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
to take steps to make inadequate
representation adequate.”
139. Justice Krishna Iyer in paragraph 143 of the judgment
expressed his concurrence with the opinion of Justice Fazal Ali that
arithmetical limit of 50% in any one year set by some earlier rulings
cannot perhaps be pressed too far. Following observations were made
in paragraph 143:
“143. ... I agree with my learned Brother Fazal Ali, J., in the view
that the arithmetical limit of 50 per cent in any one year set by
some earlier rulings cannot perhaps be pressed too far. Overall
representation in a department does not depend on recruitment in
a particular year, but the total strength of a cadre. I agree with his
construction of Article 16(4) and his view about the “carry
forward” rule.
140. With regard to 50% reservation limit, above are only
observations made by two Hon’ble Judges in seven-Judge Constitution
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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Bench. It is true that Justice Fazal Ali expressed his discordant note
with the ceiling of 50% but the observations as noted above were not
the decision of the seven-Judge Constitution Bench judgment.
141. In T. Devadasn vs. Union of India and another, AIR
1964 SC 179, a Constitution Bench of this Court had occasion to examine
the carry forward rule in a recruitment under the Union of India. This
Court had noticed M.R. Balaji and held that what was laid down in
M.R. Balaji would apply in the above case. Referring to M.R. Balaji
following was laid down in paragraph 16 to the following effect:
“16. The startling effect of the carry forward rule as
modified in 1955 would be apparent if in the illustration which we
have taken there were in the third year 50 total vacancies instead
of 100. Out of these 50 vacancies 9 would be reserved for the
Scheduled Castes and Tribes, adding to that, the 36 carried forward
from the two previous years, we would have a total of 45 reserved
vacancies out of 50, that is, a percentage of 90. In the case before
us 45 vacancies have actually been filled out of which 29 have
gone to members of the Scheduled Castes and Tribes on the basis
of reservation permitted by the carry forward rule. This comes to
about 64.4% of reservation. Such being the result of the operation
of the carry forward rule we must, on the basis of the decision
in Balaji case [AIR 1963 SC 649] hold that the rule is bad.
Indeed,
even 
in General 
Manager 
Southern 
Railway 
v.
Rangachari [(1962) 2 SCR 586] which is a case in which
reservation of vacancies to be filled by promotion was upheld by
this Court, Gajendragadkar, J., who delivered the majority judgment
observed:
“It is also true that the reservation which can be made
under Article 16(4) is intended merely to give adequate
representation to backward communities. It cannot be used
for creating monopolies or for unduly or illegitimately disturbing
the legitimate interests of other employees. In exercising the
powers under Article 16(4) the problem of adequate
representation of the backward class of citizens must be fairly
and objectively considered and an attempt must always be made
to strike a reasonable balance between the claims of backward
classes and the claims of other employees as well as the
important consideration of the efficiency of administration;….”
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It is clear from both these decisions that the problem of
giving adequate representation to members of backward classes
enjoined by Article 16(4) of the Constitution is not to be tackled
by framing a general rule without bearing in mind its repercussions
from year to year. What precise method should be adopted for
this purpose is a matter for the Government to consider. It is enough
for us to say that while any method can be evolved by the
Government it must strike “a reasonable balance between the
claims of the backward classes and claims of other employees”
as pointed out in Balaji case [AIR 1963 SC 649].”
142. In the above case Justice Subba Rao has expressed dissenting
opinion. Justice Subba Rao observed that what was held in M.R. Balaji
cannot be applied in the case of reservation of appointment in the matter
of recruitment. Following observation was made by Justice Subba Rao
in paragraph 30:
“30. In the instant case, the State made a provision; adopting
the principle of “carry forward”. Instead of fixing a higher
percentage in the second and third selections based upon the earlier
results, it directed that the vacancies reserved in one selection for
the said Castes and Tribes but not filled up by them but filled up
by other candidates, should be added to the quota fixed for the
said Castes and Tribes in the next selection and likewise in the
succeeding selection. As the posts reserved in the first year for
the said Castes and Tribes were filled up
by non-Scheduled Caste
and non-Scheduled Tribe applicants, the result was that in the
next selection the posts available to the latter was proportionately
reduced. This provision certainly caused hardship to the individuals
who applied for the second or the third selection, as the case may
be, though the non-Scheduled Castes and non-Scheduled Tribes,
taken as one unit, were benefited in the earlier selection or
selections. This injustice to individuals, which is inherent in any
scheme of reservation cannot, in my view, make the provision for
reservation nonetheless a provision for reservation.”
143. In Akhil Bharatiya Sochit Karamchari Sangh (Railway)
Represented by its Assistant General Secretary on behalf of the
Association vs. Union of India and others, (1981) 1 SCC 246,
Justice O. Chinnappa Reddy observed that there is no fixed ceiling to
reservation or preferential treatment to the Scheduled Castes and
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Scheduled Tribes though generally reservation may not be far in excess
of 50%. Following words were spoken in paragraph 135:
“135.  There is no fixed ceiling to reservation or preferential
treatment in favour of the Scheduled Castes and Scheduled Tribes
though generally reservation may not be far in excess of fifty per
cent. There is no rigidity about the fifty per cent rule which is only
a convenient guideline laid down by Judges.
144. In K.C. Vasanth Kumar and another vs. State of Karnata,
1985 (Supp) SCC 714, O. Chinnappa Reddy, J. after noticing the Balaji
observed that percentage of reservations is not a matter upon which a
court may pronounce with no material at hand. Following observations
were made by Justice O. Chinnappa Reddy in paragraph 57:
“57. The Balaji [M.R. Balaji v. State of Mysore, AIR 1963 SC
649,Court then considered the question of the extent of the special
provision which the State would be competent to make under
Article 15(4). ……
We should think that that is a matter for experts in management
and administration. There might be posts or technical courses for
which only the best can be admitted and others might be posts
and technical courses for which a minimum qualification would
also serve. The percentage of reservations is not a matter upon
which a court may pronounce with no material at hand. For a
court to say that reservations should not exceed 40 per cent 50
per cent or 60 per cent,
would be arbitrary and the Constitution
does not permit us to be arbitrary. Though in the Balaji case [M.R.
Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1)
SCR 439] , the Court thought that generally and in a broad way a
special provision should be less than 50 per cent, and how much
less than 50 per cent would depend upon the relevant prevailing
circumstances in each case, the Court confessed: “In this matter
again, we are reluctant to say definitely what would be a proper
provision to make.” All that the Court would finally say was that
in the circumstances of the case before them, a reservation of 68
per cent was inconsistent with Article 15(4) of the Constitution.
We are not prepared to read Balaji [M.R. Balaji v. State of
Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439] as arbitrarily
laying down 50 per cent as the outer limit of reservation. ……
(emphasis supplied)”
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145. In the same judgment of K.C. Vasanth, Justice E.S.
Venkataramiah has expressed a contrary opinion to one which was
expressed by Justice O. Chinnappa Reddy in paragraph 149. Justice
Venkataramiah held that 50% rule has not been unsettled by the majority
in N.M. Thomas. In paragraph 149 following was laid down:
“149. After carefully going through all the seven opinions in the
above case, it is difficult to hold that the settled view of this Court
that the reservation under Article 15(4) or Article 16(4) could not
be more than 50% has been unsettled by a majority on the Bench
which decided this case.”
146. The reference of Judges, who spoke in different voices are
the judgments as noted above. It is relevant to notice that neither in
N.M. Thomas nor in K C Basant case the decision of the Court was
to disapprove 50% ceiling as fixed by M.R. Balaji. It is although true
that Justice Fazal Ali, Justice O.Chinnappa Reddy and Justice Krishna
Iyer have expressed their doubt about the advisability of 50% rule.
Another judgment which has been referred to is the judgment of this
Court in State of Punjab and Hira Lal and others, 1970(3) SCC
567, where K.S.Hegde, J. speaking for a three-Judge Bench had
observed that the question of reservation to be made is primarily matter
for the State to decide. However, no observation was made by Justice
Hegde in the above case regarding M.R. Balaji case.
147. The judgment of this Court in N.M. Thomas, Akhil
Bharatiya
Karamchari Sangh and State of Punjab and even dissenting
judgment of Justice Krishna Iyer in Devadasan and Akhil Bharatiya
Kaamchari Sangh have been referred to and considered by nine-Judge
Constitution Bench of this Court in Indra Sawhney. In Indra Sawhney,
Justice B.P. Jeevan Reddy while considering the question No.6 noted
M.R. Balaji, Devadasan, N.M. Thomas and concluded that reservation
contemplated in clause (4) of Article 16 should not exceed 50%. After
considering all the above cases which according to Shri Rohtagi are
discordant notes, a larger nine-Judge Constitution Bench having held
that the reservation contemplated in clause (4) of Article 16 should not
exceed 50% of earlier doubt raised by the Judges as noted above cannot
be relied any further. The larger Bench in Indra Sawhney has settled
the law after considering all earlier decisions of this Court as well as
reliance of opinion of few Judges as noted and as relied by Shri Rohtagi
is of no avail and cannot furnish any ground to refer judgment of Indra
Sawhney to a larger Bench.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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148. One more judgment delivered after Indra Sawhney has been
relied by Shri Rohtagi that is S.V. Joshi and others vs. State of
Karnataka and others, (2012) 7 SCC 41. Shri Rohtagi submits that
this Court in S.V. Joshi in paragraph 4 referring to M.Nagaraj vs.
Union of India, (2006) 8 SCC 212, held if a State wants to exceed
50% reservation, then it is required to base its decision on the quantifiable
data. In paragraph 4 following was laid down:
“4. Subsequent to the filing of the above writ petitions, Articles
15 and 16 of the Constitution have been amended vide the
Constitution (Ninety-third Amendment) Act, 2005, and the
Constitution (Eighty-first Amendment) Act, 2000, respectively,
which Amendment Acts have been the subject-matter of
subsequent decisions of this Court in M. Nagaraj v. Union of
India (2006) 8 SCC 212, and Ashoka Kumar Thakur v. Union
of India [(2008) 6 SCC 1] in which, inter alia, it has been laid
down that if a State wants to exceed fifty per cent reservation,
then it is required to base its decision on the quantifiable data. In
the present case, this exercise has not been done.”
149. The observation was made in paragraph 4, as noted above,
that the Constitution Bench in M. Nagaraj has laid down that if a State
wants to exceed 50% reservation, then it is required to base its decision
on a quantifiable data, which is clear misreading of judgment of the
Constitution Bench in M. Nagaraj. In M.
Nagaraj, the Constitution
Bench has not laid down any proposition to the effect that if a State
wants to exceed 50% reservation, then it is required to base its decision
on the quantifiable data. To the contrary the Constitution Bench of this
Court in M. Nagaraj has reiterated the numerical bench mark like 50%
rule in Indra Sawhney’s case. Following observation was made by the
Constitution Bench in paragraphs 120 and 122:
“120......In addition to the above requirements this Court
in Indra Sawhney [1992 Supp (3) SCC 217] has evolved
numerical benchmarks like ceiling limit of 50% based on post-
specific roster coupled with the concept of replacement to provide
immunity against the charge of discrimination.
122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency
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are all constitutional requirements without which the structure of
equality of opportunity in Article 16 would collapse.”
150. The Constitution Bench judgment of this Court in Ashok
Kumar Thakur has also not laid down any proposition which has been
referred in paragraph 4 of S.V. Joshi. This Court’s judgment of three-
Judge Bench in S.V. Joshi case does not support the contention of Shri
Rohtagi.
151. In view of the foregoing discussion, we do not find any
substance in the second ground of Shri Rohtagi that this Court’s judgment
of Indra Sawhney to be referred to a larger Bench.
152. The judgment of Indra Sawhney has been followed by this
Court in a number of cases including at least in the following four
Constitution Bench judgments:
(1)
Post Graduate Institute of Medical Education &
Research, Chandigarh and others vs. Faculty
Association and others;
(2)
M. Nagaraj and others vs. Union of India and others,
2006(8) SCC 212;
(3)
Krishna Murthy (Dr.) and others vs. Union of India
and anoter 2010 (7) SCC 202
Which judgment though was considering reservation under
Article 243D and 243T has applied 50% ceiling as laid down
in Balaji.
(4)
The Constitution Bench judgment of this Court in Chebrolu
Leela Prasad Rao & Ors. vs. State of A.P. & Ors.,
2020(7) Scale 162, reiterated the principle as referred
and reiterated that outer limit is 50% as specified in Indra
Sawhney’s case.
153. We move to ground Nos.3 and 4 as formulated by Shri
Mukul Rohtagi to make a
reference to the larger Bench.
154. The Constitution, the paramount law of the country has given
to the Indian citizens the basic freedom and equality which are meant to
be lasting and permanent. The Constitution of India is the vehicle by
which the goals set out in it are to be achieved. The right from primitive
society upto the organised nations the most cherished right which all
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human beings sought was the right to equality. The Preamble of our
Constitution reflects a deep deliberations and precision in choosing ideal
and aspirations of people which shall guide all those who have to govern.
Equality of status and opportunity is one of the noble objectives of the
framers of the Constitution. The doctrine of equality before law is part
of rule of law which pervades the Indian Constitution. Justice Y.V.
Chandrachud in Smt. Indira Nehru Gandhi vs. Raj Narain, (1975)
Supp. SCC 1 has referred to equality of status and opportunity as forming
part of the basic structure of the Constitution. In paragraph 664 following
was observed:
“664. I consider it beyond the pale of reasonable controversy
that if there be any unamendable features of the Constitution on
the score that they form a part of the basic structure of the
Constitution, they are that: (i) Indian sovereign democratic republic;
(ii) Equality of status and opportunity shall be secured to all its
citizens; (iii) The State shall have no religion of its own and all
persons shall be equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion and that
(iv) the nation oil all be governed by a Government of laws, not of
men. These, in my opinion, are the pillars of our constitutional
philosophy, the pillars, therefore, of the basic structure of the
Constitution.”
155. Articles 15 and 16 of the
Constitution which are facets of
right of equality were incorporated as fundamental rights to translate the
ideals and objectives of the Constitution and to give opportunities to the
backward class of the society so as to enable them to catch up those
who are ahead of them. Article 15(1) and Article 16(1) of the Constitution
are the provisions engrafted to realise substantive equality where Articles
15(4) and 16(4) are to realise the protective equality. Articles 15(1) and
16(1) are the fundamental rights of the citizens whereas Articles 15(4)
and 16(4) are the obligations of the States. Justice B.P. Jeevan Reddy in
Indra Sawhney in paragraph 641 has said that the equality has been
single greatest craving of all human beings at all points of time. For
finding out the objectives and the intention of the framers of the
Constitution we need to refer to Constituent Assembly debates on draft
Article 10 (Article 16 of the Constitution) held on 30.11.1948 (Book 2
Volume No,VII), Dr. Ambedkar’s reply on draft Article 10 has been
referred to and quoted in all six judgments delivered in Indra Sahwney
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case. What was the objective of Article 10, 10(1) and 10(3) has been
explained by Dr. Ambedkar which speech has been time and again
referred to remind us the objective of the above fundamental right.
156. Dr. Ambedkar referred to Article 10(1) as a generic principle.
Dr. Ambedkar observed that if the reservation is to be consistent on the
sub-clause (1) of Article 10 it must confine to the reservation of minority
of seats. Following are the part of speech of Dr. B.R. Ambedkar in the
Constituent Assembly:
“ If honourable Members will bear these facts in mind—
the three principles, we had to reconcile,—they will see that no
better formula could be produced than the one that is embodied in
sub-clause (3) of article 10 of the Constitution; they will find that
the view of those who believe and hold that there shall be equality
of opportunity, has been embodied in sub-clause (1) of Article 10.
It is a generic principle. At the same time, as I said, we had to
reconcile this formula with the demand made by certain
communities that the administration which has now—for historical
reasons—been controlled by one community or a few communities,
that situation should disappear and that the others also must have
an opportunity of getting into the public services. Supposing, for
instance, we were to concede in full the demand of those
communities who have not been so far employed in the public
services to the fullest extent, what would really happen is, we
shall be
completely destroying the first proposition upon which
we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance,
reservations were made for a community or a collection of
communities, the total of which came to something like 70 per
cent. of the total posts under the State and only 30 per cent. are
retained as the unreserved. Could anybody say that the reservation
of 30 per cent. as open to general competition would be satisfactory
from the point of view of giving effect to the first principle, namely,
that there shall be equality of opportunity? It cannot be in my
judgment. Therefore the seats to be reserved, if the reservation is
to be consistent with sub-clause (1) of Article 10, must be confined
to a minority of seats. It is then only that the first principle could
find its place in the Constitution and effective in operation.”
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157. The above views of Dr. Ambedkar expressed in the
Constituent Assembly for balancing the draft Articles 10(1) and 10(3)
equivalent to Articles 16 and 16(4) have been referred to and relied by
this Court in Indra Sawhney as well as in other cases.
158. Shri Rohtagi submits that this Court in Balaji has held sub-
clause (4) of Article 16 as exception to Article 16(1) which was the
premise for fixing 50%. In N.M. Thomas and Indra Sawhney now it
is held that Article 16 sub-clause (4) is not exception to Article 16(1), the
submission is that in view of the above holding in N.M. Thomas and
Indra Sawhney the ceiling of 50% has to go. It is true that seven-Judge
Constitution Bench in N.M. Thomas held that Article 16(4) is not an
exception to Article 16(1) which was noticed in paragraph 713 of the
judgment of Indra Sawhney. Justice B.P. Jeevan Reddy in paragraph
733 said “At this stage, we see to clarify one particular aspect. Article
16(1) is a facet of Article 14, just as Article 14 permits reasonable
classification, so does Article 16(1)”. In paragraph 741 following was
laid down:
“741. ....In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310, 380] is the correct one. We too
believe that Article 16(1) does permit reasonable classification
for ensuring attainment of the equality of opportunity assured by
it. For assuring equality of opportunity, it may well be necessary
in certain
situations to treat unequally situated persons unequally.
Not doing so, would perpetuate and accentuate inequality. Article
16(4) is an instance of such classification, put in to place the matter
beyond controversy. The “backward class of citizens” are
classified as a separate category deserving a special treatment in
the nature of reservation of appointments/posts in the services of
the State. Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1)......”
159. As laid down by the Constitution Bench in Indra Sawhney,
we proceed on the premise that Article 16(4) is not an exception to
Article 16(1). It is also held that Article 16(4) is a facet to Article 16(1)
and permits reasonable classification as is permitted by Article 14.
