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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provision of the Constitution so that it does not result in
abrogation or destruction of its basic structure or loss of its
original identity and character and render the Constitution
unworkable. The court is not concerned with the wisdom
behind or propriety of the constitutional amendment because
these are the matters for those to consider who are vested
with the authority to make the Constitutional amendment. All
that the court is concerned with are (1) whether the procedure
prescribed by Article 368 is strictly complied with? and (2)
whether the amendment has destroyed or damaged the basic
structure or the essential features of the Constitution.”
169. In his article Statutory Interpretation and Constitutional
Legislation (sourced from the Cambridge Repository’s Interpreting
Constitutional Legislation David Feldman134 states that at times, there
is no clear indication why a statute or amendment is introduced:
“Statutes usually carry on their faces no indication of the
mischief at which they are aimed; they do not tell a story.
Looking at the statute as a whole will not always help: many
statutes are collections of knee-jerk reactions to a number of
different stimuli, and the degree of coherence is further
reduced where changes in government policy are given effect
by amending earlier legislation drafted to give effect to
different policies.”
The article then goes on to emphasize that the context, and the
pre-existing regime has to be considered, while interpreting the
amendment or provision:
“Constitutional provisions establishing the state and its main
institutions will often not be a response to a particular
mischief. A state’s institutional design is more likely to reflect
a political theory and idea of good government, as in the
USA., or to be a result of gradual accretion, as in the UK,
than to be a reaction to an identifiable problem. On the other
hand, problems arising in the pre-constitutional period may
134 Professor of law, Cambridge University and QC. Also former international judge in
the Constitutional Court of Bosnia and Herzegovna
https://aspace.repository.cam.ac.uk/bitstream/handle/1810/246176/OA1838_Statutory-
i n t e r p r e t a t i o n - a n d - c o n s t i t u t i o n a l - l e g i s l a t i o n - F I N A L - 1 9 - 0 3 -
14.pdf?sequence=1&isAllowed=y
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have directly influenced the choice of political theory, and so
have indirectly affected the distribution of responsibilities
between institutions, the powers allocated to each institution,
their relationships with each other, their powers, and forms
of accountability.”
170. As to what was the rationale for introducing Article 366
(26C) and the other substantive amendments by the 102nd Amendment,
the statement of objects and reasons is not precise. Even the Select
Committee Report only voices that constitutional status is to be conferred
upon the new Commission which would undertake its task and that the
pattern existing with respect to SCs and STs would be followed. In these
circumstances, given that the limited interpretation would virtually continue
the status quo, this Court has to take into account the state of affairs
which existed at the time of introduction of the amendment.
171. The rationale for the amendment, highlighting the need for
provisions such as Article 338B, 342A read with Article 366(26C) is that
Parliament had the experience of about 71 years’ working of the
Constitution and the system with respect to matters regarding
identification of the most backward classes of communities, i.e., SCs
and STs. By the 102nd Amendment, one commission for SEBCs was set
up to meet the aspirations and expectations of the population of the
country who might have become SEBCs for various reasons, to voice
their concerns directly for consideration by the
National Commission
under Article 338B, which could then become the subject matter of
inclusion under Article 342A.
172. An offshoot of the 102nd Amendment possibly would be that
dominant groups or communities, once included, as SEBCs by states
would, due to their relative “forward” status, likely take a disproportionate
share of state benefits of reservation in employment and admission
benefits to state institutions. Their inclusion can well result in shrinkage
of the real share of reservation benefits for the most backward. This
consequence can be avoided, if a commission or body, such as the one
under Article 338B evolves and applies rational and relevant criteria.
173. The existence of a permanent body, which would objectively,
without being pressurised by the dust and din of electoral politics, consider
the claims for inclusion, not based on ad-hoc criteria, but upon uniformly
evolved criteria, with the aid of experts, in a scientific manner, be in
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [S. RAVINDRA BHAT, J.]
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consonance with the constitutional objectives of providing benefits to
SEBCs, having regard to relative regional and intra state levels of progress
and development. Given all these factors, this Court is of the opinion that
the 102ndAmendment, by inserting 366(26C), 342A, 338B and 342A aligned
the mechanism for identification of SEBCs with the existing mechanism
for identification of SCs/STs.
174. At this stage, a word about Article 338B is necessary. Earlier,
it was noticed that this provision mirrors Articles 338 and 338A and sets
out various provisions for setting up a National Commission which is like
its counterparts, in relation to SCs and STs (Articles 338 and 338A).
The consultative provisions under Articles 338B(7) and 338B(9) in the
opinion of this Court, only imply that in matters of identification, the
States can make their recommendations. However, by reason of Article
342A, it is the President, i.e. the Union Government only, whose decision
is final and determinative. The determination made for inclusion or
exclusion can be amended through a law made by Parliament alone.
Given that Article 338(B)(9) enjoins the State/UT to consult the
Commission on all major policy matters affecting SEBCs, this consultation
cannot imply that the States’ view would be of such weight, as to be
determinative or final and submit. The States can by virtue of Article
338(7) consider the report of the Commission and are
obliged to table
the recommendations relating to them before their legislature. The State
can even voice its reservations and state why it cannot accept the report.
Further, given the imperative and categorical phraseology of Article 342A,
the final decision of whether to include any caste or community in the
list of SCBCs is that of the Union Government, i.e. the President.
175. This Court is also of the opinion that the change brought
about by the 102nd Amendment, especially Article 342A is only with
respect to the process of identification of SEBCs and their list.
