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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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.
(Underlined by us)
4. The National Commission for the Scheduled Castes has
recommended in its Report for 2014-15 that the handling of the
grievances of the socially and educationally backward classes
under clause (10) of article 338 should be given to the National
Commission for Backward Classes.
5. In view of
the above, it is proposed to amend the Constitution
of India, inter alia, to provide the following, namely:—
(a) to insert a new article 338 so as to constitute the National
Commission for Backward Classes which shall consist of a
Chairperson, Vice-Chairperson and three other Members. The
said Commission will hear the grievances of socially and
educationally backward classes, a function which has been
discharged so far by the National Commission for Scheduled Castes
under clause (10) of article 338; 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.
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6. The Bill seeks to achieve the above objectives.
NEW DELHI;
THAAWARCHAND GEHLOT.
The 30th March, 2017.”
340. By the Constitution 102nd Amendment, Articles 338 sub-clause
(10), new Article 338B, Article 342A and 366(26C) were inserted.
341. In the writ petition before the High Court, the question was
raised “whether the Constitution (One Hundred and Second Amendment)
Act, 2018 affects the competence of the Legislature to enact the
impugned Legislation.” The High Court noticed the parliamentary process
including the report of Select Committee. The High Court held that use
of Central List in sub-clause (2) of Article 342A is not in vacuum but it
must take its due meaning in reference to the context. The High Court
held that Parliament being conscious of the facts that there are two lists
operating in various States, firstly, for providing reservation prescribed
by the Central Government in Central services and the other list for
providing reservation by the respective State Governments, the Parliament
intended that it would retain the power to include or exclude from the
Central List. The High Court, further, held that had the Parliament
intended to deprive the State of its power, it would have specifically
mentioned so. The High Court rejected the submission of the learned
counsel for the appellants that the Constitution 102nd Amendment denuded
the power of the State to legislate with regard to other backward
categories in respect to State.
342. We have
also noticed that Writ Petition (C) No.938 of 2020-
Shiv Sangram and another vs. Union of India and others, had been filed
questioning the constitutional validity of the Constitution 102nd
Amendment.
PRINCIPLES TO INTERPRET CONSTITUTIONAL
PROVISIONS
343. We in the present case are concerned with Constitutional
Amendment brought by the Constitution (One Hundred and Second
Amendment) Act, 2018. The Constitutional Amendment is not a normal
legislative exercise and it is always carried out with an object and the
purpose. The Constitution of India is a grand norm given to us by the
Framers of the Constitution with great deliberations and debates. The
Constitution contained the objectives and goals of the nation and contains
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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ideals For the governance by the State. Justice G.P. Singh in ‘Principles
of Statutory Interpretation’, 14th Edition under the heading ‘Intention
of the Legislature’ explains the statutory interpretation in following
words:
“A statute is an edict of the Legislature” and the
conventional way of interpreting or construing a statute is to seek
the ‘intention’ of its maker. A statute is to be construed according
‘to the intent of those that make it’ and ‘the duty of judicature is to
act upon the true intention of the Legislature-the mens or sententia
legis’.” The expression ‘intention of the Legislature’ is a shorthand
reference to the meaning of the words used by the Legislature
objectively determined with the guidance furnished by the accepted
principles of interpretation. “If a statutory provision is open to
more than one interpretation the court has to choose that
interpretation which represents the true intention of the Legislature,
in other words the legal meaning’ or ‘true meaning’ of the statutory
provision.”
344. Chief Justice, Sir, Maurice Gwyer speaking in Federal Court,
in The Central Province and Berar Sales of Motor Spirit and
Lubricants Taxations Act, 1938, AIR 1939 Federal Court 1, held
that rules which apply to the interpretation of other statute applies equally
to the interpretation of the constitutional enactment. But their application
is of necessity condition by the subject matter of the enactment
itself.
345. On the interpretation of the Constitution of India, a Constitution
Bench of this Court in ITC Ltd. vs. Agricultural Produce Market
Committee and others, (2002) 9 SCC 232, laid down following
proposition in paragraph 59:
“59. The Constitution of India deserves to be interpreted,
language permitting, in a manner that it does not whittle down the
powers of the State Legislature and preserves the federalism while
also upholding the Central supremacy as contemplated by some
of its articles.”
346.  It is said that the statute is an edict of the Legislature. The
elementary principle of interpreting the Constitution or statute is to look
into the words used in the statute, when the language is clear, the intention
of the Legislature is to be gathered from the language used. The aid to
interpretation is resorted to only when there is some ambiguity in words
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or expression used in the statute. The rule of harmonious construction,
the rule of reading of the provisions together as also rule of giving effect
to the purpose of the statute, and few other principles of interpretation
are called in question when aids to construction are necessary in particular
context. We have already noticed the Statement of Objects and Reasons
of the statute in the earlier paragraph. Paragraph 5 of the Statement of
Objects and Reasons mentions amendment of Constitution by (a) inserting
a new Article 338B so as to constitute the National Commission for
Backward Classes 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. The Bill was moved by Thawarchand
Gehlot, Minister of Social Justice and Empowerment.
347. Learned counsel for both the parties have advanced the
respective submissions on the interpretation of words “Central List” as
used in clause (2) of Article 342A. Both the parties having advanced
divergent submissions on the true and correct interpretation of “Central
List”, it becomes necessary to take aid of interpretation. What was the
purpose and object of uses of expression ‘Central List’, sub-clause (2)
of Article 342A has to be looked into to find a correct meaning of the
constitutional provisions.
348. We have noticed above that learned Attorney General as
well as learned counsel for the State of Maharashtra and
other States
have relied on Select Committee report, debates in Parliament and the
Statement of Minister to find out the intention of the Parliament in inserting
Article 342A of the Constitution.
349. Shri Gopal Sankaranarayanan, learned senior counsel for
the petitioner has questioned the admissibility of Parliamentary Committee
report. He submits that Parliamentary Committee report is not admissible
and cannot be used as aid to interpretation which submission has been
refuted by Shri P.S. Patwalia, learned senior counsel as well Dr. A.M.
Singhvi, learned Senior Counsel, who state that Parliamentary Committee
report as well the Statement made by the Minister in the Parliament are
admissible aids to the interpretation and are necessary to find out the
intention of the Parliament in bringing the 102nd Amendment to the
Constitution. We, thus, proceed to look into the law as to admissibility of
report of Parliamentary Committee and Statement of Minister in the
Parliament as aids to interpret a constitutional provision.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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350. Shri Gopal Sankaranarayanan, relying on the judgment of
this Court in State of Travancore, Cochin and others vs. Bombay
Company Ltd., AIR 1952 SC 366, submits that this Court observed
that the “speeches made by the members of the Constituent Assembly
as external aid to the constitutional interpretation is not admissible. Mr.
Gopal Sankaranarayanan relies on paragraph 16 of the judgment which
is to the following effect:
“16. It remains only to point out that the use made by the
learned Judges below of the speeches made by the members of
the Constituent Assembly in the course of the debates on the
draft Constitution is unwarranted. That this form of extrinsic aid
to the interpretation of statutes is not admissible has been generally
accepted in England, and the same rule has been observed in the
construction of Indian statutes — see Administrator-General of
Bengal v. Prem Nath Mallick [22 IA 107, 118] . The reason
behind the rule was explained by one of us in Gopalan case [1950
SCR 88] thus:
“A speech made in the course of the debate on a bill could
at best be indicative of the subjective intent of the speaker, but it
could not reflect the inarticulate mental process lying behind the
majority vote which carried the bill. Nor is it reasonable to assume
that the minds of all those legislators were in accord,”
or, as it is more tersely put in an American case—
“Those who did not speak may not have agreed with those
who did; and those who spoke might differ from each other —
United States v. Trans-Missouri Freight Association [169 US
290, 318] .”
This rule of exclusion has not always been adhered to in
America, and sometimes distinction is made between using such
material to ascertain the purpose of a statute and using it for
ascertaining its meaning. It would seem that the rule is adopted in
Canada and Australia — see Craies on Statute Law, 5th Ed., p.
122.”
351. It is relevant to notice that in paragraph 16 it was also
observed that rule of exclusion has not always been upheld to in America
and sometime distinction is made between using such material to
ascertaining purpose of a statute and using it for ascertaining its meaning.
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The judgment itself indicated that the said material is sometime used to
ascertain the purpose of a statute. The law has been explained and
elaborated in subsequent judgments of this Court which we shall notice
hereinafter. One more judgment on which reliance has been placed by
Shri Gopal Sankaranarayanan is the judgment of this Court in Aswini
Kumar Ghose and another v. Arabinda Bose and another, AIR
1952 SC 369, in which this Court referring to earlier judgment of this
Court in State of Travancore, Cochin and others vs. Bombay
Company Ltd. (supra) laid down in paragraph 31:
“31. As regards the speeches made by the Members of
the House in the course of the debate, this Court has recently
held that they are not admissible as extrinsic aids to the
interpretation of statutory provisions: (State of Travancore-
Cochin v. Bombay Co. Ltd. etc. [ CA Nos. 25, 28 and 29 of
1952]”
352. With regard to speeches in the Constituent Assembly, the
Constitution Bench of this Court, in His Holiness Kesvananda Bharati
vs. State of Kerala and another, (1973) 4 SCC 225, several Hon’ble
Judges in their separate judgments have relied and referred to Constituent
Assembly debates for the interpretation of provisions of Part III and
Part IV. Justice S.M. Sikri, CJ in paragraph 116 observed:
“186. The speeches can, in my view, be relied on only in
order to see if the course of the progress of a particular provision
or provisions throws any light on the historical background or
shows
that a common understanding or agreement was arrived at
between certain sections of the people..”
353. Justice Jaganmohan Reddy stoutly said that Constituent
Assembly debates be looked into for ascertaining intention of our framers
of the Constitution. Justice Jaganmohan Reddy also held that in a
constitutional matter this Court should look into the proceedings of relevant
date including any speech which may throw light in ascertaining it. Justice
Jaganmohan Reddy in paragraph 1088 laid down:
“1088. ...Speaking for myself, why should we not look into
them boldly for ascertaining what was the intention of our framers
and how they translated that intention? What is the rationale for
treating them as forbidden or forbidding material. The Court in a
constitutional matter, where the intent of the framers of the
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Constitution as embodied in the written document is to be
ascertained, should look into the proceedings, the relevant data
including any speech which may throw light on ascertaining it. It
can reject them as unhelpful, if they throw no light or throw only
dim light in which nothing can be discerned. Unlike a statute, a
Constitution is a working instrument of Government, it is drafted
by people who wanted it to be a national instrument to subserve
successive generations. The Assembly constituted Committees
of able men of high calibre, learning and wide experience, and it
had an able adviser, Shri B.N. Rau to assist it. .....”
354. Justice H.R. Khanna in paragraph 1358 also in his judgment
had elaborately referred to and relied on the speeches made in the
Constituent Assembly. In paragraph 1367 His Lordship laid down:
“1367. So far as the question is concerned as to whether
the speeches made in the Constituent Assembly can be taken into
consideration, this court has in three cases, namely, I.C. Golak
Nath v. State of Punjab, H.H. Maharajadhiraja Madhav Rao
Jiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC
85 : (1971) 3 SCR 9] and Union of India v. H.S. Dhillon [(1971)
2 SCC 779 : (1972) 2 SCR 33] taken the view that such speeches
can be taken into account. In Golak Nath case Subba Rao, C.J.,
who spoke for the majority referred to the speeches of Pt.
Jawaharlal Nehru and Dr Ambedkar on p. 791. Reference was
also made to the speech of Dr Ambedkar by Bachawat, J. in that
case on p. 924. In the case of Madhav Rao, Shah, J. who gave
the leading majority judgment relied upon the speech of Sardar
Patel, who was Minister for Home Affairs, in the Constituent
Assembly (see P. 83). Reference was also made to the speeches
in the Constituent Assembly by Mitter, J. on pages 121 and 122.
More recently in H.S. Dhilion case relating to the validity of
amendment in Wealth Tax Act, both the majority judgment as
well as the minority judgment referred to the speeches made in
the Constituent Assembly in support of the conclusion arrived at.
It can, therefore, be said that this Court has now accepted the
view in its decisions since Golak Nath case that speeches made
in the Constituent Assembly can be referred to while dealing with
the provision of the Constitution.”
355. Justice K.K. Mathew in paragraph 1598 had held that the
debates in the Constituent Assembly can be looked into to understand
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the legislative history of a provision of the Constitution including its
derivation, that is, the various steps leading up to and attending its
enactment, to ascertain the intention of the makers of the Constitution.
Following was laid down in paragraph 1598:
“1598. If the debates in the Constituent Assembly can be
looked into to understand the legislative history of a provision of
the Constitution including its derivation, that is, the various steps
leading up to and attending its enactment, to ascertain the intention
of the makers of the Constitution, it is difficult to see why the
debates are inadmissible to throw light on the purpose and general
intent of the provision. After all, legislative history only tends to
reveal the legislative purpose in enacting the provision and thereby
sheds light upon legislative intent. It would be drawing an invisible
distinction if resort to debates is permitted simply to show the
legislative history and the same is not allowed to show the
legislative intent in case of latent ambiguity in the provision. ....”
356. In the Constitution Bench in R.S. Nayak vs. A.R. Antulay,
1984(2) SCC 183, The argument was again advanced that debates in
Parliament or the report of the Commission or Committee which proceed
the enactment is not permissible aid to construction. Submission was
noted in paragraph 32 of the judgment to the following effect:
“32. Mr. Singhvi contended that even where the words in a
statute are ambiguous and
may be open to more than one meaning
or sense, a reference to the debates in Parliament or the report of
a commission or a committee which preceded the enactment of
the statute under consideration is not a permissible aid to
construction. ...”
357. In paragraph 33 it was held that in order to ascertain true
meaning of literal words in the statute reference to the report are held
legitimate external aid. In paragraph 33 following was laid down:
“33. The trend certainly seems to be in the reverse gear in
that in order to ascertain the true meaning of ambiguous words in
a statute, reference to the reports and recommendations of the
commission or committee which preceded the enactment of the
statute are held legitimate external aids to construction. The
modern approach has to a considerable extent eroded the
exclusionary rule even in England. ……”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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358. Ultimately, this Court rejected the submission raised and held
that the reports of the Committee were admissible. Following was laid
down in paragraph 34:
“34. ….Further even in the land of its birth, the exclusionary
rule has received a serious jolt in Black-Clawson International
Ltd. v. Papierwerke Waldhof-Aschaffenburg AG:[(1975) 1 All
ER 810, 843] Lord Simon of Claisdale in his speech while
examining the question of admissibility of Greer Report observed
as under:
“At the very least, ascertainment of the statutory
objective can immediately eliminate many of the possible
meanings that the language of the Act might bear; and, if an
ambiguity still remains, consideration of the statutory objective
is one of the means of resolving it.
The statutory objective is primarily to be collected from the
provisions of the statute itself. In these days, when the long title
can be amended in both Houses, I can see no reason for having
recourse to it only in case of an ambiguity — it is the plainest of
all the guides to the general objectives of a statute. But it will not
always help as to particular provisions. As to the statutory objective
of these, a report leading to the Act is likely to be the most potent
aid; and, in my judgment, it would be mere obscurantism not to
avail oneself of it. There is, indeed clear and high authority that it
is available for this purpose. ……”
359. It is noted that although the above
Constitution Bench was
subsequently overruled by seven-Judge Bench but the above proposition
was not touched.
We may also notice the Constitution Bench judgment of this Court
in Minerva Mills Ltd. and others vs. Union of India and others,
(1980) 3 SCC 625. CJ, Y.V. Chandrachud speaking for the Constitution
Bench referred to speech of Law Minister made in the Parliament and
held that the constitutional provisions cannot be read contrary to its
proclaimed purpose as was stated by the Law Minister in the floor of
the House. In paragraph 65 following was laid down:
“65. Mr. Palkhivala read out to us an extract from the
speech of the then Law Minister who, while speaking on the
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amendment to Article 31-C, said that the amendment was being
introduced because the government did not want the “let and
hindrance” of the fundamental rights. If the Parliament has
manifested a clear intention to exercise an unlimited power, it is
impermissible to read down the amplitude of that power so as to
make it limited. The principle of reading down cannot be invoked
or applied in opposition to the clear intention of the legislature. We
suppose that in the history of the constitutional law, no
constitutional amendment has ever been read down to mean the
exact opposite of what it says and intends. In fact, to accept the
argument that we should read down Article 31-C, so as to make it
conform to the ratio of the majority decision in Kesavananda
Bharati [Kesavananda Bharati v. State of Kerala, 1973 Supp
SCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461] , is to destroy the
avowed purpose of Article 31-C as indicated by the very heading
“Saving of Certain Laws” under which Articles 31-A, 31-B and
31-C are grouped. Since the amendment to Article 31-C was
unquestionably made with a view to empowering the legislatures
to pass laws of a particular description even if those laws violate
the discipline of Articles 14 and 19, it seems to us impossible to
hold that we should still save Article 31-C from the challenge of
unconstitutionality by reading into that Article words which destroy
the rationale of that Article and an intendment which is plainly
contrary to
its proclaimed purpose.”
360. We may conclude the discussion on the topic by referring to
a subsequent Constitution judgment of this Court in Kalpana Mehta
and others vs. Union of India and others, (2018) 7 SCC 1, in which
one of us Justice Ashok Bhushan was also a member. In the above
case, the Constitution Bench elaborately dealt with the role of
Parliamentary Committee. One of the questions which was referred to
before the Constitution Bench to answer was “whether in a litigation
filed before this Court under Article 32 and our Court can refer to and
place reliance upon the report of the Parliamentary Standing Committee.
The Constitution Bench referring to earlier judgment of this Court in
R.S. Nayak v. A.R. Antulay (supra) laid down following in paragraphs
123 and 134:
“123. A Constitution Bench in R.S. Nayak v. A.R.
