DR. JAISHRI LAXMANRAO PATIL Vs THE CHIEF MINISTER & ORS. [CIVIL APPEAL NO. 3123 OF 2020]

JUDGMENT PRONOUNCED BY- ASHOK BHUSHAN, J.

JUDGMENT PRONOUNCED ON- 05.05.2021

LAW POINTS

• The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional  circumstances  as  contemplated  by  Constitution  Bench in Indra Sawhney’s case.
• There was no need to revisit the ratio laid down in the landmark judgment in Indra Sawhney v. Union of India
• Even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the M.C Gaikwad commission has completely erred in understanding the ratio of the M. Nagraj Judgment.
• No extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The 2018 Act 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.
• The Constitution 102nd Amendment Act,  2018 does  not violate  any basic feature of the Constitution. The constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018 is upheld.

BACKGROUND OF THE CASE:

The present appeal before the Apex Court has been filed against the judgment of the High Court in PIL filed by Dr. Jaishri Laxmanrao Patil questioning the 16% separate reservation given to Maratha under Act, 2018 published on 30.11.2018. The writ petitioner pleaded that providing reservation to Maratha community to the extent of 16% amounts to breach of Article 14, 16 and 21 of the Constitution of India and also bypassing ceiling of reservation of 50%.

Referring to judgment of this Court in Indra Sawhney’s case and law laid down in Mr. Nagraj and others vs. Union of India & Ors. (2006) SC, it was pleaded that the reservation is not permissible beyond 50%. Various grounds had been taken in the writ petition questioning the 16% reservation for Maratha.

ISSUES FRAMED

1. Whether judgment in case of  Indra Sawhney v. Union of  India [1992 SC]  needs to be referred to larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society?

• Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?

• Whether the Constitution One Hundred and Second Amendment deprives  the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?

• Whether States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?

• Whether Article 342A of the Constitution abrogates power of States to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

SUBMISSIONS OF APPLELANT

• There is no need to refer the judgment of Constitution  Bench of this  Court  in Indra Sawhney to an Eleven-Judge Bench. Reference to larger Bench can be made only for compelling reasons. No judgment of this Court has doubted the correctness of nine- Judge Constitution Bench of this Court in Indra Sawhney’s case.
• The limit of 50% reservation laid down by the Constitution Bench of this Court in Indra Sawhney is now an integral part of the trinity of Article 14, 15 and 16 of the Constitution. Any legislative or executive legislations against it are void and have to be struck down.
• Reference to the Constitution Bench in M. Nagaraj vs. Union of India, (2006) 8 SCC 212 in which case the Constitution Bench of this Court laid down that the State cannot obliterate the Constitutional requirement of ceiling limit of 50%. It was held that if the ceiling limit of 50% is breached the structure of quality  and equality in Article 16 would collapse.
• The impugned judgment of the Bombay High Court is liable to be set aside as it is contrary to the clear principle laid down in the Indra Sawhney’s case. The High Court has not given any reason as to how extra-ordinary situations as mentioned in Indra Sawhney case is made out in the context of reservation for the Maratha caste/community in Maharashtra. Exception and certain extra-ordinary situations to the 50% principle carved out in Indra Sawhney does not cover the case of Maratha since such “rule is confined to far flung and remote areas, where they are out of main stream of national life
• The social and financial status of Maratha community has been examined by successive Commissions or Committees and each of the Commission and Committee did not recognise members of Maratha community as deserving for reservation as backward class. Gaikwad Commission which submitted its Report in 2018 concluding that Maratha Community in Maharashtra are socially, educationally and economically backward and are eligible to be included in backward class category is completely flawed.
• The Gaikwad Commission ignored determination by National Commission and State Commission holding that Maratha are forward class in the State of Maharashtra. The report failed to recognize the consequences of Maratha Community being politically organised and being the dominant political class in Maharashtra for several decades. Politically organised classes that dominate government are not backward in any Constitutional sense.
• The 102nd Constitution Amendment now contemplates identification by National Commission of Backward Classes. The Constitutional scheme which is delineated by Article 341 and 342 has also has also been borrowed in Article 342A.The identification of backward classes is now centralized.
• The backwardness has to be based on objective factors where inadequacy has to factually exist. The Court while exercising power of Judicial Review has  to consider the substance of the matter and not its form, the  appearance  or the cloak, or the veil of the executive action is to be carefully scrutinized and if it appears that Constitutional power has been transgressed, the impugned action has to be struck down.
• There is no extraordinary situation as contemplated in of judgment of  Indra Sawhney’s case could be made out,  even  if  all  the  findings  given  by  the Commission are  accepted to  be  true. The  Commission has relied on outdated data for holding that  ‘Marathas’  were  ‘Shudras’.  When  an  unscientific  survey  is  done, an unrealistic result is bound to come.
• There has been adequate representation of Maratha Community in the  Public Services. The Commission erred in holding that the representation is not proportionate and recommended reservation under Article 16(4). The Commission has not even adverted to the requirement regarding  efficiency  as  contemplated under Article 335 of the Constitution of India.
• The essence of 102nd Amendment as exemplified in Article 342A results in the monopoly of identification even though implementation is left to the State. this is contrary to the basic  structure  of  federalism  of  the  Constitution.  In  that  it deprived the States of the crucial power of identification which was a very important power of the State under Article 15, 16 and 46. There cannot be any State list of ‘Socially and Educationally Backward Class’ after the 102nd Constitutional Amendment. It was submitted that identification of the caste was never the exclusive domain of the States.