Necessarily, the power to frame policies and legislation with regard to
all other matters, i.e. the welfare schemes for SEBCs, setting up of
institutions, grants, scholarships, extent of reservations and special
provisions under Article 15(4), 15(5) and 16(4) are entirely with by the
State Government in relation to its institutions and its public services
(including services under agencies and corporations and companies
controlled by the State Government). In other words, the extent of
reservations, the kind of benefits, the quantum of scholarships, the number
of schools which are to be specially provided under Article 15(4) or any
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other beneficial or welfare scheme which is conceivable under Article
15(4) can all be achieved by the State through its legislative and executive
powers. This power would include making suggestions and collecting
data – if necessary, through statutory commissions, for making
recommendations towards inclusion or exclusion of castes and
communities to the President on the aid and advice of the Union Council
of Ministers under Article 342A. This will accord with the spirit of the
Constitution under Article 338B and the principle of cooperative
federalism135 which guides the interpretation of this Constitution.
176. The President has not thus far prepared and published a list
under Article 342A (1). In view of the categorical mandate of Article
342A – which has to be necessarily read along with Article 366(26C),
on and from the date of coming into force of the 102nd Amendment Act,
only the President, i.e. the Central Government has the power of ultimately
identifying the classes and castes as SEBCs. This court is conscious
that though the amendment came into force more than two years ago,
as yet no list has been notified under Article 342A. It is also noteworthy
that the NCBC Act has been repealed. In these circumstances, the Court
holds that the President should after due consultation with the Commission
set up under Article 338B expeditiously, publish a comprehensive list
under 342A(1). This exercise should preferably be completed with utmost
expedition
given the public importance of the matter. Till such time, the
SEBC lists prepared by the states would continue to hold the field. These
directions are given under Article 142, having regard to the drastic
consequences which would flow if it is held that all State lists would
cease to operate. The consequences of Article 342A would then be so
severe as to leave a vacuum with respect to SEBCs’ entitlement to
claim benefits under Articles 15 and 16 of the Constitution.
Re: Point No. 6 Whether, 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?
177. In W.P.938/2020, learned counsel for the petitioner, Mr. Amol.
B. Karande urged that the provisions of the 102nd Amendment, especially
Article 366(26C) and Article 342A violate the essential features or the
basic structure of the Constitution. It was argued that these provisions
135 Jindal Stainless Ltd. v. State of Haryana, 2016 SCC OnLine SC 1260; State of
Rajasthan v. Union of India 1978 1 SCR 1
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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impact the federal structure by denuding the State of its power to fully
legislate in favour of SEBCs under Entry 25 and Entry 41 of List II, and
provide for reservations in favour of SEBCs. It was argued that the
power to identify and make suitable provisions in favour of SEBCs has
always been that of the States. This constitutional position was recognized
in Indra Sawhney (supra), when the Court required the State
Government to set up permanent Commissions. Through the impugned
provisions, the President has now been conferred exclusive power to
undertake the task of identification of SEBCs for the purposes of the
Constitution. It was submitted that this strikes at the root of the federal
structure because it is the people who elect the members of the State
legislatures, who frame policies suitable for their peculiarly situated needs,
having regard to the demands of the region and its people.
178. Learned counsel argued that the original Constitution had set
apart the power to identify SCs and STs and conferred it upon the
President – after which, amendment could be carried out by the
Parliament. However, such a power was advisably retained so far as
the States were concerned, with their executives and legislatures. The
deprivation of the States’ power strikes at the root of its jurisdiction to
ensure that its residents get suitable welfare measures in the form of
schemes applicable to SEBCs as well as
reservations.
179. Learned counsel relied upon certain passages of the judgment
of this Court in Kesavananda Bharti v. State of Kerala136 to support
the argument that without submitting the amendment for rectification
under the proviso to Article 368(2), to the extent it denuded the State
legislatures of their powers to make laws in respect of various fields
under the State List too, the amendment would be void.
180. The Learned Attorney General who represented the Union
argued that there is no question of the 102nd Amendment Act or any of
its provisions violating any essential feature of the Constitution. It was
submitted that unless the amendment in question directly affects (i.e.
takes away the legislative power altogether in the list rather than a part
of its content by amending any of the provisions in List II or List III of
the Seventh Schedule to the Constitution), there is no need for seeking
rectification of a majority of the statutes. The Attorney General relied
upon a judgment of this Court in Sajjan Singh v. State of Rajasthan137.
136 1973 Supp. SCR 1
137 1965 SCR (1) 933
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181. Two issues arise with respect to the validity of provisions
inserted by the 102nd Amendment Act. The first is a facial challenge
inasmuch as the petitioner urges that without following the procedure
indicated in the proviso to Article 368(2), i.e. seeking approval or
ratification of atleast one half of the legislative assemblies of all the
States, the amendment is void. In this regard what is noticeable is that
direct amendments to any of the legislative entries in the three lists of
the Seventh Schedule to the Constitution requires ratification. Thus, the
insertion of substantive provisions that might impact future legislation by
the State in an indirect or oblique manner would not necessarily fall
afoul of the Constitution for not complying with the procedure spelt out
in the proviso to Article 368(2). In Sajjan Singh (supra), this Court
held as follows:
“The question which calls for our decision is: what would be
the requirement about making an amendment in a
constitutional provision contained in Part III, if as a result of
the said amendment, the powers conferred on the High Courts
under Article 226 are likely to be affected?”
The Sajjan Singh court repelled the challenge, holding that
“… Thus, if the pith and substance test is applied to the
amendment made by the impugned Act, it would be clear that
Parliament is seeking to amend fundamental rights solely with
the object of removing any possible obstacle in the fulfilment
of the socio-economic
policy in which the party in power
believes. If that be so, the effect of the amendment on the
area over which the High Courts’ powers prescribed by Article
226 operate, is incidental and in the present case can be
described as of an insignificant order. The impugned Act does
not purport to change the provisions of Article 226 and it
cannot be said even to have that effect directly or in any
appreciable measure. That is why we think that the argument
that the impugned Act falls under the proviso, cannot be
sustained.