Antulay [R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, after
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referring to various decisions of this Court and development in
the law, opined that the exclusionary rule is flickering in its dying
embers in its native land of birth and has been given a decent
burial by this Court. The Constitution Bench further observed that
the basic purpose of all canons of the Constitution is to ascertain
with reasonable certainty the intention of Parliament and for the
said purpose, external aids such as reports of Special Committee
preceding the enactment, the existing state of law, the environment
necessitating enactment of a legislation and the object sought to
be achieved, etc. which Parliament held the luxury of availing
should not be denied to the court whose primary function is to
give effect to the real intention of the legislature in enacting a
statute. The Court was of the view that such a denial would deprive
the Court of a substantial and illuminating aid to construction and,
therefore, the Court decided to depart from the earlier decisions
and held that reports of committees which preceded the enactment
of a law, reports of Joint Parliamentary Committees and a report
of a commission set up for collecting information can be referred
to as external aids of construction.
134. From the aforesaid, it clear as day that the Court can
take aid of the report of the Parliamentary Committee for the
purpose of appreciating the historical background of the statutory
provisions and it can
also refer to committee report or the speech
of the Minister on the floor of the House of Parliament if there is
any kind of ambiguity or incongruity in a provision of an enactment.”
361. Justice Dipak Misra, CJ speaking for himself and Justice
A.M. Khanwilkar recorded his conclusion in paragraph 159.1 and 159.2
to the following effect:
“159.1. Parliamentary Standing Committee report can be taken
aid of for the purpose of interpretation of a statutory provision
wherever it is so necessary and also it can be taken note of as
existence of a historical fact.
159.2. Judicial notice can be taken of the Parliamentary Standing
Committee report under Section 57(4) of the Evidence Act and it
is admissible under Section 74 of the said Act.”
362. Dr. Justice D.Y. Chandrachud laid down following in paragraph
260:
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“260. The use of parliamentary history as an aid to statutory
construction is an area which poses the fewest problems. In
understanding the true meaning of the words used by the legislature,
the court may have regard to the reasons which have led to the
enactment of the law, the problems which were sought to be
remedied and the object and purpose of the law. For understanding
this, the court may seek recourse to background parliamentary
material associated with the framing of the law.”
363. Justice Ashok Bhushan, one of us, in his concurring judgment
has observed that Committees of both Rajya Sabha and Lok Sabha are
entrusted with enormous duties and responsibilities in reference to the
functions of Parliament. Following was observed in paragraph 335:
“335. Various committees of both Rajya Sabha and Lok
Sabha are entrusted with enormous duties and responsibilities in
reference to the functions of Parliament. Maitland
in Constitutional History of England while referring to the
committees of the Houses of British Parliament noticed the
functions of the committees in the following words:
“… Then again by means of committees the Houses
now exercise what we may call an inquisitorial power. If
anything is going wrong in public affairs a committee may be
appointed to investigate the matter; witnesses can be summoned
to give evidence on oath, and if they will not testify they can be
committed for contempt. All manner of subjects concerning
the public have of late
been investigated by parliamentary
commissions; thus information is obtained which may be used
as a basis for legislation or for the recommendation of
administrative reforms.”
364. After noticing the relevant Rules, it was held that
parliamentary materials including reports and other documents are
permissible to be given as evidence in the Court of law. In paragraph
351 following was laid down:
“351. From the above discussion it is clear that as a matter
of fact the parliamentary materials including reports and other
documents have been sent from time to time by the permission of
Parliament itself to be given as evidence in courts of law.”
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365. Noticing the observation of House of Lords in Pepper
(Inspector of Taxes) v. Hart, that parliamentary materials for the
purpose of construing legislation can be used, following observation in
paragraph 380 was made:
“380. In the end Lord Wilkinson held that reference to
parliamentary materials for the purpose of construing legislation
does not breach Article 9 of the Bill of Rights (1688). The following
was held: (Hart case [Pepper (Inspector of Taxes) v. Hart, 1993
AC 593 : (1992) 3 WLR 1032 : 1992 UKHL 3 (HL)] , AC p. 644)
“… For the reasons I have given, as a matter of pure
law this House should look at Hansard and give effect to the
parliamentary intention it discloses in deciding the appeal. The
problem is the indication given by the Attorney General that, if
this House does so, your Lordships may be infringing the
privileges of the House of Commons.
For the reasons I have given, in my judgment reference to
parliamentary materials for the purpose of construing legislation
does not breach Article 9 of the Bill of Rights. …””
366. In paragraph 395, it was also noted by this Court that
parliamentary proceeding including reports of the Standing committee
of Parliament were relied in large number of cases of this Court. In
paragraph 395 following was laid down:
“395. This Court in a number of cases has also referred to
and relied on parliamentary proceedings including reports of the
Standing Committee of
Parliament. The learned counsel for the
petitioners have given reference to several cases in this regard,
namely, Catering Cleaners of Southern Railway v. Union of
India [Catering Cleaners of Southern Railway v. Union of
India, (1987) 1 SCC 700 : 1987 SCC (L&S) 77] where the Court
has taken into consideration report of a Standing Committee of
petitions. Another case relied on is Gujarat Electricity
Board v. Hind Mazdoor Sabha [Gujarat Electricity
Board v. Hind Mazdoor Sabha, (1995) 5 SCC 27 : 1995 SCC
(L&S) 1166]. In State of Maharashtra v. Milind [State of
Maharashtrav. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117],
the Court has referred to and relied on a Joint Parliamentary
Committee report. In Federation of Railway Officers
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Assn. v. Union of India [Federation of Railway Officers
Assn. v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344],
the Court has referred to a report of the Standing Committee of
Parliament on Railways. In Aruna Roy v. Union of India [Aruna
Royv. Union of India, (2002) 7 SCC 368 : 5 SCEC 310] , report
of a Committee, namely, S.B. Chavan Committee, which was
appointed by Parliament was relied and referred. M.C.
Mehta v. Union of India [M.C. Mehta v. Union of India, (2017)
7 SCC 243] was again a case where report of a Standing
Committee of Parliament on Petroleum and Natural Gas has been
referred to and relied. Other judgments where Parliamentary
Committee reports have been relied are Kishan Lal Gera v. State
of Haryana [Krishan Lal Gera v. State of Haryana, (2011) 10
SCC 529] , Modern Dental College and Research
Centre v. State of M.P. [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] and Lal
Babu Priyadarshi v. Amritpal Singh [Lal Babu Priyadarshi
v. Amritpal Singh, (2015) 16 SCC 795 : (2016) 3 SCC (Civ) 649].”
367. The above discussion makes it clear that the law is well
settled in this county that Parliamentary Committee reports including
speech given by the Minister in the Parliament and the debates are
relevant materials to ascertain the intention of Parliament while constituting
constitutional provisions. We, thus, reject the objection of Shri Gopal
Sankaranarayanan that Parliamentary Committee report and the
speech
of the Minister cannot be looked into for ascertaining the intention of
Parliament in bringing the Constitution 102nd Amendment.
368. The intention of the Parliament for bringing the constitutional
amendment is necessary to be found out to interpret the constitutional
amendments. The words used in constitutional amendment have to be
interpreted in the context for which they were used. We may refer to
the celebrated words of Justice Holmes in Towne v. Eisner, 245 US
418, where he observed: “a word is not crystal, transparent and
unchanged; it is a skin of living thought and may very greatly in
colour and content according to the circumstances and the time
in which it is used.” In what context the words “Central List” has
been used in Article 342A(1) has to find out and what was the intent of
Parliament in using the words “Central List” in sub-clause (2) and what
was the intent of the Parliament in inserting Article 342A in the
Constitution are relevant for purposes of constitutional interpretation.
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369. We need to look into the parliamentary process which
culminated into parliament passing the Constitution (102nd Amendment)
Act, 2018. The Constitution (123rd Amendment) Bill, 2017 was introduced
in the Lok Sabha on 02.04.2017 and was passed in Lok Sabha on
10.04.2017. When the Bill came to the Rajya Sabha, by a Motion adopted
by the House on 11.04.2017, the Bill was referred to the Select Committee
comprising of 25 members of Rajya Sabha. The Select Committee held
seven meetings before submitting its report. Several members gave their
response to the Committee. In the first meeting of the Committee held
on 17.04.2017, Ministry of Social Justice and Empowerment placed
certain clarification of the Minister which was noticed and incorporated
in paragraph 6 of the Minutes which is to the following effect:
“6. Secretary, Ministry of Social Justice and Empowerment further
clarified that under the Backward Classes, unlike the SCs & STs,
there are two lists i.c. the Central List and the State List. The
Central List provides for education and employment opportunities
in Central Government Institutions. In the State List, the States
are free to include or exclude, whoever they wish to, in their
Backward Classes List. As a result, if there is a certain category
which is not in the Central List, it may still be found in the State
List. That is the freedom and prerogative of the State Backward
Classes Commission and that
would continue to be there.
370. The Committee in its meeting held on 22.05.2017 asked several
clarifications. One of the clarifications asked was “To what extent the
rights of the States would be affected after coming into by the Bill under
the Constitution of the Select Committee.”
371. The Committee held sixth meeting on 03.07.2017. One of
the proposed amendments have been noted in paragraph 21 of the
Minutes, clarification on which was also noted in paragraph and the
amendment was not accepted. The amendment proposed was
“notwithstanding in any … in clause (9), the State Government shall
continue to have power … socially and educationally backward classes.”
The above proposed amendment in Article 338B was not accepted since
Ministry clarified that the power of the State is not affected. Paragraphs
21, 22 and 23 are as follows:
“21. The Committee discussed the amendment wherein in
article 338B a new sub-clause (10) was proposed to be inserted.
This sub-clause (10) would state that ‘notwithstanding anything
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provided in clause 9, the State Government shall continue to have
powers to identify Socially and Educationally Backward Classes’.
22. It was clarified by the Ministry 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.
(underlined by us)
23. The Committee held discussions on the amendments
proposed and in view of the explanation given by the Ministry, the
Committee adopted clause 3 without any amendments.”
372. Article 342A was also discussed by the Committee various
set of Amendments were noted in reference to Article 342A. The
Committee noticed amendments proposed in Article 342A in paragraph
24 t the following effect:
“24. The Committee then took up Clause 4 of the Bill for
consideration. The Committee considered the following amendment
proposed by certain Members:
(h) Sub-clause (1) of article 342A be modified as follows:
“The President with respect to any State or Union Territory,
and where it is a State, on the request made by the governor
thereof, by public notification specify the socially and
educationally backward classes for the purposes of making
provisions for reservation of appointment to an office or posts
under Government of India or under any
authority of
Government of India or under the control of the Government
of India or seats in Central Government educational institutions”
(ii) Sub-clause (2) of article 342A be modified as follows:
“The President may, on the advise of the National
Commission for Backward Classes include or exclude from
the Central list of socially and educationally backward classes
specified in a notification issued under clause (1).”;
(iii) In article 342A insert clause (3) as follows:
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“The Governor of a State, by public notification specify the
socially and educational backward classes for the purposes of
making provisions for reservation of posts under that State or
under any other authority of the State or under the central of
the State, or seats in the educational institutions. within that
State” and
(iv) In article 342A insert clause (4) as follows:
“The Governor may, on the advice of the State Commission
of Backward Classes include or exclude from the State list of
socially and educationally backward classes specified in a
notification issued under clause (3)”
373. The Committee, however, did not accept any of the
amendments in view of explanation furnished by the Ministry. The 7th
meeting was held on 14.07.2017. The clarification issued by the Secretary
of Ministry of Social Justice and Empowerment has been noticed in
paragraph 29 which is to the following effect:
“29. ………She also clarified that conferring of constitutional
status on the National Commission for Backward Classes would
in no way take away the existing powers of the State Backward
Classes Commissions. The only difference would be with regard
to the Central List, where the power of exclusion or inclusion,
after the Constitutional amendment, it would come to the
Parliament with the recommendations of the NCBC.”
374. After elaborate discussion, the Committee submitted its report
dated 19.07.2017. One of the amendments which was
moved before
the Committee in Article 338B was noticed and not accepted. In the
report the Ministry’s stand was that proposed amendment does not
interfere with the power of the State Government to identify the socially
and educationally backward classes. Paragraphs 47 and 48 of the report
is 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’
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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.”
375. With regard to the proposed Article 342A of the Constitution,
in paragraph 67 the Committee recorded the observation to the following
effect:
“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.”
376. The Select Committee’s report came for consideration before
the Rajya Sabha. During the debate, members have expressed their
apprehension regarding adversely affecting the rights of the State by the
proposed constitutional amendment. The Rajya Sabha passed the Bill on
31.07.2017 with amendment. Shri Thawarchand Gehlot, Minister of Social
Justice and Empowerment proposed the Bill. Several members expressed
their apprehension that Bill is not in the interest of the powers of the
State. Shri B.K. Hari Prasad speaking on the Bill stated following:
“SHRI B.K. HARIPRASAD: Sir, repealing the Act of 1993
means that nothing
would stay as it is and, again, the directions of
the Supreme Court are being negated. So, this Commission would
not help the Backward Classes and would take away the powers
of the States too. They want to centralize all the powers, as they
have done in other cases. This cannot happen in the case of OBCS.
As I have already said, though the Act was passed in Parliament
way back in 1993 for purposes of employment, etc. and way back
in 2007 for education, nothing has been implemented so far. If
they centralize all things like employment, identification of castes,
etc., they would be doing gross injustice to the OBCS. They should
think twice before scrapping the powers of the States because,
as I have already mentioned, it is the States which identify various
castes and communities. They know better than the people sitting
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here in Delhi. Hence, amending Article 342 and equating
identification of OBC  List to the SC/ST List should not be done.
...”
377. Shri Bhupender Yadav has also stated in his speech that
Amendment Bill cast threat to federalism and the State interest. In his
statement (translated from Hindi) he said:
“......that this will be a big threat to the federalism of the
country and what will happen to the rights of the States? Here I
want to say that at least this subject should go before the House
and through the House to the country that about five and a half
thousand castes and categories are under OBC in the Central
List of the country and about ten and a half thousand castes and
categories are under OBC in the States List. The work of their
identification (SIC) and the power that Parliament has, is for five
and a half thousand Central List only, the rights of the States will
be safe with them and therefore, they have done the work of
strengthening the federal structure through this amendment. For
the first time, we have created the system that if the work of
filling up the OBC posts will not be done, then the report of the
OBC Commission will be placed before the Parliament. This
should be the demand of democracy of the country that if the
lower class people do not get justice, then all those documents
should come before the Parliament with reasons. Provision to do
the same has been made in this OBC Commission.”
378.
Shri Dilip Kumar Tirkey(Odisha), in his speech has referred
to State List and Central List and stated (translated from Hindi) that
powers to identify OBC are remained with the State.
“Shri Dilip Kumar Tirkey (Odisha) :
Sir, you gave me an opportunity to speak on the very important
Amendment Bill, for this, I thank you. Sir, in our country, reservation
for OBC was given about 24 years ago but there is a clear
provision in Article 14-15 of the Constitution that the States can
make special provision for the socio-economic backward classes.
Our party BJD is in support of National Commission to be made
for OBC and we are. supporting it but we have some issues and
concerns and I would like to present them before the House. Sir,
as per the present system, every State has its own OBC list and
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on that basis, they get reservation. If, in a State, any caste falls
under OBC list then it is not mandatory that it falls under the
Central or other States list. The logic behind this is that there are
different castes in every state and these different castes have
different conditions. Now, after formation of the National
Commission, one Central list will be made and only Centre shall
notify them. Sir, this is the opinion of our party that the power of
notification of OBC castes should remain with the States only
because only the concerned state thoroughly knows the fact of
number of castes in their States and what is their condition. Only
the government knows thoroughly. They may face problems with
central list. Therefore, I would like to appeal to Hon’ble Minister
and the House to add such a provision in the Bill whereby the
work of adding or deleting any caste from the OBC list should be
strictly done only on the recommendation of the state government
to which it relates to. Sir, you can make national list after the
uniformity comes gradually. When S.C., S.T, National Commission
was formed, it also took much time. In my opinion, after the
separate S.C., S.T. Commission was formed, it got the status of
Constitutional body in 2003. Therefore, 1 would like to appeal to
the House and the government to reconsider and think on this
point. Further, I would like to add one more thing that in the
observation of Hon’ble Supreme Court, there was a provision of
review after every 10 years so that other castes are not left,
therefore, it should be reviewed after every 10 years. In my opinion,
do the needful keeping it in view also, thank you.”
379. Similar apprehension was expressed by T.K. Rangarajan
and Shri Pradeep Tamta that Article 342A takes away the existing powers
of the State to notify list of SEBC. After the debate, the Bill was
presented and passed in Rajya Sabha.
380. The Minister, Shri Thawarchand Gehlot, after the debate
stated that apprehension expressed by the members that power of the
State shall be affected and federal structure shall be damaged is incorrect.
He stated that the power of the State shall not be affected in any manner,
the State’s power to include and exclude in its list of OBC shall still
continue. The statement (translated from Hindi) made by the Minster is
to the following effect:
“Sir, 4 major amendments are being made in the Constitution;
one amendment pertains to part 10. of Article 338 wherein, OBC
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Commission did not have power to hear grievances of the people
belonging to OBC category, that was to SC Commission, now this
power is being given to the upcoming OBC Commission. There is
provision of SC Commission under Article 338, provision of ST
Commission is under 338(A) and now provision of constituting
OBC Commission is being made under Article 338(B). SC
Commission and ST Commission already have Constitutional status
similarly, Constitutional status is being given to OBC Commission
as well. It simply means that the way rights, duties and power are
given to the SC and ST Commission, same rights have also been
given to them. Articles 341 and 342 provide for the inclusion and
removal of the castes of the respective categories. Article 342
(A) also provides for inclusion and removal of the castes belonging
to OBC category by adopting the same procedure. Along with
this, various types of definitions are given in Article 366; castes
belonging to SC category are referred to in sub-clause 24 of it;
castes belonging to ST category are referred to in sub-clause 25
of it and now a new Article 26(C) is added to it. On the basis of it,
castes belonging to OBC category will be defined. Hon’ble
members were feared that the rights the State Commissions have
at present that might be reduced and the federal system will be
violated, pertaining to this I am to say that it will not at all happen.
There is no provision anywhere in
the Articles to reduce their
rights in any way. States have constituted OBC Commission in
their respective territories since long ago. When the Kaka Kalelkar
Committee was constituted and when it submitted its report, at
that time also many States had constituted such Commission. The
State List deals with work concerned with OBC category and
notifies them. Thereafter, on the basis of Mandal Commission
Report as well many States have constituted such Commissions.