160. In Balaji, the Constitution Bench did not base its decision
only on the observation that Article 15(4) is exception and proviso to
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Article 15(1). Article 15(4) was referred to as a special provision. In
paragraph 34 of Balaji it is also laid down that special provision
contemplated by Article 15(4) like reservation of posts by Article 16(4)
must be within the reasonable limitation. We again quote the relevant
observation from paragraph 34:
“34. ...That is not to say that reservation should not be adopted;
reservation should and must be adopted to advance the prospects
of the weaker sections of society, but in providing for special
measures in that behalf care should be taken not to exclude
admission to higher educational centres to deserving and qualified
candidates of other communities. A special provision contemplated
by Article 15(4) like reservation of posts and appointments
contemplated by Article 16(4) must be within reasonable limits.
The interests of weaker sections of society which are a first charge
on the States and the Centre have to be adjusted with the interests
of the community as a whole. The adjustment of these competing
claims is undoubtedly a difficult matter, but if under the guise of
making a special provision, a State reserves practically all the
seats available in all the colleges, that clearly would be subverting
the object of Article 15(4). In this matter again, we are reluctant
to say definitely what would be a proper provision to make.
Speaking generally and in a broad way, a special provision should
be less than 50%; how much less than 50% would depend
upon
the present prevailing circumstances in each case...”
161. Both Shri Mukul Rohtagi and Shri Kapil Sibal submits that
constitutional provisions contained in Articles 15 and 16 do not permit
laying down any percentage in measures to be taken under Articles
15(4) and 16(4). It is submitted that fixation of percentage of 50% cannot
be said to be constitutional. We need to answer the question from where
does 50% rule come from?
162. The 50% rule spoken in Balaji and affirmed in Indra
Sawhneyis to fulfill the objective of equality as engrafted in Article 14 of
which Articles 15 and 16 are facets. The Indra Sawhney itself gives
answer of the question. In paragraph 807 of Indra Sawhney held that
what is more reasonable than to say that reservation under clause (4)
shall not exceed 50% of the appointment. 50% has been said to be
reasonable and it is to attain the objective of equality. In paragraph 807
Justice Jeevan Reddy states:
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“807. We must, however, point out that clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation  cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and that
too for a limited period. These articles speak of reservation of
seats in Lok Sabha and the State legislatures in favour of Scheduled
Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore
not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the
total population would certainly be relevant. Just as every power
must be exercised reasonably and fairly, the power conferred by
clause (4) of Article 16 should also be exercised in a fair manner
and within reasonable limits — and what is more reasonable than
to say that reservation under clause (4) shall not exceed 50% of
the appointments or posts, barring certain extraordinary situations
as explained hereinafter. From this point of view, the 27%
reservation provided by the impugned Memorandums in favour
of backward classes is well within the reasonable limits. Together
with reservation in favour of Scheduled Castes  and Scheduled
Tribes, it comes to a total of 49.5%. In this connection, reference
may be had to the Full Bench
decision of the Andhra Pradesh
High Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP
53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the
enhancement of reservation from 25% to 44% for OBCs. The
said enhancement had the effect of taking the total reservation
under Article 16(4) to 65%.”
163. In paragraph 808, Justice Jeevan Reddy referred to speech
of Dr. Ambedkar where he said that the reservation should be confined
(to a minority of seats). The expression minority of seats”. When
translated into figure the expression less than 50% comes into operation.
164. To change the 50% limit is to have a society which is not
founded on equality but based on caste rule. The democracy is an essential
feature of our Constitution and part of our basic structure. If the
reservation goes above 50% limit which is a reasonable, it will be slippery
slope, the political pressure, make it hardly to reduce the same. Thus,
answer to the question posed is that the percentage of 50% has been
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arrived at on the principle of reasonability and achieves equality as
enshrined by Article 14 of which Articles 15 and 16 are facets.
165. We may notice one more submission of Shri Rohtagi in the
above context. Shri Rohtagi submits that the Constitution of India is a
living document, ideas cannot remain frozen, even the thinking of the
framers of the Constitution cannot remain frozen for time immemorial.
Shri Rohtagi submits that due to change in need of the society the law
should change.
166. Justice J.M. Shalet and Justice K.N. Grover,JJ. Speaking in
His Holiness Kesavananda Bharati Sripadagalvaru vs. State of
Kerala and another, (1973) 4 SCC 225, laid down following in
paragraph 482 and 634:
“482. These petitions which have been argued for a very
long time raise momentus issues of great constitutional importance.
Our Constitution is unique, apart from being the longest in the
world. It is meant for the second largest population with diverse
people speaking different languages and professing varying
religions. It was chiselled and shaped by great political leaders
and legal luminaries, most of whom had taken an active part in
the struggle for freedom from the British yoke and who knew
what domination of a foreign rule meant in the way of deprivation
of basic freedoms and from the point of view of exploitation of
the millions of Indians. The Constitution is an organic document
which must grow and it must take stock of the vast socio-economic
problems,
particularly, of improving the lot of the common man
consistent with his dignity and the unity of the nation.
634. Every Constitution is expected to endure for a long
time. Therefore, it must necessarily be elastic. It is not possible to
place the society in a straightjacket. The society grows, its
requirements change. The Constitution and the laws may have to
be changed to suit those needs. No single generation can bind the
course of the generation to come. Hence every Constitution, wisely
drawn up, provides for its own amendment.”
167. Shri Rohtagi has placed reliance on the judgment of this Court
in K.S. Puttaswamy and another vs. Union of India and others,
2017(10) SCC 1, wherein in paragraph 476 following was laid down:
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“476. However, the learned Attorney General has argued
in support of the eight-Judge Bench and the six-Judge Bench,
stating that the Framers of the Constitution expressly rejected the
right to privacy being made part of the fundamental rights chapter
of the Constitution. While he may be right, Constituent Assembly
Debates make interesting reading only to show us what exactly
the Framers had in mind when they framed the Constitution of
India. As will be pointed out later in this judgment, our judgments
expressly recognise that the Constitution governs the lives of 125
crore citizens of this country and must be interpreted to respond
to the changing needs of society at different points in time.”
168. Another judgment relied by Shri Rohtagi is in Supreme Court
Advocates-on-Record Association and others vs. Union of India,
1993(4) SCC 441, wherein in paragraph 16 following has been laid
down:
“16. The proposition that the provisions of the Constitution
must be confined only to the interpretation which the Framers,
with the conditions and outlook of their time would have placed
upon them is not acceptable and is liable to be rejected for more
than one reason — firstly, some of the current issues could not
have been foreseen; secondly, others would not have been
discussed and thirdly, still others may be left over as controversial
issues, i.e. termed as deferred issues with conflicting intentions.
Beyond these reasons, it
is not easy or possible to decipher as to
what were the factors that influenced the mind of the Framers at
the time of framing the Constitution when it is juxtaposed to the
present time. The inevitable truth is that law is not static and
immutable but ever increasingly dynamic and grows with the
ongoing passage of time.”
169. The time fleets, generations grow, society changes, values
and needs also change by time. There can be no denial that law should
change with the changing time and changing needs of the society.
However, the proposition of law as noted above does not render any
help to the submission of Shri Rohtagi that in view of needs of the society
which are changing 50% rule should be given up.
170. The constitutional measures of providing reservation, giving
concessions and other benefits to backward classes including socially
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and educationally backward class are all affirmative measures. We have
completed more than 73 years of independence, the Maharashtra is one
of the developed States in the country which has highest share in the
country’s GST i.e. 16%, higher share in Direct Taxes-38% and higher
contribution to country’s GDP, 38.88%. The goal of the Constitution
framers was to bring a caste-less society. The directive principles of the
State Policy cast onerous obligation on the States to promote welfare of
the people by securing and protecting as effectively as it may social
order in which social justice, economic and political shall inform all the
institutions of the national life. 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.
171. We recall the observation made by Justice R.V. Raveendran
in Ashoka Kumar Thakur vs. Union of India and others, 2008(6)
SCC 1, where His Lordship held that any provision for reservation is a
temporary crutch, such crutch by unnecessary prolonged use, should
not become a permanent liability. In words of Justice Raveendran
paragraph 666 is as
follows:
“666. Caste has divided this country for ages. It has hampered
its growth. To have a casteless society will be realisation of a
noble dream. To start with, the effect of reservation may appear
to perpetuate caste. The immediate effect of caste-based
reservation has been rather unfortunate. In the pre-reservation
era people wanted to get rid of the backward tag—either social
or economical. But post reservation, there is a tendency even
among those who are considered as “forward”, to seek the
“backward” tag, in the hope of enjoying the benefits of
reservations. When more and more people aspire for
“backwardness” instead of “forwardness” the country itself
stagnates. Be that as it may. Reservation as an affirmative action
is required only for a limited period to bring forward the socially
and educationally backward classes by giving them a gentle
supportive push. But if there is no review after a reasonable period
and if reservation is continued, the country will become a caste
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divided society permanently. Instead of developing a united society
with diversity, we will end up as a fractured society forever
suspicious of each other. While affirmative discrimination is a road
to equality, care should be taken that the road does not become a
rut in which the vehicle of progress gets entrenched and stuck.
Any provision for reservation is a temporary crutch. Such crutch
by unnecessary prolonged use, should not become a permanent
liability. It is significant that the Constitution does not specifically
prescribe a casteless society nor tries to abolish caste. But by
barring discrimination in the name of caste and by providing for
affirmative action Constitution seeks to remove the difference in
status on the basis of caste. When the differences in status among
castes are removed, all castes will become equal. That will be a
beginning for a casteless egalitarian society.”
172. We have no doubt that all Governments take measures to
improve the welfare of weaker sections of the society but looking to the
increased requirement of providing education including higher education
to more and more sections of society other means and measures have to
be forged. In view of the privatisation and liberalisation of the economy
public employment is not sufficient to cater the needs of all. More avenues
for providing opportunities to members of the weaker sections of the
society and backward class to develop
skills for employment not
necessary the public service. The objectives engrafted in our Constituted
and ideals set by the Constitution for the society and the Governments
are still not achieved and have to be pursued. There can be no quarrel
that society changes, law changes, people changes but that does not
mean that something which is good and proven to be beneficial in
maintaining equality in the society should also be changed in the name of
change alone.
173. In Ashoka Kumar Thakur vs. Union of India, (supra),
Justice Dalveer Bhandari has also laid down that the balance should be
struck to ensure that reservation would remain reasonable. 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.
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174. The judgment of Indra Sawhney is being followed for more
than a quarter century without there being any doubt raised in any of the
judgments about the 50%, the 50% rule has been repeatedly followed.
175. We may notice one more aspect in the above respect.
Granville Austin in “The Indian Constitution: Cornerstone of a
Nation” while discussing the topic “The judiciary and the social
revolution” states:
“The members of the Constituent Assembly brought to the framing
of the Judicial provisions of the Constitution an idealism equalled
only by that shown towards the Fundamental Rights. Indeed, the
Judiciary was seen as an extension of the Rights, for it was the
courts that would give the Rights force. The Judiciary was to be
an arm of the social revolution, upholding the equality that Indians
and longed for during colonial days, but had not gained-not simply
because the regime was colonial, and perforce repressive, but
largely because the British had feared that social change would
endanger their rule.”
176. The Constitution enjoins a constitutional duty to interpret and
protect the Constitution. This Court is guardian of the Constitution.
177. We may also quote Justice Mathew, in Keshavananda
Bharati (Supra), where he reiterated that judicial function is both
creation and application of law. The principle of Indra Sawhney is both
creation application of law. In paragraph, 1705, Justice Mathew says: -
“1705. The judicial function is, like legislation, both
creation
and application of law. The judicial function is ordinarily determined
by the general norms both as to procedure and as to the contents
of the norm to be created, whereas legislation is usually determined
by the Constitution only in the former respect. But that is a
difference in degree only. From a dynamic point of view, the
individual norm created by the judicial decision is a stage in a
process beginning with the establishment of the first Constitution,
continued by legislation and customs, and leading to the judicial
decisions. The Court not merely formulates already existing law
although it is generally asserted to be so. It does not only ‘seek’
and ‘find’ the law existing previous to its decision, it does not
merely pronounce the law which exists ready and finished prior
to its pronouncement. Both in establishing the presence of the
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conditions and in stipulating the sanction, the judicial decision has
a constitutive character. The law-creating function of the courts
is especially manifest when the judicial decision has the character
of a precedent, and that means when the judicial decision creates
a general norm. Where the courts are entitled not only to apply
pre-existing substantive law in their decisions, but also to create
new law for concrete cases, there is a comprehensible inclination
to give these judicial decisions the character of precedents. Within
such a legal system, courts are legislative organs in exactly the
same sense as the organ which is called the legislator in the
narrower and ordinary sense of the term…””
178. In All India Reporter Karamchari Sangh and others vs.
All India Reporter Limited and others, 1988 Supp SCC 472, a
three-Judge Bench speaking through Justice Venkataramiah held that
the decisions of the Supreme Court which is a Court of record, constitute
a source of law apart from being a binding precedent under Article 141.
Following was laid down in paragraph 11:
“11. ....
Article 141 of the Constitution provides that the
law declared by Supreme Court shall be binding on all courts within
the territory of India. Even apart from Article 141 of the Constitution
the decisions of the Supreme Court, which is a court of record,
constitute a source of law as they are the judicial precedents of
the highest court of the
land. ….”
179. This Court again in Nand Kishore vs. State of Punjab,
1995(6) SCC 614, laid down that under Article 141 law declared by
this Court is of a binding character and as commandful as the law made
by legislative body or authorized delegate of such body. In paragraph 17
following was laid down:
“17. …Their Lordships’ decisions declare the existing law but do
not enact any fresh law”, is not in keeping with the plenary function
of the Supreme Court under Article 141 of the Constitution, for
the Court is not merely the interpreter of the law as existing but
much beyond that. The Court as a wing of the State is by itself a
source of law. The law is what the Court says it is. Patently the
High Court fell into an error in its appreciation of the role of this
Court.”
180. 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.
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181. The submission of Shri Kapil Sibal that the judgment of Indra
Sawhney is shackle to the legislature in enacting the law does not
commend us. When the law is laid down by this Court that reservation
ought not to exceed 50% except in extra-ordinary circumstances all
authorities including legislature and executive are bound by the said law.
There is no question of putting any shackle. It is the law which is binding
on all.
182. This Court has laid down in a large number of cases that
reservation in super-specialties and higher technical and in disciplines
like atomic research etc. are not to be given which is law developed in
the national interest. In paragraph 838, Indra Sawhney has noticed
certain posts where reservations are not conducive in public interest and
the national interest. Following has been held in paragraph 838:
“838. While on Article 335, we are of the opinion that there
are certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy) at
which they obtain, merit as explained hereinabove, alone counts.
In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organisations/departments/ institutions, in specialities
and super-specialities in medicine, engineering and other such
courses in physical sciences and mathematics, in defence services
and in the establishments connected therewith. Similarly, in
the
case of posts at the higher echelons e.g., Professors (in Education),
Pilots in Indian Airlines and Air India, Scientists and Technicians
in nuclear and space application, provision for reservation would
not be advisable.”
182(a).  If we accept the submission of the learned counsel for
the respondent to the logical extent that since there is no indication in
Articles 15 and 16 certain posts cannot be reserved, no such exclusion
could have been made. The law as existing today is one which has been
laid down in Indra Sawhney in paragraph 838 which is a law spelt out
from the constitutional provisions including Article 15 and 16.
183. What has been laid down by the Constitution Bench in Indra
Sawhney in paragraphs 839, 840 and 859(8) is law declared by this
Court and is to be implemented also by all concerned. The Parliament
has passed the Central Educational Institutions Reservation and
Appointment Act, 2006 providing for reservation- 15% for SC, 7-1/2%,
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15%, 27% for other classes in Central Educational Institutions
(Reservation in Admission) Act, 2006. Section 4 provides that Act not to
apply in certain cases which is to the following effect:
“Section 4 of the Act specifically says that the provisions
of Section 3 shall (sic/not) apply to certain institutions. Section 4
reads as under:
“4. Act not to apply in certain cases.—The provisions of
Section 3 of this Act shall not apply to—
(a) a Central Educational Institution established in the tribal
areas referred to in the Sixth Schedule to the Constitution;
(b) the institutions of excellence, research institutions,
institutions of national and strategic importance specified in the
Schedule to this Act:
Provided that the Central Government may, as and when
considered necessary, by notification in the Official Gazette, amend
the Schedule;
(c) a Minority Educational Institution as defined in this Act;
(d) a course or programme at high levels of specialisation,
including at the post-doctoral level, within any branch or study or
faculty, which the Central Government may, in consultation with
the appropriate authority, specify.”
184.  Exclusion of reservation in above Parliamentary enactment
clearly indicates that law declared by Indra Sawhney in paragraphs
839, 840 and 859 as noted above is being understood as a law and being
implemented, this reinforces our view that ceiling limit of 50% for
reservation as approved by
Indra Sawhney’s case is a law within the
meaning of Article 141 and is to be implemented by all concerned.
185. In view of the above discussion, ground Nos. 3 and 4 as
urged by Shri Mukul Rohtagi do not furnish any ground to review Indra
Sawhney or to refer the said judgment to the larger Constitution Bench.
REASON NO. 5
186. Shri Rohtagi submits that Indra Sawhney judgment being
judgment on Article 16(4), its ratio cannot be applied with regard to
Article 15(4). Justice Jeevan Reddy before proceeding to answer the
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questions framed clearly observed that the debates of the Constituent
Assembly on Article 16 and the decision of this Court on Articles 15 and
16 and few decisions of US Supreme Court are helpful. The observations
of the Court that decision of this Court on Article 16 and Article 15 are
helpful clearly indicate that principles which have been discerned for
interpreting Article 16 may also be relevant for interpretation of Article
15. Justice Jeevan Reddy has noted two early cases on Article 15
namely The State of Madras versus Champakam Dorairajan, AIR
1951 SC 226 and B.Venkataramana versus State of Tamil Nadu
and Another, AIR 1951 SC 229. Justice Jeevan Reddy in paragraph
757 has observed that although Balaji was not a case arising under
Article 16(4) but what is said about Article 15(4) came to be accepted
as equally good and valid for the purposes of Article 16(4). Justice
Jeevan Reddy said in paragraph 757:- 
“757. Though Balaji was not a case arising under Article 16(4),
what it said about Article 15(4) came to be accepted as equally
good and valid for the purpose of Article 16(4). The formulations
enunciated with respect to Article 15(4) were, without question,
applied and adopted in cases arising under Article 16(4). It is,
therefore, necessary to notice precisely the formulations in Balaji
relevant in this behalf. ...
(underlined by us)”
187.  It was further held in paragraph 808 that clause (4) of Article
16 is a means of achieving the objective
of equality and it is nothing but
reinstatement of principle of equality enshrined in Article 14. The relevant
observation by Justice Jeevan Reddy in paragraph 808 is as follows:
“808. It needs no emphasis to say that the principle aim of
Article 14 and 16 is equality and equality of opportunity and that
Clause (4) of Article 16 is but a means of 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 restatements 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 Article 16 which is a guarantee held out to every
citizen and to the entire society. It is relevant to point out that Dr.