182. The majority judgment, therefore decisively held that an
interpretation which hinges on indirect impact of a provision, the
amendment of which needs ratification of the states, does not violate the
Constitution and that unless the amendment actually deletes or alters
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [S. RAVINDRA BHAT, J.]
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any of the Entries in the three lists of the Seventh Schedule, or directly
amends an Article for which ratification is necessary, recourse to the
proviso to Article 368 (2) was not necessary.
183. More recently, this issue was gone into in Kihoto Hollohan,
where a challenge on the ground that all provisions of an amendment
which introduced the Tenth Schedule were void for not following the
procedure under the proviso to Article 368, were questioned. The Court
proceeded to analyse every provision of the Tenth Schedule and held
that para 7, which excluded the jurisdiction of all Courts, had the effect
of divesting the jurisdiction of Courts under Articles 226 and 32 of the
Constitution. In other words, the direct result of the amendment was to
bar the jurisdiction of High Courts and thus, it directly impacted Chapter
5 of Part VI; a ratification was required by a majority of the States.
Since that procedure was not followed, para 7 was held to be violative
of the basic structure of the Constitution. The Court applied the doctrine
of severability and held that the other parts of the amendment, contained
in the Tenth Schedule did not need any such ratification and that para 7
alone would be severed on the ground of its being contrary to express
constitutional provisions. This court ruled as follows:
“59. In Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC
845] a similar contention was raised against the validity of
the
Constitution (Seventeenth Amendment) Act, 1964 by which
Article 31-A was again amended and 44 statutes were added
to the Ninth Schedule to the Constitution. The question again
was whether the amendment required ratification under the
proviso to Article 368. This Court noticed the question thus:
(SCR p. 940)
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76. The test of severability requires the Court to ascertain
whether the legislature would at all have enacted the law if
the severed part was not the part of the law and whether after
severance what survives can stand independently and is
workable. If the provisions of the Tenth Schedule are
considered in the background of the legislative history, namely,
the report of the ‘Committee on Defections’ as well as the
earlier Bills which were moved to curb the evil of defection it
would be evident that the main purpose underlying the
constitutional amendment and introduction of the Tenth
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Schedule is to curb the evil of defection which was causing
immense mischief in our body politic. The ouster of jurisdiction
of courts under Paragraph 7 was incidental to and to lend
strength to the main purpose which was to curb the evil of
defection. It cannot be said that the constituent body would
not have enacted the other provisions in the Tenth Schedule
if it had known that Paragraph 7 was not valid. Nor can it be
said that the rest of the provisions of the Tenth Schedule cannot
stand on their own even if Paragraph 7 is found to be
unconstitutional. The provisions of Paragraph 7 can,
therefore, be held to be severable from the rest of the provisions.
77. We accordingly hold on contentions (C) and (D):
That there is nothing in the said proviso to Article 368(2)
which detracts from the severability of a provision on account
of the inclusion of which the Bill containing the amendment
requires ratification from the rest of the provisions of such
Bill which do not attract and require such ratification. Having
regard to the mandatory language of Article 368(2) that
‘thereupon the Constitution shall stand amended’ the
operation of the proviso should not be extended to
constitutional amendments in a Bill which can stand by
themselves without such ratification.
That accordingly, the Constitution (Fifty-second Amendment)
Act, 1985, insofar as it seeks to introduce the Tenth Schedule
in the Constitution of India, to the extent of its provisions
which are
amenable to the legal-sovereign of the amending
process of the Union Parliament cannot be overborne by the
proviso which cannot operate in that area. There is no
justification for the view that even the rest of the provisions
of the Constitution (Fifty-second Amendment) Act, 1985,
excluding Paragraph 7 of the Tenth Schedule become
constitutionally infirm by reason alone of the fact that one of
its severable provisions which attracted and required
ratification under the proviso to Article 368(2) was not so
ratified.
That Paragraph 7 of the Tenth Schedule contains a provision
which is independent of, and stands apart from, the main
provisions of the Tenth Schedule which are intended to provide
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a remedy for the evil of unprincipled and unethical political
defections and, therefore, is a severable part. The remaining
provisions of the Tenth Schedule can and do stand
independently of Paragraph 7 and are complete in themselves
workable and are not truncated by the excision of
Paragraph 7.
184. As far as the question of whether the amendment has the
effect of violating the basic or essential features so far as it impacts the
federal structure of the Constitution is concerned, what is noticeable is
that past decisions have emphasized that a mere change brought about
through amendments howsoever serious the impact, cannot per se be
regarded as violative of the basic structure. In Raghunathrao Ganpatrao
(supra)138 the deletion of Articles 291 and 362 of the Constitution, by
amendment, was questioned on the ground that they affected the basic
structure, or essential features of the Constitution. This court rejected
the argument and held that:
“107. On a deep consideration of the entire scheme and
content of the Constitution, we do not see any force in the
above submissions. In the present case, there is no question
of change of identity on account of the Twenty-sixth
Amendment. The removal of Articles 291 and 362 has not made
any change in the personality of the Constitution either in its
scheme or in its basic features, or in its basic form or in its
character. The question of identity will arise only when there
is a change in the form, character and content of the
Constitution. In fact, in the present case, the identity of the
Constitution even on the tests proposed by the counsel of the
writ petitioners and interveners, remains the same and
unchanged.”
185. In N. Nagaraj (supra), this aspect was analysed in the
following terms:
“For a constitutional principle to qualify as an essential
feature, it must be established that the said principle is a part
of the constitutional law binding on the legislature. Only
thereafter, the second step is to be taken, namely, whether the
principle is so fundamental as to bind even the amending
138 Ref. f.n. 104
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power of the Parliament, i.e. to form a part of the basic
structure. The basic structure concept accordingly limits the
amending power of the Parliament……………………….
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……………..The values impose a positive duty on the State to
ensure their attainment as far as practicable. The rights,
liberties and freedoms of the individual are not only to be
protected against the State, they should be facilitated by it.