OBSERVATIONS BY THE SUPREME COURT

RATIO DECENDI IN INDRA SAWNEY CASE

The greatest  common  measure  of  agreement  in  six  separate  judgments  delivered  in Indra Sawhney is:

• Reservation under Article 16(4) should not exceed 50%.
• For exceeding reservation beyond 50%,  extra-ordinary  circumstances  should exist for which extreme caution is to be exercised.

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.

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. 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.

DOCTRINE OF STARE DECISIS

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. The Constitution Bench judgment in Indra Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India.

The setting aside of 50% ceiling by eleven- Judge  Bench  in  T.M.A. Pai Foundation case, has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation. The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution.

The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% has now received constitutional recognition.

The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The  Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration.

GAIKWAID COMMISSION’S REPORT

The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness.

The Commission has completely misread the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached.

The  Commission and the  High Court found existence of the extra-ordinary situations with regard to exceeding 50% ceiling in respect to grant of separate reservation to Maratha because the population of  backward  class  is  80%  and  reservation  limit  is only 50%, containing the Maratha in pre-existing reservation for  OBC  shall  not  be justice to them,  which  circumstances  is  not  covered  under  the  parameters  indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling.No extraordinary circumstances were made out in  granting  separate  reservation  of Maratha Community by exceeding the 50 per cent ceiling limit of reservation.

IMPUNGED ACT IN THE LIGHT OF PRINCIPLES OF EQUALITY

The Act, 2018 violates the principle of equality as  enshrined  in  Article  16.  The exceeding of ceiling  limit  without  there  being  any  extra-ordinary  circumstances clearly violates Article 14  and  16  of  the  Constitution  which  makes  the  enactment ultra vires.

The measures taken under Article 15(4) and 16(4) can be examined as to whether they violate any constitutional principle, and are in conformity with the rights under Article 14, 15 and 16 of the Constitution.

The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the constitutional scrutiny.

INTERPRETATION OF SECTION 16(4) OF THE CONSTITUTIONSS

The word ‘adequate’ is a relative term used in relation  to  representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream  to  enable  to  share  power  of  the State by affirmative action.

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 laboured under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented.

Indra Sawhney case has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.

The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.

SUFFICENT AND ADEQUATE REPRESENTATION OF MARATHAS

The Court disapproved the grant of reservation under Article 16(4) to Maratha community. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially  and educationally  backward. From the facts and figures as noted by Gaikwad Commission  in  its  report  regarding representation of Marathas in  public  services,  the  percentage  of  Marathas  in admission  to  Engineering,  Medical  Colleges  and  other  disciplines,   their representation in higher academic posts, the conclusion drawn  by  the  Commission  is not supportable from the data collected. The data collected and tabled  by  the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class.

INTERPRETATION OF CONSTITUTION

The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used. The aid to interpretation is resorted to only when there is some ambiguity in words or expression used in the statute. The rule of harmonious construction, the rule of reading of the provisions together as also rule of giving effect to  the  purpose  of the  statute, and  few other principles  of interpretation are called in question when aids to construction are necessary in particular context.

The shift from literal rule to purposive and objective interpretation of a constitutional document is adopted since the Constitution is not to be interpreted in static and rigid manner, the Constitution is an organic and living document which needs to be interpreted with cardinal principals and objectives of the Constitution.

The law is well settled in this county that Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions.

MEANING OF “CONSULTATION” UNDER SECTION ARTICLE 338B

The consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per subclause (9) of Article 338B which mandatory requirement cannot be by-passed by any State  while  the State takes any major policy decision. Sub-clause (9) of Article 338B uses the expression ‘consultation’.

It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ has to be effective and meaningful. The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.

It is clear as sunlight that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment  is  that  the intention of the Parliament for bringing Constitutional amendment  was  not  to  take away the power of the State to identify backward class in the State.

INTERPRETATION OF ARTICLE 342A

When the Parliamentary intention is discernible and admissible as aid to statutory interpretation, there is no reason not to interpret Article 342A in manner as per the intention of the Parliament.

The word ‘Central’ in Article 342A (2) was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services. It is well settled rule of interpretation that  no  word  in  a  statute  or Constitution is used without  any  purpose.  Word  ‘Central’  has  to  be  given  meaning and purpose.

Article 342A refers to ‘Central List’ which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the (26C) has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern.

CONSTITUTIONALITY OF 102nd AMENDMENT TO CONSTITUTION

Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.

The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. The constitutional validity of Constitution (One  Hundred  and second Amendment) Act, 2018 is upheld.

ORDER:

The writ petitions filed by the appellants in the High Court are allowed with following effect:

• Section 2(j) of the Act, 2018 insofar as it declares Maratha community Educationally and Socially Backward Category is held to be ultra vires to the Constitution and struck down.
• Section 4(1)(a) and (b) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation under Article 15(4) to the extent of 12% and 13% of total  seats  in educational institutions in direct  recruitment to  public  services is  declared ultra  vires to the Constitution and struck down.
• After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.