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Ambedkar himself contemplated reservation being “confined to a
minority of seats” (See his speech in Constituent Assembly, set
out in para 28). No other member of the Constituent Assembly
suggested otherwise. It is, thus clear that reservation of a majority
of seats was never envisaged by the founding fathers. Nor are
we satisfied that the present context requires us to depart from
that concept.
(underlined by us)”
188.  Clause (4) of Article 15 is also a special provision which is
nothing but reinstatement of the principles of equality enshrined in Article
14. The principles which have been laid down in paragraph 808 with
respect to Article 16(4) are clearly applicable with regard to Article
15(4) also. In the majority judgment of this Court in Indra Sawhney, the
Balaji principle i.e. the 50 percent rule has been approved and not
departed with. The 50 percent principle which was initially spoken of in
Balaji having been approved in Indra Sawhney. We failed to see as to
how prepositions laid down by this Court in Indra Sawhney shall not be
applicable for Article 15. It has been laid down in Indra Sawhney that
expression “Backward Class” used in Article 16(4) is wider that the
expression “Socially and Educationally Backward Class” used in Article
15(5).
 189. We thus do not find any substance in submissions of Mukul
Rohtagi that the judgment of this Court in Indra Sawhney need not be
applied in reference to Article
15.
REASON -6
190. Shri Rohtagi submits that in Indra Sawhney judgment, the
impact of Directive Principles of State Policy such as Article 39(b)(c)
and Article 46 have not been considered while interpreting Article 14,
16(1) and 16(4). The Directive Principles of State Policy enshrined in
Part-IV of the Constitution are fundamental in governance of the country.
The State while framing its policy, legislation, had to take measures to
give effect to the Constitutional Objective as contained in Part-IV of the
Constitution. The Fundamental Rights are rights which the Constitution
guarantees to the Citizen whereas Part-IV of the Constitution is the
obligation of the State which it has to discharge for securing Constitutional
objective. In the most celebrated judgment of this Court i.e.
Keshavananda Bharati Sripadagalvaru and others versus State of
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Kerala and another, (1973) 4 SCC 225, in several of the opinions, the
Part-III and Part-IV of the Constitution has been dealt with. Chief
Justice S.M. Sikri,in paragraph 147 of the judgment, stated that: -
“147. It is impossible to equate the directive principles with
fundamental rights though it cannot be denied that they are very
important. But to say that the directive principles give a directive
to take away fundamental rights in order to achieve what is
directed by the directive principles seems to me a contradiction in
terms.”
191. In the same judgment, Justice Hegde and Mukherjea
J.J, held that Fundamental Rights and the Directive Principles of State
Policy constitute the conscience of our Constitution. Following was stated
in paragraph 712: -
“712.  No one can deny the importance of the Directive Principles.
The Fundamental Rights and the Directive Principles constitute
the ‘conscience’ of our Constitution. The purpose of the
Fundamental Rights is to create an egalitarian society, to free all
citizens from coercion or restriction by society and to make liberty
available for all. The purpose of the Directive Principles is to fix
certain social and economic goals for immediate attainment by
bringing about a non-violent social revolution. Through such a social
revolution the Constitution seeks to fulfil the basic needs of the
common man and to change the structure of bur society. It aims
at making the Indian masses free in the positive sense.”
192.
The Constitution Bench of this Court in Minerva Mills limited
and others versus Union of India and others, (1980) 3 SCC 625,
has also elaborately dealt both Fundamental Rights and Directive
Principles of State Policy. The question which arose before the
Constitution bench in context of Fundamental Rights and Directive
Principles of State Policy was noticed by Justice Chandrachud, C.J.,
in paragraph 40 as:-
“40. The main controversy in these petitions centres round the
question whether the directive principles of State policy contained
in Part IV can have primacy over the fundamental rights conferred
by Part III of the Constitution. That is the heart of the matter.
Every other consideration and all other contentions are in the nature
of by-products of that central theme of the case. The competing
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claims of parts III and IV constitute the pivotal point of the case
because, Article 31C as amended by section 4 of the 42nd
Amendment provides in terms that a law giving effect to any
directive principle cannot be challenged as void on the ground
that it violates the rights conferred by Article 14 or The 42nd
Amendment by its section 4 thus subordinates the fundamental
rights conferred by Articles 14 and 19 to the directive principles.”
193.  It was held that both Part-III and Part-IV of the Constitution
are two kinds of State’s obligation i.e. negative and positive. The harmony
and balance between Fundamental Rights and Directive Principles of
State Policy is an essential feature of the Basic Structure of the
Constitution. Justice Chandrachud elaborating the relation between
Part-III and Part-IV stated in paragraph 57: -
“57. This is not mere semantics. The edifice of our Constitution is
built upon the concepts crystallised in the Preamble. We resolved
to constitute ourselves into a Socialist State which carried with it
the obligation to secure to our people justice-social, economic and
political. We, therefore, put part IV into our Constitution containing
directive principles of State policy which specify the socialistic
goal to be achieved. We promised to our people a democratic
polity which carries with it the obligation of securing to the people
liberty of thought, expression, belief, faith and worship;
equality
of status and of opportunity and the assurance that the dignity of
the individual will at all costs be preserved. We, therefore, put
Part, III in our Constitution conferring those rights on the people.
Those rights are not an end in themselves but are the means to an
end. The end is specified in Part IV. Therefore, the rights conferred
by Art III are subject to reasonable restrictions and the Constitution
provides that enforcement of some of them may, in stated
uncommon circumstances, be suspended. But just as the rights
conferred by Part III would be without a radar and a compass if
they were not geared to an ideal, in the same manner the attainment
of the ideals set out in Part IV would become a pretence for
tyranny if the price to be paid for achieving that ideal is human
freedoms. One of the faiths of our founding fathers was the purity
of means. Indeed, under our law, even a dacoit who has committed
a murder cannot be put to death in the exercise of right of self-
defence after he has made good his escape. So great is the
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insistence of civilised laws on the purity of means. The goals set
out in Part IV have, therefore, to be achieved without the abrogation
of the means provided for by Part III. It is in this sense that Parts
III and IV together constitute the core of our Constitution and
combine to form its conscience. Anything that destroys the balance
between the two parts will ipso facto destroy an essential element
of the basic structure of our Constitution.”
194.  Article 38 of Directive Principles of State Policy oblige the
State to strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice social,
economic and political shall inform all the institutions of national life.
Article 15(4) and Article 16(4) of the Constitution are nothing but steps
in promoting and giving effect to policy under Article 38 of the
Constitution. Justice Jeevan Reddy in his judgment of Indra Sawhney
has noted Article 38 and Article 46 of Part-IV of the Constitution. In
paragraph 647, Article 38 and 46 has been notice in following words: -
“647. The other provisions of the Constitution having a bearing on
Article 16 are Articles 38, 46 and the set of articles in Part XVI.
Clause (1) of Article 38 obligates the State to “strive to promote
the welfare of the people by securing and protecting as effectively
as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the
national life.”
195.  The criticism mounted by Mr. Rohtagi that Indra Sawhney
judgment does not consider the impact of Directive Principles of State
Policy while interpreting Article 16 is thus not correct. Further in paragraph
841, it has been held that there is no particular relevance of Article 38 in
context of Article 16(4). In paragraph 841, following has been
observed: -
“841. We may add that we see no particular relevance of Article
38(2) in this context. Article 16(4) is also a measure a measure to
ensure equality of status besides equality of opportunity.”
196.  Mr. Rohtagi has referred to Article 39(b) and Article 39(c)
of the Constitution and has submitted that there is no consideration in
Indra Sawhney judgment. Article 39 of the Constitution enumerates
certain principles of policy to be followed by the State. Article 39 (b) and
39(c) which are relevant for the present case are as follows: -
 “39. Certain principles of policy to be followed by the State:-
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(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the common
good; and
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
common detriment;”
 197. We fail to see that how the measures taken under Article
15(4) and 16(4) shall in any manner can be read to breach Directive
Principles of State Policy. Article 16(4) and 15(4) are also measures to
ensure equality of status besides the equality of opportunity.
198.  We thus do not find any substance in the above submission
of Mr. Mukul Rohtagi.
Ground NO. 7
199. Shri Rohtagi submits that an Eleven-Judge Bench of this
Court in T.M.A. Pai foundation and others versus State of Karnataka
and others, (2002) 8 SCC 481, has struck down the law laid down by
this Court in St. Stephen’s College case, (1992) 1 SCC 558 which had
held that aided minority educational institutions although entitled to
preferably admit their community candidate but intake should not be
more than 50 percent. Shri Rohtagi submits that St. Stephen’s College
case has put a cap of 50 percent which was nothing but recognition of
Indra Sawhney Principle. Shri Rohtagi submits that the Eleven-Judge
Bench in T.M.A. Pai Foundation case has set aside the aforesaid cap
of 50 percent. Mr. Rohtagi relies on paragraph 151 of Kirpal,C.J.
and paragraph 338 by Rumapal, J. of the
judgment, which is to
the following effect: -
“151. The right of the aided minority institution to preferably admit
students of its community, when Article 29(2) was applicable, has
been clarified by this Court over a decade ago in the St. Stephen’s
College case. While upholding the procedure for admitting students,
this Court also held that aided minority educational institutions
were entitled to preferably admit their community candidates so
as to maintain the minority character of the institution, and that
the state may regulate the intake in this category with due regard
to the area that the institution was intended to serve, but that this
intake should not be more than 50% in any case. Thus, St.
Stephen’s endeavoured to strike a balance between the two
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Articles. Though we accept the ratio of St. Stephen’s, which has
held the field for over a decade, we have compelling reservations
in accepting the rigid percentage stipulated therein. As Article 29
and Article 30 apply not only to institutions of higher education but
also to schools, a ceiling of 50% would not be proper. It will be
more appropriate that depending upon the level of the institution,
whether it be a primary or secondary or high school or a college,
professional or otherwise, and on the population and educational
needs of the area in which the institution is to be located the state
properly balances the interests of all by providing for such a
percentage of students of the minority community to be admitted,
so as to adequately serve the interest of the community for which
the institution was established. 
388. I agree with the view as expressed by the Learned Chief
Justice that there is no question of fixing a percentage when the
need may be variable. I would only add that in fixing a percentage,
the Court in St. Stephens in fact “reserved” 50% of available
seats in a minority institution for the general category ostensibly
under Article 29(2). pertains to the right of an individual and is not
a class right. It would therefore apply when an individual is denied
admission into any educational institution maintained by the State
or receiving aid from the State funds, solely on the basis of the
ground of religion, race, caste, language or any
of them. It does
not operate to create a class interest or right in the sense that any
educational institution has to set apart for non-minorities as a class
and without reference to any individual applicant, a fixed percentage
of available seats. Unless Articles 30(1) and 29(2) are allowed to
operate in their separate fields then what started with the voluntary
‘sprinkling’ of outsiders, would become a major inundation and a
large chunk of the right of an aided minority institution to operate
for the benefit of the community it was set up to serve, would be
washed away.”
200.  T.M.A. Pai foundation case was a judgment of this Court
interpreting Article 29 and 30 of the Constitution. Article 30 of the
Constitution gives a Fundamental Right to the minorities to establish and
administer educational institutions. The Right of minority is different and
distinct right as recognized in the Constitution. The 93rd Constitutional
Amendment Act, 2005, by which sub-clause (5) has been added in Article
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15 excludes the minority educational institutions referred to in clause (1)
of  Article 30. Sub-clause (5) of Article 15 is clear constitutional indication
that with regard to rights of minority regarding admission to educational
institutions, the minority educational institutions referred to in clause (1)
of Article 30 are completely excluded. What was laid down by this Court
in T.M.A. Pai foundation case, finds clear epoch in the 93rd
Constitutional Amendment.
201.  We may refer to a Three-Judge Bench judgment of this
Court in Society for Un-aided Private Schools of Rajasthan versus
Union of India and another, (2012) 6 SCC 1, where this Court had
occasion to consider Article 14, 15 & 16 as well as 21A of the Constitution.
Shri Kapadia, C.J., speaking for majority, held that reservation of 25
percent in unaided minority schools result in changing character of schools
holding that Section 12(1)(c) of Right to Education Act, 2009 violates
right conferred under  minority school under Article 31. Paragraphs 61
and 62 of the judgment are as follows: -
“61.  Article 15(5) is an enabling provision and it is for the respective
States either to enact a legislation or issue an executive instruction
providing for reservation except in the case of minority educational
institutions referred to in Article 30(1). The intention of the
Parliament is that the minority educational institution referred to
in Article 30(1) is a separate
category of institutions which needs
protection of Article 30(1) and viewed in that light we are of the
view that unaided minority school(s) needs special protection under
Article 30(1).Article 30(1) is not conditional as Article 19(1)(g).
In a sense, it is absolute as the Constitution framers thought that it
was the duty of the Government of the day to protect the minorities
in the matter of preservation of culture, language and script via
establishment of educational institutions for religious and charitable
purposes [See: Article 26].
62. Reservations of 25% in such unaided minority schools result
in changing the character of the schools if right to establish and
administer such schools flows from the right to conserve the
language, script or culture, which right is conferred on such unaided
minority schools. Thus, the 2009 Act including Section 12(1)(c)
violates the right conferred on such unaided minority schools under
Article 30(1). ”
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202. From the law as laid down in T.M.A. Pai foundation Case
(supra)as well as Society for Un-aided Private Schools of Rajasthan
(supra), it is clear that there can be no reservation in unaided minority
schools referred in Article 30(1). 
203. The 50 percent ceiling as put by this Court in St. Stephen’s
College case was struck off by T.M.A. Pai Foundation case to give
effect to content and meaning of Article 30.  The striking of the cap of
50 percent with regard to minority institutions is an entirely different
context and can have no bearing with regard to 50 percent cap which
has been approved in the reservation under Article 16(4) in the Indra
Sawhey’s case.
204.  We thus are of the view that judgment of this Court in T.M.A.
Pai Foundation case has no bearing on the ratio of Indra Sawhney’s
case.
Ground – 8
205. Shri Rohtagi relying on Constitutional 77th and 81st Amendment
Acts submits that these amendments have the effect of undoing in part
the judgment of Indra Sawhney which necessitates revisiting of the
judgment. By the 77thConstitutional Amendment Act, 1995, sub-clause
(4A) was inserted in Article 16 of the Constitution. The above
Constitutional Amendment was brought to do away the law laid down
by this Court in Indra Sawhney that no reservation in promotion can be
granted. By virtue of sub-clause 4A of Article 16 now, the reservation in
promotion is permissible in favour of Scheduled Caste, Scheduled Tribe.
The ratio of Indra Sawhney to the
above effect no longer survives and
the Constitutional provisions have to be give effect to. There can be no
case for revisiting the Indra Sawhney judgment on this ground. Now
coming to 81stConstitutional Amendment Act, 2000, by which sub-clause
(4B) was inserted in Article 16. The above provision was also to undo
the ratio laid down by the Indra Sawhney judgment regarding carry
forward vacancies. The Constitutional Amendment laid down that in
unfilled vacancies of year which was reserved shall be treated as separate
class of vacancies to be filled up in any succeeding year or years and
such class of vacancies shall not be considered together with the vacancies
of the year in which they are being filled up for determine the ceiling of
50 percent. Article (4B) is for any reference is quoted as below: -
“16(4B). Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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for being filled up in that year in accordance with any provision
for reservation made under clause (4) or clause (4A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number
of vacancies of that year.”
 206. The above Constitutional Amendment makes it very clear
that ceiling of 50 percent “has now received Constitutional recognition.”
Ceiling of 50 percent is ceiling which was approved by this Court in
Indra Sawhney’s case, thus, the Constitutional Amendment in fact
recognize the 50 percent ceiling which was approved in Indra Sawhney’s
case and on the basis of above Constitutional Amendment, no case has
been made out to revisit Indra Sawhney.
Ground-9
207. Shri Rohtagi submits that judgment of Indra held that the
States cannot identify the backward classes solely on the basis of
economic criteria as Indra Sawhney has set aside the O.M. dated
13.08.1990 which provided 10 percent reservation to economically weaker
section. The submission of Shri Rohtagi is that by 103rdConstitutional
Amendment, Parliament has inserted Article 15(6) and 16(6) whereby
10 percent reservation is granted to economically weaker section.
208. It is submitted that in view of the 10 percent reservation as
mandated by
103rdConstitutional amendment, 50 percent reservation as
laid down by Indra Sawhney is breached. Shri Rohtagi has further
submitted that the issue pertaining to 103rdConstitutional Amendment
has been referred to a larger Bench in W.P. (Civil) No. 55 of 2019,
Janhit Abhiyan versus Union of India. In view of above,We refrain
ourselves from making any observation regarding effect and consequence
of 103rd Constitutional Amendment.
Ground– 10
209. Shri Rohtagi submits that in paragraph 810 of judgment of
Indra Sawhney, certain extraordinary circumstances have been referred
to which cannot be said to be cast in stone. The extra-ordinary
circumstances provided in paragraph 810 i.e. of far-flung and remote
area cannot be cast in stone and forever unchanging. He submits that
the same was given only by way of example and cannot be considered
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exhaustive. Morever, it is geographical test which may not apply in every
State. In paragraph 810 of Indra Sawhney, Justice Jeevan Reddy
provided: -
“810. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great
diversity of this country and the people. It might happen that in
far-flung and remote areas the population inhabiting those areas
might, on account of their being put of the mainstream of national
life and in view of conditions peculiar to and characteristical to
them, need to be treated in a different way, some relaxation in this
strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.” 
210. 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.
211. We may refer to a Three-Judge Bench judgment of this Court
in Union of India and others versus Rakesh Kumar and others,(2010)
4 SCC 50, this Court had occasion to consider the provisions of Fifth
Schedule of the Constitution. Article 243B and provisions of Part-IX of
the Constitution inserted by
73rdConstitutional Amendment Act, 1992.
Reservation of seats was contemplated in the statutory provisions. The
judgment of Indra Sawhney especially paragraph 809 and 810 were
also noted and extracted by this Court. This Court noted that even the
judgment of Indra Sawhney did recognize the need for exception
treatment in such circumstances. In paragraph 44, this Court held that
the case of Panchayats in Scheduled Areas is a fit case that warrant
exceptional treatment with regard to reservation and the rationale of
upper ceiling of 50 percent for reservation in higher education and public
employment can be readily extended to the domain of vertical
representation at the Panchayat level in the Scheduled Area. Paragraphs
43 and 44 are extracted below: -
“43. For the sake of argument, even if an analogy between Article
243-D and Article 16(4) was viable, a close reading of the Indra
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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Sawhney decision will reveal that even though an upper limit of
50% was prescribed for reservations in public employment, the
said decision did recognise the need for exceptional treatment in
some circumstances. This is evident from the following words (at
Paras. 809, 810):
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in Clause (4)
of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen
that in far-flung and remote areas the population inhabiting
those areas might, on account of their being put of the
mainstream of national life and in view of conditions peculiar
to and characteristical to them, need to be treated in a different
way, some relaxation in this strict rule may become imperative.