They are to be informed. Overarching and informing of these
rights and values is the principle of human dignity under the
German basic law. Similarly, secularism is the principle which
is the overarching principle of several rights and values under
the Indian Constitution. Therefore, axioms like secularism,
democracy, reasonableness, social justice etc. are overarching
principles which provide linking factor for principle of
fundamental rights like Articles 14, 19 and
These principles are beyond the amending power of the
Parliament.
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Under the Indian Constitution, the word ‘federalism’ does not
exist in the preamble. However, its principle (not in the strict
sense as in U.S.A.) is delineated over various provisions of
the Constitution. In particular, one finds this concept in
separation of powers under Articles 245 and 246 read with
the three lists in the seventh schedule to the Constitution.
To conclude, the theory of basic structure is based on the
concept of constitutional identity. The basic structure
jurisprudence is a pre-occupation with constitutional identity. 
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The word ‘amendment’ postulates that the old constitution
survives without loss of its identity despite the change and it
continues even though it has been subjected to alteration.
This is the constant theme of the opinions in the majority
decision in Kesavananda Bharati. To destroy its identity is to
abrogate the basic structure of the Constitution. This is the
principle of constitutional sovereignty.” 
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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186. Along similar lines, Krishna Iyer, J. had remarked as to what
kind of an amendment would be abhorrent and violate the basic structure
in Maharao Sahib Shri Bhim Singhji v. Union of India139 in the
following terms:
“Therefore, what is a betrayal of the basic feature is not a
mere violation of Article 14 but a shocking, unconscionable
or unscrupulous travesty of the quintessence of equal justice.”
187. By these parameters, the alteration of the content of state
legislative power in an oblique and peripheral manner would not constitute
a violation of the concept of federalism. It is only if the amendment
takes away the very essence of federalism or effectively divests the
federal content of the constitution, and denudes the states of their effective
power to legislate or frame executive policies (co-extensive with
legislative power) that the amendment would take away an essential
feature or violate the basic structure of the Constitution. Applying such
a benchmark, this court is of the opinion that the power of identification
of SEBCs hitherto exercised by the states and now shifted to the domain
of the President (and for its modification, to Parliament) by virtue of
Article 342A does not in any manner violate the essential features or
basic structure of the Constitution. The 102nd Amendment is also not
contrary to or violative of proviso to Article 368 (2) of the Constitution of
India. As a result, it is held
that the writ petition is without merit; it is
dismissed.
Conclusions
188. In view of the above discussion, my conclusions are as
follows:
(1)
Re Point No. 1: Indra Sawhney (supra) does not require
to be referred to a larger bench nor does it require
reconsideration in the light of subsequent constitutional
amendments, judgments and changed social dynamics of
the society, for the reasons set out by Ashok Bhushan, J.
and my reasons, in addition.
(2)
Re Point No 2: The Maharashtra State Reservation (of seats
for admission in educational institutions in the State and for
appointments in the public services and posts under the
139 (1981) 1 SCC 166
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State) for Socially and Educationally Backward Classes
(SEBC) Act, 2018 as amended in 2019 granting 12% and
13% reservation for Maratha community in addition to 50%
social reservation is not covered by exceptional
circumstances as contemplated by Constitution Bench in
Indra Sawhney’s case. I agree with the reasoning and
conclusions of Ashok Bhushan, J. on this point.
(3)
 Re Point No. 3: I agree with Ashok Bhushan, J. that the
State Government, on the strength of Maharashtra State
Backward Commission Report chaired by M.C. Gaikwad
has not made out a case of existence of extraordinary
situation and exceptional circumstances in the State to fall
within the exception carved out in Indra Sawhney.
(4)
Re Point No 4:Whether the Constitution One Hundred and
Second Amendment deprives the State Legislature of its
power to enact a legislation determining the socially and
economically backward classes and conferring the benefits
on the said community under its enabling power?; and
(5)
Re. Point No. 5 Whether, States’ power to legislate in relation
to “any backward class” under Articles 15(4) and 16(4) is
anyway abridged by Article 342(A) read with Article
366(26c) of the Constitution of India. On these two
interrelated points of reference, my conclusions are as
follows:
(i)
By introduction of Articles 366 (26C) and 342A through
the 102nd Constitution of India, the President alone, to the
exclusion of all other authorities, is empowered to identify
SEBCs and include
them in a list to be published under
Article 342A (1), which shall be deemed to include SEBCs
in relation to each state and union territory for the purposes
of the Constitution.
(ii)
The states can, through their existing mechanisms, or even
statutory commissions, only make suggestions to the
President or the Commission under Article 338B, for
inclusion, exclusion or modification of castes or communities,
in the list to be published under Article 342A (1).
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(iii)
The reference to the Central List in Article 342A (2) is the
one notified by the President under Article 342A (1). It is to
be the only list for all purposes of the Constitution, in relation
to each state and in relation to every union territory. The
use of the term “the Central List” is only to refer to the list
prepared and published under Article 342A (1), and no other;
it does not imply that the states have any manner of power
to publish their list of SEBCs. Once published, under Article
342A (1), the list can only be amended through a law enacted
by Parliament, by virtue of Article 342A (2).
(iv)
In the task of identification of SEBCs, the President shall
be guided by the Commission set up under Article 338B; its
advice shall also be sought by the state in regard to policies
that might be framed by it. If the commission prepares a
report concerning matters of identification, such a report
has to be shared with the state government, which is bound
to deal with it, in accordance with provisions of Article
338B. However, the final determination culminates in the
exercise undertaken by the President (i.e. the Central
Government, under Article 342A (1), by reason of Article
367 read with Section 3 (8) (b) General Clauses Act).
(v)
The states’ power to make reservations, in favour of
particular communities or castes, the quantum of
reservations, the nature of benefits and the kind of
reservations, and all other
matters falling within the ambit
of Articles 15 and 16 – except with respect to identification
of SEBCs, remains undisturbed.