Supreme Court had also given verdict in 1992-1993, on that ground
also many States had constituted OBC Commission in their
respective territories. At present as many as 30-31 States have
constituted such Commissions. Complete list of it is with me. Right
to include or remove in the States List concerned with
OBCS will remain as it is and it will not be violated in any
manner.
In addition, keeping in view the sentiments of Article 15
and 16, States have also exercised their powers pertaining to
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making schemes in the interest of OBC category and making
provisions in this behalf and such power will remain as it is. We
are not making any amendment in Article 15 and Article 16. It
simply means that State Commissions will not be affected in any
way by this Constitutional amendment. Maximum number of
Hon’ble Members have shared their views expressing their fear
on this point. I, sincerely want to make it clear that State
Governments have right and will remain as it is in future as well.
No attempt will be made to tamper with them.”
381. The Bill was passed in Rajya Sabhad on 31.07.2017 and
thereafter it was taken by the Lok Sabha on 02.08.2017. In Lok Sabha
the Minister of Social Justice and Empowerment again made a statement
that the Commission will take decision related to the Central List It is
useful to extract the statement(translated from Hindi) of the Minister
made on 02.08.2017 which is to the following effect:
“Sh. Thawar Chand Gehlot
Madam, this Commission, which will be made, will make decisions
related to the Central List. As there is a common list related to
Scheduled Caste and Scheduled Tribe of the State and the Centre,
so is not the case here. In it, separate list is made for Centre as
well as for States. The task of making the list of States is done by
taking decision by the States Commission.
If any State Government proposes to include any Caste of that
State in the Central List, then n this regard, this Commission will
give opinion,
otherwise the opinion of this Commission is neither
binding regarding the State List nor the Commission will consider
it. According to my own belief, I assure you that the report of the
Central Commission will not be binding on the subjects related to
the State, it contains such provisions. You be assured and support
this bill.”
382. The Lok Sabha also passed the Constitution 123rd Amendment
Bill, 2017 on 02.08.2018 which was agreed to by the Rajya Sabha on
06.08.2018 and the Constitution (102nd Amendment) Act, 2018 after
receiving the assent of the President of India on 11.08.2018 was published
on 11.08.2018 and its enforcement has been notified with effect from
15.08.2018. The Constitution (102nd Amendment) Act inserted Article
338B and 342A and Article 366(26C) which are to the following effect:
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“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;
(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-
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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;
(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.
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(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting the socially and
educationally backward classes.”.
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.”.
“366(26C) “socially and educationally backward classes”
means such backward classes as are so deemed under article
342A for the purposes of this Constitution;’.”
383. After noticing the principles of statutory interpretation of
Constitution and aids which can be resorted to in case of any ambiguity
in a word, we now proceed to look into the constitutional provisions
inserted by the Constitution (102nd Amendment) Act.
384. The first Article which has been inserted by the Constitution
(One Hundred and Second Amendment) Act is Article 338B.
The
statement of objects and reasons of the Constitution (One Hundred and
Twenty Third Amendment) Bill, 2017, we had noticed above, in which
one of the objects of the Constitutional amendment was: -
“...in order to safeguard the interests of the socially and
educationally backward classes more effectively, it is proposed to
create a National Commission for Backward Classes with
constitutional status at par with the National Commission for
Scheduled Castes and the National Commission for Scheduled
Tribes.
(Underlined by us)”
385. Prior to Constitution (One Hundred and Second Amendment),
there was already existing a National Commission for Backward Classes
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under the National Commission for Backward Classes, Act, 1993(in short
1993 Act), which was a statutory commission. To comprehend the role
and functions of the National Commission for Backward Class created
by the Constitution (One Hundred and Second Amendment) Act, we
need to notice the difference into the role and functions of the statutory
commission and Constitutional commission. Section 9 of 1993 Act
provided for the functions of the Commission, which is to the following
effect: -
“9. Functions of the Commission.–
(1) The Commission shall examine requests for inclusion
of any class of citizens as a backward class in the lists and hear
complaints of over-inclusion or under-inclusion of any backward
class in such lists and tender such advice to the Central Government
as it deems appropriate.
(2) The advice of the Commission shall ordinarily be binding
upon the Central Government.”
386. Section 11 provides for periodical revision of the list by the
Central government which is to the following effect:-
“11. Periodic revision of lists by the Central Government.–
(1) The Central Government may at any time, and shall, at
the expiration of ten years from the coming into force of this Act
and every succeeding period of ten years thereafter, undertake
revision of the lists with a view to excluding from such lists those
classes who have ceased to be backward classes or for including
in such lists new backward classes.
(2) The Central Government shall, while
undertaking any
revision referred to in sub-section (1), consult the Commission. “
387. The Act, 1993, indicates that functions of the Commission
were confined to only examine requests for inclusion or exclusion from
the list of backward classes. The list “was defined in Section 2C of the
Act, 1993 to mean the list for reservation for appointment of backward
class in the services under the Government of India. Article 338B now
inserted provides a much larger and comprehensive role to the
Commission. The Act, 1993 required the Commission to give advice
only to the Central Government. Article 338B now requires the
Commission to give advice both to the Central Government and to the
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States, which is clear from sub-clauses (5),(7) and (9) of Article 338B,
which is quoted as below:-
“(5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the
safeguards provided for the socially and educationally backward
classes under this Constitution or under any other law for the
time being in force or under any order of the Government and
to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the socially and
educationally backward classes;
(c) to participate and advise on the socio-economic development
of the socially and educationally backward classes and to
evaluate the progress of their development under the Union
and any State;
(d) to present to the President, annually and at such other times
as the Commission may deem fit, reports upon the working of
those safeguards;
(e) to make in such reports the recommendations as to the
measures that should be taken by the Union or any State for
the effective implementation of those safeguards and 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.
(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.
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(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting the socially and
educationally backward classes.”
388. The most important difference which is now brought by Article
338B is sub-clause (9), which mandates that every State Government to
consult the Commission on all major policy decisions affecting socially
and educationally backward classes. Sub-clause (9) is engrafted in
mandatory form by using expression “shall”. The States thus are now
bound to consult the Commission on all major policy matters affecting
socially and educationally backward class. For the purposes of this case,
we need not elaborate on the expression “policy matter” occurring in
sub-clause (9) of Article 338B. However, in the facts of the present
case, the decision of the Maharashtra Government which culminated in
2018 Act to exceed ceiling limit of 50 percent fixed for reservation as
per existing law and to give separate reservation to Maratha in
employment under State and in educational institutions of the State where
all policy decisions within the meaning of clause (9) of Article 338B.
389. The word ‘consultation’ occurring in sub-clause (9) is
expression which has been used in several Articles of the Constitution
i.e. Article 124, 207, 233, 234, 320 and host of other articles. We may
notice the content and meaning of the expression ‘consultation’.
390. The Black’s Law Dictionary, 10th Edition, defines
‘consultation’ as
follows:-
“Consultation, n.(15c) 1. The act of asking the advice or
opinion of someone(such as a lawyer). 2. A meeting in which
parties consult or confer. 3. Int’l law. The interactive methods by
which states seek to prevent or resolve disputes.- consult, vb.-
consulting, consultative, adj.”
Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd Edition,
defines ‘consult’:
“Consult. ‘Consult implies a conference of two or more
persons or the impact of two or more minds brought about in
respect of a topic with a view to evolve a correct or atleast a
satisfactory solution. It must be directed to the essential points of
the subject under discussion and enable the consultor to consider
the pros and cons before coming to a decision. The consultation
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may be between an uninformed person and an expert or between
two experts.”
391. The ‘consultation’ or deliberation is not complete or effective
unless parties there to makes their respective points of view known to
the others and examine the relative merit of their view. The consultation
is a process which requires meeting of minds between the parties involves
in the process of consultation on the material facts and points involved.
The consultation has to be meaningful, effective and conscious
consultation. We may now notice few cases of this Court where the
expression ‘consultation’ as occurring in the Constitution of India has
been dealt with.
392. In Chandramouleshwar Prasad versus The Patna High
Court and others, (1969) 3 SCC 56, this Court had occasion to consider
the expression ‘consultation’ as occurring in Article 233 of the
Constitution. The Constitution Bench of this Court explaining the
expression ‘consultation’ held that ‘consultation’ is not an empty formality
and it should be complete and effective. Following has been laid down in
paragraph 7 of the judgment: -
“7. ...Consultation with the high Court under Article 233 is
not an empty formality. So far as promotion of officers to the
cadre of District Judges is concerned the High Court is best fitted
to adjudge the claims and merits of persons to be considered for
promotion. The Governor cannot discharge his function under
Article 233 if he makes an
appointment of a person without
ascertaining the High Court’s views in regard thereto...
...Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of view
known to the other or others and discuss and examine the relative
merits of their views. If one party makes a proposal to the other
who has a counter proposal in his mind which is not communicated
to the proposer the direction to give effect to the counter proposal
without anything more, cannot be said to have been issued after
consultation. In our opinion, the notification of October 17, 1968
was not in compliance with Article 233 of the Constitution. In the
absence of consultation the validity of the notification of October
17, 1968 cannot be sustained.”
393. In Union of India versus Shankalchand Himatlal Sheth
and another, (1977) 4 SCC 193, the Constitution Bench of this Court
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had occasion to examine Article 222 and the expression ‘consult’.
Explaining the word ‘consult’, Justice Y.V. Chandrachud, in paragraphs
38 and 39 laid down following: -
“38. In Words and Phrases (Permanent Edition, 1960,
Volume 9, page 3) to ‘consult’ is defined as ‘to discuss something
together, to deliberate’. Corpus Juris Secundum (Volume 16A,
Ed. 1956, page 1242) also says that the word ‘consult’ is frequently
defined as meaning ‘to discuss something together, or to deliberate’.
Quoting Rollo v. Minister of Town and Country Planning(1) and
Fletcher v. Minister of Town and Country Planning(2) Stroud’s
Judicial Dictionary (Volume 1' Third Edition, 1952, page 596) says
in the context of the expression “ consultation with any local
authorities” that “Consultation means that, on the one side, the
Minister must supply sufficient information to the local authority
to enable them to tender advice, and, on the other hand, a sufficient
opportunity must be given to the local authority to tender advice”.
Thus, deliberation is the quintessence of consultation. That implies
that each individual case must be considered separately on the
basis of its own facts. Policy transfers on a wholesale basis which
leave no scope for considering the facts of each particular case
and which are influenced by one-sided governmental
considerations are outside the contemplation of our Constitution.
39. It may not be a happy analogy, but it is commonsense
that he who wants to
‘consult’ a doctor cannot keep facts up his
sleeve. He does so at his peril for he can receive no true advice
unless he discloses facts necessary for diagnosis of his malady.
Homely analogies apart, which can be multiplied, a decision of
the Madras High Court in R. Pushpam & Anr. v. Stale of
Madras(1) furnishes a good parallel. section 43(b), Madras District
Municipalities Act, 1920, provided that for the purpose of election
of Councillors to a Municipal Council, the Local Government ‘after
consulting the Municipal Council’ may determine the wards in
which reserved seats shall be set apart. While setting aside the
reservation made in respect of one of the wards on the ground
that the Local Government had failed to discharge its statutory
obligation of consulting the Municipal Council, Justice K. Subba
Rao, who then adorned the Bench of the Madras High Court,
observed : “The word ‘consult’ implies a conference of two or
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more persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct, or at least, a
satisfactory solution.” In, order that the two minds may be able to
confer and produce a mutual impact, it is essential that each must
have for its consideration full and identical facts, which can at
once constitute both the source and foundation of the final
decision.”
394. In IndianAdministrative Services (S.C.S.) Association,
U.P. and Others,(1993) Supp.(1) SCC 730, this Court had occasion
to explain the expression ‘consultation’ as occurring in All India Services
Act, 1951. In paragraph 26, following conclusions were recorded by this
Court:-
“26.(1) Consultation is a process which requires meeting
of minds between the parties involved in the process of consultation
on the material facts and points involved to evolve a correct or at
least satisfactory solution. There should be meeting of minds
between the proposer and the persons to be consulted on the
subject of consultation. There must be definite facts which
constitute the foundation and source for final decision. The object
of the consultation is to render consultation meaningful to serve
the intended purpose. Prior consultation in that behalf is mandatory.
...
...
...
...”
395. The word ‘consultation’ as occurring in Articles 124, 216,
217 and 222 came for consideration before the Constitution Bench of
this Court in Supreme Court
Advocates on Record Association and
others versus Union of India, (1993) 4 SCC 441. Justice Ratnavel
Pandian delivering a concurring opinion has elaborately dealt with the
consultation. In paragraph 112, following has been stated: -
“112.  It is clear that under Article 217(1), the process of
‘consultation’ by the President is mandatory and this clause does
not speak of any discretionary ‘consultation’ with any other
authority as in the case of appointment of a Judge of the Supreme
Court as envisaged in Clause (2) of Article 124. The word
‘consultation’ is powerful and eloquent with meaning, loaded with
undefined intonation and it answers all the questions and all the
various tests including the test of primacy to the opinion of the
CJI. This test poses many tough questions, one of them being,
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what is the meaning of the expression ‘consultation’ in the context
in which it is used under the Constitution. As in the case of
appointment of a Judge of the Supreme Court and the High Court,
there are some more constitutional provisions in which the
expression ‘consultation’ is used......”
396. When the Constitutional provision uses the expression
‘consultation’ which ‘consultation’ is to be undertaken by a Constitutional
authority like National Commission for Backward Classes in the present
case, the ‘consultation’ has to be meaningful, effective with all relevant
materials and information placed before Commission. As observed above,
the National Backward Class Commission has been given constitutional
status under Article 338B has now been entrusted with numerous
functions regarding the backward classes. The Commission is now to
advice not only the Union Government but the State Government also
and various measures as enumerated in sub-clause(5). The objective of
sub-clause (9) of Article 338B is to ensure that even the States did not
take any major policy decision without consulting the Commission who
is competent to provide necessary advice and solution keeping in view
the larger interest of backward class. We thus are of the considered
opinion that the consultation by the State on all policy matters affecting
the socially and educationally backward classes is now mandatory as
per sub-clause(9) of Article 338B which mandatory requirement cannot
be
by-passed by any State while the State takes any major policy decision.
397. It is true that the expression ‘consultation’ in sub-clause (4)
of Article 338B is not to be read as concurrence but as held above,
‘consultation’ has to be effective and meaningful. The object of
consultation is that ‘consultee’ shall place the relevant material before
person from whom ‘consultation’ is asked for and advice and opinion
given by consulting authority shall guide the authority who has asked for
consultation.
398. The regime which was invoked prior to insertion of Article
342A was that central list was issued by the Central Government under
1993 Act and State lists were issued by State Governments. It was also
open for the State to request for exclusion or inclusion from the list of
OBCs of Central list. The same procedure is to issue even after insertion
of Article 342A with regard to Central list.
399. The appellants insist that Article 342A has to be given a
literal interpretation. The plain language of an Article has to be given full
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effect irrespective of intention of Parliament as claimed by the Attorney
General as well the learned counsel for the State. The submission of the
appellants is that Article 342A borrows the same scheme as is delineated
in Articles 341 and 342 of the Constitution. It is submitted that when
Article 342A borrows the same scheme which is clear from the fact
that sub-clause (1) of Article 342A is para mataria with Articles 341(1)
and 342(1), it is clearly meant that power to identify educationally and
socially backward classes is only with the President but after consultation
with the Governor of the State. It is submitted that expression the “socially
and educationally backward classes” which shall for the purposes of
this Constitution be deemed to be socially and educationally backward
classes in relation to that State or Union territory” has to be given meaning
and it is only list issued by public notification under sub-clause (1) which
is the list of backward classes of a State or Union territory. No other list
is contemplated. Hence, the State has no authority or jurisdiction to identify
backward classes or issue any list that is so called State List. Further
interpreting sub-clause (2) of Article 342A, it is submitted that use of
expression “Central List” in sub-clause (2) is only to refer the list specified
by the notification in sub-clause (1) of Article 342A and expression Central
List has been used in the above
context.
400. Elaborating the argument, it is further contended that the
definition given in the Article 366(26C) which provides that socially and
educationally backward classes means such backward classes as are
so deemed under Article 342A for the purposes of this Constitution, the
use of the expression “for the purposes of this Constitution” clearly means
that it is for Articles 15 and 16 also, the list which is referred to under
Article 342A has to be utilised. The definition under Article 366(26C)
does not contemplate any other list apart from list under Article 342A.
401. In contra with above interpretation put by the petitioner,
learned Attorney General and learned counsel for the State submit that
the Constitutional provision is to be interpreted as per the intention of the
Parliament and Parliament having never intended to take away the power
of the State to identify backward classes in the State for the purpose of
employment in the State, Article 342A cannot be read in a manner as
claimed by the appellants. The use of expression “Central List” under
sub-clause (2) of Article 342A is decisive since the Parliament clearly
intended to confine the list as contemplated by Article 342A(1) as a
Central List for the purposes of employment in the Central Government
services and Central Government organisations.
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402. Primarily the language employed in a statute and the
Constitutional provision is determinative factor of legislative intention.