In doing so, extreme caution is to be exercised and a special
case made out.”
44. We believe that the case of Panchayats in Scheduled Areas is
a fit case that warrants exceptional treatment with regard to
reservations. The rationale behind imposing an upper ceiling of
50% in reservations for higher education and public employment
cannot be readily extended to the domain of political representation
at the Panchayat-level in Scheduled Areas. With respect to
education and employment, parity is
maintained between the total
number of reserved and unreserved seats in order to maintain a
pragmatic balance between the affirmative action measures and
considerations of merit.”
212. This Court carved out one more exceptional circumstance
which may fit in extraordinary situations as contemplated by paragraph
810 in the Indra Sawhney’s case. We may also notice that the
Constitution Bench of this Court in K. Krishna Murthy and others
versus Union of India and another, (2010) 7 SCC 202. In paragraph
82(iv) applied 50 percent ceiling in vertical reservation in favour of
Scheduled Caste/Scheduled Tribe/ Other Backward Class in context of
local self government. However, it was held that exception can be made
in order to safeguard the interest of Scheduled Tribes located in Scheduled
Area. Paragraph 82(iv) is as follows: -
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“82.(iv) The upper ceiling of 50% vertical reservations in favour
of SCs/STs/OBCs should not be breached in the context of local
self-government. Exceptions can only be made in order to
safeguard the interests of the Scheduled Tribes in the matter of
their representation in panchayats located in the Scheduled Areas.”
 213. The judgment of the Constitution Bench in the above case
had approved the Three-Judge Bench judgment of this Court in Union
of India and others Rakesh Kumar (supra) in paragraph 67, which is
to the following effect: -
“67.  In the recent decision reported as Union of India v. Rakesh
Kumar, (2010) 4 SCC 50, this Court has explained why it may be
necessary to provide reservations in favour of Scheduled Tribes
that exceed 50% of the seats in panchayats located in Scheduled
Areas. However, such exceptional considerations cannot be
invoked when we are examining the quantum of reservations in
favour of backward classes for the purpose of local bodies located
in general areas. In such circumstances, the vertical reservations
in favour of SC/ST/OBCs cannot exceed the upper limit of 50%
when taken together. It is obvious that in order to adhere to this
upper ceiling, some of the States may have to modify their
legislations so as to reduce the quantum of the existing quotas in
favour of OBCs.”
214.  We thus are of the view that extraordinary situations indicated
in paragraph 810 are only illustrative and not exhaustive but paragraph
810 gives an
indication as to which may fit in extra ordinary situation. 
215.  In view of foregoing discussions, we do not find any substance
in grounds raised by Shri Rohtagi for re-visiting the judgment of Indra
Sawhney and referring the judgment of Indra Sawhney to a larger
Bench.
The judgment of Indra Sawhney has been repeatedly followed
by this Court and has received approval by at least four Constitution
Benches of this Court as noted above. We also follow and reiterate the
prepositions as laid down by this Court in Indra Sawhney in paragraphs
809 and 810. We further observe that ratio of judgment of Indra
Sawhney is fully applicable in context of Article 15 of the Constitution.
(8)Principle of Stare Decisis
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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216. The seven-Judge Constitution Bench judgment in Keshav
Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 has
unanimously held that before reviewing and revising its earlier decision
the Court must itself satisfy whether it is necessary to do so in the interest
of public good or for any other compelling reason and the Court must
endeavour to maintain a certainty and continuity in the interpretation of
the law in the country.
217. In Jarnail Singh and others vs. Lachhmi Narain Gupta
and others, 2018(10) SCC 396, the prayer to refer the Constitution
Bench judgment in M.Nagaraj (supra) was rejected by the Constitution
Bench relying on the law as laid down in Keshav Mills’ case. In
paragraph 9 following has been laid down:
“9. Since we are asked to revisit a unanimous Constitution
Bench judgment, it is important to bear in mind the admonition of
the Constitution Bench judgment in Keshav Mills [Keshav Mills
Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636] . This
Court said: (SCR pp. 921-22 : AIR p. 1644, para 23)
“23. … [I]n reviewing and revising its earlier decision [Ed.:
The reference is to New Jehangir Vakil Mills Ltd. v. CIT,
AIR 1959 SC 1177 and Petlad Turkey Red Dye Works Co.
Ltd. v. CIT, 1963 Supp (1) SCR 871, this Court should ask itself
whether in the interests of the public good or for any other
valid and compulsive reasons, it is necessary that the earlier
decision should be revised. When this
Court decides questions
of law, its decisions are, under Article 141, binding on all courts
within the territory of India, and so, it must be the constant
endeavour and concern of this Court to introduce and maintain
an element of certainty and continuity in the interpretation of
law in the country. Frequent exercise by this Court of its power
to review its earlier decisions on the ground that the view
pressed before it later appears to the Court to be more
reasonable, may incidentally tend to make law uncertain and
introduce confusion which must be consistently avoided. That
is not to say that if on a subsequent occasion, the Court is
satisfied that its earlier decision was clearly erroneous, it should
hesitate to correct the error; but before a previous decision is
pronounced to be plainly erroneous, the Court must be satisfied
with a fair amount of unanimity amongst its members that a
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revision of the said view is fully justified. It is not possible or
desirable, and in any case it would be inexpedient to lay down
any principles which should govern the approach of the Court
in dealing with the question of reviewing and revising its earlier
decisions. It would always 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. These considerations
become still more significant when the earlier decision happens
to be a unanimous decision of a Bench of five learned Judges
of this Court.”
218.  The principle of stare
decisis also commends us not to
accept the submissions of Shri Rohtagi. The Constitution Bench of this
Court in State of Gujarat versus Mirzapur, Moti Kureshi Kassab Jamat
and others, (2005) 8 SCC 534, explaining the principle of Stare
decisis laid down following in paragraphs 111 and 118:-
“111. Stare decisis is a Latin phrase which means “stand
by decided cases; to uphold precedents; to maintain former
adjudication”. This principle is expressed in the maxim “stare
decisis et non quieta movere” which means to stand by decisions
and not to disturb what is settled. This was aptly put by Lord
Coke in his classic English version as “Those things which have
been so often adjudged ought to rest in peace”. However,
according to Justice Frankfurter, the doctrine of stare decisis is
not “an imprisonment of reason” (Advanced Law Lexicon, P.
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Ramanatha Aiyer, 3rd Edn. 2005, Vol.4, P.4456). The underlying
logic of the doctrine is to maintain consistency and avoid
uncertainty. The guiding philosophy is that a view which has held
the field for a long time should not be disturbed only because
another view is possible.
118. The doctrine of stare decisis is generally to be adhered
to, because well-settled principles of law founded on a series of
authoritative pronouncements ought to be followed. Yet, the
demands of the changed facts and circumstances, dictated by
forceful factors supported by logic, amply justify the need for a
fresh look.”
219. The Constitution Bench in Indra Sawhney speaking through
Justice Jeevan Reddy has held that the relevance and significance of
the principle of stare decisis have to be kept in mind. It was reiterated
that in law certainty, consistency and continuity are highly desirable
features. Following are the exact words in paragraph 683:-
“683... Though, we are sitting in a larger Bench, we have kept in
mind the relevance and significance of the principle of Stare decisis.
We are conscious of the fact that in law certainty, consistency
and continuity are highly desirable features. Where a decision
has stood the test of time and has never been doubted, we have
respected it unless, of course, there are compelling and strong
reasons to depart from it. Where, however, such uniformity is not
found, we have tried to answer the question
on principle keeping
in mind the scheme and goal of our Constitution and the material
placed before us.”
220. What was said by Constitution Bench in Indra Sawhney
clearly binds us. Judgment of Indra Sawhney has stood the test of time
and has never been doubted. On the clear principle of stare decisis,
judgment of Indra Sawhney neither need to be revisited nor referred to
larger bench of this Court.
221. The principle laid down in Keshav Mills when applied in
the facts of the present case, it is crystal clear that no case is made out
to refer the case of Indra Sawhney to a larger Bench.
(9)Whether Gaikwad Commission Report has made out a case
of extra-ordinary situation for grant of separate reservation
to Maratha community exceeding 50% limit ?
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222. We have noticed above that majority judgment in Indra
Sawhney has laid down that reservation shall not exceed 50% as a rule.
In the majority opinion, however, it was held that looking to the diversity
of the country there may be some extra-ordinary situations where
reservation in exceptional cases is made exceeding 50% limit. In this
respect, We may again refer to paragraphs 809 and 810 of the judgment
of Indra Sawhney by which the above proposition of law was laid down.
Paragraphs 809 and 810 are to the following effect:
“809.  From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations inherent in
the great diversity of this country and the people. It might happen
that in far flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and characteristical
to them, need to be treated in a different way, some relaxation in
this strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.”
223.  The second term of reference to the State Backward Classes
Commission included a specific reference, i.e., “to define exceptional
circumstances and/or extra-ordinary situations to be applied
for the benefit
of reservation in the present context”. The Gaikwad Commission has
separately and elaborately considered the above term of reference. A
separate Chapter, Chapter-X has been devoted in the Commission’s
Report. The heading of the Chapter-X is “EXCEPTIONAL
CIRCUMSTANCES 
AND/OR 
EXTRA 
ORDINARY
SITUATIONS”.
224. We have already noticed the submission of Shri Mukul
Rohtagi with reference to exceptional circumstances while considering
the Ground No.10 as emphasized by him for referring the case to a
larger Bench. We have observed that the exceptional circumstances as
indicated in paragraph 810 of Indra Sawhney were not exhaustive but
illustrative. The Constitution Bench, however, has given indication of
what could be the extra-ordinary circumstances for exceeding the limit
of 50%. The Commission has noticed the majority opinion in Indra
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Sawhney. We may notice paragraph 234-Chapter X of the Report which
is to the following effect:
“234. The Constitutional provisions relating to the reservations,
either under Article 15 or Article 16 of the Constitution do not
prescribe percentage of reservation to be provided to each of the
backward classes i.e. Scheduled Castes, Scheduled Tribes and
Backward Classes. However, reservations to be provided to the
Scheduled Castes and Scheduled Tribes has already been provided
by the Government of India, i.e. 15% Scheduled Castes and 7.5%
for Scheduled Tribes. Excluding that 22.5% reservations, the
existing Bus provisions for reservation for Backward Classes is
27%. Though originally Article 15 and Article 16 of the 997
Constitution did not specify the percentage of the reservation for
different classes, the amended provisions of Article 16(4A) and
(4B) specify that the State Government is not prevented from
considering any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any provision
for reservation made under Article 16(4) or (4A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of 50% reservation on total number of
vacancies of that year. In Indra Sawhney’s case (supra), the
Honourable the Supreme Court for the first time, by majority,
specified a ceiling for total reservation of 50%. The Honourable
the Supreme Court considered this issue while answering question
Nos. 6(a), 6(b) and 6(c) formulated by it in the Judgment. The
questoins are produced herein under:-
“6(A) Whether the 50% rule enunciated in Balaji a binding rule or
only a rule of caution or rule of prudence?
6(b)
Whether the 50% rule, if any, is confined to reservations
made under Clause (4) of Article 16 or whether it takes in
all types of reservations that can be provided under Article
16?
6(c)
Further while applying 50% rule, if any, whether an year
should be taken as a unit or whether the total strength of
the cadre should be looked to?”
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The Honourable the Supreme Court in para 94A in answered the
questions Indra Sawhney’s case formulated by it stating that
reservation contemplated in clause (4) of Article 16 of the
Constitution shall not exceed 50%. In the same para the
Honourable the Supreme Court has ruled that some relaxation in
this TIRNITURE DIVIST strict rule may become imperative with
a caution. “In doing so extreme caution is to be exercised and a
special case is to be made out”. The relevant passage from para
94A (of AIR) the judgment of the Honourable the Supreme Court
in Indra Sawhney’s case majority view is reproduced and that
runs as under:
“While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great
diversity of this country and the people. It might happen that in far
flung and remote areas the population inhabiting those areas might,
on account of their being out of the main stream of national life
and in view of conditions peculiar to and characteristical to them,
need to be treated in a different way, some relaxation in this strict
rule may become imperative. In doing so, extreme caution is to be
exercised and a special case made out.”
225. After noticing the above proposition of law the Commission
proceeded to deal with the subject. In paragraph 234 the Commission
has noted the Constitution Bench judgment in M. Nagaraj & Ors. vs.
Union of India & Ors. (supra) observing that this Court has again
considered the aspect of ceiling of 50% reservation. The Commission,
however, proceeded with an assumption that in Nagaraj this Court has
ruled that for relaxation, i.e., 50%, there should be quantifiable and
contemporary data. We may notice the exact words of the Commission
in paragraph 234 which is to the following effect:
“The Honourable the Supreme Court has again considered this
aspect of ceiling of 50% reservation in its next decision in M.
Nagaraj & Ors. v. Union of India & Ors. Reported in (2006)
8 SCC 212, wherein the Honourable the Supreme Court
considered the validity of inserted clauses (4A) and (4B) by way
of amendment to Article 16 of the Constitution. However, in
Nagaraj, the Honourable the Supreme Court has ruled that for
the relaxation i.e. a ceiling of 50% there should be quantifiable
and contemporary data (Emphasis supplied).”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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226. The above view has again been reiterated by the Commission
n paragraph 235 to the following effect:
“235.......However, it is seen from Nagaraj that ceiling of
50% reservation may be exceeded by showing quantifiable
contemporary data relating to backwardness as required by Clause
(4) of Article 15 and Clause (4) of Article 16 of the Constitution.”
227. From the above, it is clear that the Commission read the
Constitution Bench judgment of this Court in Nagaraj laying down that
ceiling of 50% reservation may be exceeded by showing quantifiable
contemporary data relating to the backwardness. The above reading of
Constitution Bench judgment by the Commission was wholly incorrect.
We may again notice the judgment of M. Nagaraj in the above respect.
M. Nagaraj was a case where Constitution (Eighty-fifth Amendment)
Act, 2001 inserting Article 16(4A) was challenged on the ground that
the said provision is unconstitutional and violative of basic structure.
Article 16(4A) which was inserted by the above Amendment provides:
“Article 16(4A). Nothing in this Article shall prevent the
State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of
posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.”
228.  The
Constitution Bench proceeded to consider the submission
raised by the petitioner challenging the constitutional validity of the
constitutional provision. The Constitution Bench in Nagaraj has noticed
the maximum limit of reservation in paragraphs 55 to 59. The Constitution
Bench held that majority opinion in Indra Sawhney has held that rule of
50% was a binding rule and not a mere rule of prudence. Paragraph 58
of the Constitution Bench judgment in Nagaraj is as follows:
“58. However, in Indra Sawhney [1992 Supp (3) SCC
217 the majority held that the rule of 50% laid down in Balaji [AIR
1963 SC 649] was a binding rule and not a mere rule of prudence.”
229. In paragraph 107, the Constitution Bench observed:
“107....If the State has quantifiable data to show
backwardness and inadequacy then the State can make
reservations in promotions keeping in mind maintenance of
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efficiency which is held to be a constitutional limitation on the
discretion of the State in making reservation as indicated by Article
335.....”
230.  The Constitution Bench noted its conclusion in paragraphs
121, 122 and 123. In paragraph 123 following has been laid down:
“123. However, in this case, as stated above, the main issue
concerns the “extent of reservation”. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision
is an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has
to collect quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public
employment in addition to compliance with Article 335. It is made
clear that even if the State has compelling reasons, as stated above,
the State will have to see that its reservation provision does not
lead to excessiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.”
231.  The Constitution Bench in paragraph 123 held that provision
of Article 16(4A) is an enabling provision and State is not bound to make
reservation for Scheduled Castes
and Scheduled Tribes in the matters
of promotion and however, if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation.
232. The above observation regarding quantifiable data was in
relation to enabling power of the State to grant reservation in promotion
to the Scheduled Caste and Scheduled Tribes. It is further relevant to
notice that in the last sentence of paragraph 123 it is stated: “It is made
clear that even if the State has compelling reasons, as stated above, the
State will have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling limit of 50% or obliterate the
creamy layer or extend the reservation indefinitely”.
233. The Constitution Bench, thus, in the above case clearly laid
down that even reservation for promotion, ceiling of 50% limit cannot be
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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breached. The Commission has completely erred in understanding the
ratio of the judgment, when the Commission took the view that on the
quantifiable data ceiling of 50% can be breached. There is no such ratio
laid down by this Court in M. Nagaraj. Hence, the very basis of the
Commission to proceed to examine quantifiable data for exceeding the
limit of 50% is unfounded.
234. Paragraph 236 of the Report of the Commission contains a
heading “QUANTIFIABLE DATA”. It is useful to extract the entire
paragraph 236 which is to the following effect:
“QUANTIFIABLE DATA:
 236. As per the Census of the year 2011 population of
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra is 11,81% and 9.35% respectively. The percentage
of Backward Classes, Maratha and Kunbi, have not been found
to have been specified in the Census of the year 2011. On the
instructions of the Government of Maharashtra, the Gokhale
Institute of Politics and Economics, Pune, conducted Socio-
Economic Caste Census. It was the survey of rural population in
the State of Maharashtra. On the detailed survey the Gokhale
Institute of Politics and Economics recorded the findings on specific
percentage of the Maratha community with Kunbi community as
35.7%. Percentage of all the reserved Backward Classes to be
48.6%. The percentage of other Classes or the population, who
have not disclosed their castes, is shown to be 15.7%, From this
survey report
though it relates to the rural area, total percentage
of the exiting Backward Classes, Maratha and Kunbi, who claim
to be backward, comes to 48.6% plus 35.7% equivalent to 84.3%
of the total population. There is no dispute that large population of
the Maratha and Kunbi castes as well as existing Backward
Classes are inhabitants of the rural areas. 48.6% population of
the existing reserved category including Scheduled Castes,
Scheduled Tribes and all Backward Classes have been already
identified as socially and educationally backward. The Maratha
caste has been identified socially, educationally and economically
backward by this Commission. So as total 84.3% population can
be said to be of backward classes.”
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235. Regarding the above noted quantifiable data, the Commission
has recorded its reasons for reservation under Article 15(4) and 16(4) in
paragraph 259. We extract here paragraph 259 to the following effect:
“259. To sum up this Commission already found above on
appreciation of evidence collected/produced before it that 80% to
85% of the population in the State of Maharashtra is backward.