(vi)
The Commission set up under Article 338B shall conclude
its task expeditiously, and make its recommendations after
considering which, the President shall expeditiously publish
the notification containing the list of SEBCs in relation to
states and union territories, for the purpose of the
Constitution.
(vii)
 Till the publication of the notification mentioned in direction
(vi), the existing lists operating in all states and union
territories, and for the purposes of the Central Government
and central institutions, continue to operate. This direction
is issued under Article 142 of the Constitution of India.
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(6)
Re Point No. 6: Article 342A of the Constitution by denuding
States power to legislate or classify in respect of “any
backward class of citizens” does not affect or damage the
federal polity and does not violate the basic structure of the
Constitution of India.
189. The reference is answered in the above terms. The appeals
and writ petitions are therefore, disposed of in terms of the operative
order of Bhushan, J. in para 444 of his Judgment.
L. NAGESWARA RAO, J.
1. I have carefully gone through the erudite and scholarly opinions
of Justice Ashok Bhushan and Justice S. Ravindra Bhat. So far as the
question Nos.1, 2 and 3 are concerned, they are in unison.  There is a
difference of opinion in relation to question Nos. 4, 5  and 6. I am in
agreement with the opinion of Justice Ashok Bhushan in respect of
question Nos.1, 2 and 3. As these issues have been dealt with exhaustively
by Justice Ashok Bhushan, I do not have anything further to add.
2. Question Nos.4, 5 and 6 pertain to the interpretation of Article
342 A of the Constitution of India. On these questions, I am unable to
persuade myself to accept the conclusion reached by Justice Ashok
Bhushan. I agree with the denouement of the judgment of Justice S.
Ravindra Bhat on issue Nos.4, 5 and 6.
3. In view of the cleavage of opinion on the interpretation of Article
342 A of the Constitution, it is my duty to give reasons for my views in
accord with the judgment of Justice S. Ravindra Bhat. In
proceeding to
do so, I am not delving into those aspects which have been dealt with by
him.
4. Article 342 A which falls for interpretation is as follows: -
342 A. Socially and educationally backward classes. — (1)
The President may with respect to any State or Union territory,
and where it is a State, after consultation with the Governor
thereof, by public notification, specify the socially and
educationally backward classes which shall for the purposes
of this Constitution be deemed to be socially and educationally
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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.
5. Article 366 (26 C) which is also relevant is as under: -
366. Definitions. Unless the context otherwise requires, the
following expressions have the meanings hereby respectively
assigned to them, that is to say—
xx
xx
xx
xx
xx
[(26C) ¯socially and educationally backward classes means
such backward classes as are so deemed under article 342 A
for the purposes of this Constitution;]
6. Before embarking upon the exercise of construing the above
Articles, it is necessary to refer to the cardinal principles of interpretation
of the Constitution. Constitution is intended to endure for ages to come,
and, consequently to be adapted to the various crises of human affairs.
We must not forget that it is the Constitution we are expounding1. The
Constitution is a living and organic document which requires to be
construed broadly and liberally.  I am reminded of the word of caution
by Benjamin Cardozo who said that “a Judge is not a knight errant roaming
at will in pursuit of his own ideal of beauty or of goodness.
Judge is not
to innovate at pleasure”.2 Rules which are applied to the interpretation
of other statutes, apply to the interpretation of the Constitution3. It may
be desirable to give a broad and generous construction to the
constitutional provisions, but while doing so the rule of “plain meaning”
1 McCulloch v. Maryland, 17 U.S. 316 (1819)
2 Benjamin Cardozo, the Nature of Judicial Process,  (New Haven: Yale University
Press, 13th Edn., 1946), 141.
3 Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
1938
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or “literal” interpretation, which remains “the primary rule”, has also to
be kept in mind. In fact, the rule of “literal construction” is the safe rule
even while interpreting the Constitution unless the language used is
contradictory, ambiguous, or leads really to absurd results4. The duty of
the judicature is to act upon the true intention of the legislature, the mens
or sententialegis. (See: G. Narayanaswami v. G. Pannerselvam5,
South Asia Industries Private Ltd v. S. Sarup Singh and others6,
Institute of Chartered Accountants of India v. Price Waterhouse7
and J.P. Bansal v. State of Rajasthan8). The first and primary rule of
construction is that the intention of the legislature must be found in the
words used by the legislature itself9. Oliver Wendell Holmes Jr. has
famously said in a letter, “I do not care what their intention was. I only
want to know what the words mean.”10 If the language of the meaning
of the statute is plain,there is no need for construction as legislative
intention is revealed by the apparent meaning11. Legislative intent must
be primarily ascertained from the language used in statute itself.12
7. In his bookPurposive Interpretation in Law,13Aharon Barak
says that constitutional language like the language of any legal text plays
a dual role. On the one hand, it sets the limits of interpretation. The
language of the Constitution is not clay in the hands of the interpreter, to
be molded as he or she sees fit. A Constitution is
neither a metaphor nor
a non-binding recommendation. On the other hand, the language of the
Constitution is a source for its purpose. There are other sources, to be
sure, but constitutional language is an important and highly credible source
of information. The fact that we may learn the purpose of a Constitution
from sources external to it does not mean that we can give a Constitution
a meaning that is inconsistent with its explicit or implicit language.
Interpretation cannot create a new constitutional text. Talk of Judges
4 Kuldip Nayar v. Union of India, (2006) 7 SCC 1
5 (1972) 3 SCC 717
6 1965 SCR (3) 829
7 (1997) 6 SCC 312
8 (2003) 5 SCC 134
9 Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 (1) SCR 360
10 Cited in Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law
Review, Vol. 47, No. 4, 527-546 (1947), 538.
