes of the Constitution” has to be given fullest weight.
Therefore, whenever lists are prepared under these three provisions in
relation to States or UTs, the classes and castes included in such list and
no other are deemed to be castes or classes falling within the one or the
other category (SCs, STs, SEBCs) in relation to the particular State or
UT for the purposes of the Constitution.
163. If one were to, for the sake of argument, consider the
deliberations before the Select Committee reflected in its report, it is
evident that amendments at three places were moved to place the matter
beyond controversy and clarify that States’ jurisdiction and power to
identify SEBCs would remain undisturbed. To achieve this, proposed
Articles 342A(3) & (4) were introduced. These proposed amendments
were not accepted; and were dropped. No doubt, the rationale for
dropping (the amendments) was the impression given in the form of an
assurance that the express terms of the amendment did not divest the
States of their power. Further, paras 56 and 57 of the Select Committee
report clearly state that the Governor acts on the aid and advice of the
Council of Ministers of the State and that Articles 341 and 342 provide
for consultation with the Governor in relation to SCs and STs of the
concerned States. The assurance held out was that, “at no time has the
State been excluded in the consultation process. It is by way of the
State Government invariably which recommends to the President
the category of inclusion/exclusion in the SCs and STs. Similar
provision is provided for in the case of conferring of constitutional
status to backward classes for inclusion in Central List of SEBCs in
consultation with Governor” thereby implying consultation with the
State Government. It was also stated in para 57 (of the report)that “the
expression ‘for the purpose of this Constitution’ is identical to that
phrase in Article 341 and Article 342.”
164. The deliberations of the Select Committee report only show
that the existing pattern of identification and inclusion of SCs and STs
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which entailed the active involvement of the States was sought to be
replicated for the purpose of preparing the list, of OBCs, by the President.
It was emphasised during the course of arguments, an aspect that finds
due reflection in the draft judgment of Ashok Bhushan, J. that the term,
“the Central List” is of crucial significance because it in fact controls
the entire provision, i.e., Article 342A, that it is in line with the Select
Committee Report as well as Parliamentary debates and that this Court
has to give it a purposive interpretation. In my respectful opinion, an
isolated consideration of the expression, “the Central List” containing
classes and communities which are deemed to be backward for the
purpose of the Constitution, would undermine the entire constitutional
scheme. Parliamentary intent, on the contrary, clearly was to replicate
the existing pattern for inclusion in the list of SCs and STs for SEBCs –
(a term that had not been defined in the Constitution till then). Yet another
way of looking at the matter is that Article 342A(1) is the only provision
which enables the publication of one list of SEBCs. This provision clearly
talks of publication of a list through a Presidential notification for the
purpose of the Constitution after the process of identification. It is this
list which contains members of classes or communities which can be
called as SEBCs by virtue of Article 366(26C). In other words, the subject
of Article 342A(1)
determines the subject of Article 366(26C)which in
turn controls and guides the definition of the term “SEBCs” for the entire
Constitution. This is achieved by using emphatic terms such as “means”
and “deemed to be”. A similar emphasis is to be found in Article 342A(1)
which uses “shall for the purposes of the Constitution”. In both cases,
i.e. Articles 366(26C) and 342A(1), there are no words limiting, or terms
indicative of restriction as to the extent to which such inclusion is to
operate. Thus, like in the case of Articles 341 and 342, those classes and
castes included in the list of SEBCs in relation to every State and every
UT are:
(i) For the purposes of the Constitution;
(ii) deemed to be SEBCs in relation to concerned State or Union
Territory.
165. The width and amplitude of the expression “shall be deemed
to be” of the expression cannot be diluted or cut down in any manner
whatsoever. If one understands that this list in fact identifies SEBCs for
the purposes of the Constitution, all that follows in Article 342A(2) is
that such list can only be amended by Parliament. The Court, therefore,
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has to see the object and content of the entire Article to determine what
it means. So viewed, firstly it is linked with Article 366(26C) and the use
of the terms “means” and “deemed” in the definition is decisive, i.e.,
that there can be no class or caste deemed for the purposes of
Constitution other than those listed under Article 342A. Secondly, Article
342A(1) is the only provision conferring power by which
identification is undertaken by the President in the first instance.
This identification and publication of the list containing the cases and
communities is in relation to each State and each Union Territory. Third,
after publication of this notification, if changes are brought about to it by
inclusion or exclusion from that list, (called the “Central List” of SEBCs
for the first time), Parliament alone can amend it. It is important that the
expression “the Central List” is clarified by the phrase “socially and
educationally backward classes specified in a notification under
Clause (1)” which is reinforced subsequently by the use of the term
“aforesaid notification”. Thus, the subject matter of initial identification
and publication of the list for the purposes of the Constitution is by the
published President alone (under the aid and advice of the Union Council
of Ministers) and any subsequent variation by way of inclusion or
exclusion can be achieved only through an amendment by law, of that
list.
166. If
one interprets the entire scheme involving Articles
366(26C), 342A(1) and 342A(2), the irresistible conclusion that follows
is that the power of publishing the list of SEBCs, in relation to every
State and Union Territory for the purposes of the Constitution is with the
President only. Such notification is later called as the Central List by
Article 342A(2); it can only be amended by the Parliament. The contrary
interpretation virtually reads into the provisions of the Constitution
amendments which were proposed and expressly rejected in the
proceedings of the Select Committee; it also has the effect of reading in
what certain dissenting members had proposed. Furthermore, by the
interpretive process of taking into account the deliberations before the
Select Committee, and speeches on the floor of the Parliament this Court
would be reading into the Constitution provisions which no longer exist
i.e., that the State can continue to carry out identification of SEBCs.
This exercise would be contrary to the express terms.
167. Therefore, the above expressions, having regard to the
precedents of this Court with respect to (i) interpretation of the definition
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clause under Article 366; (ii) interpretation of new definitions inserted in
Article 366 and (iii) interpretation of amendments made to the Constitution
which inserted new provisions, where the Court always leant in favour
of giving fullest effect to the substantive provisions, this court has to
adopt the same approach, to usher change, by plain, literal construction.
This court never whittled down the terminology through extrinsic aids
such as speeches made on the floor of the Parliament or Select
Committee reports. In this instance, doing so would be giving effect to
what Parliamentarians said or Ministers said, ignoring thereby, the plain
terms of the Constitution. As stated earlier, the Court cannot assume
that Parliament merely indicated a cosmetic change by conferment of
constitutional changes which could have been best achieved by introducing
Article 338B.
168. Besides the judgment in Kihoto Hollohan (supra), this court,
in Raghunathrao Ganpatrao v. Union of India133, dwelt on the duty
of this court, to discern the meaning, and give effect to amendments to
the Constitution. The court quoted from Walter F. Murphy, who
in Constitutions, Constitutionalism and Democracy explained what
an ‘amendment’ meant:
“Thus an amendment corrects errors of commission or
omission, modifies the system without fundamentally changing
its nature — that is, an amendment operates within the
theoretical parameters of the existing Constitution.”
This court then observed as
follows:
“86. In our Constitution, there are specific provisions for
amending the Constitution. The amendments had to be made
only under and by the authority of the Constitution strictly
following the modes prescribed, of course subject to the
limitations either inherent or implied. The said power cannot
be limited by any vague doctrine of repugnancy. There are
many outstanding interpretative decisions delineating the
limitations so that the constitutional fabric may not be impaired
or damaged. The amendment which is a change or alteration
is only for the purpose of making the Constitution more
perfect, effective and meaningful. But at the same time, one
should keep guard over the process of amending any
133 1994 Supp (1) SCC 191
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