According to this Commission to accommodate the 80% to 85%
backward Population within a ceiling of 50% will be injustice to
them and as such it would frustrate the very purpose of the
reservation policy arising out of Article 15 and Article 16 of the
Constitution. In the considered opinion of this Commission, this is
the extra ordinary situation, which has been mentioned in the 2nd
Term of Reference and as required by Indra Sawhney. 80% to
85% backward population adverted to above speaks about
quantifiable contemporary data, vide Nagaraj. If, accordingly,
ceiling of 50% increased efficiency in administration could not be
affected because all of them would compete. This Commission
record facts findings that as required by the 2nd Term of Reference
there are not only exceptional circumstances but also extra ordinary
situations, which need to be applied for the grant of the reservation
in the present context in view of Clause (4) of Article 15 and
Clause (4) of Article 16 of the Constitution.) This will enable the
Government of Maharashtra to make special provision for the
advancement of the Maratha community, which is certainly socially
and educationally backward class and ultimately that will enable
the Government of Maharashtra to make provision for reservation
of appointment or posts in favour of the Maratha community in
the services under the State.”
236. It is clear that the entire basis of the Commission to exceed
50% limit is that since the population of backward class is between 80%
to 85%, reservation to them within the ceiling 50% will be injustice to
them.
237. We may revert back to paragraph 810 where Indra Sawhney
has given illustration which illustration is regarding certain extra-ordinary
situations. The exact words used in paragraph 810 are:
“It might happen that in far flung and remote areas the
population inhabiting those areas might, on account of their being
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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out of the main stream of national life and in view of conditions
peculiar to and characteristical to them, need to be treated in a
different way, some relaxation in this strict rule may become
imperative. In doing so, extreme caution is to be exercised and a
special case made out.”
238. Shri Rohtagi had submitted that the test laid down in paragraph
810 is only geographical test which was an illustration. It is true that in
Indra Sawhney the expression used was “far flung and remote areas”
but the social test which was a part of the same sentence stated “the
population inhabiting those areas might, on account of their being out of
the main stream of national life and in view of conditions peculiar to and
characteristical to them”. Thus, one of the social conditions in paragraph
810 is that being within the main stream of National Life, the case of
Maratha does not satisfy the extra-ordinary situations as indicated in
paragraph 810 of Indra Sawhney. The Marathas are in the main stream
of the National Life. It is not even disputed that Marathas are politically
dominant caste.
239. This Court in several judgments has noticed that what can
be the extra-ordinary situations as contemplated in paragraph 810 in
few other cases. We have referred above the three-Judge Bench judgment
in Union of India and others vs. Rakesh Kumar and others, (2010)
4 SCC 50, where three-Judge Bench held that exceptional case of 50%
ceiling can
be in regard to Panchayats in scheduled areas. The above
three-Judge Bench has also been approved and reiterated by the
Constitution Bench of this Court in K.K. Krishnamurthi (supra). In
the above cases this Court was examining the reservation in Panchayats.
In the context of Part IX of the Constitution, 50% ceiling principle was
applied but exception was noticed.
240. In the above context, we may also notice the paragraph 163
of the impugned judgment of the High Court where the High Court has
also come to the conclusion that the Maratha has made out a case of
extra-ordinary situation within the meaning of paragraph 610 of Indra
Sawhney’s case. The High Court in paragraph 163 of judgment made
following observation:
“163...We would curiously refer to the reports, which would
disclose that it is for the first time in form of Gaikwad Commission
the quantifiable data has been collected and in terms of Nagaraj,
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the quantifiable data, inadequacy of representation are two key
factors which would permit exceeding of reservation of 50% by
the State. ….”
241. The High Court has endorsed the opinion of the Commission
that when the population of backward class is 85% if they would get
only 50%, it would not be valid. In paragraph 165 of the impugned
judgment following is the opinion of the High Court:
“165....The percentage of other classes of population who
have not disclosed their caste have been shown to be 15.7%. The
Commission therefore concludes that though the survey report
relates to rural area, the total percentage of existing backward
classes, Maratha and kunbi, who claim to be backward comes to
48.6% + 35.7%, equivalent to 84.3% of the total population. The
Commission has also made a reference to the census of the year
1872 which calculates the population of Shudras and the census
report of 1872 from which the position emerge that more than
80% population was found backward in the census of 1872. The
commission categorizes this as an extra-ordinary situation since
the majority of the unequals are living with the minority of the
equals. The figures available on record on the basis of 2011 census
disclose that the State population is about 11.24 crores out of which
3,68,83,000 is the population of OBC (VJNT, OBC SBC) The
statistics of Ministry of Social Justice and Empowerment,
Government of India has given the State wise percentage of OBCs
in India and for
Maharashtra it is 33.8% whereas SC-ST is 22%.
The Gaikwad commission has patil-sachin. ::: Uploaded on - 27/
06/2019 ::: Downloaded on - 05/04/2021 16:43:36 ::: 433 Marata(J)
final.doc therefore deduced that the population of Marathas is
30%. Therefore, in terms of the population, if we look at the figures
then the situation which emerges is that almost 85% of the
population is of the backward classes and to suggest that if 85%
of people are backward and they get only a reservation of 50%, it
would be traversity of justice. When we speak of equality – equality
of status and opportunity, then whether this disparity would be
referred to as achieving equality is the moot question. The situation
of extra-ordinary circumstances as set out though by way of
illustration in Indra Sawhney would thus get attracted and the
theme of the Indian Constitution to achieve equality can be attained.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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Once we have accepted that the Maratha community is a
backward class, then it is imperative on the part of the State to
uplift the said community and if the State does so, and in extra
ordinary circumstances, exceed the limit of 50%, we feel that this
is an extra ordinary situation to cross the limit of 50%.”
242.  Again at page 453 of the judgment, the High Court reiterated
that extra-ordinary situations have been culled out by the report since
backward class is 85%, Maratha being 30%. Treating above to be extra-
ordinary situation following observations have been made in paragraph
170:
“170...The extra-ordinary situations have been culled out
as the report has declared that Maratha community comprise 30%
of the population of the State and this figure is derived on the
basis of quantifiable data. The extra-ordinary situation is therefore
carved out for awarding an adequate representation to the Maratha
community who is now declared socially, educationally and
economically backward. Based on the population of 30%,
Commission has arrived at a conclusion that the total percentage
of State population which is entitled for the constitutional benefits
and advantages as listed under Article 15(4) and Article 16(4)
would be around 85% and this is a compelling extra-ordinary
situation demanding extra-ordinary solution within the constitutional
framework. ...”
243. From the above, it is clear that both the Commission and the
High Court treated the extra-ordinary situations with regard to exceeding
50% for granting separate reservation to Maratha, the fact that population
of backward class is 85% and reservation limit is only 50%. The above
extra-ordinary circumstances as opined by the Commission and approved
by the High Court is not extra-ordinary situation as referred to in
paragraph 810 of Indra Sawhney judgment. The Marathas are dominant
forward class and are in the main stream of National life. The above
situation is not an extra-ordinary situation contemplated by Indra
Sawhney judgment and both Commission and the High Court fell in
error in accepting the above circumstances as extra-ordinary
circumstance for exceeding the 50 % limit. At this stage, we may notice
that what was said by Dr. Ambedkar in the Constituent Assembly debates
dated 30.11.1948 while debating draft Article 10/3 (Article 16(4) of the
Constitution). Dr. Ambedkar by giving an illustration said :
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 “Supposing, for instance, we were to concede in full the
demand of those communities who have not been so far employed
in the public services to the fullest extent,what would really happen
is, we shall be completely destroying the first proposition upon
which we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance,
reservations were made for a community or a collection of
communities, the total of which came to something like 70 per
cent. of the total posts under the State and only 30 per cent. are
retained as the unreserved. Could anybody say that the reservation
of 30 per cent. As open to general competition would be
satisfactory from the point of view of giving effect to the first
principle, namely, that there shall be equality of opportunity? It
cannot be in my judgment. Therefore the seats to be reserved, if
the reservation is to be consistent with sub-clause (1) of Article
10, must be confined to a minority of seats. It is then only that the
first principle could find its place in the Constitution and effective
in operation.” 
244. The illustration given by Dr. Ambedkar that supposing 70%
posts are reserved and 30% may retain as unreserved, can anybody say
that 30% as open to general competition would be satisfactory from
point of view of giving effect to the first principle of equality, the answer
given by Dr. Ambedkar was in negative. Thus, Constituent Assembly by
giving
illustration has already disapproved principle which is now
propounded by the High Court. We cannot approve the view of the High
court based on the same view taken by the Commission.
245. In view of the foregoing discussion, we are of the considered
opinion that neither the Gaikwad Commission’s report nor the judgment
of the High Court has made out an extra-ordinary situation in the case of
Maratha where ceiling of 50% can be exceeded. We have already noticed
the relevant discussion and conclusion of the Commission in the above
regard and we have found that the conclusions of the Commission are
unsustainable. We, thus, hold that there is no case of extra-ordinary
situation for exceeding the ceiling limit of 50% for grant of reservation
to Maratha over and above 50% ceiling of reservation.
(10)Whether the Act, 2018, as amended in 2019 granting
separate reservation for Maratha Community by exceeding
ceiling of 50 percent makes out exceptional circumstances
as per the judgment of Indra Sawhney case?
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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246. We have noticed above the provisions of the 2018 Act. In
Section 2(j), the Maratha Community has been declared and included in
the educationally and socially backward category and under Section 4(1),
16 percent (12 percent as per 2019 Amendment Act) of the total seats in
educational institutions including private educational institutions, other
than minority educational institutions are reserved and 16 percent (13
percent as amended by 2019 Act) of total appointment in direct
recruitment in public services and posts. Section 3(4) has further made
it clear that nothing in the Act shall effect the reservation provided to
other backward classes under 2001 Act and 2006 Act. The legislative
history of 2018 enactment is necessary to be noticed to find out the
objects and reasons for the enactment.
247. We have noted in detail various reports of National Backward
commissions as well as State Backward Commissions which have
repeatedly rejected the claim of Maratha to be included in Other
Backward Communities. After receipt of Bapat Commission Report
which rejected the claim of Maratha to be Other Backward Classes, the
State Government appointed a Committee under the chairmanship of a
sitting Minister i.e. Narayan Rane Committee. On the basis of said Rane
Committee report, the State enacted 2014, Act, constitutional validity of
which Act was challenged in the High Court and was stayed by the
High Court vide its order
dated 07.04.2015. During pendency of the writ
petition, the State Government made a reference to the Maharashtra
Backward Class Commission in June, 2017 and one of the term of the
Reference was to the following effect: -
“ii) defines the exceptional circumstances and extraordinary
situations applied for the benefits of the reservation in the
contemporary scenario.”
248. The Maharashtra Backward Class Commission submitted
its report in 15.11.2018, which report became the basis for 2018 enactment.
249. The Statements of objects and reasons for 2018 enactment
have been published in the Maharashtra Government Gazette dated
29.11.2018 publishing the bill No. 78(LXXVIII) of 2018. Paragraph 6 of
the Statement of object and reasons notices the earlier 2014 Act and the
stay by the High Court and further reference to the Commission.
Paragraph 6 of the Statement of objects and reasons is as follows:-
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“6. Thereafter, the Maharashtra State Reservation (of seats
for admission in educational institutions in the State and for
appointments or posts in the public services under the State) for
Educationally and Socially Backward Category (ESBC) Act, 2014
(Mah.I of 2015), for converting the said Ordinance into an Act of
the State Legislature, was enacted on 9th January 2015. However,
the Constitutional validity of the said Act has been challenged
before the Hon’ble High Court. The Hon’ble High Court has stayed
the implementation of the said Act on 7th April, 2015.
Thereafter, the State Government has requested the
Maharashtra Backward Classes Commission in june 2017, to,-
(i)
Determine Contemporary Criteria and parameters to be
adopted in ascertaining the social, educational and
economic backwardness of Marathas for extending
benefit of reservation under the constitutional provision
keeping in focus the various judgments of the courts,
reservation laws and constitutional mandate;
(ii)
Define the exceptional circumstances and extra ordinary
situation applied for the benefits of reservation in the
contemporary scenario;
(iii)
Scrutinize and inspect the quantifiable data and other
information which the State has submitted to Hon. Court
to investigate the backwardness of Maratha Community;
(iv)
Determine the representation of Marathas in the State
Public Employment;
(v)
Ascertain the proportion of the population of the Maratha
Community in the State by collecting
the information
available under various sources.”
250. Paragraph 8 of the Statement of objects and reasons further
states that the Commission has submitted its report to the State
Government on 15.11.2018. Paragraph 8 refers to the conclusion and
the findings of the Commission. The conclusions and findings of the
Commission have been noticed in paragraph 8 of the Statement of Objects
and reasons.
251. The report of the Maharashtra State Backward Class
Commission dated 15.11.2018 became the basis for granting separate
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reservation to the Maratha community by exceeding the 50 percent ceiling
limit. We have already in detail has dealt the report of the Commission
especially Chapter 10 where Commission dealt with extraordinary
situation.
252. The Government after considering the report, its conclusion
and findings and recommendations formed the opinion for giving separate
reservation to the Maratha community as socially and educationally
backward classes (SEBC). Paragraph 9 of the statement of objects and
reasons is as follows: -
“9. The Government of Maharashtra has considered the
report, conclusions, findings and recommendations of the said
Commission. On the basis of the exhaustive study of the said
Commission on various aspects regarding the Marathas, like public
employment, education, social status, economical status, ratio of
population, living conditions, small size of land holdings by families,
percentage of suicide of farmers in the State, type of works done
for living, migration of families, etc., analysed by data, the
Government is of opinion that,-
(a)
The Maratha Community is socially and educationally
backward and a backward class for the purposes of
Article 15(4) and (5) and Article 16(4), on the basis
of quantifiable data showing backwardness,
inadequacy in representation by the said Commission;
(b)
Having regard to the exceptional circumstances and
extraordinary situation generated on declaring
Maratha as socially and
educationally backward and
their consequential entitlement to the reservations
benefits and also having regard to the backward class
communities already included in the OBC list, if
abruptly asked to share their well established
entitlement of reservation with a 30% of Maratha
citizenry, it would be a catastrophic scenario creating
an extraordinary situation and exceptional
circumstances, which if not swiftly and judiciously
addressed, may lead to unwarranted repercussions
in the well harmonious co-existence in the State, it is
expedient to relax for the percentage of reservation
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by exceeding the limit of 50%, for advancement of
them, without disturbing the existing fifty-two percent
reservation currently applicable in the State, only for
those who are not in creamy layer;
(c)
It is expedient to provide for 16 percent of reservation
to such category;
(d)
It is expedient to make special provision, by law, or
the advancement of any Socially and Educationally
Backward Classes of Citizens, in so far as admission
to educational institutions, other than the minority
educational institutions, is concerned but such special
provisions shall not include the reservation of seats
for election to the Village Panchayat Samitis, Zilla
Parishads, Municipal Councils, Municipal
Corporations, etc;
(e)
It is expedient to provide for reservation to such
classes in admissions to educational institutions
including private educational institutions whether
aided or unaided by the State, other than minority
educational institutions referred to in clause (1) of
Article 30 of the Constitution; and in appointments in
public services and posts under the State, excluding
reservations in favour of Scheduled Tribes candidates
in the Scheduled Areas of the State under the Fifth
Schedule to the Constitution of India, as per the
notification issued on the 9th June 2014 in this behalf;
(f)
By providing reservation to the Maratha Community,
the efficiency in administration will not be affected,
since the Government is not diluting the standard of
educational
qualification for direct recruitment for this
classes and there will definitely be competition
amongst them for such recruitment; and
(g)
To enact a suitable law for the above purposes.
In view of the above, the State Government is
of the opinion that the persons belonging to such
category below the Creamy layer need special help
to advance further, in the contemporary period, so
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that they can move to a stage of equality with the
advanced sections of the society, wherefrom they
can proceed on their own.”
253. The statement and object of the bill clearly indicates that the
State has formed the opinion on the basis of the report of the Commissions
and had accepted the reasons given by the Commission holding that
extraordinary circumstances for exceeding the ceiling limit is made out.
We have already in detail analyze and noticed the report of the
Commission and have held that no extraordinary circumstances have
been made out on the basis of reasoning given in the report. While the
foundation itself is unsustainable, the formation of opinion by the State
Government to grant separate reservation to the Marathas exceeding
50 percent limit is unsustainable.
254. It is well settled that all legislative Act and executive acts of
the Government have to comply with the Fundamental Rights. The State’s
legislative or any executive action passed in violation of Fundamental
Rights is ultra vires to the Constitution. The 50 percent ceiling limit for
reservation laid down by Indra Sawhney case is on the basis of principle
of equality as enshrined in Article 16 of the Constitution. In paragraph
808, Indra Sawhney laid down: -
“808. It needs no emphasis to say that the principle aim
of Article 14 and 16 is equality and equality of opportunity and
that Clause (4) of Article 16 is but a means of 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 restatements 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 Article 16 which is a guarantee held
out to every citizen and to the entire society. It is relevant to point
out that Dr. Ambedkar himself contemplated reservation being
“confined to a minority of seats” (See his speech in Constituent
Assembly, set out in para 28). No other member of the Constituent
Assembly suggested otherwise. It is, thus clear that reservation
of a majority of seats was never envisaged by the founding fathers.
Nor are we satisfied that the present context requires us to depart
from that concept.”
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255. The Constitution Bench of this Court in M. Nagaraj (Supra)
has reiterated that ceiling limit on reservation fixed at 50 percent is to
preserve equality. In paragraphs 111 and 114, following was laid down: -
“111. The petitioners submitted that equality has been
recognized to be a basic feature of our Constitution. To preserve
equality, a balance was struck in Indra Sawhney so as to ensure
that the basic structure of Articles 14, 15 and 16 remains intact
and at the same time social upliftment, as envisaged by the
Constitution, stood achieved. In order to balance and structure
the equality, a ceiling limit on reservation was fixed at 50% of the
cadre strength; reservation was confined to initial recruitment and
was not extended to promotion...
114. In Indra Sawhney, the equality which was protected
by the rule of 50%, was by balancing the rights of the general
category vis-à-vis the rights of BCs en bloc consisting of OBCs,
SCs and STs...”
256. We have found that no extraordinary circumstances were
made out in granting separate reservation of Maratha Community by
exceeding the 50 percent 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 exceptional circumstances clearly
violates Article 14 and 16 of the Constitution which makes the enactment
ultra vires.
257. We thus conclude that the Act, 2018 as amended in 2019,
granting separate
reservation for Maratha community has not made out
any exceptional circumstances to exceed the ceiling of 50 percent
reservation.
(11) Gaikwad Commission Report – a scrutiny
258. Shri Pradeep Sancheti, learned senior counsel, appearing for
the appellant elaborating his submissions has questioned the Gaikwad
Commission’s Report on numerous grounds. Shri Patwalia, learned senior
counsel, appearing for the State of Maharashtra has refuted the challenge.