11 Adams Express Company v. Commonwealth of Kentucky, 238 US 190 (1915)
12 United States v. Goldenberg, 168 US 95 (1897)
13 Aharon Barak, Purposive Interpretation in Law, (Sari Bashi transl.), (Princeton:
Princeton University Press, 2005).
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amending the Constitution through their interpretation of the Constitution
is just a metaphor. The claim that a constitutional text limits but does not
command is true only for the limited number of cases in which, after
exhausting all interpretive tools, we can still extract more than one legal
meaning from the constitutional language and must therefore leave the
final decision to judicial discretion. In these exceptional cases, language
provides a general direction but does not draw a precise map of how to
reach the destination. Usually, however, constitutional language sets not
only the limits of interpretation, but also its specific content.14
8. It is a cardinal principle applicable to all kinds of statutes that
you may not for any reason attach to a statutory provision a meaning
which the words of that provision cannot reasonably bear. If they are
capable of more than one meaning, then you can choose between these
meanings, but beyond that the Court must not go.15 Lord Parker, CJ
observed in R. v. Oakes16 there is no ground for reading in words
according to what may be ‘the supposed intention of Parliament’.
9. Justice Ashok Bhushan in his opinion at para 346 rightly held
that the elementary principle of interpreting the Constitution or a statute
is to look into the words used in the statute and when the language is
clear, the intention of the legislature is to be gathered from the language
used. He further
opined that aid to interpretation is resorted to only when
there is some ambiguity in words or expression used in the statute. Justice
Bhushan in State (NCT of Delhi) v. Union of India17 held that the
constitutional interpretation has to be purposive taking into consideration
the need of the times and constitutional principles. The intent of framers
of the Constitution 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. He further held
that the purpose and intent of the constitutional provisions have to be
found from the very constitutional provisions which are up for
interpretation.
10. In the 183rd Report of the Law Commission of India, Justice
M. Jagannadha Rao observed that a statute is a will of legislature
14 Id, 374-375.
15 Jones v D.P.P. [1962] AC. 635
16 [1959] 2 Q.B. 350
17 (2018) 8 SCC 501
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conveyed in the form of text. It is well settled principle of law that as a
statute is an edict of the legislature, the conventional way of interpreting
or construing the statute is to see the intent of the legislature. The intention
of legislature assimilates two aspects. One aspect carries the concept
of ‘meaning’ i.e. what the word means and another aspect conveys the
concept of ‘purpose’ and ‘object’ or ‘reason’ or ‘approach’ pervading
through the statute. The process of construction, therefore, combines
both liberal and purposive approaches. However, necessity of
interpretation would arise only where a language of the statutory provision
is ambiguous, not clear or where two views are possible or where the
provision gives a different meaning defeating the object of the statute.
He supported his view by referring to two judgments of this Court in
R.S. Nayak v. A.R. Antulay18 and Grasim Industries Ltd. v. Collector
of Customs, Bombay19. It was held in R.S. Nayak (supra) that the
plainest duty of the Court is to give effect to the natural meaning of the
words used in the provision if the words of the statute are clear and
unambiguous.
11. The words of a statute, when there is a doubt about their
meaning, are to be understood in the sense in which they best harmonise
between the subject of the enactment and the object which the legislature
has used. Their meaning is found not so much in a strictly grammatical
or etymological propriety of language, nor
even in its popular use, as in
the subject or in the occasion on which they are used, and the object to
be attained.20
12. It is a recognised rule of interpretation of statutes that the
expressions used therein should ordinarily be understood in a sense in
which they best harmonise with the object of the statute, and which
effectuate the object of the legislature21. However, the object-oriented
approach cannot be carried to the extent of doing violence to the plain
language used by re-writing the section or structure words in place of
the actual words used by the legislature22. The logical 1corollary that
18 (1984) 2 SCC 183
19 (2002) 4 SCC 297
20 Workmen of Dimakuchi Tea Estate v Managenment of Dimakuchi Tea Estate, 1958
SCR 1156
21 M/s New India Sugar Mills Ltd v. Commissioner of Sales Tax, Bihar 1963 SCR Supl.
(2) 459
22 C. I. T v. N. C. Budharaja and Co. 1994 SCC Supl. (1) 280
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flows from the judicial pronouncements and opinion of reputed authors
is that the primary rule of construction is literal construction. If there is
no ambiguity in the provision which is being construed there is no need
to look beyond. Legislative intent which is crucial for understanding the
object and purpose of a provision should be gathered from the language.
The purpose can be gathered from external sources but any meaning
inconsistent with the explicit or implicit language cannot be given.
13. In Aron Soloman v. Soloman & Co.23 the House of Lords
observed that the intention of legislature is a ‘slippery phrase’.  What
the legislature intended can be legitimately ascertained from that which
it has chosen to enact, either in express words or by reasonable and
necessary implication. A construction which furthers the purpose or object
of an enactment is described as purposive construction.  A purposive
construction of an enactment is one which gives effect to the legislative
purpose by (a) following the literal meaning of the enactment where that
meaning is in accordance with the legislative purpose or (b) applying a
strained meaning where the literal meaning is not in accordance with the
legislative purpose.24 If that is the case, there is no gainsaying that
purposive interpretation based on the literal meaning of the enactment
must be preferred.
14. In case of ambiguity this Court has adopted purposive
interpretation of statutory provisions by applying rule of purposive
construction. In the instant case, the deliberations before the Select
Committee and its report and Parliamentary Debates were relied upon
by the Respondents in their support to asseverate that the object of
Article 342 A is to the effect that the power of the State legislature to
identify socially and educationally backward classes is not taken away.
Ergo, Article 342 A requires to be interpreted accordingly.