The legislative intention opens two clues. Firstly, meaning of the word in
the provision and secondly, the purpose and object pervading through
the statutes. It is well settled that primary rule of construction is that the
intention of the legislation must be found in the words used by the
Legislature itself. This Court apart from the above well settled principles
of statutory interpretation has laid down some further rules of
interpretation to interpret the constitutional provision. We may profitably
refer to a Constitution Bench judgment of this Court in State (NCT) of
Delhi vs. Union of India and another, 2018(8) SCC 501. The
Constitution Bench in the above case had occasion to interpret the
Constitutional provision of Article 239AA which was inserted by
Constitution (Sixty Ninth Amendment) Act, 1991. The Constitution Bench
of this Court interpreted Article 239-AA by referring to principles of the
constitutional objectivity, federal functionalism, democracy and pragmatic
federalism. Justice Dipak Misra, CJ, speaking for himself, A.K. Sikri
and A.M. Khanwilkar, JJ., laid down that although, primarily, it is a literal
rule which is considered to be the norm while interpreting statutory and
constitutional provisions, yet mere allegiance to the dictionary or literal
meaning of words contained in the provisions, sometimes,
does not serve
the purpose of a living document. In paragraph 135 following was laid
down:
“135. The task of interpreting an instrument as dynamic
as the Constitution assumes great import in a democracy. The
constitutional courts are entrusted with the critical task of
expounding the provisions of the Constitution and further while
carrying out this essential function, they are duty-bound to ensure
and preserve the rights and liberties of the citizens without
disturbing the very fundamental principles which form the
foundational base of the Constitution. Although, primarily, it is the
literal rule which is considered to be the norm which governs the
courts of law while interpreting statutory and constitutional
provisions, yet mere allegiance to the dictionary or literal meaning
of words contained in the provision may, sometimes, annihilate
the quality of poignant flexibility and requisite societal progressive
adjustability. Such an approach may not eventually subserve the
purpose of a living document.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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403. The Constitution Bench further observed that a theory of
purposive interpretation has gained importance where the Courts shall
interpret the Constitution in the purposive manner so as to give effect to
its intention. In paragraphs 149, 150, 155 and 156 following was laid
down:
“149. Having stated the principles relating to constitutional
interpretation we, as presently advised, think it apt to devote some
space to purposive interpretation in the context, for we shall refer
to the said facet for understanding the core controversy. It needs
no special emphasis that the reference to some precedents has to
be in juxtaposition with other concepts and principles. As it can be
gathered from the discussion as well as the authorities cited above,
the literal rule is not to be the primary guiding factor in interpreting
a constitutional provision, especially if the resultant outcome would
not serve the fructification of the rights and values expressed in
the Constitution. In this scenario, the theory of purposive
interpretation has gained importance where the courts shall
interpret the Constitution in a purposive manner so as to give effect
to its true intention. The Judicial Committee in Attorney General
of Trinidad and Tobago v. Whiteman [Attorney General of
Trinidad and Tobago v. Whiteman, (1991) 2 AC 240 : (1991) 2
WLR 1200 (PC)] has observed: (AC p. 247)
“The language of a Constitution falls to be construed,
not in a
narrow and legalistic way, but broadly and purposively,
so as to give effect to its spirit.…”
150. In S.R. Chaudhuri v. State of Punjab [S.R.
Chaudhuri v. State of Punjab, (2001) 7 SCC 126] , a three-
Judge Bench has opined that constitutional provisions are required
to be understood and interpreted with an object-oriented approach
and a Constitution must not be construed in a narrow and pedantic
sense. The Court, while holding that the Constituent Assembly
Debates can be taken aid of, observed the following: (SCC p.
142, para 33)
“33. … The words used may be general in terms but,
their full import and true meaning, has to be appreciated
considering the true context in which the same are used
and the purpose which they seek to achieve.”
(emphasis supplied)
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155. The emphasis on context while interpreting
constitutional provisions has burgeoned this shift from the literal
rule to the purposive method in order that the provisions do not
remain static and rigid. The words assume different incarnations
to adapt themselves to the current demands as and when the
need arises. The House of Lords in R. (Quintavalle) v. Secy. of
State for Health [R. (Quintavalle) v. Secy. of State for Health,
(2003) 2 AC 687 : (2003) 2 WLR 692 : 2003 UKHL 13 (HL)]
ruled: (AC p. 700, para 21)
“21. … The pendulum has swung towards purposive
methods of construction. This change was not initiated by the
teleological approach of European Community jurisprudence, and
the influence of European legal culture generally, but it has been
accelerated by European ideas: see, however, a classic early
statement of the purposive approach by Lord Blackburn in River
Wear Commissioners v. Adamson [River Wear Commissioners
v.  Adamson, (1877) LR 2 AC 743, at p. 763 (HL)] . In any event,
nowadays the shift towards purposive interpretation is not in
doubt. The qualification is that the degree of liberality
permitted is influenced by the context.…”
(emphasis supplied)
156. Emphasising on the importance of determining the
purpose and object of a provision, Learned Hand, J.
in Cabell v. Markham [Cabell v. Markham, 148 F 2d 737 (2d
Cir 1945)] enunciated:
“Of course it is true that the words used, even in their literal
sense, are the primary, and ordinarily the
most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature
and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some
purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”
404. The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
Constitution is not to be interpreted in static and rigid manner, the
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Constitution is an organic and living document which needs to be
interpreted with cardinal principals and objectives of the Constitution.
The shift from literal to purposive method of interpretation has been
now more and more, being adopted for interpreting a constitutional
document. The Constitution Bench in State (NCT of Delhi) case (supra)
has also noticed one more principle which is to be applied for interpretation
of a constitutional document that is constitutional culture and pragmatism.
In paragraphs 165, 166 and 169 following was held:
“165. The constitutional courts, while interpreting the
constitutional provisions, have to take into account the constitutional
culture, bearing in mind its flexible and evolving nature, so that the
provisions are given a meaning which reflect the object and purpose
of the Constitution.
166. History reveals that in order to promote and nurture
this spirit of constitutional culture, the courts have adopted a
pragmatic approach of interpretation which has ushered in an era
of “constitutional pragmatism”.
169. Further, the Court also highlighted that a balance
between idealism and pragmatism is inevitable in order to create
a workable situation ruling out any absurdity that may arise while
adopting either one of the approaches: (Supreme Court
Advocates-on-Record Assn. case [Supreme Court Advocates-
on-Record Assn. v. Union of India, (2016) 5 SCC 1] , SCC pp.
320-31 & 611, paras
145 & 766)
“145. … ‘468. The rule of law envisages the area of
discretion to be the minimum, requiring only the application of
known principles or guidelines to ensure non-arbitrariness, but to
that limited extent, discretion is a pragmatic need. Conferring
discretion upon high functionaries and, whenever feasible,
introducing the element of plurality by requiring a collective
decision, are further checks against arbitrariness. This is how
idealism and pragmatism are reconciled and
Integrated to make the system workable in a satisfactory
manner.’ [Ed.: As observed in Supreme Court Advocates-on-
Record Assn. v. Union of India, (1993) 4 SCC 441, p. 699, para
468.]
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766. It is this pragmatic interpretation of the Constitution
that was postulated by the Constituent Assembly, which did
not feel the necessity of filling up every detail in the document,
as indeed it was not possible to do so.””
405. Justice Dipak Misra in the Constitution Bench further laid
down in paragraph 284.11:
“284.11. In the light of the contemporary issues, the
purposive method has gained importance over the literal approach
and the constitutional courts, with the vision to realise the true and
ultimate purpose of the Constitution not only in letter but also in
spirit and armed with the tools of ingenuity and creativity, must
not shy away from performing this foremost duty to achieve
constitutional functionalism by adopting a pragmatic approach. It
is, in a way, exposition of judicial sensibility to the functionalism of
the Constitution which we call constitutional pragmatism. The spirit
and conscience of the Constitution should not be lost in grammar
and the popular will of the people which has its legitimacy in a
democratic set-up cannot be allowed to lose its purpose in simple
semantics.”
406. In the above judgment the Constitution Bench laid down that
the purposive method has gained importance over the literal approach.
One of us (Justice Ashok Bhushan) while delivering a concurring judgment
in the Constitution Bench judgment of State (NCT of Delhi) (supra)
has also laid down that the Constitutional interpretation has to be purposive
taking
into consideration the need of time and constitutional principles. It
was further held that the intent of Constitution Framers and object and
purpose of Constitutional amendment always throw light on the
Constitutional provisions. Following was laid down in paragraph 537:
“537. From the above discussions, it is apparent that
constitutional interpretation has to be purposive taking into
consideration the need of time and constitutional principles. The
intent of Constitution Framers and object and purpose of
constitutional amendment always throw light on the constitutional
provisions but for interpreting a particular constitutional provision,
the constitutional scheme and the express language employed
cannot be given a go-by. The purpose and intent of the
constitutional provisions have to be found from the very
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constitutional provisions which are up for interpretation. We, thus,
while interpreting Article 239-AA have to keep in mind the purpose
and object for which the Sixty-ninth Constitution (Amendment)
Act, 1991 was brought into force. After noticing the above
principles, we now proceed further to examine the nature and
content of the constitutional provisions.”
407. We may also notice a seven-Judge Bench judgment of this
Court on principles of interpretation of Constitution. In Abhiram Singh
vs. C.C. Commachen (Dead) By Legal Representatives and
others, (2017) 2 SCC 629, Justice Madan B. Lokur, with whom Justice
T.S. Thakur, CJ and Justice S.A. Bobde, concurred noticed the conflict
between a literal interpretation or purposive interpretation. It was held
that interpretation has, therefore, to consider not only the context of the
law but the context in which the law is enacted. Justice Lokur extracted
Bennion on Statutory Interpretation in paragraph 38 to the following
effect:
“38. In Bennion on Statutory Interpretation[6th Edn. (Indian
Reprint) p. 847] it is said that:
“General judicial adoption of the term “purposive construction” is
recent, but the concept is not new. Viscount Dilhorne, citing Coke,
said that while it is now fashionable to talk of a purposive
construction of a statute the need for such a construction
has been recognized since the seventeenth century.
[Stock v. Frank Jones (Tipton) Ltd., (1978) 1 WLR
231 at p.
234] In fact the recognition goes considerable further back than
that. The difficulties over statutory interpretation belong to the
language, and there is unlikely to be anything very novel or recent
about their solution … Little has changed over problems of verbal
meaning since the Barons of the Exchequer arrived at their famous
resolution in Heydon case [Heydon Case, (1584) 3 Co Rep 7a :
76 ER 637] . Legislation is still about remedying what is thought
to be a defect in the law. Even the most “progressive” legislator,
concerned to implement some wholly normal concept of social
justice, would be constrained to admit that if the existing law
accommodated the notion there would be no need to change it.
No legal need that is ….”
408. Approving the purposive construction the Court also held
that a pragmatic view is required to be taken and the law interpreted
purposefully. In paragraph 39 following was observed:
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“39. We see no reason to take a different view. Ordinarily,
if a statute is well drafted and debated in Parliament there is little
or no need to adopt any interpretation other than a literal
interpretation of the statute. However, in a welfare State like ours,
what is intended for the benefit of the people is not fully reflected
in the text of a statute. In such legislations, a pragmatic view is
required to be taken and the law interpreted purposefully and
realistically so that the benefit reaches the masses. …”
409. Justice T.S. Thakur delivering his concurring opinion in
paragraph 74 held that an interpretation which has the effect of diluting
the constitutional objective should be avoided and the purpose of the
constitution be kept in mind. In paragraphs 74, 76 and 77 following was
observed:
“74. The upshot of the above discussion clearly is that under
the constitutional scheme mixing religion with State power is not
permissible while freedom to practice, profess and propagate
religion of one’s choice is guaranteed. The State being secular in
character will not identify itself with any one of the religions or
religious denominations. This necessarily implies that religion will
not play any role in the governance of the country which must at
all times be secular in nature. The elections to the State Legislature
or to Parliament or for that matter or any other body in the State
is a secular exercise just as the functions of the elected
representatives
must be secular in both outlook and practice.
Suffice it to say that the constitutional ethos forbids mixing of
religions or religious considerations with the secular functions of
the State. This necessarily implies that interpretation of any statute
must not offend the fundamental mandate under the Constitution.
An interpretation which has the effect of eroding or diluting the
constitutional objective of keeping the State and its activities free
from religious considerations, therefore, must be avoided. This
Court has in several pronouncements ruled that while interpreting
an enactment, the Courts should remain cognizant of the
constitutional goals and the purpose of the Act and interpret the
provisions accordingly.
76. Extending the above principle further one can say that
if two constructions of a statute were possible, one that promotes
the constitutional objective ought to be preferred over the other
that does not do so.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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77. To somewhat similar effect is the decision of this Court
in State of Karnataka v. Appa Balu Ingale [State of
Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994
SCC (Cri) 1762] wherein this Court held that as the vehicle of
transforming the nation’s life, the Court should respond to the
nation’s need and interpret the law with pragmatism to further
public welfare and to make the constitutional animations a reality.
The Court held that Judges should be cognizant of the constitutional
goals and remind themselves of the purpose of the Act while
interpreting any legislation. The Court said: (SCC p. 486, para 35)
“35. The Judges, therefore, should respond to the human
situations to meet the felt necessities of the time and social
needs, make meaningful the right to life and give effect to the
Constitution and the will of the legislature. This Court as the
vehicle of transforming the nation’s life should respond to the
nation’s needs and interpret the law with pragmatism to further
public welfare to make the constitutional animations a reality.
Common sense has always served in the court’s ceaseless
striving as a voice of reason to maintain the blend of change
and continuity of order which is sine qua non for stability in the
process of change in a parliamentary democracy. In
interpreting the Act, the Judge should be cognizant to and always
keep at the back of his/her mind the constitutional goals and
the
purpose of the Act and interpret the provisions of the Act
in the light thus shed to annihilate untouchability; to accord to
the Dalits and the Tribes right to equality; give social integration
a fruition and make fraternity a reality.””
410. Applying the above principles laid down by the Constitution
Benches of this Court on interpretation of a Constitution, in the fact of
the present case, we need to discern the intention of Parliament in inserting
Article 342A. We have already found that reports of the Parliamentary
Committee and the statement made by the Minister while moving the
Bill are relevant aids for a construction of constitutional provision. The
Parliamentary Committee report makes it clear that after obtaining the
clarification from the Ministry that the Constitutional Amendment is not
intended to take away the right of identification of backward class from
a State. It submitted its report to the effect that rights of State Backward
Classes Commission shall continue unhindered. The Parliamentary
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Standing Committee further noticed that the list which is contemplated
under Article 342A is only Central List of the backward classes for a
particular State for the purposes of services under the Government of
India and its organizations.
411. We have further noticed the statement of Minister of Social,
Justice and Empowerment, made both in Rajya Sabha and Lok Sabha.
The Minister stated the task of preparing list of the State of the
Backward Classesis taken by the State Commission and the
amendment shall have no effect on the right of the State and State
Backward Classes Commission to identify the backward classes.
We have extracted above the relevant statement of Minister in the
foregoing paragraphs.
412. We may further notice that the above statement was made
by the Minister of Social Justice and Empowerment in the background
of several members of the Parliament expressing their apprehension
that the Constitution 102nd Amendment shall take away rights of the
States to identify backward classes in each State. The Minister of Social
Justice and Empowerment for allaying their apprehension made a
categorical statement that the Constitutional Amendment shall not affect
the power of the State, the State Backward Classes Commission to
identify the backward classes in the State.
413.  Learned Attorney General for India in his submission has
referred to the statement of Minister of Social Justice and Empowerment
as well as Parliamentary Select Committee report
and has emphasised
that the Parliamentary intention was never to take away the rights of the
States to identify backward classes in their respective States. Learned
Attorney General has referred to and relied on the Union’s stand taken
in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India & Ors.,
where the stand of the Union on the Constitution (102nd Amendment)
Act, 2018 was made clear in paragraph 11. We extract paragraph 11 of
the above affidavit relied by the learned Attorney General which is to
the following effect:
“11. That, from the above, it is evident that the power to identify
and specify the SEBCs lies with Parliament, only with reference
to the Central List of SEBCs. The State Governments may have
their separate State Lists of SEBCs for the purpose of providing
reservation in recruitment to State Government services or
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admission in State Government educational institutions. The castes/
communities included in such State Lists of SEBCs may differ
from the castes/communities included in the Central List of SEBCs.
It is submitted that the inclusion or exclusion of any caste or
community in the State List of SEBCs is the subject of the
concerned State Government and the Government of India has
no role in the matter.”
414. It is, thus, clear as sun light that Parliamentary intention
discernible from Select Committee report and statement of Ministry of
Social Justice and Empowerment is that the intention of the Parliament
for bringing Constitutional amendment was not to take away the power
of the State to identify backward class in the State.
415. The Parliamentary intention was further discernible that the
list which was contemplated to be issued by President under Article
342A was only the Central List which was to govern the services under
the Government of India and organisations under the Government of
India. When the Parliamentary intention is discernable and admissible
as aid to statutory interpretation, we see no reason not to interpret Article
342A in manner as per the intention of the Parliament noticed above.
416. We also need to reflect on the submission of petitioner that
the scheme under Article 342A has to be interpreted in accordance with
already existing scheme under Articles 341 and 342. There is no doubt
that the
Constitutional scheme under Article 342A (1) and those of Article
341(1) and 342(1) are same but there is a vast difference between the
list of SC and ST as contemplated by Articles 341 and 342 of those of
backward classes which now is contemplated under Article 342A.
417. The concept of Scheduled Castes was well known even
before the enforcement of the Constitution. There was already Scheduled
Castes list in existence when the Constitution was enforced. We may
refer to Government of India Act, 1935, Schedule (1), paragraph 26
which defines the Scheduled Castes in the following words:
“26.-(1) In the foregoing provisions of this Schedule the
following expressions have the meanings hereby assigned to them,
that is to say:-
“……
……
…
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“the scheduled castes” means such castes, races or tribes
or parts of or groups within castes, races or tribes, being castes,
races, tribes, parts or groups which appear to His Majesty in Council
to correspond to the classes of persons formerly known as “the
depressed classes”, as His Majesty in Council may specify; and…”
418. The Government of India has also issued a Scheduled Castes
List under the Government of India Scheduled Castes Order 1936. The
Constitution framers were, thus, well aware with the concept of
Scheduled Castes and Scheduled Tribes and hence the same scheme
regarding SC was continued in the Constitution by way of Article 341 of
the Constitution.
419. The expression ‘backward class’ does not find place in the
Government of India Act, 1935. The Constitution framers recognising
that backward classes of citizens need affirmative action by the State to
bring them in the main stream of the society has engrafted a special
provision for backward classes. Under Article 16(4) the State was
empowered to make any provision for reservation of appointment or
posts in favour of any backward class of citizens not adequately
represented in services. When the Constitution empowers the State to
make any provision, the provision may embrace all aspects of measures
including identification of the backward classes. The Constitution Bench
of this Court in Indra Sawhney has accepted and recognised this position.