259. Shri Sancheti submits that judicial scrutiny of a quantifiable
data claimed by the State is an essential constitutional safeguard. He
submits that though the Court has to look into the report with judicial
deference but judicial review is permissible on several counts. A report
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which violates the constitutional principle and rule of law can very well
be interfered with in exercise of judicial review. Shri Sancheti submits
that three National Backward Classes Commissions as well as three
State Backward Classes Commissions for the last 60 years have
considered the claim of Marathas to be included in Other Backward
Community which claim was repeatedly negatived. He submits that the
report of National Backward Classes Commissions and State Backward
Classes Commissions could not have been ignored by Gaikward
Commission in the manner it has dealt with the earlier reports. Shri
Sancheti submits that the National Backward Classes Commission as
well as the State Backward Classes Commission considered the
contemporaneous data and came to a conclusion at a particular time.
Gaikward Commission which was appointed in 2017 had no jurisdiction
to pronounce that Maratha was backward community from the beginning
and all earlier reports are faulty. Shri Sancheti submits that Maratha
community is a most dominant community in the State of Maharashtra
weilding substantial political power. The majority of Legislature belongs
to Maratha community, out of 19 Chief Ministers of the Maharashtra
State, 13 Chief Ministers were from Maratha community. Out of 25
Medical Colleges in Maharashtra 17 Medical Colleges are founded/
owned by the people belonging to Maratha community. In 24 of the 31
District Central
Cooperative Banks are occupied by the persons from
Martha community. Out of the functioning 161 Cooperative Sugar
Factories in Maharashtra, in 86 Sugar Factories persons from Maratha
community are the Chairman. The Class which is politically so dominant,
cannot be said to be suffering from social backwardness.
260. Shri Sancheti further submits that survey by the Commission,
data result, analysis therein suffers from various inherent flaws. The
sample survey conducted by the Commission is unscientific and cannot
be taken as respective sample. The sample size is very small. Only 950
persons were surveyed from Urban areas. He submits that Commission
was loaded with members belonging to the Maratha community. The
Agency for survey (Data collections) was selected without tendering
process. Out of five organisations that conducted the survey two were
headed by persons from Maratha community. The Maratha community
has adequate representation in public service which fact is apparent
from data collected by the Commission itself. On the basis of data
collection by the Commission no conclusion could have been arrived
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that Maratha community is not adequately represented in services in the
State.
261. Shri Patwalia refuting the submissions of the learned counsel
for the appellant submits that Gaikwad Commission has considered
conclusions arrived by all earlier Commissions and thereafter it had
recorded its conclusion. The Commission before proceeding further has
laid down procedure for investigation. The Commission decided to conduct
survey as to collect information in respect of the social and educational
backwardness. The Commission has surveyed to collect information of
all families in two villages in each District and the Commission decided
to collect information by selecting one Municipal Corporation and one
Municipal Council from each of six regions of the State of Maharashtra.
For the purpose of sample survey five different Agencies have been
nominated. The Commission also conducted public hearing, collected
representations from persons, numbering 195174. Out of representations,
193651 persons are in favour of reservation to Maratha whereas 1523
were in favour of reservation of Maratha community by creating separate
percentage. The Commission also recorded evidence, obtained
information from the Government departments and other organisations,
Universities and after fixing parameters allocated 10 marks for socially
backward class, 8 marks out of 25 marks has been allocated for
educational backwardness, 7 marks to the economically backward class
and after following
the marking system held that Maratha community
has obtained more that 12.5 marks and has satisfied that it is socially,
educationally and economically backward class. 784 resolutions of Gram
Panchayats were in favour of granting reservation of OBC. It is submitted
that the representation of Maratha community in the public services is
not equivalent to their population which is 30%. Hence, they were entitled
to separate reservation to make their representation as per their
population.
262. Shri Patwalia further submits that scope of judicial review of
a report of the Commission is too limited. This Court shall not substitute
its opinion in place of the opinion arrived by the Commission. He submits
that parameters of judicial review have been laid down in Indra
Sawhney’s case. The Court shall not sit in appeal over the opinion of
experts. The report of Gaikwad Commission is based on sample study
of Maratha community. It is on the basis of the report of the Gaikwad
Commission that State Government formed opinion that Maratha
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community is a socially and educationally backward class and deserves
a separate reservation in recognition of their legitimate claim. Inclusion
of Maratha community in already existing OBC community for whom
19% reservation is allowed shall have adverse effect on the OBC who
are already enjoying the reservation, hence decision was taken to grant
separate reservation.
263. We have considered the submissions of the parties and
perused the records. Before proceeding further, we need to notice the
parameters of judicial review in such cases.
264. We may first notice the Constitution Bench judgment of this
Court in M.R. Balaji vs. The State of Mysore and others, AIR (1963)
SC 649. In the above case, this Court had occasion to consider Nagan
Gowda Committee which has submitted a report in 1961 and made a
recommendation for reservation. In pursuance of the report, the State
of Mysore had issued an order dated 31.07.1961 deciding to reserve
15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50%
for backward class totaling to 68% of seats available for admission to
the Engineering and Medical Colleges and to other technical institutions
in the State. The Constitution Bench elaborated the extent of judicial
review to an executive action. In paragraph 35 of the judgment, the
Constitution Bench laid down following:
“35. The petitioners contend that having regard to the infirmities
in the impugned order, action of
the State in issuing the said order
amounts to a fraud on the Constitutional power conferred on the
State by Article 15(4). This argument is well-founded, and must
be upheld. When it is said about an executive action that it is a
fraud on the Constitution, it does not necessarily mean that the
action is actuated by mala fides. An executive action which is
patently and plainly outside the limits of the constitutional authority
conferred on the State in that behalf is struck down as being ultra
vires the State’s authority. If, on the other hand, the executive
action does not patently or overtly transgress the authority
conferred on it by the Constitution, but the transgression is covert
or latent, the said action is struck down as being a fraud on the
relevant constitutional power. It is in this connection that courts
often consider the substance of the matter and not its form and in
ascertaining the substance of the matter, the appearance or the
cloak, or the veil of the executive action is carefully scrutinized
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and if it appears that notwithstanding the appearance, the cloak
or the veil of the executive action, in substance and in truth the
constitutional power has been transgressed, the impugned action
is struck down as a fraud on the Constitution. ….”
264(a). From the above, it is clear that what was emphasised by
the Court is that it is the substance of the matter which has to be examined
and not its form, appearance, or the cloak, or the veil of the executive
action has to be carefully scrutinised.
265. The next judgment which we need to notice is the judgment
of this Court in The State of Andhra Pradesh and others vs. U.S.V.
Balram, etc., (1972) 1 SCC 660. The above case is also on basis of
the Commission’s report. The Commission for the backward classes in
the State of Andhra Pradesh appointed by the State Government
submitted a report. The High Court held the enumeration of the backward
classes as well as reservation invalid. The State of Andhra Pradesh filed
the appeal. The grounds of challenge were noticed in Paragraph 77 of
the judgment. In paragraph 83-A of the judgment this Court observed:
that the question to be answered is whether the materials relied in the
report are not adequate or sufficient to support its conclusion. Following
have been laid down in paragraph 83-A:
“83-A. … But, in our opinion, the question is whether on the
materials collected by the Commission and referred to in its report,
can it be stated that those materials are not
adequate or sufficient
to support its conclusion that the persons mentioned in the list as
Backward Classes are socially and educationally backward? ....
...Therefore, the proper approach, in our opinion, should be to see
whether the relevant data and materials referred to in the report
of the Commission justify its conclusions. ….”
266.  Thus, one of the parameters of scrutiny of a Commission’s
report is that whether on the basis of data and materials referred to in
the report whether conclusions arrived by the Commission are justified.
267. In Indra Sawhney, one of the questions framed by the
Constitution Bench to answer was question No.9, which is to the following
fact:
“9. Whether the extent of judicial review is restricted with
regard to the identification of Backward Classes and the
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percentage of reservations made for such classes to a demonstrably
perverse identification or a demonstrably unreasonable
percentage?”
268.  In paragraph 842 of Indra Sawhney following was laid
down:
“842. It is enough to say on this question that there is no
particular or special standard of judicial scrutiny in matters arising
under Article 16(4) or for that matter, under Article 15(4). The
extent and scope of judicial scrutiny depends upon the nature of
the subject-matter, the nature of the right affected, the character
of the legal and constitutional provisions applicable and so on.
The acts and orders of the State made under Article 16(4) do not
enjoy any particular kind of immunity. At the same time, we must
say that court would normally extend due deference to the judgment
and discretion of the executive — a co-equal wing — in these
matters. .....”
269. In paragraph 798, it was held by the Constitution Bench in
Indra Sawhney that opinion formed with respect to grant of reservation
is not beyond judicial scrutiny altogether. The Constitution Bench referred
to an earlier judgment of this Court in Barium Chemicals v. Company
Law Board, AIR 1967 SC 295. In the above regard paragraph 798 is
extracted for ready reference:
“798. …It does not, however, mean that the opinion formed
is beyond judicial scrutiny altogether. The scope and reach of
judicial scrutiny in matters within subjective satisfaction of the
executive
are well and extensively stated in Barium
Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR
1967 SC 295] which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of a
constitutional provision like Article 16(4) which expressly places
the particular fact (inadequate representation) within the subjective
judgment of the State/executive.”
270. Indra Sawhney having referred to the judgment of this Court
in Barium Chemicals (supra) for the scope and reach of judicial
scrutiny. We need to refer the test enunciated in Barium Chemicals.
The Constitution Bench in Barium Chemicals had occasion to consider
the expression “if in the opinion of the Central Government occurring in
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Section 237 of Companies Act, 1956”. Justice Hidayatullah laid down
that no doubt the formation of opinion is subjective but the existence of
the circumstances relevant to the inference as the sine quo non for action
must be demonstrable. Following observations were made in paragraph
27:
“27. …No doubt the formation of opinion is subjective but the
existence of circumstances relevant to the inference as the sine
qua non for action must be demonstrable. If the action is questioned
on the ground that no circumstances leading to an inference of
the kind contemplated by the section exists, the action might be
exposed to interference unless the existence of the circumstances
is made out. As my brother Shelat has put it trenchantly:
“It is not reasonable to say that the clause permitted the
Government to say that it has formed the opinion on circumstances
which it thinks exist….”
Since the existence of “circumstances” is a condition
fundamental to the making of an opinion, the existence of the
circumstances, if questioned, has to be proved at least prima facie.”
271. Justice Shelat with whom Justice Hidayatullah has agreed in
paragraph 63 laid down following:
“63. .....Therefore, the words, “reason to believe” or “in the opinion
of” do not always lead to the construction that the process of
entertaining “reason to believe” or “the opinion” is an altogether
subjective process not lending itself even to a limited scrutiny by
the court that such “a reason to
believe” or “opinion” was not
formed on relevant facts or within the limits or as Lord Redcliff
and Lord Reid called the restraints of the statute as an alternative
safeguard to rules of natural justice where the function is
administrative.”
272. Dr. Rajiv Dhavan, learned senior counsel, during his
submission has contended that Indra Sawhney in its judgment has relied
on a very weak test. He contended that the constitutional reservations
are required to be subjected to strict scrutiny tests.
273. We may also notice two-Judge Bench judgment of this Court
in B.K. Pavitra and others vs. Union of India and others, (2019)
16 SCC 129, where this Court had after referring to earlier judgment
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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laid down that Committee/commission has carried out an exercise for
collecting data, the Court must be circumspect in exercising the power
of judicial review to re-evaluate the factual material on record.
274. We may also notice a recent judgment of this Court in Mukesh
Kumar and another vs. State of Uttarakhand and others, (2020) 3
SCC 1, in which one of us Justice L. Nageswara Rao speaking for
the Bench laid down following in paragraph 13:
“13. .....The Court should show due deference to the opinion of
the State which does not, however, mean that the opinion formed
is beyond judicial scrutiny altogether. The scope and reach of
judicial scrutiny in matters within the subjective satisfaction of the
executive are extensively stated in Barium Chemicals
Ltd. v. Company Law Board [Barium Chemicals Ltd. v. 
Company Law Board, AIR 1967 SC 295] , which need not be
reiterated.”
275. The grant of reservation under Article 15(4) or 16(4) either
by an executive order of a State or legislative measures are Constitutional
measures which are contemplated to fulfill the principle of equality. The
measures taken under Article 15(4) and 16(4) thus, can be examined as
to whether they violate any constitutional principle, 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. It
is true that the Court has to
look into the report of the Commission or Committee with deference but
scrutiny to the extent as to whether any constitutional principle has been
violated or any constitutional requirement has not been taken into
consideration is fully permissible. As laid down in V. Balram case (supra)
the judicial scrutiny is also permissible as to whether from the material
collected by the Commission or committee the conclusion on which the
Commission has arrived is permissible and reasonable. We are conscious
of the limitation on the Court’s scrutiny regarding factual data and
materials collected by the Court. We without doubting the manner and
procedure of collecting the data shall proceed to examine the report on
the strength of facts, materials, and data collected by the Commission.
(12)Whether the data of Marathas in public employment as
found out by Gaikwad Commission makes out cases for grant
of reservation under Article 16(4) of the Constitution of India
to Maratha community?
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276. The reservation under Article 16(4) of the Constitution is
enabling power of the State to make any provision for reservation of
appointment or posts in favour of other backward class of citizens who
in the opinion of the State is not adequately represented in the services
under the State. The conditions precedent for exercise of power under
Article 16(4) is that the backward class is not adequately represented in
the services under the State.
277. The Constitution Bench of this Court in Indra Sawhney
while elaborating on Article 16(4) has held that clause (4) of Article 16
speaks of adequate representation and not proportionate representation
in paragraph 807: -
“807. We must, however, point out that clause (4) speaks
of adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Article 330 and 332 of the Constitution and that
too for a limited period. These articles speak of reservation of
seats in Lok Sabha and the State legislatures in favour of Scheduled
Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore
not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the
total population would certainly be relevant...”
278. The objective behind clause (4) of Article 16 is
sharing the
power by those backward classes of the society who had no opportunities
in the past to be part of the State services or to share the power of the
State. Indra Sawhney has noted the above objective in paragraph 694
of the judgment (by Justice Jeevan Reddy), which is to the following
effect: -
“694. The above 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
monopolized 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 there into 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
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empowerment of the deprived backward communities – to give
them a share in the administrative apparatus and in the governance
of the community.”
279. The State, when provides reservation under Article 16(4) by
executive action or by legislation, condition precedent, that the backward
class is not adequately represented in the service has to be fulfilled. The
Constitution Bench in M.Nagaraj (Supra) has laid down following in
paragraph 102:-
“102...If the appropriate Government enacts a law providing
for reservation without keeping in mind the parameters in Article
16(4) and Article 335 then this Court will certainly set aside and
strike down such legislation...”
280. Further in paragraph 107, M.Nagaraj laid down following:-
“107...As long as the boundaries mentioned in Article 16(4),
namely, backwardness, inadequacy and efficiency of
administration are retained in Articles 16(4-A) and 16(4-B) as
controlling factors, we cannot attribute constitutional invalidity to
these enabling provisions. However, when the State fails to identify
and implement the controlling factors then excessiveness comes
in, which is to be decided on the facts of each case. In a given
case, where excessiveness results in reverse discrimination, this
Court has to examine individual cases and decide the matter in
accordance with law. This is the theory of “guided power”. We
may once again repeat that equality is not violated by mere
conferment of
power but it is breached by arbitrary exercise of
the power conferred.”
281. 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 and they are to be enabled to share power of the State by
affirmative action. To be part of public service, as accepted by the Society
of today, is to attain social status and play a role in governance. The
governance of the State is through service personnel who play a key
role in implementing government policies, its obligation and duties. The
State for exercising its enabling power to grant reservation under Article
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16(4) has to identify inadequacy in representation of backward class
who is not adequately represented. For finding out adequate
representation, the representation of backward class has to be contrasted
with representation of other classes including forward classes. It is a
relative term made in reference to representation of backward class,
other caste and communities in public services. The Maratha community
is only one community among the numerous castes and communities in
the State of Maharashtra. The principal caste and communities in the
State of Maharashtra consists of Scheduled Castes/Scheduled Tribes,
de-notified tribes, nomadic tribes (B, C and D), special backward category
and other backward classes, general categories and the minorities.
282. A large number of castes and communities are included in
the above class of castes. We may refer to number of caste and
communities included in different groups. Few details are on the record:
SC (59), ST (47) and OBC (348).
283. The above details indicate that in a rough estimate in the
State of Maharashtra, there are more than 500 castes and communities
which are living in the State and earning their livelihood.
284. For identifying inadequacy of one particular class in public
services, a balance has to be struck by the State, objective being all
backward classes which include Scheduled Caste, Scheduled Tribe to
have representation in the public services. The State cannot take any
measure which violates
the balance. The expression ‘inadequacy’ has
to be understood in above manner.
285. Now we proceed to look into the report of Gaikwad
Commission which has separately in detail in Chapter IX dealt with the
subject “inadequacy of Marathas in the services under the State.”
286. The Commission in paragraph 214(b) of the report states: -
“214(b). The information regarding recruitment status of
all the Reserved Classes and Open Categories in the services
under the State has been sought from the State Government and
other state agencies...”
287. The Commission was well aware of the Constitutional
conditions stipulated to be complied by the State for reserving the posts
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in favour of backward class of citizens which is clear from what has
been stated in paragraph 215 which for ready reference is extracted as
below: -
“215. The three Constitutional conditions stipulated to be
compiled by State for reserving the posts in favour of any
Backward Class of Citizens in the Public Services under or
controlled by the State as also confirmed to be non-negotiable by
the judicial pronouncement from time to time are as under: -
i)
If such Backward Class is not adequately
represented in the services under the State.
ii)
The total reservation should not exceed 50%
unless there are extra ordinary and compelling
circumstances which should be demonstrated and
justified by a quantifiable data.
iii)
Such reservation should be consistent with the
maintenance of efficiency in the administration.”
288. The Commission from paragraph 214 to 219 have noticed
the various information received from the government and position of
different classes of society in open category and reserved category in
different services. Table A deals with strength of Marathas in
Government/Public Services/PRIs/ULBs in the State. Table B deals with
number of Marathas and others class and communities including open
category in Central services namely IAS, IPS, IFS and Table C deals
with position of employees and officers in Mantralaya Cadre. The tables
A and C enumerated the details grade wise from Grade-A to Grade-D.
We proceed to
examine the issue on the basis of facts and figures
compiled by the Commission obtained from State and other
sources. The figures compiled relates as on 01.08.2018. Figures having
obtained from the State, there is no question of doubting the facts and
figures compiled by the Commission.
289. Table A is part of paragraph 219 of the report. We need to
extract entire table A for appreciating the question.