15. The exclusionary rule by which the historical facts of legislation
were not taken into account for the purpose of interpreting a legislation
was given a decent burial by the House of Lords in Pepper (Inspector
of Taxes) v Hart25.  In Kalpana Mehta and Ors. v. Union of India
and Ors.26,a five Judge Bench of this Court held that the Parliamentary
23 1897 AC 22
24 Bennion on Statutory Interpretation, Fifth Edition Pg. 944
25 1993 AC 593
26 (2018) 7 SCC 1
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Standing Committee report can be taken as anaid of for the purpose of
interpretation of a statutory provision. Wherever the reliance on such
reports is necessary, they can be used for assisting the court in gathering
historical facts. In accord with the said judgment, the deliberations of
the report of the Select Committee can be utilisedas an extrinsic aid for
interpretation of Article 342 A, in case there is any ambiguity in the
provision.
16. In R v. DPP ex-parte Duckenfield27, Laws, CJ, cautioned
about the great dangers in treating government pronouncements, however,
helpful, as an aid to statutory construction. In Black-Clawson
International Ltd.28 taking the opinion of a minister, or an official or a
committee, as to the intended meaning in particular application of a clause
or a phrase was held to be stunting of the law and not a healthy
development. The crucial consideration when dealing with enacting
historicalmaterials is the possibility that Parliament changed its mind, or
for some reason departed from it29.  In Letang v. Cooper30 it was held
that enacting history must be inspected with great care and caution. As
an indication of legislative intention, it is very far behind the actual words
of the Act.  While setting out the relevant portions of the report of the
Select Committee, Justice Bhat pointed out that the report reflected the
opinions of both sides before concluding that the concern of the States
will be considered in accordance with
the procedure under Article 341
& Article 342. There is no doubt that the Minister was assuaging the
concerns of the Members by stating that the power of the States to
identify backward classes is not being disturbed. I am convinced that
there is no reason to depart from the text which is in clear terms and rely
upon the legislative history to construe Article 342 A contrary to the
language. I am not persuaded to agree with the submissions of the learned
Attorney General and the other counsel for the States that Article 342 A
has to be interpreted in light of the Select Committee report and discussion
in the Parliament, especially when the legislative language is clear and
unambiguous.
17. Where the Court is unable to find out the purpose of an
enactment, or is doubtful as to its purposes, the Court is unlikely to depart
27 [1999] 2 All ER 873
28 1975 AC 591
29 Assam Railways and Trading Co Ltd v. Inland Revenue, 1935 AC 445
30 [1965] 1 QB 232
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from the literal meaning31. There is no dispute that the statement of
objects and reasons do not indicate the purpose for which Article 342 A
was inserted. During the course of the detailed hearing of these matters,
we repeatedly probed from counsel representingboth sides about the
purpose for inserting Article 342 A in the Constitution. No satisfactory
answer was forthcoming. In spite of our best efforts, we could not unearth
the reason for introduction of Article 342 A. As the purpose is not clear,
literal construction of Article 342A should be resorted to.
18. Craies culled out the following principles of interpretation of
legislation: -
1.
Legislation is always to be understood first in accordance
with its plain meaning.
2.
Where the plain meaning is in doubt, the Courts will start
the process of construction by attempting to discover, from
the provisions enacted, to the broad purpose of the legislation.
3.
Where a particular reading would advance the purpose
identified, and would do no violence to the plain meaning of
the provisions enacted, the Courts will be prepared to adopt
that reading.
4.
Where a particular reading would advance the purpose
identified but would strain the plain meaning of the provisions
enacted, the result will depend on the context and, in
particular, on a balance of the clarity of the purpose identified
and the degree of strain on the language.
5.
Where the Courts concluded that the
underlined purpose
of the legislation is insufficiently plain, or cannot be advanced
without an unacceptable degree of violence to the language
used, they will be obligated, however regretfully in the
circumstances of the particular case, to leave to the
legislature the task of extending or modifying the legislation32.
19. To ascertain the plain meaning of the legislative language, we
proceed to construe Article 342 A of the Constitution of India. Article
342 A was inserted in the Constitution by the Constitution (102nd
31 Section 309, Bennion on Statutory Interpretation, 5th Edition.
32 Craies on Legislation, 9th Edition Pg. 643
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Amendment) Act, 2017. A plainreading of Article 342 A (1) would disclose
that the President shall specify the socially and educationally backward
classes by a public notification after consultation with the Governor.
Those specified as socially and educationally backward classes in the
notification shall be deemed to be socially and educationally backward
classes in relation to that State or Union Territory for the purposes of the
Constitution. Article 342 A (2) provides that inclusion or exclusion from
the list of socially and educationally backward classes specified in the
notification under Article 342 A (1) can be only done by law made by the
Parliament.  The word ‘Central list’ used in Article 342 A (1) had given
rise to conflicting interpretations. Article 366 deals with definitions. Sub-
Article 26 (C) was inserted in Article 366 of the Constitution by the
Constitution (102nd Amendment) Act, 2017according to which, socially
and educationally backward classes shall mean such backward classes
as are so deemed under Article 342 A for the purposes of the Constitution.
The use of words ‘means’ indicates that the definition is a hard-and-fast
definition, and no other meaning can be assigned to the expression that
is put down in definition. (See: Gough v. Gough, (1891) 2 QB 665,
Punjab Land Development and Reclamation Corporation Ltd. v.
Presiding Officer, Labour Court (1990) 3 SCC 682 and P. Kasilingam
v. P.S.G. College of Technology, 1995 SCC Supl. (2)
348.) When a
definition clause is defined to “mean” such and such, the definition is
prima facie restrictive and exhaustive.33
20. The legislature can define its own language and prescribe
rules for its construction which will generally be binding on the Courts34.
Article 366 (26) (c) makes it clear that, it is only those backward classes
as are so deemed under Article 342 A which shall be considered as
socially and educationally backward classes for the purposes of the
Constitution and none else.  No other class can claim to belong to ‘socially
and educationally backward classes’ for the purposes of the Constitution,
except those backward classes as are so deemed under Article 342 A of
the Constitution.