It is both the States and Union who are
entitled to identify backward
classes of citizens and to take measures. Indra Sawhney had, thus,
issued directions to Union as well as States to constitute permanent
body for identification and for taking necessary measures. The power to
identify the backward classes was with the State and there are no
intentions that the power of the State as occurring in Articles 15(4) and
16(4) in any manner has been taken away by the Constitutional
amendment. The power given to the State under Articles 15(4) and 16(4)
are for the benefit of backward classes of citizens. Any limitation or
limitation of such power cannot be readily inferred and has to be expressly
provided by the Constitution. The submission of the petitioner that Article
342A which relates to socially and educationally backward class should
be read in the Constitutional scheme as delineated under Articles 341
and 342, thus, cannot be accepted.
420. Now, we come to the expression “Central List” as occurring
in Article 342A (2). In pursuance of the direction issued by the Constitution
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Bench of this Court in Indra Sawhney, the Parliament has enacted the
National Commission for Backward Classes Act, 1993. Section 2(c) of
the Act defines ‘lists’ in the following words:
“Section 2(c) “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;”
421. Section 9 of the Act defines the functions of the Commission.
Section 9 provides as follows:
“9. Functions of the Commission.–(1) The Commission shall
examine requests for inclusion of any class of citizens as a
backward class in the lists and hear complaints of over-inclusion
or under-inclusion of any backward class in such lists and tender
such advice to the Central Government as it deems appropriate.
(2) The advice of the Commission shall ordinarily be binding upon
the Central Government.”
422. The National Commission for Backward Classes Act, 1993
clearly indicates that the Parliamentary enactment was related to services
under the Government of India and the Act, 1993 was not to govern or
regulate identification of backward classes by the concerned State. The
States had also enacted “State
Legislation” constituting Backward Classes
Commission. In the State of Maharashtra, Maharashtra State Backward
Classes Commission, Act was enacted in 2005. Along with passing of
the Constitution 102nd Amendment, the National Commission for
Backward Classes (Repeal) Act, 2018 was passed which received the
assent of the President of India on 14.08.2018. We may notice Section 2
of the Repeal Act which is to the following effect:
“Section 2.(1) The National Commission for Backward Classes
Act, 1993 is hereby repealed and the National Commission for
Backward Classes constituted under sub-section (1) of section 3
of the said Act shall stand dissolved.
(2) The repeal of the National Commission for Backward
Classes Act, 1993 shall, however, not effect,—
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(i) the previous operation of the Act so repealed or anything
duly done or suffered thereunder; or
(ii) any right, privilege, obligation or liability acquired, accrued
or incurred under the Act so repealed, or
(iii) any penalty, confiscation or punishment incurred in
respect of any contravention under the Act so repealed; or
(iv) any proceedings or remedy in respect of any such right,
privilege, obligation, liability, penalty, confiscation or punishment
as aforesaid, and any such proceeding or remedy may be instituted,
continued or enforced, and any such penalty, confiscation or
punishment may be imposed or made as if that Act had not been
repealed.
(3)...
…
…
…”
423. The National Commission for Backward Classes by the
Constitutional 102nd Amendment was, thus, given constitutional status
which was available to the Commission which as a statutory Commission
under 1993 enactment.
The Parliamentary Select Committee report dated 17.07.2017 and
the Minutes of the Parliamentary Standing Committee as referred to
and extracted above indicates that it was well known that there are two
lists of Backward Classes, one “Central List” and other “State List”.
During the Parliamentary Committee report it was clarified and expressed
that Constitutional amendment is only with regard to “Central List” which
expression was expressly included in sub-clause (2) of Article 342A.
424. We may also look into the use of expression “Central List”
under Article 342A in contradiction
to the words, “list of Scheduled
Castes”, “list of Scheduled Tribes” as occurring in Articles 341(2) and
342(2) which are to following effect:
“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.
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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.”
425. Article 341(1) uses expression ‘Scheduled Castes’ and the
same expression finds place in sub-clause (2) when the sub-clause (2)
of the Article uses expression “list of Scheduled Castes” specified in
notification. Similarly, Article 342(2) also uses expression ‘list of
Scheduled Tribes’ specified in the notification.
426. Article 342A(2) uses an extra word “Central” before the
expression ‘List’ of socially and educationally backward classes. If it is
to be accepted that the constitutional scheme of Articles 341 and 342
was to be followed and carried in Article 342A also, the same expression,
which was necessary to be used i.e. “list of socially and educationally
backward classes” which use would have been in line of the expression
occurring in Article 341(2) and 342(2). It is, thus, clear that an extra
word, namely, ‘Central’ has been added in Article 342(2) before the
expression ‘list of socially and educationally backward classes’. When
the statute or Constitution uses an additional
word it has to be presumed
that the use of additional word is for a purpose and object and it is not
superfluous or redundant.
427. While interpreting a constitutional provision, no word shall be
treated as superfluous and redundant. We have noticed above that the
list for services in the Government of India was Central List which was
being prepared prior to the Constitution Amendment, under Act, 1993.
428. We may also deal with the submission of the petitioner that
the word ‘Central List’ was used in sub-clause (2) of Article 342A to
refer the public notification specifying the socially educationally backward
classes issued by the President of India under sub-clause (1). The
expression ‘list of socially and educationally backward classes’ specified
in notification under sub-clause (1) is already there under sub-clause (2)
which clearly meant and referred to notification issued under sub-clause
(1), hence, there was no necessity for use of an additional word ‘Central’
in sub-clause (1) which was wholly superfluous and redundant.We are
of the view that the word ‘Central’ was used for a purpose and object,
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the use of the ‘Central’ was only with the intent to limit the list issued by
the President to Central services. Sub-clause (1) of Article 342 and sub-
clause (2) of Article 342A has to be given harmonious construction and
we read both the Articles together to find out purpose and intent of the
list issued by the President under sub-clause (1). It is the ‘Central List’
which could be amended by the Parliament by exercising power under
sub-clause (2) of Article 342A.
429.  A question may be asked that when under 1993 Act “Central
List” was prepared by Government of India and the “State list” was
prepared by States, what was the necessity to bring the 102nd
Constitutional Amendment if the same regime of two lists i.e. “Central
list” and “State list” was to continue? For answering the question we
first look into the 1993 Act to understand the nature of exercise undertaken
under the Act regarding “Central List” and change in the exercise, if
any, after 102nd Constitutional Amendment.
430. We have already noticed Section 2(c) and 9 of 1993 Act. We
may also notice Section 11 of 1993 Act which provides: -
“11. Periodic revision of lists by the Central Government.–
(1) The Central Government may at any time, and shall, at the
expiration of ten years from the coming into force of this Act and
every succeeding period of ten years thereafter, undertake revision
of the lists with a view to excluding from such lists those classes
who have ceased to be backward classes
or for including in such
lists new backward classes. (2) The Central Government shall,
while undertaking any revision referred to in sub-section (1),
consult the Commission.”
431. Section 2(c), 9 and 11 makes it clear that list prepared by the
Central Government from time to time for reservation of appointments
or posts in favour of backward classes in the services under the
Government of India and any local or other authority, within the territory
of India or under the control of Government of India was an statutory
exercise of the Government of India under the 1993 Act. All the lists
which were issued after 1993 Act by the Government of India were by
executive orders issued from time to time. For what purpose, 102nd
Constitutional Amendment was made? Answer is not for to seek.
432. Under the Government of India Act, 1935, the list of “the
Scheduled Castes” was to be specified by His Majesty in Council as per
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clause 26 of Schedule I of the Government of India Act, 1935, which
was also an executive function. The legal regime of the list of Scheduled
caste saw a sea change under the Constitution of India as reflected in
Article 341 and 342. What was the change brought by Constitution of
India regarding the list of Scheduled Caste can be well understood when
we look into the debates of the Constituent Assembly on Draft Articles
300A and 300B which corresponds to Articles 341 and 342 of the
Constitution of India.
433. Dr. B.R. Ambedkar moving the Amendment briefly outlined
the object and purpose of the Constitutional provisions in debates dated
17.09.1949 in following words: -
“...The object of these two articles, as I stated, was to
eliminate the necessity of burdening the Constitution with long
lists of Scheduled Castes and Scheduled Tribes. It is now proposed
that the President, in consultation with the Governor or Ruler of a
State should have the power to issue a general notification in the
Gazette specifying all the Castes and tribes or groups thereof
deemed to be Scheduled Castes and Scheduled Tribes for the
purposes of the privileges which have been defined for them in
the Constitution. The only limitation that has been imposed is this:
that once a notification has been issued by the President, which,
undoubtedly, he will be issuing in consultation with and on the
advice of the Government of each State, thereafter, if
any
elimination was to be made from the List so notified or any addition
was to be made, that must be made by Parliament and not by the
President. The object is to eliminate any kind of political factors
having a play in the matter of the disturbance in the Schedule so
published by the President.”
434. The main object of the Constitutional provision was to
“eliminate any kind of political factors having a play in the matter of the
disturbance in the Scheduled so published by the President.”
435. We have to read the same objective for change of the
statutory regime of backward class under 1993 Act into Constitutional
regime by Article 342A. To eliminate any kind of political factor to play
with regard to list of backward class issued by Government of India
from time to time under 1993 Act, the Constitution Amendment was
brought as was brought by Constituent Assembly by Draft Article 341
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and 342. Now, by virtue of Article 342A, the list once issued by the
President under Article 342A(1) cannot be tinkered with except by way
of Parliamentary enactment. Thus, the above was the objective of the
Constitutional Amendment and not the taking away the power of the
States to identify the Backward Class in State with regard to reservation
for employment in the State services and reservation in educational
institution in the States. A laudable objective of keeping away political
pressure in amending the list of Backward class issued by President
once has been achieved, hence, it cannot be said that the 102nd
Constitutional Amendment was without any purpose if the power of
State to identify Backward classes in their State was to remain as it is.
436. The above also sufficiently explain the stand taken by Minister
of Social Justice and Empowerment on the floor of House. The Minister
clarified that the Constitutional Amendment is not to take away the power
of the State to identify the Backward Classes in the State for purposes
of the State and was confined to “Central List” which was being prepared
by the Government of India as in earlier regime. Learned Attorney
General in his submission forcefully carried the same stand regarding
interpretation of Article 342A. We see no reason to reject the submission
of learned Attorney General for India and learned senior counsel
appearing for the States that the 102nd Constitutional Amendment was
not intended to
take away the power of the State regarding identification
of Backward Class for services in the State or educational institutions in
the State.
437. We also need to reflect on definition of socially and
educationally backward classes as occurring in Article 366(26C). Article
366 is the definition clause of the Constitution. Article 366 begins with
the following effect:
“366. Definition in this Constitution, unless the context
otherwise requires, the following expressions have as, the meanings
hereby respectively assigned to them, .....”
‘(26C) “socially and educationally backward classes” means
such backward classes as are so deemed under article 342A for
the purposes of this Constitution;’.”
438. When we look into the definition as inserted by Article
366(26C), it is clear that definition provides that socially and educationally
backward class means such backward classes as are deemed under
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Article 342A for the purposes of this Constitution. When we have
interpreted Article 342A to mean that Article 342A refers to ‘Central
List’ which is prepared for services under the Government of India and
organisations under the Government of India, the definition given under
Article 366(26C) which specifically refer to Article 342A has to be read
together and list of backward classes which is not Central List shall not
be governed by the definition under Article 366(26C). Since, the 26C
has been inserted in the context of Article 342A, if the context is list
prepared by the State and it is State List, definition under (26C) shall not
govern. Article 366(26C), thus, has to be read contextually with Article
342A and for no other purpose.
439. The interpretation which we have put on Article 342A is in
full accord with intention of the framers of the Constitution. Dr. B.R.
Ambedkar in the Constituent Assembly had said that a backward
community is to be determined by each local Government. The
determination, i.e., identification of the backward classes was, thus, left
to the local Government as was clearly and categorically stated by Dr.
Ambedkar in the Constituent Assembly debates. It is most relevant for
the present discussion to quote the exact words used by Dr. Ambedkar
while answering the debate on draft sub-clause, Article 10(3) which is
Article 16(4) of the present Constitution:
“Somebody asked me: “What is a
backward community”?
Well, I think anyone who reads the language of the draft
itself will find that we have left it to be determined by each
local Government. A backward community is a community
which is backward in the opinion of the Government.”
440. The framers of the Constitution, thus, had contemplated that
determination of backward class as occurring in draft Article 10(3), i.e,
present Article 16(4) is to be done by the local Government. The
constitutional scheme, thus, was framed in accordance with the above
background. After the Constitution, it is for the last 68 years backward
class was being identified by the respective State Governments and they
were preparing their respective lists and granting reservation under
Articles 15(4) and 16(4) as per their decision. The Constitution Bench
of Indra Sawhney did recognise and held that each State Government
is fully competent to identify backward classes and this is why the Indra
Sawhney directed for appointment of a permanent body both by the
Union as well as by the State and consequently Commissions were
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constituted National Backward Classes Commission and State Backward
Classes Commission. To reverse the entire constitutional scheme
regarding identification of backward classes by the State which was
continuing in the last 68 years, a clear and explicit Constitutional
Amendment, was necessary. There is no express indication in the 102nd
Constitutional Amendment that the power of the State is being taken
away for identification of the backward classes.
441. We are not persuaded to interpret Article 342A against the
intention of the Parliament which is reflected in the Parliamentary
Committee report and the statement made by the Minister on the floor
of the House. The statement of the Minister on the floor of the House
was clear and categorical, we cannot put an interpretation which was
never intended by the Parliament and which may have serious
consequences with the rights of the States which neither Parliament
intended nor wanted to bring. We, thus, hold that Article 342A was brought
by Constitution 102nd Amendment to give constitutional status to National
Backward Classes Commission and for publication of list by the President
of socially and educationally backward classes which was to be Central
List for governing employment under Government of India and the
organisations under it. The expression ‘Central List’ used in sub-clause
(2) of Article 342A has been used for the purpose and object which
cannot be ignored nor lost sight. The definition clause
under Article
366(26C) has to be read contextually with Article 366(26C) which is
referred under Article 366(2C) itself. Thus, the definition is relevant in
the context of ‘Central List’ and the definition is not governing to list
prepared by the State which was not under contemplation in Article
342A.
442. We do not find any merit in the challenge to the Constitution
102nd Amendment. The Constitution 102nd Amendment does not violate
any basic feature of the Constitution. The argument of the learned counsel
for the petitioner is that Article 368 has not been followed since the
Constitution 102nd Amendment was not ratified by the necessary majority
of the State. The Parliament never intended to take the rights of the
State regarding identification of backward classes, the Constitution 102nd
Amendment was not covered by Proviso to Article 368 sub-clause (2),
hence, the same did not require any ratification. The argument of
procedural violation in passing the 102nd Constitutional Amendment cannot
also be accepted. We uphold the Constitution 102nd Amendment
interpreted in the manner as above.
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443. The High Court in the impugned judgment has correctly
interpreted the Constitution 102nd Amendment and the opinion of the
High Court that the Constitution 102nd Amendment does not take away
the legislative competence of Maharashtra Legislature is correct and
we approve the same.
(15) Conclusions.
444. From our foregoing discussion and finding we arrive at
following conclusions:
(1) The greatest common measure of agreement in six separate
judgments delivered in Indra Sawhney is:
(i) Reservation under Article 16(4) should not exceed 50%.
(ii) For exceeding reservation beyond 50%, extra-ordinary
circumstances as indicated in paragraph 810 of Justice Jeevan
Reddy should exist for which extreme caution is to be exercised.
(2) The 50% rule spoken in Balaji and affirmed in Indra Sawhney
is to fulfill the objective of equality as engrafted in Article 14 of
which Articles 15 and 16 are facets. 50% is reasonable and it is to
attain the object of equality. To change the 50% limit is to have a
society which is not founded on equality but based on caste rule.
(3) We are of the considered opinion that the cap on percentage
of reservation as has been laid down by Constitution Bench in
Indra Sawhney is with the object of striking a balance between
the rights under Article 15(1) and 15(4) as well as Articles 16(1)
and 16(4) . The cap on percentage is to achieve principle of equality
and with the object to strike a balance which
cannot be said to be
arbitrary or unreasonable.
(4) Providing reservation for advancement of any socially and
educationally backward class in public services is not the only
means and method for improving the welfare of backward class.
The State ought to bring other measures including providing
educational facilities to the members of backward class free of
cost giving concession in fee, providing opportunities for skill
development to enable the candidates from the backward class to
be self-reliant.
(5) There can be no quarrel that society changes, law changes,
people changes but that does not mean that something which is
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good and proven to be beneficial in maintaining equality in the
society should also be changed in the name of change alone.
(6) When the Constitution Bench in Indra Sawhney held that
50% is upper limit of reservation under Article 16(4), it is the law
which is binding under Article 141 and to be implemented.
(7) We find that the Constitution Bench judgment in Indra
Sawhney is also fully applicable in reference to Article 15(4) of
the Constitution of India.
(8) The setting aside of 50% ceiling by eleven-Judge Bench in
T.M.A. Pai Foundation case as was laid down by St. Stephen’s
case i.e. 50% ceiling in admission in aided Minority Instructions
has no bearing on the principle of 50% ceiling laid down by Indra
Sawhney with respect to reservation. The judgment of T.M.A.
Pai was in reference to rights of minority under Article 30 and is
not relevant for Reservation under Articles 16(4) and 15(4) of the
Constitution.
(9) The Constitution (Eighty-first Amendment) Act, 2000 by which
sub-clause (4B) was inserted in Article 16 makes it clear that
ceiling of 50% “has now received constitutional recognition”.
(10) We fully endorse the submission of Shri Rohtagi that
extraordinary situations indicated in paragraph 810 were only
illustrative and cannot be said to be exhaustive. We however do
not agree with Mr. Rohtagi that paragraph 810 provided only a
geographical test. The use of expression “on being out of the
main stream of national life”, is a social test, which
also needs to
be fulfilled for a case to be covered by exception.
(11) We do not find any substance in any of the 10 grounds urged
by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring
the judgment of Indra Sawhney to a larger Bench.