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B
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Table A: Strength of Marathas in Government/Public
Services/PRIs/ULBs in the State
S.
N
o 
Grad
e 
of 
servi
ces 
Sanctio
ned 
posts 
Posts 
filled 
in as 
on 
01/08
/18 
Vaca
nt 
posts
Post 
sanctio
ned for 
open 
categor
y 
Post 
filled 
for 
open 
categ
ory 
Posts 
filled 
from 
Marat
ha 
class 
from 
out of 
open 
catego
ry 
posts
Posts 
filled 
from 
SCs 
Posts 
filled 
from 
STs 
Posts 
filled 
from 
Vimu
kta 
Jati 
(VJ 
A) 
Posts 
filled 
from 
Nomadic 
Tribe 
(NT 
B) 
Posts 
filled 
from 
Noma
dic 
Tribe 
(NT 
C) 
Posts 
filled 
from 
Noma
dic 
Tribe 
(NT 
D) 
Posts 
filled 
from 
other 
backw
ard 
class 
(OBC) 
Posts 
filled 
from 
Specia
l 
backw
ard 
class 
(SBC) 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
1 
Grad
e A 
83532 
49190
3434
2 
42669 
28048 9321
(11.16%
)
676
5
(8.16%)
282
2
(3.
38%)
142
2
((1.7%)
111
6
(1.
34%)
138
3(1.66%
)
911
(1.
09%)
440
0(5.27%)
232
4(2.78%)
2 
Grad
e B 
83425 
59504
2392
1 
44527 
31193 9057 
(10.86
%) 
9038 
(10.83
%) 
3980(4.7
7%) 
1976 
(2.37
%) 
1693(2.0
3%) 
2235 
(2.68
%) 
151
3(1.81%
)
637
6(7.64%)
1500( 1.8
0%)
3
Grad
e C 
952410
78340
7 
1690
03 
448575
41338
1 
15322
4 
(16.09
%) 
97215
(10.21
%) 
66155
(6.95%) 
23145
(2.43
%) 
20136
(2.11%) 
25967
(2.73
%) 
174
77
(1.
84%)
100   196
(10.52%)
197
35
(2.07%)
4
Grad
e D 
301385
19957
0 
1018
15 
137299
99592
36387
(12.07
%) 
30369
(10.08
%) 
17282
(5.73%) 
5671
(1.88
%) 
5588(1.8
5%) 
6248
(2. 
07%) 
34
79
(1.
15%)
24999
(8.29%)
6342
(2.
10%)
Total
142075
2
10916
71
3290
81
673070
57221
4
20798
9
14338
7
90239
32214
28533
35833
23380 135971
29
901
Ave
% 
14.64
10.09
6.35
2.27
2.01
2.52
1.65
9.57
2.10
290. The relevant figures pertaining to posts filled as on 01.08.2018,
includes posts filled from open category, posts filled from Maratha classes
from out of open category posts, posts filled from SCs, posts filled from
STs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic Tribes
NT-B, posts filled from Nomadic Tribes NT-C,NT-D and posts filled
from the backward classes (OBC) and posts filled from special backward
classes(SBC). The above figures correctly represent the representation
of different classes in public services.
291. Now, we take the representation of Marathas grade wise as
reflected by Table A.
GRADE-A
292. Posts filled are 49,190 out of which open category posts are
28,048 and posts filled from Maratha classes are 9,321. The Maratha
Community obviously has been competing in the open category and has
obtained the post as open category candidates. The Chart also mentioned
below each class the percentage against the column of posts filled from
Maratha class, percentage 11.16% has been mentioned. Similarly,
different percentage has been mentioned against all other classes. When
we take the total number of posts, posts filled for open category, it is
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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mentioned as 28,048 out of which Marathas are 9,321. When we
calculate the percentage of Maratha representation out of the
open category filled post, percentage comes out to 33.23 percent.
Thus, the correct percentage of Maratha out of the open category post
is 33.23 percent which indicates that more than 33 percent of the open
category post has been bagged by Maratha. In Maharashtra while
considering the status of reservation, we have noticed that 52 percent
posts are reserved for different categories and only 48 percent posts are
available for open category. Out of 48 percent posts available for open
category, Marathas have obtained 33.23 percent. The percentage given
by the Commission in below Maratha class i.e. 11.86% is obviously wrong
and erroneous. The Maratha who have been competing in open category
cannot claim any post in the reserved category of 52 percent. Thus, the
representation has to be computed taking into the seats of open category.
Similarly, while computing the percentage of Marathas in Grade B, C
and D, similar mistakes have been committed by the Commission. In
Grade-B, total posts filled from open category were 31193 out of which
Marathas were 9057, percentage of which comes out to 29.03 percent.
In Grade-C, total posts filled from open category were 4,13,381 out of
which Marathas were 1,53,224, percentage of which comes out to 37.06
percent and for Grade-D, total posts filled form open category
were
99592 out of which Marathas were 36387, percentage of which comes
out to 36.53 percent.
293. A comparative chart of open category seats which are filled,
number of posts of Maratha community and percentage in the posts is
as follows: -
294. The above representation of Marathas in public services in
Grade-A, B, C and D are adequate and satisfactory. 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. The Constitutional pre-condition that

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backward class is not adequately represented is not fulfilled. The State
Government has formed opinion on the basis of the above figures
submitted by the Gaikwad Commission. The opinion of the State
Government being based on the report, not fulfilling the Constitutional
requirement for granting reservation to Maratha community becomes
unsustainable.
295. Now we also look into Table B and C given in paragraphs
220 and 224 are as follows:-
Table B
Table C: Mantralaya Cadres
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296. Table B contains all details including posts filled from open
category, posts filled from Maratha officers. Taking the post of IAS in
the open category filled are 161. Maratha IAS officers are 25, percentage
of which comes to 15.52 percent. Similarly, in IPS out of 140 filled up
posts, Marathas are 39, percentage of which comes to 27.85 percent
and similarly, in IFS, out of 89, 16 were Marathas, percentage of which
comes to 17.97 percent.
297. With regard to percentage mentioned in each column, error
has been committed by the Commission in reflecting less percentage
which is incorrect and erroneous. Following is a tabular chart of posts
filled in open category, posts filled by Maratha and percentage is as
follows: -
Services 
No. of open category 
posts filled 
No. 
of filled from 
Maratha Class 
Percentage of Maratha in 
open category post. 
IAS 
161 
25 
15.52% 
IPS 
140 
39 
27.85% 
IFS 
89 
16 
17.97% 
298. Now, we come to Table C i.e. Mantralaya Cadres. Table C
also contains the details of posts filled from open category and posts
filled from Maratha category in Grade-A, B, C and D. For example,
Grade-A posts filled from open category are 248 out of which Marathas
are 93, percentage of which comes out to 37.5 percent.
299. Similarly, in Grade-B, posts filled from open category are
793 out of which Marathas are 415, percentage of which comes to 52.33
percent.
300. For Grade-C, posts filled from open category
are 808 out of
which Marathas are 421, percentage of which comes to 52.10 percent.
301. For Grade-D, posts filled from open category are 333, out of
which 185 are Marathas, percentage of which comes to 55.55 percent.
302. The tabular chart for posts filled in open category, posts filled
by Marathas and percentage is as follows: -
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303. All the three tables A, B and C and percentage of Marathas
who have competed from open category make it abundantly clear that
they are adequately represented in the services. The Commission although
noted all the figures correctly in all the columns but committed error in
computing the percentage adding posts available for open category as
well as posts available for reserved categories. Maratha cannot claim to
compete for the reserved category posts; hence, there is no question of
computing their representation including the reserved category posts.
The representation of Marathas has to be against open category posts,
hence, their percentage has to be determined as compared to total open
category filled posts, and the representation of Marathas in most of the
Grades is above 30 percent. This is the basic error committed by the
Commission in computing the percentage due to which it fell in error in
finding their representation in services inadequate.
304. There is one more fundamental error which has been
committed by the Commission. 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.
We may notice what has been said by the Commission in paragraph 219
while recording its conclusion
emerging from the analysis of information
contained in Table A,B,C and D. In paragraph 219(c), the Commission
states: -
“219(C)...The obvious conclusion that emerges from the
above information is that in none of the four grades the strength
of Maratha Class employees is touching the proportion to their
population in the State which is based on various sources is
estimated at an average 30%. So also, their presence in
administration is more at the lower grades of “C” and “D” and
have a comparatively lesser existence and role in decision making
levels of State administration in “A” and “B” grades...”
305. Indra Sawhney has categorically held that what is required
by the State for providing reservation under Article 16(4) is not
proportionate representation but adequate representation. The
Commission thus proceeds to examine the entitlement under Article 16(4)
on the concept of proportionate representation in the State services which
is a fundamental error committed by the Commission.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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306. The Government committed an error in accepting the
recommendation without scrutinizing the report with regard to correct
percentage of representation of Marathas in services. 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. We thus hold that Maratha
class was not entitled for any reservation under Article 16(4) and grant
of reservation under Article 16(4) is unconstitutional and cannot be
sustained.
(13)Social and Educational Backwardness of Maratha
Community
307. We have noted above that three National Backward Classes
Commissions and three State Backward Classes Commissions
considered the claim of Maratha community to be included in the other
backward community but all Commissions rejected such claim rather
they were held to be belonging to forward community. The first National
Backward Classes Commission on 30.03.1955, i.e., Kaka Kalelkar
Commission did not include Maratha commission in the list of backward
communities. The Commission observed:
“In Maharashtra, besides the Brahman it is the Maratha who
claimed to be the ruling community in the villages and the Prabhu
that dominated all other communities.
308. The second National Backward Classes Commission, i.e.,
Mandal Commission in its report included Maratha community as forward
Hindu community. The National
Commission on Backward Classes in
the year 2000 elaborately examined the claim of Maratha community to
be included in other backward class. The entire Commission heard the
claim of Maratha, including the members of State Backward Classes
Commission representing the claim of Maratha community. The National
Backward Classes commission held that Maratha community is an
advanced community of the society and it cannot be included with Kunbi
under separate entity of its own. We may extract paragraphs 18, 19 and
22 of the Commission’s report which are to the following effect:
“18. A community with a history of such origin and close association
with the ruling classes, a community, many of whose members,
from its inception enjoyed important economic and political rights
and positions of power and influence and eventually became rulers
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and members of ruling classes at different levels cannot in any
way be thought to have suffered any social disadvantages. The
Bench is aware that in what is identified as a ruling class/caste,
every member of it does not rule, but the fact that those who rule
come from a distinct caste community imparts a certain amount
of prestige and self-confidence even to those from the same caste/
community who personally belong to the ruling functionaries and
to the totality of that caste/community. It is significant to note that
Marathas have sought and received recognition of as of Kshatriya
Varna category and therefore does not secure them status or caste
upgradation Examples are Vanniakula Kshatriya in Tamil Nadu,
the adoption of the umbrella name “Kshatriya” by all BCs in
Gujarat, Paundra- Kshatriya (an SC) in West Bengal and so on.
But no community which is recognized generally, i.e. by the rest
of the society as of “Kshatriya” category and correctly finds place
in a BC list.
19. The modern history of Maharashtra is witness to the continued
dominance of Marathas in its society and polity as evident from
the fact, for example, that in the post-Independence period, the
community provided the largest number of Chief Ministers. During
the full Bench hearing on 14.12.99, the Bench had put the question
to the representatives of the Maratha Community as to why
despite there being so many Chief Ministers and important
Ministers in the State, some of whom also became
important
Ministers in the Centre, none of them got or moved to get Marathas
included in the list of BCs is eloquent testimony not only of the
fact that Marathas are not a backward class but also of the wisdom
and objectivity of these Chief Ministers. The only ground raised
by the representatives of the community in support of their claim
for inclusion in the list of BCs what the fact of the origin of Marathas
from Kunbis and the alleged use of the name Maratha by some
members of Kunbi caste in some areas of the State. The Bench
is of the view that since there, undoubtedly, is a distinct class/
community Called “Maratha” and since it is obviously an advanced
community in society and polity as already noted, it cannot be
included in the list of Backward Classes. The Bench cannot accept
the claim of the representatives of the community that many known
Maratha leaders including one whose name they mentioned have
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got caste certificates as “Kunbi” as a valid ground for inclusion of
Marathas in the list of BCs with Kunbis. The Bench has no ground
to believe that any known Maratha leaders would have sought
such certificates, nor have those who have made this allegations
presented any evidence in support of this claim. But even if, for
argument’s sake, claim or argument is it does not prove that
Maratha is the same as Kunbi or synonym of Kunbi. Leaving
aside the allegations made by some of the representatives of the
community, the Bench is aware that some shortsighted individuals
belonging to different non-backward castes unfortunately resort
to seeking and securing fake caste certificates and in the context
of the well-known qualities of India’s administrative system,
elements are not rare which entertain such requests and
deliberately issue false caste certificates. This menace, like
different forms of corruption, has become more and more
threatening. In certain Advices, the Commission has advised the
Central and State Governments how this menace could be
extirpated. But false caste-certificates and false caste-identities
based on them cannot change the reality of caste-identities as
they occur in society.”
22. In view of the above facts and position, the Bench finds that
Maratha is not a socially backward community but is a socially
advanced and prestigious community and therefore the Request
for Inclusion of “Maratha” in the
Central List of Backward Classes
for Maharashtra along with Kunbhi should be rejected. In fact
“Maratha” does not merit inclusion in the Central list of Backward
Classes for Maharashtra either jointly with “Kunbhi” or under a
separate entity of it’s own.”
309. We may also refer now to the three State Backward Classes
Commissions appointed by the State. In the year 1961, Deshmukh
Committee appointed by the State of Maharashtra did not include the
Maratha community in the list of backward communities. In the year
2001, Khatri Commission rejected the demand of Maratha to be included
in backward class communities. On 25.07.2008, Bapat Commission in
its report rejected the demand to include Maratha community in the
other backward class communities by majority.
310. After the Bapat Commission’s report, the State Government
had appointed Rane Committee to be headed by a Cabinet Minister who
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collected data and observed that Maratha may not be socially and
educationally backward but recommended grant of reservation as
educationally and financially backward class. The National Commission
or the State Commission, when it is appointed to examine the claim of a
particular community to be included or excluded from a list of other
backward classes, it is to look into the contemporaneous data and fact.
The State to inform itself of the status of a particular community appoints
Commissions or Committees to take affirmative measures as ordained
by the constitutional provisions of Articles 15 and 16. The relevant is the
data status of the community as existing at the time of investigation and
report.
311. This Court in Ram Singh and others vs. Union of India,
(2015) 4 SCC 697, has categorically laid down in paragraph 49 that a
decision which impacts the rights of many under Articles 14 and 16 of
the Constitution must be taken on contemporaneous inputs. Following
observations were made by two-Judge Bench of this Court in paragraph
49:
“49. ......A decision as grave and important as involved in the
present case which impacts the rights of many under Articles 14
and 16 of the Constitution must be taken on the basis of
contemporaneous inputs and not outdated and antiquated data. In
fact, under Section 11 of the Act revision of the Central Lists is
contemplated every ten years. The said provision further illuminates
on the necessity and the relevance of
contemporaneous data to
the decision-making process.”
312. We fully endorse the above view of this Court. Any study of
Committee or Commission is with regard to present status since object
is to take affirmative actions in present or in future to help the particular
community. Three National Backward Classes Commissions reports as
noted above in the year 1955, 1980 and 2000, were the reports regarding
the status of the community as was found at the relevant time. Similarly,
three State Committee/Commissions in the year 1961, 2001 and 2008
also were reporting the status of Marathas at the relevant time when the
report was submitted. The term of the reference of the Gaikwad
Commission was not to examine as to whether earlier reports of the
National Commissions for Backward Classes or Committee/Commissions
of the State earlier in not recommending Maratha to be included in OBC
were correct or not. Terms of reference which is a part of the report
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clause (1) and clause (3) clearly indicate that the Commission was to
collect contemporaneous data. Quantifiable data collected by the State
which have been referred in the report were of the data collected period
after 2014. The Commission’s observations made in the report that it
does not agree with the earlier reports cannot be approved.
313. We, however, hasten to add that it is always open to the
State to collect relevant data to find out as to whether a particular caste
or community is to be included in the list of other backward classes or
excluded from the same despite any decision to the contrary taken earlier.
The Constitution Bench in Indra Sawhney has also laid down for
periodical review which is for the purpose and object that those
communities who were earlier backward and advanced should be
excluded and those communities who were earlier advanced and might
have degraded into backward class should be included. Thus, the State
was fully entitled to appoint backward classes commission to collect
relevant data and submit the report.
314. When in earlier period of about 60 years, right from 1955 to
2008, repeatedly it was held that Maratha community is not backward
class, Gaikwad Commission ought to have applied the test that “what
happened thereafter that now the Maratha community is to be
included in OBC”. The Commission has not adverted to this aspect of
the matter. The Commission ought to have also
focused on comparative
analysis as to what happened in the recent years that Marathas have
become backward from forward class. In this context, we may also
refer to the judgment of this Court in Ram Singh (supra) where National
Backward Classes Commission has rejected the claim of Jat to be
included in other backward communities with regard to several States.
The National Commission recommended that Jat is politically dominant
class and need not to be included in OBC. The Union disregarding the
said report had issued a notification including Jat as OBC in the different
States in the Central List. It was challenged in this Court by way of writ
petition. This Court held that the report of National Backward Classes
Commission could not have been disregarded and ought to have been
given due weight. This Court held that Jat community is politically
organised class which was rightly not included in the category of other
backward classes. In paragraph 55 following was laid down:
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“55. The perception of a self-proclaimed socially backward
class of citizens or even the perception of the “advanced classes”
as to the social status of the “less fortunates” cannot continue to
be a constitutionally permissible yardstick for determination of
backwardness, both in the context of Articles 15(4) and 16(4) of
the Constitution. Neither can backwardness any longer be a matter
of determination on the basis of mathematical formulae evolved
by taking into account social, economic and educational indicators.
Determination of backwardness must also cease to be relative:
possible wrong inclusions cannot be the basis for further inclusions
but the gates would be opened only to permit entry of the most
distressed. Any other inclusion would be a serious abdication of
the constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically organised
classes (such as Jats) in the List of Backward Classes mainly, if
not solely, on the basis that on same parameters other groups who
have fared better have been so included cannot be affirmed.”
315. We have already noted that after the 2014 enactment, writ
petition was filed in the High Court challenging 2014, enactment by which
Maratha community was declared as socially and educationally backward
class and separate reservation was provided for. The Ordinance XIII of
2014 was issued to that effect; writ petition was filed in the High Court
challenging the Ordinance
and inclusion of Maratha as other backward
category. The High Court elaborately heard all parties and passed a
detailed interim order in Writ Petition No.2053 of 2014 on 14.11.2014
where it set out various facts which were placed before the Court for
staying the Ordinance and staying the grant of separate reservation to
Maratha community. We may refer to paragraph 40(e) of the order
dated 14.11.2014 of the High Court which is to the following effect:
“40. In the context of 16% reservation for Marathas upon their
classifications as Educationally and Socially Backward Classes,
he following position emerges:
......