21. This Court in Sudha Rani Garg v. Jagdish Kumar35 dealt
with the word ‘deemed’ in the following manner: -
33 Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755
34 Collins v. Texas, 223 U.S. 288
35 (2004) 8 SCC 329
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“The word ‘deemed’ is sometimes used to impose for the purposes
of a statute an artificial construction of a word or phrase that
would not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be certain.
Sometimes it is used to give a comprehensive description that
includes what is obvious, what is uncertain and what is, in the
ordinary sense, impossible”.
22. Lord Asquith in East End Dwellings Co. Ltd v. Finsbury
Borough Council36 held that, “if one is bidden to treat imaginary state
of affairs as real, one must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which, if the putative
state of affairs had in fact existed, must inevitably have flowed from it
or accompanied it. The use of the word ‘deemed’ in the definition clause
as well as in Article 342 A puts it beyond doubt that it is only those
backward classes which are specified in the notification that may be
issued by the President, who can claim to be socially and educationally
backward classes for the purposes of the Constitution.
23. There is no equivocacy in the legislative language used in
Article 342 A. The ordinary meaning that flows from a simple reading of
Article 342 A is that the President after consultation with the Governor
of a State or Union Territory may issue a public notification specifying
socially and educationally backward classes. It is
those socially and
educationally backward classes who shall be deemed as socially and
educationally backward classes in relation to that State or Union Territory
for the purposes of the Constitution. There is no obscurity in Article 342
A (1) and it is crystal clear that there shall be one list of socially and
educationally backward classes which may be issued by the President.
Restricting the operation of a list to be issued under Article 342 A (1) as
not being applicable to States can be done only by reading words which
are not there in the provision. According to Aharon Barak,”the structure
of the Constitution can be given implicit meaning to what is written
between the lines of the text, but it cannot add lines to the text. To do so
would be to fill a gap or lacuna, using interpretative doctrines”.37 There
is no reason for reading Article 342 A (1) in any other manner except,
36 [1952] AC 109
37 Barak supra, 374.
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according to the plain legal meaning of the legislative language. The
words ‘Central list’ is used in Article 342 A (2) have created some
controversy in construing Article 342 A. To find out the exact connotation
of a word in a statute, we must look to the context in which it is used38.
No words have an absolute meaning, no words can be defined in vacuo,
or without reference to some context39. Finally, the famous words of
Justice Oliver Wendell Holmes Jr. “the word is not a crystal transparent
and unchanged; it is a skin of a living thought and may vary in colour and
content according to the circumstances and the time in which it is used”.40
24. Article 342 A (2) provides that inclusion or exclusion from
Central list of socially and educationally backward classes specified in a
notification issued under Sub-Clause 1 can be done only by the Parliament.
A plain reading of the provision can lead to the following deduction: -
a.
There is a notification issued by the President under clause
(1).
b.
The notification specifies socially and educationally
backward classes.
c.
Inclusion or exclusion can be done only by law made by the
Parliament.
d.
Save otherwise, the notification shall not be varied by any
subsequent notification.
e.
The list notified is referred to as “Central list”.
25. I find it difficult to agree with the submissions made on behalf
of the Respondents that the use of words ‘central list’ would restrict the
scope and amplitude of the
notification to be issued under Article 342 A
(1). There is only one list that can be issued by the President specifying
the socially and educationally backward classes and only those classes
are treated as socially and educationally backward classes for the
purposes of the Constitution. Taking cue from the National Commission
38 Nyadar Singh v. Union of India 1988 4 SCC 170
39 Professor HA Smith cited in Union of India v. Sankalchand Himmat Lal Seth [1977)
4 SCC 193
40 Towne v. Eisner, 245 U.S. 425 (1918)
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for Backward Classes Act, 1993, the Respondents argued that the words
‘Central list’ is with reference only to appointments to Central services
and admission in Central educational institutions. Reading ‘Central list’
in that manner would be curtailing the width of Article 342 A (1). If so
read, the sweep of Sub-Clause (1) shall be minimized. Moreover, to
achieve the said meaning, words which are not in Article 342 A (1) have
to be read into it. Contextually, the words Central list in Article 342 A (2)
can be only with reference to the list contained in the notification which
may be issued under Article 342 A (1). It is well settled law that the
provisions of the Constitution have to be harmoniously construed and it
is apparent from Article 342 A (1) and (2) that there is no scope for any
list of socially and educationally backward classes, other than the list to
be notified by the President.  As the other expressions ‘for the purposes
of the Constitution’ and ‘unless the context otherwise requires’ have
been dealt with by Justice Bhat, I have nothing more to add to the
construction placed by him on the said expressions. To avoid any
confusion, I endorse the conclusion of Justice Ashok Bhushan on question
Nos. 1, 2 and 3 and the final order proposed in Para No. 444 of his
judgment.  Insofar as question Nos. 4, 5 and 6 are concerned, I am in
agreement with the opinion of Justice S. Ravindra Bhat.
26. A conspectus of
the above discussion would be that only those
backward classes included in the public notification under Article 342 A
shall be socially and educationally backward classes for the purposes of
the Constitution.
HEMANT GUPTA, J.
I have gone through the judgments authored by learned Hon’ble
Shri Ashok Bhushan, J., Hon’ble Shri S. Ravindra Bhat, J. and also the
order authored by Hon’ble Shri L. Nageswara Rao, J.  I am in agreement
with the reasoning and the conclusion on the Question Nos. 1, 2 and 3 in
the judgment rendered by Hon’ble Shri Ashok Bhushan, J., as well as
additional reasons recorded by Hon’ble Shri S. Ravindra Bhat, J. and by
Hon’ble Shri L. Nageswara Rao, J.
I entirely agree with the reasoning and the conclusions in the
Judgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. and
Hon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.
Bibhuti Bhushan Bose
Matters disposed of.