(12) What was held by the Constitution Bench in Indra Sawhney
on the relevance and significance of the principle of stare decisis
clearly binds us. The judgment of Indra Sawhney has stood the
test of the time and has never been doubted by any judgment of
this Court. The Constitution Bench judgment of this Court in Indra
Sawhney neither needs to be revisited nor referred to a larger
Bench for consideration.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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(13) The Constitution Bench in M. Nagaraj does not contain any
ratio that ceiling of 50% reservation may be exceeded by showing
quantifiable contemporary data relating to backwardness. The
Commission has completely misread the ratio of the judgment,
when the Commission took the view that on the quantifiable data
ceiling of 50% can be breached.
(14) The Commission and the High Court found existence of the
extra-ordinary situations with regard to exceeding 50% ceiling in
respect to grant of separate reservation to Maratha because the
population of backward class is 80% and reservation limit is only
50%, containing the Maratha in pre-existing reservation for OBC
shall not be justice to them, which circumstances is not covered
under the para meters indicated in Indra Sawhney’s case as
extra-ordinary circumstance to breach 50% ceiling.
(15) We have found that no extraordinary circumstances were
made out in granting separate reservation of Maratha Community
by exceeding the 50 per cent ceiling limit of reservation. The Act,
2018 violates the principle of equality as enshrined in Article 16.
The exceeding of ceiling limit without there being any extra-ordinary
circumstances clearly violates Article 14 and 16 of the Constitution
which makes the enactment ultra vires.
(16) The proposition is well settled that Commissions’ reports are
to be looked into with deference. However, one of the parameter
of scrutiny of Commission’s
report as approved by this Court is
that on the basis of data and materials referred to in the report
whether conclusions arrived by the Commission are justified.
(17) The measures taken under Article 15(4) and 16(4) can be
examined as to whether they violate any constitutional principle,
and are in conformity with the rights under Article 14, 15 and 16
of the Constitution. The scrutiny of measures taken by the State,
either executive or legislative, thus, has to pass test of the
constitutional scrutiny.
(18) The word ‘adequate’ is a relative term used in relation to
representation of different caste and communities in public
employment. The objective of Article 16(4) is that backward class
should also be put in main stream to enable to share power of the
State by affirmative action. To be part of public service, as accepted
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by the Society of today, is to attain social status and play a role in
governance.
(19) We have examined the issues regarding representation of
Marathas in State services on the basis of facts and materials
compiling by Commission and obtained from States and other
sources. The representation of Marathas in public services in
Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and
36.53% computed from out of the open category filled posts, is
adequate and satisfactory representation of Maratha community.
One community bagging such number of posts in public services
is a matter of pride for the community and its representation in no
manner can be said to not adequate in public services.
(20) The Constitution pre-condition for providing reservation as
mandated by Article 16(4) is that the backward class is not
adequately represented in the public services. The Commission
labored under misconception that unless Maratha community is
not represented equivalent to its proportion, it is not adequately
represented.
Indra Sawhney has categorically held that what is required by
the State for providing reservation under Article 16(4) is not
proportionate representation but adequate representation.
(21) The constitutional precondition as mandated by Article 16(4)
being not fulfilled with regard to Maratha class, both the Gaikwad
Commission’s report and consequential legislation are
unsustainable.
(22) We having disapproved the grant of reservation under Article
16(4)
to Maratha community, the said decision becomes relevant
and shall certainly have effect on the decision of the Commission
holding Maratha to be socially and educationally backward.
Sufficient and adequate representation of Maratha community in
public services is indicator that they are not socially and
educationally backward.
From the facts and figures as noted by Gaikwad Commission
in its report regarding representation of Marathas in public services,
the percentage of Marathas in admission to Engineering, Medical
Colleges and other disciplines, their representation in higher
academic posts, we are of the view that conclusion drawn by the
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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Commission is not supportable from the data collected. The data
collected and tabled by the Commission as noted in the report
clearly proves that Marathas are not socially and educationally
backward class.
(23) The elementary principle of interpreting the Constitution or
statute is to look into the words used in the statute, when the
language is clear, the intention of the Legislature is to be gathered
from the language used. The aid to interpretation is resorted to
only when there is some ambiguity in words or expression used in
the statute. The rule of harmonious construction, the rule of reading
of the provisions together as also rule of giving effect to the purpose
of the statute, and few other principles of interpretation are called
in question when aids to construction are necessary in particular
context.
(24)The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
Constitution is not to be interpreted in static and rigid manner, the
Constitution is an organic and living document which needs to be
interpreted with cardinal principals and objectives of the
Constitution. The shift from literal to purposive method of
interpretation has been now more and more, being adopted for
interpreting a constitutional document.
(25) The law is well settled in this county that Parliamentary
Committee reports including speech given by the Minister in the
Parliament
are relevant materials to ascertain the intention of
Parliament while construing constitutional provisions.
(26) We are of the considered opinion that the consultation by the
State on all policy matters affecting the socially and educationally
backward classes is now mandatory as per sub-clause(9) of Article
338B which mandatory requirement cannot be by-passed by any
State while the State takes any major policy decision.
Sub-clause (9) of Article 338B uses the expression
‘consultation’. It is true that the expression ‘consultation’ is not to
be read as concurrence but the ‘consultation’ has to be effective
and meaningful. The object of consultation is that ‘consultee’ shall
place the relevant material before person from whom ‘consultation’
is asked for and advice and opinion given by consulting authority
shall guide the authority who has asked for consultation.
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(27) It is, thus, clear as sun light that Parliamentary intention
discernible from Select Committee report and statement of Minister
of Social Justice and Empowerment is that the intention of the
Parliament for bringing Constitutional amendment was not to take
away the power of the State to identify backward class in the
State.
(28) When the Parliamentary intention is discernable and
admissible as aid to statutory interpretation, we see no reason not
to interpret Article 342A in manner as per the intention of the
Parliament noticed above.
(29) We are of the view that word ‘Central’ in Article 342A (2)
was used for purpose and object. The use of ‘Central’ was only
with the intent to limit the list issued by the President to Central
services. It is well settled rule of interpretation that no word in a
statute or Constitution is used without any purpose. Word ‘Central’
has to be given meaning and purpose.
(30) When we have interpreted Article 342A to mean that Article
342A refers to ‘Central List’ which is prepared for services under
the Government of India and organisations under the Government
of India, the definition given under Article 366(26C) which
specifically refer to Article 342A has to be read together and list
of backward classes which is not Central List shall not be governed
by the definition under Article 366(26C). Since, the (26C) has
been inserted in the context of Article 342A, if the context is list
prepared by the State and it is State
List, definition under (26C)
shall not govern.
(31) We, thus, hold that Article 342A was brought by Constitution
102nd Amendment to give constitutional status to National
Backward Classes Commission and for publication of list by the
President of socially and educationally backward classes which
was to be Central List for governing employment under
Government of India and the organisations under it.
(32) The Constitution 102nd Amendment Act, 2018 does not violate
any basic feature of the Constitution. We uphold the constitutional
validity of Constitution (One Hundred and second Amendment)
Act, 2018.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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(16) O R D E R
In view of the foregoing discussions and conclusions, we decide
all the Civil Appeals and Writ Petitions in this batch of cases in following
manner:
(1)
C.A.No.3123 of 2020 and other civil appeals challenging
the impugned judgment of the High Court dated 27.06.2019
are allowed. The impugned judgment of the High Court
dated 27.06.2019 is set aside. The writ petitions filed by the
appellants in the High Court are allowed with following
effect:
(a)
Section 2(j) of the Act, 2018 insofar as it declares
Maratha community Educationally and Socially
Backward Category is held to be ultra vires to the
Constitution and struck down.
(b)
Section 4(1)(a) of Act, 2018 as amended by Act, 2019
insofar as it grants reservation under Article 15(4) to
the extent of 12% of total seats in educational
institutions including private institutions whether aided
or un-aided by the State, other than minority
educational institutions, is declared ultra vires to the
Constitution and struck down.
(c)
Section 4(1)(b) of Act, 2018 as amended by Act, 2019
granting reservation of 13% to the Maratha
community of the total appointments in direct
recruitment in public services and posts under the
State, is held to be ultra vires to the Constitution and
struck down.
(d)
That admissions insofar as Postgraduate Medical
Courses which were already held not to affect by
order dated 09.09.2020, which shall not be affected
by this judgment. Hence,
those students who have
already been admitted in Postgraduate Medical
Courses prior to 09.09.2020 shall be allowed to
continue.
(e)
The admissions in different courses, Medical,
Engineering and other streams which were completed
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after the judgment of the High Court dated 27.06.2019
till 09.09.2020 are saved. Similarly, all the
appointments made to the members of the Maratha
community in public services after the judgment of
the High Court dated 27.06.2019 till order passed by
this Court on 09.09.2020 are saved. However, no
further benefit can be claimed by such Maratha
students admitted in different course or Maratha
students who were appointed in public services in
the State under Act, 2018.
(f)
After the order was passed on 09.09.2020 neither
any admission can be taken in the educational
institutions nor any appointment can be made in public
services and posts in accordance with Act, 2018.
(2)
The Writ Petition (C)No.914 of 2020, Writ Petition
(C)No.915 of 2020, Writ Petition (C)No.504 of 2020 filed
under Article 32 of the Constitution are disposed of as per
above directions.
(3)
Writ Petition No.938 of 2020 challenging the Constitutional
validity of Constitution 102nd Amendment Act, 2018 is
dismissed in view of the interpretation of Constitution 102nd
Amendment Act, 2018 as above.
445. Before we close, we record our indebtedness to learned
counsel who appeared in these cases and enlightened us with regard to
issues involved in this batch of appeals and writ petitions which are of
seminal importance both for constitutional law as well as for the society
in general. All the learned counsel apart from oral submissions have
submitted their excellent brief written notes touching
various issues which
were sought to be canvassed by them before this Court, which rendered
valuable assistance to us.
446. Parties shall bear their own costs.
S. RAVINDRA BHAT, J.
1. Franklin D. Roosevelt, the great American leader, once said
that “The test of our progress is not whether we add more to the
abundance of those who have much; it is whether we provide enough
for those who have too little.”In these batch of appeals arising from a
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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common judgment of the Bombay High Court1, this court is called to
adjudicate upon the extent to which reservations are permissible by the
state, the correctness of its approach in designating a community2 as a
“Backward Class” for the purposes of the Constitution, and, by an
enactment3 (hereafter referred to as “the SEBC Act”) defining who
could benefit from, and the extent of reservations that could be made in
various state established facilities and educational institutions, and in the
public services of the State of Maharashtra.
A Brief Prelude
2. Dr. Babasaheb Ambedkar, when he spoke on November 25,
1949, in the Constituent Assembly of India at the time of the adoption of
the Constitution, presciently said:
“From January 26, 1950, onwards we are going to enter into
a life of contradictions. In politics, we will have equality, one
man, one vote, one vote and one value. In society and economy,
we will still have inequality. In our social and economic life,
we shall, by reason of our social and economic structure,
continue to deny the principle of one man-one value.”
3. The quest for one person, one value, of true equality, and of
fraternity of Indians, where caste, race, gender, and religion are irrelevant,
has produced mixed results. As long as there is no true equality, of
opportunity, of access, and of the true worth of human beings, and as
long as the world is “broken up into fragments by narrow domestic
walls”4 the quest remains incomplete. The present judgment is part of
an ongoing debate, which every generation of Indians has to grapple
with, and this court confront, at different points in time.
4. The Maratha community, in the State of Maharashtra repeatedly
sought reservations through diverse nature of demands through public
meetings, marches etc, by members of the community. It also led to
representatives and organizations of the community taking the demands
1 In WP No 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and con nected batch
of cases.
2 The Maratha community (hereafter “the Marathas”).
3 Maharashtra State Reservation for Seats for Admission in Educational Institutions in
the State and for appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018 i.e., Maharashtra Act
No. LXII of 2018 (for short ‘SEBC Act’).
4 Rabindranath Tagore’s Gitanjali, Verse 35.
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to the streets, resulting in the State of Maharashtra promulgating an
Ordinance for the first time in the year 2014, which granted reservation
to the community in public employment and in the field of education.
Later, the Ordinance was given the shape of an Act5, which was
challenged before the Bombay High Court.6 The court, after considering
the rival submissions, including the arguments of the state stayed the
operation of the enactment. The State Government then set up a
backward class commission to ascertain the social and educational status
of the community. Initially, the commission was headed by Justice S. B.
Mhase. His demise led to the appointment of Justice MG Gaikwad
(Retired) as chairperson of the commission; it comprised of 10 other
members.The Committee headed by Justice Gaikwad was thus
reconstituted on 3rd November, 2017. By its report dated 13.11.2018
(the Gaikwad Commission Report)7, the Commission, on the basis of the
surveys and studies it commissioned, and the analysis of the data collected
during its proceedings, recommended that the Maratha class of citizens
be declared as a Socially and Educationally Backward Class (“SEBC”
hereafter). This soon led to the enactment of the SEBC Act, giving
effect to the recommendations of the Gaikwad Commission, resulting in
reservation to the extent of 16% in favour of that community;
consequently, the aggregate reservations exceeded 50%.
5. The SEBC Act was brought into force on 30th November,
2018.
Close on its heels a spate of writ petitions was filed before the Bombay
High Court, challenging the identification of Marathas as SEBCs, the
conclusions of the Commission, which culminated in its adoption by the
State of Maharashtra and enactment of the SEBC Act, the quantum of
reservations, and the provisions of the Act itself, on diverse grounds. All
writ petitions were clubbed together and considered. By the impugned
judgment, the High Court turned down the challenge and upheld the
identification of Marathas as SEBCs, and further upheld the reasons
presented before it, that extraordinary circumstances existed, warranting
the breach of the 50% mark, which was held to be the outer limit in the
nine-judge decision of this court in Indra Sawhney v. Union of India8
(hereafter variously “Indra Sawhney” or “Sawhney”).
5 Maharashtra Act No. I of 2015.
6 In Writ Petition No. 3151/2014.
7 Report of the Committee, page 10.
8 Indra Sawhney v Union of India 1992 Supp (3) SCC 217.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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6. The special leave petitions, filed against the impugned judgment,
were heard, and eventually, leave granted. Some writ petitions too were
filed, challenging provisions of the SEBC Act. The validity of the
Constitution (102nd) Amendment Act9 too is the subject matter of
challenge, on the ground that it violates the basic structure, or essential
features of the Constitution.10A Bench of three judges, after hearing
counsel for the parties, referred the issues arising from these batch of
petitions and appeals, to a Constitution bench, for consideration, as
important questions arising for interpretation
7. The five-judge bench, by its order dated 08.03.2021, referred
the following points, for decision:
(1) Whether judgment in case of Indra Sawhney v. Union of India
[1992 Suppl. (3) SCC 217] needs to be referred to larger bench
or require re-look by the larger bench in the light of subsequent
Constitutional Amendments, judgments and changed social
dynamics of the society etc.?
(2) Whether Maharashtra State Reservation (of seats for admission
in educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 as amended
in 2019 granting 12% and 13% reservation for Maratha community
in addition to 50% social reservation is covered by exceptional
circumstances as contemplated by Constitution Bench in Indra
Sawhney’s
case?
(3) Whether the State Government on the strength of Maharashtra
State Backward Commission Report chaired by M.C. Gaikwad
has made out a case of existence of extraordinary situation and
exceptional circumstances in the State to fall within the exception
carved out in the judgment of Indra Sawhney?
(4) Whether the Constitution One Hundred and Second
Amendment deprives the State Legislature of its power to enact
a legislation determining the socially and economically backward
classes and conferring the benefits on the said community under
its enabling power?
9 Hereafter referred to as “the 103rd Amendment”.
10 Writ petition 938/2020.
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(5) Whether, States’ power to legislate in relation to “any backward
class” under Articles 15(4) and 16(4) is anyway abridged by
Article 342(A) read with Article 366(26c) of the Constitution of
India?
(6) Whether Article 342A of the Constitution abrogates States’
power to legislate or classify in respect of “any backward class
of citizens” and thereby affects the federal policy / structure of
the Constitution of India?
8. I had the benefit of reading the draft judgment of Ashok Bhushan,
J. which has exhaustively dealt with each point. I am in agreement with
his draft, and the conclusions with respect to Point Nos (1) (2) and (3).
In addition to the reasons in the draft judgment of Ashok Bhushan, J., I
am also giving my separate reasons, in respect of Point No. (1). I am
however, not in agreement with the reasons and conclusions recorded in
respect of Point Nos. (4) and (5), for reasons to be discussed elaborately
hereafter. I agree with the conclusions of Ashok Bhushan, J., in respect
of Point No (6); however, I have given my separate reasons on this point
too.
9. With these prefatory remarks, I would proceed to discuss my
reasons, leading to the conclusions, on both the points of concurrence,
as well as disagreement with the draft judgment of Ashok Bhushan, J.
Re Point No. 1: Whether judgment in case of Indra Sawhney
v. Union of India,1992 Supp. (3) SCC 217 needs to referred
to larger bench of require re-look by the larger bench in the
light of
subsequent Constitutional Amendments, judgments and
changed social dynamics of the society etc.?
10.  A careful reading of the judgments in Indra Sawhney v.
Union of India11, clarifies that seven out of nine judges concurred that
there exists a quantitative limit on reservation – spelt out @ 50%. In the
opinion of four judges, therefore, per the judgment of B.P. Jeevan Reddy,
J., this limit could be exceeded under extraordinary circumstances and
in conditions for which separate justification has to be forthcoming by
the State or the concerned agency. However, there is unanimity in the
conclusion by all seven judges that an outer limit for reservation should
be50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B.
Sawant, JJ. indicated that there is no general rule of 50% limit on
11 1992 Supp. (3) SCC 217.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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reservation. In these circumstances, given the general common
agreement about the existence of an outer limit, i.e. 50%, the petitioner’s
argument about the incoherence or uncertainty about the existence of
the rule or that there were contrary observations with respect to absence
of any ceiling limit in other judgments (the dissenting judgments of K.
Subbarao, in T. Devadasan v Union of India12, the judgments of S.M.
Fazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas13 and
the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State
of Karnataka14) is not an argument compelling a review or
reconsideration of Indra Sawhney rule.