......
......
(e) The petitioner in Public Interest Litigation No.140 of
2014 placed on record some statistics by reference to data compiled
by Dr. Suhas Palshikar in the book on “Politics of Maharashtra:
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Local Context of the Political Process:”, Editors: Suhas Palshikar
and Nitin Birmal, Pratima Prakashan, 2007 which suggest that-
(I) From 1962 to 2004, from out of 2430 MLAs, 1336 MLAs
corresponding to 55% were Marathas;
(ii) Nearly 54% of the educational institutions in the State are
controlled by Marathas.
(iii) Members of the Maratha community dominate the universities
in the State with 60 to 75% persons in the management.
(iv) Out of 105 sugar factories, almost 86 are controlled by
Marathas. About 23 district cooperative banks have Marathas as
their Chairpersons.
(v) About 71.4% of the cooperative institutions in the State are
under control of Maratha community.
(vi) About 75 to 90% of the land in the State is owned by Maratha
community.
None of the aforesaid was disputed by or on behalf of the
respondents in any of the affidavits or at the hearing.
It was also stated by the petitioner at the hearing that ever since
the establishment of the State of Maharashtra on 1 November
1956, out of 17 Chief Ministers, 12 have been Marathas. The last
non-Maratha Chief Minister was during the period January 2003
to October 2004. This statement was also not disputed.”
316. The above stated facts were not disputed before the High
Court, and before this Court also in the submissions of the parties above
facts have been repeated and it has been submitted that those facts
clearly prove that Maratha are not socially backward. The
Commission
in its report does not dispute that Maratha is politically dominant class.
In this context, following is extracted from the report:
“Political dominance cannot be ground to determine social
and educational backwardness of any community.”
317. We have already found that Maratha community has adequate
and sufficient representation in the public services. We have also noted
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that representation of Maratha in public services is present in all categories
i.e. Group A, Group B, Group C and Group D posts, and the Marathas
have occupied the posts by competing with open categories. The
representation of Marathas as noticed above has in many grades about
30% against all filled posts of open category. When a community is able
to compete with open category candidates and obtain substantial number
of seats (about 30%), this was relevant fact to be noticed while
considering the social and educational backwardness of the community.
Even if grant and non-grant of reservation to backward under Article
16(4) may not be considered as decisive for socially and educationally
backward class for grant under Article 15(4) but grant or non-grant
under Article 16(4) certainly is relevant for consideration which reflects
on backward class or classes both in favour and against such backward
class. We have noticed that the Commission has taken erroneous view
that the representation of Maratha community in public services is not
proportionate to their population and has recommended for grant of
reservation under Article 16(4). We having disapproved the grant of
reservation under Article 16(4) to Maratha community, the said decision
becomes relevant and shall have certainly effect on the decision of the
Commission holding Maratha to be socially and educationally backward.
Sufficient and adequate representation of Maratha community in public
services is
indicator that they are not socially and educationally backward.
318. The Commission in its report while discussing, in Chapter
VIII has analysed the various data including data of students belonging
to Maratha community who are pursuing Engineering, Medical and other
disciplines. In paragraph 178 the Commission has recorded that it obtained
the information as regards Marathas engaged in and pursuing academic
career, which would also throw light on the depth of their involvement in
higher education. In Paragraph 178, 1(b) the Commission has extracted
a table for the last three academic years (2014-15, 2015-16, 2016-17) in
the Engineering Courses as received from the Directorate of Technical
Education of the State Government. Out of open category seats in
Diploma of 167168 Maratha achieved admission in 34,248 seats and in
Graduate out of 221127, they could receive 32045 admissions, under
Post Graduate out of 63795 they could secure admission in 12666 .
Similarly details have been given about the Graduation and Post-Gaduation
Medical Courses for three years. In MBBS out of 4720 in the year
2015-16 Maratha received 428 seats, in other streams out of 14360 they
secured 2620 seats, in the above regards table is produced hereunder:
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319. Similarly, the Commission has given details of Medical Post
Graduation Courses in para-178-1(c)(c-ii) which indicates following with
regard to other under-Graduate and Post-Graduate posts, details of which
given in paragraph 178-1(d) which indicates:
320. The above facts and figures which were obtained by the
Commission itself indicate that students of Maratha community have
succeeded in open competition and got admissions in all the streams
including Engineering, Medical Graduation and Post-Graduation Courses
and their percentage is not negligible. The computation of percentage by
the Commission against Maratha is since out of open category seats,
since 50% seats are for reserved category and only 50% are open, the
percentage of the Maratha, thus, shall substantially increase as per table
given by the Commission itself.
321. The Commission has also made studies with regard to
representation of Maratha in prestigious Central services, namely, IAS,
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IPS and IFS with regard to State of Maharashtra. In the State of
Maharashtra out of 161 posts filled from open category candidates, there
are 25 IAS belonging from Maratha. Similarly out of 140 posts filled
from open category, 39 of IPS belong to Maratha and in IFS out of 97,
89 posts filled from open category, there are 16 IAS belong to Maratha
community. When we compute the percentage of IAS, IPS and IFS,
percentage of Maratha out of the posts filled from open category
candidates comes to 15.52, 27.85 and 17.97 percentage respectively,
which is substantial representation of Marathas in prestigious Central
services.
322. We may further notice that the above numbers of Maratha
officers are only in the State of Maharashtra on the posts of the IPS,
IAS and IFS being Central services. Similarly, the members of Maratha
community must have occupied the above posts in the other States of
the Country of which details are not there.
323. The Commission has also collected data regarding engagement
of Maratha in Higher Academic and Educational Fields of University
Assignments in the State in paragraph 226. The Table D has been
compiled by the Commission. In the said paragraph where Marathas
occupied all categories of posts, including Head of Department, Professor,
Associate Professor and Assistant Professor, the Commission has in the
Chart also noted the number of Marathas occupying different posts in
several Universities. It is true that in some of the
Universities there may
not be Maratha community in one or two posts but Chart indicates that
there are sufficient number of Maratha in different Universities occupying
posts of HOD, Professor, Associate Professor and Assistant Professor.
324. There cannot be any concept of Marathas occupying all higher
posts including the posts in the Universities according to their proportion
of population. The Commission has commented in the report that their
percentage in the above posts is less, whereas Table indicates that in
HOD post in Savitribai Phule University Pune, out of open category
filled post of 29 of HOD, only 3 are from Maratha community, out of 14
Professors only 2 are from Maratha community and out of 33 Associate
Professors only 3 are from Maratha community and out of 79 Assistant
Professors only 3 are from Maratha community. The Commission
concludes that only 4.3% are from Maratha community in the above
posts.
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325. In the Higher Academic posts and posts like IAS, IPS and
IFS, there cannot be any basis to contend that since Maratha community
is not occupying posts according to their proportion of population, they
are socially and educationally backward classes. The above are the data
and figures on the basis of which the Commission concluded that the
Marathas are socially and educationally backward class. When we look
into the aforesaid details regarding Maratha students occupying
Engineering, Medical and other streams, Maratha officers occupying
Central posts of IAS, IPS and IFS and are occupying posts of Higher
Academic in Universities, mere fact that their occupation of posts is not
equivalent to the proportion of their population cannot lead to the
conclusion that they are socially and educationally backward. We are
conscious that the Commission has conducted sample survey collected
representations and other information, data and has allotted marks on
social and educational and economic backward class and in the marking
Marathas were found to be backward. However, data and facts which
have been collected by the Commission noted above clearly indicate
that Marathas are neither socially nor educationally backward and the
conclusion recorded by the Gaikwad Commission on the basis of its
marking system, indicator and marking is not sufficient to conclude that
Marathas are socially and educationally backward.
326. The facts
and figures as noted above indicate otherwise and
on the basis of the above data collected by the Commission, we are of
the view that the conclusion drawn by the Commission is not supportable
from the data collected. The data collected and tabled by the Commission
as noted above clearly proves that Marathas are not socially and
educationally backward.
327. We have completed more than 70 years of independence, all
governments have been making efforts and taking measures for overall
developments of all classes and communities. There is a presumption
unless rebutted that all communities and castes have marched towards
advancement. This Court in Ram Singh versus Union of India and
others (Supra) has made such observations in paragraph 52:-
“52...This is because one may legitimately presume progressive
advancement of all citizens on every front i.e. social, economic
and educational. Any other view would amount to retrograde
governance. Yet, surprisingly the facts that stare at us indicate a
governmental affirmation of such negative governance inasmuch
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as decade old decisions not to treat the Jats as backward, arrived
at on due consideration of the existing ground realities, have been
reopened, in spite of perceptible all-round development of the
nation. This is the basic fallacy inherent in the impugned
governmental decision that has been challenged in the present
proceedings...”
327(a).We also endorse the opinion of Brother Justice S. Ravindra
Bhat on affirmative actions and giving of more and more incentives to
realise the constitutional objectives which undoubtedly is the obligation
and duty of the State.
328. We are constrained to observe that when more people aspire
for backwardness instead of forwardness, the country itself stagnates
which situation is not in accord with constitutional objectives.
(14)The Constitution (One Hundred and Second Amendment)
Act, 2018 [The Constitution(102nd Amendment)Act, 2018].
329. I have advantage of going through erudite draft judgment
circulated by my esteemed Brother, Ravindra Bhat. Although, we both
are aditem on the question of Constitutional validity of Constitution 102nd
Amendment Act, 2018, I regret my inability to agree with the
interpretation of the Constitution 102nd Amendment Act, 2018 as put by
my esteemed Brother.
330. The case of the appellant is that after 102nd Amendment to
the Constitution which came into force with effect from 15.08.2018, the
Maharashtra Legislature had no competence to enact Act, 2018. After
the Constitution 102nd Amendment, the
States have no power to identify
socially and educationally backward classes. The Constitution 102nd
Amendment had brought change in the regime already in existence for
backward class to fall it in line with Articles 341 and 342 of the
Constitution. Article 366(26C) says that the phrase SEBCs “means”
those backward classes which are so deemed under Article 342A, for
the purposes of this Constitution. The expression “for the purposes of
this Constitution” is used in Articles 15(4) and 16(4), 338B, 342A and in
other Articles of the Constitution of India. In view of Article 342A the
SEBCs are those who are specified by the President by public notification
for the purposes of a State or Union Territory under sub-clause(1) of
Article 342A. Article 342A being analogous to Articles 341 and 342
must be interpreted exactly in the same manner. The Parliament inserted
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]
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phrase “Central List” in clause (2) of Article 342A only to emphasize
the fact that after Constitution 102nd Amendment, the only list that shall
be drawn for the purposes of SEBCs is the Central List drawn by the
President.
331. Learned counsel for the appellant contends that Maharashtra
Legislature had no competence to enact 2018 Legislation after Constitution
102nd Amendment. Learned senior counsel, Shri Gopal
Sankaranarayanan, submitted that for interpreting Article 342A reliance
on Select Committee report of Rajya Sabha is unwarranted.
332. The above submissions of the appellant have been stoutly
refuted by the learned counsel for the State of Maharashtra as well as
other States. Under Articles 15(4) and 16(4), the Union and the States
have co-equal powers to advance the interest of the socially and
educationally backward classes; therefore, any exercise of power by
the Union cannot encroach upon the power of the State to identify socially
and educationally backward classes. The expression “for the purpose of
the Constitution” can, therefore, only to be construed with the contours
of the power that Union is entitled to exercise with respect to entities,
institutions, authorities and public sector enterprises under the control of
the Union. The power to identify and empower socially and educationally
backward classes and determining the extent of reservation required is
vested in the State by our Constitution and
recognised by judicial
pronouncements including Indra Sawhney. The expression “Central List”
occurring in Article 342A(2) relates to the identification under Article
342A(1) wherein the Central List will include the socially and
educationally backward classes for the purposes of the Central
Government. Any other interpretation would allow to whittle down the
legislative power of the State. Article 342A must be interpreted in the
historical context. It is submitted that the Constitution 102nd Amendment
has brought changes with regard to Central List. The expression Central
List is well understood concept in service jurisprudence for reservation
purposes of OBC, there are two lists, Central List and State List.
333. It is submitted that the Parliamentary Committee report and
other materials throw considerable light on the intention of Parliament
for inserting Article 342A in the Constitution. The Constitutional
amendment has to be interpreted in the light of the Parliamentary intention.
The power of the State Government to legislate cannot be taken away
without amendment of Articles 15 and 16. The Parliament has not even
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exercised its power to occupy the field of a State by clearly using the
expression ‘Central List’ in sub-clause (2). If the Constitution 102nd
Amendment is interpreted in the manner as appellants are interpreting,
the Constitutional Amendment shall be violative of the federal structure
and shall be unconstitutional.
334. We have in this batch of cases issued notice to learned
Attorney General, the interpretation of the 102nd Amendment to the
Constitution of India being in question. Shri K.K. Venugopal, learned
Attorney general submits that the Constitution Bench in Indra Sawhney
in paragraph 847 had taken the view that there ought to be a permanent
body, in the nature of a Commission or Tribunal, to which complaints of
wrong inclusion or non-inclusion of groups, classes and sections in the
lists of Other Backward Classes can be made. He submitted that the
Constitution Bench in Indra Sawhney directed the Government of India,
each of the State Governments and the Administrations of Union
Territories to constitute a permanent body for entertaining, examining
and recommending upon requests for inclusion and complaints of over-
inclusion and under-inclusion in the lists of other backward classes of
citizens.
335. Learned Attorney General submits that in view of the above
nine-Judge Bench judgment of this Court it is inconceivable that any
such amendment can be brought in the Constitution that no State shall
have competency to identify the backward classes,
Article 15(4)
necessarily includes the power of identification. Under Article 12 of the
Constitution, the State includes the Government and Parliament, and
Government and Legislature of each State. In event the States have to
deprive their rights under Articles 15(4) and 16(4) of the Constitution, a
proviso had to be added. Article 15(4) and 16(4) are the source of power
to identify SEBC. The Constitution 102nd amendment has not made any
such amendment by which the effect of Articles 15(4) and 16(4) has
been impacted. He submits that the National Commission for Backward
Classes Act, 1993 was passed by the Parliament in obedience of direction
of Indra Sawhney. Section 2(c) of the Act defines “lists” which is clearly
limited to the Central Government; Learned Attorney General submits
that Article 342A covers the Central Government list alone. Learned
Attorney General has referred to Select Committee report dated
17.07.2017 and submits that Select Committee report after considering
the response and clarification by the concerned Ministry had opined that
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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102nd Amendment was not to take the rights of the State to identify
other backward classes in their States. He submits that rights of the
State to identify OBC for their States in respect of the States are
untouched. Referring to State of Punjab, learned Attorney General submits
that there are two lists, Central List which contains 68 OBC, the State
List which contains 71, he submits that with regard to the Scheduled
Castes and Scheduled Tribes the President was given power in the
Constitution with which State had no concern. There was no attempt on
behalf of the Parliament to modify Articles 15(4) and 16(4).
336. Learned Attorney submits that Article 342A has to be read
harmoniously with the other provisions of the Constitution. Learned
Attorney General has also referred to a short affidavit filed by the Union
of India in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India
& Ors., wherein Union has taken the stand 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 in recruitment. Learned Attorney General adopts
the same stand taken by the Union of India in the aforesaid affidavit. He
reiterated that the Parliament by passing Constitution Amendment has
not taken away the power of the State to identify backward classes
(SEBCs) in their States.
337. He further submits that
there is no violation of basic structure
of the Constitution. Replying to the argument of learned counsel for the
writ petitioner under clause (2) of Article 368 learned Attorney General
submits that power to identify backward classes being under Articles 15
and 16, there is no occasion to examine the list of 7th Schedule to find the
source of power. He submits that no amendments have been made in
any of the Lists of 7th Schedule so as to attract the proviso to Article
368(2). He submits that the Constitution 102nd Amendment did not require
ratification by the State Legislature.
338. Before coming to the Articles in the Constitution inserted by
the Constitution 102nd Amendment, we need to notice the Statement of
Objects and Reasons contained in the Constitution (One Hundred and
Twenty-Third Amendment) Bill, 2017 which was introduced in the Lok
Sabha on 4th April, 2017 and some details regarding legislative process
which culminated into passing of the Constitution (One Hundred and
Second Amendment) Act, 2018. When Bill came for discussion to amend
the Constitution of India, it was passed by Lok Sabha on 10.04.2017.
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Rajya Sabha on motion adopted by the House on 11.4.2017 referred the
Bill to the Select Committee for examination of the Bill and report thereon
to the Rajya Sabha. The Select Committee of Rajya Sabha examined
the Bill by holding 7 meetings. The Select Committee asked clarification
on various issues from the Ministry and after receipt of clarifications
submitted the report on 17.07.2017. The Constitution (One Hundred and
Twenty-Third Amendment) Bill, 2017 with the Select Committee report
came for consideration before the Rajya Sabha. The Bill was passed
with certain amendments on 31.07.2017 by the Rajya Sabha. After
passing of the Bill, it was again taken by the Lok Sabha and it was
passed by the Lok Sabha on 2nd August, 2018. Rajya Sabha agreed to
the Bill on 6th August, 2018.
339. The Statement of Objects and Reasons of Constitution 102nd
Amendment are contained in the Constitution (One Hundred and Twenty-
Third Amendment) Bill, 2017. It is useful to extract the entire Statement
of Objects and Reasons as contained in the Bill:
“STATEMENT OF OBJECTS AND REASONS
The National Commission for the Scheduled Castes and
Scheduled Tribes came into being consequent upon passing of the
Constitution (Sixty-fifth Amendment) Act, 1990. The said
Commission was constituted on 12th March, 1992 replacing the
Commission for the Scheduled Castes and Scheduled Tribes set
up under the Resolution of 1987. Under article 338 of the
Constitution, the National Commission for the
Scheduled Castes
and Scheduled Tribes was constituted with the objective of
monitoring all the safeguards provided for the Scheduled Castes
and the Scheduled Tribes under the Constitution or other laws.
2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003, a
separate National Commission for Scheduled Tribes was created
by inserting a new article 338A in the Constitution. Consequently,
under article 338 of the Constitution, the reference was restricted
to the National Commission for the Scheduled Castes. Under
clause (10) of article 338 of the Constitution, the National
Commission for Scheduled Castes is presently empowered to look
into the grievances and complaints of discrimination of Other
Backward Classes also.
3. In the year 1992, the Supreme Court of India in the matter of
Indra Sawhney and others Vs. Union of India and others (AIR
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
& ANR. [ASHOK BHUSHAN, J.]