11. The respondents had urged that discordant voices in different
subjects (Devadasan, N.M. Thomas and Indra Sawhney) should lead
to re-examination of the ratio in Indra Sawhney. It would be useful to
notice that unanimity in a given bench (termed as a “supermajority”) –
denoting a 5-0 unanimous decision in a Constitution Bench cannot be
construed as per se a strong or compelling reason to doubt the legitimacy
of a larger bench ruling that might contain a narrow majority (say, for
instance with a 4-3 vote, resulting in overruling of a previous unanimous
precedent). The principle of stare decisis operates both vertically- in
the sense that decisions of appellate courts in the superior in vertical
hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally-
in the sense that a larger bench formation ruling, would be binding and
prevail upon the ruling of a smaller bench formation. The logic in this
stems from the raison d’etre for the doctrine of precedents, i.e. stability
in the law. If this rule were to be departed from and the legitimacy of a
subsequent larger bench ruling were to be doubted on the ground that it
comprises of either plurality of opinions or a narrow majority as compared
with a previous bench ruling (which might be either unanimous or of a
larger majority, but of lower bench strength), there would uncertainty
and lack of clarity in the realm of precedential certainty. If precedential
legitimacy of a larger bench ruling were thus to be doubted, there are no
rules to guide the courts’ hierarchy or even later benches of the same
court about which is the appropriate reading to be adopted (such as for
instance, the number of previous judgments to be considered for
determining the majority, and consequently the correct law).
12 1964 (4) SCR 680.
13 1976 (2) SCC 310.
14 1985 SCR Suppl. (1) 352.
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12. In view of the above reasoning, it is held that the existence of
a plurality of opinions or discordant or dissident judgments in the past –
which might even have led to a majority (on an overall headcount)
supporting a particular rule in a particular case cannot detract from the
legitimacy of a rule enunciated by a later, larger bench, such as the nine-
judge ruling in Indra Sawhney.
13. So far as the argument that Indra Sawhney was concerned
only with reservations under Article 16(4) is concerned, this Court is
inclined to accept the submissions of the petitioner. The painstaking
reasoning in various judgments, in Indra Sawhney, including the
judgments of Pandian and Sawant, JJ. would show that almost all the
previous precedents on both Article 15(4) and 16(4) were considered15.
14. The tenor of all the judgments shows the anxiety of this Court
to decisively rule on the subject of reservations under the Constitution –
in regard to backward classes and socially and educationally backward
classes. This is also evident from the history of Article 15(4) which was
noticed and the phraseology adopted (socially and educationally backward
classes) which was held to be wider than “backward classes” though
the later expression pointed to social backwardness. Such conclusions
cannot be brushed aside by sweeping submission pointing to the context
of the adjudication in Indra Sawhney.
15. The argument on behalf of the States –that a decision is to be
considered
as a ratio only as regards the principles decided, having
regard to the material facts, in the opinion of this Court, the reliance
upon a judgment of this Court in Krishena Kumar and Anr. v. Union of
India & Ors.16 in the opinion of this Court is insubstantial. The reference
of the dispute, i.e. notification of various backward classes for the purpose
of Union public employment under Article 16(4) and the issuance of the
OM dated 1990 no doubt provided the context for the Court to decide as
it did in Indra Sawhney. However, to characterize its conclusions and
the considerations through the judgments of various judges, as not ratios
but mere obiter or observations not binding upon the states is an over-
15 M.R. Balaji v. State of Mysore 1963 Supp. 1 SCR 439; P. Rajendran v. State of T.N.
(1968) 2 SCR 786 [Articles 15(4)]; A Peeriakaruppan v. State of T.N. (1971) 1 SCC 38
[Article 15(4)]; State of A.P. v. USV Balram (1972) 1 SCC 660 [Article 15(4)]; T.
Devadasan (supra); State of U.P. v. Pradeep Tandon (1975) 1 SCC 267; Janki Prasad
Parimoo v. State of J&K (1973) 1 SCC 420; N.M. Thomas [Article 16(4) & K.C.
Vasanth Kumar [Article 15(4)].
16 (1990) 4 SCC 207.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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simplification. The OM did lead to widespread protests and discontent.
Initially, the writ petitions were referred to a five-judge bench which,
upon deliberation and hearing felt that the matter required consideration
by a larger bench (presumably in view of the previous ruling by the
seven judges in N.M. Thomas where two judges had expressly stated
that there was no ceiling on reservation and the later five judge judgment
in K.C. Vasanth Kumar where one judge had expressed a similar
reservation). It was for the purpose of decisively declaring the law that
the nine-judge bench was formed and the question formulated by it. Not
only did the judges who constituted a majority speak about this rule;
even the two other judges who did not agree with the 50% ceiling rule,
dealt with this aspect. This is evident from the judgment of Sawant, J17:
“518. To summarise, the question may be answered thus. There
is no legal infirmity in keeping the reservations under Clause
(4) alone or under Clause (4) and Clause (1) of
Article 16 together, exceeding 50%. However, validity of the
extent of excess of reservations over 50% would depend upon
the facts and circumstances of each case including the field
in which and the grade or level of administration for which
the reservation is kept. Although, further, legally and
theoretically the excess of reservations over 50% may be
justified, it would ordinarily be wise and nothing much would
be
lost, if the intentions of the framers of the Constitution
and the observations of Dr. Ambedkar, on the subject in
particular, are kept in mind. The reservations should further
be kept category and gradewise at appropriate percentages
and for practical purposes the extent of reservations should
be calculated category and gradewise..”
16. Likewise, Pandian, J., after elaborate discussion,18 recorded
his conclusions in this manner:
“189.  I fully share the above views of Fazal Ali, Krishna
Iyer, Chinnappa Reddy, JJ holding that no maximum
percentage of reservation can be justifiably fixed under
Articles 15(4) and/or 16(4) of the Constitution.”
17  At page 552, SCC Report.
18 In paras 177-178 at page 407-413 and the conclusions in para 189 at page 413 in
Indra Sawhney (supra).
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17. Both show that the extent of whether a 50% limit is applicable,
was considered by all the judges. Therefore, the arguments on behalf of
the States and the contesting respondents in this regard are unmerited.
Likewise, to say that whether a 50% limit of reservation existed or not
was not an issue or a point of reference, is without basis; clearly that
issue did engage the anxious consideration of the court.
18. The States had argued that providing a ceiling (of 50%)
amounts to restricting the scope of Part III and Part IV of the Constitution.
A provision of the constitution cannot be “read down” as to curtail its
width, or shackle state power, which is dynamic. The state legislatures
and executives are a product of contemporary democratic processes.
They not only are alive to the needs of the society, but are rightfully
entitled to frame policies for the people. Given the absence of any caste
census, but admitted growth of population, there can be no doubt that
the proportion of the backward classes has swelled, calling for greater
protection under Articles 15 (4) and 16 (4). Also, every generation has
aspirations, which democratically elected governments are bound to meet
and consider, while framing policies. In view of these factors, the fixed
limit of 50% on reservations, requires to be reconsidered. Counsel
submitted that whether reservations in a given case are unreasonable
and excessive, can always be considered in judicial review, having regard
to the circumstances of the particular case, the needs of the state and by
weighing the rights, in the context of the states’ priorities, having regard
to their obligations under the Directive Principles of State Policy, which
are now deemed as fundamental as the rights under Part III of the
Constitution. The court’s flexibility in testing whether a measure is
reasonable or not can always be retained and moulded appropriately.
19. Lt. Col Khajoor Singh v. Union of India (supra) is an
authority for the approach that this court should adopt, when it is asked
to reconsider a previous precedent of long standing. The court observed
that:
“We are of opinion that unless there are clear and compelling
reasons, which cannot be denied, we should not depart from
the interpretation given in these two cases and indeed from
any interpretation given in an earlier judgment of this Court,
unless there is a fair amount of unanimity that the earlier
decisions are manifestly wrong. This Court should not, except
when it is demonstrated beyond all reasonable doubt that its
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previous ruling, given after due deliberation and full hearing,
was erroneous, go back upon its previous ruling, particularly
on a constitutional issue.”
20. In Keshav Mills (supra) the court elaborated what
considerations would weigh with it, when a demand for review of the
law declared in a previous judgment is made:
“..Frequent exercise by this Court of its power to review its
earlier decisions on the ground that the view pressed before
it later appears to the Court to be more reasonable, may
incidentally tend to make law uncertain and introduce
confusion which must be consistently avoided. …it would be
inexpedient to lay down any principles which should govern
the approach of the Court in dealing with the question of
reviewing and revising its earlier decisions. It would always
depend upon several relevant considerations: What is the
nature of the infirmity or error on which a plea for a review
and revision of the earlier view is based? On the earlier
occasion, did some patent aspects of the question remain
unnoticed, or was the attention of the Court not drawn to any
relevant and material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is
the Court hearing such plea fairly unanimous that there is
such an error in the earlier view? What would be the impact
of the error on the general administration of law or on public
good? Has the earlier decision been followed
on subsequent
occasions either by this Court or by the High Courts? And,
would the reversal of the earlier decision lead to public
inconvenience, hardship or mischief? These and other
relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction
to review and revise its earlier decisions.”
21. Identical observations were made in Jindal Stainless (supra).
In Union of India v Raghubir Singh19, a Constitution Bench articulated
the challenges often faced by this court:
“….The social forces which demand attention in the cauldron
of change from which a new society is emerging appear to
19 1989 (3) SCR 316.
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call for new perceptions and new perspectives…..The
acceptance of this principle ensured the preservation and
legitimation provided to the doctrine of binding precedent,
and therefore, certainty and finality in the law, while permitting
necessary scope for judicial creativity and adaptability of
the law to the changing demands of society. The question then
is not whether the Supreme Court is bound by its own previous
decisions. It is not. The question is under what circumstances
and within what limits and in what manner should the highest
Court over-turn its own pronouncements.”
22. What the respondents seek, in asking this court to refer the
issue to a larger bench, strikes at the very essence of equality. The
review of precedents undertaken by Indra Sawhney not only spanned
four turbulent decades, which saw several amendments to the
Constitution, but led to a debate initiated by five judges in M.R. Balaji,
(and followed up in at least more than 10 decisions) later continued by
seven judges in N.M. Thomas. This debate- i.e., between Balaji and
Indra Sawhney, saw the court’s initial declaration that a 50% ceiling on
reservations should be imposed, which was questioned in three
judgments, though not in majority decisions of various benches. Therefore,
to decisively settle this important issue- among other issues, the nine-
judge bench was constituted. Indra Sawhney decisively ruled that
reservations through special provisions should not exceed 50% by a 7-2
majority. Two judges did not indicate any limit on reservations, they did
not also indicate any clear guiding principle about what should be the
court’s approach, when a party complains that reservations are excessive
or unreasonable. Indra Sawhney is equally decisive on whether
reservations can be introduced for any new class, or the quantum of
reservations, when introduced, or changed, can be the subject matter of
judicial review, for which according to the majority of judges, the guiding
principle would be the one enunciated in Barium Chemicals v. Company
Law Board20.
23. The salience of the issue under consideration is that equality
has many dimensions. In the context of Articles 15 (4) and 16 (4,) and
indeed the power of classification vested in the state, to adopt protective
20 1966 (Suppl.) 3 S.C.R. 311, to the effect that where a statutory power can be
exercised through the subjective satisfaction of any authority or the state, it should be
based on objective materials, and on relevant considerations, eschewing extraneous
factors and considerations.
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discrimination policies, there is an element of obligation, or a duty, to
equalize those sections of the population who were hitherto, “invisible”
or did not matter. The reach of the equalizing principle, in that sense is
compelling. Thus while, as explained by this court in Mukesh Kumar v.
State of Uttarakhand21 there is no right to claim a direction that
reservations should be provided (the direction in that case being sought
was reservation in promotions in the state of Uttarakhand), the court
would intervene if the state acts without due justification, but not to the
extent of directing reservations.22 Equally, the states’ obligation to ensure
that measures to uplift the educational and employment opportunities of
all sections, especially vulnerable sections such as scheduled castes and
STs and backward class of citizens, is underscored- not only in Article
15 (4) but also by Article 46, though it is a directive principle.23 It is
wrong therefore, to suggest that Indra Sawhney did not examine the
states’ obligations in the light of Directive Principles; it clearly did- as is
evident from the express discussion on that aspect in several judgments.24
24. Protective discrimination, affirmative action, or any other term
used by this court, means the measure of the state to ensure that past
inequities are not carried on as today’s burdens, that full (and one may
add, meaningful) opportunities are given to all in
participation in
21 (2020) 3 SCC 1.
22 As this court did, in  P & T Scheduled Caste/Tribe Employee Welfare Association vs
Union of India & Ors. 1988 SCR Suppl. (2) 623, when, upon withdrawal of a government
order resulted in denial of reservation in promotion, hitherto enjoyed by the employees.
The court held:
“While it may be true that no writ can be issued ordinarily competing
the Government to make reservation under Article 16 (4) which PG NO 630 is
only an enabling clause, the circumstances in which the members belonging to
the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs
Department are deprived of indirectly the advantage of such reservation which
they were enjoying earlier while others who are similarly situated in the other
departments are allowed to enjoy it make the action of Government
discriminatory and invite intervention by this Court.”
23“46. Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections The State shall promote with special care
the educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.”
24 There is discussion about the states’ obligations, in the context of reservations, in the
judgments of Pandian (paras 173,194); Dr. Thommen, J (Para 297); Kuldip Singh, J
(para 387); P.B. Sawant, J (paras 416-418, 433-34,
479-451); R.M. Sahai, J (Para 593)
and B.P. Jeevan Reddy, for himself, Kania, CJ, M.N. Venkatachalaiah and A.M. Ahmadi,
JJ (in Paras 648-49, 695, 747, Paras 834-835 and Para 860- all SCC references).
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governance structures: access to public institutions (through special
provisions under Article 15 (4)) and adequate representation (through
reservations under Article 16 (4)). They are tools in the repertoire of
the states to empower those hitherto barred from sharing power- and all
that went with it, of bringing first hand perspectives in policy making, of
acting as pathbreakers, of those breaking the glass ceiling- in short,
imparting dimensions in democratic governance which were absent.25
25. A constant and recurring theme in the several judgments of
Indra Sawhney was the concept of balance. This expression was used
in two senses- one, to correct the existing imbalance which existed, due
to past discriminatory practices that kept large sections of the society
backward; two, the quest for achieving the balance between the guarantee
of equality to all, and the positive or affirmative discrimination sanctioned
by Article 15 (4) and 16 (4).26 B.P. Jeevan Reddy, J (for himself and
four other judges) held that (para 808, SCC reports):
“It needs no emphasis to say that the principal aim of Articles
14 and 16 is equality and equality of opportunity and that
clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision — though
not an exception to clause (1). Both the provisions have to be
harmonised keeping in mind the fact that both are but the re-
statements of the principle of equality enshrined in Article
14. The provision under Article 16(4) — conceived in the
interest of certain sections of society — should be balanced
against the guarantee of equality enshrined in clause (1) of
25 The idea of empowerment is articulated in the judgment of Jeevan Reddy, in Indra
Sawhney firstly in Para 694:  “The above material makes it amply clear that the
objective behind clause (4) of Article 16 was the sharing of State power. The State power
which was almost exclusively monopolised by the upper castes i.e., a few communities,
was now sought to be made broad-based. The backward communities who were till
then kept out of apparatus of power, were sought to be inducted thereinto and since that
was not practicable in the normal course, a special provision was made to effectuate the
said objective. In short, the objective behind Article 16(4) is empowerment of the deprived
backward communities — to give them a share in the administrative apparatus and in
the governance of the community. “and then, in Para 788. that “the object of Article
16(4) was “empowerment” of the backward classes. The idea was to enable them to
share the state power.”
26 This theme of balance occurs 49 times in various judgments. All the judges deal with
it; although Pandian and Sawant, JJ, reject the numerical ceiling of 50%, their judgments
acknowledge the need to maintain the balance between the main parts of Articles 15 and
16, while ensuring that past discrimination is remedied.
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Article 16 which is a guarantee held out to every citizen and
to the entire society.”
26. There is more discussion on this subject by the same
judgment.27 Dr. Thommen, J, expressed that reservations should not be
an end all, and should not be perpetuated, beyond the objectives they
were designed to achieve and that “A balance has to be maintained
between the competing values and the rival claims and interests so
as to achieve equality and freedom for all.” (Ref. Para 255, SCC
reports). R.M. Sahai, J, expressed the idea in these terms (Ref. Para
560, SCC reports):
“Any State action whether ‘affirmative’ or ‘benign’,
‘protective’ or ‘competing’ is constitutionally restricted first
by operation of Article 16(4) and then by interplay of Articles
16(4) and 16(1). State has been empowered to invade the
constitutional guarantee of ‘all’ citizens under Article 16(1)
in favour of ‘any’ backward class of citizens only if in the
opinion of the government it is inadequately represented.
Objective being to remove disparity and enable the
unfortunate ones in the society to share the services to secure
equality in, ‘opportunity and status’ any State action must be
founded on firm evidence of clear and legitimate identification
of such backward class and their inadequate representation.
Absence of either renders the action suspect. Both must exist
in fact to enable State to assume jurisdiction to enable it to
take remedial
measures….States’ latitude is further narrowed
when on existence of the two primary, basic or jurisdictional
facts it proceeds to make reservation as the wisdom and
legality of it has to be weighed in the balance of equality
pledged and guaranteed to every citizen and tested on the
anvil of reasonableness to “smoke out” any illegitimate use
and restrict the State from crossing the clear constitutional
limits.”
27. Constitutional adjudication involves making choices, which
necessarily means that lines have to be drawn, and at times re-drawn-
depending on “the cauldron of change”28. It has been remarked that
decisions dealing with fundamental concepts such as the equality clause
27 Paras 614 and 814, SCC reports.
28 A phrase used in Raghubir Singh (supra).
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are “heavily value-laden, and necessarily so, since value premises
(other than the values of “equality” and “rationality”) are necessary
to the determination that the clause requires.”29
28. Interpretation of the Constitution, is in the light of its uniqueness,
Dr. Aharon Barak, the distinguished former President of the Israeli
Supreme Court remarked, in his work:30
“Some argue that giving a modern meaning to the language
of the constitution is inconsistent with regarding the
constitution as a source of protection of the individual from
society31. Under this approach, if the constitution is
interpreted in accordance with modern views, it will reflect
the view of the majority to the detriment of the minority. My
reply to this claim is inter alia, that a modern conception of
human rights is not simply the current majority’s conception
of human rights. The objective purpose refers to fundamental
values that reflect the deeply held beliefs of modern society,
not passing trends. These beliefs are not the results of public
opinion polls or mere populism; they are fundamental beliefs
that have passed the test of time, changing their form but not
their substance.”
29. As the organ entrusted with the task of interpreting the laws
and the Constitution, the word of this court is final. Undoubtedly its role
is as a co-equal branch of governance; nevertheless, its duty to interpret
the law and say what its silences (or ambiguities) denote, in the particular
contexts
that it has to contend with, involve making choices. These choices
are not made randomly, or arbitrarily32, but based on a careful analysis
of the rights involved, the remedies proposed by the legislative or
executive measure, the extent of limits imposed by the Constitution, and
so on. The history of the legislation or the measure, or indeed the provision
of the Constitution plays a role in this process. Interpretation involves an
29 Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf.
C. PERELMAN, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT
1-60 (1963).
30 Aharon Barak, The Judge in a Democracy, p.132.
31 See generally Antonin Scalia, “Originalism: The Lesser Evil, “57 U. Cin. L. Rev. 849,
862-863 (1989).
32 Michael Kirby,  Indian and Australian Constitutional Law: A Recent Study in
Contrasts’, 60 JILI (2018) 1, p. 30; Also see Herbert Weschler, ‘Towards Neutral
Principles of Constitutional Law’, (1959) 73 Harv. L. Rev. 1.
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element of line drawing, of making choices. This court’s decisions are
replete with such instances. The doctrine of classification is the first
instance where this court drew a line, and indicated a choice of
interpretation of Article 14; likewise, right from In re Kerala Education
Bill33 to T.M.A Pai Foundation v. State of Karnataka,34 a textually
absolute fundamental right, i.e. Article 30 has been interpreted not to
prevent regulation for maintenance of educational standards, and
legislation to prevent mal-administration. Yet, whenever a choice is made
in the interpretation of a provision of this constitution, and a limit indicated
by a decision, it is on the basis of principle and principle alone.
30. As noticed previously, the search of this court, in Indra
Sawhney – after an exhaustive review of all previous precedents, was
to indicate an enduring principle for application by courts, that would
strike the just balance between the aspirational rights – and the
corresponding duty of the states to introduce affirmative measures to
combat inequality (under Articles 15 [4] and 16 [4]) on the one hand,
and the principle of equality and its command against practising inequality
in proscribed areas (caste being one, in both Articles 15 and 16). It was
suggested during the hearing that the quantitative criteria (50% limit on
reservation) is too restrictive leaving no breathing room for democratically
elected
governments. This court remarked in R.C. Poudyal v. Union
of India35 that
“124. … In the interpretation of a constitutional document,
“words are but the framework of concepts and concepts may
change more than words themselves”. The significance of the
change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to the
meaning of the words without an acceptance of the line of
their growth. It is aptly said that “the intention of a Constitution
is rather to outline principles than to engrave details”.”
31. The idea of a definitive and objective principle, in the form of
a 50% ceiling on limitation, emerges on an overall reading of Indra
Sawhney. The argument made by the respondents was that this court
should not go by such a ceiling limit, but rather, while exercising its judicial
review power, proceed on a case-by-case approach, and resting its
33 1959 SCR 995.
34 2002 (8) SCC 481.
35 1994 Supp (1) SCC 324.
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conclusions on fact dependent exercises, using other criteria, such as
reasonableness, proportionality, etc. for judging excessive reservations.
However, what constitutes reasonableness and what is proportionate in
a given case, would be unchartered and indeterminate areas. It is one
thing to try persuading the court to discard a known principle, in the light
of its loss of relevance, yet for that argument to prevail, not only should
the harm caused by the existing principle be proved, but also a principle
that is sought to be substituted, should have clarity, or else, the argument
would be one asking the court to take a leap in the dark. It is not enough,
therefore to resort to observations such as “the length of the leap to
be provided depends upon the gap to be covered”36 or the
proportionality doctrine (deployed to judge validity of an executive or
legislative measure), because they reveal no discernible principle.
Reasonableness is no doubt a familiar phrase in the constitutional lexicon;
yet there is considerable subjectivity and relativity in its practise. Again,
to quote Dr. Barak there are “zones of reasonableness”37. This places
the court in a difficult situation, where the state’s choices require greater
deference, and a corresponding narrowing of judicial review, given that
the standard of review is the one indicated in Barium Chemicals. The
South African Constitutional Court voiced a similar idea, in connection
with an affirmative action
program, when it observed that:
“The fairness of a measure differentiating on any prohibited
ground depends not only on its purpose, but on the cumulative
effect of all relevant factors, including the extent of its
detrimental effects on non-designated groups”.38
32. In another case, City Council of Pretoria v. Walker,39 Sachs
J. (of the South African Constitutional Court)remarked that:
“[p]rocesses of differential treatment which have the legitimate
purpose of bringing about real equality should not be
undertaken in a manner which gratuitously and insensitively
offends and marginalises persons identified as belonging to
groups who previously enjoyed advantage.”
33. In that case, the question for judicial review was whether a
local authority in a period of transition, could impose a lower flat rate
36 State of Punjab v. Hiralal, 1971 (3) SCR 267.
37 The Judge in a Democracy, Aharon Barak at p. 248.
38 Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C.
39 1998 (3) BCLR 257 (CC) at para. 123.
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tariff in one locality (inhabited by the historically discriminated black
community, with poor infrastructure) and a higher metered tariff in a
locality with better infrastructure, inhabited by the white community.
Sachs J. held that this was not unfair discrimination against the applicant,
a white resident, but rather a failure on the part of the local authority to
put down a basis for the differential levy of tariffs, rooted in substantive
equality:
“Yet, any form of systematic deviation from the principle of
equal and impartial application of the law (as was the practice
in the present case for a certain period), might well have to
be expressed in a law of general application which would be
justiciable according to the criteria of reasonableness and
justifiability”.
34. Upon examination of the issue from this perspective, the ceiling
of 50% with the “extraordinary circumstances” exception, is the just
balance- what is termed as the “Goldilocks solution”40 - i.e. the solution
containing the right balance that allows the state sufficient latitude to
ensure meaningful affirmative action, to those who deserve it, and at the
same time ensures that the essential content of equality, and its injunction
not to discriminate on the various proscribed grounds (caste, religion,
sex, place of residence) is retained. This court in M. Nagaraj v. Union
of India41observed that “a numerical benchmark is the surest
immunity against
charges of discrimination.” To dilute the 50%
benchmark further, would be to effectively destroy the guarantee of
equality, especially the right not to be discriminated against on the
grounds of caste (under Articles 15 and 16).
35. In view of all these reasons, the argument that Indra Sawhney
requires reconsideration, and ought to be referred to a larger bench, is
hereby rejected.
Affirmative Action and the Reservation Paradigm
Special Provisions
40 “Having or producing the optimal balance between two extremes” The Merriman
Webster Dictionary https://www.merriam-webster.com/dictionary/Goldilocks. The term
was used by Justice Elena Kagan in her dissent, in Arizona Free Enterprise Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)“the difficulty then, is finding the
Goldilocks solution-not too large, not too small, but just right.”This term is also used
to denote a proper balance, in management parlance.
41 (2006) 8 SCC 212.
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36. Before parting with this section, this opinion would dwell upon
affirmative action, and possibilities under the Constitution, from a larger
perspective. Most debates, and precedents in the country have centred
round the extent of reservation and administration of quotas (reservations)
under Articles 15 (4) and 16(4). The term “special provision” in Article
15 (4) is of wider import, than reservations. Unlike the United States of
America which – in the absence of a provision enabling such special
provisions, and which has witnessed a turbulent affirmative action policy
jurisprudence, the 1960s and 1970s witnessing the framing of policies
and legislation, and the subsequent narrowing of minority and racial criteria,
to support affirmative action, our Constitution has a specific provision.
37. During the hearing, it was pointed out that there are not enough
opportunities for education of backward classes of citizens, and that
schools and educational institutions are lacking. It was argued by the
states that sufficient number of backward classes of young adults are
unable to secure admissions in institutions of higher learning.
38. It would be, in this context, relevant to notice that two important
amendments to the Constitution of India, which have the effect of
transforming the notion of equality, were made in the last 15 years. The
first was the eighty sixth amendment – which inserted Article 21A42-
which had the effect of enjoining the state to
provide free and compulsory
education to all children in the age group 6-14. The second was the
Constitution Ninety Third Amendment Act, which inserted Article 15
(5)43 enabling the state to make special provisions “for the advancement
of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or
unaided.” The transformative potential of these provisions (both of which
42 “21A. Right to education. — The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as the State may, by law,
determine.”
43 “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth..[(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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have been upheld by this court – in Pramati Educational & Cultural
Trust v. Union of India44) is yet to be fully realized. Article 21A
guarantees minimum universal education; whereas Article 15(5) enables
access to backward classes of citizens admissions, through special
provisions by the state, in private educational institutions. The Right
to Education Act, 2009 provides a broad statutory framework for
realization of Article 21A.
39. The availability of these constitutional provisions, however
does not mean that those belonging to backward class of citizens would
be better off or would reap any automatic benefits. Here, it is relevant to
consider that often, any debate as to the efficacy or extent of reservation,
invariably turns to one stereotypical argument- of merit. Long ago, in his
important work45– Marc Galanter had dealt with the issue of merit in
this manner:
“Let us take merit to mean performance on tests (examinations,
interview, character references or whatever) thought to be
related to performance relevant to the position (or other
opportunity) in question and commonly used as a measure of
qualification for that position. (In every case it is an empirical
question whether the test performance is actually a good
predictor of performance in the position, much less of
subsequent positions for which it is a preparation.)
Performance on these tests is presumably a composite of
native ability, situational
advantages (stimulation in the family
setting, good schools, sufficient wealth to avoid malnutrition
or exhausting work, etc.), and individual effort. The latter
may be regarded as evidence of moral desert, but neither native
ability nor situational advantages would seem to be. The
common forms of selection by merit do not purport to measure
the moral desert dimension of performance. Unless one is
willing to assume that such virtue is directly proportionate to
the total performance, the argument for merit selection cannot
rest on the moral deservingness of individual candidates…..”
40. In his judgment, (in Indra Sawhney) Sawant, J. too spoke of
this phenomenon:
“405. The inequalities in Indian society are born in homes
and sustained through every medium of social advancement.
44 2014 (8) SCC 1.
45 Marc Galanter, Competing Equalities – Law and the Backward Classes in India.
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Inhuman habitations, limited and crippling social intercourse,
low-grade educational institutions and degrading occupations
perpetuate the inequities in myriad ways. Those who are
fortunate to make their escape from these all-pervasive
dragnets by managing to attain at least the minimum of
attainments in spite of the paralysing effects of the debilitating
social environment, have to compete with others to cross the
threshold of their backwardness. Are not those attainments,
however low by the traditional standards of measuring them,
in the circumstances in which they are gained, more creditable?
Do they not show sufficient grit and determination,
intelligence, diligence, potentiality and inclination towards
learning and scholarship? Is it fair to compare these
attainments with those of one who had all the advantages of
decent accommodation with all the comforts and facilities,
enlightened and affluent family and social life, and high
quality education? Can the advantages gained on account
of the superior social circumstances be put in the scales to
claim merit and flaunted as fundamental rights? May be in
many cases, those coming from the high classes have not
utilised their advantages fully and their score, though
compared with others, is high, is in fact not so when evaluated
against the backdrop of their superior advantages - may even
be lower…..
406.  Those who advance merit contention, unfortunately, also
ignore the very basic fact - (though in other
contexts, they
may be the first to accept it) - that the traditional method of
evaluating merit is neither scientific nor realistic. Marks in
one-time oral or written test do not necessarily prove the worth
or suitability of an individual to a particular post, much less
do they indicate his comparative calibre. What is more, for
different posts, different tests have to be applied to judge the
suitability. The basic problems of this country are mass-
oriented. India lives in villages, and in slums in towns and
cities. To tackle their problems and to implement measures to
better their lot, the country needs personnel who have
firsthand knowledge of their problems and have personal
interest in solving them. What is needed is empathy and not
mere sympathy. One of the major reasons why during all these
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years after Independence, the lot of the downtrodden has not
even been marginally improved and why majority of the
schemes for their welfare have remained on paper, is
perceptibly traceable to the fact that the implementing
machinery dominated as it is by the high classes, is indifferent
to their problems….”
There were observations earlier in the judgment of Chinnappa
Reddy, J, in K.C. Vasant Kumar (supra).
Anatole France had – in his ironic (and iconic) observations
remarked once, that
“In its majestic equality, the law forbids rich and poor alike
to sleep under bridges, beg in the streets and steal loaves of
bread.”
41. The previous rulings in Vasant Kumar (supra), and the
comments of Dr. Amartya Sen in his work “Merit and Justice” were
considered in some detail, in the recent ruling in B.K. Pavitra v. Union
of India46,
““Merit” must not be limited to narrow and inflexible criteria
such as one’s rank in a standardised exam, but rather must
flow from the actions a society seeks to reward, including the
promotion of equality in society and diversity in public
administration.”
This court also noted that merit as we understand - i.e. performance
in standardised tests, is largely dependent upon neutral factors, which
discriminate in favour of those who are privileged.
42. The argument of merit thus ignores the inherent and situational
inequity between those who have no access to the means of achieving
the goal of
meaningful education, i.e. to colleges and professional
institutions, based on competitive evaluations like tests, and those who
have all the wherewithal for it. Those from low-income groups cannot
join coaching programmes, which hone candidates’ skills in succeeding
in an entrance test.
43. Overemphasis on merit therefore, ignores the burdens of the
past, assumes that everything is perfectly fair now and asks the question
46 (2019) 16 SCC 129.
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of how the candidate fares in examinations that test only a narrow range
of skills, mainly of linear-type thought. This decontextualized, neutrality-
based thinking glosses over historical and centuries old inequalities, the
burdens of which continue to plague those who labour under disadvantage,
and through the so called “level playing field” of a common exam, or
evaluation, privileges those who had, and continue to have, access to
wealth, power, premium education and other privileges, thus consolidating
these advantages. Merit is a resource attractor. Those with it, accumulate
more of it, more wealth and acquire more power. They use that money
and power to purchase more increments of merit for themselves and
their children.
44. The eminent legal thinker, Michael Sandel, in his Tyranny
of Merit, bemoans that the US has now become a sorting machine”that
promises mobility on the basis of merit but entrenches privilege and
promotes attitudes toward success corrosive of the commonality
democracy requires” (p. 155)He further says that first, all are told that
although the promise of a mobile society based on merit is better than a
hereditary hierarchy, it is important to comprehend that this promise does
not come with any attendant promise to attenuate inequality in society.
On the contrary, this promise legitimizes “inequalities that arise
from merit rather than birth” (p. 161).Second, we learn that a system
that rewards the most talented is likely to
undervalue the rest, either
explicitly or implicitly.
45. The context of these observations is to highlight that even
when reservations are provided in education, sufficient numbers of the
targeted students may not be able to achieve the goal of admission,
because of the nature of the entrance criteria. Equality of opportunity
then, to be real and meaningful, should imply that the necessary elements
to create those conditions, should also be provided for. It would therefore
be useful to examine – only by way of illustration- the schemes that
exist, for advancing educational opportunities, to Scheduled Caste (“SC”
hereafter)/ Scheduled Tribe (“ST” hereafter) and SEBC students.
46. Central government scholarships are available to students from
SC communities, for studies in Class IX and X, conditional to income of
parents/ guardians being less than ` 2,50,000 per annum. Eligible students
must also not be covered by any other central government scholarships
or funding, but may be eligible for the National Means-cum-Merit
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Scholarship Scheme.47 Under the pre matric scholarship scheme, day
scholars are provided with ` 225 per month for a period of ten months,
with a books and ad hoc grant, at ` 750 p.a. Hostellers receive ` 525 per
month, for a period of ten months, with a similar grant at ` 1000 p.a. For
2020-21 a total amount of ` 750 crores was allocated, of which ` 404.93
crores was released. The previous years, from 2015-16 to 2019-20, the
total allocated budget was ` 1,922 crores, of which ` 1,561.90 crores
was released to 121.85 lakh beneficiaries.48
47. Pre-matric scholarships are provided for students of Class I
to X, whose parents are manual scavengers, tanners and flyers, waste-
pickers, or persons engaged in hazardous cleaning, as defined under the
Manual Scavengers Act, 2013.49 Hostellers are provided ` 700 per month,
while day scholars, ` 225 per month through the academic year (ten
months). Grants of ` 750 and ` 1000 p.a. are available to day-scholars
and hostellers respectively. Here too, selected candidates are excluded
from all other scholarships.
48. At the post matric level, the Central Sector Scholarship Scheme
of Top Class for SC Students, makes scholarships available to SC students
who have secured admission at IIMs, IITs, AIIMS, NITs, NLUs, other
central government institutions, institutions of national importance, etc.50
The scholarship covers tuition fee (capped at ` 2 lakhs per annum for
private institutions),
living expenses at ` 2220 per month, allowance for
books and stationery, and a computer and accessories (capped at ` 45,000,
as one time assistance). Eligibility criteria require total family income
from all sources to be less than ` 8,00,000 per annum. Under this scheme,
in 2020-21, the total budget allocation was ` 40 crores; of this, as on
47 Scheme List, Ministry of Social Justice and Empowerment, available at http://
socialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). See
also, Notification dated 06.09.2019, ‘Funding pattern for Pre-Matric Scholarship Scheme
for SC Students studying in Class 9th and 10th for the year 2019-20’, available at http:/
/socialjustice.nic.in/writereaddata/UploadFile/Scm_guidelines_06092019.pdf (Last
accessed on 21.04.2021).
48 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry
of Social Justice and Empowerment, p.50, available at http://socialjustice.nic.in/
writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG. pdf, (Last accessed on
23.04.2021).
49 Ministry of Social Justice and Empowerment, Notification dated 2.04.2018, available
at http://socialjustice.nic.in/writereaddata/UploadFile/Pre-Matric_Scholarship_haz.pdf
(Last accessed on 21.04.2021).
50 Scheme List, Ministry of Social Justice and Empowerment, availableat http://
socialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021).